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PC 12-06-94 CITY OF' CUPER'PINO. STA'1'F: OF' CALIFORNIA 10300 Torre Ave, Cupertino, CA 95014 (408) 777-3308 MINUTES OF' THE ADJOURNED MEETING OF THE PLANNING COMMISSION HELD ON DECEMBER 6, 1994 The meeting was called to order by Chr. Mahoney at 6:50 p.m. SALUTE TO THE FLAG ROLL CALL commissioners Present: Chr. Mahoney Com. Doyle (arrived 7 p.m.) Com. Austin Com. Roberts Com. Harris Staff Present: Robert Cowan, Director of Community Development ciddy Wordell, city Planner Charles Kilian, city Attorney steve Dowling, Director of Parks and Recreation Bert Viskovich, Director of Public Works Consultants Present: Don Wolfe, Don Skinner, Leon Pirofalo, Dr. Hopkins. WRITTEN COMMUNICATIONS - No Discussion POSTPONß~ENTS/REMOVALS FROM CALENDAR - None ORAL COMMUNICATIONS - None CONSENT CALENDAR - None PUBLIC HEARING 1. Application No(s) Applicant: Property Owner: Location: 1-GPA-93 and 6-EA-93 Diocese of San Jose Same Assessor Parcel Numbers 342-52-3, 342-5- 54, -56, -59, -60 Located south of 1-280, west of Foothill Blvd. and north of Rancho San Antonio County Park and Stevens Creek Blvd. GENERAL PLAN AMENDMENT to change the land use designation from Very Low Density Residential 5-20 acre slope density to Very Low Density Residential Foothill Modified 1/2 acre slope density with a cap of 293 units. The Diocese amendment. alternatives of San Jose applied for the above General The city Council directed that a total of be analyzed in the Environmental Impact Report. Plan ten ENVIRONMENTAL DETERMINATION: An Environmental Impact Report was PLANNING COMMISSION MINUTES December 6, 1994 Page 2 prepared. Ten alternatives were evaluated. Significant impacts identified related to loss of and intrusion into open space lands; elimination of potential park lands; loss of and intrusion into natural vegetation, wildlife habitat and wetland areas; exposure to adverse geologic conditions; storm run-off erosion and pollution; wildfire hazard; visual impacts; water tank failure and leakage; and safety of school crossings. Staff Presentation: ci ty Planner Wordell presented the staff report noting subjects to be discussed at this hearing are the following: visual, Vegetation and wildlife, Parks and Open Space, Water Tank and Precedence. Mr. Don Wolfe presented the report on visual impacts and noted the purpose of the visual impact component of the EIR is to determine the degree of significance of the impacts from the various proposed land use alternatives presented by the applicant. He noted in order to determine if an impact has significance, criteria was established by the California Environmental Quality Act (CEQA). He reviewed the "Significance criteria" provided by CEQA. He also reviewed policy 2-37 of the general plan noting this is linked to the visual analysis, and briefly reviewed the design criteria. Mr. Wolfe presented a map outlining the visually sensitive areas. He noted in the selection of the representative view points the following criteria was used: 1) looked for the worse case scenario; 2) views had to include all or most of the sensitive areas. He added that six view points, representing seven separate views were selected through a field review and representatives from the City of cupertino, Santa Clara County Parks Department, Mid- Peninsula Open space District, representative consultant, and a representative for the applicant were all present. He noted they also looked at off-site impacts. Mr. Wolfe stated after studying the visual impacts it was determined that there would be no visual impacts from I-280. He noted the project will be seen from 1-280 for approximately 3 seconds driving at 50 mph, but tree planting will eliminate this. Com. Roberts asked if development on the cristo Rey parcel will be visible? Mr. Skinner stated it will be visible from properties across I-280. Mr. Wolfe alternative impacts, but presented the Evaluation of Alternatives each has advantages and disadvantages, in terms of visual some are clearly superior to others. Best Choice: the Cristo undeveloped. Preferred: Alt. I Alternatives which do not include development within Rey parcel since the area is now completely - Some impact at Seminary parcel, no impact at PLANNING COMMISSION MIWùTES December 6, 1994 Page 3 Cristo Rey parcel. Less Preferred: Alt. 3 - More impact at seminary parcel, but no impact at Cristo Rey parcel. Second best choice: Cristo Rey parcel. Preferred: Alt. 5 - sensitive treatment of is also less impact on Cristo Rey parcel. Less Preferred: Alt. 2 - Fewer units, but includes development in bowl area and alt. 4 with more units in the seminary parcels and no units located in bowl meadow area. Least Preferred: Alt. 6 - Includes intensive development on both Seminary and Cristo Rey parcels and also includes development in the highly visible bowl meadow area located between the county park and the cemetery. Alternative which includes development on creates impact on seminary parcel, but most development on the Cristo Rey parcel. There the residential neighborhood to the east of Com. Roberts pointed out that alternative 2, the development of 30 units on Cristo Rey parcel, has greater impacts than alternative 5 with more units proposed. Mr. Wolfe pointed out when studying the visual impacts the number of units is not as important as the size and distribution of the