PC 09-13-05
CITY OFCUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
CITY OF CUPERTINO PLANNING COMMISSION
AMENDED MINUTES
September 13,2005
CUPERTINO COMMUNITY HALL
6:00 P.M.
TUESDAY
The Planning Commission meeting of September 13, 2005 was called to order at 6:00 p.m. in the
Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA., by Chairperson Gilbert Wong.
SALUTE TO THE FLAG
ROLL CALL
Commissioners present:
Chairperson:
Vice Chairperson:
Commissioner:
Commissioner:
Commissioners Absent:
Commissioner:
Staff present:
City Planner:
Senior Planner:
Assistant Planner:
Contract Planner:
City Attorney:
APPROVAL OF MINUTES: None
Gilbert Wong
Marty Miller
Lisa Giefer
Angela Chen
Taaghi Saadati
Ciddy Wordell
Colin Jung
Piu Ghosh
Tricia Schimpp
Charles Kilian
WRITTEN COMMUNICATIONS: Receipt of correspondence relating to Lindy Lane
application was noted.
POSTPONEMENTSIREMOV AL FROM CALENDAR:
1. U-2005-14
William Stephens
(T-Mobile)
20041 Bollinger Rd.
Use Permit to erect a 35-foot tall, slim-line
monopole with three panel antennas and an
equipment shelter for wireless phone service.
Request postponement to September 27, 2005
Planning Commission meeting.
Motion:
Motion by Com. Chen, second by Vice Chair Miller, to postpone Application
U-2005-14 to the September 27, 2005 Planning Commission meeting.
(Vote: 4-0-0; Com. Saadati absent)
Cupertino Planning Commission
2
September 13,2005
5.
R-2005-21
Anil Surpur
7630 Kirwin Lane
Appeal of an approved Residential Design Review
for first and second story addition to an existing
1,881 square foot residence for a total of3,389
square feet. Planning Commission decision final
unless appealed. Request removal from calendar.
Ms. Ciddy Wordell, City Planner:
· Reported that the application was an appeal filed by a neighbor of the .surpurs; an e-mail was
rcceived rrom the neighbor after he filed the appeal that he intended to withdraw the appeal.
Recently he indicated to us that he did want to keep it active, so our attempt would be to
continue it to the next meeting to do a staff report for it.
· The property owners wish to speak.
Ashwini Surpur, Kirwin Lane:
· Expressed ITustration about the remodeling project. The project was started in September 2004
and the plans were ready by November 2004; however, we did not submit the plans to the city
because the city was to come out with a new RI ordinance. We submitted our project in
March after the delayed Rl ordinance was in effect; the project was approved in the last week
of July 05. We are in compliance with the RI ordinance and have not requested any
exceptions.
· We tried to work with the neighbor and made some compromises in our second story to
appease the neighbor, and the neighbor agreed to withdraw his appeal until last night, which
means the city could not include it in today's agenda, thus further delaying the project. Had we
not been a good neighbor and good citizen of Cupertino, we probably would have had the
hearing today and we are certain the city would be more reasonable than the neighbor and we
would have resolved the matter amicably. Since our willingness on our part has compromised
our time, we would like to ask the city to take up the case in an urgent manner and resolve it at
the earliest time.
· I sincerely urge the Planning Commission to review our email to resolve the matter soon. We
feel we have been subjected to unprecedented harassment by our neighbors' demand that kept
changing until the last minute and the city's procedures have only helped delay matters. Ifthe
city of Cupertino wants to see more developments and hence more tax dollars, I would request
the city to reconsider some of the procedures.
· Please deal with our matter urgently.
Anil Surpur, Kirwin Lane:
· The project has been delayed beyond the considered time; the architect and structural engineer
have been put on hold because of these uncertainties and it is costing money, time and creating
a lot of ITustration, agony and inconvenience for us.
· We request that it be resolved as soon as possible.
Motion:
Motion by Com. Chen, second by Vice Chair Miller, to continue Application
R-2005-21 to the September 27, 2005 Planning Commission meeting.
(Vote: 4-0-0; Com. Saadati absent)
ORAL COMMUNICATIONS:
Deborah Hill, Rainbow Drive:
· Expressed concern about the traffic on DeAnza Boulevard and unsafe conditions for bike
riders on Rainbow Drive because of inconsiderate drivers.
Cupertino Planning Commission
3
September 13, 2005
· Said she was concerned about the unsafe conditions for pedestrians and cyclists in the areas
also of Bubb Road, McClellan, Prospect, Stelling and vicinity of Highway 85.
Chairperson Wong:
· Noted that there was a recent accident on Stelling Road involving a VT A bus hitting a tecnagør
child rrom Kennedy Middle School; and said it was important to keep the roads safer and have
people be cautious.
· Regarding the concern about Knob Hill Market and McDonalds, that is within San Jose's
jurisdiction and something you need to address with them.
Robert Levy, Cupertino resident:
· Expressed concern about the number of rental units that have been converted to For Sale units
in the last two years. The city says they want rental units but is allowing the rental units to
disappear.
2.
M-2005-03
Terry Brown
(Saeed F. Ghazvini)
10075 Pasadena Ave.
Use Permit modification (I0-U-88) to convert the second floor of
a commercial/office building to two residential units, expand the
second floor by 850 square feet and create covered parking.
Planning Commission decision final unless appealed.
Postponed from the August 23 Planning Commission meeting.
Piu Ghosh, Assistant Planner, presented the staff report:
· Application is for a modification to a Use Permit to expand the second floor of a
commercial/office building by 850 square feet, and convert the second floor to two For Sale
residential units and create covered parking.
· The property is part of a larger development that was being developed together; one Use
Permit governed the uses for the site, in 1988 they came in for another Use Permit that split off
part of the parcel and they are now applying for modifications to the existing Use Permit for
the site.
· Referred to the site plan and reviewed the adjacent property uses, shared parking on the
properties, setbacks, floor plans, elevations and building design.
· Staff recommends approval of the modifications to the Use Permit in accordance with the
model resolution.
Ms. Ghosh answered Commissioners' questions:
Com. Giefer:
· Relative to parking regulations, I noticed that the neighbor at 1060 I Pasadena, underneath the
carport it is labeled as No Parking - Tow Away. Would those 4 spaces where parking is not
allowed go into the parking calculation?
Ms. Ghosh:
· Those parking spaces are in the residential portion.
· The applicant can respond. We have talked to the applicant about putting parking for residents
only on the new carport. I understand that the carport is reserved for the residential units that
are already on that site.
· Confirmed that the units were For Sale units.
Cupertino Planning Commission
4
September 13,2005
Com. Chen:
· Page 2-6, Use Restrictions: Item 2 seems to restrict the use of the total square footage for
medical uses; is there a reason for that?
Ms. Ghosh:
· The reason is that the medical use can only use parking that is available onsite and they are
maxed out for onsite parking; if they were to change the uses, they would have to shuffle
between the three; you can't increase them on the medical use; you can increase them on
commercial uses on the site because they get credit for street parking; however, for medical
uses, you only get credit for onsite parking; you cannot count street parking toward that.
Com. Chen:
· Weare assured that any commercial parking is going to result in additional parking space;
therefore we don't restrict the use for commercial?
Ms. Ghosh:
· There will be a tradeoff; for commercial uses they could use the onstreet parking but if you
convert it to medical, there are no onsite parking spaces, you can't convert to medical.
Com. Chen:
· How can we be sure that any change of the use is not going to impact parking spaces?
Ms. Ghosh:
· We do require a parking study for anybody that comes in with a business license where we
know and are aware of a parking problem.
Ms. Wordell:
· This will be recorded as well, so the property owner will always know; I think it can be a little
tricky when someone comes in for a business license; and it is our responsibility to check a use
permit to see if there are limitations on uses and buildings.
Ms. Ghosh:
· Noted that there is a tax preparation office in one of the buildings; currently most of the
commercial space is leased, and applicant can answer.
Chair Wong:
· Asked for an explanation on how onstreet parking as parking counts; he thought it had to be on
the property in order to be counted.
Ms. Ghosh:
· Under the Monta Vista design guidelines and the General Plan, the properties get credit for
onstreet parking; if they have any commercial uses on their property, they are permitted to park
on the street.
Chair Wong:
· For residential, I know that the four spaces have to be onsite, and you are using the four street
parking for the commercial. I would assume they have access rrom the rront; my concern is
that for any guest parking since we are using these four street for the commercial and four for
residential, ifthere was any excess parking of guest parking, where would they go?
Cupertino Planning Commission
5
September 13,2005
Ms. Ghosh:
· Under the parking ordinance, they don't have to provide for guest parking. There are two extra
parking spaces on the street that have not counted toward the parking study, located on
Granada.
Chair Wong:
· Relative to Com. Chen's concern, we were trying to envision the Monta Vista master plan as
being an active mini downtown, and noticeably many of the businesses along Pasadena are
mainly medical office buildings, professional services, and not an active downtown. By adding
more housing units, will it defeat the purpose of the master plan?
Ms. Wordell:
· I think you would make the connection that by having residential above, you are also
contributing to the activity of the area, and I think the purpose of allowing commercial uses to
use onstreet parking was to encourage commercial uses. That is our hold on how we are trying
to do that. We do not have a restriction that it has to be retail.
Terry Brown, applicant:
· Said he represented the owner ofthe building, Mr. Ghasvini; and property owner to the north
10061 Pasadena Avenue, and himself, owner of property immediately to the west 21721
Granada Ave.
· He said he designed and built the building in 1986 and it was originally designed as a boutique
real estate office.
· With the advent of the larger real estate enterprises, the small real estate companies became
anachronistic and I have leased the building subsequent to the real estate people being there
and had a difficult time filling the upstairs space because it was designated to be general
commercial. The parking requirements required it to be that and upstairs general commercial
space is not the most desirable.
· I sold the property to Mr. Ghasvini about six months ago, and in our discussions about how to
keep the activity going there, the residential component of that corner does add to the general
mixture of people coming and going and a lively look. Our discussions led us to believe that
the best solution to the 10075 Pasadena building was to convert the upstairs to residential.
· From an architectural standpoint the other plan we had was a good one and I think it will also
give us an opportunity to finally formalize the parking arrangement with respect to the three
properties involved here and we do have a reciprocal parking agreement. Currently there are
five carports there, they are assigned and designated for the five residential units on site. There
may be a sign on 10061 that says No Parking, and I think that is in response to a previous
parking problem because of the church at Granada and Orange. I spoke to the people at the
church and they have since rerrained rrom parking there. We have not had any parking issues
for the last few years.
Com. Giefer:
· Reiterated that the signs state no parking at any time.
Mr. Brown:
· Said the signs were non-operable except for people who are not signatory to the reciprocal
parking agreement that the three properties currently have in place.
