DESK ITEMS 04-23-2019Beth Ebben
From:
Semite
To:
Cc:
Subject:
Dear Chairman Nang,
Ignatius Y. Ding <ignatius.ding@gmail.com>
Tuesday, April 23, 2019 2:14 AM
R Wang
Benjamin Fu; Beth Ebben; City Clerk; Steven Scharf; Liang Chao; Darcy Paul; Rod Sinks;
Jon Robert Willey; City of Cupertino Planning Dept.; City Attorney's Office;
petta@smwlaw.com
Planning Commission meeting 4/23 -Agenda Item#1: [Subject]_ Discussion and
recommendations to City Council on unresolved disposition of toxins and hazardous
materials at Vallco site and impact on citizen health
Thank you for placing several important items on the 4/23 ]Manning Commission meeting
agenda. Your action will bring the deserved attention to the environmental,impacts to the
community by the on-going re -development at the former Vallco ]Fashion park site.
It seems that the staffs have failed performing their required due -diligence in the review of
some parts of the application submitted by the property owner, i.e. Sand Hill ]property, under
newly minted state law SB35 in early 2018. In a hasty fashion, they have rushed the review and
approval in the "streamline" process within a small time frame, failing to include a number of
legal requirements to make the project development conforming to all existing state
environmental laws as SB35 stipulates.
For Agenda Item #1, please consider the following recommendations:
1. Direct the staffs to perform on-site inspections of the two storage tanks used by Sears
and JC Penney auto centers for decades. ]doth storage units have been red -tagged by the
state EPA as toxic waste contaminated areas. They must be closely examined by certified
professionals and determine their status in terms of leakage and potential threats to nearby
storm drains and underground water sources.
2. -Require the property owner to draft and submit a comprehensive "decontamination
phgn" to ascertain that the demotion of existing structure would not aggravate or
exacerbate the toxic waste threat.
3 ]Forward the "decontaminafion pian" to the appropriate state and county, enforcement
agencies for approval before issue any work permit to the development for any demolition
of the contaminated sites.
4. In light of the fact that the ongoing demolition causing severe air pollution with heavy
dirty air, full of particulate matters near residential areas and (in particularly alarming)
daycare centers, the city must require the developer to draft and submit an "Air Pollution
Containment Plan" to protect the public heath.
5. It is advisable to refer this matter to the Bay Area Air Quality Management District to
seek its official approval, giving the magnitude of the development project, the closeness
of the development site to the neighborhood community and the long-term negative impact
to public health.
6. The developer has also planned to remove at least 467 matured trees from the
development site and adjacent streets. The city must require the developer to draft and
submit a plan to replant and/or reseed these trees to mitigate the loss a massive number of
trees from our city proper. It is bad enough that the developer fails to offer adequate
parkland as required by the City General Plan. By losing this many trees outright,
Cupertino will literally turn from an urban tree -lined city to a concrete jungle!!
Ignatius Y. Ding
42 -resident
(408) 692-5757
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Beth Ebben
From: Lauren Sapudar
Sent: Tuesday, April 23, 2019 2:12 PM
To: Beth Ebben; Benjamin Fu
Subject: FW: Agenda Item 5, discussion and inquiry into approval of Vallco SB 35 tentative
subdivision map, 4/23/2019 Planning Commission Meeting, was: Oral Communications'
Documents from 1/25/2019
Lauren Sapudar
Executive Assistant to City Manager and City
Council
City Manager's Office/City Clerk's Office
LaurenS@cupertino.org
¢yam (408) 777-1312
�UPER tl I N �kK
From. Liana Crabtree <lianacrabtree@yahoo.com>
Sento Tuesday, April 23, 2019 2:05 PM
To: R Wang <RWang@cupertino.org>; Vikram Saxena <VSaxena@cupertino.org>; David Fung <DFung@cupertino.org>;
Kitty Moore <ckittymoore@gmail.com>; Alan Takahashi <ATakahashi@cupertino.org>
Cc: City Clerk <CityClerk@cupertino.org>; Steven Scharf <SScharf@cupertino.org>; Liang Chao
<LiangChao@cupertino.org>; Darcy Paul<DPaul@cupertino.org> Rod Sinks <RSinks@cupertino.org>; Jon Robert Willey
<JWilley@cupertino.org>; City Attorney's Office <CityAttorney@cupertino.org>; Cupertino City Manager's Office
<manager@cupertino.org>
Subject: Agenda Item 5, discussion and inquiry into approval of Vallco SB 35 tentative subdivision map, 4/23/2019
Planning Commission Meeting, was: Oral Communications Documents from 1/25/2019
Dear Planning Commission Chair Wang, Vice Chair Saxena, and Commissioners Fung, Moore, and Takahashi:
Please add this letter to the public record for the 4/23/2019 Planning Commission meeting, Agenda Item 5,
"Discussion and inquiry into approval of Vallco SB 35 tentative subdivision map".