units. In response to Com. Roberts concerns, Mr. Wolfe stated, although alternative 2 conforms more with the general plan, it does not mean it is the best solution. ci ty Planner Wordell stated al ternati ve 2 does conform to the general plan in respect that it is 90 percent open space and 10 percent development, but stated it could be clustered more. She stated the minimum parcel size is determined through the development. Com. Roberts stated if they follow the analysis presented to the commission it makes alternative 2, with 36 units, look worse than alternative 5. The commission discussed the chart presented with regards to alternative 2 and 5. Mr. Wolfe stated when discussing alternative 2 and 5 at this time, they are only discussing visual impacts. Com. Harris stated other factors, not being considered at this time, had influence on the reviewers that caused the summary statements. She stated she would like to see an overall chart taking more factors into consideration. Mr. Wolfe stated there is a very detailed description of each of the impacts from the different view areas that were used to reach PLANNING COMMISSION MINUTES December 6, 1994 Page 4 the conclusions in the summary table. Ms. Wordell pointed out that alternative 1 would conform to the general plan, because it is clustered and is 36 units, but there are separate parcels involved. Chr. Mahoney stated there are two issues: 1. There is a lot of detailed data which leads to an intermediate table, which leads to recommendations, yet the intermediate table is out of sync with the recommendations and this needs to be reconciled. Mr. Wolfe stated they will review the table and address the commissions concerns. 2. Al ternati ve 2 was done under different ground rules than alternative 5 and this leads to different results. Com. Austin stated the commission needs to look at building height and mass. Mr. Wolfe stated that building height and mass assumptions, coupled with the photomontage was included in the models. Ms. Wordell stated that alternatives 2 and 3 assumes larger homes and alternative 5 assumes all house sizes. Chr. Mahoney requested a table showing the range of house sizes. Com. Roberts stated he would like to discuss the issue that none of the alternatives conform to the spirit of the general plan. He noted if this EIR is used to determined if the city wants to amend the general plan, then something in the EIR should conform closely to the letter and spirit of the general plan. Mr. Wolfe stated in order to assist the city in making a determination of whether or not they should amend the general plan, the applicant offered different alternative plans in order to demonstrate that they would not, in their opinion, result in serious environmental consequences. He stated the purpose of the EIR is to determine if there should be a general plan amendment and if so, to what degree. He added it is not to evaluate any specific development proposals. He pointed out that if all the alternatives conform to the general plan there would be no need for a general plan amendment. Mr. Wolfe stated that alternative 1 conforms, but would require a transfer of development rights from the Cristo Rey parcel to the st. Joseph parcel. PLANNING COMMISSION MINUTES December 6, 1994 Page 5 Com. Roberts stated it is his understanding than alternative I could not be considered as conforming to the general plan because all of the units were clustered on one property and the applicant would have to give up development rights. Mr. Cowan stated the city can not force the transfer of development rights. He reviewed the clustering policy as written in the general plan. Com. Roberts stated, in his opinion, it would seriously undermine the acceptability of the EIR if there is no feasible alternative in the EIR that conforms to the general plan. Com. Harris stated she believes that the intent of the developer was that alternative 2 met the spirit and letter of the general plan, but the EIR shows some problems with this. She noted alternative 1 also meets the spirit of the general plan. She asked if the developer comes in with plans for alternative 2 would this be approved at staff level? Ms. wordell stated this would have been through a subdivision process and the issue would be the clustering. Com. Harris stated the chart conclusions do evaluation of the alternative conclusions. Chr. consultants will work on this. not lead to the Mahoney stated the Com. Austin stated she would like a chart comparing the Cristo Rey parcel and the seminary parcel. The commission discussed the possibility of requiring another alternative. Chr. Mahoney stated he does not believe that much additional information will be provided with a new alternative. Ms. Wordell suggested an amendment to al ternati ve 2 and require more clustering. Com. Roberts stated the units in alternative 2 were not clustered in such a way as to minimize the impacts, but spread out in such away to maximize the size of the individual parcels. He also reiterated again that with regards to visual impacts, none of the alternatives conform to the EIR. Mr. Wolfe reviewed CEQA requirements regarding a non development alternative and a no project alternative. The commission continued discussing alternative 2 and its conformance with the general plan. They discussed the possibility of redrawing alternative 2 as opposed to doing