Cupertino Planning Commission
6
September 13, 2005
Com. Giefer:
· Asked staff if they were designated as no parking, why would they be included in the parking
calculations?
Mr. Brown:
· Said they would remove the sign as they had resolved the issue with the church parking, and
they agreed not to park there.
Chair Wong:
· Suggested that it be verified, since his understanding as a property manager was if you have a
tow away sign, by law you need to have a sign that says No Parking - Tow Away.
Com. Giefer:
· Perhaps it would be changed to Residents Only - All Others Will Be Towed. If it is illegal to
park in those spaces at any time, would we use those in our parking calculation, and would the
site actually be 4 or 5 spaces deficit?
Ms. Wordell:
· Said that they could either take the signs down, or if the property owner wanted, indicate that
only people who were supposed to be parking there, should park there. If that is done, you
could make it a condition to that effect, that the parking signs for the use of those visiting or
living at that property could be installed.
Com. Chen:
· Are the residential units on top rental units or owner units?
Mr. Brown:
· The building diagonally across the street at the southeast corner of Granada and Pasadena is
For Sale condominium units. The commercial space as well as the residential space, there are
8, 4 office condo, and 4 residential condos; immediately across the street to the east, are
rentals.
· I don't know about the other buildings not immediately adjacent or across the street. They are
both for sale and for rental.
· Said a condominium association would be responsible for the maintenance.
Chair Wong opened the public hearing; there was no one present to speak.
Com. Giefer:
· Other than the clarification on the parking, with support of other commissioners I would like to
add the condition that the 4 or 5 adjacent parking spaces that are part of the parking agreement
need to be clearly noted as being for residents only as a condition; I would support this project.
· If they are not available for parking, I would have a concern with regards to the overall parking
availability for the overall site.
Com. Chen:
· Said she was pleased to see the use of the property being changed for the better and would
support the project and support Com. Giefer's recommendation to add the condition to the
resolution.
Cupertino Planning Commission
7
September 13,2005
Vice Chair Miller:
· Said he supported the project; it is consistent with other properties and uses in the area and
also supported Com. Giefer's change.
Motion:
Motion by Com. Giefer, second by Vice Chair Miller, to approve Application
M-2005-13 with conditions that the parking be correctly labeled for residents
only or removed; and that the CC&Rs for the homeowners' association be
reviewed by the city attorney prior to the map being recorded.
(Vote: 4-0-0; Com. Saadati absent)
3. M-2005-12
Dan Ikeda (pSS
Ventures, LLC)
20414 Via Paviso
Modification of a Use Permit (8-U-94) to convert a 140-unit
apartment project (A viare) to for-sale residential condos.
Planning Commission decision final unless appealed
Continued from the July 26, 2006 Planning Commission meeting.
Ms. Tricia Schimpp, Contract Planner, presented the staff report:
· Reviewed the application for modification to a conditional use permit for the A viare
Apartment project, to allow the conversion of 105 units of the 140 unit rental housing unit
complex to For Sale residential condominiums, and 15 For Sale BMR units. Twenty units in
the complex will be designated For Rental use.
· The project must comply with the city's condo conversion ordinance; the key provisions of the
ordinance require a minimum of a 5.2 vacancy rate in the housing market area that includes a
little more than just the city limits of Cupertino.
· It also gives provisions for tenant protection in the event of a relocation plan and incentives to
purchase properties.
· She discussed the 11 issues rrom the July 26 Planning Commission meeting and explained the
proposed resolutions to the issues, and outlined in the staff report. The issues included:
o Parking easement and locked gate
o Maintenance ofBMR units
o Increase in BMR units rrom 20% to 25%
o Parking study to justifY 1.83 parking spaces per unit
o Resident meeting
o Obtain input rrom Housing Commission
o Solar heating of pool
o Current condition of existing BMR units
o Upgrade buildings for energy efficiency
o Vacancy rate for City of Cupertino
o Relocation Plan
· The conditions of approval include:
o Making 25% of the project available as BMR units
o Maintenance of common area and structural improvements shall be the
responsibility of the homeowners association
o A final report to be furnished to the Department of Real Estate
o A letter certifYing compliance issued by the city certifYing that the conditions of
approval have been met and the conditions of the ordinance as to the structural and
condition of the property have been met
· Staff recommends approval of the application for modification of the Use Permit per the
provisions of the model resolution.
Cupertino Planning Commission
8
September 13,2005
Ms. Schimpp:
· Clarified that there would be 20 units designated as BMR rental units; there would be 15 For
Sale units; staff's recommendation is to convert 105 For Rent units.
Com. Giefer:
· Within the conditions, many of the capital improvements spelled out such as solar heating,
knox lock boxes, are not specifically spelled out in the approved exhibits. Are they covered
under the term capital improvements or why are they not specifically called out as a condition?
Ms. Schimpp:
· These were issues we were asked to investigate and see what the applicant was willing to do.
There has been negotiation on a daily basis since the staff report was written.
· There is already a knox lock in place; doesn't need to be a condition of approval; solar heating
could be placed as additional conditions if you wish because it isn't in existence presently but
they have agreed to do it.
· The only thing that would need to go into an additional condition for project approval would
be pool solar heating.
Com. Giefer:
· There was correspondence with regard to the easement both rrom the SCS Development as
well as the homeowners association for the development on the opposite side of the fence.
· Asked for a summary on how the conflict is going to be resolved or the status of the issue.
Ms. Schimpp:
· Said they were communicating and are willing to come to the table and look at a resolution
that involves who is using the property, that the user of the property should maintain it for that
use.
· There are separate issues; the parking easement and an ingress/egress easement for fire access.
The controversy seems to be around the parking easement and that easement also includes
some landscaped areas that are used by the A viare complex for mailboxes and for landscaping.
· The Portofino neighborhood association wants to see that the A viare complex maintains their
portion of it, but they may be willing to maintain their portion that they use for parking.
Com. Giefer:
· At some later date, if the project is approved and the condos are later purchased, would it be
possible for the new homeowners association to move that fence so that A viare is actually
accessing those parking spaces.
Ms. Schimpp:
· I have not seen or heard any discussion to that effect. It appears that the parking easement
would remain parking for the neighbors on the other side of the fence.
Com. Giefer
· Or the fence removed so that both neighborhoods could access the parking.
· I am just trying to understand all the different scenarios of what could happen in the future if
this project is approved. Could the fence be removed; is there any reason that fence has to
remain as part of that project?
Ms. Schimpp:
· I haven't heard any negotiation to that effect; we would have to bring that up to the applicant.
Cupertino Planning Commission
9
September 13, 2005
Mr. Kilian:
· I would think they would have to come back for another approval.
· I think the city's concern here is to make certain that the easement on the other side of the
fence is actually maintained by someone and therefore the proper condition is found on 3-6,
the second condition which somehow didn't make it into the resolution, that is the condition
that you should retain and then it is up to the property owners to work out some alternative, but
that is the only way the city can ensure that the easement on the other side of the fence will be
maintained by requiring that the applicant maintain that easement even though it is on the other
side of the fence him unless some other agreement is reached.
· That would be the only concern of the city, and the private property owners can work it out
however they want to as long as there is assurance that someone will maintain it.
Com. Giefer:
· Said with regards to the BMR units in Building 6, she shared the concern that it could be
perceived as ghettoizing Building 6, which was not what was intended in the housing manual.
· The other concern I have is there is no elevator access to the third floor. We may have special
needs persons that need access to BMR units who will not be able to take advantage of a third
floor BMR. I am wondering how we resolve some of these items.
Chair Wong:
· Asked Com. Giefer if she would be agreeable if the 20 BMR units were in Building 6 to
require the owner to build an elevator for that particular building.
· For economic reasons, if you had to do that for every building the costs would be prohibitive;
since this is grandfathered in, that is something the applicant can consider.
Chair Wong:
· Another option is to allow the BMR units to be spread throughout the project on the ground
floor.
Com. Giefer:
· I think they should be commended for providing so many BMR units; but the other side is we
need to make sure that they truly accessible to people in need of those units.
Ms. Schimpp:
· The other concern is also when I look at this, Building 6 is the worst building; it is located
almost on the rreeway, which puts all the BMR units so close to the rreeway.
· She said there were over 300 BMR units in Cupertino since the program was implemented.
· In response to Chair Wong's question about city oversight of the tenants, she said the city
enters into agreements with each property owner in both the rental program and the ownership
program.
Chair Wong:
· Asked staff to bring back information on percentage of rental units in the city, compared to
owner-occupied units. There is a trend of selling For Rent units and it is important information
for the Planning Commission to have.
· Asked applicant to explain the tenant displacement plan.
· To staff - No.4 the parking study to justify 1.83 parking spaces per unit, will the parking ratio
be grandfathered; and based on previous history, do you foresee it to be a problem to have
updated to today's standards?
Cupertino Planning Commission
10
September 13, 2005
Ms. Schimpp:
· We do not because there is no change in the use of the buildings; one bedroom units remain
one bedroom; two bedroom units remain two bedroom and the parking study shows that the
use of those units comes out to about 1.83; one bedroom units were given one space per unit,
and two bedroom units 2 per unit, and the current parking study shows that it would result in a
1.7 ratio and that the standard that was adopted with the project originally is higher than that.
Chair Wong:
· Circulation-wise it wouldn't make sense to open up that fence and have folks park on the other
side, because I thought at the last public hearing that Portofino needed that space in order to
meet their parking requirements. Is that correct?
Ms. Schimpp:
· I am not aware of a particular arrangement that met Portofino's parking standards, but it was
evolved as part of the project that those parking spaces are for the use of Portofino and that
A viare is providing enough spaces.
· As far as opening the fence, the access there is more for a safety issue.
· In response to a question if Porto fino and A viare resolved their issue yet, she said that the
applicant or any HOA members in the audience could better respond.
· Said she would prefer that the BMR units not be located in Building 6, which is the worst
building.
Chair Wong:
· Said he understood the applicant's concern that if they wanted to manage the building, it would
be easier to manage one particular building even though it is three stories. The special needs
persons could be located on the first floor; if they are spread out it could be a logistical
nightmare.
Ms. Schimpp:
· They are condos and the buildings are maintained by the HOA, it is just the units.
Chair Wong:
· The outside is maintained by the HOA, and the inside if everything is located in one building.
It doesn't have to be the building next to the freeway, if we are going to ask them to do 25%
BMR, I think that we need to give the applicant some leeway.
David Nix, Consultant, assisting applicant:
· Relative to locating all BMR units in one building, we did think about how to disperse the
units throughout the project, and as indicated, in thinking through how we would integrate that
type of use with market rate For Sale units, we could see there being some difficulties down
the road, for the HOA to manage through.
· What we were hearing rrom the city was that they would like to retain the BMR Rental units
because as you indicated, there are 300 citywide and they are somewhat difficult to come by;
our thought was that if we could put forth a proposal to the city that would retain BMR Rental
Units, that would be something the city would appreciate.
