PC 10-25-05
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
6:45 P.M.
CITY OF CUPERTINO PLANNING COMMISSION
APPROVED MINUTES
October 25, 2005
CUPERTINO COMMUNITY HALL
TUESDAY
The regular Planning Commission meeting of October 25, 2005 was called to order at 6:45 p.m. in
the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA., by Chair Gilbert Wong.
SALUTE TO THE FLAG
ROLL CALL
Commissioners present:
Chairperson:
Vice Chairperson:
Commissioner:
Commissioner:
Commissioner:
Gilbert Wong
Marty Miller
Angela Chen
Taaghi Saadati
Lisa Giefer
Staff present:
Community Development Director:
City Planner:
Senior Planner
Contract Planner
Assistant City Attorney:
Steve Piasecki
Ciddy Wordell
Colin Jung
Tricia Schimpp
Eileen Murray
APPROVAL OF MINUTES
Minutes of August 23, 2005 Planning Commission meeting:
MOTION: Motion by Com. Giefer, second by Com. Miller to approve the August
23,2005 minutes as presented. (Vote: 4-0-1, Com. Saadati abstained).
September 13, 2005 Planning Commission meeting:
Page 3: Under Chairman Wong: change "teenager" to "child"
Page IS: Under Mr. Killian, "quit claim" should be changed to "quickclaim".
MOTION: Motion by Com. Giefer, second by Com. Miller, to approve
the September 13, 2005 minutes as amended. (Vote: 5-0-0)
WRITTEN COMMUNICATIONS: Receipt of two emails relating to the fence
ordinance was received.
Cupertino Planning Commission
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October 25, 2005
POSTPONEMENTS/REMOV AL FROM CALENDAR:
1. DlR-2005-20
Horst Von Bloes
(Fry residence) 21161
Canyon Oak Way
Appeal of the Design Review Committee's decision
denying a Director's Minor Modification to permit the
construction of a ground floor addition to exceed the
allowable floor area ratio in the Oak Valley Planned
Development. Planning Commission decisionfinal
Unless appealed. Postponedfrom the September 27,2005
Planning Commission meeting.
Motion: Motion by Com. Chen, second by Com. Saadati, to postpone Application
M-2005-04 to the November 22, 2005 Planning Commission meeting. (Vote 5-0-0)
3. M-2005-04
Bret Moxley
(Knopp Residence)
21925 Lindy Lane
Modification to a Tentative Map (TM-2005-04) to provide access
for Lot 2 ftom Lindy Lane. Planning Commission decision
final unless appealed. Continuedfrom the October 11, 2005
Planning Commission meeting. Request postponement to the
November 8, 2005 Planning Commission meeting.
Motion: Motion by Com. Saadati, second by Com. Giefer, to postpone Application
M-2005-04 to the November 8, 2005 Planning Commission meeting.
4. TM-2005-05
(EA -2005-12)
Frank Sun
21989 Lindy Lane
Tentative Map to subdivide a 2.6-acre parcel into three lots.
Planning Commission decision final unless appealed. Continued
from the October 11, 2005 Planning Commission meeting.
Request postponement to the November 8. 2005 Planning
Commission meeting.
Motion: Motion by Com. Saadati, second by Com. Giefer, to postpone Application
TM-2005-05 to the November 8, 2005 Planning Commission meeting. (Vote: 5-0-0)
5. U-2005-16, ASA-2005-11,
TM-2005-06, Z-2005-05,
GP A-2005-04, TR-2005-04,
DA-2005-01 (EA-2005-10)
Mike Rohde
(Valleo Fashion Park)
10123 N. Wolfe Road
(South of 1-280 and west
of Wolfe Road)
Use Permit and Architectural and Site Approval to
construct a I 56-unit, three-story attached condominium
development. Tentative Map to subdivide a 5.19-acre
parcel into condominium and common parcels for a
I 56-unit attached condominium development. Rezoning
of a 5.19-acre parcel ftom Planned Development
(Regional Shopping) to Planned Development
(Regional Shopping/Residential) General Plan
Amendment to allocate 156 housing units for an
attached condominium development. Tree removal
for an attached condominium development.
Modification to a Development Agreement (I-DA-90)
to encompass the development proposed in U-2005-16,
ASA-2005-11, TM-2005-06, GPA-2005-04, Z-2005-05,
and TR-2005-04. Postponed from the September 27,
2005 Planning Commission meeting. Request
postponement to the November 22, 2005 Planning
Commission meeting. Tentative City Council meeting:
December 6, 2005.
Cupertino Planning Commission
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October 25, 2005
Motion: Motion by Com. Chen, second by Com. Saadati, to postpone Item 5 to the
November 22, 2005 Planning Commission meeting. (Vote: 5-0-0)
A discussion ensued regarding the November 8, 2005 Planning Commission meeting. There will
be no telecast of the Planning Commission meeting since the election will be televised. It was
suggested that the November 8th meeting be held to request a continuance on the Permit
Streamlining Act and the tentative map on Stelling Road.
ORAL COMMUNICATIONS: None
CONSENT CALENDAR: None
PUBLIC HEARING:
2.
U-2005-14
William Stephens
(T-Mobile) 20041
Bollinger Road
Use Permit to erect a 35-foot tall, slim-line monopole
with three panel antennas and an equipment shelter
for wireless phone service. Planning Commission
decision final unless appealed. Postponed from the
September 27, 2005 Planning Commission meeting. .
Mr. Colin Jung, Senior Planner, presented the staff report:
· Reviewed the application for the Use Permit to erect a 35-foot tall, slimline treepole with three
panel antennas and an equipment shelter for wireless phone service.
· Reviewed the Background and Surroundings, the Monopole Design/Camouflage Techniques,
and the Radio Frequency Emissions as outlined in the staff report.
· He reiterated that the federal government has preempted local authorities ftom regulating the
emissions based on safety standards as long as it meets the federal limits.
· Staff recommends that the application be continued after hearing public testimony, which will
provide the applicant sufficient time to make certain design revisions to the proposed
landscape area.
· Staff recommends that the applicant provide an improved landscape screen. He noted that they
should triple or quadruple the amount of tree coverage and landscape area around the subject
tree pole. The planting height should not exceed ten feet tall.
· The applicant is proposing one artificial tree and three live ones.
· He answered Commissioners' questions about the appropriate type of trees to providing
screening for the tower.
Com. Miller:
· Questioned why they should consider the application ftom the applicant since he has over an
extended period of time has refused to take care of his many code violations?
· Said it was appropriate for the Commission to ask the applicant to address the issue of the code
violations and how they are going to bring this site up to code compliance.
Mr. Jung:
· Explained that the code violations aren't related to the application itself, only tied together
because it is the same property owner. Some have been addressed, others have not. Signage
has been put up, and the area is cleaner compared to the past. There are still some issues that
need to be taken care of.
Cupertino Planning Commission
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October 25,2005
· He said they hoped that the applicant would maintain the trees and keep up the landscaping,
but he is not addressing these current code violations. Why do we assume that he would do the
things he needs to do on the new application?
Com. Miller:
· Said that perhaps the applicant has a different perspective on the code violations. We don't just
shut off all applications ftom every private property that has a code violation, we cannot just
shut them down entirely.
Com. Giefer:
· Said that she concurred with Com. Miller's concern of allowing a property owner who
continues to have code violations, make additional revenue ftom implementation of an antenna
device when he is not ftee of the problems he has created.
Mr. Piasecki:
· Said it was an appropriate concern; and they would look at the nature of the violation.
· He noted that if the applicant was violating an ordinance because of a sign size issue, it would
not likely relate to the treepole issue. It would relate if the landscaping and trash enclosure
was unkept and there were numerous weeds, since it would be the general appearance of the
site and they were asking to add another feature to it.
Chair Wong:
· Expressed concern that it was only about 30 feet to the church playground.
Mr. Jung:
· The federal safety standards for exposure is for all populations, including the elderly and
children; it is not one standard for adults and another standard for children. The only
distinction that the federal government made in their safety standards is between occupational,
who are people who work directly with it, and it has a higher exposure because they know
what they are doing when they are working around it versus the general population which
includes everyone.
Chair Wong:
· Tom Huganin did a good job in providing a series of articles in 1997 when Walgreens was
approved and the applicant worked with the neighborhood.
