PC Packet 11-24-2015CITY OF CUPERTINO
AGENDA
Tuesday, November 24, 2015
10350 Torre Avenue, Council Chamber
PLANNING COMMISSION
6:45 PM
SALUTE TO THE FLAG
ROLL CALL
APPROVAL OF MINUTES
1.Subject: Draft Minutes of September 22, 2015
Recommended Action: Approve or modify Draft Minutes of September 22, 2015
Draft Minutes of September 22, 2015
WRITTEN COMMUNICATIONS
POSTPONEMENTS/REMOVAL FROM CALENDAR
ORAL COMMUNICATIONS
This portion of the meeting is reserved for persons wishing to address the Commission
on any matter not on the agenda. Speakers are limited to three (3) minutes. In most
cases, State law will prohibit the Commission from making any decisions with respect to
a matter not on the agenda.
CONSENT CALENDAR
2.Subject: Consider cancellation of the December 22, 2015 Planning Commission
meeting
PUBLIC HEARING
3.Subject: Modification to a previously approved Use Permit (U-1981-02) to amend
a condition of approval, which required two lots (lots 4 and 11) to be restricted to
single story structures within a planned development, to allow a second story
Page 1 CITY OF CUPERTINO
November 24, 2015Planning Commission AGENDA
addition on lot 11 ; and Architectural and Site Approval to allow the construction
of a 530 square foot second-story addition to an existing single-story
single-family residence in a Planned Development Zone. (Application No.(s):
M-2015-01 & ASA-2015-20; Location: 22643 Woodridge Ct., APN: 342-15-072;
Applicant: Shen-I Chiou)
Recommended Action: Staff recommends that the Planning Commission approve
the Modification (M-2015-01) and the Architectural and Site Approval
(ASA-2015-20) in accordance with the draft resolutions
Staff Report
1 - Draft Resolution M-2015-01
2 - Draft Resolution ASA-2015-20
3 - Woodridge Lots from U-1982-02 (modified)
4 - Plan Set
4.Subject: Adoption of amendments to the Cupertino Municipal Code prohibiting
marijuana cultivation, dispensaries, and deliveries and commercial cannabis
activities within the City of Cupertino. (Application No.: MCA-2015-01;
Applicant: City of Cupertino; Location: City-wide)
Recommended Action: Staff recommends that the Planning Commission
recommend that the City Council adopt an Ordinance of the City Council of the City
of Cupertino amending Section 19.08.030 and adding Chapter 19.98 of Title 19 to
the Cupertino Municipal Code Regarding Medical Marijuana Dispensaries,
Marijuana Cultivation Facilities, Commercial Cannabis Activities, and Medical
Marijuana Deliveries.
Tentative City Council date: January 19, 2016
Staff Report
1 - Draft PC Resolution
2 - 2009 California Police Chiefs Association White Paper Report
3 - Santa Clara District Attorney
OLD BUSINESS
NEW BUSINESS
REPORT OF THE PLANNING COMMISSION
Environmental Review Committee
Housing Commission
Mayor’s Monthly Meeting with Commissioners
Economic Development Committee Meeting
Page 2 CITY OF CUPERTINO
November 24, 2015Planning Commission AGENDA
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT
5.Subject: Director's Report
Recommended Action: accept report
Report
ADJOURNMENT
Page 3 CITY OF CUPERTINO
November 24, 2015Planning Commission AGENDA
If you challenge the action of the Planning Commission in court, you may be limited to
raising only those issues you or someone else raised at the public hearing described in
this agenda, or in written correspondence delivered to the City of Cupertino at, or prior
to, the public hearing. In the event an action taken by the planning Commission is
deemed objectionable, the matter may be officially appealed to the City Council in
writing within fourteen (14) days of the date of the Commission’s decision. Said appeal
is filed with the City Clerk (Ordinance 632).
In compliance with the Americans with Disabilities Act (ADA), anyone who is planning
to attend the next Planning Commission meeting who is visually or hearing impaired or
has any disability that needs special assistance should call the City Clerk's Office at
408-777-3223, 48 hours in advance of the meeting to arrange for assistance. Upon
request, in advance, by a person with a disability, Planning Commission meeting
agendas and writings distributed for the meeting that are public records will be made
available in the appropriate alternative format. Also upon request, in advance, an
assistive listening device can be made available for use during the meeting.
Any writings or documents provided to a majority of the Planning Commission after
publication of the packet will be made available for public inspection in the Community
Development Department located at City Hall, 10300 Torre Avenue, during normal
business hours and in Planning packet archives linked from the agenda/minutes page
on the Cupertino web site.
Members of the public are entitled to address the Planning Commission concerning any
item that is described in the notice or agenda for this meeting, before or during
consideration of that item. If you wish to address the Planning Commission on any issue
that is on this agenda, please complete a speaker request card located in front of the
Commission, and deliver it to the City Staff prior to discussion of the item. When you
are called, proceed to the podium and the Chair will recognize you. If you wish to
address the Planning Commission on any other item not on the agenda, you may do so
by during the public comment portion of the meeting following the same procedure
described above. Please limit your comments to three (3) minutes or less. Please note
that Planning Commission policy is to allow an applicant and groups to speak for 10
minutes and individuals to speak for 3 minutes.
For questions on any items in the agenda, or for documents related to any of the items
on the agenda, contact the Planning Department at (408) 777 3308 or
planning@cupertino.org.
Page 4 CITY OF CUPERTINO
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
CITY OF CUPERTINO
PLANNING COMMISSION MEETING
DRAFT MINUTES
6:45 P.M. SEPTEMBER 22, 2015
TUESDAY
CITY COUNCIL CHAMBERS
The regular Planning Commission meeting of September 22, 2015, was called to order at 6:45 p.m. in the
Cupertino Council Chambers, 10350 Torre Avenue, Cupertino, CA. byChairperson Winnie Lee.
SALUTE TO THE FLAG
.
ROLL CALL
Commissioners Present: Chairperson:Winnie Lee
Vice Chairperson:Alan Takahashi
Commissioner: Geoff Paulsen
Commissioner: Margaret Gong(Arrived after roll call)
Commissioner:Don Sun
Staff Present: Asst. City Manager: Aarti Shrivastava
Senior Planner:Piu Ghosh
Asst. City Attorney: Colleen Winchester
APPROVAL OF MINUTES:
September 22, 2015 Agenda:
The agenda lists August 28 minutes, it should read “August 25, 2015”
Minutes of the August 25, 2015 Planning Commission meeting:
Page 3, second bullet from bottom of page: Com. Gong: Delete “most current eucalyptus is far
superior for camouflaging over the pine” and insert: “pine is superior to the eucalyptus and is a
personal preference”
Page 12, August 25, 2015 Planning Commission meeting:
Delete “Steve Chao” and insert “Gary Chao”
MOTION:Motion by Com. Sun, second by Com. Paulsen, and unanimously carried 5-0-0, to
approve the August 25, 2015 Planning Commission minutes as amendedand
approve the change to September 22 agenda.
WRITTEN COMMUNICATIONS: Materials related to Item 2.
POSTPONEMENTS/REMOVAL FROM CALENDAR: None
ORAL COMMUNICATIONS: None
Cupertino Planning Commission September 22, 20152
CONSENT CALENDAR: None
PUBLIC HEARING:
2.GPA-2015-01, Z-2015-01, Citywide Amendments to Community
EA-2013-03 Vision 2040 (General Plan). General Plan
City of Cupertino Amendments to make edits topolicy, text and
10950 No.Blaney Ave.figures and the re-zoning of one parcel.
Citywide Location TentativeCity Council Date: October 20,2015
Piu Ghosh, Senior Planner, presented the staff report:
On May 19 the Councilreviewed the final 2014-2020 Housing Element and General Plan for
potential changes to allocations for commercial office and hotel uses, building heights and building
planesand also went over the proposed policy for establishing procedures for processing General
Plan Amendment(GPA)applicationsat that time. Council directed stafftoprepare some comparison
tables to make sure that there is a mapping of the 2005 General Plan policies to what is in the 2040
community vision because there were concerns that there were edits to the language. The scope of
work that Council authorized was incorporation of text from the 2005 General Plan to ensure
consistency with the goals, policies, strategies in the community vision 2040 adopted in December;
however the scope of work did not include revisions to specific policies already contemplated and
adopted as part of the Community Vision 2040 such as policies relating to the housing element and
the Vallco shopping district including height, densities and land use designations except for the
Mirapath properties.
It alsodidnot includeany revisions inconsistent with the policies and strategies in the 2005 General
Plan or the additions of new policies and strategies that were not part of the 2005 General Plan. The
comparison tables were available June 9, 2015 and online comments were collected throughJuly 31,
2015 and after. Interested individuals and groups were contacted to arrange meetings for discussion.
Several meetings were held throughJuly, August and September2015.
After additional public input recommendations were made for language corrections and insertions
based on input received from the meetings and online comments and staff review. Recommendations
do not include additions of new policy and strategies or amendments to heights, densities or other
development regulations except forMaripath. The recommendations to the text part of the document
can be categorized into 5 categories, including the insertion of 2005 General Plan text policies and/or
strategies, reorganization of the document where one policy or strategy seemedto fit better under
another goal policy or strategy, corrections that were found that needed to bemade to make the
document eternally consistent as well or just general corrections, and clarifications for internal
consistencies. She continued to explain the changes andedits recommended for adoptions which were
detailed on the presentation. Withregard to the reinsertion of 2005 General Plan text includes
revision ofthe name of the document to Cupertino General Plan, community vision from 2015 to
2040. In the introduction chapter there are some edits to the guiding principles; their inclusion of
some text from the 2005 General Plan and the land use and community design chapter; the edits in a
few policies include hillside views, provision of outdoor areas, collaboration with the business
community and reinsertion of a few policiesand strategies surrounding multiple story buildings and
land use district, jobs housingbalance and library services as it relates to the Parks and Rec chapter.
