PC 04-12-05
CITY OFCUPERTINO
10300 Torre A venue
Cupertino, CA 95014
6:45 P.M.
CITY OF CUPERTINO PLANNING COMMISSION
AMENDED MINUTES
April 12, 2005
CITY HALL COUNCIL CHAMBERS
TUESDAY
The Planning Commission meeting of April 12,2005 was called to order at 6:45 p.m. in City
Council Chambers, 10350 Torre Avenue, Cupertino, California, by Chairperson Gilbert Wong.
SALUTE TO THE FLAG
ROLL CALL
Commissioners present:
Chairperson:
Vice Chairperson:
Commissioner:
Commissioner:
Gilbert Wong
Marty Miller
Angela Chen
TaghiSaadati
Commissioners absent: Commissioner: Com. Giefer
Staff present:
Community Development Director:
City Planner:
Senior Planner:
Associate Planner
Assistant City Attorney:
Steve Piasecki
Ciddy Wordell
Peter Gilli
Gary Chao
Eileen Murray
APPROVAL OF MINUTES:
Minutes of the March 22, Planning Commission meeting:
Com. Saadati requested the following changes:
· Page 20, line 7: Change "Stevens Creek" to read "railroad track": and delete second bullet
marking at the beginning of line 9.
Chair Wong:
· Page 7: Verify that Chair Wong seconded the motion.
· Page 15: "Chair Wong: line 2: Change "High School" to read "Road"
Line 2: Insert "elementary" in front of "school".
Motion:
Moved by Com. Saadati, second by Vice Chair Miller, to approve the
March 22, 2205 Planning Commission minutes as amended.
(Vote: 3-0-1; Com. Chen abstain; Com. Giefer absent)
WRITTEN COMMUNICATIONS: Letters received relative to items on the agenda from the
Fremont Union High School District and Cupertino Union School District; e-mail from F.
Winslow and items regarding agenda Item I.
POSTPONEMENTSIREMOV AL FROM CALENDAR: None
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April 12, 2005
ORAL COMMUNICATIONS:
Dennis Whitaker, resident:
· Expressed appreciation to Mr. Gilli for his professionalism, hard work and cooperation in
working with the residents during his tenure with the city.
Deborah Hill, resident:
· Expressed concern about drivers' excessive speed and not stopping for people walking across
the streets; excessive speed at various intersections and streets; and also about the lack of
concern for bicycle riders.
Mr. Piasecki:
· Said that Ms. Hill's concerns would be referred to Public Works staff.
CONSENT CALENDAR: None
OTHER: The Planning Commissioners, Mr. Piasecki and Ms. Wordell acknowledged and
complimented Senior Planner Peter Gilli who will be leaving the planning department for employ
with the City of Mountain View.
PUBLIC HEARING
1.
M-2005-11
Tom Sloan (Wolf
CameraIWildflower
Condominiums)
1375 DeAnza Blvd.
Modification to delete a condition of approval that requires
providing additional parking stalls on the adjacent property
for use permit U-2003-03 (construction of six condominiums
and the addition of 1,825 square feet to an existing retail
building) Planning Commission decision final unless appealed
Gary Chao, Associate Planner:
· Reviewed the application for modification to delete a condition of approval as part of the use
permit, requiring additional parking stalls on the adjacent property as outlined in the staff
report.
· Since the concerns on the parking rights and the parking issues still exist and the parking
easement language has not been clarified, staff recommends that the Planning Commission
modify the condition to require the applicant to obtain a written confirmation from the
Yamagami trust (Trust) and said that they have no objections to the project as planned,
specifically relating to the issue of incidental parking privileges. The applicant would still
have to work out the parking concerns with the adjacent property owner in addition to
clarifying the parking easement language.
· In general, the city does not get involved in making decisions on private matters such as this.
· Alternatively, the applicant was presented the option to have the court system clarify and make
determination on what the parking easement means between the two properties, and the city
will follow the determination of the court.
Chair Wong:
· Asked staff to clarify the role of the Planning Commission regarding the application, and the
parameters and what we can look at; and also what are the parameters of the applicant and the
other party, and what are their parameters when they come to speak in front of us tonight.
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Apri//2,2005
Eileen Murray, Assistant City Attorney:
· Said that the staff recommendation for modification would allow the project to move forward,
but won't settle the issue with the easement.
· When the Wolf Camera property was purchased, the easement was required by the city for
ingress and egress. When the easement was drafted the parties included the words "and
parking". This was not a requirement of the city and staff does not know what their agreement
was; because it was between the parties.
· In our attempt to move the project forward we can ignore that; it will come up again; it may
come up in a lawsuit between the parties; but this will not settle that issue. This is something
the city cannot determine for the parties; they have the power here. We do not have the power.
What did they mean when they said "and parking" and each party has their own opinion of
what they meant. When this came up in 2003, I brought this up because I thought they should
go away, determine that and come back to us with an agreement between them, their amended
easement that defined what "and parking" meant. At that time they seemed to reach an
agreement of how they would ignore that and settle the parking issue; and that was the
condition that eventually came out in this project.
· Unfortunately when you create a condition that requires one property to do something on
another property owner's property, you can never enforce that; it is between the property
owners, and consequently we have tied Mr. Bunker's hands here with the condition, but we
thought the Yamagamis were in agreement at the time because they appeared here and they did
not object to the project.
· At this point this modification of the condition would allow the project to go forward. It will
not clarify that easement and it will return to us again. Your decision here can move the
project forward, but it will not clarify the parking issue; what that two words "and parking"
meant when they drafted that agreement.
· Mr. Bunker has indemnified the city regarding any lawsuits, so there is a certain amount of
protection for the city that way; but it would be a good time to resolve the easement issue;
send it back to the parties and have them agree on what that means and it would go away.
· You cannot make a decision about what that means and how you are going to make decisions
about the parking, because we don't know what it means; if there is an issue about the parking,
you are not in a position to clarify that; the parties have to clarify it.
· The easement does have to be clarified in a court of law or by the parties, not by the Planning
Commission.
Com. Saadati:
· Previously we required 20 parking stalls; this was in addition to what the study showed what
the needed parking was to serve the center; based on the original study the parking situation
should be acceptable serving the needs of all the people or just the proposed project.
Mr. Chao:
· Yes, in addition to the 34 stalls that the applicant is proposing on the site.
· The parking analysis reviewed and presented at the time studied the project on its own and it
was determined that it functions by itself; the 34 stalls will be sufficient to facilitate the project
on its own; not including the potential impact from the Yamagami site.
Vice Chair Miller:
· I am not clear, when you said we could move the project forward, do you mean we could vote
to remove the condition? Is that what you are suggesting?
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April l2, 2005
Ms. Murray:
· No, I am suggesting that the modification will move the project forward, if the Yamagamis
agree that they have no objection to the project which I believe is the wording in the
modification suggested by staff; that would move the project forward.
Vice Chair Miller:
· The Trust has not agreed to that at this point; why would they do that with the change in
wording?
Ms. Murray:
· I don't know why they would or would not; I am not clear on what they do want.
· Said if the condition was removed, the city would be at risk from a lawsuit from the Trust.
Chris Bjorn, Attorney for Gregg Bunker, applicant:
· Said that staff has identified the issue; it is a private dispute between two private adjoining
land owners: and while it is a noble idea to try to include a condition to allow those two
adjoining land owners to work out a dispute between them, unfortunately in this instance it has
exacerbated, hampered and delayed the process.
· The key issues heard today are: (I) It is a private dispute between landowners; (2) The parking
as designed for Mr. Bunker's project is acceptable to the city; (3) The city through its
conditions to Mr. Bunker's project cannot clarify any ambiguities that exist between these
parties and their private easement agreement; (4) The city does not get in the business of
resolving private landowner disputes. There is only one way that you can really move this
process forward today. If you were to still require Mr. Bunker to obtain the approval of his
adjoining landowner to his project, this project does not move forward. It is essentially
placing a burden on Mr. Bunker to file a lawsuit and move forward, even though there is no
requirement by your zoning ordinances that you have a condition that Mr. Bunker obtain his
adjoining landowners consent. There is only one way to move this forward today and that is to
remove the condition and allow these two private parties to take whatever next steps they may
take to resolve their private dispute.
· I am sure you are going to hear from the adjoining landowner and their counsel. We have
been in extensive negotiations through more than ten drafts of a private easement agreement;
unfortunately every time we go through this, there seems to be additional requirements by the
adjoining landowner, additional monies have gotten out of hand and what they are asking us to
sign now does not make any sense to Mr. Bunker any more from an economic standpoint.
· We will continue those private conversations between the private landowners after this
condition is removed; that would be in the best interest of both landowners. If that is not
possible, then one or the other will have to file in the courts, but it is not up to the Planning
Commission to require Mr. Bunker to file an action in a court order to get this moving
forward. That is essentially what a modification to this condition would require.
· Mr. Bunker would beseech the Commission to remove the condition in its entirety to extract
the Commission and the city from this private landowner dispute and allow Mr. Bunker to
proceed.
David Prince, representing Mr. Bunker:
. By way of presenting the core matters, I present an appeal to the City Council and then to a
court of final resort if necessary. This has nothing to do with easement; this is a collateral
issue and the major point that is before the Planning Commission is the satisfaction of a
condition to restripe a parking lot.
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April 12, 2005
· Presented evidence of letters sent to the attorney for the Trust, offering to stripe the parking
lot and offering to perform the work in week 2 of March in 2004; inclusion of a cashiers
check from Mr. Bunker to satisfy the striping condition.