· Since there are 7 buildings with 20 units each, it seemed natural to concentrate the BMR rental
units in one building. There are two units on the bottom floor; nine each on the second and
third floors. The two units on the bottom floor are ADA compliant; the units on the second
and third floors are not; the building envelope doesn't allow them to be ADA compliant.
Cupertino Planning Commission
11
September 13,2005
Com. Giefer:
· Asked what the perceived demand for the ground floor units would be when they are sold.
Mr. Nix:
· Because the ground floor units have direct access garages, there is likely to be significant
demand for those. There are 14 ground floor units.
· The current owner would retain ownership of that building and manage or contract to have that
building managed.
Chair Wong:
· Asked what the relocation plan was if the tenant decides not to purchase a property.
Mr. Nix:
· At the time approval is anticipated to sell the condo units, the residents should all be on month-
to-month leases; as their leases expire, renewals should be shorter term. When the units are
ready to be sold, if the tenants decide not to purchase the unit, the tenants will be given 30 day
notice to vacate and provided a moving allowance, a data base will be provided with available
units in the area.
Chair Wong opened the public hearing.
Ari Kahn, Aviare resident:
· Confirmed that he emailed a document to the Planning Commission yesterday.
· In May 2005, the Aviare's management required signing of said document which stated that
the apartment he was renting "has been approved for sale to the public as a condominium in a
condominium project".
· All tenants received such a notice which may account for the fact that none of the tenants
showed up at the July hearing to object to the conversion, because they had been led to believe
that the conversion was a done deal and there was nothing left to be done about it.
· The tenants were not notified of the July 2005 or present public hearing.
· The A viare management reported that the tenants were invited to a meeting to discuss the
condominium conversion in August; at the meeting the discussion included the approval
process and noticing of the approval process. However, by the time the meeting was held, the
hearing on the approval process had already occurred in July 2005. Any information given to
residents about the approval process in August was provided after the hearing, too late to be of
use to the tenants.
· The Aviare's management, by informing the tenants that the conversion had been approved
when it had not, and by failing to notify us of the hearings before the Planning Commission
pertaining to their homes has intentionally or not deprived the residents of their right to
participate in the process.
· At the hearings, the tenants might have said that the apartment vacancy surveys on which
A viare is relying, were performed in September 2004 and January 2005 when vacancy rates
were much higher in Cupertino than today. The market has picked up substantially in the last
year and apartments in Cupertino are few and far between.
· The vacancy rate at A viare as reported to by their management team at the last hearing, 95%,
that is despite the fact that all prospective tenants for the A viare are told that if they rent here,
they may be kicked out on short notice when conversion occurs; A viare has only a 5% vacancy
rate when prospective tenants are told they will be kicked out soon, is a testament to how hard
it is to find an apartment in Cupertino presently.
Cupertino Planning Commission
12
September 13,2005
· The tenants may have also suggested to the Planning Commission that the required 5.2%
vacancy rate should be applied after the proposed conversion is taken into account, not before.
· If the apartment demand is on the low side presently, we know it will come back soon; if you
grant the application, you are telling the people that the rules don't have to be followed and
you are telling middle income families they don't have a place in Cupertino.
· If you deny the application, you are affirming that following the rules is important and there is
a place for middle income workers and families in Cupertino.
Sharon Kohlmannslehner, Portofino HOA:
· When we spoke before you last month, I was referring to the easement and the fact that there
was a grant filed that specified the property owner was responsible for its full maintenance.
· What we are talking about is a 24 foot wide strip of land, part parking, part landscaping. She
showed photos of the area in question which was overrun with weeds, and the landscaping
encroaching on the ADA ramp. She said the HOA is concerned about the landscaping and have
complained about it before.
· Their solution is what is before you; it was forwarded to the applicant. Our idea was,
providing we remain the legal owners, to take full care and control of the 24 foot wide strip
adjacent to our homes, and revert the property back to what it was supposed to look like when
the original conditions were made. We would ask that all the utilities be hooked to our own, so
we could maintain our property and not be at the whim of someone who hasn't maintained it
for the last ten years.
· Our concern is because what we have seen is that it has deteriorated, the fact that it was an
original condition of development, the city has taken the position that this is a disagreement
between two private property owners, and for this to just go rrom the current property owner to
a new homeowners association means nothing will be resolved and the problem will continue
and we don't want to see that happen.
· As far as negotiations are concerned, the only negotiation we are aware of is staff was kind
enough to forward our list and we received a one sentence email at 4: 17 yesterday; we are
willing to take on the full obligation, we ask that our homeowners be financially protected and
this is how we feel this can be accomplished. For the property simply to pass rrom one
homeowner to another, it will remain the way it is, and we will have conflict between two new
HOAs and we don't want that to occur.
Farzaneh Abhari, Portofino homeowner:
· Said she was not aware of the July meeting.
· I talked to some owners and asked why the gates were closed and what the concerns were.
When the gates were open in the early times the big gate was open and therefore a lot of
communication' was going back and forth between the movers and they were using those;
therefore blocking the tiny road and making life miserable because those roads are the only
roads that are getting into Homestead rrom the homes in that area. Therefore based on some
agreement they locked the gate; the lock can be broken if it is required. Then there was a
pedestrian gate and for safety reasons for the homeowners on both sides, decided to lock it and
it is welded shut. I believe that there was discussion that the gate was supposed to be open
again so the kids could go to school. If the kids are going through Portofino or Corsica the
sidewalks are level with the street, the kids are not safe and if they go through Northpoint, they
are trespassing. They have to go back and go on Homestead because that is the safest area for
them. I don't see any reason for that gate to be open because I am sure it will be used by
moving company, block the road and make the transportation in the morning and afternoon
really difficult.
Cupertino Planning Commission
13
September 13,2005
· I understand that you want to make that area open so the kids can go to school but if we let
parents drive kids through that area then what happens to our kids. There are a lot of kids; if
you go through in the afternoon you see them playing on the street. I think that is part of the
community that was lost in a lot of other places and because those areas area gated, and you
have no flow of traffic, I would appreciate if you would keep the pedestrian gate locked and
then the other one is unacceptable.
Alexander Perez, Portofino resident:
· Since moving into the condominium for one year, I have not seen any maintenance on the
condominiums; there are weeds growing and it looks like a jungle.
· The growth of the weeds is unacceptable; a group of residents have come together for
resolution of the problem; want the Planning Commission to put in a condition to resolve a
long standing the issue that the two communities have had, but also future problems.
· This would make good neighborhood relations between the two communities and also beautifY
the city of Cupertino.
Poon Fung, Portofino resident:
· Pointed out that the strip of land between Porto fino and A viare apartments has not been
maintained for the last 10 years and they have made many attempts to get Citation Homes to
maintain the piece ofland.
· The parking strip that we have easement to hasn't been maintained.
· We have discussed one of the ways is to get the piece of land to us so that we can maintain it,
the homeowners would take the responsibility for it and we are going to pay to maintain it. It
would also make a good relationship with the new HOA. We don't want to come back to the
Planning Commission in the future and say the two homeowners associations are in dispute on
the old history.
· Weare not asking Citation Homes to give us the reserve money they have put into that piece of
land to maintain it; we want them to bring the land back to a decent condition and then hand it
over to us so we can take care of the maintenance.
· Urged the Planning Commission to help resolve the problem during the conversion.
Bajati Tedepalli, A viare resident:
· Addressed the issue of parking.
· A viare management said that the current residents with school age children could stay until the
end of the school year.
· There is no parking available after 7 or 8 p.m. What was included in the 183?
· Said he rented his unit approximately one year ago and within six months was informed that
the increase would be about $150 for a two bedroom apartment, which he felt was not an
appropriate increase.
· Said he might not consider purchasing the unit because he has a child and lives on the second
floor. He said parking is a problem and questioned whether the price would be reasonable.
Deborah Hill, resident:
· Expressed concern about growth of weeds; nothing has been done by the property manager.
· Expressed concern about the height of the new condominiums being built impacting privacy of
other residents.
Chair Wong closed the public hearing.
Cupertino Planning Commission
14
September 13,2005
Frank Nicoletti, General Counsel for Citatiou Homes:
· The dispute has been going on for several years; Citation has tried to solve it to no avail.
· It is impossible to deed the property over to Portofmo HOA because if you will recall the
borderline between the A viare apartment house and the single family dwellings, the parking
strip runs the entire length of the property, the easement is for not only Porto fino which has
only 32 houses in that subdivision; it is also for the Corsica subdivision which comprises the
majority of the homes in the subdivision. We can't just deed over a portion of the property to
Portofino and have it go away.
· The issue always has been what is defined as maintenance? The easement that was granted
puts the obligation to maintain the easement onto the property owner of A viare apartments;
that was done by the Mariani Development Corporation when they subdivided the property.
Mariani Corp. built the Portofino development and put the landscaping in for Porto fino.
Citation homes built the Corsica subdivision and Citation put in the landscaping for Corsica.
The problem has always been for Porto fino not wanting to maintain the landscaping per se
because the easement does not specifY that we have to maintain landscaping; it says you have
to maintain the easement.
· What is maintaining the easement? It says keep it free and clear of weeds. I don't see any
difference between Porto fino maintaining their landscaping regardless if they own the fee or
not; we are willing to put the landscaping back in the condition that they want it to be put in, or
reasonable condition, and let them maintain it. They have complete control over the property
on the easement because there is a fence bordering the property; they have all the parking; they
have all the easement as far as the landscaping benefits; nothing on that side of the fence
benefits the A viare apartments.
· I don't think we are going to be able to come to a conclusion regarding the deeding over the
property. That is a difficult position; but we are willing to accept your condition that you are
going to propose upon the conversion.
Mr. Nicoletti:
· Said he was referring to Condition No.2.
Vice Chair Miller:
· Obviously it is cleaner if everybody owns their own space; why can't you do a lot line
adjustment for the area that relates to Porto fino; and a lot line adjustment for the area that
relates Corsica to them.
Mr. Nicoletti:
· Because it is a non-exclusive easement for both of them; Corsica would then have to give up
their rights to park in Portofino; Porto fino doesn't have an absolute right to park in there; it is a
non-exclusive easement. They have their mailboxes in that area; there is nothing in the
easement that grants them the right to put their mailboxes in there, we have never said
anything about taking them out of there; we have left them there. That is the problem. Corsica
is fine with their situation; they have maintained their landscaping, Portofino doesn't want to
maintain their landscaping. They have all the benefit of that easement without any of the
burdens. It is completely on the other side of the fence; none of the A viare residents park in
that easement although they have a right to do so.
Vice Chair Miller:
· What you are saying is you cannot deed that portion to Porto fino because then you would be
violating the easement with Corsica.
