PC Reso 6908 CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 6908
OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO
RECOMMENDING DENIAL OF A DEVELOPMENT PERMIT (DP-2018-05),
ARCHITECTURAL AND SITE APPROVAL (ASA-2018-05), VESTING TENTATIVE
MAP (TM-2018-03), TREE REMOVAL PERMIT (TR-2018-22), USE PERMIT (U-2019-03),
AND HEART OF THE CITY EXCEPTION (EXC-2019-03), TO DEMOLISH A 71,250
SQUARE FOOT RETAIL CENTER (THE OAKS), REMOVE AND REPLACE 74
PROTECTED TREES, AND CONSTRUCT A MIXED-USED DEVELOPMENT
CONSISTING OF 267 HOUSING UNITS (88 ROWHOUSE/TOWNHOMES, 179
SENIOR APARTMENTS OF WHICH 131 ARE SENIOR LICENSED ASSISTED LIVING
UNITS AND 48 ARE AFFORDABLE OR BELOW MARKET RATE ("BMR") SENIOR
INDEPENDENT LIVING UNITS), 27 MEMORY CARE LICENSED ASSISTED LIVING
RESIDENCES ("MEMORY CARE RESIDENCES"), AND 20,000 SQUARE FEET OF
COMMERCIAL SPACE. LOCATED AT 21267 STEVENS CREEK BOULEVARD (APN:
326-27-042, -043)
The Planning Commission recommends that the City Council:
1. Find that this action is not subject to environmental review under Section
21080(b)(5) and 15270 of the California Environmental Quality Act (CEQA) guidelines
because CEQA does not apply to projects which a public agency rejects or disapproves.
2. Deny the following permits, as set forth in the attached draft resolution:
Development Permit (DP-2018-05), Architectural and Site Approval (ASA-2018-05),
Vesting Tentative Map (TM-2018-03), Tree Removal Permit (TR-2018-22), Use Permit(U-
2019-03), and Heart of the City Exception (EXC-2019-03).
PASSED AND ADOPTED at a Regular Meeting of the Planning Commission of the City
of Cupertino the 14t" day of July 2020, by the following roll call vote:
AYES: COMMISSIONERS: Chair Moore, Vice Chair Wang, Saxena
NOES: COMMISSIONERS: Takahashi, Fung
ABSTAIN: COMMISSIONERS: none
ABSENT: COMMISSIONERS: none
ATTEST: APPROVED:
Benjamin Fu Kitty Moore
Director, Community Development Chair, Planning Commission
R Wang Acting Chair for Kitty Moore
EXHIBIT D
RESOLUTION NO.
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
DENYING A DEVELOPMENT PERMIT (DP-2018-05), ARCHITECTURAL AND SITE
APPROVAL (ASA-2018-05), VESTING TENTATIVE MAP (TM-2018-03), TREE
REMOVAL PERMIT (TR-2018-22), USE PERMIT (U-2019-03), AND HEART OF THE
CITY EXCEPTION (EXC-2019-03), TO DEMOLISH A 71,250 SQUARE FOOT RETAIL
CENTER (THE OAKS), REMOVE AND REPLACE 74 PROTECTED TREES, AND
CONSTRUCT A MIXED-USED DEVELOPMENT CONSISTING OF 267 HOUSING
UNITS (88 ROWHOUSE/TOWNHOMES, 179 SENIOR APARTMENTS OF WHICH 131
ARE SENIOR LICENSED ASSISTED LIVING UNITS AND 48 ARE AFFORDABLE OR
BELOW MARKET RATE ("BMR") SENIOR INDEPENDENT LIVING UNITS), 27
MEMORY CARE LICENSED ASSISTED LIVING RESIDENCES ("MEMORY CARE
RESIDENCES"), AND 20,000 SQUARE FEET OF COMMERCIAL SPACE. LOCATED
AT 21267 STEVENS CREEK BOULEVARD (APN: 326-27-042, -043)
SECTION I: PROTECT DESCRIPTION
Application No.: DP-2018-05
Applicant: KT Urban (Mark Tersini)
Property Owner: 190 West St.James, LLC
Location: 21267 Stevens Creek Blvd. (APN #326-27-042, -043)
SECTION II: FINDINGS FOR DENIAL:
WHEREAS, the City of Cupertino received an application for a Development Permit,
Architectural and Site Approval, Vesting Tentative Map, Tree Removal Permit, Use
Permit, and Heart of the City Exception as described in Section I of this resolution; and
WHEREAS, based on substantial evidence in the record, on May 12, 2020, the Planning
Commission recommended on a 5-0 vote that the City Council certify that the EIR has
been completed in compliance with the California Environmental Quality Act, Public
Resources Code Section 21000 et seq. ("CEQA") and reflects the independent judgment
and analysis of the City, adopt Findings, adopt and require as conditions of approval all
of the mitigation measures for the Project which are within the responsibility and