· I wish to submit to the Commission that the course of conduct of the parties, specifically the
Trust whether intentional or unintentional, amounted to conduct in bad faith; and a refusal to.
honor Mr. Bunker's every effort to get this done reasonably. What the condition amounts to
is an illusory contract, a contract which places in one party a subjective control over the
consideration of the agreement. The Trust has full control of this; they can deny it or agree to
it based on their total subjective power over the condition.
· Mr. Bunker requests that the Planning Commission will not modify the agreement, but
remove it. My job here is to conduct a litigation if necessary; I would prefer not to do it; nor
does Mr. Bunker. I believe these parties can get through it if the condition is removed and the
project goes forward, the parties are going to resolve the easement issue; it will be done.
· If the Planning Commission removed the condition, it would satisfy the problem and untie
Mr. Bunker's hands and the issue could be resolved.
· It was Mr. Bunker's intent to avoid litigation and he has shown that by showing deference not
to do that. He wants to resolve this.
· Litigation would take a great length of time; and Mr. Bunker wants to get his project done. If
he has to go there, if the attempts to resolve the issue before the Commission amicably fails, I
think it is clear that is the direction we will go. Why should everybody be forced to the
expense and hassle of a litigation?
Mr. Bunker, applicant:
· The easement was created in 1981 and the document provided a conceptual zoning plan of
Cupertino, showing my parcel, the building I am building in the rear of it and shows that the
city is interested in creating an easement.
· It states applicant shall be required to implement reciprocal ingress and egress to link
individual parcels for exhibit Al whenever it is practical and desirable.
· Since I am the only one that was present years ago when it was done, I contend that Mr. Kilian
and Planning Director Sisk told us the wording they wanted in the agreement; and we put it in
there. The timing was I had a 25 year lease, the lease spells out some things that show the
cooperation that I had with Yamagami. He indicated that at some point he might want an
easement through my leased premises before I bought it, and it would not encumber marked
parking.
· When Mr. Yamagami passed away, I had a first right of refusal in my lease, then they came to
me and wanted to sell me the property because there were several hundred thousand dollars of
debt and inheritance taxes, etc. and they didn't want to have to sell all the property so they sold
me this piece to use the funds to do that. I negotiated a purchase of the agreement subsequent
to getting building permits; as I entered the process there was another document brought
forward by the city and that was the document in which they were going to approve my
development. That document which I provide a copy of is the resolution No. 26-15 whereby
the city makes No. 18 a condition of my approval. The city reviewed the wording and
approved it. There shouldn't be any confusion now; I don't think there was any confusion
then; it was essentially two property owners doing nothing more than responding to the request
of the City of Cupertino; having requested that the next document in your packet, you will see
where I recorded the document, the Trust and myself; and subsequent to that I got my building
permits and then I closed escrow and purchased the property.
· The easement has been and always is a product of the City of Cupertino requiring it; I don't
think there is any confusion; the word "an" is not that difficult to understand; it is an easement
for ingress and egress across our properties to park on our properties. It does not mean we are
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April 12, 2005
giving rights to each other; it is simply what the city asked us to do, otherwise we wouldn't
have this in our deeds; it was based on the city attorney and the resolution; the concept plan
and that is how it came about.
o Read the agreement between he and Mr. Yamagami from 1979 to span 25 years.
Chair Wong:
o Reiterated what the city attorney specifically said regarding the ingress and egress and
parking, that we are not going to go there because the Planning Commission cannot address
that issue.
Ms. Murray:
o Said it was correct, but that she would like to hear from the Yamagamis because if they agree
with Mr. Bunker's interpretation, we are fine with it.
Mr. Bunker:
o This document is a lease that Taro and I negotiated in 1979 that would have spanned until
2005; but the key is, Taro is viewing my 26 year ground lease of the entire premises as
essentially I own the premises at that point for the distant future, and he is suggesting to me in
this agreement that at some point he might want to come to me and ask for easement over my
leased premises.
o There is a first right of refusal and that is how I bought the property; but it goes down to
second to last page, there is an amendment that we were discussing because we knew this
condition was coming; or he knew that a condition might be coming when he develops. It has
always been Taro's intent not to interfere with my parking, we had agreed to create the
accessways so that a customer could go to his property and not have to go out on DeAnza and
traverse across and then go to the other nursery, etc. That is what the nature of the ingress and
egress easements are contemplated for.
o I prefer that you remove the easement entirely to do the striping; let us negotiate; however,
having said that I think this is sending us to negotiate a piece of paper from one of us instead
of trying to convince all these tenants that we should modify the parking lot.
o I feel it is a step forward if we are not required to do the parking next door; we are only
required to go to the Trust and convince them of these documents, that they do not have
easement rights encumbering our property; we are merely two contiguous pieces of property
who had responded to the city's request 15 years ago.
o In summary, I have provided cashiers checks to do the work; I have contractors to do the work,
and feel I have met the condition and it should be removed. If the Trust is interested, there is a
cashiers check to do that striping today.
Vice Chair Miller:
o From what you read from the original agreement with Mr. Yamagami, it seems like the intent
was clear. However, I am still not clear on why the two words "and parking" were added to
each of your deeds.
Mr. Bunker:
o Since I am the only one that was there when these discussions took place, I am 100%
convinced that the author of that wording was indicating that we weren't encumbering each
other's property with "and parking", but merely traversing our property to bring our own
customers to park on our own lots.
o The author of the wording was the City of Cupertino. We did not envision wanting to put this
easement in; the city required it. It was a conceptual thing you were doing to property owners;
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April 12, 2005
it was your concept, your wording; your city attorney reviewed it. At the end of the day, that
transaction needed to close; they needed their money and I wanted to bui ld.
o The exact wording as I presented to you at the previous approval, is in their deeds. I have
three easements over their property; an easement with this identical wording, ingress and
egress and parking purposes; an easement recorded for ingress and egress; and an easement for
the landscaping that the building department required.
Ms. Murray:
. Clarified that the city attorney's office does not draft legal documents for private citizens; we
did have a condition that required an ingress/egress easement; but we do not draft those
easements, and as long as what they do draft meets our criteria, it is approved. If they put in
other agreements between the two parties, we don't make any judgment on that as long as the
ingress/egress easement is in the document, we would approve it.
. It is incorrect to think that the city attorney's office drafted that; I am certain that the city
attorney would not be doing private legal work for a resident.
o Said the applicant complies with the condition; the city attorney's office will review the legal
document to ensure that it complies with the condition. She said they do not review every
word of the legal document, just the portion that has to comply with the condition.
Vice Chair Miller:
o I am still unclear about the role of the Planning Commission in this particular case; what you
have suggested was that if we remove the condition, the city is subject to potential lawsuit
from Yamagami. On the other hand, if we don't remove the condition, the city is subject to a
lawsuit from Mr. Bunker.
o Either way we are entering an area that is not planning, we reviewed the project and the
project stands on its own, and the parking that the applicant is offering is part of the project
meets the requirements of the city. Why would we be going down this further route of trying
to satisfy a dispute between two landowners as opposed to just ruling on the project on its own
merits and moving on?
Ms. Murray:
o I don't believe a parking study was done on Yamagami's property; perhaps he has to have the
excess parking, we don't know that; we haven't done that study; there may have been a
condition at one time that he needed excess parking and when the property was split, they
reserved that right. If you disallow that right, you are tampering with his property rights; that
is why the city should not be in the middle of this dispute between the property owners; they
need to tell us what that means.
Vice Chair Miller:
o Either way we are in the middle of a dispute; according to Mr. Bunker his intent was clear and
he read something from Taro Yamagami, the original signer of the document; it seemed like
his intent was clear as well; and the parking was not the issue.
Ms. Murray:
o That was a lease before he purchased the property; and it may be true, we do not know that
and we are not allowed to make that judgment.
Mr. Piasecki:
o The Planning Commission and the city are not the adjudicators of this possible dispute
between two separate property owners; one is claiming they have rights and that if you move
ahead with this permit, you may infringe on those rights. Staff is saying to go ahead and get
Cupertino Planning Commission
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April ] 2, 2005
the clearance that you have no concern about moving ahead with the project relative to the
issue of parking.
o Mr. Bunker can sue if he wants; the city attorney is advising, that since we have been on
notice, we should not get in the middle of the dispute. We don't have enough facts one way or
another to adjudicate; we are not adj udicators.
Vice Chair Miller:
o If I understand correctly, the precedent here for the city is an applicant comes with an
application and an adjoining property owner suggests that there is an issue. In that case the
city has acted in the past exactly as they are acting in this particular case.
Ms. Murray:
. The issue is that once someone came up with a legal recorded document that affects the two
properties, we are not a position to determine what that document meant, unless it is clear.
This is a very vague document; we cannot decide what it means, and therefore it is between
the property owners to tell us what it means. We don't want to tell them; they have the power,
not us.
Vice Chair Miller:
o What I am asking is that the position the city is taking, that legal staff is taking, there IS
precedent for that position and past actions.
Ms. Murray:
o Yes there is precedent; any easement across your property is a property right belonging to the
person holding the easement; we would not allow you to build a building there or do anything
that would affect the other party's property right.
Chair Wong opened the public hearing.
Tom Sloan, Project Architect:
o In the original presentation, I was here as a presenter, when things began to unfold. At this
point, this is going beyond planning issues and we are now into legal and land use issues
which as an architect I am not going to endeavor into.
o I do want to be here to support Mr. Bunker in the frustrating process he went through.
o I have watched from the sidelines as he got close, then it is gone and they are back negotiating.
o When asked what I would do, I said it sounds like they are drawing out the project and it
seems to be extortion.