Cupertino Planning Commission
15
September 13,2005
Female:
· We have no wish for Corsica to give up any portion of their rights to park between Homestead
and 280; it would be a question of what is the difference between us owning a portion of the
property and Aviare owning a piece of the property.
· We have no wish to make it an exclusive easement only to us.
Chair Wong closed the public hearing.
Vice Chair Miller:
· 1 still don't fully appreciate why you can't deed it to them with the required easements that
they have to provide Corsica with access to that particular piece of property.
Mr. Nicoletti:
· We can't make any grant of something we can't give away.
Mr. Kilian:
· What about quit claim quick claim any rights to the easement to Portofino, not a grant. You
are just quit claiming quick claiming any interest that A viare has.
· Suggested that they retain the condition as it is because that is the only leverage the city has;
the city has no leverage over Portofino to force them to do anything.
· Condition No. 4 states "prior to the sale of condominium, the applicant shall obtain
.. ...compliance." I suggest a minute order to Mr. Piasecki asking him that before he issues a
letter of compliance, the property be cleaned up because that is one of the conditions in the
application. You also may also direct Mr. Piasecki to have the fire department investigate
whether the weeds constitute a fire hazard. Those are temporary solutions, not permanent. I
am suggesting that the city is in no position to dictate but only can suggest possible
alternatives. In this situation, the applicant does have the duty to maintain the easement,
perhaps a quit elaim quick claim might resolve the problem since they are not granting
anybody else's rights or are they warranting that they are granting anything in a quit elaim
quick claim means simply whatever rights we have in the easement, we give up to Portofino;
that would make sense; on condition that Portofino execute an agreement that says they will
maintain that easement and I think the city would need to see that agreement before it changes
the condition. Tonight I don't think you are in a position to dictate settlement; I would suggest
merely approving the condition and also those minute orders would be helpful in ensuring that
the property will be cleaned up initially and not remain a fire hazard.
· I am not sure you are in a position to put some time lines; because what happens if they don't;
you can say that the applicant shall before obtaining a certificate of compliance, agree to
something, but I am not sure that is enforceable. I don't think an applicant is required to
dedicate land that has nothing to do with the city's approval as a condition to a permit for
development.
· I think you can however require that there be maintenance of the existing landscape and
maintenance of the existing easement as a condition to the approval. Again, the only
jurisdiction we have is over the applicant; we don't have jurisdiction over Portofino because
they are not before you. I think that if there was a settlement that the applicant would be back
in for a minor amendment that would allow a deletion or amendment to the maintenance
requirement contained in Condition 2, and in return for that, if he were granted that, he would
have to demonstrate that there is some sort of agreement approved by the city that had
Porto fino obligated to maintain that same easement before we would agree to modifY that
condition.
Cupertino Planning Commission
16
September 13,2005
Com. Giefer:
· The applicant did not respond to the questions regarding the noticing of the residents. The
Planning Commission had originally requested that the applicant make the residents aware of
the Planning Commission meeting. I would like some insight on that.
Chair Wong:
· Because this is tenant occupied and when we do the notification, how do the tenants get
notified other than having the owner notifY them.
Ms. Wordell:
· It is only the owner who is notified. It is a provision of the conversion that the tenants need to
be notified.
Chair Wong:
· Asked the applicant if tenants were notified of the public hearing or the conversion plans, as
well as the last public hearing.
Mr. Nix:
· Said they were informed that the city sent out the notices.
Ms. Wordell:
· Although there was a tenant meeting, were they directed to have a tenant meeting. I think that
was our intent as the way they would be notified.
Ms. Schimpp:
· Staff's intent was that you would have the tenant meeting and give them information about the
process at that meeting, and you did have the tenant meeting. The question is, how well
informed were the tenants about the process of the application.
Mr. Nix:
· Asked if the city sent out the notices, since that is what he was told.
Mr. Kilian:
· The notices of the hearings go to the neighboring property owners which is the obligation of
the city. I am not sure the city has an obligation to notifY the existing tenants under the law of
these hearings. Perhaps that is the case, but I am not certain the city did that.
Staff:
· Confirmed that the city must notifY the neighboring property owners; the ordinance requires
the property owner to notifY the tenant of the conversion.
Mr. Kilian:
· That is a different kind of notice; the answer appears to be the city did not send out a notice to
tenants of these hearings, but is requiring you to send out notice of your potential conversion.
Chair Wong:
· Said it appeared that Mr. Nix assumed that the city sent out the notices, but that Mr. Nix did
not personally sent out the notices to his tenants.
Cupertino Planning Commission
17
September 13,2005
It was clarified that the notice did not inform them of public hearings with regards to rental to
condominium units; the renters were never notified of the public hearing to discuss rental to
condominium conversion to anybody's best of knowledge here.
Mr. Nix:
· Clarified that notices of the meeting were sent out to tenants.
· Responded to an earlier comment that there was some communication to the residents that the
project had already been approved. He asked where that was provided to the residents, and
said he was not aware of anything that went out.
Vice Chair Miller:
· Relative to the maintenance of the landscaping, on the disputed strip there, is there precedent
in the city for the city doing the maintenance and having the HOA pay for the maintenance.
Ms. Wordell:
· Said she was not aware of any precedent.
Mr. Kilian:
· Said it was likely that the Public Works Department would say no.
· He said that Aviare had a duty to maintain the common area; however, it is an open question
whether it includes landscaping or not; it is unclear rrom the easements that were granted but
they do have a duty to maintain it. From the photos shown, it looks like it needs some
maintaining.
Chair Wong:
· And the private solution between two parties is that a quitclaim could resolve the issue.
Mr. Kilian:
· When Mr. Nicoletti mentioned the problem he had with granting rights that belong to other
people, I thought of a quitclaim because you are not granting rights of other people. It is just a
spur of a moment thing and I think they need to discuss that as a possible solution; and also the
Porto fino homeowners need to be willing to accept a quitclaim as well.
Com. Giefer:
· Couldn't we modifY the easement or place another maintenance easement as part of this?
Mr. Kilian:
· We can't change property lines and easements and things like that. It affects three different
parcels, we only have one parcel before us. We are not in that position to do that.
Chair Wong closed the public hearing.
Ms. Schimpp:
· The applicant provided us with a tenant relocation displacement plan, in which they laid out
their proposal for notifYing the tenants of the process.
· They listed the things they agreed to do: Send out notice of intent to convert; notice to
prospective tenants that prior to signing a new lease all prospective tenants would be aware of
what is going to happen; they would provide a 180 notice of intent to convert; it says they
would provide a notice of public hearings to the tenants; notice of application to the DRE,
notice of a final map approval and a 90 day exclusive right to purchase.
Cupertino Planning Commission
18
September 13,2005
Ms. Wordell:
· That is part of the relocation plan; there is nothing in the Code that requires them to notifY the
tenants of the public hearing.
Ms. Schimpp:
· We had asked them to hold a recent tenant meeting to provide this kind of information to the
tenant; and the information I received rrom the tenant, was that they did hold the meeting, 40
to 50 residents attended, and that part of that was to give them the approval process noticing of
the approval process at that meeting.
· The applicant has complied with our request for noticing the tenants.
Mr. Kilian:
· One of the requirements to go forward is that there be a valid tenant relocation plan; and in the
plan it says that the owner shall give ten days written notice to all tenants of all public
hearings. I cannot find where that is required in the code to do that, but it doesn't seems to me
that giving people notice at a meeting of those people who came to a meeting of another public
hearing satisfies that requirement because a lot of people may choose not to come to the tenant
meeting, but they would want to come to the public hearing and they would not get notice of
that unless they got a specific written notice that has specified.
· It is my opinion that this matter needs to be continued to allow that 10 day notice to occur. I
know I don't make that opinion lightly but I don't see how, especially in this climate of
providing as much notice as possible to people, especially people who are being relocated, that
we not give the notice that is mentioned, discussed and promised by the developer in the
relocation plan. It is my recommendation that the application be continued to September 27th,
that a 10 day notice be given to all tenants of that hearing, and that we hear this again at that
time.
Com. Giefer:
· In the document we shared with the applicant that was written some time ago, noticing that the
condominium conversion had been approved, if we determine that we will continue this item,
would it be appropriate for us to ask them to correctly inform the residents that the project has
not yet been approved?
Mr. Kilian:
· If you decide to continue this to provide further notice, I suggest that the city provide the 10
day notice to the tenants, because we can control the notice; rather than the owner be required
to do the noticing.
Com. Giefer:
· If I was a renter and was asked to sign that as part of maintaining my residence, I would feel as
though there was no reason to come because they already informed me that it was sold. I think
it is important for us to distinguish that in our notices, that the other notice was incorrect.
Chair Wong:
· I think what our attorney said is correct; we probably need to renotifY that there is a concern
regarding notification to make it clear; that the city of Cupertino will do the notification.
· There are two other issues, and perhaps that will give time for the Portofino and A viare folks
to resolve that issue so that we can have closure on that.
Cupertino Planning Commission
19
September 13, 2005
· Does the commission want to give insight on that; does the 25% BMR satisfY our concerns, or
do you want to wait?
Com. Giefer:
· The number of BMRs is very generous; I am concerned about segregating the BMRs into one
building; perhaps the applicant would consider allowing up to 4 ground floor units, because I
would not want to deprive them of the ground floor units; and perhaps take the 9 second story
units and cluster them in another building; spread it across 2 or 3 buildings, but cluster the
BMRs so that you don't have every BMR in one building. I do thank the applicant, and think
it is very generous for them to work with us on that.
Vice Chair Miller:
· The 25% is very generous; given the fact that there are some other issues on the table, and we
have to do proper noticing before hearing the item, that gives the applicant some time to think
about some of the suggestions made here, and if you want to make some changes or not.
· I would like to hear rrom the city more about what the ratio of rentals to ownership units there
are in the city as well as we move forward to the next hearing.
· In general, I think the applicant is helping us in the BMR market quite a bit, and I perceive that
what he is asking for in return, is to make it a little easier for him to manage the units that he is
going to keep under his control and if he can do that over two apartment buildings vs. one,
fine, or I want to hear back rrom him whether that makes sense, or whether it still makes sense
to keep them all in one building for an ease of use standpoint.
· I would also encourage the applicant to consider general counsel's suggestion of a quit claim
because that would settle the issue with Porto fino.
Com. Chen:
· The applicant is being generous with the BMR units.
· Also understand rrom the property management standpoint, you want to centralize the BMR
units in one building; I do share Com. Giefer's concern about not having enough ground units
for special needs families; otherwise centralization of the BMR units would be ideal rrom a
management standpoint.
· Since it was not properly notified, we did not hear enough comments rrom the tenants of the
property; but I heard the concern about the parking and I want the applicant to consider a
designated parking plan for each unit so there is a guarantee units for tenants in the building.