another alternative. In response to Commissioners concerns and questions, Chr. Mahoney PLANNING COMMISSION MINUTES December 6, 1994 Page 6 pointed out that policies 2-43 and 2-48 of the general plan address clustering. Com. Harris stated when she reads the alternatives for the proposed project, it is obvious to her that alternative A was no development. And, alternatives 1 and 2 specifically say no project alternative which is defined as the general plan remains unchanged. She noted the ErR contains three alternatives which result in no general plan change. She agrees that al ternati ve 2 should be redrawn. Mr. Wolfe stated because of the wide range of alternatives, they provided a range of impact situations. Com. Roberts stated this is a public process and a public decision. He added, it will be difficult for the public to understand the basis on which the commission made their decision if they are asked to envision alternatives that are not explicit in the report. Ms. Wordell stated they could bring back a site plan which would include greater clustering. Com. Austin stated the commission needs more specific information as this is a very sensitive area. Chr. Mahoney addressed the workshop with Scott Frutryk regarding the techniques and technologies used to obtain more information and asked if the commission would like more information? Com. Austin stated she would be more comfortable receiving more information. Com. Doyle agrees that they need more specific information later on in the process, but also agrees with Com. Roberts comments regarding the public understanding the process. He stated they do not need specific information before approving or disapproving the EIR, but do need to understand that the visual impacts can be mi tigated. He added he does not need a revised al ternati ve to understand the impacts. Com. Austin stated she finds it hard to understand how visual impacts can be mitigated if an alternative is not chosen. Com. Roberts stated the ErR would be fundamentally flawed if it does not contain an alternative which conforms to the letter and spirit of the general plan. He noted such an alternative should be prepared in a way that is as directly comparable and as much integrated into the whole proceeding as possible, to serve as an effective baseline. He stated this is what is needed for the PLANNING COMMISSION MI~rrJTES December 6, 1994 Page 7 decision whether or not to recommend a general plan amendment. He added, absent that baseline for comparison, people are being asked to make adjustments in their minds which could lead to misunderstandings. Com. Harris stated she did not believe the EIR would be approved wi th no amendments. She does not believe the EIR has to be recirculated, but it will restate items discussed as part of the public process. She stated Com. Roberts' concern is representative of a segment of the community and it is valid. She spoke in support of alternative 2 being revised, but not to the extent of re-issuing the EIR. Chr. Mahoney stated he does not believe that the same degree of study should be done for the revision of alternative 2 as was done for the other alternatives. Com. Roberts stated that the diocese proposal is another alternative and needs to be integrated. He suggested looking at alternative 2 (revised) in the same context as the diocese proposal. Com. Harris stated she would like a textual analysis comparison as to how the new alternative would mitigate the impacts. Ms. Wordell pointed out that the diocese proposal of 178 units is still in an ad-hoc status and not included in any of the analysis. Mr. Cowan stated he will work with the consultants regarding views from higher densities. Com. Roberts asked why the slope above the Cristo Rey parcel toward the seminary parcel is not identified as visually sensitive? Mr. Wolfe stated they looked at the general plan map which identified visually sensitive areas and they added a few more. He stated this area was not identified. Ms. Wordell stated when they did the sensitive visual analysis for the general plan, the conclusion was that all the area is sensitive and they identified the most sensitive areas. Com. Harris suggested a statement noting that this area is also visually sensitive and should be discussed in the chart outlining mitigations. Regarding the workshop with Scott Futryk, Mr. Wolfe stated Mr. Futryk will prepare a brief written report of all the issues reviewed in the workshop to send onto the city council and include PLANNING COMMISSION MINUTES December 6, 1994 Page 8 responses to the comments. Com. Austin requested a chart describing the alternatives on the two separate pieces of property. Com. Harris asked if the planning commission should request an alternative describing the l78 units, similar to the request of revised alternative 2? Mr. Cowan stated the question is, is this a serious consideration for planning commission? He noted as the commission gets further into this process, they may want to develop their own alternative and have that assessed. Com. Roberts stated this presentation underestimates the visual impacts of the alternative, and this was part of the reason for the workshop. He believes in order to get a more realistic impression of what one will perceive, Mr. Futryk had stated the photos would need to be enlarged and presented in a different format. Ms. Wordell stated