John Golden, Attorney for Trustee of the Yamagami Trust:
o The Trust and its tenants are opposed to the removal of the condition; staff said it was a matter
of Mr. Bunker's project interfering with legal property rights that other people own, and
requiring him to provide on our property.
o The reason that was done was to avoid the displacements of limiting the parking that has been
enjoyed historically by the Trust and its tenants and its customers since Mr. Bunker built his
property.
o It is ironic that Mr. Bunker believes the deed says parking means a parking easement on the
Yamagami property, when he is interpreting his easement, but it does not mean a parking
easement on Mr. Bunker's property even though the words are a sentence apart.
oWe have been accused of extortion and of bad faith. I need to point out I researched the
history of negotiations of this and for the first full year after the Planning Commission
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April 12, 2005
approved the condition, Mr. Bunker refused to acknowledge that we had any easements in
regards to parking.
o Clarified the creation of the easement. The easement language was drafted by attorney
Thomas Hansen, the attorney for the estate of Taro Yamagami, and he told me about a year
ago, that he drafted that in conjunction with Mr. Bunker because they were negotiating parking
easements across both properties. This is an issue for the courts, but there has been many mis-
statements here tonight and he wants to set the record clear.
o The other point is Mr. Bunker has read from a lease from Taro Yamagami. Mr. Bunker did
not purchase the property from Taro Yamagami; he bought it from Mr. Yamagami's estate; he
made a separate legal contract with another person and whatever Mr. Bunker had in his lease
has nothing to do with what happened now. He negotiated a new agreement with new people
and that is what the deed results in.
o The other major point is last week we had an agreement with Mr. Bunker; we have negotiated
extremely hard; frequently we thought we had an agreement, when another attorney would call
up with a new agreement with new changes, new questions and Mr. Bunker was telling
everyone we had an agreement when his attorneys and I knew we didn't.
o Summarized that this is about taking away the Yamagami Trust and its tenants' right to park
on Mr. Bunker's property. He have negotiated an agreement that will now clarify the
easement and remove all the problems that are there and deal with all these issues. All we
want to do now is sign the agreement.
o At this point if the Planning Commission removes the condition, as Mr. Bunker requests, we
will have to start over again. The cost of litigation will far exceed the cost to Mr. Bunker
under the agreement already negotiated.
Vice Chair Miller:
o In July 2003 when we originally heard this application, this issue came up and I recall the
discussion was to try to satisfy both parties, and we came up with this condition as a way to do
that.
o At the hearing there was some discussion from the Yamagami side as to the size of the parking
stalls that would be striped. Nobody stood up and said they did not like the agreement and the
conditions and said they would not honor it.
o I thought we had come to a resolution among all the parties with this condition; and it is
surprising that in fact is not the case.
Mr. Golden:
. We had been clear with Mr. Bunker before that meeting that resolution of the easement issues
was part and parcel of the parking. As Mr. Prince correctly noted, the actual easement itself
was not part of your records. What was your condition, related to a parking condition and you
cannot, and we are not asked to resolve the easement issue. We have always been consistent
and we have many written communications eXplaining to Mr. Bunker that we did not believe
in selling one problem when we had this entire problem that was going to persist and continue.
o The issue of the easement was reserved for us to negotiate and not brought before the Planning
Commission at that time.
Chair Wong:
o I agree with Vice Chair Miller that we had long meetings a year ago regarding this, and there
was a concern about the parking and we thought that by adding this condition it would have
resolved the issue, and now a year later you come back again asking.
o I am disappointed and puzzled that there were additional items you were concerned about, and
didn't bring them up back then.
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April 12, 2005
Mr. Golden:
o Our other issues were not part of the parking condition. All of our issues that we were
working on in the agreement relate to the use of the property and the parking easements; there
are not other things included that do not relate to this.
. Last week we had an agreement and we have not changed our minds; we are ready to sign that
agreement as it was presented to Mr. Bunker's attorney last week.
Preston Oka, Owner/Operator of Yamagami Nursery:
o There are three sides to the story; the Yamagami Trust, their property and Mr. Bunker and his
posse and his property; but also I as a tenant of Yamagami Nursery; I lease the property, so I
am the third party here.
o I feel I have been forgotten and not been afforded my dues.
o If places for cars to rest were to be done in April, Mayor June, it would seriously affect my
business, and would affect the monies I would pay the trust for rent and the monies that I
indirectly pay the city through sales taxes.
o Last week Mr. Bunker and I met and agreed upon a date for the place for the car rests to start,
July l5,h. and for Mr. Bunker's project to be able to break ground on August I". We shook
hands and reiterated what we said and he was happy, I e-mailed Gary Chao at City Planning
and reiterated what we agreed upon; staff was happy, I relayed this to Tora and the Trust and
they seemed to be happy. I am ready to sign but now they don't want to do it.
Darrel Fazekas, English Oak Way:
o I was present at the July 2003 meeting and am anxious for the project to get off the ground. At
that meeting I recall Mr. Bunker had a striping plan, ready to restripe the Yamagami property
and add some landscaping in the front, for 10 or 20 new cars which restriping could
accomplish. Two years have passed without those 10 or 20 parking spaces and the extra
landscaping; it appears to me that the Yamagami Trust is not acting in good faith; I think they
want to stop the project completely. They are looking out for their own interests and not the
interests of the citizens of Cupertino; certainly not for the additional housing units that could
be provided for the city; and not for the additional business that the retail remodeling would
bring.
o I agree that it is a private dispute between two owners; I urge you to remove the condition 13,
incidental parking.
o According to the staff report only 20 parking spaces are required for the new Bunker project
and yet he is providing 34 stalls, 14 excess,
o Why at the last meeting did the Planning Commission or City Council require that he have
more stalls when only 20 are required is beyond me. Mr. Prince is correct that if we wait and
litigate, and then come back to you, I think the two parties could be five years away.
o Your job is to only look at the planning issues and the question is will the project that only
requires 20 spaces be adequate with the 34 spaces.
David Gibbons, Barry Swenson Builders:
o As the builder for Mr. Bunker's project, have been anxiously awaiting the start of this project.
o Unfortunately with all the delays that have occurred, Mr. Bunker's costs have escalated
dramatically.
o When we first looked at striping the parking lot, it was about $15,000 worth of work; he asked
us to send a letter to the Trust indicating we were ready to do the work; and as I understand it,
the cost that the Trust is looking for from him exceeds $100,000.
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Apri//2,2005
o It is unfair to put Mr. Bunker in a situation where he has no ability to negotiate this with a
party that has no motivation to solve the problem. If they wanted 20 parking stalls, they could
have had them over a year ago.
o You have the power to end this and let Mr. Bunker's project move forward by removing the
condition, and I urge that to happen.
Mr. Chao:
o Said that the application was in the plan check stage.
o He said the applicant still had some items to address and get back to the building department
regarding plan check comments.
Tom Jakaby, Project structural engineer:
. Said he would like to see the project move forward.
. Is available to answer questions.
Dennis Whitaker, La Roda Ct.:
o Reiterated that the parking wording is important; Mr. Oka said that there were three concerned
entities, but there are actually four; probably the most important one is the public.
o The private property is not going to be used solely by the two owners; this property is going to
be used by all the entities there unless there is some motivation to get rid of the retail there and
change the whole area into housing.
o The six condos that are coming in will probably produce 2 to 3 cars per unit, but over and
above that these people are going to have social events, which means more cars coming to the
area.
o The big concern is parking because it has proved to be under-estimated as things turned out in
the past. The parking spaces are now retail, they are changing to mixed use and they are
bringing in more cars, putting pressure in a small area which is already overburdened around
Yamagamis and Bobby's.
o I am proud to use Wolf Cameras and support Mr. Bunker; I am also proud to support
Yamagamis and the other entities there. We need to have a comfortable area to maintain our
quality of life.
Tom Huganin, La Roda Ct.:
o Said it appeared that it would have a lot of impact on the people on Wildflower Way; someone
thought that 20 spaces would help out the situation; obviously as it relates to planting you
can't do planting if you can't get to the plant store to buy the plants. It is difficult to get to the
nursery to purchase plants.
o The public is concerned.
Chair Wong closed the public hearing.
Com. Saadati:
o I am trying to recall our discussion at previous meetings over a year ago. Parking was the big
item of concern from the restaurants and other business owner.
o If I recall correctly the 34 parking that is going to be under this new development, some of
them will be open and accessible by businesses. Please clarify that.
Mr. Chao:
o There are 34 parking stalls on the project site, 6 of which will be designated for the residential
condos for their sole use; and the remainder will be open for public.
Cupertino Planning Commission
12
April 12,2005
· Signage will be provided showing additional parking available under the building for the
patrons of Yamagamis or other stores.
Mr. Piasecki:
· The parking on the Wolf Camera site was intended to take care of the parking requirements of
the ordinance relating to development on the Wolf Camera site. The condition being
discussed, the allowance for incidental parking that we understand goes both ways, was not
intended to fulfill any parking requirements under the ordinances. We don't know what the
status in terms of the Yamagami site is relative to their demand and the ordinance
requirements; they may have a legal nonconforming condition; it predated our ordinances or
the applicability of our ordinances to it.