Chair Wong:
· I echo the comments of my colleagues.
Motion: Motion by Com. Giefer, second by Com. Chen, to continne Application
M-2005-02 to the September 27, 2005 Planning Commission meeting.
(Vote: 4-0-0; Com. Saadati absent).
It was clarified that the city Planning Department staff would send out the notice of meeting to the
tenants.
Chair Wong declared a recess.
4.
U-2005-11,
ASA-2005-07
Thomas
Use Permit to add 1,774 square feet to an existing 7,345 square
foot shopping center (Homestead Shopping Center) near Foothill
Expressway) Architectural and Site Approval for an addition
Cupertino Planning Commission
20
September 13,2005
Harrington
22350-82
Homestead
Road
to and renovation of an existing shopping center.
Planning Commission decision final unless appealed.
Postponed from the August 23, 2005 Planning Commission
meeting.
Mr. Colin Jung, Senior Planner, presented the staff report:
. Reviewed the application for a Use Permit and architectural site approval for a 1,774 square
foot commercial addition to an existing building, and renovation of commercial building as
outlined in the staff report.
· He reviewed the parking issue relative to the conversion of the empty restaurant into general
retail space, as outlined in the staff report.
. Staff recommends that the Planning Commission determine the acceptable level of parking
deficiency for the property, understanding that there will be a requirement for sharing of
parking supply between the Los Altos and Cupertino sides of the shopping center.
· Staff recommends approval of the Use Permit in accordance with the model resolution and any
parking condition of approval put on it; and approval of the architectural and site approval.
Vice Chair Miller:
· Does staff have any information on looking at the use of a coffee shop, in the context of a
shopping center? Do we have any information on the likelihood that people just don't go there
for the coffee shop, that many of the customers will be shopping in other shops; therefore
there is justification for a reduced parking requirement.
Mr. Jung:
· That would be the case for the shopping center; it is one of the uses that the shopping center
does not have; it is a neighborhood shopping center with a grocery store, drug store, a bike
shop, pet store, restaurant, salon, a nice full service neighborhood center.
Vice Chair Miller:
· Asked if there was any indication that there has been a parking shortage, that the deficit has
created an issue there in terms of parking in the past.
Mr. Jung:
· No, we haven't had it; there have been very few people that have parked under the Cupertino
side of that center, other than the Blockbuster Video, but there is very little use of that parking
as it is right now. The times I have visited that shopping center, I have never seen the Los
Altos side more than 50% full.
Chair Wong:
· Trader Joes has been successful; usually the rront half of the center is full; toward the back it is
usually empty.
Vice Chair Miller:
. If we approve this and hopefully the center will be more successful, and if parking becomes
more of an issue, what remedies do we have at that point?
Ms. Wordell:
· In the past, although we have had the ability to revisit use permits without being explicit about
it, we have said that should parking problems arise in the future, a public hearing would be
Cupertino Planning Commission
21
September 13,2005
scheduled to pursue alternatives. You might look at number of seats, reducing number of
seats, without creating hardship; that would be the opportunity to look at those options.
Mr. Jung:
· Said the majority of the parking and commercial uses are in Los Altos and the Planning
Department doesn't have any control over what they do there. The least used side of the center
is the Cupertino side.
Chair Wong:
· Com. Miller has a good point, that if we do have a successful coffee shop and the tenant did
have a successful retail there, the overflow would most likely go into the southern part of the
shopping center; of course it goes into the Los Altos side of the portion, which is not within
our jurisdiction.
· I heard you correctly that we could tie the deed if it is the same property owner, that if he
would sell a portion of his center and if there was overflow parking.
Mr. Jung:
· We would want a shared parking arrangement between all those parcels there.
· Pointed out that the Blockbuster Video property is not part of the mix; it is a separate stand
alone parking and does not have connected circulation to the rest of the shopping center. A
condition has been added to the Use Permit and what has been done with many properties on
DeAnza and Stevens Creek Boulevard is that staff is requesting that the property owner
covenant that he would agree to a cross excess easement with the adjacent Blockbuster
property at such time when they can get an agreement rrom them, so they can have a fully
connected, circulated and parked shopping center there, even if it is under different
ownerships.
Chair Wong:
· I saw that request, when Mr. Cannon suggested crossing over rrom Blockbuster and Cupertino
Homestead shopping center. My concern is that wouldn't it take away spaces and have a lower
count because we already have a deficit.
Mr. Jung:
· They are probably parking over there anyway.
Chair Wong:
· But it still defeats the purpose of having a parking deficit. You need to take away at least two
or three parking spaces in order to have a thoroughfare to go into the Blockbuster parking lot.
Vice Chair Miller:
· I noticed there was access today because the wheel blocks are not all there; there are two
spaces that don't have wheel blocks but it seems if you did that connection, you would loose
those two parking spaces. It is a little more difficult but you can circulate through into the Los
Altos side and come out on Homestead and then go back into the other parking lots.
· Before taking more parking away for a connection, we may want to keep the current
arrangement which does allow circulation into the other lots.
Cupertino Planning Commission
22
September 13,2005
Chair Wong:
· 1 concur with what Vice Chair Miller was saying that if you were to put that in and it wouldn't
affect Blockbuster unless it were to redevelop their property, that it would just add to the
deficit and I am not sure that is the right thing to do.
Ms. Wordell:
· One of the selling points of the project is that it is an incentive to redevelop.
Chair Wong:
· Since they haven't found a tenant yet to occupy the coffee shop, could it be converted back to
a restaurant; or what are we approving tonight?
Mr. Jung:
· Approval is for a commercial addition now; that on the face of it, if it were parked at a general
retail level, would create a 10 space parking deficit. If you were interested in allowing a more
intensive use such as a coffee shop, then you would approve a larger parking deficit than 10
spaces, and some suggestions were provided. You would probably want to talk to the
applicant about it since he is pursuing the tenancy for the space.
Tom Harrington, applicant:
· Provided a brief history of the shopping center and his plans to upgrade the center and add a
coffee shop.
· He requested flexibility in acquiring the tenant for the coffee shop.
· He explained the proposed parking as outlined in the staff report.
· Noted that the Children's Learning Center generated traffic in the morning and evening, but
not during the day.
· He said he was willing to make a cross parking agreement.
· Said that the potential coffee shop tenants were Starbucks or Peel's Coffee.
· Explained that plans included a coffee shop, upgrading of China Shuttle, a restaurant in place
of the Red Pepper, and interest shown rrom Quiznos.
Chair Wong opened the public hearing.
The architect, John Miller, did not speak.
Jayne Ham, owner of Blockbuster Video:
· Said that there was a lot of tenant interest in the center.
· Expressed concern about overflow rrom the Cupertino side onto her side and congestion
issues.
Chair Wong:
· Said that Ms. Ham's concerns would be addressed later in the public hearing.
Com. Giefer:
· Asked if Ms. Ham was interested in expanding her parking for her site by having a reciprocal
parking arrangements with Mr. Harrington's parking lot.
Ms. Ham:
· Said she was open to suggestions, and wanted to ensure that her business did not suffer a
negative impact.
Cupertino Planning Commission
23
September 13,2005
Mr. Jung:
· Reviewed the parking situation in the center and potential solutions.
· Said that there could be a condition of approval for the applicant to fund a circulation study of
the area to ascertain what improvements could be made to the area to make it work better.
DavId Erck, Maxine Avenue:
. Remarked that the property looked its best at the present time, and urged the Planning
Commission to do what they could to expedite allowing the applicant to move forward with his
proposal to change the derelict area and improve that section of town.
. I take exception to the plan for the 60 degree angled parking; I would leave it at 90 degrees.
· There is going to be more congestion; there are plenty of traffic lights there now.
Deborah Hill, Cupertino resident:
· Said she welcomed a coffee shop, and urged the project to get started.
Chair Wong closed the public hearing.
Mr. Jung:
· Said the 90 degree was not a probable option, the driveway is too narrow rrom the current code
standpoint to do 90 degree parking; that is why the applicant proposed 60 degrees.
· He said they were approving the landscape plan in its conceptual plan and staff will go in with
a more specific plan.
Mr. Harrington:
· Said he did not have a specific number for seating count, he would take into consideration the
space and hope for some outside tables.
Mr. Kilian:
· Suggested that a hearing could be held in about a year as a condition stating that if there are
parking problems, the Planning Commission will consider alternative measures which may
include reduction of the seating; which would give the applicant flexibility with the
understanding that if it creates a huge traffic problem, the city has the authority to come back
in and order less seating.
Discussion ensued regarding parking.
Vice Chair Miller:
· Suggested that as part of the condition of approval that the employees would park somewhere
other than in the parking area in rront of the Cupertino side; which may make it easier for us to
give the applicant the flexibility he needs and approve it tonight.
Com. Giefer:
· Suggested parking directional signs. We have to look at our code and also need to be practical;
I have not seen anyone park in the center of the shopping center, and I think Vice Chair
Miller's suggestion is good, but perhaps we just need parking directional signs, since he is
going to have reciprocal parking agreements between his Los Altos property and his Cupertino
property.
Cupertino Planning Commission
24
September 13,2005
Mr. Harrington:
· Said if the combination parking filled he would commit as a condition to give all the tenants in
both shopping areas direction to have their employees park behind the lights.
Chair Wong:
· Asked the applicant if he would be comfortable coming back in one or two years to review the
parking situation. He said he was not requiring a traffic control now, but it is the only way in
case there is a traffic or circulation concern that needs to be reviewed.
. We want you to be successful, and eventually you might need to ask for it; and I would rather
ask for it now than later.
Ms. Wordell:
· I know that he expressed concern about leases, but I don't know that you would need to write
into that review that you would mandate a reduction of chairs; I think you would look at
options. He need not fear at this time that in fact you would impose on him; he could look at
all kinds of options; I think you could alleviate some of those concerns. You word the
condition relative to what kind of review there would be.
Chair Wong:
· My concern is that i[J wanted to make a left turn rrom the Cupertino shopping center and there
is a huge queue, staff had a good suggestion for a right turn; but for people who want to make
a left turn to get back onto the rreeway, during rush hour there is a queue and it is very difficult
to make a left turn to go toward Foothill Expressway. How would you address that?
Mr. Kilian:
· The condition would say something like" Within two years the staff will review the parking
and circulation portions of the plan and if there is a problem would bring it back to the
Planning Commission for a hearing. At that time the Planning Commission can consider
various alternatives which may include additional signage, additional employee parking onsite
and other measures which may alleviate the parking or circulation problems; leaving it broad
with the understanding that it may involve other alternatives which may include reductions of
seating." That is how it was done in the past.
Ms. Ham:
· I want to make sure you want me to succeed also. If I put my tenants in there and if more
parking is required on my spot, are you able to do this seat deficit?
Mr. Kilian:
· Assured Ms. Ham that if the condition applied to one, it would apply to her as well when she
came in for development.