Ms. Wordell:
· The property owner had proposed some renovations to the whole center at the time Walgreens
was approved. It was to demonstrate that they could make both parts of the center relate to
each other architecturally, but there wasn't a requirement they do that. Your question is could
it be required as a part of this application. Staff s advice including ftom the attorney is that
there would not be a nexus to require remodeling or a façade improvements for the strip part of
the center, connected to the antenna if the applicant were volunteering and not in connection
with getting your approval, then that is a possibility.
· She said that there were presently no outstanding code violations at the center.
Com. Giefer:
· Asked if it was possible to stipulate how the applicant would use the profits ftom the use of
treepole, such as for code enforcement and updating landscaping.
Cupertino Planning Commission
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October 25, 2005
Ms. Murray:
· Responded that the city could not make that requirement of the applicant, but could ask him if
he would be agreeable to that stipulation.
Mr. Piasecki:
· Explained that the concept of nexus is that there must be a reasonable relationship between the
requirement on the city's part and the actual application or project before them.
· An applicant could request a one cell antenna and the city would ask them to do a million
dollar improvement to the center; not really reasonably related to the impacts of the antenna.
· If a code issue relates to the upkeep of the back area, it is an appropriate issue because they are
proposing something in the back area. A bond or cash deposit guaranteeing the maintenance
of the landscaping could be required. There are other ways of defining how they would use
their profits, to address the fundamental issue of whether they will maintain the landscaping.
· Care has to be taken that the city does not over-extend and that it is related directly to what the
outcome is proposing.
The history of the Walgreens building was discussed, including neighborhood outreach, the
concerns about the proposed drive-through, and the upgrading of the center. Staff answered
commissioners' questions.
Mr. Jung:
· Said that for the current application, the applicant held a neighborhood meeting; the property
owners within a 1,000 foot radius were noticed, only about 12 neighbors appeared out of the
1,000 foot radius covered by the mailing.
William Stephens, T-Mobile:
· Provided background information on the project, as outlined in the staff report. In response to
staff s indication that further mitigation would be preferable to the city, the applicant suggested
a cypress tree pole and was advised that further mitigation was a planter strip in the parking
areas shown in the visual presentation.
· He said he learned that staff was suggesting additional plantings ftom the staff report
yesterday, which is why the continuance was suggested. He said that they were in an
information void for further design considerations and assured the Planning Commission that
T Mobile had no interest in creating a problem for the neighborhood, itself, or the city.
· The cypress tree was suggested at the DRC meeting in August. He reviewed the site location
and coverage, and said in his opinion one additional facility in such an urbanized setting would
not be consciously seen, unless a lot of additional mass was created. Alternate locations were
investigated and the only possible one was Home Depot, but it was not available.
· I have driven the area to try to get the same perspective ftom some of the views I received at
the community outreach meeting by the neighbors. I found it difficult to get the same
perspective that I was hearing at the outreach meeting ftom driving on the streets and looking
west to the mountains to what was indicated to me as unobstructed views. Our facility does
not impact the beautiful views in any way; there are many other structures between our facility
and any of those residents that would impact far greater than anything we have proposed.
· In February 2005 T Mobile acquired a larger percentage of the then existing Cingular network
after Cingular and AT&T merged at the end of 2004. Cingular was before you last year with a
proposal on the same site; the need still exists there because of a coverage gap. We came to
Cupertino in March not with a full understanding of what happened with the Cingular site, but
found clearly that they had been denied. We looked at their proposal and decided to come
ahead to the city with a new application for a much smaller, lower profile design we thought
Cupertino Planning Commission
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October 25, 2005
was appropriate proportionately to the center, visually mitigated by the surrounding
urbanization of other utility poles. Our design at that time was a slimline monopole not a tree
pole, which was backed up by three existing utility poles with transformers and wires. We
were advised by staff that further mitigation would be preferable to the city, so we suggested a
cypress tree pole. The additional plantings brought up by staff, we were made available to that
information in your staff report when we saw the report yesterday. That is why the continuance
was suggested.
· He said an applicant cannot go through the building process if there are outstanding code
violations of any type.
· T Mobile is eager to cooperate in any reasonable way to get the visual mitigation needed.
· He said there are other things that are out of their control, but felt confident that they could
open the dialogue with the landlord. He asked for serious consideration of the application as
they have looked at several other locations, and are limited in opportunities, particularly in a
highly residential area such as Cupertino.
Karan Karanu, T Mobile:
· In response to whether to chose a possible micro cell vs. a larger site, he explained that in a
perimeter area, such as a block for coverage, a micro cell could be used to cover a small range
and it would still meet the needs. In a larger concentration of people, such as a school, each of
the micro cells require a certain number of radials in order to sustain all the customers who
will be on the line.
Vice Chair Miller:
· Said it was not realistic to use a lot of micro cells as opposed to one macro cell.
Mr. Karanu:
· Said it was on a case-by-case basis; in certain situations where there is a small amount of
traffic on a street, the need can be met with just a micro cell or a site that has fewer radials. As
Mr. Stephens pointed out, they are having difficulty securing alternative locations; they
focused on the site primarily to meet the needs of that limitation. They don't have the option
to spread out more sites within the area; we are working with what we do have.
Com. Giefer:
· Relative to the comment that if the natural cypress trees are always going to have to be topped,
you are going to have a disparity between the natural trees and the antenna. They are always
going to be 4 feet shorter than the antenna.
Mr. Stepheus:
· Said that the Italian cypress are forming a backdrop; they are not intended to surround the pole
or hide it, but form a backdrop for visual mitigation. In at least two of the sectors, two of three
antennas would be pointing out and would not be interfered with in any way.
· The third sector would have to create a minimal gap, with enough low density of branches to
allow a signal to pass through. A broadleaf tree could also be used. Italian cypress trees were
considered because there are others in the neighborhood, and they have a thin profile. There is
a limited amount of space that can be leased.
Chair Wong opened the public hearing.
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October 25, 2005
Tom Huganin, President of La Roda Court HOA:
· Showed a slide presentation.
· Referred to the monopole as the Tin Tin tree which he said was an out-of-character
development in a residential neighborhood.
· The project is surrounded by a residential neighborhood, a child care center.
· Said a noise study is missing ftom the report.
· The site has had continuous rodent issues and nonpoint pollution issues.
· The application degrades the visual appearance of the center; it is already bad and will only
make it worse.
· It blocks the scenic vistas of the western foothills.
· There were violations relative to the trash bins before in the previous application.
· There is no source point pollution fix and they will be building around the garbage cans; it is
time to fix the source point pollution issues with the garbage bin area.
· The overflowing dumpsters will be a magnet for rats; and they are not presently doing a good
job with the rat control.
· The cypress trees will likely not grow because they need full sun to grow; the trees will not
receive morning sun and only receive evening sun and will be blocked by the other trees
behind them, and will not grow.
· The trees also harbor roof rats; Santa Clara County Vector Control does not recommend
planting Italian cypress trees in the county.
· It is a poor choice for site screening.
· Discussed drainage issues - When Walgreens was constructed they agreed to construct a wall
across La Roda Drive; they did not hook the system up to the storm sewer system at that time.
Every time there are massive rains, everything rolls off, and rolls off across the Un's yard.
· The site has a large visual impact on the community; it really shouldn't be built. The previous
application was in the same location.
· As far as a wireless master plan goes, this doesn't meet the best quality location that you
wanted in the wireless master plan; it does not provide any co-location at all.
Roger Guertin, La Roda Court:
· Said that other cellular companies in the area do not have reception problems.
· Said that the shopping center continually violates codes; said that he is catching rats on the
fence and the dumpsters are emptied in the late evening; the area is not kept clean.
· The owner of the property should not be rewarded with additional income ftom the cellular
tower, since he does not keep up the present code conditions on the property.
Jonathan Lin, Cupertino resident:
· Resides about 220 feet ftom the proposed site.
· Opposes the placement of the wireless tower.
· Said there are reports on the health impacts ftom exposure to the wireless towers for a long
period of time.
· Said his family and other residents will be exposed to the health hazard over the years they
reside in the neighborhood.
· Urged the Planning Commission to vote no on the proposal.
· Said he would continue to oppose the antennas and would return to the Planning Commission
meetings to express his opposition.
Joy Han, La Roda Court:
· Relative to exposure to radiation, she asked that the city government ensure that the families
Cupertino Planning Commission
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October 25, 2005
would continue to be healthy in their homes over the years.