larger scale photos would be more helpful to commissioners and if directed by the commission staff will select a few critical views and present the larger scale. Com. Doyle stated the conclusion was to 1 imi t the number of alternatives and then present the larger scale views. After discussing the views, it was a consensus of the commission to request one set of 6 views of alternative 5 excluding view 5. Com. Doyle stated at some point the commission should consider visual impacts at ground and aerial levels. VEGETATION AND WILDLIFE Mr. Hopkins, H. T. Harvey & Associates stated he is present to answer questions of the commission regarding his report. He gave a brief update on the issue of the red legged frog noting that in April an adult male frog was discovered on the Cristo Rey parcel and since that time there has been discovery of some juvenile and adult frogs in Permanente Creek near the quarry facility. He stated most of the upper regions of the creeks in the Santa Cruz and Mount Hamilton mountain range do support the red legged frog. He stated they are not uncommon in the Santa Clara Valley in the upper regions of the creeks. He stated the issue is how relevant is the discovery of the frog on the diocese property to the proposed development. He noted Dr. Mark Jennings did visit the site and reviewed all the available information. He noted the frog on the project site is a remnant population of frogs that probably PLANNING COMMISSION MINUTES December 6, 1994 Page 9 was originally colonized by frogs in stevens Creek. He explained how the frog came to be in this location and noted it is an isolated population. Mr. Hopkins stated Dr. Jennings reviewed the possibility of the frog population in Permanente Creek acting as a colonizing source to the frog discovered on the Cristo Rey property. He indicated, while the distance between the closest portion of Permanente Creek to the seep is certainly within the range that frogs have disbursed, but given the site conditions, it seems unreasonable to think that a frog would disburse from Permanente Creek to the seep. He stated Dr. Jennings conclusion, after reviewing the site, is that he does not think it is reasonable to think the frog moved from one site to another. Mr. Hopkins reviewed the hydrology issue and noted a report was written up by Mr. Kurt Wheeler and his conclusion was that there would be some significant effect, but this could be controlled through the development of a flood control detention basin, as explained in his report. Com. Harris questioned the lease law issue and Ms. Wordell stated this is a citywide ordinance. Com. Harris also asked about the affect on the frog from horses, chickens etc? Mr. Hopkins stated that cattle grazing does affect the seep area and once cattle is removed the seep would improve. He stated human intrusion is always a problem. Mr. Hopkins explained the Fish and Wildlife Department's comments regarding cattle grazing and the affect on the frog. He noted continued cattle grazing could be a violation of the endangered species act if the frog is listed as endangered. Mr. Hopkins explained the potential of local extinction of the red legged frog taking into consideration cattle grazing on this property and also taking into consideration the small population of frogs in the area. He noted any impacts on the endangered species requires consultation with the Fish and wildlife Department. In this case, the red legged frog is widely spread and does not believe that small populations such as this will cause great concern. He added if the Fish and wildlife Department feel there are appropriate mitigations in place they are likely to a render no jeopardy opinion. Com. Austin questioned the leash law and the detention basin? Mr. Hopkins stated the leash law is included because it was a request of the Fish and wildlife Department, who believe that cats and dogs can act as predators. Regarding the flood control detention basin, Mr. Hopkins stated Mr. Wheeler indicated that the source of water will not be affected by development. He noted all PLANNING COMMISSION MINUTES December 6, 1994 Page 10 development results in acreage of impervious surfaces which change run-off patterns. He stated Mr. Wheeler felt that the run-off patterns could have a substantial affect on the seep for several reasons, but felt this could be mitigated through the introduction of an appropriately placed flood control detention basin that would minimize any significant effects of run-off. Mr. Hopkins explained his understanding of how a detention basin works, noting they are designed for storm events and hold water for 24 hours, and then it is released in a controlled way. Com. Doyle questioned the legal status regarding a habitat conservation plan? Mr. Hopkins stated it can be designed in such a way that consultation may not be required by the Fish and wildlife Department and some of this can only be determined when the project plans are presented. He noted the frog is not listed at this time and the Fish and wildlife Department will only give general guidance. He noted, at this point, their conclusion is that the detention basin proposed would mitigate the impact for alternative 5. Mr. Hopkins explained the Fish and wildlife Department's invol vement in a project and explained reasons why a project applicant would consult the Fish and Wildlife Department. He