PC Packet 08-10-2021CITY OF CUPERTINO
PLANNING COMMISSION
AGENDA
This will be a teleconference meeting without a physical location
Tuesday, August 10, 2021
6:45 PM
Teleconference Meeting
TELECONFERENCE / PUBLIC PARTICIPATION INFORMATION TO HELP STOP THE
SPREAD OF COVID-19
In accordance with Governor Newsom’s Executive Order No-29-20, this will be a
teleconference meeting without a physical location to help stop the spread of COVID-19.
Members of the public wishing to observe the meeting may do so in one of the following
ways:
1) Tune to Comcast Channel 26 and AT&T U-Verse Channel 99 on your TV.
2) The meeting will also be streamed live on and online at www.Cupertino.org/youtube
and www.Cupertino.org/webcast
Members of the public wishing comment on an item on the agenda may do so in the
following ways:
1) E-mail comments by 5:00 p.m. on Tuesday, August 10th to the Commission at
planningcommission@cupertino.org. These e-mail comments will be received by the
Commission members before the meeting and posted to the City’s website after the
meeting.
2) E-mail comments during the times for public comment during the meeting to the
Commission at planningcommission@cupertino.org. The staff liaison will read the emails
into the record, and display any attachments on the screen, for up to 3 minutes (subject to
the Chair’s discretion to shorten time for public comments). Members of the public that
wish to share a document must email planningcommission@cupertino.org prior to
speaking.
3) Teleconferencing Instructions
Members of the public may observe the teleconference meeting or provide oral public
comments as follows:
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Planning Commission Agenda August 10, 2021
Oral public comments will be accepted during the teleconference meeting. Comments may
be made during “oral communications” for matters not on the agenda, and during the
public comment period for each agenda item.
To address the Commission, click on the link below to register in advance and access the
meeting:
Online
Please click the link below to join the webinar:
https://cityofcupertino.zoom.us/webinar/register/WN_IP8X-aw8SYmdIf1GhAtNOQ
Phone
Dial 669-900-6833 and enter Webinar ID: 933 5527 1753 (Type *9 to raise hand to speak)
Unregistered participants will be called on by the last four digits of their phone number.
Or an H.323/SIP room system: H.323:
162.255.37.11 (US West)
162.255.36.11 (US East)
Meeting ID: 933 5527 1753
SIP: 93355271753@zoomcrc.com
After registering, you will receive a confirmation email containing information about
joining the webinar.
Please read the following instructions carefully:
1. You can directly download the teleconference software or connect to the meeting in your
internet browser. If you are using your browser, make sure you are using a current and
up-to-date browser: Chrome 30+, Firefox 27+, Microsoft Edge 12+, Safari 7+. Certain
functionality may be disabled in older browsers, including Internet Explorer.
2. You will be asked to enter an email address and a name, followed by an email with
instructions on how to connect to the meeting. Your email address will not be disclosed to
the public. If you wish to make an oral public comment but do not wish to provide your
name, you may enter “Cupertino Resident” or similar designation.
3. When the Chair calls for the item on which you wish to speak, click on “raise hand.”
Speakers will be notified shortly before they are called to speak.
4. When called, please limit your remarks to the time allotted and the specific agenda
topic.
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Planning Commission Agenda August 10, 2021
In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to
attend this teleconference meeting who is visually or hearing impaired or has any disability
that needs special assistance should call the City Clerk's Office at 408-777-3223, at least 48
hours in advance of the meeting to arrange for assistance. In addition, upon request, in
advance, by a person with a disability, meeting agendas and writings distributed for the
meeting that are public records will be made available in the appropriate alternative
format.
ROLL CALL
APPROVAL OF MINUTES
1.Subject: Draft Minutes of June 22, 2021
Recommended Action: Approve or modify the Draft Minutes of June 22, 2021
1 - Draft Minutes
2.Subject: Draft Minutes of July 27, 2021
Recommended Action: Approve or modify the Draft Minutes of July 27, 2021
1 - Draft MInutes
ORAL COMMUNICATIONS
This portion of the meeting is reserved for persons wishing to address the Commission on any matter
within the jurisdiction of the Commission and not on the agenda. Speakers are limited to three (3)
minutes. In most cases, State law will prohibit the Commission from making any decisions with respect
to a matter not on the agenda.
