Wesport Project HAA Compliance Letter (002) Cupertino for AllMay 12, 2020
Cupertino Planning Commission
10300 Torre Ave, Cupertino
Cupertino, CA 95014
For public comment: Item 2, Westport/The Oaks
To the Cupertino Planning Commission and city staff:
The Westport proposal before you today represents an important opportunity for Cupertino to provide
much-needed housing for our community—especially below market rate and senior housing. While we remain
disappointed that a project at this site could better serve the community given its prominent location at the western
gateway to the Heart of the City, and proximity to De Anza College, Memorial Park, and the Senior Center, we
understand the project applicant’s desire to avoid a General Plan amendment that would otherwise facilitate an
even better use of this space.
As you review the project today, we encourage you to be mindful of current developments in the direction of the
law with respect to the Housing Accountability Act (“HAA”) and the Density Bonus Law (“DBL”). To that end,
we draw your attention to the recent Santa Clara County Superior Court ruling in 40 Main Street Offices LLC v.
City of Los Altos, et al., Case No. 19CB349845, which we have attached herewith for your reference. We note that
this case—as a trial-level decision—does not constitute binding authority. However, it is exhaustive in its review
of both the facts and the law and represents the most thorough local judicial treatment of these to laws to date. As
such, we expect it to be highly persuasive with the bench of the Superior Court in Santa Clara County and very
likely to inform the reasoning of its judges.
We also ask that you, with the assistance of the city attorney’s office, be mindful of how subdivision (f)(4) of the
HAA (codified at section 65589.5 of the Government Code) applies to the project applications before you. That
subdivision reads:
For purposes of this section, a housing development project or emergency shelter shall be deemed consistent,
compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other
similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing
development project or emergency shelter is consistent, compliant, or in conformity. Cal. Gov’t Code §
65589.5(f)(4).
The above subdivision thus fulfills a sorting function to ensure that if substantial evidence—and not some other
higher evidentiary standard or discretionary preference—exists in support of a project’s conformity with relevant
planning standards and policies, that the HAA would mandate a finding of consistency with such standards and
policies.
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Given the city’s current financial strain amid the coronavirus pandemic, we strongly urge you to avoid
recommending any findings of fact or interpretive conclusions that would tend to increase the city’s legal
exposure under either the HAA or the DBL. Should the city’s ultimate decision on this set of applications result in
litigation, it would not only needlessly damage the city’s treasury in a time of crisis, but cement the city’s already
unfortunate image as opposing housing production.
On behalf of Cupertino for All and its membership,
Neil Park-McClintick
Chair, CFA
J.R. Fruen
Chair, CFA Housing Policy Committee
Attachment: Copy of Superior Court of the State of California, County of Santa Clara Order dated April 24, 2020
disposing of 40 Main Street Offices LLC v. City of Los Altos, et al., Case No. 19CB349845.
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