Following the closed session of the City Council on 1/25/2019, a community member who spoke during public
comment to Agenda Item 2 --"Conference with Legal Counsel pursuant to Government Code section
54956.9(d) (1); Re: Pending Litigation; Friends of Better Cupertino, et al. v. City of Cupertino; Santa Clara
County Superior Court, Case No. 18CV330190 (SB 35 Vallco Project) "--shared their presentation with Council
and other interested community members, including me.
I received the message below from the community member on 1/25/2019. As the information is relevant for
your discussion this evening of Agenda Item 5, I am sharing with you all today.
In an effort to ensure that this message will clear the City's firewall and that all recipients will have accessAo all
documents the community member sent to Council on 1/25/2019, I have removed the 3 original attachments
from the message thread and added them to a shared directory available here:
bit.ly/BCAC Wins2019a
Refer to documents:
03_Vallco _SB_35—Tentative —Subdivision—Map
04_09-10-05—subdivision flow chart_FINAL_201209131125299306
05 VallcoFeeProtestLetterc
According to the evidence extracted from SB 35 and the Cupertino Municipal Code and provided in
03—Vallco—SB-35—Tentative —Subdivision—Map document, the review and approval of tentative subdivision
maps is a public process with specific hearing requirements assigned to the Planning Commission and final
approval resting with the City Council.
However, for the Vallco Town Center SB 35 application, the authority to review and approve the tentative
subdivision map was apparently usurped from the People, the Planning Commission, and the Council by the
Cupertino Community Development Department and Planning Division, the entity that approved the tentative
subdivision map on behalf of the City.
Why does it matter?
Parkland obligation is assigned during the approval process of tentative subdivision map. The approved SB 35
application provides 2 acres of parkland for the Vallco Town Center site. However, with the 4,320 residents
anticipated at the the site under the SB 35 application, the project should, by law, include at least 12.96 acres of
parkland. (See also 05_VallcoFeeProtestLetterc, PDF p 7 and Friends of Better Cupertino vs. City of Cupertino
— Better Cupertino)
Today, I ask the Planning Commission to ask the City Council to:
(1) withdraw the City's opposition to the residents' lawsuit that challenges the eligibility determination and
approval of the Vallco Town Center SB 35 application on the grounds that the evidence provided by residents
flags that the application is not compliant with the law.
(2) launch an investigation to understand how an apparently flawed and non-compliant SB 35 application was
determined to be eligible for streamlined approval and ultimately approved despite 100s of pages of evidence
provided to the City by residents identifying the many instances where the SB 35 application was apparently not
compliant with State law, General Plan, and the Municipal Code.
Thank you for your consideration of my comments and requests.
Sincerely,
Liana Crabtree
Cupertino resident
representing myself only
Friends of Better Cupertino vs. City of Cupertino - better
Cupertino
r
Sensible—Growth - Google Drive
----- Forwarded Message -----
From: [community member]
To 4ianacrabtreenyahoo.com" <lianacrabtree@yahoo.com>; [redacted, not relevant]
Sent: Friday, January 25, 2019, 8:07:30 PM PST
Subject: Fwd: Oral Communications Documents from 1/25/2019
[redacted, not relevant]
Begin forwarded message:
From: [community member]
Date: January 25, 2019 at 6:45:58 PM PST
To: City Council <citycouncil(a,cupertino.org>
Subject. Oral Communications Documents from 1/25/2019
Mayor Scharf, Vice Mayor Chao, and City Council Members Sinks, Paul, and Willey,
Attached are the documents I brought today, and the December 21, 2018 "Fee Protest" letter from the developer's
attorney. It is mentioned in the presentation I read from and attached, but I did not bring up their apparent
acknowledgement that they would need discretionary approval on the green roof, recall that SB 35 does not allow
discretionary approvals.