Mr. Jung:
. As far as shared parking goes, that requires the agreement between two parties, and Mr.
Harrington may not necessarily want to share his parking with his neighbor.
Mr. Kilian:
. You can put that as a condition that he agree in advance to that now; that is how we get shared
parking in this community. The condition would read that the applicant agrees in the future to
enter into a shared parking arrangement with the neighboring property, should that property
develop differently than it is now. That is not an unusual condition.
Cupertino Planning Commission
25
September 13,2005
Mr. Harrington:
· With all due respect, I don't think I can agree; I am offering to come to this city, spend a lot of
money to improve the property, and I understand certain reasonable conditions. But for you to
try to tie my property up and ask me to agree to something that I may not want to agree to in
the future because of whatever, I don't think I can agree to that. I understand your concern;
you asked if I would cooperate, if I would come back in a year or two; I will do all that. I have
shown good faith, I have shown what I want to do to this area, I have improved this piece of
property; however, I think that condition you mentioned is over the top.
Chair Wong:
· Fifty seats will give Mr. Harrington enough flexibility.
Vice Chair Miller:
· The suggestion that I would still like to pursue is that we have something in the conditions of
approval that addresses employees parking in spaces other than customer spaces. Some
solutions could include labeling the spaces for customer parking only. It seems to work
successfully in other establishments and I would like to include that in the conditions of
approval.
· I am comfortable with the 50 seat number under those conditions and also in two years or
whatever timerrame, we come back and look at this application again rrom the standpoint of
making some changes if the parking does become a problem.
Mr. Kilian:
· Do you want staff to make an initial determination if there is a problem before coming back to
the Planning Commission or do you want it automatically coming back to the Planning
Commission?
Vice Chair Miller:
· I think we can trust staff to make a determination.
Chair Wong:
· I want to add my concern about adding a right hand turn so that folks don't have to queue up.
· Suggested an extra space to allow a right hand turn.
Mr. Jung:
· Said that the transportation department should look at it; however, he was certain that it would
have to include the landscape bulb and at least two parking spaces.
Vice Chair Miller:
· Asked why they were taking out spaces on the far side if it is a right hand turn.
Ms. Wordell:
· That is a right hand turn there; people will be coming out that aisle making a right hand turn.
Vice Chair Miller:
· If your experience is that it is an issue, we should address it.
Cupertino Planning Commission
26
September 13,2005
Com. Chen:
· I agree with Com. Giefer that we should look at it rrom a practical standpoint and with the
agreement of the parking shared among the Los Altos side and the Cupertino side, I don't have
a problem with the parking,
· The circulation is very limited and I would agree with the right hand turn even though it is
going to put the parking calculation into more deficit.
· I would support the project with a future review and adding the right hand turn.
Com. Giefer:
· I would agree with my colleagues; am somewhat concerned about removing landscaping.
· I agree that the right hand turn is necessary but I am somewhat concerned about removing the
landscaping because there is outdoor seating there and I think that the landscaping will allow
the patrons to feel more protected. That is a concern of mine, but I don't know how they would
do that, if they would build a wall or if there is some other way to screen; they would have to
find some way to buffer that.
· I would like to go back to reciprocal parking because I think that as the Cupertino portion
becomes more popular, we want all of our Cupertino property owners to be more successful
and I would like to see all the businesses be successful. If in the future there is future
development done on the Blockbusters sight, I think it makes sense to have a shared parking
arrangement for all of the property owners on the site; more rrom the practical use of the
customers, because it is ITustrating when you are in a large parking lot and you want to get
rrom Point A to Point B and there is a wall there or landscaping, there is no way for you to
traverse the parking lot.
· From a practical perspective I support the parking deficit we have talked about; I support the
right hand turn lane, but I think we need to add the condition that the attorney discussed, even
though I know Mr. Harrington is not in favor of that condition. It is more for the convenience
of the consumer, I am trying to be sympathetic with the consumer who is going to be a
customer. It is customary for us to include that in our parking agreements between multiple
land owners.
Vice Chair Miller:
· I am hesitant, because there is a parking deficit and we keep proposing solutions that take
parking away. I don't see how to have a reciprocal agreement without taking four parking
spaces away rrom a center that is already in deficit and we just took two more away.
Com. Giefer:
· I would agree with you; I don't see it as a short term, and I think at that point, they would have
to look at restriping and traffic flow between the entire center. I don't see it as just removing a
couple of spaces or landscaping to fix it today; maybe the landscaping would fix it today on
the Blockbuster site, but I am thinking more long term.
· 1 didn't hear that Blockbuster is eminently up for redevelopment and I think it is one of the
conditions if that did come before the Planning Commission that perhaps at that point we
would ask for a traffic pattern within the center, to evaluate that.
Vice Chair Miller:
· Perhaps the solution is evaluating it in two years, and if there is a traffic pattern it means that it
is successful. At that time they could address possible solutions.
Cupertino Planning Commission
27
September 13, 2005
Com. Giefer:
· I am not trying to stop the project; I think we should move forward on it; I am trying to be
practical about future development for the entire center; how we might potentially actually end
up with more parking than necessary and route traffic better. I am trying to think about it rrom
the consumers' perspective.
Com. Chen:
· I see the benefit of having reciprocal parking for the whole area from the consumers'
standpoint; and also whether we have the agreement in place or not, if there is overflow
parking needs rrom any site, people will park where they can find a spot; so whether you have
an agreement or not, it is going to happen, but having an agreement would definitely improve
the circulation and also improve the whole area and I tend to agree with Com. Giefer that I
think the requirement to review the potential reciprocal parking if not now, at least in the
future, will be good.
Chair Wong:
· Thanked Mr. Harrington for coming to the Planning Commission tonight, and commended his
work at the Foothill Crossing.
· I am a huge parking advocate and I want to make sure that we have adequate parking.
· I am pleased that you will accept what the City attorney said regarding coming back in two
years, that it will give you the flexibility of having up to 50 seats, which will give a deficit of
20, which can be adjusted accordingly as it will affect your neighbor too. We want to make
sure your neighbor also has a successful business, so that the whole center will be successful. I
do support what Vice Chair Miller said and what our city attorney said.
· I am concerned regarding circulation at both the Los Altos and Cupertino shopping centers; I
believe that the right hand turn is very important; hopefully within two years we will see if we
need any extra measures on your property.
· Regarding the reciprocal agreement, I understand Mrs. Ham's concern that she wants to make
sure she has a successful retail center as well. I am concerned that whenever we have
reciprocal agreements even though we have the city look at it, five to ten years down the line
we run into problems.
· With the amount of flexibility we allowed Mr. Harrington regarding the parking deficit, I hope
that he will work with Mrs. Ham, that if she has concerns regarding her parking that somehow
we can work in some kind of gentlemen's agreement that whatever benefits him is going to
benefit her.
· I know that there is a two split, and I know that the policy is that the city would like to have
shared easement, but in this particular case it doesn't make sense. The reason is you have
mainly three parcels; you have Mr. Harrington who has a parcel in Cupertino; Mr. Harrington
also has another shopping parcel in Los Altos; Mrs. Ham is in the middle. There are five ways
to get into the center, eventually Mrs. Ham and Mr. Harrington will have to work something
out but I would rather have them work something out instead of tying Mr. Harrington's hand.
The money that he spent on the center I believe that it will be beneficial to Cupertino, but
again Mr. Harrington is going to be coming back in two years, so he knows that in two years
we are going to be reviewing his project and at that time might enforce something. We don't
want to do that, but we do have something tied to his project as well.
· I am asking if the Planning Commission would consider giving Mr. Harrington his flexibility
so that he can have a successful center and let his project move forward.
Cupertino Planning Commission
28
September 13, 2005
Mr. Jung summarized the conditions:
· Applicant shall be allowed to have up to 50 additional seats for a specialty food retail operation
for the project.
· Applicant shall direct employee parking to more remote locations in the shopping center and
also label the spaces in the rront of the store for customers only, or put time limits of 15 or 30
minutes.
· If parking circulation is a problem within the next two years, staff will review the project
within three years and should there a traffic or circulation problem, will take it to the Planning
Commission for further hearing to discuss options to reduce the problem, which may include
signage.
· Applicant shall provide a rree right hand turn out of the driveway.
· I don't know what you want to do about amending the condition regarding requiring the
reciprocal ingress/egress easement when we can get the other property owner to agree and I
don't know if you want to expand that to include parking.
Com. Giefer:
· Pointed out that if we did have that condition in and we add reciprocal parking, you wouldn't
need the right hand turn lane since there would be one driveway as entrance and one as exit.
Motion:
Motion by Vice Chair Miller, second by Chair Wong, to approve Application
U-2005-11 and ASA-2005-07 with the changes suggested by staff, on the
parking and the right hand turn only at this point.
Com. Chen:
· The plan is a window of opportunity to have reciprocal parking to put in place and also
improve the overall appearance and circulation and many other things for the entire area. I see
Mrs. Ham's property being the minority in this area; and if we miss this opportunity we may
miss the chance to have an overall development for this whole area.
· I don't want to see the opportunity go away.
Chair Wong:
· How important is it to have the ingress/egress parking circulation; can Ms. Ham still develop
her property without this and do we need this as a leverage for the other property owner to
make this a successful project?
Mr. Jung:
· There are a lot of permutations about how this property mayor may not redevelop and I am
sure the first thing Ms. Ham is looking at is not really a redevelopment of this property at this
point, but possibly a re-tenanting of the existing building as it is now. I had a conversation
with her where she said that Blockbuster was not doing so well, and was interested in
shrinking the size of their store and she was looking for other tenants such as a bank, a coffee
shop. I pointed out to her that there is parking there for a general retail use which will be fine
for a Blockbuster Video and a bank. It will run into a parking deficit probably if you are
talking about a coffee shop, much like what we have with Mr. Harrington; but Mr. Harrington
has the leeway in my mind, because of the rest of the shopping center, it spills over any
mistake into the rest of the lot. Unfortunately Mrs. Ham doesn't have that particular option
because she has a small ownership piece within a larger shopping center.
Chair Wong:
· If she had multiple tenants, then she will have a parking deficit.
Cupertino Planning Commission
29
September 13,2005
Mr. Jung:
· Only if it is a specialty food retailer or a restaurant use, which seems to be the most popular
nowadays. Without the cooperation of the next door neighbor, she would need to meet the
parking requirement, unless the Planning Commission would override the parking deficit. She
would have to come back and amend the use permit and ask for granting of a parking deficit
for a more intensive use of her site.
Vice Chair Miller:
· If we add a reciprocal parking agreement, does that imply that we immediately take two or
four spaces out in order to implement that or can we say a reciprocal parking agreement to be
implemented at such time as parking becomes an issue. The city attorney says the latter.