· There was no intent to make up for any deficiency that may have existed on that property; it
was only to not disrupt the potential property right for incidental parking between the
properties; that is the only reason the condition was placed there; it wasn't trying to make up
for a deficit; we weren't aware of what the amount of that deficit was; it was trying to not
disrupt a potential easement condition existing between the properties.
· I don't want the Planning Commission to have the impression that we were trying to make up
for something; they may have a deficiency; that something pre-existed if that in fact is the
case.
Vice Chair Miller:
· What was the requirement for Wolf Camera parking prior to this application?
· There are two pieces to this project; I am looking for a way to resolve the issue from the
applicant's standpoint. If he broke down this project into a residential piece and a commercial
piece and he only went ahead with the residential piece at this point; would that change the
parking requirements or would that allow him to satisfy the parking requirement on his own
property and not have to ask Yamagami for permission to do anything?
Mr. Piasecki:
· The standard ordinance requirement is one per 250 for the commercial; I believe we required
that they have some dedicated stalls (6) for the condo units and then they had guest parking in
the non-dedicated stalls, but the 34 addressed all the ordinance requirements.
· We don't know the scope and breadth of the applicability of the agreement between them; we
are not trying to adjudicate that in any way. It probably doesn't help if he can convince a
judge and the judge tells us this is now resolved, issue the permits; we will be glad to.
· There is no attempt on our part to understand those kind of wrinkles or details of the project;
we are not trying to act as judge and jury in this case.
Vice Chair Miller:
· If I understand what you suggested, it doesn't matter as long as he is making a change; that
change engenders an issue between the two property owners.
Mr. Piasecki:
· Potentially, and we don't even know that. What we know is there is an issue, we don't know
the extent of it and we don't want to. It is not our business to try to figure it out; we want them
to come to some resolution.
· If you can affirmatively prove that there is no applicability to this project, a court might be the
way to do that; and if the judge tells us it is not applicable, that is fine; we are not in that
business. We don't do that.
Cupertino Planning Commission
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April 12, 2005
Mr. Chao:
· It would not be gated parking.
· The applicant went through the Design Review Committee and acquired approval on the
architectural changes.
Vice Chair Miller:
· From the testimony heard, I feel like Mr. Bunker has been put in an unfair position by the
Yamagami Trust; and as a Planning Commissioner I would like to rule just on the planning
issues; and I am concerned about how this went and why at the last meeting we did not get any
objection to moving ahead with the condition we put in.
· Also concerned about other issues that have come to the floor since then, specifically that
Yamagami has been making unpermitted changes to their site.
· However, on the other side, I am reluctant to make a ruling when the city attorney is saying
that as a Planning Commissioner we should stay out of the issues that are legal in nature,
which is my feeling at this point.
Com. Chen:
· A year and a half ago we came up with this condition and it was accepted and now it came
back to us still unresolved. I am just willing to do whatever counsel suggests to protect the
city's interest.
· I would like to see the project move forward and if Yamagami's are using it as an opportunity
to negotiate something outside of just the parking rights, I hope that is not the case.
· Mr. Bunker had provided enough parking for his own property and based on the property
rights, if there is additional parking that he is required to provide, we should just stay on that
topic. I support whatever the city attorney recommends we do.
Com. Saadati:
· The reason we put the condition in based on my recollection was to try to ease the parking
situation as it was brought to our attention. In that sense I believe we could remove the
condition but I would like to encourage both parties to work on providing additional stalls by
striping because that is good for the community and good for business and good for both
property owners.
· They need to work as hard as they can to restripe which is a couple of days' effort and provide
additional parking but not as a requirement, but as an encouragement and move forward. A
year is a long time to wait for this, and the time has come to move forward.
Chair Wong:
· Asked if the city attorney had a preference that will protect the city; said they are here as
planning commissioners and want to make a recommendation that will best protect the
community.
Ms. Murray:
· Said her recommendation was the same as the one she made in 2003, that the parties involved
need to resolve the easement issue before the project goes forward; amend the easement to
something they both agree on, that will tell what path to take to approve the project; which
would mean continuing the item for a certain amount of time to allow time to do that; whether
in a court of law or if they can do it individually.
Cupertino Planning Commission
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April 12, 2005
Chair Wong:
· We have been listening tonight for an hour and we have three major stakeholders, Mr. Bunker,
the trust, the three tenants and the public.
· I am disappointed that a year ago that we tried to reach some kind of resolution and I know
that all parties are trying to talk and now you want us to make a decision.
· I agree with Corns. Miller and Chen that I am indecisive now because we were hoping in good
faith that the three parties will resolve the issue and we are now still at a standstill.
· It sounds like you almost reached an agreement, and I am almost tempted to continue the item
so that both parties come together or take the city attorney's recommendation; but that is my
feeling.
Vice Chair Miller:
· Suggested asking the concerned parties if they felt a continuance was appropriate to allow
them time to meet and negotiate an agreement.
Com. Chen:
· I would support the city attorney's recommendation, with the hope that it would encourage the
two parties to come to an agreement.
Com. Saadati:
· Said the city attorney mentioned the modification won't allow the project to move forward.
· Asked her to clarify that modification of the language as proposed.
Ms. Murray:
· The modification says that they come to some agreement; it doesn't fix the easement, but it
allows them to come to some agreement that would move the project forward.
· If they can come to some agreement, we don't care as long as they come to us with an
agreement.
Mr. Bunker:
· Relative to continuing the item, he said as mentioned before that the recommendation Mr.
Piasecki presented removes the parking requirement.
· Said his position was he met the parking striping requirement; presented the funds and had the
contractor do the work; that is all they needed to do; the city did not condition him to sign and
execute a 24 page agreement from one line in a grant deed.
· I am in favor of having the Planning Commission remove the condition or modify the
condition to not require that the striping take place and to only require us to get a statement
from them; it would assist in moving forward. Having a continuance is only going to do what
the Trust wants, and they have not been operating in good faith; they aren't going to do the
work and I feel that has been their goal all along.
· They should have put the parking in immediately; it was a wonderful design that the city staff
and architect designed for them; we were willing to pay the money, new paving, new striping,
new sealing, better design for ingress and egress and flow across the front of their property and
essentially would have covered new fencing, trash enclosures, etc. It should have been done;
they should do it now; it would increase the value of their property, it doesn't cost much
money.
Mr. Piasecki:
· The public hearing is closed.
Cupertino Planning Commission
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April 12,2005
Mr. Prince:
· Mr. Bunker is not accepting staff's recommendation.
· He does not want to have his neighboring land owner have a veto over his project, because
they refuse to consent to the project.
· I just discussed with Mr. Bunker what I think is a good alternative. If you were to modify the
condition and have it say "if the Trust requests Mr. Bunker to pay for the restriping, he must
do so; and give him 30 days to make that request." That way if they want the restriping, they
can have it and you can require him to pay for it. If not, let's go forward, decide the matter on
the planning issues alone and this project meets all of this city's planning requirements.
· Clarified that Mr. Bunker was not in favor of continuing the application.
Ms. Murray:
· Relative to Mr. Prince's suggestion about an alternative, she said that since it was a new idea
that hasn't been examined, she would not make that kind of quick decision to change it to that;
and would provide some time for consideration, and continue the item to consider new
options.
Motion:
Motion by Vice Chair Miller, second by Com. Saadati, to continue the
application to April 26th Planning Commission meeting, pending a review of
Mr. Prince's suggestion that the condition be changed to require either
striping the lot or pay the money for the striping; or another alternative that
the city might find acceptable. (Vote: 4-0-0; Com. Giefer absent)
Chair Wong:
· Encouraged all parties to work together toward a solution.
Chair Wong declared a recess.
2.
GPA-2004-01,
EA-2004-01
City of Cupertino
Citywide Location
General Plan amendment to revise the General Plan.
Subject: Land Use wrap-up and Draft Environmental Impact
Report. Tentative City Council date: Not scheduled.
Chair Wong:
· Explained that the order of presentations would be changed in order to accommodate the
speakers.
Steve Rowley, Superintendent, Fremont Union High School District (FUHSD):
· Distributed a final response to the EIR on the dais.
· Reviewed the response to the EIR which is intended to provide an elaborate analysis of the
impact of potential residential and commercial growth in the coming years. He said that
FUHSD would benefit from certain elements of growth and could be challenged by other
elements.
· We have in the last week come up with new numbers for student generation rates which are
refined particularly with the high school; first page of the letter is a summary showing the
student generation rate for single family dwellings contrasted with condos and apartments.
· Single family dwellings have a factor of 10 higher for the number of students that are
generated from single family homes as opposed to condos and apartments, and the lion's share
of proposed development in Cupertino is going to be coming from high density dwelling; i.e.
condos and apartments.
Cupertino Planning Commission
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April 12, 2005
· Referring to the city's new calculations, he reviewed the net fiscal impact, how low density
and high density differs with regard to fiscal impact; the formula shows that a low density
development, net fiscal impact per students for a single family home using the sample we had
earlier actually loses money per student for the school district ($]773); by contrast the high
density development net fiscal impact per student will generate $56,477.
· He clarified that the high school district has different issues than the elementary school
district; as a basic aid district there is only one pot of money; the district is not paid per
student, anything that is a negative impact means more.
· Said that high density housing creates fewer students.
· Monta Vista is the school with the highest over-enrollment; presently it is 300 students over its
original capacity. It is expected in years four or five to see natural declining enrollment;
October 2005 will provide a better count on the new long range enrollment projections. In the
next couple of years, adding new students from the Monta Vista area will have a negative
impact on the schools.