It is really important tohavea moment with. Timm. Borden to have the Subdivision. Map process explained and to
understand the difference between parcels in a Subdivision Map and parcels for tax purposes.
While I briefly stated the proposed acreage would yield 1,720 dwelling units, I did not clarify that is less than the
1,779 the developer assumed. We need to know if the city is allowed to use a pre -dedication acreage to determine
dwelling units when they are giving up land for the street widening which has not been approved.
Thank you,
[community member]
M
[removed 3 attachments due to size and replaced with a link and document references above.]
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Lop -in
California Renters Legal Advocacy and Education Fund
126o Mission St
San Francisco, CA 94103
hi@caria�f.org aRL
4/23/2019
Cupertino Planning Commission
10350 'Torre Avenue
Cupertino, CA 95014,
cit clerk Pcupertino.org; R Wang, Chair, rwang(LDcupertino.org; Vikram Saxena, Vice
Chair; vsaxena cupertino.org; Kitty Moore, Commissioner, kmoore@cupertino.org;
Alan Takahashi, Commissioner, atakahashi(a cupertino.org.; David Fung,
Commissioner, dfung@cupertino.org;
Via Email
Re Vallco Town Center
File # 19-5345,19-5346,19-5347
Dear Cupertino Planning Commissioners,
The California Renters Legal Advocacy and Education Fund (CaRLA) submits this
letter to inform you that the Cupertino Planning Commission has an obligation to
abide by all relevant state housing laws when evaluating the above captioned items.
SB 35 was passed with the intent of providing streamlined, ministerial permitting for
projects that fulfill specific affordability requirements. Projects -that qualify can be
rejected only if they fail to comply with objective standards.
Pursuant to code § 65913.4(a)(5) "objective zoning standards," "objective subdivision
standards," and "objective design review standards" mean standards that involve no
personal or subjective judgement and are uniformly verifiable by reference to an
external and uniform benchmark or criterion available and knowable by both the
development applicant or proponent and the public official before submittal
SB 35 was intended to accelerate the permitting process for housing projects,
recognizing California's dire need for more housing. The law was not intended to
allow planning departments unlimited time to raise and withdraw challenges -to a
project. Pursuant. to code § 65913.4(b)(1) a local government must provide
documentation of any violations of objective standards to the development proponent
within 6o days for projects with less than 150 units or 12o days for projects with more
than 150 units. If no documentation is provided within this time period the project is
deemed to have satisfied all objective standards.
SB 35 also provides very specific guidelines on the obligations of localities after a
project is approved. Code § 65913.4(e)(3) mandates that approvals for projects
meeting certain affordability requirements remain valid for a minimum of 3 years and
remain valid thereafter so long as vertical construction has begun and is in progress.
Additionally, State law requires that applications under SB 35 must be processed
ministerially (§ 65913.4(a)). This clearly prohibits public discretionary review and
limits oversight to matters of objective compliance with design and zoning standards.
Any design review or public oversight must not inhibit, chill, or preclude the
ministerial process (§ 65913.4(c))•
The Vallco Town Center project has already been approved and therefore further
public oversight is prohibited. No valid objective design or zoning standards were
flagged within the 12o day window required by law and no further objections may be
considered at this time. Additionally, the approval of the project is valid for 3 years,
starting at the date of final approval, and thereafter will remain valid if vertical
construction is in progress. Further public hearings on this topic are prohibited by
State law from influencing or affecting the approval of this project in any way.
CaRLA is a 501(03 non-profit corporation whose mission is to restore a legal
environment in which California builds housing equal to its needs, which we pursue
through public impact litigation and providing educational programs to California city
officials and their staff.