In the mobility chapter the edits proposed to regional transportationalplanning, transport impact
analysisspecifically related to LOS standards, multi model improvements protectedintersections,
adjacent land use and others and the reinsertions there are some strategies that are being proposed to
be reinserted such as suburban road improvement standards and traffic calming. Under environmental
resources there edits to minor text edits to a goal there is reinsertion of one strategy surrounding
Cupertino Planning Commission September 22, 20153
community gardens under infrastructure there are editsto one policy; under recreation there areedits
to two policiesand a reinsertion of one policy related to libraries services. This was mentioned in the
staff report but did show up in the tables as an attachment to thestaff report. As far as reorganization
goes there were some strategies in infrastructure that were proposed to be relocated because they fit
better under different policies and under health and safety there is relocation of some narrative text
from a strategyinto the backgroundtext for that chapter. Under corrections in the land useand
communities design chapter, there is a correction to the Oaks gateway node; the General Plan text
inadvertently allowed the words “and office uses”being allowed; however, the land use map or the
EIRfor the GPAs that were considered in December did not include that so this is also an internal
consistency correction. As far as the South DeAnza area conceptual plan, there was an incorrect
reference to the Homestead Rd special area; under rule improvements standards and hillside areas
there was an incomplete sentence that was completed; community benefits program, since the
Council did not adopt a program were recommending a placeholder text that was there be removed;
and the associated policies with that be removed. As far as mobility goes under reduced travel
demand there is some corrected text that needed to be added; under the clarifications under land use a
community design there were some policiesand strategies that needed correctionspecifically street
interface; mobility and its two connecting special areas in community impacts. As you can tell there
are a number of minoredits for clarification in land use mobility, environmental resources, health and
safety and infrastructure.As far as internal consistency goes, because the community benefits
program is being recommended be struck, there is some language surrounding that in various policies
and strategies; in the Land Use chapter we recommend that those be removed and in AppendixA
there is a new land use category related to Mirapath andan existing land use category that exists on
the General Plan map be added. There is some figure edits as part of this recommendation under the
community form diagram there is boundary correction related to the Monta Vista special area; we
wanted to clarifythe densities specifically with regard to the Stelling gateway east; there was an
addition of a neighborhood’s box because it didn’t specifywhat the density was for neighborhoods or
neighborhood commercial centers within neighborhoods; this is all information taken from the 2005
General Plan; with regard to somemechanical equipmentand rooftop equipment there is a re-
insertion of language from the 2005 General Plan; on the circulation network there was a minor
update necessary to the legend; on wastewater service there was a policy on the 2005 General Plan
that talked about developments that may not connect to the Cupertino Sanitary District and it was
intended to be shown on this map, but was not shown so we clarified the boundaries, so that is being
recommended at this time. With regard to new figures, staff recommends that neighborhood and
special area figures beadopted for aesthetic purposes withinthe planning area chapters. As far as the
General Plan goes the only figures that is needed in the General Plan is the land use map and these are
identical to what the General Plan land usemap shows; with regard to Mirapathwe had a request
from the property owner when we first started the GPA process to revise the land use designation
from industrial/residential to industrial/commercial/residential; it would allow the site to be used for
commercial office and continued light manufacturing uses; it is adjacent to existing commercial land
use and therefore it is compatible; it was recommended by the Planning Commission on Oct. 2014; it
was considered in Dec.2014 by the City Council butthe decision was held; and on May 19, 2015 the
City Council directed staff to present the proposed changes at a future meeting and we thought this
was a good time topresent it again. With the Mirapath the recommendation is that on the General
Plan land use map there is an existing category that says industrial residential commercial; we are
recommending that be re-categorized to industrial commercial residential; however, in the General
Plan land use definitions chapter there is no land use category that reflects that land use designation
on the General Plan map and we are recommending that a new land use category be added within
Appendix A and it would allow industrial uses of the primaryuse commercial as secondary with
some supporting residential uses or in some compatible combination. Withregard to environmental
impact the EIR prepared in accordance with CEQA covered a majority of the changes being proposed
tonight and sincethe proposed changes meet the thresholdfor preparation of an addendum, and
Cupertino Planning Commission September 22, 20154
addendum is proposed to be adopted. The analysis indicated that the proposed changes either fall
within the scope of the EIR or will notcreate any new or substantially severe significant effects on
the environment. A supplemental memo was prepared by the consultant which addressed two maps
thatthe addendum did not cover; however staff’s recommendation did cover adoption of these two
maps so it is part of the resolution that you will be adopting. Inclusion of these maps do not alter the
meaning of the General Plan policy or zoning ordinances and are for reference only. The draft
addendum will be reviewed by the Environmental Review Committee tentatively on Oct. 1st prior to
the city Council’s final decision on the project, tentative Oct. 20th.
Staffrecommends that the Planning Commission adopt the resolutions recommending that the City
Council adopt a resolution to make the amendments listed and an ordinance to rezone property
located at 10950 No. Blaney from industrial/residential to industrial/commercial/residential.
Chair Lee opened the public hearing.
Cathy Thaler, Cupertino resident:
Provided backgroundon items; said lastyear at thistime she along with other community members
attended openmeetings about the Housing Element andGeneral Plan. They were told that the
General Plan was to be amended not rewritten; with corrections, clarifications and the addition of
some state required policies. In December Community Vision 2040 was adoptedby City Council;
they were told very little had changed, mostly grammatical changes and some state added things.
Attempting to compare thetwo General Plans was extremely difficult; the order ofpoliciesand
strategies changed, the chapters changed and the entire layout was different butmore importantly the
tone changed. It went from a community centered document to an impersonal one, almost like the
citizens were no longer a key component of the plan. Upon hearing their concerns and viewing their
attempts to map old to new policies, the City Council asked staff in May to prepare a redline and
work with the community on a comparison. The goal was to identify significant 2005 items that were
missing from the new General Plan. In the last three months, she, along with Peggy Griffin and
others have met with the Planning Department more than 6 extensiveworking sessions to identify the
missing elements and correct items missing from the old plan. She said the meetings were extremely
productive andshe thanked staff for their time and extensive work on theproject. They were at all
times professional and courteous and opento listeningand she felt they all learned fromeach other
and came out with an appreciation of both the department and the community viewpoints. The
General Planis really all about words; descriptive, measuring guidingand planning words; it sets the
tone and temperament of the cities and it is ultimately a community’s vision for the future. Said it was
important to her that the pieces of the old General Planthat embrace the whole community that
supported the community’s views were carried throughin the new one; because Cupertino is a
community of residents first. They have shoppers, workers and commuters in and through the city on
a daily basis, but they also live there and their voices should be heard. In working with the Planning
Dept.and spending many of their own hours reading and preparing the plans line by line, she said she
felt they have come up with additions and corrections to make this again a community based living
document. She urged the Commission to adopt theGPA.
Peggy Griffin, Randy Lane, Cupertino:
Said what happened in December 2014with the GPA was wrong in many ways. They received the
comparison tables listing corresponding policies and strategies between the two versions of the
General Plans in June and the changes betweenthose two documents were extensive. Several of them
met with the City staff to review every line in thecomparison tables; consisting of 8 meetings each
averaging 3 hours each; it was tedious work and they worked to reach an agreement on the issues
presented. She thanked Piu Ghosh for posting theinformation in advance of the three day requirement
so that people had more time to review the material. She said they hoped it would become a city
policy to help both the public, commissioners and the City Council members be better prepared.
Cupertino Planning Commission September 22, 20155
Attachment1 of the agenda packet entitled Draft GPA Resolution, the staff has provided an actual
redline, (although not red, but black)version of the portions of the new General Plan that are being
changed. It is much more transparent to see thered-lined version when reviewing changes. I would
like to thank the staff for providing this and hope that this will also become a City policy for better
transparency and clarity. One request we would like is to change on Table LU1 says “buildout totals
of office and residential allocutions within the Vallco Shopping District are contingent upon specific
plan being adopted for this area by May 31, 2018. If a specific plan is not adopted by that date, city
will .. and it reads “consider the removal of the office and residential allocations for Vallco.” We
would like it to say “will remove” because that is the residents’ understanding of what was said.
Jennifer Griffin, Rancho Rinconada resident:
Said the tremendous amount of work between the staff and residents is reaching a good conclusion of
a blended GPA; and she was pleased that people were able to work together. Said she was alarmed in
the last 6 months over what is happening to the heightin the city; there were many proposals for 8
stories all over the city; she fears that Cupertino will wind up becoming a very densely packed city of
8 stories everywhere and would like to see something done to bring those down. Why does every
building planhave to be 8 stories? There are heights known inparts of the city but yet proposals that
are going way over those heights. There were some very tall building projects coming in; said she did
not want that for the future of Cupertino.
Another project onHamilton next to San Tomas Aquino is a 6 story building; Del Taco was there and
there is nothing else in the area that is so tall. How do they handle heights? Why is it becoming so
capricious; Vallco looks like it is 8 stories; why do they have to go down that road?
Said she was confused about whythey don’t have a Specific Plan for Vallco; how is this Specific
Plan working in the GPA; that was supposed to be something that was worked on by the public but
there is no Specific Plan for Vallco at this time. How large is the Mirapath property? What are they
planning on doing with it and what is the height proposed forthat area?
Lisa Warren, Cupertino resident:
Referred to October/November when the majority of the Commission believed and voted that there
should be no allocation of office space at Vallco or housing. Said it was discouraging that the
Council did not listen to Commission recommendationsor to the residents at that time; and that those
2 millionsquare feet aren’t allocated. Many of themconsider that an opening of the floodgates; if it
was never allocated it is harder for any developer who owns the property now or in the future to be
turned down for getting the rezoning to do it. Said she felt it was a mistake and it is widely believed
by the residents and some City Council membersin discussions that have happened since that wasn’t
what they thought they were voting on. Said she felt the discussion opens up the ability to say they
are talking about the GPA and part of the GPA was to allocate not rezone what they didn’t want and
the majority of residents don’t want. Said it was appropriate for the Commission to recommend to
City Council that they take it up. She said she doesn’t know if it would do any good, but it would
echo what the residents want; it will echo the fact that they don’t want height to be increased. You
can’t build that massive amount of square footage or undefined square footage of housing units
because it is just numbers; you are not even given how many square feet that is; you cannot build that
without increasing the heights way beyond what any of the residents, perhaps 2% of the residents who
answered that survey want. Said it was illogical to her, and she thanked the Commission for their
recommendation and said she wished that former Commissioner Paul Brophy’s final words to the
Council had been listened to; unfortunately they weren’t, nor were the residents. She said she hoped
they could reinforce their beliefs about what they wanted back then because she felt they had not
changed, but hoped they got stronger. The whole allocationvs. rezoning which keeps getting set; they
are not entitled; it is notrezoned but the allocation is nerve wracking because people don’t
understand; there is continuing discussion; what does it really mean? It needs tobe clear; take it out.
She echoed the thanks to staff for working with some of the residents and getting some of those
Cupertino Planning Commission September 22, 20156
things put back in. Said she felt it was to soften the blow of other things, but she felt it needs tobe
dropped.
Cupertino Planning Commission September 22, 20157
Doris Yeh, Cupertino resident; (owner of Mirapath):
Said she was the property owner and owner of Mirapath. She explained the history of the property,
beginning in 2008. The building is a two-story buildingwhich she purchased in 2008, at which time
they planned to occupy it and lease part of it out. There were about 20 applicants for the property,
including architects, loan agency and financial loan officers. They were not able to rent out to any
other company and got a special exception from the city to lease out part of the building to a loan
company. When the rezoning came up, they were approached to see if they would be interested in
being a part of the rezoning process because their property was a small property next to a huge PG&E
office and the Oakmont Center. They were interested because they wanted to be able to rent the
building out to more people,She said at this time they plan to stay in the building but want to be able
to rent it out to more tenants. She emphasized that they were not a developer.