· Is that a reasonable compromise that we add a reciprocal parking agreement but not to be
implemented until parking becomes an issue?
Com. Giefer:
· I would agree to that if we also said "or as the adjacent property is redeveloped" because that is
my concern. If someone wants to use the pad but the building is not the right format, and there
could be some change we are not anticipating, I would like to add "redevelop" to the language
you have suggested.
Vice Chair Miller:
· At that time, it means we reduce the parking spaces to do this reciprocal agreement.
Com. Giefer:
· At that time if all of the businesses there are doing so well, it may make sense to do more
restriping, a different circulation plan, and look at the parking altogether between Los Altos
and Cupertino. I can't foresee that time in the future.
Mr. Jung:
· Another option in the future if the property were redeveloped, is to consider closing off one of
the driveways and having a joint driveway between the two properties, which mayor may not
create additional opportunities for parking.
Com. Chen:
· Said she agreed that the reciprocal plan has to be in place when adjacent property is ready to
redevelop, or if traffic becomes an issue.
Amended
Motion:
Motion by Com. Giefer, second by Com. Chen, to include reciprocal
parking when parking becomes an issue or the adjacent properties are
redeveloped; and limit seating to 50 seats. Amended motion accepted by
Vice Chair Miller and Chair Wong. (Vote: 4-0-0; Com. Saadati absent).
(Vote on initial motion: 4-0-0; Com. Saadati absent).
6.
U-2005-13,
ASA-2005-09
(EA-2005-09)
Justin Mozart
(Homestead Rd.
Use Permit for 6 two-story single-family homes ranging rrom
approximately 2,400-2,800 square feet. Architectural and Site
Approval for 6 two-story single-family homes ranging rrom
approximately 2,400-2,800 square feet. Planning Commission
decision final unless appealed.
Cupertino Planning Commission
30
September 13,2005
L.P.) 10977-
10985/22028-22036
Acacia Way
Chair Wong recused himself rrom discussion of the application as his family has interest on the
neighboring property.
Mr. Jung presented the staff report:
· Reviewed the application for a Use Permit and Architectural and Site Approval for 6 two-story
single-family homes in a residential planned development rone.
· He reviewed the background of the site, including previous uses, permit history, surrounding
land uses, and design of the houses as outlined in the staff report.
· The seven lot project approved by the City Council in August 2000 at the time our BMR or
affordable housing policies required a 10% BMR requirement. Since the project was 7 lots a
BMR unit was not required. Applicant was required to pay in-lieu fees because it fell below
one unit; those fees were never paid by the applicant; subsequently his planning entitlements
expired in August 2002 and shortly thereafter in November, the city changed its BMR policies
rrom 10% to 15% which if applied to a new 7 unit development at this site because new
permits would have had to been acquired, would have required a BMR unit for this particular
development. Because the applicant wanted to improve the design of the project itself and
thus needed a more generous lot size, he did reduce the number of lots, he increased the size of
the lots, but reduced the lot number rrom 7 to 6 due to lot line adjustments and this negated the
BMR rate unit requirement, but he is still responsible for in-lieu fees.
· He reviewed the proposed tree retention and landscape plan to mitigate the loss of the trees, as
outlined in the staff report.
· The application will not be heard by the City Council unless appealed. Staff recommends
approval of the Negative Declaration and the Use Permit per the model resolution including an
additional condition that prior to building permit approval, the applicant shall record on each
For Sale lot a joint maintenance agreement for the private street; and then for the ASA
approval, staff recommends approval per the model resolution.
· He noted a correction to the title of the resolution.
Mr. Jung:
· Answered Commissioners' questions about FAR, and floor plans. Relative to the square
footage of the second floor, he said that staff was not opposed to larger second stories, but
favored good design. In dealings with the applicant, staff is willing to be more flexible on the
second story because there is a cohesive development of six homes, all with a superior design.
Com. Giefer:
· Questioned whether the applicant was proposing to use energy saving building techniques, or
photo voltaic panels on the roof that matched the shingles.
· Asked how the privacy plan was addressed.
Mr. Jung:
· Not to my knowledge, but you can ask the applicant if that is something you are interested in
doing, whether he would be willing to incorporate those features into the houses.
· Said that the net lot size did not include the private street.
· Relative to the privacy plan, staff would add as an additional condition of approval that the
applicant plant R I style privacy landscaping to Lots I, 2 and 3 to the extent that it does not
harm the oak trees on Lot No.1. I would request that you put that in as additional staff
Cupertino Planning Commission
31
September 13, 2005
recommended condition of approval, that privacy landscaping per the Rl ordinance be
required for Lots 1, 2 and 3 to the extent it does not harm the oak trees. You may want to
consider that on Lots 4 and 5 as well, the reason being that on the south property line the play
areas for the school abut against those houses to the point where if a kid was standing on one
of the play structures, he could probably look into one of the adjacent yards. You may want to
put the privacy landscaping there for the reverse reasons so the kids don't look into the
adjacent yards.
Vice Chair Miller:
· Reviewed the history of the site; originally zoned commercial and now it has been proposed as
a change or it had been changed and expired to convert it to residential.
Mr. Jung:
· Said the city did not consider a mixed use project for the site because they never received an
application for a mixed use project on this site; other aspects may have related to lot size, the
relative remoteness of the location compared to other commercial areas, and at that time they
were not pushing mixed use projects.
Vice Chair Miller:
· Is a mixed use project theoretically possible today?
Mr. Jung:
· I am not a developer; certainly the people who have commercial lots look to add value to their
property by adding residential on top of it, but then there is the situation where you had a
gasoline station and that is something really conducive to a renovation to a mixed use project.
Vice Chair Miller:
· We have had an approved subdivision for 7 lots and that subdivision was recorded; it is too
late to go back and make a mixed use project.
· The next area is against the southern boundary, Lots 3, 4 and 5 there is going to be a drop in
elevation between this property and the adjacent property to the south; is that correct?
Mr. Jung:
· There is a rise in elevation to the school of several feet; there is drop off in elevation in a
westerly direction rrom 5 to 3 because of the presence of the creek to the west side.
Vice Chair Miller:
· Looking at the conceptual landscape plan I don't see a lot of planting along the boundary line,
the rear yard boundary line for Lots 3, 4 and 5.
Mr. Jung:
· My previous statement to you was that you may want to consider some sort of privacy
landscaping along the rear yard boundary line.
Vice Chair Miller:
· I think we also need to review that final landscaping plan as part of this application.
Justin Mozart, applicant:
· Respectfully request that you support the staff recommendation to approve the proposed
project.
Cupertino Planning Commission
32
September 13,2005
· The proposed project is improved rrom previous owner's submission. Architecturally, a rustic,
rural look per staff's recommendation was achieved; two lot line adjustments were executed
resulting in a less dense, better looking project.
· Neighborhood meeting was held on August 17; three neighbors attended and expressed their
satisfaction that the proposed project was much more consistent with the existing land use
pattern and neighborhood than the previous project was.
· One of the bordering neighbors wrote a letter of support as well.
Com. Giefer:
· With regards to placement of the homes on Lot 3, it appears possible to rotate home 3, 90
degrees so it was facing the forward direction facing Homestead. I am curious why you
oriented the home on this lot in this direction as opposed to increasing the space between the
home and the school behind it. I had the opportunity to be there when the kids were all
running around and playing and was trying to understand what it might be like living in one of
those homes with all the kids having a great time behind me.
Mr. Mozart:
· As you can see rrom the plan that the houses, especially width wise fit on the lots; and that lot
is not quite as long, if you turned it, it would physically fit but the rront and rear setbacks
would not be met by about 5 to 7 feet.
· The larger floor plans would not fit on Lots I or 6 due to the size of Lot 1 and the shape of Lot
6; and the plan here was to have two of the smaller, and four of the larger plan. We adjusted
the lot lines slightly to make the homes fit the way they currently are.
Com. Giefer:
· Regarding Lot I, it appears that approximately 10 feet of the oak tree No. 20 will overhang the
home on Lot 1; is there a reason that you could not move that home 5 feet forward toward the
street?
Mr. Mozart:
· We designed the plan 1 to have a wrap around rront that faces two directions so it addresses
the new internal street and addresses Homestead. The way the setbacks are set up on lot 1 we
propose Acacia Road being the rront and the west side being the rear and actually due to the
shape oflot 6, the 20 foot rront setback is achieved on Homestead Road and the 20 foot rear is
on the south side. Both of these homes have a wrap around porch with two rronts so that they
are applied to the site differently.
· Said he would be agreeable to moving the house on Lot 1 to the east to increase the distance
rrom the oak trees provided.
Com. Giefer:
· Expressed concern about the maintenance of the oak tree, even though the arborist ensured that
the construction would not damage it.
Mr. Mozart:
· It would be advantageous to the homeowner to have a larger yard and more clearance rrom
those trees as long as it is agreeable to the Planning Commission to have that equal amount of
space subtracted rrom the rront yard.
Cupertino Planning Commission
33
September 13,2005
Com. Giefer:
· Relative to Lot 3; would you consider rotating that as my concern is providing more distance
rrom the school. I agree that there should be more screening between the school and these
residences; and it is such a narrow space it is difficult to imagine how you would adequately
screen that. I am thinking that if it were rotated with a larger back yard, it would provide more
distance between the two.
Mr. Mozart:
· We could do that if the rront setback was reduced; however, the way it is set up now; the
overall look of the neighborhood instead of having three similar houses in a row, this way you
have two facing one way, and two rotate the other way; it just feels like it is more balanced that
way. Secondly, the second floor of plan 2 does not extend all the way either to the left or right
side of the house. I believe on this (illustrated) side of the house it is the south side on Lot 3
and the second floor is about 9 feet farther back than the farthest extent of the first floor, so it
would actually be about 19 feet total back rrom the south property line, as well as the home
being lower due to the drop in elevation. Plan 2 is the one proposed for Lot 3.
Vice Chair Miller:
· Com. Giefer asked earlier about given the large size of the second story, would you be willing
to do something additional in the way of energy efficiency in the houses.
Jonathan Stone, Classic Communities:
· Said that they would be inclined to install energy star appliances in the homes and would be
willing to look into a number of other technologies relative to energy efficiency.
Vice Chair Miller opened the public hearing.
David Wong, representing the owner of the Day Care Center:
· The owner is neutral about the development with some concerns.
· Relative to the trees proposed for removal being replaced with privacy landscaping along the
border between the daycare center and the school, there are two playgrounds in the area which
will overlook into the adjoining residential properties. The landscaping would help mitigate
the noise and minimize any potential complaints rrom the residence of the children playing in
the play areas.
· Relative to the idea of rotating the house on Lot 3, we would support it, given that according to
the plan there is a 10 foot distance rrom the edge of the house to the property line, and if there
was a slight change in plan, it would increase the distance, and would be something that we
think would work out in terms of future relations with us and our tenants.