WRITTEN COMMUNICATIONS
CONSENT CALENDAR
Unless there are separate discussions and/or actions requested by council, staff or a member of the
public, it is requested that items under the Consent Calendar be acted on simultaneously.
PUBLIC HEARINGS
3.Subject: Consider amendments to Cupertino Municipal Code Sections 19.56.030 (Table
19.56.030), 19.56.030F, 19.56.040, and Table 19.56.040A and the addition of Section
19.56.080 (Density Bonus Ordinance) to allow density bonuses and other incentives as
provided by state law and also to add a subsection in Section 19.56.040 providing
additional incentives for affordable housing and a new Section 19.56.080 providing that
the Density Bonus Ordinance will be interpreted consistent with state density bonus
law. (Application No: MCA-2021-003; Applicant: City of Cupertino; Location:
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Planning Commission Agenda August 10, 2021
Citywide.)
Recommended Action: That the Planning Commission adopt the draft resolution
recommending that the City Council:
1. Find the actions exempt from CEQA; and
2. Adopt amendments to Cupertino Municipal Code Sections 19.56.030 (Table
19.56.030) 19.56.030F, and Table 19.56.040A to allow for density bonuses and other
incentives as provided by state law; to add a new subsection in Section 19.56.040
providing additional incentives for affordable housing; and to add a new Section
19.56.080 providing that the Density Bonus Ordinance will be interpreted consistent
with state density bonus law.
Staff report.docx
1 – Draft Planning Commission Resolution and Ordinance
2 – Letter dated May 3, 2021 from Department of Housing and Community Development
3 - City Incentives for Affordable Housing
OLD BUSINESS
NEW BUSINESS
STAFF AND COMMISSION REPORTS
FUTURE AGENDA SETTINGS
ADJOURNMENT
If you challenge the action of the Planning Commission in court, you may be limited to raising only
those issues you or someone else raised at the public hearing described in this agenda, or in written
correspondence delivered to the City of Cupertino at, or prior to, the public hearing. In the event an
action taken by the Planning Commission is deemed objectionable, the matter may be officially appealed
to the City Council in writing within fourteen (14) days of the date of the Commission’s decision. Said
appeal is filed with the City Clerk (Ordinance 632).
In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to attend this
teleconference meeting who is visually or hearing impaired or has any disability that needs special
assistance should call the City Clerk's Office at 408-777-3223, at least 48 hours in advance of the
meeting to arrange for assistance. In addition, upon request, in advance, by a person with a disability,
meeting agendas and writings distributed for the meeting that are public records will be made available
in the appropriate alternative format.
Any writings or documents provided to a majority of the Planning Commission after publication of the
packet will be made available for public inspection in the Community Development Department located
at City Hall, 10300 Torre Avenue, during normal business hours and in Planning packet archives
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Planning Commission Agenda August 10, 2021
linked from the agenda/minutes page on the Cupertino web site.
IMPORTANT NOTICE: Please be advised that pursuant to Cupertino Municipal Code 2.08.100
written communications sent to the Cupertino City Council, Commissioners or City staff concerning a
matter on the agenda are included as supplemental material to the agendized item. These written
communications are accessible to the public through the City’s website and kept in packet archives. You
are hereby admonished not to include any personal or private information in written communications to
the City that you do not wish to make public; doing so shall constitute a waiver of any privacy rights
you may have on the information provided to the City.
Members of the public are entitled to address the Planning Commission concerning any item that is
described in the notice or agenda for this meeting, before or during consideration of that item. If you
wish to address the Planning Commission on any issue that is on this agenda, please complete a speaker
request card located in front of the Commission, and deliver it to the City Staff prior to discussion of the
item. When you are called, proceed to the podium and the Chair will recognize you. If you wish to
address the Planning Commission on any other item not on the agenda, you may do so by during the
public comment portion of the meeting following the same procedure described above. Please limit your
comments to three (3) minutes or less.
For questions on any items in the agenda, or for documents related to any of the items on the agenda,
contact the Planning Department at (408) 777 3308 or planning@cupertino.org.
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CITY OF CUPERTINO
PLANNING COMMISSION MEETING
DRAFT MINUTES, June 22, 2021
PLEDGE OF ALLEGIANCE
At 6:45 p.m. Chairperson Wang called to order the regular Planning Commission
meeting. This was a teleconference meeting with no physical location.