also explained the mitigation requirements and the legal aspects. He also explained the function of the culvert. city Planner Wordell presented a map based on a report from Barry Koates, Arborist, noting the report is several years old. The map outlined the trees proposed to be removed and those to be protected. The commissioners requested a copy of the map presented by Ms. Wordell. Ms. Wordell noted there may be some changes to the map. Mr. Hopkins noted that any kind of development on this property will result in tree loss. He stated replacing non-native trees with native trees and enhancing the existing trees is more appropriate. He noted any native trees removed should be replaced at a 5:l ratio. In addition, a tree restoration plan should be part of the EIR which addresses replaced acreage as well as trees. In response to Com. Roberts' question regarding transferring some large trees on the property, Mr. Hopkins stated this is a very expensive process and unless they are heritage trees there is rarely a value to transferring the trees. Com. Roberts questioned the location of the detention basin and the issue of preserving trees? PLANNING COMMISSION MINUTES December 6, 1994 Page 11 Mr. Hopkins stated in the information provided to him, only 5 non- native trees would be lost in the actual center of the basin. He stated there are a number of native and non-native trees along the perimeter of the basin, but does not know how these will be affected at this time. He stated that assuming grading occurs, a minimum of one and a half times the drip-line of the tree, there would be no significant affect. If any closer there would be a significant affect. The hearing was opened for public comment. Ms. Debra Jamison, 21346 Rumford Dr., representing OAKS, stated what is seen from a car from I-280 at 50 mph is not a high priority, but more importantly is what can be seen from the park lands. Ms. Jamison addressed how the frogs got into this area if the seep did not exist as suitable habitat prior to the culvert. She agrees that no development and continued grazing the frog may become extinct, but if no grazing or development occurred the population of the frogs may grow. . She asked how the detention basin extracts the pollutants and to what extent? She addressed the drainage corridors to the seep, which are labeled in exhibit 0 as north and south. She addressed the setbacks and noted there is a discrepancy in the report with regards to the southern corridor. She stated the corridor were the frog is should have a wider setback. Ms. Jamison addressed the impact of domesticated cats on song birds and does not believe that a lease law is sufficient mitigation. She noted the frog is a creature that the community should adopt and enhance the habitat. Ms. Jamison stated she will write a letter to the commission outlining her concerns. Mr. Mike Bruner, Sobrato Development, stated with regards to the visual analysis and the clustering of units on alternative 2, this is a complex issue which grounds itself in many of the laws that relate to reasonable use of the property and takings issues. He does not believe a lot of time should be spent on this issue. He noted no matter what they do on the property there will be no public trails or access proposed. He stated they are proposing to dedicate as much as 65% of the property to the public. with regards to wildlife, Mr. Bruner stated the location of the detention basin on the seminary property was identified because it is the lowest area on the property and the last area on the property before the creek. He stated that the non-point source pollution probably cannot be mitigated lOO%, but noted the pollution coming off I-280 on a daily basis is probably going to be as significant as any proposed development. Chr. Mahoney addressed the discussion earlier regarding a revision to alternative 2. Ms. Wordell stated the city will work with the applicant. PLANNING COMMISSION MINUTES December 6, 1994 Page 12 Mr. Bruner stated they would probably have to utilize more of the land if they are required to have a maximum of 36 units because of the lot size. with regards to alternative 2, Mr. Bruner stated this was drawn up by a consultant with little information from the developer. Mr. Mike Westphal, 1500 Cloverdale Road, Pescadero, stated he is representing coyote Creek and noted that the most pertinent comments regarding the frog are not accompanied by any supporting evidence. He noted on his sightings of frogs, they can be found one quarter to one half mile from any water. He stated CEQA requires the disclosure of available information and the information should be available before the EIR is certified. He pointed out that he was not notified about the report prepared by Dr. Jennings as stated in the report and would like his name stricken. He presented aerial photos showing the distance between a creek and seep and what is between, and noted frogs can travel. He stated he does not believe that the frogs found on the Cristo Rey parcel is an isolated population, but part of the larger population in Permanente Creek and any development will isolate the frogs and drive it to extinction. Mr. Hopkins stated Mr. Westphal contacted Dr. Jennings and discussed this issue. He noted their conversation did form the basis of some of the conclusions. Ms. Mavis smith, 22734 Majestic Oak Way, stated