HomeMy WebLinkAboutCC - 05.28.2021STATE OF CALIFOJ,: t.'{
TELECONFERENCE / PUBLIC PARTICIPATION INFORMATION TO HELP STOP THE
SPREAD OF COVID-19
In accordance with Governor Newsom's Executive Order No-29-20, this will be a
teleconference meeting without a physical location to help stop the spread of COVID-19.
Members of the public wishing to comment on an item on the agenda may do so in the
following ways:
1) E-mail comments for the closed session by 8:30 a.m. on Friday, May 28 to the Council at
citycouncil@cupertino.org. These e-mail comments will also be foarded to
Councilmembers by the City Clerk's office before the meeting and posted to the City's
website after the meeting.
2) E-mail comments for the closed session during the time for public comment before the
meeting to the City Clerk at cityclerk@cupertino.org. The City Clerk will read the emails
into the record, and display any attachments on the screen, for up to 3 minutes (subject to
the Mayor's discretion to shorten time for public comments). Members of the public that
wish to share a document must email cityclerk@cupertino.org prior to speaking.
3) Teleconferencing Instructions
Members of the public may provide oral public comments in open session prior to the
closed session teleconference meeting as follows:
To address the City Council, click on the link below and access the meeting:
Online
Please click the link below to join the meeting:
https://cityofcupertino.zoom.us/j/98925739904
Page I
City Council Agenda May 28, 2021
Phone
Dial 669-900-6833 and enter Meeting ID: 989 2573 9904 (Type *9 to raise hand to speak)
Please read the following instructions carefully:
1. You can directly download the teleconference software or connect to the meeting in your
internet browser. If you are, using your browser, make sure you are using a current and
up-to-date browser: Chrome 30-r,"Firefox 27+, Microsoft Edge 12+, Safari 7+. Certain
functionality may be disabled in older browsers, including Internet Explorer.
2. If you wish to make an oral public comment but do not wish to provide your name, you
may say "Cupertino Resident" or similar designation.
3. Prior to the beginning of Closed Session and after Roll Call, members of the public will
have an opportunity to speak. If you wish to speak, click on "raise hand," or, if you are
calling in, press *9. Speakers will be notified shortly before they are called to speak.
4. When called, please limit our remarks to the time allotted and the specific agenda topic.
In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to
attend this teleconference City Council meeting who is visually or hearing impaired or has
any disability that needs special assistance should call the City Clerk's Office at
408-777-3223, at least 6 hours in advance of the Council meeting to atrange for assistance. In
addition, upon request, in advance, by a person with a disability, City Council meeting
agendas and writings distributed for the meeting that are public records will be made
available in the appropriate alternative format.
NOTICE AND CALL FOR A SPECIAL MEETING OF THE CUPERTINO CITY COUNCIL
NOTICE IS HEREBY GIVEN that a special meeting of the Cupertino City Council is hereby
called for Friday, May 28, 2021, commencing at 10:00 a.m. In accordance with Governor
Newsom's Executive Order No-29-20, this will be a teleconference meeting without a
physical location. Said special meeting shall be for the purpose of conducting business on
the subject matters listed below under the heading, "Special Meeting."
SPECIAL MEETING
ROLI, CALL
CLOSED SESSION
1. $: Conference with Legal Counsel - Anticipated Litigation. Significant exposure
to litigation pursuant to Government Code section 54956.9(d)(2) (one potential case)
A - Letter from Californians for Homeownership to City Couni
Page 2
City Council Agenda May 28, 2021
2. $: Conference with Legal Counsel - Anticipated Litigation. Initiation of litigation
pursuant to Government Code section 54956.9(d)(4) (one potential case)
3. $: Public Employee Appointment/Public Employment (Government Code
section 54957(b%l)); Title: (City Manager)
ADJOURNMENT
The City of Cupertino has adopted the provisiorts of Code of Civil Procedure §1094.6; Litigation
cha71enging a final decision of the City Council must be brought roithin 90 days after a decisiort is
artrtotmced urt(ess a shorter time is required by State or Federa( raw.
Prior to seeking judicia7 review of any adjudicatory (quasi-judiciaD decision, interested persons must
file a petition for reconsideration within ten calendar days of the date the City Clerk ma'ds notice of the
City's decision. Recortsideration petitions must comply with the requirements of Cupertirto Murticipal
Code §2.08.096. Corttact the City Clerk's office for more information or go to
http://www.cupertino.org/cityclerk for a reconsideration petition form.
by compliance with the Americans voith Disabilities Act (ADA), anyone who is plarmirtg to attertd this
te7eco4erence meeting who is visually or hearirtg impaired or has any disability that needs specia[
assistance should call the City Clerk's Office at 408-777-3223, at Least 6 hours in advance of the
meetirtg to arrange for assistance. by addition, upon request, in advance, by a person with a disability,
meeting agendas and writings distributed for the meet'mg that are puMic records will be made availab'le
in the appropriate alternative format.