ROLL CALL
Present: Chairperson R Wang, Vice Chairperson Steven Scharf and Commissioner Sanjiv
Kapil. Absent: Commissioners Vikram Saxena and Muni Madhdhipatla
APPROVAL OF MINUTES
1. Subject: Draft Minutes of May 25, 2021.
Recommended Action: Approve or modify the Draft Minutes of May 25, 2021
Moved by Scharf and seconded by Wang to: “Approve the minutes”. The motion
carried 3‐0‐2 (Saxena and Madhdhipatla absent).
POSTPONEMENTS/REMOVAL FROM CALENDAR: None
ORAL COMMUNICATIONS:
Lisa Warren asked the Commission to hold off on making big decisions until a new City
Manager and City Attorney are hired.
Rhoda Fry spoke about the outcome of Santa Clara Board Supervisor meeting and the
upcoming Santa Clara County Planning Commission meeting to discuss the Stevens
Creek quarry.
WRITTEN COMMUNICATIONS: None
CONSENT CALENDAR: None
PUBLIC HEARINGS:
2. Subject: Vesting Tentative Map to replace a previously approved Vesting Tentative
Map (TM‐2018‐03) for the Westport Cupertino development project to create a separate
parcel for the age restricted senior below market rate building. City approval would be a
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Vesting Tentative Map; (Application No(s): TM‐2021‐002; Applicant(s): KT Urban (Mark
Tersini); Location: 21267 Stevens Creek Boulevard; APN #326‐27‐042, ‐043
Recommended Action: That the Planning Commission the public hearing and
recommend that the City Council find: 1) Approve the application per the Draft
Resolution. Tentative City Council hearing date: July 20, 2021
Senior Planner Gian Martire gave a presentation and answered questions from the
Commissioners.
The Applicant Mark Tersini addressed and answered questions from the Commissioners.
Chair Wang opened the public comment period and the following individual(s) spoke:
Peggy Griffin
Jennifer Griffin
Lisa Warren
Larry Dean
Rhoda Fry
Chair Wang closed the public comment period.
The Planning Commission discussed the following:
Legal review on the conformance of the parcellation of Building 2 with the General
Plan, as well as a justification its decoupling from the Parcel B.
Removing the requirement for the developer to provide a Class IV bike lane on the
southern side of Stevens Creek Boulevard, adjacent to De Anza College.
Wang moved and Scharf seconded to continue this item to a date uncertain.
The motion carried 3‐0‐2.
3. Subject: Consider an appeal of the Community Development Director’s approval of a
Two‐Story Permit to allow for a new 2,922 square‐foot two‐story home with a 746
square‐foot attached accessory dwelling unit and a Minor Residential Permit to allow
for a new second‐story balcony. (Application Nos.: R‐2020‐035, RM‐2020‐023; Applicant:
Smart Lily, LLC.; Property Owners: Tariqul Khan and Chaman Hafiz; Appellants: Jitesh
Vadhia and Chih‐Lung Lin; Location: 1506 Primrose Way; APN #366‐15‐018)
Recommended Action: That the Planning Commission adopt the draft resolutions
(Attachments 1 and 2) to:
1. Find that the proposed actions are exempt from CEQA; and
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2. Deny the appeal and uphold the Director’s decision to approve the Two‐Story
Permit (R‐2020‐035) and the Minor Residential Permit (RM‐2020‐023).
Associate Planner Erika Poveda gave a presentation and answered questions from the
Commissioners.
Appellants Chih‐Lung Lin and Jitesh Vadhia addressed and answered questions from
the Commissioners.
Applicants Tariqul Khan and Chaman Hafiz gave a presentation and answered questions
from the Commissioners.
Chair Wang opened the public comment period and the following individual(s) spoke:
Lisa Warren
Winston Shiah
Jennifer Griffin
Aliya Shafquat
Rayman
Rima Narayan
Leon Xiao
Jon Freel
Jitesh Vadhia read a letter on behalf of Joan and Greg Malensky
Chair Wang closed the public comment period
The Commission discussed balcony issues and a potential ordinance amendment related
to balconies.
Vice Chair Scharf discussed modifying the balcony with the applicants.
Chair Wang asked staff about privacy screening and height of existing foliage.
Commissioner Kapil suggested to relocate the balcony to the side of the house.