she is a docent at Deer Hollow Farm and is concerned about the experience of the young people coming to Deer Hollow Farm for environmental education and what they travel through. She stated if the general plan is amended and development occurs, their environmental education will be sadly impacted. She stated the city should preserve as much open land as possible. She also expressed concern about the pesticides accumulating in the detention basin. Ms. smith addressed the red legged frog and expressed concern about their extinction. She then read a poem. Ms. Beez Jones, 10398 Heney Creek Pl., stated the general plan should be amended to allow the diocese to develop their property and provide the open space which will be available to the public. She noted some of her neighbors agree with her. Mr. Del Woods, 330 Distel Circle, Los Altos, stated he is a senior planner with Mid-Peninsula Open Space District. He addressed the supplemental visual analysis report presented by Mid-Pen. He addressed distant views and the visual impacts of the water tank from the trails. He also commented on the viewpoints as outlined in their initial letter and addressed the loss of continuous open space. He believes it would be a mistake to go on with the process PLANNING COMMISSION MINUTES December 6, 1994 Page 13 and not consider significant impacts as a trail user views this project. he also drew attention to the visual impact from the Open Space District's perspective if development is permitted on the portion of the Cristo Rey Parcel that is adjacent to the Maryknoll property. Com. Roberts stated they should upgrade the importance of visual impacts of development on the Cristo Rey parcel between Cristo Rey Drive and Maryknoll, as he addressed earlier. Rev. Ward McCabe, st. Judes Episcopal Church, stated the focus of the city and speakers has become so narrowed down that it changes the definitions of visibility and the environment to a very serious degree. He noted churches are very involved in the community and noted the equity in this property is the equity of several hundred thousand people who have built up this equity over a long period of time. He spoke in favor of protecting the environment, but believes there is a great danger that with so many details they lose site of the long range purpose of the total environment of the city. In response to Com. Harris' question, regarding Mr. westphal's comments about the report not being valid, city Attorney Kilian stated that Mr. Westphal stated the report was inadequate because it did not cite necessary information, but noted this is for the commission to decide. He stated it is not required that all information have a secondary citation. He noted if secondary citations would be helpful or relevant to the commission in making a decision they can be required. Mr. Hopkins stated the citations are from Dr. Jennings own work. He noted it is Dr. Jennings' professional opinion, based on his own research, that it is highly unlikely that the source population of the frog came from Permanente Creek, that it historically came from stevens Creek and that the connection is now cut off due to urbani zation. He noted they did a survey of red legged frogs during the breeding season in the pond on the seminary site and did not find any frogs. He pointed out that the contact person for lJSFW services on the red legged frog issues, generally agreed with the mitigation package proposed. PARKS AND OPEN SPACE Mr. Steve Dowling, Director of Parks and Recreation, noted the parks and recreation commission were asked to deal with neighborhood parks and open space. Mr. Dowling reviewed Cupertino's park plan and the commission's recommendations as outlined in the report. He stated there is a statement in the general plan indicating if the Diocese property is developed they PLANNING COMMISSION MINUTES December 6, 1994 Page l4 will re-evaluate the parks in this area. He stated that even if an amendment was allowed for maximum development of this property it would only generate a park need for the new residents of 2.3 acres. He noted there is a policy that parks should be a minimum of 3 l/2 acres. He added the commission's conclusion was, that based upon the development of the diocese property alone, a neighborhood park is not warranted unless it can serve the existing residents. The commission's position on the offer of open space by the developer is that a neighborhood park should only occur in conjunction with the open space. The commission felt that park dedication funds should not be expended to acquire additional land to develop a park of less than 3 l/2 acres. In response to Com. Harris' question regarding funds for a park, Mr. Dowling stated the commission did not state that they shouldn't use park dedication funds for development, only acquisition. Mr. Dowling went on to discuss the open space issue. He noted the parks and recreation commission were asked to review the developer's proposal from the aspect of open space. He stated the commission's first determination was that the developer's proposal to dedicate 138+ acres of open space did warrant consideration of a general plan amendment. The commission's second determination was that any open space should be held in public as opposed to private ownership. This will facilitate and allow public access and ensure future utilization of these