jurisdiction of the City that are identified in the EIR, and adopt the Mitigation Monitoring
and Reporting Program for the Project (EA-2018-04); and
WHEREAS, on May 12, 2020 the Planning Commission recommended on a 5-0 vote that
the City Council approve the Vesting Tentative Map (TM-2018-03), in substantially
similar form to the Resolution presented (Resolution No. 6904), approve the
Development Permit (DP-2018-05) in substantially similar form to the Resolution
presented (Resolution No. 6901), approve the Architectural and Site Approval Permit
(ASA-2018-05) in substantially similar form to the Resolution presented(Resolution No.
6902), approve the Use Permit(U-2019-03) in substantially similar form to the Resolution
presented (Resolution No. 6903), approve the Tree Removal Permit (TR-2018-22) in
substantially similar form to the Resolution presented (Resolution No.6906), approve the
Heart of the City Exception (EXC-2019-03) in substantially similar form to the Resolution
presented (Resolution No. 6905) for the Senior Enhanced Alternative; and
WHEREAS, on June 4, 2020, as updated on June 25 and 26, 2020, the applicant submitted
and requested the City to consider revisions to the Project ("Revised Senior Enhanced
Project") that include relocating nine Below Market Rate units from Building 1 to an
additional top story on Building 2, altering the unit mix in Buildings 1 and 2 to provide
additional space for terraces on the tops of those buildings, and changing the unit mix in
Buildings 2 to reflect the unit mix in Building 1; and
WHEREAS, because the revisions in the Project affect building height and dispersion of
BMR units, the project was re-reviewed by the Planning Commission on July 14, 2020 for
recommendation to the City Council; and
WHEREAS, based on substantial evidence in the record, on July 14, 2020, the Planning
Commission recommended on a X-X vote that the City Council:
1. Find that this action is not subject to environmental review under Section
21080(b)(5) and 15270 of the California Environmental Quality Act (CEQA)
guidelines because CEQA does not apply to projects which a public agency
rejects or disapproves.
2. Deny the following permits: Development Permit (DP-2018-05), Architectural
And Site Approval (ASA-2018-05), Vesting Tentative Map (TM-2018-03), Tree
Removal Permit (TR-2018-22), Use Permit (U-2019-03), and Heart of the City
Exception (EXC-2019-03); and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Commission held at least one public hearing in regard to this application, and on August
18, 2020, the City Council held a public hearing to consider the Project; and
WHEREAS, the City Council of the City of Cupertino is the decision-making body for
this Resolution; and
WHEREAS, the City Council finds as follows with regard to this application:
1. Strategy 7 in the Housing Element of the General Plan requires that all
residential development projects in the City provide below market-rate units
as specified in the City's Residential Housing Mitigation Program. Zoning
Code Section 19.172.020(A)further requires that all housing developers comply
with the Residential Housing Mitigation Program, and Zoning Code Section
19.172.030(A) further provides that the City Council shall adopt policies, rules,
and regulations for implementation of the Residential Housing Mitigation
Program.The City Council has adopted the BMR Housing Mitigation Program
Procedural Manual (the Mitigation Manual) containing the policies, rules, and
regulations for implementation of the Residential Housing Mitigation Program
as required by Section 19.172.030(A). Compliance with the Mitigation Manual
is required to comply with the City's Housing Element and Zoning Ordinance.