Chair Wang moved and Vice Chair Scharf seconded to deny the appeal and uphold the
Director’s decision to approve the Two‐Story Permit (R‐2020‐035) and the Minor
Residential Permit (RM‐2020‐023).
The motion carried 2‐1‐2.
OLD BUSINESS: None
NEW BUSINESS: None
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REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: None
REPORT OF THE PLANNING COMMISSION:
Vice Chair Scharf attended the California Alliance of Local Electeds (CALE) meetings.
FUTURE AGENDA SETTING
Vice Chair Scharf would like to discuss an amendment to the City’s regulations regarding
balconies.
Chair Wang would like to discuss restrictions on 5G antennas based on aesthetics.
ADJOURNMENT:
The meeting was adjourned at 8:45 pm to the next Planning Commission meeting on July
13, 2021, at 6:45 p.m.
Respectfully Submitted:
______/s/Abby Ayende_______________
Abby Ayende, Management Analyst
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CITY OF CUPERTINO
PLANNING COMMISSION MEETING
DRAFT MINUTES, JULY 27, 2021
PLEDGE OF ALLEGIANCE
At 6:45 p.m. Vice Chairperson Scharf called to order the regular Planning Commission
meeting. This was a teleconference meeting with no physical location.
ROLL CALL
Present: Vice Chairperson Steven Scharf, Commissioner Sanjiv Kapil, Commissioner
Vikram Saxena and Commissioner Muni Madhdhipatla Absent: Chairperson R Wang
APPROVAL OF MINUTES
1. Subject: Draft Minutes of June 22, 2021.
Recommended Action: Approve or modify the Draft Minutes of June 22, 2021
The approval of Minutes was postponed to the next meeting due to a lack of a quorum.
POSTPONEMENTS/REMOVAL FROM CALENDAR: None
ORAL COMMUNICATIONS:
Jennifer Griffin asked the Commissioners when the meetings will resume in the Council
Chambers. She also spoke regarding SB9, SB10 and AB1401.
WRITTEN COMMUNICATIONS: None
CONSENT CALENDAR: None
PUBLIC HEARINGS:
2. Subject: Vesting Tentative Map to replace a previously approved Vesting Tentative
Map (TM‐2018‐03) for the Westport Cupertino development project to create a separate
parcel for the age restricted senior below market rate building. City approval would be a
Vesting Tentative Map; (Application No(s): TM‐2021‐002; Applicant(s): KT Urban (Mark
Tersini); Location: 21267 Stevens Creek Boulevard; APN #326‐27‐042, ‐043
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Recommended Action: That the Planning Commission, consider the evidence
presented and determine whether the project can be recommended for approval in
accordance with the draft resolution (Attachment 1) approving the Vesting Tentative
map (TM‐2021‐002)
(Continued from the June 22, 2021, Planning Commission meeting)
Senior Planner Gian Martire gave a presentation and answered questions from the
Commissioners.
Vice Chair Scharf opened the public comment period and the following individual(s)
spoke:
Jean Bedord
Lisa Warren
Jennifer Griffin
Vice Chair Scharf closed the public comment period.
Commissioners asked questions and made comments.
The applicant Mark Tersini, Mark Falgout and Mike Kelley addressed and answered
questions from the Commissioners.
Assistant Director of Public Works Chad Mosely answered questions regarding bike
lanes.
Scharf moved and Saxena seconded to adopt the staff recommended resolution.The
motion carried 4‐0‐1 (Wang ‐absent).
OLD BUSINESS: None
NEW BUSINESS: None
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: None
REPORT OF THE PLANNING COMMISSION:
Vice Chair Scharf attended the California Alliance of Local Electeds (CALE) meetings.
FUTURE AGENDA SETTING: None
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ADJOURNMENT:
The meeting was adjourned at 8:06 pm to the next Planning Commission meeting on
August 10, 2021, at 6:45 p.m.
Respectfully Submitted:
______/s/Abby Ayende_______________
Abby Ayende, Management Analyst
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PLANNING COMMISSION STAFF REPORT
Meeting: August 10, 2021
Subject
Consider amendments to Cupertino Municipal Code Sections 19.56.030 (Table 19.56.030),
19.56.030F, 19.56.040, and Table 19.56.040A and the addition of Section 19.56.080 (Density
Bonus Ordinance) to allow density bonuses and other incentives as provided by state law
and also to add a subsection in Section 19.56.040 providing additional incentives for
affordable housing and a new Section 19.56.080 providing that the Density Bonus
Ordinance will be interpreted consistent with state density bonus law. (Application No:
MCA-2021-003; Applicant: City of Cupertino; Location: Citywide.)