· When the high schools are over-impacted, it is different than the elementary schools. When the
elementary schools get new students, they have an additional burden on their cafeterias,
libraries, and support staff. The high schools have that burden in addition to the impact on
program and course selection. We can absorb the 300 students, but it affects the course
selection for the students and some students are not able to take the courses they want
· He noted that in the next couple of years the district will likely find more space in the
Homestead and Cupertino High School areas than in Monta Vista.
· If most of the single family units are built in the Monta Vista area, it will have a negative
impact to the district's general fund, because the low density creates more students and costs
the district money; whereas high density, fewer students, the district makes money.
· In response to a question from Chair Wong, Dr. Rowley clarified if a development was built
within a specific school boundary, and the designated high school was impacted, the students
from within the development would not be sent to another school. He said that physically they
could be transported, but the school board is firm that the boundaries are iron clad and if there
are developments in an area that would put a school over, they would not be transferring
students; nor changing boundaries. In 1998 when the voters approved the modernization
bonds, the buildings were built for a certain size, and more or less, the comments about Monta
Vista notwithstanding, we are right where people expected; if we had the actual enrollment
that really lived here, and not some of the ones that don't really live here, we would be
comfortably at the peak and we believe starting in a few years, it will dwindle somewhat. We
will have more space in the coming years and I think that the enrollment projections that the
board works from and the community bought off on, generally are accurate.
Vice Chair Miller:
· What is the economic basis for the slight declining enrollment?
Dr. Rowley:
· It is demographic; nationally we are not out of line with the general trends.
· He clarified that all of the finance an economics discussed is by far less important to the school
district as is the general state of economy. The flip side that the commercial proposals will
definitely help the school district, because it is the direct beneficiaries, living strictly off
property tax. Residential property values in Cupertino and Sunnyvale have been steadily
rising for some time. The commercial decline in both secured and unsecured property taxes
has been the destroyer for the high school district.
· The actual employee contracts are tied directly to property taxes.
Cupertino Planning Commission
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April 12, 2005
Vice Chair Miller:
. Questioned whether it made sense from the standpoint of the Planning Commission as they
reviewed the General Plan to have some specific wording in the General Plan that if there are
impacts of development on the schools, that there be specific fees associated with mitigating
those impacts; or whether a formula be developed to do that.
Dr. Rowley:
· Responded that it was more germain for the elementary school district than for the high
school district. They are not able at the current time, because of some of the issues around
developer fees to look for a higher rate for developer fees, if there is criteria. The district does
not presently meet the criteria, and are fixed at the lower level.
. The impact for the high school district is more on infrastructure and on school schedules and
is more difficult to mitigate.
Vice Chair Miller:
· Asked for clarification on an earlier comment about the more expensive the housing units, the
lower the yield of students.
Dr. Rowley:
· As houses, apartments and condos in particular, get more expensive, there is an affordability
threshold, and once at that threshold, you can add more bedrooms to the unit, but it probably
won't bring in more children. For the lower income units, the more bedrooms may generate
more children because it is in the affordability range.
Ms. Wordell:
· Said that one of the points of using the new data ties into a policy that is already in the task
force draft that says we will work with the school districts when new projects come in. Even
though you might agree to use these numbers for the school impacts for the EIR, we will do
school impact studies as we are doing for the project mentioned and for any other larger
projects that have the potential for school impacts; we would continue to evaluate and re-
evaluate as we go along to be sure that the impacts that we are projecting are accurate and up
to date.
· Pointed out about the high school numbers, when we look at the number of high school
students that would come out of the task force draft housing units, 350 of those units are
already on the ground and generating students; if any of the school districts are looking at what
that growth is going to be, the 350 units have already given them some students; only one of
those projects, Astoria, is in the Monta Vista area and those students are already accounted for
and the new ones would be beyond that.
Com. Chen:
· The base for you to calculate the physical impact, the assessed value per unit for single family
dwelling is $645,000; is that a city wide average, as it seems low.
· Are these the numbers to use as a base to calculate the school impact as the project comes
over.
Mr. Piasecki:
· It is a generic term, probably includes small lot, single family; and may include eight units to
the acre, up to 15. It likely includes some townhomes and lower density condos.
· Cautioned them to be seen as generalities, as we are still building a good database. The school
impact studies that are project specific will give greater detail in terms of revenues to the
districts, as well as the impacts.
Cupertino Planning Commission
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April 12, 2005
· The numbers are developed for the EIR with the best information we have now; it is not
project specific. The district may utilize these numbers when they start providing us numbers
until they get better information.
· This is not about a project; this is about an ErR, about the new growth projected for the new
General Plan; complicated further by the fact you have some of the units already on the
ground, because the base starts in 2000 or 200 I, and some of the units in the current General
Plan have not been built yet. There is an increment of growth that is being talked about that is
above and beyond what is allowed by the current General Plan.
Com. Chen:
· Relative to Appendix B, is that eXlstmg situation, and that is the average total students
generated by the different development.
· Is it a safe assumption that there are so many enrollment in junior high and elementary
schools, because I see increased enrollment at the elementary school; is it a safe assumption
that it is going to create a crowd in the high school several years down the road.
Dr. Rowley:
· It is the current enrollment.
· The numbers, we have looked at enrollment figures and the numbers coming up for Cupertino
elementary school are more or less going to replace the numbers we have today; and over time
will be replacing them at a less rapid rate; we will begin to decline some.
· We are confident that it won't change the general proposition that we are seeing here.
· From what we know today, the numbers will be fewer, and the profit margin a little higher
than suggested in the BAE.
· For the next five years, we are in project specific and cannot adhere to those generalities.
Chair Wong:
· Relative to not following up on traffic, we do have impacts at Kennedy, Monta Vista and
Lincoln. How do you work with the school district to address those issues, relative to safety of
children getting to school?
Dr. Rowley:
· The students want to drive to school; for that reason the traffic situation in the locale of Monta
Vista is not going to get worse but it won't get better over time; we can't do much to mitigate
traffic other than come up with interesting ways to get in and out of the parking lots.
Com. Saadati:
· Over the past 5 years has the attendance or registration changed.
· What is the impact relative to the quality of education, when the number goes up.
Dr. Rowley:
· Up until about 6 months ago, it has been the same; we have let people in who said they lived
here; enrollment has increased an average of about 2% per year which is, given that our base
had a number of people who are illegally here, the trend has followed the projections we
thought we had, we didn't realize we had so many people registered under false pretenses. It
will take several months before we know the magnitude.
· Next year we were projected to increase 250 students, but we believe we are going to have no
growth and hoping to have fewer than zero; we are hoping to be negative from this year.
· The impact is on course offerings, impact to our core facilities; big schools are not the best for
students, but in California because of the high demand on salaries, high demand on property
Cupertino Planning Commission
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April 12, 2005
rates, we have to have big high schools to economically survive, but the more we get with 5
high schools, more hurts us and fewer students helps us.
Chair Wong:
· Relative to big high schools, as the city grows, for the quality of life and for the quality of
students, it is my main concern that it is very easy to add a portable and as the city grows, my
concern in looking at the General Plan is the school district prepared to build more buildings.
· If it went the other way and that there is a peak of students more I want to make sure the
school district is prepared to build more buildings and not shove all the students into portables.
Dr. Rowley:
· We believe we are at a peak and will have better data soon to demonstrate that.
· There is nothing in the General Plan or its projections, and nothing in demographics that
would suggest that will be the scenario.
· The natural demographics over the next couple of years will begin to decline and the number
of students we are talking about here is not in the bigger scope of things; is not that significant.
· Even though we pointed out short run, Monta Vista problem; long run all schools likely not a
problem.
A discussion ensued regarding student generation rates wherein Dr. Riley and Mr. Piasecki
answered commissioners' questions.
Rick Houseman, Asst. Superintendent, Business Services; Cupertino Union School District:.
· Said he concurred with Dr. Rowley's comments.
· Referred to the K8 Grade Student Generation and fiscal Analysis - what is shown here as the
yield for us and low density the yield that has been calculated as .5 students per dwelling unit
and for high density it is .186. Those numbers were calculated in the same manner as the high
school; the ADA revenue limit differs from the high school district, which is a basic aid
district; their revenue is derived from the tax base entirely. Our revenue is derived from a
calculation of what the state owes us on a per-pupil basis and then the county gives us our
share of the tax base and thus far and as far as we can see into the future, it isn't sufficient to
meet the total that we are supposed to get from the state; then the state augments it with
additional revenue directly from the state.
· About 4-5 years ago the district decided that the most sound configuration for a middle school
is grades 6, 7 and 8 as opposed to 7 and 8 configuration. Murdock School which had been
closed was renovated and a magnet school was moved onto the campus. As a result of that
and one other domino, the school district was able to build or create a fifth middle school
which will open in August 2005, the Sam H. Lawson middle school which was the former
Collins campus. Approximately 700 students will be moved out of the elementary schools and
into middle schools, which will cause other middle schools to downsize slightly as well. The
result will be over the course of the period this covers, the district will have the capacity to
house what is being proposed. We will caveat that strongly by saying it may be very sensitive
to where the particular complex is located because we do have some schools that are larger
than others, and we have some that are closer to being crowded than others. If we have a
development in an area that might be affected in some way, we would wish to have the option
and the language we understand is being proposed, to address those impacts specifically to the
development department and have those considered and addressed as the project approval
process progresses. At the time being, we do not foresee any reason why we would not be
able to at least with the projections shown.