· Tin Tin Market is known for their many code violations and should not be rewarded with
additional revenue ftom cellular towers on their property.
· Will the city allow the applicant to continue to be rewarded by negative actions, and put the
neighborhood in danger.
· Opposed to the application.
Mr. Piasecki:
· Reiterated that the Planning Commission is preempted by the federal government in acting on
the basis of the EMS ftom the facilities. He asked that the speakers limit their comments to
areas of authority, including screening, landscaping, and the aesthetics of the installation.
Andrew Qu, Cupertino resident:
· As pointed out by a previous speaker, having the antenna on the property is a reward for the
property owner who has not abided by the codes in the past.
· Questioned if there was an area for the vendors to install the antennas.
· Putting an antenna there could affect the future developments.
Kevin Till, Cupertino resident:
· Said that it was not aesthetically pleasing to have the antenna placed in the small area; it would
degrade the environment.
Mary Ann Overton, Cupertino resident:
· Has Cingular service and has no problems.
· The neighborhood meeting date was not selected by the residents, and many were not able to
attend.
· When Walgreens was constructed, they said they would work to improve the shopping center,
not just the landscaping. Nothing was done and the landscaping is looking ragged.
· The shopping center owner should not be rewarded with extra revenue ftom the antenna
placements, when they have not complied with any of the things they previously said they
would do.
Srinivas Potluri, So. Blaney Avenue:
. The cypress trees will take 10-20 years to grow; meanwhile the residents will be exposed to
radiation.
. Opposes the application
Fanqu Meng, So. Blaney Avenue:
· Questioned why another antenna would have to be built, since the area is serviced by many
quality providers.
· A similar application was denied last year and no changes have occurred since then.
· Expressed concern about the risk of exposure ftom antennas.
· Opposed to the proj ect.
Dwight Leu, Cupertino resident:
· Noted that the property owner was not present at the meeting.
· Said there was a recent publication ftom Western Washington University which identified that
of all the research currently out there, the vast majority shows that there are health effects, or it
cannot be said that there are clearly no health effects.
Cupertino Planning Commission
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October 25, 2005
· Said he was familiar with the scientific effects of electromagnetic radiation and cannot see how
anyone in good conscience can support the tower especially with its close proximity to young
children.
Nancy Jing, Cupertino resident:
· Said the proposed tower would block the view ofthe mountains.
· The tower will emit pollutions, radiation which will harm the health of the residents, which
may not be fully realized until many years in the future.
Satish Parbhakar, La Roda Drive:
· Said the tower will detract ftom the view ofthe mountains.
· Attention will be drawn to the artificial tree.
· Expressed concern about the health effects; asbestos being taken out of buildings.
· He said that it has been proven there are health dangers living close to electric pylons over a
long period of time. People are now aware of it, whereas there was little talk about it forty
years ago.
Chair Wong:
· Relative to health concerns expressed, he suggested that the residents write to Congressman
Honda who can address the issue.
Mr. Piasecki:
· Reiterated the reason that the federal government pre-empted local jurisdictions ftom entering
the arena of health affects. Every jurisdiction would have a different standard and the industry
would have a difficult time complying.
Konrad Pfund, Cupertino resident:
· Expressed concern with the noise ftom the refrigeration unit with fans and the transformers
during the day. At night when it is quiet they can be heard throughout the neighborhood.
Christina Papadakas, Cupertino resident:
· Has resided next to the Tin Tin Market for 39 years.
· Expressed concern about the health impacts ftom the antenna.
· Said there were rats in the area and odors ftom the market.
Marie Garcia-Wilson, John Drive:
· Asked ifthe area was zoned for such a tower.
· Expressed concern about health impacts to her young child.
· Said Cupertino was getting too built up, and the neighbors were not interested in building
antennas.
Mr. Jnng:
· Said the wireless communications facility ordinance allows with appropriate discretionary
permits, cell facilities on every nonresidential piece of property in the city, which includes the
Tin Tin Market, industrial properties, commercial properties, and public institutional
properties.
Mary Edbrooke, Cupertino resident:
· Said her property is adjacent to the Tin Tin Market, about 50 feet ftom the proposed cell tower.
She expressed concern about the health impacts on her children.
Cupertino Planning Commission
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October 25, 2005
· She said that currently there were no problems with cell coverage in the area, and questioned
why a tower was needed when there are other companies providing coverage in the area.
· She said because the residential is not wooded, the artificial tree will stick out like a sore
thumb.
· She said it is going to be obvious that it is there and if a line of trees is put up on the north side
to block the view ftom the tower, it is going to block her view of the mountains.
· She expressed concern about the current noise ftom the trucks unloading at the market, and
leaving their motors running for more than 25 minutes. She has had to make complaint calls to
the owner of the market asking that the truck motors be shut off. She said that the air
conditioner at the supermarket also is very noisy.
Cecil Coe, Cupertino resident:
· Suggested that there be a condition to request all the operators share the same tower.
· Relative to an earlier comment that all alternatives had been exhausted, he said that because of
the many commercial properties in the area, he felt Tin Tin market was not the only desirable
solution. He suggested the area of DeAnza Boulevard and Bollinger Road, and asked if there
was an opportunity for the city to give it to a church or a supermarket.
Sam Cramb, LaRoda Court:
· Said he was one of the residents living closest to the proposed tower, and agreed with previous
speakers who were concerned about the physiological effects of the tower.
· He said there was a visual impact because of his location, but his main concern was the close
proximity to the market.
· Said he resided in the same home for 37 years and when Tin Tin Market took over ftom All
American Market, their problems began. The odors in the summertime are extremely bad.
· He referred to the fence as a rat highway, and said the rat problem did not exist before the Tin
Tin Market took over the store.
· Said his wife constantly calls code enforcement about the truck engines running. Noise is a
constant problem.
· As previous speakers said, why reward Tin Tin management by allowing them to have the
tower to earn money ftom them, when they constantly violate the codes.
Chair Wong:
· Said that Mr. Coe summarized the speakers' concerns and feelings about Tin Tin Market.
He said although Mr. Coe does not live in the neighborhood, he presented good ideas. He
noted that the corner discussed was in the City of San Jose, not Cupertino. It was also
suggested that several devices could share one tower and be centrally located. He asked staff
if that concept was possible.
Mr. Piasecki:
· Pointed out that co-locatable facilities were much larger, taller and massIve In order to
accommodate multiple carriers, which had previously been rejected.
· In response to a question why the antenna couldn't be placed on one of the taller buildings
toward DeAnza and Stephens Creek, such as the Cypress Hotel or the community center, he
said that there are already antennas over there. The nature of the cell sites is that they are only
as far as their radius goes, and there is no more than a quarter to a half mile radius coverage for
each of these antennas. If more expansive coverage is needed, taller antennas must be allowed.
Chair Wong:
· The applicant said that Home Depot was not interested in putting one on top of their building.
Cupertino Planning Commission
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October 25, 2005
· Staff or the residents would not be happy having an antenna atop ofWalgreens.
Mr. Piasecki:
· Said only one proposal that staff looked at over the years has been submitted formally. Staff
has talked informally with each carrier who the neighbors mentioned. All are interested in
locating at one time or another at this location. We have looked at several sites, several
different design alternatives on the Walgreens building, all of them are much closer to the
residential.
Com. Miller:
· Relative to co-location, a number of residents stated they had other carrier service which works
satisfactorily.
· Asked why other carriers or T -Mobile could not co-locate on one of the sites with the other
carriers who are providing adequate service instead of adding another site.
Mr. Piasecki:
· Said that staff would encourage co-location but with co-location it would be a more ungainly
structure that would likely be met with even more adamancy against it.
· It does not necessarily solve the problem, and if you go to the existing sites they have to be
built to be co-locatable; they have to be structurally large enough to handle the co-location; the
visibility, adequate screening, obstruction of views, whatever it might be. It might not be a
silver bullet that we hoped it would be.
Vice Chair Miller:
· Asked staff to address a speaker's comments that there was no noise study done on the
equipment that would be installed at the base of the tower.
Mr. Jung:
· Reported that no noise complaints have been received for any of these cellular towers. He
noted that some have been located much closer to residential uses than this particular one.
· There would be a noise study requirement at the building permit stage.
· If the equipment is at all similar to the Cingular installation proposed last year, the resultant
conclusion was that the existing ventilation equipment in use right now on the market is much
nosier than anything that would be added by the equipment installed by the carrier.