Sincerely,
1
Sonja Trauss
Co -Executive Director
California Renters Legal Advocacy and Education Fund
California Renters Legal Advocacy and Education Fund - hi@carlaef.org
1260 Mission St, San Francisco, CA 94103
AX
Beth Ebben
Subject: FW: Agenda Item 4 unresolved disposition of toxins at the Vallco Shopping District site,
Planning Commission meeting, 4/23/2019
From: Liana Crabtree[mailto:lianacrabtree@vahoo.com]
Sent: Tuesday, April 23, 2019 3:08 PM
To: R Wang <RWang@cupertino.org>; Vikram Saxena <VSaxena@cupertino.org>; David Fung <DFung@cupertino.org>;
Kitty. Moore <ckittymoore@gmail.com>; Alan Takahashi <ATakahashi@cupertino org>
Cc: -City Clerk <CitvClerk@cupertino.org>; Steven Scharf <SScharf@cupertino.org>; Liang Chao
<LiangChao@cupertino.org> Darcy Paul <DPaul@cupertino.org>; Rod Sinks <RSinks@cupertino.org>; Jon Robert Willey
<JWillev@cupertino.org>; City 'Attorney's Office <CityAttorneV@cupertino.org>; Cupertino City Manager's Office
<manager@cupertino.org>
Subject., Agenda Item 4, unresolved disposition of toxins at the Vallco Shopping District site, Planning Commission
meeting, 4/23/2019
Dear Planning Commission Chair Wang, Vice Chair Saxena, and Commissioners Fung, Moore, and
Takahashi:
Please add this letter to the public record for the 4/23/2019 Planning Commission meeting, Agenda.
Item 4, "Discussionand recommendations to City Council on unresolved disposition of toxins and
hazardous materials at Vallco site and impact on citizen health".
In 2018, successive City Managers found the Vallco Town Center SS 35 application compliant with
the law and therefore eligible for streamlined, ministerial approval
SB 35 was approved in 2017 and includes the following amendment to Government Code 65913.4:
"(Section) 65913.4. (a) A development proponent may submit an application for a development that is
subject to the streamlined, ministerial approval process provided by subdivision (b) and not subject to
a conditional use permit if the development satisfies all of the following objective planning standards:
(E) A hazardous waste site that is listed pursuant to Section 65962.5 or a hazardous,waste site
designated by the Department of Toxic Substances Control pursuant to Section 25356 of the Health
and Safety Code, unless the Department of Toxic Substances Control has cleared the site for
residential use or residential mixed uses...."
From GeoTracker, repot for J.C. PENNEY (T0608500770), 10150 N Wolfe Rd, Cupertino, CA,
95014, Compliance Report doc 0003.pdf, PDF pp 1-2, document page numbers 4-5":
"The waste oil tank excavation was deepened to 10-12 feet bgs at the center of the excavation; total
of 225 tons of material was excavated and disposed of at an offsite location. Subsequent sampling
and analysis of soils from the floor and walls of the excavation was performed. With one exception,
waste oil concentrations were below 110 TRPFI. The soil sample collected along the south wall of the
excavation at a depth of 8 feet bus contained 3,800 ppm waste oil (as analyzed by SM503e).
EXCAVATION WAS STOPPED IN THIS AREA BECAUSE ADDITIONAL EXCAVATION WAS
JUDGED TO HAVE THE POTENTIAL OF CAUSING DAMAGE TO THE BUILDING FOUNDATION
[emphasis added]...."
Path to the statement above: GeoTracker> "Regulatory Activities" > Response Requested - Other
"[VIEW DOCS]"
We have no supporting documentation to show that this 4th underground storage tank and its
residual waste oil sludge have been removed from the Vallco Town Center site. As illustrated by this
one example above, a "cleared" designation for a site complaint can mean nothing more than the
compliant investigation has ended but a tank containing toxins remains on site.
Given the agricultural and manufacturing history of the site and changes to environmental law and
requirements that exist today that did not exist 40+ years ago when the current structures on the site
were built, the community deserves the full Environmental Site Assessment, Phase II study that was
not fulfilled under the environmental impact review that was completed in 2018 as part of this
streamlined, ministerial approval process.
From the Better Cupertino Web site "Brief Filed in Vallco SB 35 Court Case on January 29":
"...The Vallco site was never fully cleaned up and has no fewer than 64 listings on California's
statewide environmental database of polluted problem sites known as the "Cortese list."
Under S1335, hazardous sites listed on the Cortese List are not eligible for SB35 approval unless the
pollution hazards have been fully cleared by the Department of Toxic Substances Control in
Sacramento. In fact, the Department of Toxic Substances Control (DTSC) has never been asked to
clear Vallco's site for residential use...."
Link to the article: Friends of Better Cupertino vs. City of Cupertino — Better Cupertino
The City Managers who determined that the Vallco Town Center SB 35 application was compliant
with the law were hired under previous Councils. Neither City Manager works for Cupertino today. A
new Council that views the law with open eyes is not bound to the decisions of a past Council.