Cupertino Planning Commission
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April 12, 2005
Vice Chair Miller:
· One of the areas we are looking at projects that are coming in and are going to generate a
significant number of housing units is the Vallco area. Also in the past, some discussion about
the Villa Serra area for condo units, which would potentially impact the Garden Gate school;
could you provide some general comments on how it would impact the schools in those
particular areas and what do we need to do about it.
Mr. Houseman:
· For some time in a number of different areas where we have had either overcrowding, we have
also had an adjacent campus which has been technically under utilized. There are very large
rental complexes through which historically we have moved students from one school or to
another school for the new students who are arriving in that complex. An example would be
De Vargas and Eisenhower. In some years when one school was impacted, we might have had
the students who resulted from that rental complex go to Eisenhower, and in other years the
other school. We have the flexibility to do that and same thing is true with Garden Gate and
Nimitz. We don't move the boundary, but we do redistribute the new arrivals in that complex
and don't guarantee them what elementary school they might attend; which is a flexibility we
might entertain.
Vice Chair Miller:
· In terms of potential development in town, if these two areas were to develop and certainly the
Valko area seems that it is moving in that direction, what I think you are saying is that under
those scenarios the school district is reasonably confident they can handle both the capacity
and the additional operating expense that would be incurred by the students generated there.
Mr. Houseman:
· The operating expense will be covered clearly by the revenue limit per student from the state.
There is probably not going to be an operational impact unless a particular school site gets so
large that we might feel for a control or security issue relative to the elementary schools, we
might have to have a Vice Principal at a particular site where we now don't staff with that. It
might be possible that we would have to have additional man hours of hands at the lunch
period from the food service in order to run multiple lunch lines to get everyone fed at a
particular site. I have mentioned in the report that on those occasions where that might be the
case on a particular school site, we would expect to work with whoever the developer is, and
that may be a long term operational expense that is not covered by the revenue limit; and
therefore we would request that as part of the conditional approval of that, that it be
compensated in some way.
· Relative to the infrastructure, the district gets developer fees and we have found that the
developer fees have been adequate in order to pay the one time costs for the modulars or the
expansion of the campuses that are required as a result of the growth.
· On average we have between one and two classrooms being vacated by sixth graders that
currently exist on the elementary campuses. As the new development comes in until those are
filled up, we don't have to consider expanding with additional modulars.
· We would not be immediate I y looking at the need for capital improvements based on the plans
the city is moving forward on. Should we need to make any capital improvements, we have a
funding source already in place and authorized to do that.
Vice Chair Miller:
· Relative to the operating expenditures and the potential occasionally to call on the developer to
help out from an operational standpoint, is that something that would be helpful to you if there
was some wording in the General Plan that addressed that issue.
Cupertino Planning Commission
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April 12, 2005
Mr. Houseman:
· We would appreciate having language in there that would provide the flexibility to do that.
· In response to Com. Saadati's question about space availability for the future, he said currently
approximately 700 students will be moving from the elementary schools into the middle
schools which would free up two to three classrooms in remaining schools.
· Relati ve to Garden Gate School, students are being bussed from Garden Gate to a number of
different schools. We expect to bring all those students back into Garden Gate next year;
students out of a complex on Homestead that were going to Garden Gate are being redirected
this year and the next year into Nimitiz, resulting in a decline in enrollment at Garden Gate.
One of the complexes will not have an opportunity to go to Garden Gate.
· Relative to Kennedy's capacity; the physical plant for an elementary or middle school is
different; all feeding is done outdoors, we don't need the same amount of exterior physical
facilities, green space, hard court space; the high schools have mandatory scholastic and
athletic events they have to run and participate in; you can only encroach so far and once you
encroach you have a finite limit; there is no finite limit technically for an elementary or middle
school in terms of space.
· Relative to Kennedy at 1400 students, it isn't that it did not have the capacity, but that you
would to see a smaller school for purposes of control and discipline, and opportunities to get to
know the students because the smaller size, the better the academic performance. There are a
number of reasons why we would like to have seen it smaller and it was one of the side
benefits we got from opening the fifth middle school.
· The district is comfortable with 1200 students.
· We have cut down on the attendance area for Kennedy beginning next year, because a portion
of the attendance area was added to make Lawson; when we created Lawson School, we have
to carve out portions of the other middle schools; Kennedy's densest area will automatically be
smaller.
Chair Wong:
· Said his concern about development in the Bubb and McClellan is that they would like to see
students walking to their neighborhood schools.
· Part of the goal of the General Plan is walkability.
Mr. Houseman:
· At the Bubb bungalows, there are 94; on this data sheet they are showing 15, it is probably
closer to 40; depends on whether you call it high density or low density; that is one of the
issues.
· With a maximum of 42 students; you need to realize that is K-S grade; to focus on the middle
school; if you look at what the breakdown is for 6, 7 and Sth grade out of that, you are probably
looking at about 10 students; our middle school yield rate is lower than what this average is for
the elementary; out of those 40 total kids, 10 of them are middle school students. That is what
the increase at Kennedy would be. We would not entertain changing the Bubb housing
complex's attendance boundaries from Lincoln and Kennedy to something else.
· We would have 30 students going to Lincoln, we currently have 40 students who are coming
out of Lincoln and going to a middle school because the sixth graders are moving out; we have
two classrooms available for 30 students and depending on what grade level they are at, if it is
4th and 5th, it would be 30 students in a classroom; if it is K_3td grade, it would be 20 students.
The capacity is there at Lincoln; and will be next year, to accommodate the Bubb students.
Likewise at Kennedy; 10 students is not an impact that is going to have any significance at that
campus.
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April 12, 2005
Chair Wong:
· Dr. Rowley on Appendix B, Page 4 separated the students from 9'h, 10'h, II 'h and lth based on
what staff gave them on the developments here. Could the information for K-8 grades be
provided to city staff at a later time.
Mr. Housemen:
· The Schoolhouse Services will be asked to provide the data on a grade by grade basis.
· Suggested that since your yields are so small, doing it by grade as you do for the high schools,
is probably not as meaningful as having K-5, and then 6-8; that you do it in groupings of
elementary and middle because that is what we need to look at.
Chair Wong:
· I want to see the growth in town; which is why I want to see the breakdown of each grade.
· Traffic has always been a concern in Cupertino; and Kennedy and Hyde are a question. Com.
Giefer said that the school district is doing a good job in their drop off/pick up and by doing
that, it encourages people to drive vs. walking. You have been very efficient in getting
students in and out of the school, but how do you address the traffic concern, particularly at
Kennedy and Hyde that cars just line up in a gridlock. How do you work in conjunction with
our city?
Mr. Houseman:
· In general, we constantly are looking at what the traffic congestion is at the campuses; we have
worked closely with the city and sheriffs department to assist us in that regard; constantly are
trying to promote carpooling. It is not in the nature of this particular community to do that
which makes it difficult; as long as the policeman is there, they obey the rules; when the
policeman enforcement is not there, you find unsafe conditions on occasion.
· As pointed out, our principals have done a very good job of working with the parents and even
the faculties to some extent at each of those school sites.
· We have valet service that gets people in and out real quick in the morning; I think in general
everyone is cognizant of the fact that there is a community and a neighborhood disruption
during those periods of time in the morning and afternoon when there is drop off and pickup.
· Looking at the Bubb complex specifically I think the students will walk to Lincoln, so it will
not increase traffic; and I think even the students will walk to Kennedy because of its
proximity they can do that.
Mr. Piasecki:
· Given the lateness of the hour, the Planning Commission may want to discuss whether you
want to delve into the EIR or hear from the public on the school input and postpone the EIR
discussion until the next meeting; which would provide the opportunity to digest it longer.
Vice Chair Miller:
· One of the other things I thought we were going to do tonight was to make comments on land
use and go through the exercise of putting allocations in different areas of town. Is that
something we want to address tonight.
Chair Wong:
· I am willing to address that. The other topic is that we wanted to talk about land use wrapup.
Com. Chen:
· In favor of delaying the land use discussion.
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April 12, 2005
Chair Wong:
· Expressed concern that at the next meeting there would not be five commissioners; spring
break is upcoming and some commissioners will be out of town.
· Said he wanted to cover as much material as possible, cut the meeting off at a reasonable hour
depending on how many public hearing items there are on the agenda; do the land use wrapup
quickly.
· City Council is canceling their meeting and usually the meeting afterward.
Com. Chen:
· I would support that suggestion because I will still be on a trip for that meeting;
Ed Shaffer, Law Firm of Archer Norris, representing Taylor Woodrow Homes:
· Will address comments made by Dr. Rowley about the school system.
· I appreciate the two commissioners commenting on the over lowest assumption of assessed
value with those and unfortunately we did not get the material that the commission received
from the school district.
· Looking at the numbers shown I think that if you plugged in a value of over $1 million for a
home, then the low density development would pay for itself and when you factor in the
impact fees and the parcel tax, that they will probably subsidize some of the older
neighborhoods where assessed values are much lower. I think that is something the school
district doesn't need to be afraid of, low density single family detached.
· It was curious to hear the superintendent say that the district boundaries would not be changed
and that they have to live with the fact of the situation they have in each district; the material
that we received from February that shows that the Homestead and Lynbrook schools have
excess capacity, shows that there is flexibility in the system and I would point out that we are
talking about 20 year long term General Plan land use considerations and that the short term
constraints and temporary issues of school capacities should not be a governing factor for the
city as they establish their land use programs for the coming two decades.