Liang Chao, Cupertino resident:
Thanked the Commission for their recommendation for zero office space for Vallco and zero housing
and not putting Vallco on the Housing Element; it shows respect for the residents. Said it beganin
August 2012 with the developers’ request and thenthe Council spent one yearreaching out to the
developers in order to finalize the region. The studysessions and workshopsfocused on study areas,
the residents were not asked what to do about Cupertino for the next 25 years; they were never
considered. The process only brings them back to the same level as the General Plan approved in
2005to 2020. Said she hoped that they would do the right thing and not stop there. This shouldn’t be
developers’rating; it should be the community’s vision. She urged the Commission to fix it; make it
the real 2040 plan that takes the residents into account. On the resolution there is a land use map; the
land use for Vallco is not contingent upon approval; it should be contingent upon approval otherwise
it is going to be used as an excuse to rezone Vallco to showthat it is consistent with theGeneral Plan.
Asked the Council to consider policies to make stronger requirementsfor air quality, traffic, noise
around schools. Also there should be strong policies for mixed use property because mixed use is a
novel concept in Cupertino, other cities have alot of regulations on setback, height and density for
mixed use.
Xiaowen Wang, Cupertinoresident:
Said she echoed many things already discussed; they need to learn from the process because they
passed the Community Vision 2040 nine months ago, but came to this year realizing it is not an
amendmentbut a new plan with a table to show the many changes. She thanked the Planning Dept.
and staff for their efforts and spendingso many hours to come up with what should be put back or
changed. What can they learn from the process? Said it was frustrating that they spent two yearsand
passed a General Plan only to find out everything they passed was wrong and had to rewrite it after 9
months. Hopefully next time they will be clearer that this is a new General Plan, not an amendment,
and have a citizens’ group involved from the start to study policies. She suggested they spend one-
half hour on each policy.
Responded to Com. Sun’s request for examples of important items that would substantially change
the General Plan. Said oneof the main insertions is the jobs housing balance; an important policy
which is advocated by the Housing Element by the state. Last week at the Council meeting ABAG
representative came to comment on the community benefit or whateverthe GPA process; one thing
she said is they need to focus on housing to provide enough housing to balance whatever the jobs
here, also another trigger of the turmoil is that Lisa Warren discovered Apple sent a letter where they
commented on the General Plan saying that it’snot good, they don’t have the view preservation
policy removed; that then triggeredtrying to dig out where this view preservation policy was and to
discover it is a complete rewrite, that’s the trigger. Another policy is the financial one; said she did
not understand that currently itsays it should be removed to be consistent with thelaw; not certain
what law would prevent that; but in that policy it has a passage before saying thatif we built the
office we need to consider the tax revenue and we should be encouraged for the tenant to have the
Cupertino Planning Commission September 22, 20158
retail office here so that we can chargethe retail tax on top of it. It said it has to be removed because
it is to be consistent with the law but not sure if it can be reworded in some way to be consistent with
the law but still preserve that kind of spirit. Said they are examples of what should be discussed.
Govind Tatachari, Cupertino resident:
Concurred with previous speaker; and said he felt the entire GPA process was like putting the cart
before the horse. Cupertino is a stable community and many of the residents have been there for a
very long time; they should be respectful of the people who have been in Cupertino for a longer time
and consider their input when trying to design something which is going to affect most of the people
for the next 25 years. Said nobody is against development but the process is most critical; it
happened becauseheinsisted they have a red-lined copy to go through a process of reviewing the
GPA and only because one of the Council members agreed with his request. He said he felt that it
should not be the methodology of going about why this particular GPA needs to becarefully
examined. At this stage there is the issue of two terminologies being used; one is the land use maps
and the other is called the zoning map. Until there is legal clarificationconsider the resolution
without the land use map because it will be misleading; and they would like to get a second opinion.
Yan Yu, Cupertino resident:
Said she was not clearwhether the residents of Cupertino have a sayor a chance to vote on theplan,
or does the Commissionact as a bridge between the residents and the board, e.g., the City Council
who has the power to say yes or no to theplan. Said she did not feel her voice was heard. Said she
was also concerned whether the City Council actson behalf of the residents or property owner; some
property owners spoke in the hearing process and also some residents speak; sometimes they don’t
always agree, but who takes priority? Said she felt the city should serve the majority of the residents,
not the property owner. As a resident she was also concerned about over crowded construction which
might also might affectlocal traffic, noise, and pollution.
Ansh Chewrasia, representing BSA Troop 493:
Asked what factors was the Commission considering to make the decision about the house on 10950
No. Blaney Ave; and in what timeframe would they make the decision and how will it affect the
community? He also asked how the youth of the community could help out?
Chair Lee closed the public hearing.
Colleen Winchester, Asst. City Attorney:
Explained that the General Plan and land use map must be consistent; the zoning which is a separate
legislative act implements the General Plan; the zoning map is a more detailed when you dig down
into the details of a General Plan, you might see the zoning of a particular piece of property.
Cupertino is smaller and so the General Plan is more detailed, but in larger cities the General Plan is
much more general; they are two separate things.
With respect to a Specific Plan, a Specific Plan must be consistent with the General Plan; the Specific
Plan in order for it to be adopted has to go through the same procedures as a GPA; in order to adopt a
Specific Plan, it needs to follow the General Plan rules. A Specific Plan implements the General Plan
much like zoning implements the General Plan. The Specific Plan does not require a GPA; it is
implementing a General Plan. A land use map is a required element of the General Plan and it has to
be consistent with the General Plan. She said they call it land use map; in other communities it is
called General Plan Land Use Map; and the change could be made; so that when someone is reading
it, they know what it is.
Chair Lee:
Cupertino Planning Commission September 22, 20159
Said she agreed with Com. Paulsen; the industrialarea by Imperialwill be difficult to upkeep because
the property values are going through the roof and for a car/auto mechanic shop it would seem like a
good idea to preserve some pockets in the area. City Council isnot supportive of seeing it as a
commercial area; perhaps it would be advantageous to keep that area as industrial; it is not conducive
to commercial and residents are sketchy on more housing.
Com. Sun:
Said he was not opposed to rezoning the property and Chair Lee brought up Imperial. Said he felt
that the land use for that particular parcel is going to be decided by the market, not by the private
preference. Said he approved the rezoning.
Chair Lee:
Said she respected his opinion, but it is not up to the Planning Commission; it is discretionary.
Com. Gong:
Said for Maripath she supported changing the zoning because it is a very small parcel; it is
commercial on the other side. If PG&E shared their vision, they could be asked to consider making it
completely industrial. Even if it is completely industrial Maripath is not going to impact that large
piece of land that is currently quasi-public.
Vice Chair Takahashi:
Said there has been a lot of heightened interest especially later in the process of the GPA; at first the
major concern was over housing and its impact on schools; but then there is the RHNA requirement
specifically setting allocations and the city complying with that and the ramifications associated with
not complying. From that the Planning Commission and City Council came to an agreement with
regard to sites and number of units that were deemed compliant and there is a housing plan; so that
part is done.
Other concerns have been over impact, there is a lot of concern over how Vallco is redeveloped; he
said he had and still supportsthat Vallco needs to be mixed use to be effective. However, the impact
of the Apple campus has not been felt because it is under constructionand is not occupied. Table
LU1 which is one of the few data tables in the General Plan showing the allocations, shows moving to
a total buildout of 11,470,000 sq. ft. of office vs. the 8,900 as of December 10; the 8,900 includes the
3 million of Apple. If that is taken out it is at 5.9 million sq. ft. of office and they are proposing
going to the 11.4 which means they are only 51% built out of office as they go to the full build out.
Said he was bringing it up because he tried to look at whatthe general accepted ratio of square foot of
office per employee is and itis somewhere between 150 and 170 square feet which means thenext 5
million square feet of office is going to add up to about 31,000 employees which is a lot; and the
discussion about balancing housing with office clearlyis out of balance. Looking at the table more
and the hotel, the hotel is significantlyunder served and his recommendation would be to take a lot of
that office and turn it into a lot more hotel space to generate higher revenues for the city from the
standpoint of occupancy taxes as well as relieve some of the large amount of office currently in the
plan. Said he wanted to voice his opinion because he felt it is one where they are headed for a lot of
office space in the future. They talked about the process and it’s good in terms of how it worked out;
ideally in the future when these things come up they will be more proactive in terms of initiating in
that regard.
Com. Gong:
Said she felt it was a long and wieldy document and process; one of many. Ultimately the process
was collaborative and worked in the interest of the community vision; they aren’tjustresidents in
Cupertino; there are many elements in Cupertino, and the voiceswere balanced and it was reflective.
Said she sharedVice Chair Takahashi’s concern about the very heavily weighted amount of office
Cupertino Planning Commission September 22, 201510
space; and was not as concerned about hotel; it goes hand in hand with the increase in office space.
Said they have to look at it holistically rather than one element at a time; after this process it is a well-
balancedholistic plan.
Vice Chair Takahashi:
Said the ratio of hotels for 1,000 square feet of office in the plan is about .12 rooms per 1,000 sq. ft.
of office; generally inurban areas it is more like 70;essentially they are fostering hotel visits to all
neighboring cities because they don’t have hotel space here. It seems like a huge opportunity and
wouldbe a better long term plan. He said there are numbers that establish that theyare underserved.
Com. Paulsen:
Said he agreed but it was not in the scope of this evening’s meeting.
Com. Sun:
Said he supports making a recommendationfor approval as staff recommended.
MOTION: Motion by Com. Gong, second by Com. Paulsen, and unanimously carried 5-0-0to
approve Applications GPA-2015-01, Z-2015-01 and EA-2013-03by the City of
Cupertino as applicants; (a) Adopt resolutions recommending that City Council
adopt amendments to Community Vision 2040of the General Plan as shown in the
draft resolution; changes and corrections to the General Plan including appendices,
goals, policies and strategies; (b) Changes and corrections to the General Plan figures
in Chapter 2, Planning Areas,Chapter 3, Land Use and Community Design;
Chapter 5 Mobility and Chapter 8 Infrastructure and Inclusion of Neighborhood
and Special Area Maps Area maps in Chapter 2, Planning Areas and the Noise
Contours map in Appendix D; Community Noise Control Fundamentals and (c)
Change to the General Plan Land Use Map; To change the land use designation of
property located at 10950 No. Blaney Avenue from industrial/residential to
industrial/commercial/residential; an Ordinance to rezone property located at 10950
No. BlaneyAvenue from industrial/residential to industrial/commercial/residential
per the draft resolution Attachment 2.
Amended motion:
Friendly amendment accepted by Com. Gong, second by Com. Paulsen to include Item 1a and 1b; and
discuss 1c and 2 separately. Vote: 5-0-0
Colleen Winchester:
Clarified that the motion is now the recommended action to the Community Vision 2040 General
Plan as shown in the draft resolution, Item (a) and (b). Vote: 5-0-0
She said there could be a new motion with respect to Item 1(c) and Item No. 2, or take them
separately.
MOTION: Motion by Com. Sun, second by Com. Paulsen to adopt for recommendation to City
Council 1c; changethe General Plan land use mapto change to the land use
designation, property located at 10950 No. Blaney Ave. from industrial/residential to
industrial/commercial/residential and audience to resume property located at 10950
No. Blaney Ave. from industrial/residential to industrial /commercial/residential for
the draft resolution.
AartiShrivastava:
Cupertino Planning Commission September 22, 201511
Said since it is taken separately, the land use map will be corrected to say General Plan Land Use
Map, and make the same correction to the resolution itself; call it the General Plan Land Use Map in
the resolution.