Chair Wong:
· Asked staff to address some of Tom Huganin's comments, including his concern about
drainage, and the vermin issue.
· He noted that the city does not do vermin control; but it will be addressed with the property
owner and the tenants.
Mr. Jung:
· In response to Com. Giefer's desire to verify that there is no effect on the overall parking
demand by eliminating the parking spaces, he stated that on the number of occasions he has
been to the location, hardly any of the parking along the long part of the building had been
utilized. Staff will explore the parking further.
Com. Chen:
· Asked if all the wireless providers in the past were interested in this site and found alternatives
sites, why can't T -Mobile find a site that has taller structures that can cover the height of the
Cupertino Planning Commission
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October 25, 2005
antenna a lot better than this particular site?
Mr. Jung:
· Said that although some of the neighbors may disagree, the carriers perceive a coverage
problem there. From the carriers' standpoint they look at coverage in different respects.
Vice Chair Miller:
· Said that Tom Huganin made a point at a past City Council meeting, that the plan for wireless
coverage in the city is not working.
· For every application received, there is a large group of residents who come out and express
their concerns.
· He suggested that they rethink that and spend more time determining if there is some way to
come up with a more effective plan that works for the residents and carriers.
Chair Wong:
· He requested that when the application returns, the property owner attend the meeting to
answer questions about the tenants at the Tin Tin Market.
Mr. Piasecki:
· Asked the Planning Commission to identify problems relating to the General Plan, and suggest
that the Telecommunications Commission address the specific targeted areas, or where they
perceive some of the problems exist.
Applicant:
· Said it was acceptable to continue the application to December.
Motion: Motion by Com. Saadati, second by Com. Chen to continue Application
U-2005-14 to the December 21, 2005 Planning Commission meeting. (Vote: 5-0-0)
6.
U-2005-18, ASA-2005-14,
TM-2005-08, Z-2005-06
Rockwell Homes, 10716
Stephens Canyon Road
Use Permit to demolish 15 apartment units and construct
15 townhomes. Architectural and Site Approval for 15
apartments. Tentative Map to subdivide a 1.1-acre
parcel into 15 lots plus one lot held in common.
Rezoning of a I. I-acre parcel ftom Apartment (R3)
To Planned Development Residential (P Residential) for
15 townhomes. Tentative City Council date:
NovemberI5.2005.
Tricia Schimpp, Contract Planner, presented the staff report:
· She reviewed the application for a Use Permit to demolish 15 apartment units and construct 15
townhomes; and architectural and site approval for 15 apartments. The application also
includes rezoning the site ftom multi-family residential (R3) to planned residential; and
tentative map approval to subdivide the site into 16 lots for 15 townhome units and one
common area lot, as outlined in the staff report.
· A condition of approval has been included that the common areas would be repaired and
maintained by the newly established Homeowners Association. The color scheme for the ftont
and rear elevations are under revision and a condition of approval is included that the color
scheme and materials be approved by the Community Development Director prior to issuance
of a building permit.
· In addition to conditions of approval ftom Public Works and Building and Fire, the Planning
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October 25,2005
Department would like to ensure that the city would enter into the BMR dedication of 20% on
this project rather than the standard 15%, which equates to three of the townhomes being for-
sale BMR units.
· Staff recommends approval with the conditions of the Use Permit which also includes the
architectural and site approval; the rezoning ftom R3 to Planned Residential and approval of
the tentative map establishing 16 lots for the 15 unit townhome development.
Vice Chair Miller:
· This involves a rezoning ftom multi unit to residential and it is in an area with other apartment
buildings. Has staff thought about the larger issue that if we grant and rezone here we can
expect the other apartment owners to come in as well? What does that mean in terms of the
number of rental units in town and whether in fact we want this trend to occur?
Mr. Piasecki:
· Said that in this case it is a relatively small project and there has not been the whole sale
change out other than the condo conversion that the Commission is familiar on the A viare
Apartments and the Morano was a case where apartments were removed and ownership
housing replaced it. There are 20,000 total units in the city and the numbers seen over the last
five years have been relatively minor. That may be a relevant concern should we see a lot
more of these applications. Flexibility as a city is needed to allow 45 and 50 year old buildings
to be replaced; in this case because they are relatively small and they are being replaced with
ownership units. We think that this kind of a change out can be both positive and will have
some negative affects, by losing some of the rental housing stock. As evidenced by A viare,
the rental vacancy rate is above 5%; and is likely more flexible and better able to accommodate
displacement today than in 5 or 10 years if the rates gets low again. It is not felt to be
significant in its overall size and probably has very many positive benefits that are associated
with this kind of change out.
· Staff may need to deal with that issue that is raised on a more global scale. This project should
not be microscoped, but looked at on a global scale. The Commission may wish to discuss it
at a future meeting.
Vice Chair Miller:
· The project is located in and among many other multi tenant projects; and it would set a
precedent to say that the whole area can convert if they chose to come in with an application.
Mr. Piasecki:
· Said it may not be a negative thing, because they are older units, it may allow them to
transition out over time, but the larger issue raised if we were to lose hundreds or thousands of
rental housing units is an appropriate issue. I don't think we should microscope it at this time
on this applicant. It is a General Plan issue and the General Plan does speak to the idea that we
want to try to preserve the rental housing stock.
· Said the rules do not prevent the owners ftom rebuilding another multi-tenant structure on that
site.
· The Biltmore Apartments 155 units added 24 rental units.
Vice Chair Miller:
· When the General Plan was reviewed, Policy 2-24 on page 2-22 for the Monte Vista states
"Development intensity shall be determined in conjunction with specific development review.
Add up to twelve units per acre, and change building heights to thirty feet. " We just approved
and sent it to the City Council four months ago; I feel this project does not fit that requirement,
Cupertino Planning Commission
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October 25, 2005
and ask for staff s comment on that.
Ms. Wordell:
· Said she was confident that the geographical boundary for the area that you are referring to
does not include this property. It may be considered in Monte Vista area but the Monte Vista
boundary to the General Plan is part of Bubb Road and the historical part of Monte Vista.
Com. Miller:
· There is a separate requirement for Bubb Road and it states something similar. This
specifically says Monte Vista; I would like to understand what the boundary of this area is.
Ms. Wordell:
· It is not in a particular area that has a density, that is in a special planning area. The General
Plan designation is Residential 10 to 20 dwelling units per gross acre.
Com Miller:
· We also suggested a height of no more than thirty feet.
Mr. Piasecki:
· Said it was not Monte Vista, but part of the infill properties that go throughout the city. It
could be designated as a particular area in the future, but is not presently.
Chair Wong:
· I think what Commissioner Miller was trying to say is that when we said thirty feet for the
height, we considered Monta Vista that goes into the heart of Bubb Road into Foothill
Boulevard. We were not referring to the old Monta Vista historical area which is more clear'
now. Please note to the City Council that we meant aU the way into Bubb Road.
Mr. Piasecki:
· The only problem with that is that you are speaking a collective we, as if all the commission
agrees with that. There was a map and it showed Monte Vista and the map did not extend out
to this area.
Com. Giefer:
· I agree with staff, Monta Vista generally and on their map, went ftom Bubb Road up Stevens
Creek.
Vice Chair Miller:
· Said he would have to look at the map again; to find out where the boundaries were.
Com. Chen:
· Had no questions ftom staff.
Com. Giefer:
· Recalled ftom A viare that each unit was required to have storage; is the garage considered
storage?
Ms. Schimmp:
· Pointed out that the Aviare project was governed by the condominium conversion ordinance,
and this project is not. The project does have two car garages that includes storage.
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October 25, 2005
Com. Giefer:
· Confirmed that storage was being considered. There are no rear yards because it is the
common driveway.
· Are there any special need families within this current apartment complex?
Ms. Schimmp:
· Said the applicant would provide information on the makeup of the residents.
Com. Giefer:
· How many comparable units are available today?
· Will the current residents be offered the opportunity to purchase the new units when they come
online? Do they get a priority in purchase or discount on commissions if they do want to
purchase them at a later time?
Ms. Schimmp:
· Said that the relocation plan submitted with this application was not that detailed and did not
indicate whether they would be offered. There would be notice of sixty days to the current
residents and that a manager would give them information on the rates and availability of
apartments; as well as moving companies and how to apply for one of the BMR units.