areas. Mr. Dowling reviewed the parks and recreation commission's priority list of the five significant open space areas as outlined in the report. Regarding area B, Mr. Dowling stated if there is no public access or utilization it should remain in private ownership, but can be looked at further. He also noted if there are any historical markers in area D, they would be seen from a trail only. Com. Harris stated in the Regnart Canyon area there is an area designated private open space, she asked if this area was developed and kept in private ownership would B and parts of C be the same designation as Regnart Canyon. Ms. Wordell stated this is what staff would expect. She noted zoning would have to be changed to develop the private open space. Com. Roberts stated all this is contingent upon the applicant making a good faith offer and some public entity reaching accommodation with the applicant. He stated it is not clear to him what kind of decisions the commission can make contingent upon all the possibilities. city Attorney Kilian stated based upon the early indications of the applicant, the commission can make plans regarding the open space PLANNING COMMISSION MINUTES December 6, 1994 Page 15 dedication. He stated the purpose of this hearing is to inform the commission what staff and the parks and recreation commission feels is best for the city. He noted it would be incumbent upon the applicant to make a presentation regarding the dedication of open space before a general plan amendment is considered. Chr. Mahoney opened the hearing for public input. Ms. Dobbie Roisen, 514 Inverness Way, Sunnyvale, commented on the house size proposed. She addressed the trail system noting some of the sections are unsafe. She noted she would like to have trail access from Cupertino to Sand Hill Rd. Mr. Robert stutz, 25310 Elana Rd., Los Altos Hills, passed out pathway maps to the commission and reviewed this. with regards to exposure of residents to public paths, Mr. stutz stated there are many paths adjacent to homes and there have been no problems. He stated he talked to the Sheriff who indicated that the paths themselves constitute no problems. He added the commission should keep the path in mind when considering any risk addressed by the developer. Ms. Diane Haze, San Juan Road, stated she supports the Diocese's housing plan and the open space propo~ed. She spoke in support of a general plan amendment. WATER TANK Mr. Don Skinner presented photographs to the commission showing water tanks in other cities. He noted there are a number of tools which can be used to screen the tank, but noted it would still be visually significant. He noted the specific selection of trees and screening would depend of the location of the tank. Mr. Skinner noted the applicant has suggested that a slight change in the location of the tank may be possible in order to provide better screening. Mr. Mike Bruner, Sobrato Development, presented a drawing outlining the new location of the proposed tank. He stated if there is no general plan change, the diocese position's would be that a 1 million gallon tank is appropriate and would work with public works to try and find a way to accommodate the 2 million tank. He would hope that the city would take the lead with the county. He stated if there is a general plan change he believes the county would allow the new location of the tank, as they will own the property surrounding the tank. Com. Doyle stated that the opportunity for mitigating the tank would come at a later time. PLANNING COMMISSION MINUTES December 6, 1994 Page 16 Mr. Bruner stated they have to study the impacts on the trees. PRECEDENCE City Planner Wordell stated if the planning commission wish to address the issue of precedence they could do so in findings for a general plan amendment. She added the findings may be related to any unique aspects of the property, as outlined in the staff report. Com. Roberts stated when addressing this issue they should look at the areas within the urban service area and their characteristics. City Attorney Kilian stated "precedence" is not a legal term that is used in land use planning. He noted it is a policy that the city try to treat similar properties alike, but courts realize at the general plan level sometimes arbitrary lines have to be drawn because each property is different. He noted the courts demand reasonable use of one's property. Com. Harris addressed the possibility of a general plan land use designation created for this property, as written in the staff report. Ms. Wordell stated an example of this would be that the commission would not go with an existing designation. Chr. Mahoney opened the hearing for public input. Ms. Patricia Wood, l0656 Amulet Pl., Director/Treasure, Committee for Green Foothills, noted since funding is not available for the property to remain all open space, the committee has concentrated on reviewing the DEIR, the recent land use plans proposed by the diocese, and the possibility of a general plan amendment. She noted the position of the Committee for Green Foothills is as follows: 1. open space - a minimum of 65% of the land must be dedicated as contiguous open space. 2. Development envelopes there are reservations regarding development envelopes adjacent to Maryknoll. Development of this area may facilitate future development of the Maryknoll acres. If this envelope is developed it should be made clear that this does not give license to develop Maryknoll. 