Vote: 4-1-0; Chair Lee voted No.
ChairLee:
Said she voted No, as previously stated because she wanted to keep that area as open for industrial in
the future; she felt that area would be a little removed from other industrialareas in the city and just
to have that in case the third area is not appropriate for commercial; should keep that open in the
future as industrial.
OLD BUSINESS: None
NEW BUSINESS: None
REPORT OF THE PLANNING COMMISSION
Environmental Review Committee: No meeting.
Housing Commission: No meeting.
Economic Development Committee Meeting:
Com. Paulsen reported on the August meeting; workingon an Economic Development Strategic Plan;
will include a climate impact report; reviewed matrix of projects: tracking Main St., 19800 Rose
Bowl Cupertino Village AT&T Wirelessfor mono eucalyptustree Verizon Wireless mono pine tree;
Promethius mixed use Biltmore and the Safeway Station Bombay Oven development.
Mayor’s Monthly Meeting With Commissioners:
Com. Gong reported: that emerging and young artists awardswere given; five young art utility box
winnerswere awarded; they are reviewing public art submitted for Main Street. Several gate
proposals for Main St. being received. Library Commission approved Jennifer Swenson Brownas
poet laureate. Poet seminar on Oct. 7th, 7:30 p.m.
Bike and Ped Comm.:
Established a mission statement. New green bike lanes have been well received especially by people
who have turned them into jogging lanes; there have been concerns raised by thecyclists about
congestionwith joggers. Bike rodeo Oct. 3rd morning only; bike lane consultant engaged soon to help
come up with new bike lanes for long term citywide projects.
TIC Comm.:
Planning a cyber security workshop in late Oct. date TBD; to highlight people, especially seniors to
protect themselves; also contemplating creating a map of the mobile carrier coverage and strength.
Public Safety:
Proposed that the Boltage program be transferred to Bike and Ped Comm. Will put RFID tags on
backpacks and bikes.
Proposing an Adult Safety Academy in conjunction with Fire, Police, and Sheriff
Parks and Rec.:
Cupertino Planning Commission September 22, 201512
Reported that Grand Opening of McClellan Ranch and Blacksmith shop will be on Oct. 28.
Lawrence Mitty Park space being negotiated; currently owned by Airport Authority
Parks and Rec going on a sister city visit to Italy.
Cupertino Planning Commission September 22, 201513
Misc:
Mayor discussed new twice yearly process for receiving proposals from developers, how that will
benefit developers and the city.
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: No written report.
ADJOURNMENT:
The meeting was adjourned to the October 13, 2015 Planning Commission meeting at 6:45 p.m.
Respectfully Submitted: ____________________________________
Elizabeth Ellis, Recording Secretary
PLANNING COMMISSION STAFF REPORT
Agenda Item No. Agenda Date: November 24, 2015
SUBJECT
Modification to a previously approved Use Permit (U-1981-02) to amend a condition of
approval, which required two lots (lots 4 and 11) to be restricted to single story structures
within a planned development, to allow a second story addition on lot 11; and Architectural
and Site Approval to allow the construction of a 530 square foot second-story addition to an
existing single-story single-family residence in a Planned Development Zone. (Application
No.(s): M-2015-01 & ASA-2015-20; Location: 22643 Woodridge Ct., APN: 342-15-072; Applicant:
Shen-I Chiou)
RECOMMENDATION:
Staff recommends that the Planning Commission approve the Modification (M-2015-01) and the
Architectural and Site Approval (ASA-2015-20) in accordance with the draft resolutions
(Attachment 1 and 2).
PROJECT DATA:
General Plan Designation Residential (1-5 DU/Acre)
Zoning Designation P (Res 4-8) Planned Single-Family Residential Development
with a density of 4-8 dwelling units per acre
Existing/Proposed Land Use Single-family residence/no change
Lot Size 6,800 square feet (0.16 acres)
Allowed/Required Existing Proposed
F.A.R. (max. 45%)
n/a/ not specified but
compatible with homes
within development
40.8% (2,771 SF) 48.5% (3,301 SF)
Lot Coverage (max. 45%+5%
for eaves and covered patios)
n/a/ not specified but
compatible with single
family uses city-wide
46.9% (3,191 SF) No change
DEPARTMENT OF COMMUNITY DEVELOPMENT
PLANNING DIVISION
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
(408) 777-3308 • FAX (408) 777-3333
M-2015-01; ASA-2015-20 22643 Woodridge Court November 24, 2015
BACKGROUND:
The subject property is located on Woodridge Court (one block north of Voss Avenue) at the
terminus of McKlintock Lane between Lockwood Drive and Foothill Boulevard. The property is
surrounded by existing single family land uses on all sides and Monta Vista Park south -east of
the property. Further west, duplex uses are located along Medina Lane and El Prado Way.
Allowed/Required Existing Proposed
1st Floor Setbacks
Front 20’ * 20’ No change
Rear 20’ * 20’ No change
Interior Side 5’ * 6’-8” and 9’ No change
2nd Floor Setbacks
Front 25’ n/a 25’-10”
Rear 25’ * n/a 47’-9”
Interior Side 15’ n/a 15’-4” and 32’
Total Building Height
n/a/ not specified but
compatible with
single-family homes
city-wide
20’-7” 23’-5”
Parking
4 total (2 enclosed &
2 open, 20’ by 20’
spaces)
4 total (2 enclosed
& 2 open, 20’ by 20’
spaces)
No Change
Project Consistency with:
General Plan Yes
Environmental Review Categorically Exempt per Section 15301, Class 1 of the
California Environmental Quality Act (CEQA)
* Development regulations specified in Resolution No. 2183
SITE VICINITY AERIAL
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WOODRIDGE COURT
VOSS AVENUE
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M-2015-01; ASA-2015-20 22643 Woodridge Court November 24, 2015
The property was zoned P (Res 4-8) in 1979 (Z-1979-25) to promote development compatibility
with the adjacent single family residential (R1) and duplex (R2) zones. In 1981, City Council
approved an application for a tentative map (TM-1981-01) and use permit (U-1981-02) to allow
the construction of 37 single-family homes on the 7.7 acres. The development regulations for
first floor setbacks were established in the use permit and second floor setbacks utilized
applicable R1 regulations. Additionally, a set of various design decisions such as rear roof line
treatments were intended to minimize rear yard intrusion into the abutting Carolyn Gardens
Development to the north. In addition, a condition of approval was added limiting homes on
two lots (lots 4 and 11) to single story.
In 1992, the property owners of lot 4 requested a modification to Condition 21 of Resolution No.
2183 to allow for the construction of a second story addition. The City Council approved the
application per Planning Commission Resolution No. 4436. However, the applicant did not
move forward with a building permit application and the planning entitlement expired in 1994.
At this time, the property owners of lot 11 are requesting to modify Condition 21 of Resolution
No. 2183 to allow construction of a second-story addition to their existing single-story
residence.
DISCUSSION:
Modification of Use Permit
Single-family uses within a Planned Development Zoning District are not regulated by the
Single Family (R1) Residential ordinance unless this requirement is stipulated in the zoning
ordinance establishing the development regulations for the development or within the
assumptions of the environmental review for the development. In this development, the FAR
limitations are not stipulated in the zoning ordinance or assumed in the original environmental
review; therefore, neither the 45% floor area ratio (FAR) limitation specified in the R1 ordinance
nor a different FAR limitation applies. However, the intent of establishing this development
was to be compatible with the existing single family and duplex uses surrounding the
development. Consequently, rather than designing the homes in the development to an
established FAR, the homes were designed with three model layouts of different sizes ranging
from approximately 2,750 square feet to 3,300 square feet. The lots on Woodridge Court range
from approximately 6,200 square feet to 6,900 square feet; and the FAR for these homes range
from 40% to 52% with an average FAR of 47.4% (Attachment 3). The 1992 Use Permit
modification limited the FAR of lot 4 to 47% and established setback requirements in
accordance to the R1 ordinance.
The existing structure is located on a larger lot than the rest of the properties along Woodridge
Court and has an FAR of 40.5%. The proposed 530 square foot second-story addition will
increase the FAR to 48.5%. As proposed, the structure will exceed the R1 FAR standards, but
will be less than the square footage of the largest home and the highest FAR (52%) on
Woodridge Court. Furthermore, the proposed addition will comply with height, setback,
parking, and privacy planting requirements of the R1 Ordinance.
M-2015-01; ASA-2015-20 22643 Woodridge Court November 24, 2015
The applicant is providing privacy protection by planting materials consistent with the
approved privacy screening materials list for R1 zones to mitigate any potential privacy impacts
from the addition. Privacy planting materials are proposed for the three west-facing windows
and the one north-facing window. The species will be evaluated prior to building permit
issuance.
Architectural and Site Approval
The total height of the existing home is 20’-7” with sufficient head room in the attic and the
design lends itself to a second story addition with minor exterior alterations. The proposed
second-story addition will result in a height increase of 2’-10”, for a total height of 23’-5”. The
new addition will maintain the profile of the existing roof with minor modifications due to the
addition. Decorative wood shingle will be added to the front and rear facing gables to mimic
the existing Jerkinhead styled roof on the first floor above the garage. All exterior walls will be
replaced with high-quality Hardie Plank siding consistent with the original wood siding style
and compatible to the homes in the neighborhood. The wood trim around the existing windows
will be maintained or replaced and matching wood trim will be installed around second-story
windows.
ENVIRONMENTAL ASSESSMENT:
The development permit is categorically exempt from the California Environmental Quality Act
(CEQA) per section 15301 (Existing Facilities) of the CEQA Guidelines because the proposed
addition will not result in an increase of more than 50% of the floor area of the structures before
the addition.
PUBLIC NOTICING & OUTREACH:
The following table is a brief summary of the noticing done for this project:
Notice of Public Hearing, Site Notice & Legal Ad Agenda
Site Signage (20 days prior to the hearing)
Legal ad placed in newspaper
(at least 10 days prior to the hearing)
Notices mailed to property owners within a 300
ft. radius of the project site (36 notices)
(20 days prior to the hearing)
Posted on the City's official notice
bulletin board (one week prior to the
hearing)
Posted on the City of Cupertino’s
Web site (one week prior to the hearing)
No comments were received at the time of staff report production.
PERMIT STREAMLINING ACT:
This project is subject to the Permit Streamlining Act (Government Code Section 65920 – 65964).
The City has complied with the deadlines found in the Permit Streamlining Act.
Project Received: August 19, 2015; Deemed Incomplete: September 15, 2015
Project Resubmittal: September 23, 2015; Deemed Incomplete: October 13, 2015
Project Resubmittal: October 29, 2015; Deemed Complete: October 30, 2015
M-2015-01; ASA-2015-20 22643 Woodridge Court November 24, 2015
Since this project is Categorically Exempt, the City has 60 days (until December 29, 2015) to
make a decision on the project. The Planning Commission’s decision on this project is final
unless appealed within 14 calendar days of the decision.