· She said that there was no attic space included.
· The site is graded such that the rear property is lower than the ftont; hence ftom the rear it will
be a three story building. Two floors plus the garage underneath; ftom the ftont it is two
stories.
· The applicant can provide clarification about whether or not there is actually enclosed attic
space.
Com. Giefer:
· Asked staff to comment on the design. There are some third story elements included in both
the ftont and rear elevations.
· Said that she was concerned about attics; if they are operable windows, the attic will most
likely be walled in and become an unpermitted fourth bedroom.
Ms. Schimmp:
· Said there was not an attic space included; the site is graded such that the rear property is lower
than the ftont so that ftom the rear it will be a three story building; 2 floors plus the garage
underneath. We will see clarification about whether there is enclosed attic space.
Ms. Schimmp answered Commissioners' questions:
· Relative to the demolished building, there were some two bedrooms, and some one bedrooms.
The applicant can respond with a break down.
· The applicant is proposing the same floor plan, 3 bedrooms for each unit.
· There will be an increase in bedroom counts which will affect the schools in the Monta Vista
High School attendance area; the more bedrooms, the more children it will generate.
Mr. Piasecki:
· It will also generate a significantly higher property tax ftom the townhome units than seen in at
least two other cases with similar densities of ownership product exceeding the operating costs
of handling students at the high school. This was referred to the district, but we don't know if
we have received any comments back ftom them.
Cupertino Planning Commission
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October 25, 2005
· Because the feeling was that it was trading one unit type for another unit type, it is anticipated
that you would get a few more students coming out of the ownership product than you
currently have ftom the smaller rental units.
Chair Wong:
· It is a significant change going ftom a one and two bedroom count to all fifteen, three bedroom
count.
· Is it correct that this is currently zoned R3, which means triplex, zoned for three units per
parcel?
Ms. Schimmp:
· It is currently zoned five parcels, with three units on each parcel.
Chair Wong:
· Questioned why is it being rezoned ftom a R3, three units triplex to Planned Development. In
Cupertino we are asking for affordable housing units especially in the Monta Vista High
school attendance area. By building triplexes in the Monte Vista attendance area vs.
townhomes, affordable housing units can be tracked vs. three bedroom townhouses, which put
on the market, they fetch much higher amounts vs. triplexes.
Mr. Piasecki:
· Clarified that the zoning designation "multi family" means rental unit. There can be 15 rental
units in one building with one property. In this case they have separate parcels that are
subdivided and can be sold independently with three units each. From a market standpoint
they are probably much more affordable than the ownership units would be.
· On the other hand you do not have any BMR units required in the current multi family
development because it predated our BMR program and you are going to get three BMR units
out of this project as well which will be high end, well developed and will last a very long time
as affordable units.
· It is a trade off and you can go with the market rate, lower cost units, ftom a market rate
standpoint. There is no strategy saying we are going to force every apartment owner in town
to always keep their site apartments. One can argue that it is appropriate to do but that is an
onerous requirement to put on them when they are the ones providing the rental housing stock
for a very long time.
· Why are we placing the burden on them as opposed to ownership units? Perhaps the
ownership units should be forced to rent them out. You can make all kinds of philosophical
arguments about who is paying the price for this. If we want such a strategy we should discuss
it in conjunction with the General Plan and all the apartment owners can be upset with us. We
looked at this and we said we don't have a policy structure that requires that we maintain these.
· The applicant put together a project that says they want to change it out. We have to evaluate
whether it is good, bad or indifferent and not impose another policy statement about "and you
should always have these as rental units forever" since we don't have that structure right now.
I am sure if we had that they would not even made this application. They would not have
spent the money or the time that it took to put together this application, to get this property and
to be willing to sell it to them.
Chair Wong:
· There has been a trend in the last 18 months of conversion ftom rental to for-sale units,
especially in the Monta Vista and Lynbrook areas.
Cupertino Planning Commission
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October 25, 2005
· He said he felt they were not addressing affordable housing and were setting a precedent by
continuing the trend.
Mr. Piasecki:
· It is a good point and should be brought up in a more comprehensive discussion of when, how
and where would you allow the change out of older units or are we going to tell those property
owners you are going to be stuck with that older housing product built 45 or 50 years ago.
· It is okay as long as you tell them ahead of time so they don't bring applications like this
expecting to be getting a fair appraisal of this good, bad or indifferent. Instead we bring in a
new policy and say well we are not sure if now because of these trends. We need to think the
trend through and develop a policy structure ahead of time so that they are advised about it and
we have thought it through.
· You can revert back to the argument that why would we place the rental housing burden only
on the people who have been providing rental housing for the last 50 years. Perhaps it should
be something we should all bear.
Chair Wong:
· He said he would agree that in the Morano project, the apartments are blighted, and by getting
rid of the 39 blighted units and adding 55 units for sale, of which 15% are BMR, they would
fetch at least $1 million on the market, which is a concern.
· Relative to the Rockwell project, there are one and two bedroom unit counts going to three
bedrooms, which doesn't add to it.
Mr. Piasecki:
· It is a good point about being blighted or not blighted, it is one of the criteria you may use
when you are deciding applications like this.
· There is currently no policy structure that gives us that ability to look at that. Staff is looking
at that in conjunction with cohesive office parks and commercial centers. Weare saying
"show us that in fact it is functionally obsolete." That becomes part of the rationale for
changing those areas out.
· Currently there is no policy saying that industrial buildings are obsolete. A policy has been
recommended to the Council, and the Council appears to have accepted the concept in their
preliminary voting.
Com. Miller:
· He commented that they should have added it to the work program as it is becoming a bigger
issue. It needs to be addressed specifically because there will be more in the future.
Mr. Piasecki:
· Suggested adding it to the work program for discussion when they are ready to do that type of
analysis, as it is involved.
Chair Wong:
· Relative to height, he pointed out when driving through the project it looks like the grading for
the rear parking lot is much lower so that makes it 5 feet, 8inches vs. the ftont on Stephens
Canyon Road where it is 28 feet.
· Expressed concern that making this a planning unit development, there are single family
homes toward the rear; some one, some two stories. The project is very bulky with palm trees.
It does not blend in very well with the neighborhood. Is there a way to do more architecturally
so that it is not so bulky towards the rear because it goes ftom a one story in the rear.
Cupertino Planning Commission
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October 25, 2005
Ms. Schimpp:
· Discussed the proposed house colors, and noted that the applicant proposed to tone down the
colors to be more earth tones. She noted that the three story appearance ftom the rear is
because the site is sloped down and they tucked the parking underneath at that point.
· The cluster of new redwood trees between the parking bays will grow to add a screen.
· There is also an eight foot high fence along here and trellis that will help screen the bulk of the
building.
Chair Wong:
· Even ftom the rear, the highest it looks is 26 feet. If you look toward the ftont, again because it
is sloped it looks like a one story to a one and a half story. What you are proposing ftom the
old project to the new project is significantly higher, which may have an adverse impact on the
existing neighborhood. I am looking at more of a compatibility issue. This came up during
the RI hearing regarding the compatibility. I just wanted to make sure this project is
compatible with the RI. I think it needs a little bit more massaging.
Mr. Piasecki:
· The taller buildings will provide more of a noise buffer ftom the traffic activity on Stephens
Canyon Road than the current shorter buildings.
They will hopefully provide greater separation between that activity on the road and the
adjoining neighborhood. We need to hear ftom the applicant and the neighborhood on all
these issues.
Michael Abodahi, Rockwell Homes responded to previons questions:
· There are no one bedroom units; there are five 3 bedroom units and ten 2 bedroom units.
· It is a unique project, sensitive about density. He said they worked with the staff, had many
revisions and modifications, and tried to come up with a density that would please everyone.
· There are 15 rental units with 2 and 3 bedrooms. He said they wanted to determine if they
should comply with the duplexes next door or the single family in the back, and compromised
within those two. They did not want to have a more denser project like condominium or
apartment complexes.
· There were 4 to 5 vacancies up until last month; they are now fully occupied.
· It is important to note that there should not be an increase in the traffic generation.
· The city's parking ordinance requires 2.8 spaces, they are providing 3.2 since the neighbors
complained about not having enough parking.
· Neighbors were complaining about the drainage. The properties were draining all the water to
the properties single family in the back.
· The neighbors complained about the rats on the property.