Recommended Action
That the Planning Commission adopt the draft resolution (Attachment 1) recommending
that the City Council:
1. Find the actions exempt from CEQA; and
2. Adopt amendments to Cupertino Municipal Code Sections 19.56.030 (Table
19.56.030) 19.56.030F, and Table 19.56.040A to allow for density bonuses and other
incentives as provided by state law; to add a new subsection in Section 19.56.040
providing additional incentives for affordable housing; and to add a new Section
19.56.080 providing that the Density Bonus Ordinance will be interpreted consistent
with state density bonus law.
Discussion
Background
Under Government Code Section 65915, a housing development is eligible for a density
bonus based on the percentage of very low, low, or moderate -income units provided in
the development. The City's FY2019/2020 Work Program includes an item to incentivize
affordable housing production, in part by updating the City’s density bonus ordinance.
In the 2020 legislative session, AB 2345 was adopted, which increased the maximum
density bonus for projects that are not 100 percent affordable from 35 percent to 50
percent in exchange for a 4 to 5 percent increase in affordability (Government Code §
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65915(f).1) However, the statute provided that if the City were to adopt its own "housing
program" or ordinance, or both, to incentivize the development of affordable housing by
allowing bonuses that exceed 35 percent, the City could enforce its own program and
ordinance rather than the bonus program and the incentives and concession
requirements imposed by AB 2345. (§ 65915(s).)
On December 15, 2020, the City Council, by Resolution No. 20-141, adopted a housing
program to allow density bonuses up to 40 percent and initiated a zoning code
amendment to incorporate those changes into the City's density bonus ordinance. The
housing program adopted by the City Council allows in creased density for the same
proportional increases in affordability as did § 65915 (Density Bonus Law) before AB 2345
was enacted: 2.5 percent for every 1 percent increase in very low-income units; 1.5 percent
increase for every 1 percent increase in low-income units, and 1 percent increase for every
1 percent increase in moderate-income units, up to a 40 percent maximum density bonus.
These zoning changes were presented to the Planning Commission and the City Council
in early 2021. The Planning Commission reviewed the proposed changes at its February
23, 2021 regular meeting and adopted Resolution No. 6919 by a 4-1 vote (Kapil – no)
recommending that the Council adopt the proposed changes. The Council considered the
proposed changes and agreed that the proposed amendments would implement the
December 2020 Council-adopted housing program. The Council introduced Ordinance
No. 21- 2226 on April 20, 2021 and adopted the amendments on May 4, 2021.
At the meeting on April 20, 2021, the City Council also requested that staff consider
presenting additional ordinance amendments to allow increased density bonuses of up
to 50 percent for higher levels of affordability and review other incentives to develop
affordable housing. The Department of Housing and Community Development (HCD)
by letter dated May 3, 2021 (Attachment 2) also expressed concern that the adopted
program and ordinance did not create a “program” and provided insufficient incentives.
Due to an error in communications, the letter was not provided to the Council, public, or
planning staff in advance of the ordinance adoption.
Proposed Amendments
To amend the City’s Density Bonus program, staff recommends that that proportional
increases in affordability conform to those required by AB 2345. This would allow a 2.5
percent bonus for a 1 percent increase in very-low income units, 1.5 percent bonus for 1
percent increase in low income units and 1 percent bonus for 1 percent increase in
moderate-income units, up to a maximum density bonus of 35 percent. For increases in
affordability exceeding 11 percent very low income, 20 percent low income, or 40 percent
1 All further references are to the Government Code.
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moderate income, an additional 3.75 percent bonus would be allowed for each 1 percent
increase in affordability. The ordinance would also reference changes made in state
density bonus law that allow bonuses of either 80 percent or an unlimited amount for 100
percent affordable projects. The zoning code would be amended by editing current Table
19.56.030 in the zoning ordinance as follows.