Today, I ask the Planning Commission to ask the City Council to:
(1) withdraw its opposition to the residents' lawsuit that challenges the eligibility determination and
approval of the Vallco Town Center SB 35 application on the grounds that the evidence provided by
residents does not support the application's compliance with the law.
(2) launch an investigation to understand how an apparently flawed and non-compliant SB 35
application was determined to be eligible for streamlined approval and ultimately approved despite
100s of pages of evidence provided to the City by residents identifying the many instances where the
SB 35 application was apparently not compliant with State law, the General Plan, and the Municipal
Code.
Thank you for your consideration of my comments and requests.
Sincerely,
Liana Crabtree
2
Cupertino resident
representing myself only
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91
Ideas for Objective Standards
Kitty Moore
Planning Commission
April 23, 2019
• Park land
• Define requirements in park deficient areas
Define park deficient areas
show on maps
• Define recreation area (is it an aquatic center, gym, basketball court, badminton facility)
• Show on maps
• Show population density expected to use
• Define park land
► Size and shape requirements
Requirements to developers to dedicate park land acreage as a development criteria
• Future population policies to maintain parkland ratios
• Review in parallel with the coming Quimby Act requirements
• Include community garden space in park land requirements for all new residential
developments. Define requirement.
• Traffic
• Level of Service as threshold of significance in CEQA (EIR) process
• Bicycle Level of Service
• Potential autonomous vehicle requirements for a future city fleet concept
• For instance, residents are allowed access to autonomous vehicles remaining in
some mapped area.
• Parking area policy
• Charging area determinations
Cupertino General Plan
• Introduction
o Consider the Vision Statement:
"...vibrant, mixed-use "Heart of the City.""
► Correct inconsistencies in maps of "Heart of the City"
Create objective standards to maintain the vision
o Ch. 2 Planning Areas
o PA -3, define "more pedestrian, bicycle and transit facilities"
o Define `gateway' on.a bordering jurisdiction (are 95' hotels acceptable on a city boundary
adjacent to single. -4 story properties?)
• Correct map on PA -7, boundaries of Heart of the City
Define boundaries of the `tree lined boulevard'
b Define how commerce centers will be configured
► Define frontages, breaks in architectural features, distance between park areas,
shade canopy,.pollinator pathways, dark skies, roof policy, sustainability (green
building), fire safety in surface materials
Define roof setback requirements precisely and show precisely the requirements for
maintaining the building mass below the setback line. Remove the word `bulk' as in
the bulk of the building will be below the 1:1 setback for example.
Provide dimensions for how long a building can be without a change in the face'
plane. Such as, for ever 100 feet of building length there shall be a plane -break along
the facade comprised of an offset of a least 7 feet in depth by 30 feet in length. The
off set shall extend from the grade to the highest story.
Provide minimum street width to building height requirements to avoid caverns
Address the move to electric, heating and cooling
Roof policy defining requirements for white, green, and solar
Solar retrofitting city property policy
Sidewalk shading policy. Distances between unshaded areas at noon for example.
o Inclusionary Housing
Policy for shelters
Policy for ELI
Require the city to post on the website what the RHNA numbers are, how many
applications have been approved and associated benefits in the developer
agreements associated with the approvals.
Policy such as Housing Element sites with no housing after two years forfeit the
designation to have it redistributed.
Define `buffers' with dimensions and type: if a boundary wall define minimum height,
setbacks have actual distances, park areas be specifically defined
Have requirements for all Specific Plan Areas such as height, decrease density to
match allocations in Table LU -1, remove expired allocations, create residential
specifically zoned areas outside of mixed use clearly defined.
Separate non=residential land use designations to remove the commercial/office from
mixed use except for specified clearly though out mixed use areas.
Consider removing community benefits from project approvals or have some more
direct connection between the project impact and the benefits provided.
Eliminate in lieu of fees where they are addressing a need in a area not meeting
standards.
Consider a BMR city wide dispersal requirement. Define dispersal, both within a
BMR project and city-wide.
Provide for senior retirement living for active seniors wanting proximity to shopping
dining and entertainment areas.
o Solar Access policy. In consideration of health and wellness, especially gardeners and
urban farmers, provide a quantified requirement for allowable changes in solar access.
o Specify a shadow policy based on Berkeley's