· The neighbors also complained about the property being extremely old and the lack of
maintenance. He noted that he just purchased the property a few months ago.
· There is no heritage tree; they are adding 34 new trees and are complying with the General
Plan and the Rezoning Ordinance.
· This project is not detrimental to health or safety.
· Said that they would work with the Director of Community Development regarding colors.
· Said they promoted older development in the city. He felt it was a very good project compared
to what exists. The city deserves this project.
Mr. Abodahi answered Commissioners' questions:
· Rental price range is ftom $900 to $1200 per unit.
Cupertino Planning Commission
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October 25, 2005
· If it is a city requirement, the current renters will be given the option to purchase the units.
· Three BMR units are proposed.
· Have not considered a mix of two and three bedroom units as opposed to all three bedroom
units.
· Outreach has been done to notify the current tenants that the property is being purchased for
development, and they will be provided with a 60 day notice and relocation plan. They have
been given the 60 day notice, but not the relocation plan yet.
· He said he did not notify the 15 tenants of the public hearing; he assumed that the city did the
notification.
Ms. Wordell:
· Said to her knowledge, only the property owner was notified, not the tenants.
Chair Wong:
· Expressed concern that the tenants at Morano and A viare did not receive notification.
Steve Yang, Architect:
· In response to a question about massing of the building, he said they proposed a duplex,
followed by a single family home, but both ideas were declined by the city Planning
Department. Their final proposal was for 15 townhomes.
· He said the architectural design for the façade was interesting, and the unique architecture was
welcome in the city.
· Regarding the attic space, there is a homeowners' association which requires a permit for
home improvements; and a provision can be put in the HOA, that a fourth bedroom cannot be
added. He noted that there was no access and the ceiling was very low.
· Said he attempted to minimize the bulk of the height of the building, and it is now 3 to 12 on
the pitch of the roof, which is the lowest it can go. Architectural design 3 to 12 is very
shallow.
· A three story building would not have more than 500 square feet on the top floor, which would
not work because of lack of a second exit. It can only be a two story building plus basement.
· The garage is low tucked ftom behind and the ftont low portion is 4-1/2 feet higher than the
rear area.
· The building shows in the ftont about 28 feet tall; and the back has been cut due to the
topographic slope so there can be a garage.
· There is no attic space; the building height and the attic space have been addressed. On sheet
A4 section you can see the existing building height, about 26 or 27 feet.
· Color will be addressed later.
Mr. Yang answered Commissioner's questions:
· Said that a neighborhood meeting was held at the beginning of the year.
· Said the third story dormers were architectural features, not usable space.
· Building a lightwell is not recommended.
· On the unit with the old west style balcony, one can exit through the windows onto the
balcony.
Chair Wong:
· Asked if they were single family homes or duplexes, would the height be lower, and could 15
units fit on the parcel.
Cupertino Plånning Commission
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October 25, 2005
Mr. Yang:
· Said that 15 units would be doable, but would be very tight for single family; duplexes would
also be tight because the parking garage is in the back of the space.
· Single family homes were the original proposal, but townhouses were thought to be more
appropriate.
· Said if they were single family homes, the height could be lower.
Chair Wong opened the public hearing.
Rachel Lowenburg, resident:
· Said her fence was on the subject property line.
· Mr. Abodahi spoke with the neighbors in March and explained the proposed plans. She said
she was concerned about her loss of privacy since the windows in the back looked down into
her back yard. She said she indicated that she wanted to retain the back fence and gate out to
Stevens Canyon Boulevard, which has been used for the past 40 years to get out to the schools.
but was told they would tear it down. She said she was told that the back gate was illegal and
that a cement wall would be erected. She indicated that she would feel trapped by the cement
wall and no gate, and she did not like that.
Mr. Piasecki:
· Noted that Ms. Lowenburg has been using an opening in the fence to gain access to Stephens
Canyon Road instead of going around the block. He said the family has been trespassing on
someone else's property for many years. He suggested she speak with the applicant to see if
they had any issues relative to the use of the opening in the fence.
Jennifer Griffin, Rancho Rinconada resident:
· Expressed concern about the loss of apartment rentals in Cupertino, particularly through the
conversion of the A viare complex.
· Said it was unique that the rents in that particular area of Cupertino were only $900/month, and
questioned whether they were HUD properties.
· Questioned why they were allowing so many conversions of rental units.
· Said the plans for the property were too dense, too high, resembling something ftom
Manhattan. She also expressed concern about the impact on Monta Vista High School.
· Said she was pleased that there is a better correlation in the amount of bedrooms, and not
getting a 50% increase in bedrooms in this property; it looks like we have got a v..% increase;
but you might want to take a look at the fact that they are going to Monta Vista High and any
more increase there you are going to have more problems.
· Questioned why three bedrooms when everyone is crying for affordable housing. They should
be two bedroom units, and why not a senior project? You don't have the number of children
coming out of that. Why are there third and fourth story dormers?
· Recommended that they rethink the policy about converting.
Dennis Whitaker, Cupertino resident:
· Reiterated what he said in the past that it is about quality of life. Offering a decent mix of
housing is a quality of life issue; not "no growth".
· Said he supported growth, but was concerned about the affordability of the units because there
were no one or two bedroom units or studio units.
· Recommended a statement ftom the Planning Commission to set a policy in place about
retaining apartments and not losing the apartment mix. . Affordable housing needs to be
protected and retained. He said that it appeared that affordable housing continues a trend of
Cupertino Planning Commission
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October 25, 2005
conversion ftom apartments to condominiums and townhouses; ftom affordable housing units
to million dollar homes.
· Expressed concern about the numbers; 180 affordable units have been lost in the last three
years.
· Asked that the Planning Commission take a stance and instruct staff to notice the City Council
that a decision needs to be made before the 20 year plan goes into effect, even though it will be
reviewed in 10 years.
· Said that affordable housing is everyone's hope and concern and he hoped it is a reality that
will come true with good consideration.
· Chair Wong closed the public hearing.
Mr. Piasecki addressed some of the issues about apartments in the community.
· As pointed out earlier, there is no policy, and anyone could purchase an apartment complex
with the plans to convert it; and looking at the policy structure they would not see anything
that would inhibit them, and they would have a significant investment. The city has an
obligation to put the policy up ftont so that a prospective owner may be aware that the city
may not necessarily approve a conversion.
· He reviewed the conversions in the mid 90s, and noted that there were some current
conversions, and it was appropriate to put it in the General Plan and provide early warning for
people who are investing and looking at property and want to know what the city's intent is.
· He pointed out that it was important to send out proper notification.
Chair Wong:
· Said he would like to see the building less dense, more compatible, with lower height.
Mr. Piasecki:
· Said he did not think the density or height would change; perhaps the applicant would address
that if the item is continued.
· Relative to the building design, the applicant was asked to individualize the units. They aren't
technically Craftsman, but they have a lot of detail, to provide the rowhouse look on the street.
They were also encouraged to spend more money on the ftont architecture, picket fences, and
detailing in the buildings.
Vice Chair Miller:
· From an architectural standpoint, it is a well designed project.
· Said there was still the issue of how many rental units are in town and what the policy should
be in moving forward in terms of conversion of rental units to for-sale units.
· Said he felt uncomfortable about approving the project although they approved the Marano
project and Aviare project which were conversions, not rezoning.
· He said he felt there should be policy discussions before moving ahead with similar projects,
since it would likely be a test case in light of the market conditions.
Com. Chen:
· Said she did not have any specific concerns regarding the designs; but said without a policy in
place, they should not be addressing the policy issue on this particular project. In order to
establish a policy, they should go through the similar steps to have some understanding of the
impact to the community.
· Said she was in favor of continuing the project with some discussions if staff brings more
information regarding how the policy should be set up and what processes have been
Cupertino Planning Commission
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October 25, 2005
completed to evaluate the policies on this particular project; not to apply the policy to the
project, but to go through the analysis necessary to establish a policy to see if the project fits.
Com. Giefer:
· Said she did not disagree with her colleagues in terms of trying to come up with a policy that
will advise them and help make determination of conversion. However, she did not want to
see the subject proposal penalized while they deliberate on what that policy should be, given
that it is 15 units.
· The bigger issue is affordability because these are very affordable rental units, priced ftom
$900 to $1200 per month. She said she would be more inclined to act on this if she understood
what the availability of similarly priced units was in this area.