Table 19.56.030: Density Bonus Calculations
Income Level of unit
Proportion of Total
Affordable Dwelling Units
Maximum
Density Bonus
Very Low Income
5% 20%
6% - 1211%(1) 22.5% - 37.535%
12% - 14%(2) 38.75% - 46.25%
1315% or more 4050%
Low Income
10% 20%
11% -2220%(3) 21.5% - 3835%
21% - 23%(4) 38.75% - 46.25%
2324% or more 4050%
Moderate Income
(Common interest
developments)
10% 5%
11% - 4440%(5) 6% - 3935%
41% - 43%(6) 38.75% - 46.25%
4544% or above 4050%
Affordable Housing
Development 100%(7)
80% or as
specified in
Government
Code Section
65915
(1) For each 1% increase over 5% of the target units, the density bonus
shall be increased by 2.5%, up to a maximum of 4035%.
(2) For each 1% increase over 11% of the target units, the density bonus
shall be increased by 3.75%, up to a maximum of 50%.
(3) For each 1% increase over 10% of the target units, the density bonus
shall be increased by 1.5%, up to a maximum of 4035%.
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(4) For each 1% increase over 20% of the target units, the density bonus
shall be increased by 3.75%, up to a maximum of 50%.
(5) For each 1% increase over 10% of the target units, the density bonus
shall be increased by 1%, up to a maximum of 4035%.
(6) For each 1% increase over 40% of the target units, the density bonus
shall be increased by 3.75%, up to a maximum of 50%.
(7) Must meet the requirements of Government Code Section
65915(b)(1)(G) or successor provision.
Other conforming changes would be made in Section 19.56.030F to show a maximum
density bonus of 50 percent for projects that are not 100 percent affordable.
Table 19.56.040A would similarly be updated to reflect the changes made by AB 2345 and
additional incentives available for 100 percent affordable projects, as follows:
Table 19.56.040A: Incentives or Concessions Calculations:
Unit Type Percent of Affordable
Units
Number of
Incentives/
Concessions
Very Low Income Units 5% or greater 1
10% or greater 2
15% or greater 3
Low Income Units 10% or greater 1
2017% or greater 2
3024% or greater 3
Moderate Income Units 10% or greater 1
20% or greater 2
30% or greater 3
Affordable Housing
Development
100%*
4
*Must meet the requirements of Government Code Section 65915(b)(1)(G) or
successor provision.
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The staff is also proposing to add a new subsection D in Section 19.56.040 to codify certain
additional incentives that the City offers to incentivize the development of affordable
housing, as follows:
Additional Incentives: The City will continue to provide the following incentives:
1. Provide waivers of park land dedication fees and construction taxes for all
affordable units as allowed by the City’s Below Market Rate Program Manual
Procedural Manual adopted in May 2020, and as may be amended in the future.
2. Priority permit processing for any housing development that includes a total
number of affordable housing units higher than required by the City’s Below
Market Rate Program Manual Procedural Manual adopted in May 2020, as may
be amended.
3. Provide letters of support for financial grant applications for housing
developments that are 100 percent affordable.
Finally, because state density bonus law (Government Code Section 65915 et seq.) is
amended by the Legislature nearly every year (additional amendments are proposed this
year), making it difficult to keep the City’s ordinance up to date, a provision is proposed
to be added as Section 19.56.080 stating that the ordinance will be interpreted to be
consistent with state density bonus law, as follows:
If any portion of this Chapter 19.56 conflicts with State Density Bonus Law
(Government Code Section 65915 et seq.) or other applicable state law, state law
shall supersede this Chapter. Any ambiguities in this section shall be interpreted
to be consistent with State Density Bonus Law. All code references in this Chapter
include all successor provisions.
For instance, although the City’s ordinance currently does not include the bonuses and
incentives available for 100 percent affordable housing projects, the City would have
followed state law in allowing 80 percent or larger bonuses for these projects. The
purpose of this provision is to clarify that that is the City’s policy.
Analysis
The purpose of the City's housing and density bonus programs is to incentivize the
development of affordable housing within the City. The Hausrath Economics Group
(HEG) confirmed that program adopted by the City Council in December and by
ordinance in May would incentivize the development of affordable housing. That
program also conformed with the recommendations of the California Rural Legal
Assistance Foundation and the Western Center on Law & Poverty provided during
hearings on AB 2345, when they advocated for maintaining the density for affordability
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ratio following the same pattern as density bonus law prior to the passage of AB 2345 .