Prepared by: Ellen Yau, Assistant Planner
Reviewed by: Approved by:
/s/Piu Ghosh _____ /s/Aarti Shrivastava ______
Piu Ghosh Aarti Shrivastava
Principal Planner Assistant City Manager
ATTACHMENTS:
1 – Draft Resolution for M-2015-01
2 – Draft Resolution for ASA-2015-20
3 – Woodridge Court Lots Diagram from U-1981-02 (Modified)
4 – Plan Set
M-2015-01
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
DRAFT RESOLUTION
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
APPROVING AMODIFICATION TO A PREVIOUSLY APPROVED USE PERMIT (U-1981-02)
TO AMEND A CONDITION OF APPROVAL,WHICH REQUIRED TWO LOTS (LOTS 4 AND
11) TO BE RESTRICTED TO SINGLE STORY STRUCTURES WITHIN A PLANNED
DEVELOPMENT,TO ALLOW A TWO-STORY ADDITION ON LOT 11 LOCATED AT22643
WOODRIDGE COURT
SECTION I: PROJECT DESCRIPTION
Application No.:M-2015-01
Applicant:Shen-I Chiou
Location:22643 Woodridge Court
SECTION II: FINDINGS FOR MODIFICATION
WHEREAS, the Planning Commission of the City of Cupertino received an application for a
Modification of a Use Permit, as described in Section I of this Resolution; and
WHEREAS, the necessary public notices have been given in accordance with the Procedural
Ordinance of the City of Cupertino, and the Planning Commission has held one or more public
hearings on this matter; and
WHEREAS, the project is categorically exempt from the California Environmental Quality Act
(CEQA); and
WHEREAS, the applicant has met the burden of proof required to support said application; and
has satisfied the following requirements:
1)The proposed use, at the proposed location, will not be detrimental or injurious to property
or improvements in the vicinity, and will not be detrimental to the public health, safety,
general welfare, or convenience;
The modification of the previously approved to allow for theproposedproject will not result in a
condition that is detrimental or injurious to property improvements in the vicinity, and will not be
detrimental to the public health, safety, general welfare, and convenience as the project is compatiable
with the surroundingresidential uses of the neighborhood. The proposed project is harmonious in
scale and design with the adjacent homes and the general neighborhood.
2)The proposed use will be located and conducted in a manner in accord with the Cupertino
Comprehensive General Plan and Cupertino Zoning Ordinance and the purpose of this title.
Draft Resolution M-2015-01 November 24, 2015
Page -2 -
The proposed use complies with the Cupertino Comprehensive General Planand Municipal Code
requirements.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted
in this matter, subject to the conditions which are enumerated in this Resolution beginning on
PAGE 2thereof,:
The application for a Modification of a Use Permit, Application no. M-2015-01is hereby
approved,andthat the subconclusions upon which the findings and conditions specified in this
Resolution are based and contained in the Public Hearing record concerning Application no.M-
2015-01 as set forth in the Minutes of Planning Commission Meeting of November 24, 2015, and
are incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT
DEPT.
1.APPROVED EXHIBITS
Approval recommendation is based on the plan set received October 29, 2015 consisting of
eight (8) sheets labeledA0,A0.1, A0.2, A1.0, A2.0,A2.1, A3.1, and A3.2 drawn by Shen-I
Chiou; except as may be amended by conditions in this resolution.
2.ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible to verify all pertinent property data including
but not limited to property boundary locations, building setbacks, property size, building
square footage, any relevant easements and/or construction records. Any misrepresentation
of any property data may invalidate this approval and may require additional review.
3.PREVIOUS CONDITIONS OF APPROVAL
All previous conditions of approval from Resolution No. 2183shall remain in effect unless
superseded by or in conflictwith subsequent conditions of approval, including the conditions
contained herein in this resolution.
4.CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file no. ASA-2015-20shall be applicable to this
approval.
5.ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the first
page of the building plans.
6.USE LIMITATION
This approval modifies Condition 21 of Resolution No. 2183 to read: “The buildings located
on Lots 2, 7, 10 and 14 will provide a rear roof line treatment to minimize privacy intrusion
Draft Resolution M-2015-01 November 24, 2015
Page -3 -
into the adjoining rear yards located to the north. The building on Lot 4 shall be one-story in
height.”
7.FLOOR AREA
The floor areaof all structures on the propertylocated at 22643 Woodridge Courtshall not
exceed 3,306 square feet.
8.EXPIRATION
This permit shall be deemed expired and a new use permit application must be applied for
and obtained, if within two years, property owners have not vested the project in building
permits.
9.CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies with regard
to the proposed project for additional conditions and requirements. Any misrepresentation
of any submitted data may invalidate an approval by the Community Development
Department.
10.INDEMNIFICATION
Except as otherwise prohibited by law, the applicant shall indemnify and hold harmless the
City, its City Council, and its officers, employees and agents (collectively, the “indemnified
parties”) from and against any claim, action, or proceeding brought by a third party against
one or more of the indemnified parties or one or more of the indemnified parties and the
applicant to attack, set aside, or void this Resolution or any permit or approval authorized
hereby for the project, including (without limitation) reimbursing the City its actual
attorneys’ fees and costs incurred in defense of the litigation. The applicant shall pay such
attorneys’ fees and costs within 30 days following receipt of invoices from City. Such
attorneys’ fees and costs shall include amounts paid to counsel not otherwise employed as
City staff and shall include City Attorney time and overhead costs and other City staff
overhead costs and any costs directly related to the litigation reasonably incurred by City.
11.NOTICE OF FEES, DEDICATIONS, RESERVATIONS, OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees, dedication
requirements, reservation requirements, and other exactions. Pursuant to Government
Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the
amount of such fees, and a description of the dedications, reservations, and other exactions.
You are hereby further notified that the 90-day approval period in which you may protest
these fees, dedications, reservations, and other exactions, pursuant to Government Code
Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying
with all of the requirements of Section 66020, you will be legally barred from later
challenging such exactions.
Draft Resolution M-2015-01 November 24, 2015
Page -4 -
PASSED AND ADOPTED this 24thday ofNovember2015,at theRegular Meeting of the
Planning Commission of the Cityof Cupertino, State of California, by the following roll call
vote:
AYES:COMMISSIONERS:
NOES:COMMISSIONERS:
ABSTAIN:COMMISSIONERS:
ABSENT:COMMISSIONERS:
ATTEST:APPROVED:
_____________________
Piu Ghosh Winnie Lee, Chair
PrincipalPlanner Planning Commission
ASA-2015-20
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
DRAFT RESOLUTION
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
APPROVING ANARCHITECTURAL AND SITE APPROVALPERMITTO ALLOW FOR A 530
SQUARE FOOT SECOND STORY ADDITION TO AN EXISTING SINGLE-FAMILY
RESIDNECE IN A PLANNED DEVELOPMENT ZONE AT22643 WOODRIDGE COURT
SECTION I: PROJECT DESCRIPTION
Application No.:ASA-2015-20
Applicant:Shen-I Chiou
Location:22643 Woodridge Court
SECTION II: FINDINGSFOR ARCHITECTURAL AND SITE APPROVAL:
WHEREAS, the Planning Commission of the City of Cupertino received an application for an
Architectural and Site Approval as described in Section I. of this Resolution; and
WHEREAS, the necessary public notices have been given as required by the Procedural
Ordinance of the City of Cupertino, and the Planning Commission has held at least one public
hearing in regard to the application; and
WHEREAS, the applicant has met the burden of proof required to support said application; and
WHEREAS, the proposed project is categorically exempt from the California Environmental
Quality Act (CEQA);
WHEREAS, the Planning Commission finds as follows with regard to this application:
1.The proposal, at the proposed location, will not be detrimental or injurious to property or
improvements in the vicinity, and will not be detrimental to the public health, safety,
general welfare, or convenience;
The applicant is proposing a new second story addition on property that has an existingsingle-family
home and is proposing setbacks, parking totals, and building height consistent with the surrounding
properties and uses. The project is not detrimental to the public health, safety,general welfare or
convenience and is harmonious in scale and design with the adjacent homes and the general
neighborhood.
2.The proposal is consistent with the purposes of Chapter 19.134, Architectural and Site
Review, of the Cupertino Municipal Code, the General Plan, and applicablespecific plans,
zoning ordinances, conditional use permits, exceptions, subdivision maps,or other
Draft Resolution ASA-2015-20 November 24, 2015
Page -2 -
entitlements to use which regulate the subject property including, but not limited to,
adherence to the following specific criteria:
a)Abrupt changes in building scale should be avoided.A gradual transition related to
height and bulk should be achieved between new and existing buildings;
The General Plan limits heights of structures in the Inspiration Heights neighborhood to 30 feet.
In addition, development regulations for single family(R1)residence zones limit the total height
of structures to 28 feet. The intent of the original planned development was to be compatible with
the existing single family homes to the north of the development. The proposal will add a new
second floor to anexisting single story residence whichwill increase the total height of the
structure by threefeet resulting in atotal height of 23 feet.Therefore,there will not be an abrupt
changein building scale with the neighboring properties.
b)In order to preserve design harmony between new and existing buildings and in order to
preserve and enhance property values, the materials, textures and colors of new
buildings should harmonize with adjacent development by being consistent or
compatible with design and color schemes, and, with the future character of the
neighborhood and purposes of the zone in which they are situated. The location, height
and materials of walls, fencing, hedges and screen planting should harmonize with
adjacent development. Unsightly storage areas, utility installations and unsightly
elements of parking lots should be concealed. The planting of ground cover or various
types of pavements should be used to prevent dust and erosion, and the unnecessary
destruction of existing healthy trees should be avoided. Lighting for development should
be adequate to meet safety requirements as specified by the engineering and building
departments, and provide shielding to prevent spill-over light to adjoining property
owners;
The wood siding appearance will be maintained and improvedthrough an upgrade of materials by
replacingthe existing wood siding with a Hardie-Plank siding throughout the existing structure
and new addition. The color scheme that consists of medium gray siding with white trim and a
medium-dark gray for the wood shingles at both ends of the new gable roof relate to the style
throughout the neighborhood. The project is a second story addition and therefore, doesnot
propose to locate unsightly storage, utility units, and or parking lots visible to the public right-of-
way. The proposed lighting is limited to residential use and will minimize spill-over light
uncommon in residential neighborhoods.
c)The number, location, color, size, height, lighting and landscaping of outdoor advertising
signs and structures shall minimize traffic hazards and shall positively affect the general
appearance of the neighborhood and harmonize with adjacent development; and
The proposed project is a second story addition and does not involve any signage.
d)With respect to new projects within existing residential neighborhoods, new
development should be designed to protect residents from noise, traffic, light and
visually intrusive effectsby use of buffering, setbacks, landscaping, walls and other
appropriate design measures.
Draft Resolution ASA-2015-20 November 24, 2015
Page -3 -
The project is located within an existing residential neighborhood and the proposed home has been
designed to respect the privacy of the neighborsthrough the property owner’s willingness to
mitigate any privacy concerns by installing and maintainingprivacy plantings or obtaining
privacy waivers from adjacent properties.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of the initial study,maps, facts, exhibits, testimony and other
evidence submitted in this matter, subject to the conditions which are enumerated in this
Resolution beginning on PAGE 3thereof,:
The application for an Architectural and Site Approval, Application no. ASA-2015-20is hereby
approved,andthat the subconclusions upon which the findings and conditions specified in this
Resolution are based and contained in the Public Hearing record concerning Application no.