2. Section 2.3.4(D) of the Mitigation Manual requires that "[t]he BMR units shall
be dispersed throughout the residential project."
3. The proposed project is inconsistent with the Mitigation Manual, section 2.3.4
(D), because all of the BMR units are contained in one building rather than
being dispersed throughout the residential development. The request to waive
this requirement to consolidate all senior BMR units in Building 2 is based on
the applicant's reasoning that such units,if dispersed within Building 1,would
not qualify for funding from Low Income Housing Tax Credit. This reasoning
is financial and does not demonstrate that the standard contained in the
Mitigation Manual physically precludes development of the project as
proposed. No change is required in the physical design of the project to
disperse the BMR units.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter, the City Council of the City of Cupertino:
1. Find that this action is not subject to environmental review under Section
21080(b)(5) and 15270 of the California Environmental Quality Act (CEQA)
guidelines because CEQA does not apply to projects which a public agency rejects
or disapproves.
2. Deny the Development Permit (DP-2018-05), because the following findings
cannot be made:
a. The project will not be conducted in a manner in accord with the Cupertino
Comprehensive General Plan and the Zoning Ordinance in that it is not
implementing the Residential Housing Mitigation Program in conformance
with the Mitigation Manual and so is not implementing the Residential
Housing Mitigation Program as required by the Housing Element of the
General Plan and the Zoning Ordinance.
3. Deny the following permits: Architectural And Site Approval (ASA-2018-05),
Vesting Tentative Map (TM-2018-03), Tree Removal Permit (TR-2018-22), Use
Permit (U-2019-03), and Heart of the City Exception (EXC-2019-03), because they
are dependent on approval of the Development Permit (DP-2018-05) and because
following findings cannot be made:
a. Architectural and Site Approval: The project is not consistent with the
General Plan and Zoning Ordinance, in that it is not implementing the
Residential Housing Mitigation Program in conformance with the
Mitigation Manual and so is not implementing the Residential Housing
Mitigation Program as required by the Housing Element of the General
Plan and the Zoning Ordinance.
b. Vesting Tentative Map: The proposed map is not consistent with the
General Plan, in that it is not implementing the Residential Housing
Mitigation Program in conformance with the Mitigation Manual and so is
not implementing the Residential Housing Mitigation Program as required
by the Housing Element of the General Plan.
c. Tree Removal Permit: Because the Development Permit is denied, there is
no basis to conclude that the existing trees restrict the economic enjoyment
of the property by severely limiting the use of property in a manner not
typically experienced by owners of similarly zoned and situated property.
d. Use Permit: The project will not be conducted in a manner in accord with
the Cupertino Comprehensive General Plan and the Zoning Ordinance in
that it is not implementing the Residential Housing Mitigation Program in
conformance with the Mitigation Manual and so is not implementing the
Residential Housing Mitigation Program as required by the Housing
Element of the General Plan and the Zoning Ordinance.
e. Heart of the City Exception: The proposed development is not otherwise
consistent with the City's General Plan, in that it is not implementing the
Residential Housing Mitigation Program in conformance with the
Mitigation Manual and so is not implementing the Residential Housing
Mitigation Program as required by the Housing Element of the General
Plan and the Zoning Ordinance.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 18th day of August, 2020, by the following vote:
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
SIGNED:
Steven Scharf, Mayor Date
City of Cupertino
ATTEST:
Date
Kirsten Squarcia, City Clerk