· She said that ftom walking through the facility, it was evident it is a victim of deferred
maintenance; updating the housing stock is actually good for Cupertino. It is an appropriate
target to update the property and allow the owner to redevelop it. Some specific concerns
about the design are related to the daylight plane for the neighbors on the eastern side, since
the residences will sit on Stephens Canyon Road ahead of the single story homes behind them.
· There is no daylight plane policy for these types of units. As the sun goes down, the afternoon
sun for the single story homes behind is gone. I would prefer to see a mix of two and three
bedroom units, where it is sloped down in the back and not completely eliminating the
afternoon sun for the residents behind them.
· She expressed concern about the ftont balcony, that it may become a garbage collection area;
there are non-functional windows, and one cannot go out to the balcony to sweep it off; it will
become a collection area for leaves and there will be debris blown up in the air ftom the traffic.
She recommended eliminating the second story balcony design elements, specifically so that it
is not a debris catcher.
· She applauded the developer for offering 20% BMRs on such a sma\1 project.
· She said the ftont of the project is "charming"; she liked having the bike lane in ftont; but she
said the back is too high; and the 30 feet blocks off the sun for the rear neighbors.
· She expressed a desire to help Mrs. Lowenburg keep her gate if possible. She deferred to the
city attorney, noting that Mrs. Lowenburg has been using the passage and trail for 40 years,
and asked if she would have any rights to continue the use.
Ms. Eileen Murray, Assistant City Attorney:
· Said she could not render a legal opinion since the issue was between the two property owners.
Com. Giefer:
· Suggested that if they could do anything to help the neighbors be better neighbors and allow
her to continue to gain that gate access, it would be great; but it doesn't seem that is a
condition we will be able to resolve.
· No. I concern is displacement of very low rental units. She said she would feel more
confident if they understood what the available housing stock at that price point was, within a
13 mile radius of the project.
Chair Wong:
· Said that the rental prices for the units in the area were between $1500 and $1800 per month.
The owners chose to price the units lower, perhaps because it is an older building. There may
be various reasons.
Cupertino Planning Commission
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October 25, 2005
Mr. Piasecki:
· Said that applicants in the past have sometimes offered to write down or subsidize the
relocation rent.
Com. Giefer:
· Said that the ftont of the project was "charming"; I like having the bike lane in front of it; I
think thosed are all good things, but the back is too high; the 30 feet blocks off the sun for the
rear neighbors and that is a concern of mine.
Com. Saadati:
· I agree with other commissioners regarding policy; we need to discuss this and have a policy
so the future developers won't spend a lot of time and effort to come in and be denied. We
have to decide how soon we are going to do that.
· Affordability is a concern; I would like to see some two bedroom units, perhaps the middle or
end building could be changed to I and 2 bedroom units.
· Recommended notifying the tenants as they had not been notified previously, and if they have
concerns, come to the Planning Commission meetings.
· The privacy issue affecting the neighbors needs to be addressed. A resident was concerned
about her access through a gate she has used for many years. He commented that he had a gate
in his back fence, but realistically did not expect to have access to the gate forever.
· There was no discussion on school impact; it would be good to address the subject.
· I like the increased BMR to 20%.
· Relative to the building massing and reducing the noise, it seems to be appropriate because it is
facing a very busy street with truck noise, which would buffer that. With a smaller building,
more noise would go through it. From that respect I think the building in ftont is good.
· Concur that the item should be continued to hopefully get responses to all the questions.
Chair Wong:
· Concurred with all colleagues' comments; I know that the applicant's architect did a lot of
work and he put a lot of effort into it and it shows, plus working with the staff.
· No. I concern is regarding notification; when returning to the Planning Commission, work
with city staff and have the city notify the 15 units that there will be a public hearing to avoid
any misunderstanding.
· Concurred with Corns. Giefer and Saadati that there should be more two and three bedroom
units, which would help with the bedroom count for the schools, even though there is no
significant impact.
· Expressed concern that the building was too high and too bulky; recommended that it be
lowered, especially in the back. Staff would like it for a sound barrier, but it does not fit in the
neighborhood.
· Suggested daylight plane is a good idea. If it fit within the daylight plane, perhaps it would be
far enough that residents such as Ms. Lowenburg would not be affected by the afternoon sun or
having no sun. Asked staff to research that as well.
· We appreciate the generosity of the applicant providing the 20% BMR units. The color
scheme needs work; I would like to see duet homes, but if you could work within those
parameters, I would be open to townhomes.
· As stated by Com. Giefer, it is a wonderful opportunity to be able to purchase a home in
Cupertino or rent between $900 and $1200 and that is the choice of the previous owner; they
can raise the rent if they want. Jennifer Griffin had a good comment regarding conversion of
apartments to townhouses or for-sale homes; the property owner has the right to do that; the
only concern we have is to make sure there is an affordable housing unit in that.
Cupertino Planning Commission
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October 25, 2005
· The other thing I disagree is that rent control does not work very well; I believe that the market
should control that and this particular building is $900 to $1200, so the market will control the
rent; and by implementing a rent control ordinance in Cupertino, it is not justified.
· Said he agreed with Vice Chair Miller's and Com. Chen's suggestion about a policy; however,
this applicant should not be caught up in that policy. It sets a bad precedent for other potential
folks who want to buy homes in Cupertino, perhaps by other apartments that it might send a
signal that we can buy this property and do a conversion of these rental units for-sale. That is
something we have to examine at a later point, and may be something to suggest to the City
Council and city staff to impose a moratorium until we have the policy in place; because we
already have four projects.
· I strongly believe there should be a moratorium until we set some policy.
· I would support a continuance.
Mr. Piasecki:
· He clarified that the housing element is not completely silent on the issue of rental housing
stock; it does have some statements about trying to enhance and preserve rental housing stock.
Chair Wong:
· The reason why my statement was so strong is that I think all the Planning Commissioners
agree that we want affordable housing units in Cupertino; and as we see more of these units
convert ftom for-sale, they are selling for over $1 million which is beyond our control.
The applicant indicated he was agreeable to a continuance to December 13, 2005.
Motion:
Motion by Com. Giefer, second by Com. Saadati, to continue Application
U-2005-18, TM-2005-08, Z-2005-06, and ASA-2005-14 to the
December 13, 2005 Planning Commission meeting. (Vote: 5-0-0)
Chair Wong declared a recess.
7.
MCA-2005-01
Citywide Location
Municipal Code Amendment of Chapter
1628 (Fences)
Aki Honda, Senior Planner, presented the staff report:
· Explained that the application was a continuation of the study session of the Municipal Code
Amendment of Chapter 16.28 (Fences)
· She reviewed the background of the item as outlined in the staff report, and discussed the
issues ftom the August 23, 2005 Planning Commission meeting. Citywide notices of the
meetings were sent to previous fence exception applicants and community members.
· She reviewed the written responses received by the city, outlining concerns and suggestions.
The responses are outlined in the attached staff report, Page 7-2.
· Staff recommends that the Planning Commission provide comment and direction to staff on
how to proceed regarding the fence ordinance after hearing public comment.
Chair Wong opened the public hearing.
Paul Bommarito, Martinwood Way:
· Expressed ftustration about waiting for 4 hours before the application was discussed.
· He expressed concern about the granny house built in the neighbor's yard only 4-1/2 feet ftom
his fence which negatively impacted his privacy.
Cupertino Planning Commission
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October 25, 2005
· Read Chapter 1628 relative to regulating the location and height of fences and vegetation in
yards of all zoning districts in order to protect the safety, privacy and property values of
residents.
· Said he spent in excess of $5,000 for landscaping in the back of his fence because he was not
permitted to build it higher, and the neighbor would not agree to adding lattice on top of the
fence. He said he was displeased with the city and what they allow.
Chair Wong:
· Said he would follow up with the city manager to see if anything could be done.
· Asked staff to research to see if the granny unit is up to code or is too close to the fence.
Ms. Wordell:
· Reminded the Planning Commission that the fence ordinance requires the permission of the
adjacent property owner to exceed the 6 foot height limit for a fence. She said it could be an
issue for the Planning Commission to consider.
· Said that a detached accessory structure can be as close as 3 feet if the wall plane is no higher
than 7 feet. If there is a sloped roof or a hip roof on an accessory structure, it can be quite
close.