ASA-2015-20as set forth in the Minutes of Planning Commission Meeting of November 24, 2015,
and are incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT
DEPT.
1.APPROVED EXHIBITS
Approval recommendation is based on the plan set received October 29, 2015 consisting of
eight (8) sheets labeled A0, A0.1, A0.2, A1.0, A2.0, A2.1, A3.1, and A3.2 drawn by Shen-I
Chiou; except as may be amended by conditions in this resolution.
2.ACCURACY OF PROJECT PLANS
The applicant/property owner is responsibleto verify all pertinent property data including
but not limited to property boundary locations, building setbacks, property size, building
square footage, any relevant easements and/or construction records. Any misrepresentation
of any property data may invalidate this approval and may require additional review.
3.PREVIOUS CONDITIONS OF APPROVAL
All previous conditions of approval from Resolution No. 2183 shall remain in effect unless
superseded by or in conflict with subsequent conditions of approval, including the conditions
contained herein in this resolution.
4.CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file no. M-2015-01shall be applicable to this
approval.
5.ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the first
page of the building plans.
Draft Resolution ASA-2015-20 November 24, 2015
Page -4 -
6.PRIVACY PLANTING
The final privacy-planting plan shall be reviewed and approved by the Planning Division
prior to issuance of building permits. The variety, size,andplanting distance shall be
consistent with the City’s requirements.
7.PRIVACY PROTECTION COVENANT
The property owner shall record a covenant on this property to inform future property
owners of the privacy protection measures and tree protection requirements consistent with
the R-1 Ordinance, for all second floor balconies and windows with views into neighboring
yards and a sill height that is 5 feet or less from the second story finished floor.The precise
language will be subject to approval by the Director of Community Development.Proof of
recordation must be submitted to the Community Development Department prior to final
occupancy of the residence.
8.FINAL ARCHITECTURAL DETAILSAND EXTERIOR BUILDING MATERIALS
The final building design and exterior treatment plans shall be reviewed and approved by
the Director of Community Development prior to issuance of building permits. The final
building exterior plan shall closely resemble the details shown on the original approved
plans.Any exterior changes determined to be substantial by the Director of Community
Development shall require a minor modification approval with neighborhood input.
9.CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies with regard
to the proposed project for additional conditions and requirements. Any misrepresentation
of any submitted data may invalidate an approval by the Community Development
Department.
10.INDEMNIFICATION
Except asotherwise prohibited by law, the applicant shall indemnify and hold harmless the
City, its City Council, and its officers, employees and agents (collectively, the “indemnified
parties”) from and against any claim, action, or proceeding brought by a third party against
one or more of the indemnified parties or one or more of the indemnified parties and the
applicant to attack, set aside, or void this Resolution or any permit or approval authorized
hereby for the project, including (without limitation) reimbursing the City its actual
attorneys’ fees and costs incurred in defense of the litigation. The applicant shall pay such
attorneys’ fees and costs within 30 days following receipt of invoices from City. Such
attorneys’ fees and costs shall include amounts paid to counsel not otherwise employed as
City staff and shall include City Attorney time and overhead costs and other City staff
overhead costs and any costs directly related to the litigation reasonably incurred by City.
11.NOTICE OF FEES, DEDICATIONS, RESERVATIONS, OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees, dedication
requirements, reservation requirements, and other exactions. Pursuant to Government
Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the
Draft Resolution ASA-2015-20 November 24, 2015
Page -5 -
amount of such fees, and a description of the dedications, reservations, and other exactions.
You are hereby further notified that the 90-day approval period in which you may protest
these fees, dedications, reservations, and other exactions, pursuant to Government Code
Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying
with all of the requirements of Section 66020, you will be legally barred from later
challenging such exactions.
PASSED AND ADOPTEDthis 24thday ofNovember2015,at theRegular Meeting of the
Planning Commission of the City of Cupertino, State of California, by the following roll call
vote:
AYES:COMMISSIONERS:
NOES:COMMISSIONERS:
ABSTAIN:COMMISSIONERS:
ABSENT:COMMISSIONERS:
ATTEST:APPROVED:
_____________________
Piu Ghosh Winnie Lee, Chair
PrincipalPlanner Planning Commission
PLANNING COMMISSION STAFF REPORT
Agenda Item No.4 Agenda Date:November 24, 2015
SUBJECT:
Adoption of amendments to the Cupertino Municipal Code prohibiting marijuana
cultivation, dispensaries, and deliveries and commercial cannabis activities within the
City of Cupertino. (Application No.: MCA-2015-01; Applicant: City of Cupertino;
Location: City-wide)
RECOMMENDATION
Staff recommends that the Planning Commission recommend that the City Council
adopt an Ordinance of the City Council of the City of Cupertino amending Section
19.08.030 and adding Chapter 19.98 of Title 19 to the Cupertino Municipal Code
Regarding Medical Marijuana Dispensaries, Marijuana Cultivation Facilities,
Commercial Cannabis Activities, andMedical Marijuana Deliveries.
DISCUSSION
Background
On October 9 2015, Governor Brown signed three new laws relating to medical
marijuana, Assembly Bills 243 and 266 and Senate Bill 643.These bills create a broad
state regulatory and licensing system governing the cultivation, testing, and
distribution of medical marijuana, the manufacturing of marijuana products, and
physician recommendations for medical marijuana.Under the new legislation, state
licenses and local permits will be required for all facets of the medical marijuana
industry:
AB 243 establishes the Department of Food and Agriculture (DFA) as the licensing
and regulatory authority for medical marijuana cultivation.Any person who
wishes to engage in commercial cultivation of medical marijuana must obtain a
OFFICE OF COMMUNITY DEVELOPMENT
CITY HALL
10300 TORRE AVENUE •CUPERTINO, CA 95014-3255
(408) 777-3308 • FAX (408) 777-3333 • planning@cupertino.org
MCA-2015-01 November 24, 2015
Page 2
state license from the DFA.AB 243 also requires (1) the DFA to work with other
state agencies to develop environmental protection standards, (2) the Department
of Pesticide Regulation to establish medical marijuana pesticide standards, and (3)
the Department of Public Health to create standards for labeling of marijuana
edibles.
AB 266 creates the Bureau of Medical Marijuana Regulation within the Department
of Consumer Affairs (DCA) to develop regulations and issue state licenses for
medical marijuana dispensaries, distributors, and transporters. AB 266 designates
the Department of Public Health as the licensing and regulatory authority for
manufacturers of marijuana products and medical marijuana testing laboratories.
Like AB 243, AB 266 requires all state marijuana license applicants to comply with
local permitting requirements.
SB 643 establishes standards for physicians that recommend medical marijuana,
including discipline for physicians who recommend excessive amounts.SB 643
also creates standards for state license applications and enforcement.
Taken together, the new legislation creates the Medical Marijuana Safety and
Regulation Act, which commences at Business and Professions Code section 19300.The
new legislation preserves local control over marijuana facilities and land uses, including
the authority to prohibit dispensaries and other medical marijuana businesses
completely.
However,two provisions in the new legislation require consideration by cities:
1.If a city or county does not have a land use ordinance or regulation prohibiting
medical marijuana cultivation, either expressly or otherwise,under principles of
permissive zoning,chooses not to implement a regulatory scheme, then
commencing March 1, 2016, the state Departmentof Food and Agriculture will
become the sole licensing authority for cultivation applicants in that jurisdiction
(Health and Safety Code section 11362.777(c)(4), part of AB 243.)Under that
scenario, a city may not be able to regulate or control cultivation sites operating
with a state license.
2.Medical marijuana deliveries can only be made by a state-licensed dispensary in a
city, county, or city and county that does not explicitly prohibit it by local
ordinance(Business and Professions Code section 19340(a), part of AB 266.)
Therefore, in order for a city or county to prohibit medical marijuana delivery
services by a dispensary, it will need to enact an express ban.
Once AB 243, AB 266, and SB 643 are fully implemented, it is anticipated that the City
will receive more inquiries regarding medical marijuana businesses. TheCupertino
MCA-2015-01 November 24, 2015
Page 3
Municipal Code does not list medical marijuana dispensaries, cultivation sites, and
other marijuana establishments as either permitted or conditionally-permitted land
uses.Such activities, therefore, are prohibited under the principles of permissive zoning
(any use not enumerated is deemed prohibited).
DISCUSSION:
The proposed code amendments will codify the City’s existing land use policies and
ensure that the City does not lose the ability to regulate or prohibit cultivation sites and
delivery services in the future.
The proposed code amendmentswould expresslyprohibit the following:
1.Medical marijuana dispensariesand deliveries, except a “qualified patient”or a
“primary caregiver”transporting medical marijuana under limited circumstances
and in compliance with state law,and certain facilities such as hospices, residential
care facilitiesas those facilities can provide medical care or supportive services for
“qualified patients” under state law,
2.Marijuana cultivation facilities, except a qualified patient cultivating medical
marijuana for his or her personal use at his or her primary residence, and
3.“Commercial cannabis activities,” which is a term introduced by the new state
legislation and includes marijuana cultivation, manufacturing of marijuana edibles
and related products, distributors, transporters, marijuana testing facilities, and
dispensaries.
The proposed code amendments include all of the potential marijuana businessesthat
could possibly operate under the new state law in order to avoid a piecemeal regulatory
approach in which certain marijuana businesses are banned expressly while others are
prohibited under permissive zoning principles.Furthermore, express land use
prohibitions will benefit the public by providing clear guidelines regarding the scope of
prohibited conduct and minimize the potential for confusion regarding the City’s
policies.
The California Supreme Court has unanimously ruled, in City of Riverside v. Inland
Empire Patients Health and Wellness Center, Inc.(2013) 56 Cal.4th 729, that the
Compassionate Use Act (Proposition 215) (“CUA”) and the Medical Marijuana Program
Act of 2004 (“MMPA”) do not preempt local zoning regulations that completely and
permanently ban medical marijuana dispensaries, collectives,and cooperatives, nor do
they require cities to accommodate medical marijuana facilities in any way.
MCA-2015-01 November 24, 2015
Page 4
AB 243 expressly permits cities to enact a banon cultivation activities and in addition,
the Court of Appeal, in Maral v. City of Live Oak (2012) 221 Cal.App.4th 975, has upheld
a complete ban on cultivation activities.
Many California cities have experienced negative secondary effects from medical
marijuana businesses, including dispensaries, cultivation facilities, and delivery
services, as demonstratedby the attached 2009 white paper from the California Police
Chiefs Association(Attachment 2), the 2014 memorandumfrom the Santa Clara County
District Attorney (Attachments3), and various news stories from throughout the state.1.
These negative impacts have included unsafe construction and electrical wiring,
noxious fumes and odors, and increased crime in and around marijuana establishments.
Many communities have also had problems with medical marijuana being diverted to
minors for recreational use. The proposed code amendments are intended to address
these issues and protect the public health, safety, and welfare.The proposed code
amendments would not prevent the City from allowing medical marijuana businesses
in the future.