All but one of the developers of Cupertino's housing element sites have applied for
density bonuses using the incentives provided prior to the passage of AB 2345, including
the developers of Vallco, Marina, Veranda, and Westport. The City has consistently
approved these density bonus projects.
The City also continues to offer a host of incentives to incentivize affordable housing
within the City. (See Attachment 3.) Many of the affordable housing incentives are
implemented through other parts of the Municipal Code (flexible zoning standards
through the Planned Development Zoning District Ordinance, Below Market Rate (BMR)
Housing Program through Chapter 19.172 of the Municipal Code and associated
administration and other manuals) or General Plan programs.
Despite these incentives, HCD has continued to assert that the City’s current density
bonus program does not comply with AB 2345. Based on the analysis by HEG and the
experience of the City of San Diego, which previously adopted the AB 2345 program,
developers are most likely to use the program by providing very low income housing.
For this type of housing proposal, the AB 2345 maximum bonus of 50 percent for 15
percent very low income units is not much different from the City’s existing density -for-
affordability ratio which would require 17 percent very low income units for a 50 percent
density bonus.
The proposed ordinance would also codify three additional incentives:
1. Waivers of park land dedication fees and construction taxes for affordable units,
as identified in the City’s BMR manual,
2. Priority permit processing for projects that include more affordable units than
required by the City’s BMR program, and
3. Writing letters of support for grant applications for the development of 100
percent affordable housing projects.
Adoption of the proposed ordinance amendments will advance the Affordable Housing
Strategies item on the Council’s FY 20/21 Work Program and conform to the City
Council’s direction to increase the maximum bonus to 50 percent. In addition, as part of
the Affordable Housing Strategies item on the Council’s FY20/21 Work Program, the staff
will explore further amendments to the density bonus ordinance to incentivize the
production of more affordable units than required by density bonus law and the City’s
affordable housing ordinance, which requires 15 percent of rental units and 20 percent of
for-sale units to be affordable. The staff will also consider additional amendments to the
City’s density bonus ordinance to ensure that it reflects the latest amendments to state
density bonus law.
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Sustainability Impact
No sustainability impact.
Fiscal Impact
No fiscal impact.
California Environmental Quality Act (CEQA) Status
It is not possible to predict which properties in the City, if any, may be proposed to be
developed with an increased density bonus, given market conditions, building types
desired, and developers’ individual decisions whether or not to request bonuses; nor
whether any increased development or density will result from the proposed changes,
whether any development or density will result that would not already have occurred
under the existing Municipal Code, nor whether any possible significant environmental
impacts peculiar to the adoption of the proposed zoning code amendments would
occur. Therefore, the proposed code amendments: (1) will not result in any direct or
reasonably foreseeable indirect physical change in the environment (CEQA Guidelines
Section 15060(c)) and so (2) do not constitute a project under CEQA (CEQA Guidelines
Section 15378).
Further, the City has been informed by the California Department of Housing and
Community Development (HCD) that its existing density bonus ordinance must be
modified to be consistent with AB 2345, and the ordinance amendments reflect HCD’s
interpretation of the requirements of state law. The proposed zoning amendments do
not permit any bonuses, incentives, or waivers other those provided by State law. The
amendments can therefore be seen with certainty based on review of the facts to have
no possible significant effect on the environment (CEQA Guidelines Section
15061(b)(3)). These amendments do not authorize the development of housing on any
site where housing is not already permitted under the City’s existing codes, and any
housing development project with a density bonus component must be reviewed under
CEQA.
Conclusion
Staff recommends the Planning Commission adopt the draft Resolution, recommending
that the City Council adopt the proposed amendments to the City's density bonus
ordinance to incentivize the development of affordable housing by allowing for density
bonuses and other incentives as provided by state law, providing additional City
incentives for affordable housing, and providing that the City’s ordinance will be
interpreted consistent with state density bonus law.
PC Mtg 8-10-2021
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Next Steps
The Planning Commission’s recommendation is tentatively intended to be presented to
the City Council on September 7, 2021.
Prepared by: Piu Ghosh, Planning Manager
Reviewed and Approved for Submission by: Benjamin Fu, Director of Community
Development
Attachments:
1 – Draft Planning Commission Resolution and Ordinance
2 – Letter dated May 3, 2021 from Department of Housing and Community
Development
3 - City Incentives for Affordable Housing
PC Mtg 8-10-2021
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