JMC Tucker, resident:
· The fence ordinance does not go into any details about what can go next to a fence; a
homeowner especially today with this land would like to put shrubs or trees or some kind of
storage structure close to the fence and I don't see a problem with that provided a number of
guidelines are followed.
· He suggested that the shrubs should be no higher than the fence and not interfere with the
neighbor with debris. He added that the widest portion of the tree should not be any closer
than 3 feet; but the rule of portion is that if it should impend to the neighbor's yard and
anything that does grow into the neighbor's yard, is the tree owner's responsibility to trim.
· Said he would like the ordinance control egregious neighbors ftom planting trees within inches
of the fence line; in some cases the tree grows so large that the trunk pushes the boundary over.
· He said he suggested a fine system that would include a fee for filing a grievance, which would
eliminate frivolous filings. There is also a fine for being in non-compliance. He said that the
tree owner should be responsible for the maintenance of the trees.
Chair Wong:
· Asked staff to address his concern that the privacy protection plan RI may not work. What
Mr. Tucker is suggesting is that trees should not be planted higher than the fences; however, it
will conflict with the city's RI privacy protection plan.
Ms. Wordell:
· Said it was a good observation because there are competing interests of people who want
privacy on one side and people who don't want privacy on the other, which could be difficult
to arbitrate.
Bruce McFarlane, Cupertino resident:
· There is no point in modifYing the fence code if there is no enforcement.
· He recalled that when he constructed a fence in the past, he had to obtain code documentation
ftom the city. A neighbor put in a fence over 8 feet high, next to the sidewalk; it was a
beautiful fence but in the wrong place. When he called the city, he was told by city staff that
Cupertino Planning Commission
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October 25, 2005
they would look into the issue of the location of the fence, but never followed through. The
fence remains and is aesthetically very poor.
· He encouraged enforcement of the existing fence code.
Chair Wong:
· Asked staff to follow up on Mr. McFarlane's concern.
Jennifer Griffin, Rancho Rinconada resident:
· Said she was strongly opposed to electronic gates.
· There is a time and place for electronic gates in an area with large holdings or large estates.
Electronic gates in suburban areas gives the impression of a gated community and gives a bad
impression to other neighbors. It is good to have security and possibly a gate of some type
across your property that you might roll across the property; but I don't think in most of the
suburban neighborhoods in Cupertino on city-sized lots that there should be electronic gates.
· It looks like a compound and you are trying to exclude other people. It is also a nuisance for
delivery vehicles.
· Asked for a vote to eliminate the electronic fences in Cupertino unless in a remote area.
Chris Draper, Government Affairs Coordinator, Silicon Valley Assoc. of Realtors:
· Encouraged the use of electronic gates; the current ordinance already allows for gates; the
gates are already there; the only difference is whether they open manually or electronically.
· The gates provide privacy and security and we want to be considerate of those concerns.
· Commented that the fence post caps are an expression of individual homeowner's taste, and
asked that they not be required to go through a design review process.
Discussion ensued regarding the possibility of continuing the fence ordinance application due to
the absence of the Director of Community Development and Com. Chen, and the late hour. It was
suggested to schedule a special meeting to discuss the item.
Vice Chair Miller:
· Said they should not be regulating the fence post caps.
· Relative to electronic gates, consistency is important. The issue has arisen a number of times
and as some of the speakers pointed out, we allow gates now, but we have an issue when they
are electronic gates.
· Said they need to be consistent and allow both gates and electronic gates when they meet the
requirements of an exception., As staff pointed out, there are some requirements that need to
follow along with that so that there are not cars queuing up in the street. Staff suggested a
minimum 20 foot setback, which is a good idea. There has to be some way for emergency
vehicles to get in and out.
· Questioned why structures were being built so close to the fence line; and said it would seem a
reasonable exception in the few cases that it has occurred, to do something to improve the
neighbor's privacy who is being impacted by having the structure so close to his property line.
· Iron or wood fences should be addressed on a case-by-case basis because it is an architectural
issue and should be treated relative to whether or not the fence and the type of material used is
appropriate for the house and the neighborhood.
Com. Saadati:
· The fence post caps do not have significant impact on the fence; it is ornamental and should
not be regulated. We need to at least review it because one could put a post cap too high.
· Regarding electronic gates, we should allow it to be electronic or not a\1ow any gates.
Cupertino Planning Commission
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October 25, 2005
· We need to be careful about shrubs because there are some shrubs next to fences that grow
about 15 to 20 feet high and provide privacy and it doesn't affect the neighbor. It depends
what is next to you.
· If we are going to limit it, we need to word it in such a way that we don't have to revisit it very
soon. Trees cannot be too close to the fence because they tend to have branches going over the
neighbor's fence. If we require the branches be cut at the fence line, the trees won't survive.
That also needs to be addressed.
· Relative to a fence ordinance requiring the neighbor's permission for a fence over 6 feet high,
he said they needed to allow for flexibility. The public could apply to the Planning
Commission for an exception, and for privacy purposes, it is something the Planning
Commission should be able to do.
· Relative to setbacks and corner lots, if they can push the fence back some, it would be
appropriate; but most communities have a similar requirement about corner lots fencing.
Com. Giefer:
· Said that defining materials is appropriate. A fence ordinance should specifically define what
are appropriate fence materials in a residential area. In a commercial area that abuts a
residential area, having a spiked fence post with razor wire over it, does not make for a
congenial neighborhood; or if you abut up to a creek or a channel, and the water district
decides to put razor wire behind your house, you are not going to be happy. A responsibility
exists to define materials used; an approved materials list needs to be compiled and all other
things needs to be reviewed by the DRC or as a Director's minor modification.
· She said she did not like any gates, either electronic or manual. If they are going to jettison
electronic gates and forbid them, they should get rid of driveway gates also because they add
an element of exclusivity. She asked that the term "rural" be defined if they are considering
allowing electronic gates in rural areas. She pointed out that in her opinion, rural did not mean
living on a flag lot, and she felt they were out of place as she did not feel they created a
congenial neighborhood environment when erecting buttresses and fences to prohibit people
ftom passing into other's space.
Chair Wong:
· It does not matter whether the gate is manual or electronic; a gate is a gate, and relates to
safety, health and welfare. Many people would like the convenience of an electronic gate to
open it since the gate is already there; we should allow that option and flexibility.
· Suggested that barbwire fences be illegal.
· Making a list of approved materials sets a dangerous precedent; I agree that good fences make
good neighbors; what type of material makes a good fence is in the eye of the beholder. We
should allow the flexibility to add a lattice atop a fence, or some other kind of decorative
material; and that is one of the reasons why I wanted to press the fence ordinance, to allow that
kind of flexibility. If someone wants to do a wrought iron fence or if they want to do a cyclone
fence or decorative stone fence, it should be up to the private property owner in conjunction
with their neighbors and working with city staff. If you put a list of approved materials and
then looking at different neighbors, I would prefer to let private property owners decide among
themselves. I feel very strongly that we should not have government interfere with private
property .
· Regarding the fence posts, I believe it is a private property issue; city government should not
be regulating that issue and the whole point of me bringing this forward is to allow more
private property rights.
Cupertino Planning Commission
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October 25, 2005
Motion:
Motion by Com. Saadati, second by Vice Chair Miller, to continue
Application MCA-2001-01 to the December 13, 2005 Planning Commission
meeting. (Vote: 4-0-0; Com. Chen absent)
OLD BUSINESS: None
NEW BUSINESS: None
REPORT OF THE PLANNING COMMISSION:
Environmental Review Committee:
· Chair Wong reported the meeting was cancelled for lack of business.
HousiDl! Commission:
· Com. Saadati did not attend the last meeting since he did not receive a meeting notice.
Mavor's Monthlv MeetiDl! With Commissioners:
· Com. Saadati will provide a report at the next meeting.
Economic DeveloDment Committee Meetinl!:
· Chair Wong reported the meeting was cancelled for lack of business.
Director of Communitv DeveloDment:
· Ms. Wordell had no additional report.
A brief discussion ensued regarding the November 8th Planning Commission meeting. Chair
Wong said he felt the meeting should be telecast.
SUBMITTED BY:
The meeting was adjourned to the November 8, 2005 Planning
Commissit1l}Jf¡¡ting at 6:45 p.m. Ç¡" " ,
<./(~rer-L ~
Elizabeth A. Ellis, Recording Secretary
ADJOURNMENT:
. Approved as presented: December 13, 2005