ENVIRONMENTAL ASSESSMENT
The proposed Ordinance is not a project within the meaning of section 15378 of the
California Environmental Quality Act (“CEQA”) Guidelines because it has no potential
for resulting in physical change in the environment, either directly or ultimately. In the
event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA
exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen
with certainty to have no possibility of a significant effect on the environment.
Noticing
The following noticing has been conducted:
Notice of Public Hearing, Site Notice &
Legal Ad
Agenda
Legal ad placed in newspaper
(at least 10 days prior to hearing)
Posted on the City's official notice
bulletin board(five days prior to
hearing)
Posted on the City of Cupertino’s
Web site (five days prior to hearing)
NEXT STEPS
The recommendations made by the Planning Commission will be forwardedto the City
Council for consideration.
MCA-2015-01 November 24, 2015
Page 5
Prepared by:Adam Petersen, Senior Planner
Reviewed by:Approved by:
/s/Piu Ghosh /s/Aarti Shrivastava
Piu Ghosh Aarti Shrivastava
PrincipalPlanner Assistant City Manager
ATTACHMENTS
1 -Draft Resolution of the Planning Commission recommending adoption of the Draft
Ordinance
2 -2009 California Police Chiefs Association White Paper Report
3 -2014 Santa Clara County District Attorney’s Office Memorandum
1 See, for example, UCLA Medical Marijuana Research (August 10, 2015), Places with More Marijuana
Dispensaries have more Marijuana-Related Hospitalizations; CBS News, Monterey (September 28, 2015) Police
Arrest Suspect in Armed Robbery of Medical Marijuana Delivery Driver.
DRAFT RESOLUTION
RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
CUPERTINO RECOMMENDING THAT THE CITY COUNCIL ADOPT AN
ORDINANCE AMENDING SECTION 19.08.030 AND ADDING CHAPTER 19.98 OF
TITLE 19 OF THE CUPERTINO MUNICIPAL CODE REGARDING MEDICAL
MARIJUANA DISPENSARIES, MARIJUANA CULTIVATION FACILITIES,
COMMERCIAL CANNABIS ACTIVITIES, AND MEDICAL MARIJUANA
DELIVERIES
WHEREAS, pursuant to Government Code sections 65854 and 65855, the Planning
Commission has the authority to review and make recommendations to the City
Council regarding amendments to the City’s zoning ordinances; and,
WHEREAS, the City provided all necessary legal notices for to hold a public hearing at
which the amendment to the City’s zoning ordinances would be considered; and
WHEREAS, on November 24, 2015, the Planning Commission held a noticed public
hearing at which interested persons had an opportunity to testify in support of, or in
opposition to, the proposed amendment to the City’s zoning ordinance and at which
time the Planning Commission considered the proposed amendment to the City’s
zoning ordinance; and
WHEREAS, the City has analyzed this proposed zoning amendment and determined
that it is not a project within the meaning of section 15378 of the California
EnvironmentalQuality Act (“CEQA”) Guidelines because it has no potential for
resulting in physical change in the environment, either directly or ultimately; and
WHEREAS, in the event that this proposed amendment is found to be a project under
CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section
15061(b)(3) because it can be seen with certainty to have no possibility of a significant
effect on the environment; and
WHEREAS, attached as Exhibit A is the proposed Ordinance.
NOW, THEREFORE, thePlanning Commission of the City of Cupertino does hereby
resolve:
SECTION 1:FINDINGS.The Planning Commission, in light of the whole record
before it and any other evidence (within the meaning of Public Resources Code Sections
21080(e) and 21082.2) within the record or provided at the public hearing of this matter,
hereby finds and determines as follows:
1.The proposed Ordinance conforms with the latest adopted general plan for
the City in that a prohibition against medical marijuana dispensaries, marijuana
cultivation facilities, commercial cannabis activities, and medical marijuana
delivery services does not conflict with any allowable uses in the land use
element and does not conflict with any policies or programs in any other element
of the general plan.
2.The proposed Ordinance will protect the public health, safety, and welfare
and promote the orderly development of the City in that prohibiting medical
marijuana dispensaries, marijuana cultivation facilities, commercial cannabis
activities, and medical marijuana delivery services will protect the City from the
adverse impacts and negative secondary effects connected with these activities.
3.The proposed Ordinance is consistent with Municipal Code Title 19, which
currently bans medical marijuana dispensaries, marijuana cultivation facilities,
commercial cannabis activities, and medical marijuana delivery services under
principles of permissive zoning.
4.CEQA:The proposed Ordinance is not a project within the meaning of
section 15378 of the California Environmental Quality Act (“CEQA”) Guidelines
because it has no potential for resulting in physical change in the environment,
either directly or ultimately.In the event that this Ordinance is found to be a
project under CEQA, it is subject to the CEQA exemption contained in CEQA
Guidelines section 15061(b)(3) because it can be seen with certainty to have no
possibility of a significant effect on the environment.
SECTION 2:APPROVAL.The Planning Commission approves this Resolution
recommending that the City Council adopt the proposed Ordinance which is attached
hereto and incorporated herein by reference as Exhibit A.
AYES:
NOES:
ABSTAIN:
ABSENT:
ADOPTED:
Attest:CITY OF CUPERTINO
Piu Ghosh Winnie Lee
PrincipalPlanner Planning Commission Chair
EXHIBIT A
ORDINANCE NO. 15-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AMENDING SECTION 19.08.030 AND ADDING CHAPTER 19.98 OF TITLE 19 OF
THE CUPERTINO MUNICIPAL CODE REGARDING MEDICAL MARIJUANA
DISPENSARIES, MARIJUANA CULTIVATION FACILITIES, COMMERCIAL
CANNABIS ACTIVITIES, AND MEDICAL MARIJUANA DELIVERIES
WHEREAS, in 1970, Congress enacted the Controlled Substances Act (CSA)
which, among other things, makes it illegal to import, manufacture, distribute, possess
or use marijuana in the United States.; and
WHEREAS, in 1972, California added Chapter 6 to the state Uniform Controlled
Substances Act, commencing at Health and Safety Code section 11350, which
established the state’s prohibition, penalties, and punishments for the possession,
cultivation, transportation, and distribution of marijuana; and
WHEREAS, in 1996, the voters of the State of California approved Proposition
215 (the "CUA;" California Health and Safety (H&S) Code Section 11362.5 et seq.); and
WHEREAS, California courts have held that the CUA created a limited exception
from criminal liability for seriously ill persons who are in need of medical marijuana for
specified medical purposes and who obtain and use medical marijuana under limited,
specified circumstances; and
WHEREAS, On January 1, 2004, the state Legislature enacted "Medical
Marijuana Program" (MMP), codified as California Health and Safety Code sections
11362.7 to 11362.83, to clarify the scope of the CUA, establish a voluntary program for
identification cards issued by counties for qualified patients and primary caregivers,
and provide criminal immunity to qualified patients and primary caregivers for certain
activities involving medical marijuana, including the collective or cooperative
cultivation of medical marijuana; and
WHEREAS, the California Supreme Court ruled unanimously in City of Riverside
v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, that the
CUA and the MMP do not preempt local ordinances that completely and permanently
ban medical marijuana dispensaries, collectives, and cooperatives; and
WHEREAS, in Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, the Third
District Court of Appeal held, based on Inland Empire, that there was no right to
cultivate medical marijuana and that a city could implement and enforce a complete
ban on this activity, including a ban on personal cultivation; and
WHEREAS, on October 9, 2015, Governor Brown signed Assembly Bills 243 and
266 and Senate Bill 643, which taken together create a broad state regulatory and
licensing system governing the cultivation, testing, and distribution of medical
marijuana, the manufacturing of marijuana products, and physician recommendations
for medicalmarijuana, and provide immunity to marijuana businesses operating with
both a state license and a local permit; and
WHEREAS, while the new legislation expressly preserves local control over
medical marijuana facilities and land uses, including the authority to prohibit all
medical marijuana businesses and cultivation completely, newly-added Health & Safety
Code section 11362.777(c)(4) provides that if a city does not have a land use regulation
or ordinance regulating or prohibiting marijuana cultivation, either expressly or
otherwise under principles of permissive zoning, or chooses not to administer a
conditional permit program under that section, then commencing March 1, 2016, the
state Department of Food and Agriculture will become the sole licensing authority for
marijuana cultivation in that jurisdiction; and
WHEREAS, under newly-added California Business and Professions Code
section 19340(a), if a city wants to prevent medical marijuana deliveries within its
jurisdiction, it must adopt an ordinance expressly prohibiting them; and
WHEREAS, medical marijuana businesses, dispensaries, cultivation activities,
and deliveries are not listed in the Zoning Code as either permitted or conditionally-
permitted land uses and are, therefore, prohibited under the City’s permissive zoning
provisions, as set forth in Municipal Code sections 19.04.030 and 19.04.050 (City of
Corona v. Naulls (2008) 166 Cal.App.4th 418, 431-433); and
WHEREAS, the City Council has determined that express Municipal Code
provision regarding medical marijuana dispensaries, marijuana cultivation facilities,
commercial cannabis activities, and medical marijuana deliveries will benefit the public
by providing clear guidelines regarding the scope of prohibited conduct and minimize
the potential for confusion regarding the City’s policies, and
WHEREAS, many California communities have experienced adverse impacts
and negative secondary effects from medical marijuana establishments and cultivation
sites, including hazardous construction, unsafe electrical wiring, noxious odors and
fumes affecting neighboring properties and businesses, increased crime in and around
such land uses, and the diversion of medical marijuana to minors; and
WHEREAS, there is significant evidence that medical marijuana delivery
services are also targets of violent crime and pose a danger to the public; and,
WHEREAS, the staff report presented to the City Council identifies other
negative impacts from unregulated marijuana which are incorporated herein; and
WHEREAS, it is reasonable to conclude that medical marijuana dispensaries,
marijuana cultivation facilities, commercial cannabis activities, and medical marijuana
deliveries could cause similar adverse impacts on the public health, safety, and welfare
in Cupertino; and
WHEREAS, in order to protect the public health, safety, and welfare, the City
Council desires to add Cupertino Municipal Code Chapter 19.98 to prohibit, in express
terms, medical marijuana dispensaries, marijuana cultivation facilities, commercial
cannabis activities, and medical marijuana deliveries; and
WHEREAS, the State regulation and licensing as contemplated in Assembly Bills
243 and 266 and Senate Bill 643 have not yet taken effect nor been implemented, and the
City Council desires to preserve local control over these uses; and
WHEREAS, the City Council of the City of Cupertino is the decision-making
body for this Ordinance; and
WHEREAS, the proposed Ordinance is not a project within the meaning of
section 15378 of the California Environmental Quality Act (“CEQA”) Guidelines
because it has no potential for resulting in physical change in the environment, either
directly or ultimately. In the event that this Ordinance is found to be a project under
CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section
15061(b)(3) because it can be seen with certainty to have no possibility of a significant
effect on the environment.