3. Housing density - consideration should be given to reducing the number of units proposed, still maintaining the financial needs of the diocese and still maintaining the minimum 65% contiguous public open space. 4. Should the commission choose to recommend a general plan PLANNING COMMISSION MINUTES December 6, 1994 Page l7 amendment, the findings should be unique to this site only, so as not to set a precedence. Ms. Wood stated she will provide a written statement. Mr. Melvin Caldwell, 10300 E. Estates Dr., pointed out that the diocese property is private land and not currently open to the public. He pointed out that current actions at the federal level tend to support the diocese's and their position on this property. He addressed an article in the San Jose Mercury News regarding a bill that was introduced early this year with regards to restoring private property rights. He stated this bill will be brought up again and voted on in 1995. He stated this bill will mandate that just compensation be paid when government action reduces private property values. He stated this bill recognizes that federal actions routinely cause substantial decreases in property values. He stated these same rules will apply at the local level. He addressed an article in the San Jose Mercury News written by former city Councilmember Nick Sazbo. Mr. steven Haze, San Juan Road, provided documentation regarding general plan policy 2-43 and Southern California's Heritage Trail Fund. He stated he is speaking on behalf of the Los Altos Hills Horsemans Association (LAHA). He reviewed other committees that he is involved in. Mr. Haze reviewed LAHA's organization and noted they recommend that the EIR be certified and also believes that the planning commission should recommend at some future time, that the general plan be amended. He noted LARA based their recommendations on the following findings: 1. The current general plan does not allow access to open space for the general communities benefit. 2. Under the current general plan, all lands, whether residential in use, retained as 90% open space would only be so under private ownership. 3. Policy 2-43 states "reserving 90% of land in private open space". lJnder private ownership there will always be the threat of future development. He stated a general plan amendment will result in the following: l. Preservation within the public domain of approximately 138 acres, 65% as open space on a permanent open space. On the Cristo Rey parcel 83% would be retained as open space. 2. A comprehensive trail system can be developed linking the historic De Anza National Trail Recreational Route and the proposed Stevens Creek trail. He addressed a supreme court decision which has weakened the ability for a municipality to require pubic access as a condition PLANNING COMMISSION MINUTES December 6, 1994 Page 18 of approval to develop. He noted LAHA believes that there is a substantial benefit to this community and surrounding communities if the general plan is amended. In response to Com. Roberts' question regarding comments made from Ms. Wood, Mr. Haze stated personally he believes there should be upper and lower limits at the general plan level. The upper limit being the maximum number of units which may be developed and also includes the size of development envelopes. At the lower level is a minimum of 65% open space dedicated to the public. He noted he looks at economic viability as being a variable to this. Mr. Mike Bruner stated no trail easements to the public would be dedicated on privately owned open space under any proposal. It is the diocese intention to dedicate land to the public so that the public can have ownership and access. He stated he does not feel it is appropriate that the diocese placed in a position were they have to be involved in determining whether there should be public access on the lands they are dedicating. Mr. Bruner presented a map outlining the significant open space areas and briefly reviewed the project information handout presented. city Attorney Kilian stated at this point the tentative decision with respect to st. Joseph's Ave. has been decided by the superior Court and the result is that st. Joseph's Ave. will be opened. He stated, at this point, the city should assume that the road will be opened in the future. He will address, at the next meeting, to what degree this will impact the EIR and what steps, if any, will be necessary to consider that alternative. He noted he will also talk to the applicant. Ms. Wordell briefly reviewed the topics to be discussed at the next meeting. It was a consensus of the commission to continue this discussion to January 11, 1994. In response to Com. Austin's questions regarding Kendal Blau' s comments about noise receptors, Ms. Wordell stated the comment from Ms. B1au was that the Kaiser Cement plant was not operating when the noise measurements were taken and she would like staff to look into this. Ms. Blau also believes that there should be a noise receptor in the knoll area. Ms. Wordell stated the consultants responded to this and indicated that the cement plant, because of distance, would not have a significant impact. It was a consensus of the commission to discuss this at the next meeting regarding the diocese property.