Anthony Wong, tenant of Day Care School:
· Addressing the specific issue of the noise; during the construction period of the project, there is
going to be traffic, noise and dust. There will likely be complaints rrom the parents about the
heavy duty machinery running all day long especially during the children's' nap time.
· I agree with Com. Giefer about privacy issue to eliminate potential conrrontation later.
Something should be done.
David Erck, Maxine Avenue:
· Said they were remarkable plans. He asked that the Commissioners not try to play Monday
morning architects. He said he did not want the orientation of Lot 1 changed; if there is a
problem with an oak tree, they can trim the tree.
Cupertino Planning Commission
34
September 13,2005
· Your argument is also for changing the plan for Lot 3 adjusting the house. If I was an architect
that seems wise to put the side of the house toward the area where the noise rrom the children
is. Why would I want my backyard facing where these children are? I think they have done a
marvelous job. I think you have a good product and will get a lot of money rrom taxes rrom
the purchasers of the properties. You will not have to maintain that street. I would say do what
you have done tonight. The only way you could top this off is to approve the project with no
changes and no stipulations for more.
· Please do not change the view at Homestead.
Gilbert Wong, Hibiscus Court:
· I am neutral on the project but mainly concerned with privacy issues. I agree with what the
commissioners said for Lots 1,2 and 3 to have privacy protection with trees. On Lots 3, 4 and
5 there is thick vegetation; a number of trees will be removed and I want to make sure that
those trees get replaced with 36 inch boxes as well. Mr. Mozart said he is willing to plant trees
on the school site as well, and we are open to that idea.
· I saw in the landscaping plan that there is going to be a retaining wall and I want to know if it
is going to be 10 feet away rrom the property or right on the property line, which will make a
difference. We live in Homestead Villas which is a very rural atmosphere and we want to
keep that rural atmosphere. The thick vegetation is our buffer between the school and this
property; we want to be a good neighbor and we are concerned about making sure that there is
a nice buffer. The previous speaker who lives in my neighborhood had a very good idea
regarding to Lot 3, we would be open to either way, I believe what Justin showed me was that
there are not too many windows facing the school side, so that might offer more privacy.
· Again, we want to see where the retaining wall is and want to make sure the trees are planted
and will properly mitigate looking into the second story of the new homes rrom the
playground.
Bryce Carroll, Civil Engineer:
· The back of the retaining wall which is nearest the school is one foot rrom the property line.
· Said that the trees planted for buffers would need to be planted in the backyard of each lot,
adj acent to the wall.
· The differential rrom the backyard to the school is approximately 4 feet vertically.
Vice Chair Miller closed the public hearing.
Com. Giefer:
· Relative to the windows in the second story, are those privacy windows, or more for the kids
standing on the climbing structure looking into the second story of this house. Have we
stipulated the types of windows on that home. I vacillate on wondering if they are necessary
because it is a school and they will be gone most of the time. I am thinking more rrom the
residents' privacy more than the school's.
Mr. Jung:
· The privacy landscaping that we have set up for the RI ordinance is basically to screen views
from the residential properties into adjacent neighbors' yards, and I am assuming that it would
work both ways, especially if there was a tall enough screen.
· I would agree that you would probably need to go with the larger size trees because of the
grade difference between the Mozart property and the school itself, there being a 4 foot
difference in grade. The four foot difference is grade is closer toward Lot No.3 and it gets less
Cupertino Planning Commission
35
September 13,2005
as you go out to Lot 5, so you would want taller trees than 36 inch box there because it has to
make up that height difference before it even gets up to a screening level above the fence line.
Com. Giefer:
· It sounds like the neighbor is willing to have additional shrubberies planted on their side as
well, if they put 36 inch box trees in the backyard. I thought the applicant was also willing to
do some privacy plantings on the school if the school will allow them.
· She asked David Wong ifhe was willing to put in 36 inch box trees and 8 foot shrubs.
· Asked if the applicant was willing to pay for additional landscaping on the property, would he
be willing to do so also?
David Wong:
· Said he requested that the Commission put in some privacy landscaping as a condition, but
wasn't necessarily offering that they would do some on their own; but would consider it.
· We would consider it but 1 don't think we would want to have the entire privacy landscaping
on our side of the property. If there was some on both sides, I think the owner would agree to
that, but I need to confer with him.
Mr. Jung:
· Said that providing some green screen between the two neighbors was feasible. However, he
wanted to make certain the maintenance angle was handled, as it is one thing to plant
something on someone's property, but who will take care of the trees?
· He said it was normally handled by each property owner, who is responsible for maintaining
landscaping. Although some other party may install it on another's property, it is the owner's
responsibility to maintain the landscaping once it is in.
Com. Chen:
· Ask the applicant what his position was on possible revision of the construction schedule to
reduce the noise impact to the school children.
Applicant:
· I would be flexible with that, rrom I to 3 p.m. weekdays.
· There is a construction schedule that would need to be met in order to move it along as quickly
as possible; I think the shortening of the process overall would outweigh any impact on nap
times, but that could be something that would easily be worked out between our construction
crews and you and the daycare center. There will have to be give and take on both sides.
Communication starting now and working through that process is probably going to be the best
way to proceed forward.
Ms. Wordell:
· There was a similar arrangement with a project over on Homestead and Blaney that was
adjacent to a daycare, and one of the conditions of approval was a construction management
plan to be approved by staff. There was some reflection in the hours and the kinds of activities
that occurred during the most sensitive hours that staff was aware of what the needs were of
the adjacent property owner and what the developer could realistically do, and it turned out to
be a mutual agreement.
Vice Chair Miller:
· Following up on the landscape plan, it appears there are three choices:
Cupertino Planning Commission
36
September 13,2005
o Planting on the adjacent property owner's side which presents some further issues; but we
could choose to have the wall moved further away rrom the property line and plant the
trees on top ofthe grade difference;
o Have the wall on the property line or a foot rrom it the way they are proposing now and
plant the trees at the lower grade difference.
o Is there a preference rrom the standpoint in terms of maximizing the screening effect?
Mr. Jung:
· The civil engineer's proposal was to move the retaining wall which they need for the grade
difference as close as possible to the common property line. If the idea is to move the
retaining wall out to plant trees on top of it which would elevate the trees, I think the retaining
wall has to be 6 or 7 feet out into the yard just to have an adequate width for the tree and that is
something the applicant isn't too excited about.
Vice Chair Miller:
· It looks like the option is to put the retaining wall close to the property line and plant taller
trees.
Com. Chen:
· Based on the concerns and comments, I don't have any strong objection to the project; I
support it.
· I know we are adding a condition to require privacy plan for Lots I through 3 to comply with
RI zoning and also for Lots 4 and 5. I don't hear a conclusion yet, so I would suggest a privacy
plan be brought back to either the Planning Commission or DRC for further review.
Com. Giefer:
· If my fellow commissioners concur, I would like to see the home on Lot 1 moved 5 feet
towards Acacia Street which would not change the view rrom Homestead; it would allow more
breathing room between the Heritage Oaks.
· The owner of that home can't cut those down, but can trim them, but I would feel better if we
could move the house a little toward the street.
· I would support having the final landscape plan, which includes the privacy plantings
separating Lots 3, 4 and 5 with their adjacent school neighbor and I would support having that
come back. DRC may be the most expeditious way to have that done, but whichever the
Planning Commission feels would be the better way to approve that final landscaping plan,
that has the privacy plantings. I think it is a well designed project, I think that the architect did
a nice job developing homes that will be a very lovely gateway to this community. The privacy
planting is a concern that I think we need to work out in the long term.
Vice Chair Miller:
· I think it is a very well designed project; for the record I would rather see a mixed use project
on this site, but apparently we cannot go back to that.
· I think we agree on the proposal in terms of issues and changes; we need a detailed privacy
planting, privacy landscape plan for the west side and the south side of the project and the
proposal is that it be brought back for approval to the DRC.
· Also talked about a construction management plan that would be approved at the staff level.
Cupertino Planning Commission
37
September 13,2005
Mr. Jung:
· Com. Giefer mentioned recording a specific covenant on Lot 1 regarding the oak trees, noting
that those are protected trees, and that grass should not be planted under them because it will
kill them.
· Regarding the privacy planting, I want to ensure that we don't provide it to the extent that we
end up killing the oaks on Lot I.
· Mention the construction management plan and the condition that we make sure the applicant
record on each lot a joint maintenance agreement for the private street.
· A motion is needed on Com. Giefer's request regarding shifting the house on Lot 1 five feet
into the 20 foot rront setback.
Motion:
Motion by Com. Giefer, second by Com. Chen, to approve Application
U-2005-13, ASA-2005-09 with the conditions mentioned by staff including
moving the home on Lot 1 five feet toward Acacia Street; recording the oak
protection as well as no sod lawn, limited irrigation beneath them; privacy
planting plan will come back to the DRC for approval, which will include
screening for Lots 3, 4 and 5 and with the agreement of the adjacent
neighboring, potentially there may be additional plantings on their property
side; and corrections to the previously recommended by staff on the slides,
such as the title correction, etc., construction management plan approved by
staff which is sensitive to the hours of the daycare school. (Vote: 3-0-0; Corns.
Saadati and Wong absent)
Motion:
Motiou by Com. Chen, secoud by Com. Giefer, to approve Application
EA-2005-09. (Vote: 3-0-0; Corns. Saadati and Wong abseut)
Chair Wong returned to the meeting.
OLD BUSINESS: None
NEW BUSINESS: None
REPORT OF THE PLANNING COMMISSION
Environmental Review Committee:
· Vice Chair Miller reported that the application reviewed this evening by the Planning
Commission was on the ERC agenda, and was given a negative declaration. A member of the
ERC expressed concern that the Planning Commission was not fully addressing the affordable
housing issue on the site. The application was reviewed for environmental review.
Housinl! Commission:
· Com. Saadati absent - no report available.
Mavor's Mouthlv Meetinl! With Commissioners:
· Staff will provide a schedule of upcoming meetings.
Economic Development Committee Meetiul!:
· Quarterly meeting - no meeting held.
Cupertino Planning Commission
38
September 13,2005
Director of Community Development:
. Relative to the General Plan, Ms. Wordell reported that the City Council will have a special
meeting September 14 to discuss the EIR, One Percent for Art. September 20th meeting will
include discussion of the development allocation, heights, hillside areas and other remaining
Issues.
. September 20th there will be a citywide mailing regarding the commercial centers; an
additional recommendation to limit all non-retail uses to no more than 25% of shopping
centers. A council member felt more community input was needed.
SUBMITTED BY:
The meeting was adjourned to the next regular Planning
Commission meeting on September 27, 2005, at 6:45 p.m.
-~~
ADJOURNMENT:
Approved as amended: October 25, 2005