· It is difficult to evaluate some of this information because of the failure to distinguish a
permanent construction capacity vs. portable, and it has been touched on that there are
constraints on how many portables you can put onto a school site before you start restricting
the common area, the play fields and you start overloading the organizational and class
structure, but I think that is information I have seen in other communities that has been very
important in evaluating development impacts on school systems, is what the number of spaces
and permanent classrooms vs. the number of portables they have and how many more
portables they could accommodate at each school. That is something the city may want to
consider getting that information from the school district; if you start looking at individual
schools in more detail.
Vice Chair Miller:
. I think what Dr. Riley was saying was operationally it is reasonably in good shape but when
it came to Monta Vista that is where your project is going to be impacting; that capacity is
more the issue there.
Mr. Shaffer:
. I also heard that that school was peaking now and over the next couple of years and we
should be declining, so when you talk about a project, there has been a lot of attention paid
to the Taylor Woodrow project which would start being, if it were approved next year would
Cupertino Planning Commission
24
April 12, 2005
start to be occupied a year and a half later and by that time you might be seeing the peak
starting to decline and the capacity issue not being as critical.
· I wouldn't think that this should drive the decision making both at the General Plan level and
at that particular project.
Vice Chair Miller:
· That is a valid point.
Chair Wong:
· You said that you suggest that we shouldn't use school as a factor in a General Plan.
Mr. Shaffer:
· Capacity affects current capacity issues at particular schools; I don't think it should control
or influence your decisions on broad land use issues or how many units are going to be
approved over the next 20 years; or built in the city or how much land you designate for
residential capacity because these are numbers that as the representative of the two school
districts say, are hard to pin down; they change from year to year. They are looking and
projecting ahead only 5 years and their uncertainty increases over 5 years and your mandate
is to prepare a 20 year General Plan and you are looking at the buildout of the city and
growth of the city over the long term and historically school districts serve the populations
of the city; and it is impossible to predict whether there will be an influx of families with
more children than are typical or whether there will be an influx of seniors occupying homes
that were formerly occupied by families. It is very hard; the uncertainty increases as you go
out in time and that should not be a factor used to restrict or constrain how you determine
what the best pattern of growth and development for the city is.
Chair Wong:
· We pride ourselves in Cupertino with the Cupertino Union School District and the Fremont
union High School District for the quality of education and we want to protect that quality of
life issue.
· Regarding the comment about the high school, that there is more capacity at Fremont and
Homestead, which I do agree with you; that is the political decision that the high school
board trustee has to make, not the Planning Commission.
Phil Mader, Taylor Woodrow Homes:
· Since October we have been trying to work with the city and the school district regarding
these numbers and we have developed Astoria which is adjacent to our subject property at
Bubb Road, Results Way, and we provided the city with how many children we generated
from that development, so we have been an active participant in trying to provide data from
our experience here, hopefully leading to having the city come to good conclusions.
· Regarding tonight's meeting, we contacted the city staff, we asked for a copy of the staff
report so we could be well prepared to speak. We received only two pages and did not have
a copy of Dr. Rowley's presentation and were at a loss as we did not have the opportunity to
review the information.
· We want to be included in the process and get all public documents; hopefully that can be
corrected for the future, because we are trying to add value to the process.
· He referred to the letter from Dr. Rowley dated March 3'd which stated that the lowest
enrollment and highest property tax generating units will be single family units exceeding $1
million in sales value; and what was presented tonight stated that high density developments
such as condos would be generated. What has happened in the last week to completely
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April 12, 2005
change the conclusion; is there some additional information; we would like to have a better
understanding of that.
· Some additional comments we would like clarification on; in the letter dated March 3'd it
refers to January 2005 when the Board of Trustees declared ..... "allowing no students
transfers from one school to another." When you go back to the referred table in the
document, that doesn't hold up; there is capacity at certain schools. There does not appear to
be a connection there, and would like clarification.
· Also the letter explains talking about the facilities modernization program which was
supported by taxpayers in 1998. Of the capacity numbers generated, have they taken into
account the modernization measures and what will be the capacity figures when the
modernization is completed.
· Regarding the figures for whether development pays for itself, if the numbers are run at
approximately $1 million for the homes, the result is they do pay for themselves.
· We would like to have the opportunity to sit down with someone and review the detail.
Chair Wong:
· Regarding the staff report, what you received is correct; for the full staff report that a Planning
Commission or City Council members get, you can go online and get the entire item.
· Regarding Dr. Rowley's letter that he sent on March 3'd, he sent another letter dated April 12th;
we have not had a chance to see the letter until we arrived at 6:45 p.m. today; so I am listening
to his presentation as well as this letter which is a supplement to the March 3'" letter for the
first time; so I can feel your frustration. Also I am reading this letter for the first time.
· Regarding the capacity of the school, I want to make some comments before I give it to staff.
How our school district works is that we have neighborhood schools, the high school is
particular of their neighborhood schools, and it sounds like at the elementary level they have
some flexibility. Again you would have to work with the particular elementary schools, high
schools, and our city staff is well versed in working with you. As Mr. Piasecki said, we are
here tonight, we are looking at things in general; I know that you have a particular application
that is coming through and we welcome your application and every applicant will get their due
process.
Mr. Piasecki:
· Relative to the assessed value numbers, if you look at the chart there are over 1300 units that
were surveyed and about half of those are older units which is likely why the assessed value
number is lower because those have not escalated at the same price that the new development
has; it may be true that new development pays better for the high school district than the older
development does.
Jennifer Griffin, Calvert Drive:
· The land in Cupertino is finite; to build new homes, you have to take down existing buildings,
which results in a loss of technology and commercial buildings for Cupertino; and it is
beginning to make Cupertino a bedroom community for Santa Clara, Sunnyvale and San Jose.
· The potential buildout for the Vallco, Toll Brothers, and Hewlett Packard properties and the
tech parks into homes could result in a tremendous number of new families with children who
will need to attend schools, perhaps resulting in 3,000 new homes.
· It is assumed that the children will attend Sedgwick Elementary School, Hyde Middle School
and Cupertino High School. These schools are already impacted, it would only be fair that the
children from these new homes be sent to other adjacent schools in Santa Clara or Sunnyvale
or have new schools built for them in their own area. It is not fair to have the children from
these new homes attend the Rancho Rinconada, Fairview and Loree Estates schools because it
would adversely affect these schools for the students already attending them.
Cupertino Planning Commission
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April 12, 2005
Mr. Piasecki:
· Clarified that none of the proposals talk about providing up to 3,000 homes in the Vall co area.
The Vallco area is split between those portions served by Cupertino Union School District,
Fremont Union High School District and and Santa Clara schools on the north end of Vallco.
· The numbers from ABAG are just to plan, the city does not actually have to build them.
· There have to be adequate sites to accommodate housing and we have to be serious about
providing those adequate sites; beyond that we don't build the housing; the marketplace does
when the marketplace determines that it is financially and economically viable to do that.
Dennis Whitaker, resident:
· People move to Cupertino for the schools, openness, weather. Several schools have been
recognized throughout the nation.
· When Seven Springs was built it was thought no children would live there because it was too
expensive. There are children living in Seven Springs.
· In the past we thought high density would not generate the numbers but the mindset is
changing; the high school district eliminated students who did not belong in the district.
· The attitudes are changing, but the end result is people are moving here for primarily one
interest, and they will do whatever it cost to get their children a decent education.
· Dr. Rowley said that the course offerings would be different if the numbers in the schools were
increased; the course offerings are an example of the threats on our quality of life and our
investment, our kids and our investment in our land values; please be careful in what you do
and what you allow.
Chair Wong:
· The information that was given by the high school for Seven Springs; there is a total number
of units of 408; 23 for 9th grader, 25 for loth, 25 for II th, and 23 for lth grade.
Tom Huganin, LaRoda Ct.:
· Was a student in the Cupertino school system; and its fine education has allowed me to
continue living here and continue my professional life in the city.
· If single family homes are built in Cupertino, people will buy them so that their children can
attend the schools.
· My problem with some of the numbers presented tonight is I think the high density numbers
may be higher and we are using past numbers to predict performance which may not be
reliable.
· I would treat some of those numbers as suspect, I would predict them to be much higher
especially in the desirable school locations in the city.
Chair Wong closed the public hearing.
There was consensus to discuss the land use wrapup.
Ms. Wordell summarized the items for further discussion:
· One-Percent for Art does not have a consensus.
· Non-residential allocation that the Planning Commission has not discussed; which IS a
distribution of commerciallofficelindustrial. (Page 2-5 of the matrix)
· Some of the gaps cannot be filled tonight without Com. Giefer's input.
Cupertino Planning Commission
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April 12, 2005
Vice Chair Miller:
· In the administrative draft, if we looked at the office/industrial, you stayed the same when you
went from the administrative draft to the new option but when you looking at the commercial
the administrative draft had 4,174,000 and the new option has 4,431,000; could you tell us
why you revised your numbers up on the commercial spaces.
Ms. Wordell;
· The administrative draft it down for two reasons; we have actually lost commercial square
footage in the last ten years; the demand for commercial has been negative in the last ten
years; and also for better jobs/housing balance, if you want to lose some square footage
potential, it was easier to do it with commercial.
· We did tell the task force when they met that we would comment on their conclusions and our
comment is, as a staff, we couldn't live with what they came up with.
· Relative to the FAR for commercial spaces, she said they had some ideas to consider and
could introduce the subject tonight, but thought they would bring back some new material the
next time.