WHEREAS, the City Council has reviewed and considered the not a project and
exemption determination under the California Environmental Quality Act prior to
taking any approval actions on this Ordinance and approves such determinations; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CUPERTINO
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1.Cupertino Municipal Code section 19.08.030C of Chapter 19.08 of Title 19
is amended by adding the following definitions placed into alphabetical order:
“Commercial cannabis activity” shall have the meaning set forth in California Business
and Professions Code section 19300.5(k).
“Cultivation” means any activity involving the planting, growing, harvesting, drying,
curing, grading, or trimming of marijuana.
SECTION 2.Cupertino Municipal Code section 19.08.030I of Chapter 19.08 of Title 19 is
amended by adding the following definition placed into alphabetical order:
“Identification Card” shall have the same meaning as set forth in California Health and
Safety Code Section 11362.7, and following, or as may be amended.
SECTION 3.Cupertino Municipal Code section 19.08.030M of Chapter 19.08 of Title 19
is amended by adding the following definitions placed into alphabetical order:
"Marijuana" means all parts of the plant Cannabis, whether growing or not; the seeds
thereof; the resin extracted from any part of the plant; and every compound
manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It
includes marijuana infused in foodstuff, andconcentrated cannabis and the separated
resin, whether crude or petrified, obtained from marijuana. It does not include the
mature stalks of the plant, fiber produced from the stalks, oil or cake made from the
seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or
preparation of the mature stalks (except resin extracted therefrom), fiber, oil, or cake, or
the sterilized seeds of the plant that are incapable of germination.
"Medical marijuana" is marijuana used for medical purposes where that medical use is
deemed appropriate and has been recommended by a physician who has determined
that the person's health would benefit from the use of marijuana in the treatment of
acquiredimmune deficiency syndrome ("AIDS"), anorexia, arthritis, cancer, chronic
pain, glaucoma, migraine, spasticity, or any other serious medical condition for which
marijuana is deemed to provide relief as defined in subsection (h) of California Health
and Safety Code § 11362.7.
“Marijuana cultivation facility” means any business, facility, use, establishment,
property, or location where the cultivation of marijuana occurs. A “marijuana
cultivation facility” does not include a “qualified patient’s” primary residence provided
such cultivation of “medical marijuana” is for his or her personal medical useand he or
she does not provide, donate, sell, or distribute marijuana to any other person.
"Medical marijuana dispensary" means any business, facility, use, establishment,
property, or location, whether fixed or mobile, where medical marijuana is sold, made
available, delivered, transported, and/or distributed. A "medical marijuana dispensary"
does not include the following uses:
a.A “qualified patient” transporting “medical marijuana” exclusively for his or her
personal medical useand he or she does not provide, donate, sell,or distribute
marijuanato any other person;
b.A “primary caregiver” delivering or transporting “medical marijuana” for the
personal medical purposes of no more than five specified “qualified patients” for
whom he or she is the primary caregiver within the meaning of Section 11362.7
of the California Health and Safety Code, but who does not receive remuneration
for these activities except for compensation in full compliance with subdivision
(c)of Section 11362.765 of the California Health and Safety Code.
c.A clinic licensed pursuant to Chapter 1 of Division 2 of the California Health and
Safety Code;
d.A health care facility licensed pursuant to Chapter 2 of Division 2 of the
California Health and Safety Code;
e.A residential care facility for persons with chronic life-threatening illness
licensed pursuant to Chapter 3.01 of Division 2 of the California Health and
Safety Code;
f.A residential care facility for the elderly licensed pursuant to Chapter 3.2 of
California Division 2 of the Health and Safety Code; or
g.A residential hospice, or a home health agency licensed pursuant to Chapter 8 of
Division 2 of the California Health and Safety Code.
SECTION 4.Cupertino Municipal Code section 19.08.030P of Chapter 19.08 of Title 19
is amended by adding the following definition placed into alphabetical order:
“Primary caregiver” shall have the same meaning as set forth in CaliforniaHealth and
Safety Code Sections11362.5, 11362.7, and following, or as may be amended.
SECTION 5.Cupertino Municipal Code section 19.08.030Q of Chapter 19.08 of Title 19
is amended by adding the following definition placed into alphabetical order:
“Qualified patient”shall have the same meaning as set forth in California Health and
Safety Code Sections 11362.5, 11362.7, and following, or as may be amended.
SECTION 6.Title 19 of the Cupertino Municipal Code is hereby amended to add
Chapter 19.98 to be numbered, entitled, and to read as follows:
CHAPTER 19.98 Medical Marijuana
19.98.010 Purpose
19.98.020 Prohibitions
19.98.030 Enforcement
19.98.010 Purpose. The purpose and intent of this section is to prohibit medical
marijuana dispensaries, marijuana cultivation facilities, medical marijuana deliveries,
and commercial cannabis activities, as defined in Chapter 19.08, Definitions, within the
city limits. It is recognized that it is a Federal violation under the Controlled Substances
Act to possess or distribute marijuana even if for medical purposes. Additionally, there
is evidence of an increased incidence of crime-related secondary impacts in locations
associatedwith marijuana cultivation facilities and medical marijuana dispensaries and
in connection with medical marijuana deliveries, which is detrimental to the public’s
health, safety, and welfare. The State of California’s licensing and regulation as
contemplated by Assembly Bills243 and 266 and Senate Bill 643 have not yet taken
effect nor been implemented, and the City Council desires to preserve local control over
these uses and activities. Nothing in this Chapter is intended to circumvent compliance
with state law.
19.98.020 Prohibitions.
(a)The following are prohibited:
(1) Medical marijuana dispensaries in all zones in the city and shall not be
established or operated anywhere in the city.
(2) Marijuana cultivation facilities in all zones in the city and shall not be
established or operated anywhere in the city.
(3) Commercial cannabis activities in all zones in the city and shall not be
established or operated anywhere in the city.
(b) No person shall own, establish, open, operate, conduct, or manage a medical
marijuana dispensary, marijuana cultivation facility, or commercial cannabis activity
in the city, or be the lessor of property where a medical marijuana dispensary,
marijuana cultivation facility, or commercial cannabis activity is located. No person
shall participate as an employee, contractor, agent, volunteer, or in any manner or
capacity in any medical marijuana dispensary, marijuana cultivation facility, or
commercial cannabis activity in the city.
(c) No Permits, grading permit, building permit, building plans, zone change,
business license, certificate of occupancy or other applicable approval will be
accepted, reviewed, approved or issued for the establishment or operation of a
marijuana cultivation facility, medical marijuana dispensary, or commercial
cannabis activity.
(d) Nothing contained in this section shall be deemed to permit or authorize any use
or activity which is otherwise prohibited by any state or federal law.
19.98.030 Enforcement. The city may enforce this section in any manner permitted by
law. The violation of this Chapter shall be and is hereby declared to be a public
nuisance and shall, at the discretion of the city, create a cause of action for injunctive
relief.
SECTION 7. FINDINGS. The following findings are made under Cupertino Municipal
Code section 19.152.030(D):
(1) The proposed Ordinance conforms with the latest adopted general plan for the
City in that a prohibition against marijuana cultivation facilities, medical marijuana
dispensaries, commercial cannabis activities, and medical marijuana delivery
services does not conflict with any allowable uses in the land use element and does
not conflict with any policies or programs in any other element of the general plan.
(2) The proposed Ordinance will protect the public health, safety, and welfare and
promote the orderly development of the City in that prohibiting marijuana
cultivation facilities, medical marijuana dispensaries, commercial cannabis activities,
and medical marijuana delivery services will protect the City from the adverse
impacts and negative secondary effects connected with these activities.
(3) The proposed Ordinance is consistent with Municipal Code Title 19, which
currentlybans marijuana cultivation facilities, medical marijuana dispensaries,
commercial cannabis activities, and medical marijuana delivery services under
principles of permissive zoning.
(4) The proposed Ordinance is not a project within the meaning of section 15378 of
the California Environmental Quality Act (“CEQA”) Guidelines because it has no
potential for resulting in physical change in the environment, either directly or
ultimately. In the event that this Ordinance is found to be a project under CEQA, it
is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3)
because it can be seen with certainty to have no possibility of a significant effect on
the environment.
SECTION 8.SEVERABILITY.If any section, subsection, subdivision, sentence, clause,
phrase, or portion of this Ordinance is, for any reason, held to be invalid or
unconstitutional by the decision of any court of competent jurisdiction, such decision
shall not affect the validity of the remaining portions of this Ordinance. The City
Council hereby declares that it would have adopted this Ordinance, and each section,
subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the
fact that any one or more sections, subsections, subdivisions, sentences, clauses,
phrases, or portions thereof be declared invalid or unconstitutional.
SECTION 9. The City Clerk shall certify the adoption of this Ordinance and shall give
notice of its adoption as required by law.Pursuant to Government Code Section 36933,
a summary of this Ordinance may be published and posted in lieu of publication and
posting of the entire text.
* * * * * * * *
INTRODUCED at a regular meeting of the City Council of the City of Cupertino
the ___ day of ______ and ENACTED at a regular meeting of the City Council of the
City of Cupertino the ____ of _______ 2015, by the following vote:
PASSED:
Vote:Members ofthe City Council
Ayes:
Noes:
Absent:
Abstain:
ATTEST:APPROVED:
________________________________________________________
Grace Schmidt, City Clerk Mayor, City of Cupertino
Subject: Report of the Community Development Director
Planning Commission Agenda Date: Tuesday, November 24, 2015
Bay Area Council Report – Roadmap for Economic Resilience:
The Bay Area Council Economic Institute unveiled a report titled “Roadmap for Economic
Resilience” on November 6, 2015. The Bay Area Council is a business-sponsored, public policy
advocacy organization for the nine-county Bay Area. The Roadmap outlines a series of proposed
solutions for addressing the region’s housing and traffic crises, streamlining regional governance,
promoting the region economically. The report can be accessed at:
http://www.bayareaeconomy.org/wp-content/uploads/2015/11/BACEI-RES-Report.pdf.
We have three new additions to the Planning Department. Please join me in welcoming Phillip
Willkomm, our new Code Enforcement Officer. He replaces Alex Wykoff who is now serving as
Cupertino’s Environmental Programs Specialist. Phillip comes to the City with a background in
Planning and Urban Development and Code Enforcement.
Adam Petersen joins us as one of our new Senior Planners. Adam has over 14 years of experience
in both municipal and private sector planning. He replaces Rebecca Tolentino who accepted a
position in her home community of Gilroy.
Catarina Kidd just started with the City on November 16th and is our other new Senior Planner.
She comes to the City after having been an independent contract planner for many years and from
the City of Danville before that. She fills the vacancy the department has had since the retirement
of Colin Jung last year.
Up Coming Dates:
Thursday, November 26th and Friday, November 27th, City Hall will be closed in observance of the
Thanksgiving holiday
Tuesday, December 15th – City Council meeting has been cancelled
From Thursday, December 24th through Friday January 1st, City Hall will be closed
Tuesday, January 5th – City Council meeting has been cancelled
OFFICE OF COMMUNITY DEVELOPMENT
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
(408) 777-3308 • FAX (408) 777-3333 • planning@cupertino.org