Mr. Piasecki:
· Not certain if the Planning Commission would rather get some input, what we are learning as
well, is that we are evolving and hearing good information/good input on a variety of issues.
You heard from the major property owners at your last meeting, and what you heard was that
they feel that a number of sites have functionally obsolete buildings which is new to us.
· We may have to be more site specific about the residential allocation; from staffs standpoint
we think that makes some sense. The current General Plan states that residential can go just
about anywhere on a non-residential site; perhaps we should discuss some criteria and identify
sites and talk about creating cohesive neighborhoods and not splitting industrial parks or high
tech parks which might mean you would take it off the Hewlett Packard campus and Apple; or
allocate residential to peripheral sites that create a sense of neighborhood and community
and/or function as an economic engine.
· Our thinking is there is an opportunity to take down some of the dysfunctional space that we
are being charged from the ABAG numbers; they say you have .5 million square feet of space
that we are saying is functionally obsolete based on the input. If you take that off the books
and allocate it into the commercial and the numbers that the task force came up with, it looks
fine in terms of commercial allocation. We may be able to improve the jobslhousing balance,
reduce the ABAG numbers in the next go-around and provide some opportune residential sites
in the better locations subject to doing some school impact studies to verify that impact that
can go into those locations. There may be a more holistic comprehensive strategy that starts to
make some sense based on all the input we are receiving from the schools, public, from the
property owners where we can fashion a more strategic approach to land use in Cupertino for
the next Plan. That is our general comments and we want to encourage you to think along
those lines and come back at the next meeting when you talk about this and try to fashion what
that might be in greater specifics.
Vice Chair Miller:
· Relative to art, the same comments apply that I made when we had that hearing, and that is, I
think it is very nice to provide one percent to art, but I also think before we go ahead and do
that we should consider what other needs the city has and where art fits in that priority. More
specifically, if we had to offset the cost of additional services to housing units that are being
built or we wanted to make sure there are adequate park areas or there was a need as the
speaker for the CUHSD said, we are offsetting some operational expenses, I would place those
types of expenses as funded by developer fees ahead of that for art. That is where I stand.
Cupertino Planning Commission
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April 12, 2005
· I am not opposed to it, but would prioritize it along with everything else we would like to see
developers provide the fees for.
Ms. Wordell:
· To provide more context, the policy that the task force recommended at the request of the Fine
Arts Commission was to develop a one percent for art ordinance, which requires public and
private developments to set aside one percent of their total project budget for onsite art and the
options were to change that to "consider developing" so it would give the opportunity to
evaluate whether it was a good idea or not.
· There were some other options about reinstating the existing General Plan policy which is
considered conditioning development; you wouldn't create an ordinance but you would just do
a development by development.
· There was an option to leave the existing General Plan wording in there but drop it to projects
of 50,000 square feet, so you are trying to reach more projects on a project by project basis.
· I am looking for which policy you really want us to explore as a commission.
Vice Chair Miller:
· I would support consider developing and in the consideration I would ask that we look at not
just art alone, but all the other needs that the city has where we are hoping to ask the
developers to pay some fees.
· Relative to non-residential allocations, I think that I am in favor of the general task force
numbers there as well, the 4.4 million or commercial centers, and the 9.3 million for
employment centers.
· The FAR for commercial space which is currently at .15; I think that is far too low and having
listened at our last hearing to the comments from the large employers in town and the
developers that were present, I was very much inclined to agree with them that flexibility is the
appropriate word that we should be using there and that we should have a range of FARs or
some other approach that is flexible; and perhaps staff could help draft some language that
gi ves us the flexibility that would make most sense when we think about developing
commercial space and what kind of FARS we give.
· I don't have a specific number; I would put some range that with some wording gave us the
flexibility that is needed; perhaps you can help us with that at the next meeting.
· Relative to under-utilized buildings, as staff mentioned, that conversion of under-utilized
buildings to residential or some other use, makes sense in that it reduces the overall ABAG
numbers, and makes more effective use of these sites and eliminates the need. In the EIR they
talked about if we are not going high density then the risk is to the hillsides and by
redeveloping some of these sites and putting condos on those sites instead of single family
homes, we in fact would take the pressure off of developing in the hillsides.
· It also would allow for further industrial development in other areas that could be more
effective and more appropriate for that industrial development.
· It improves our ABAG numbers; it allows us to move some of the industrial space around and
in general is potentially a good idea.
· I am also sensitive to the need to keep contiguous areas of industrial space as industrial space,
as opposed to breaking it up with different land uses.
· I think we need to be cognizant of that as well.
· Another comment made at the meeting was that the need for housing from the employer's
standpoint was for entry level housing which makes sense. I can appreciate that it is a need
and a benefit that we can provide by providing entry level housing; we could aide our
corporate citizens and it was also interesting when we listened to the Hewlett Packard
representative; he talked about how he was downsizing here and there and after the meeting he
Cupertino Planning Commission
29
April 12,2005
mentioned that even though they are downsizing in Cupertino, they are downsizing less in
Cupertino than in some other areas of the Bay Area and that was to our advantage. I think that
we want to encourage him in the future when further downsizing has to occur that perhaps we
have got an environment here that encourages them not to downsize quite so much in this area.
One of the ways to do that is making it easy for them to hire people because the housing is just
a little more affordable than perhaps in Palo Alto or some neighboring towns.
· The best locations for providing the additional housing if we look and say what are the
numbers we need to provide; the task force numbers in the 2300 to 2500 range don't seem that
unreasonable, particularly since ABAG has blessed those numbers. Those numbers may be the
ones we want to shoot for as recommended by the task force and then the issue is where do we
put them. I think it makes sense that they be a little higher density, we keep them away from
our residential neighborhoods, and put them close to the employment centers of Vallco and
North DeAnza Boulevard.
Chair Wong:
· Regarding the fine arts, I would require public and private art for the one percent, applied to
projects ~ 50,000 square feet or more. I believe fine arts is important for the community
and we need to find a way to get fine arts in the community.
· Relati ve to non-residential allocation, I agree with Vice Chair Miller regarding the task force,
the commercial center, the employments and the residential units that were suggested by the
general task force plan.
· The FAR commercial, I stand on my statement that for mixed use project, commercial FAR
should be as high as one to one and concentrate on the Heart of the City because I think retail
is important for our community.
Com. Saadati:
· Fine arts; we evaluate other cities as to what they provide; I support the one percent and what
staff recommended to encourage developers to provide that.
· Non-residential allocation; agree with the task force recommendation.
· Regarding health and safety, "recharging" should read "replacing smoke detector's battery"
would also help. (Page 2-17)
Com. Chen:
· Public arts; I support the one percent; would like to see a policy developed.
· For construction projects, 150,000 square feet is a good policy.
· For projects above a certain level, or can be seen from public, art should be actually put in
their instead of an in-lieu fee of one percent contribution to a central art fund.
· Regarding the non-residential square footage, I task force recommendation is good.
· Commercial FAR; I think it should be increased for mixed use.
Chair Wong:
· Suggested that the first meeting in May be for the EIR report; the second meeting in May for
the first recommendation and the second meeting in June have the final recommendation.
· Relative to the first meeting in June, we have been following the City Council directive on
talking about the Hot Topics, but have not had the opportunity to address other issues that
were in the General Plan not under the Hot Topics.
· The planning staff is reviewing the recommendations, instead of wasting that meeting, we can
talk about it and one of the topics could be crossroads; Bubb Road and Vallco south. Is that
acceptable with my colleagues.
Cupertino Planning Commission
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April 12, 2005
Vice Chair Miller:
Acceptable.
Com. Chen:
Agreeable.
Com. Saadati: Weren't we supposed to complete and provide recommendations to the Council in
May?
Chair Wong:
· That was just a suggestion; I talked to some of the City Council members and they want to
make sure that we thoroughly look at the General Plan; and also if we do follow the suggestion
that I made, when we do make the first recommendation and the final recommendation, I want
to advertise it as much as possible so that we can get a bigger turnout.
· At the next meeting, save some time for Com. Giefer to provide her comments regarding land
use input.
Ms. Wordell reviewed the meeting schedule:
· The next meeting on the General Plan is scheduled for May 10th; will finish up land use with
Com. Giefer and there will be a draft EIR presentation.
· The second meeting in May is to provide recommendations for the EIR and the General Plan.
· The first meeting in June is to cover other issues in the General Plan and perhaps invite the
General Plan task force as well as the minority report people to come in to get their input.
· The last meeting in June to give the final recommendation.
OLD BUSINESS: None
NEW BUSINESS: None
REPORT OF THE PLANNING COMMISSION:
Environmental Review Committee: There was no meeting because of lack of business.
Housinl! Commission: No meeting was held; next meeting is scheduled for April 14,2005.
Economic Development Committee Meetinl!: Quarterly meeting; no report. The next meeting
will be held in April.
Mavor's Monthlv Meetinl! With Commissioners: Chair Wong reported that he attended the
meeting with Mayor K wok. The chairpersons from each of the commissions were present. Topics
included review of the General Plan; Parks and Rec is in the process of reviewing the trails
regarding Stevens Creek trail; they had a joint meeting with the Bicycle Ped Commission; the
Bicycle Pedestrian Commission is in the process of redoing the Regnart Creek Trail, the Teen
Commission is trying to build up attendance at the teen center.
Chair Wong declared a short recess.
Ms. Wordell:
· We do have two noticed hearings on the 261"; one hillside exception for single family
residential; and the other is architectural review for a security fence on a water tank that has a
lot of neighborhood interest.
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: No additional report.