Arty writings or documents provided to a majority of the Cupertino City Counci7 after publication of
the packet w'dl be made available for pub7ic inspection'm the Cih) Clerk's Office Located at City Hall
10300 Torre Avenue, during norma7 business hours and 'm Counci7 packet archives Linked from the
agertda/minutes page on the Cupertirto web site.
IMPORTANT NOTICE: Please be advised that pursuant to Cupertino Municipal Code 2.08.100
written commtmicatiorys sent to the Cupertino City Council, Commissioners or City staff concerning a
matter on the agenda are included as supplementa7 material to the ageridized item. These written
communications are accessible to the public through the City's website arid kept in packet archives. You
are hereby admonished not to include any persona7 or private information in written communications to
the City that you do not wish to make pub4ic;doingsoshallconstitutea waiver of any privacy rights
you may have on the information provided to the City.
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CALIFORNIANS FOR
HOMEOWNERSHIP
MATTHEW GELFAND, COUNSEL
MATT@CAFORHOMES.ORG
TEL: (213) 739-8206
May 25, 2021
VIA EMAIL
City Council
City of Cupertino
10300 Torre Avemie
Cupertino, CA 95014-3202
Email: dpaul@cupertino.org; liangchao@cupeitino.org; lanoore@cupertino.org;
hwei@cupertino.org; jwilley@cupertino.org; citycouncil@cupertino.org
RE: Resolution No. 20-141 and Ordinance No. 21-2226
To the City Council:
Californians for Homeownership is a 501(c)(3) non-profit organization devoted to using
impact litigation to address California's housing crisis. I am writing as part of our work monitoring
local compliance with California's laws regarding density bonuses.
Last year, as part of its continuing effort to address the housing crisis, the Legislahire
passedAB 2345, Stats. 2020, c. 197. AB 2345 enhances the state's existing density bonus program
by providing increased density bonus incentives. The law provides a limited exception for cities
that had demonstrated a commitmentto addressingthe housing crisis by adopting enhanced density
bonus programs prior to the end of 2020, codified at Government Code Section 65915(s).
In response to AB 2345, on December 15, 2020, the City adopted Resolution No. 20-141.
Tmough the Resolution, the City sought to have its cake and eat it too: it adopted a nonbinding
resolution-which it knew would not have legal effect-in an attempt to meet the law's deadline
without committing the City to any particular course of action.
But the Resolution did not earn the City the exemption provided by Government Code
Section 65915(s). The rest of this letter explains why.l If the City believes it has a valid legal
basis for a contrary view, we ask that it provide that explanation to us by close of business this
Friday, May 28, 2021.
I We note that the City has also received correspondence from other public interest groups,
including a December 15, 2021 letter from YIMBY Law that the City received before Resolution
No. 20-141 was adopted. It also received a May 3, 2021 Techical Assistance letter from the
state Department of Housing and Community Development (HCD), attached here, before it
adopted Ordinance No. 21-2226.
525 S. Virgil Avenue
Los Angeles, CA 90020 y J
1,i
May 25, 2021
Page 2
Resolution No. 20-141 was an invalid attempt to pass a zoning ordiriance bv resolutiori.
Cupertino is a general law city and is subject to all of the provisions of the Government
Code relating to the adoption of local laws. Government Code Sections 65850 et seq. sets forth
the procedural requirements for adopting zoning ordinances. Among other things, a zoning
ordinance includes any ordinance that regulates the "size of buildings and structures" or the
"intensity of land use." Gov. Code S, 65850(c). Government Code Section 65854 requires that
zoning ordinances only be adopted following a hearing before the City's Planning Commission,
subject to significant public notice requirements.
Courts look to the nature of an ordinance, not a local government's characterization of it,
to determine whether these procedural safeguards apply. See People v. Optima7 Glob. Healing,
hc., 241 Cal. App. 4th Supp. 1, 8 (2015) (ordinance setting criminal penalties related to medical
marijuana businesses was a zoning ordinance despite characterization as a nuisance ordinance, and
would have been subject to Section 65854 if not passed as a voter initiative).
ResolutionNo. 20-141 is a quintessential zoning ordinance, regulating the size of buildings
and the intensity of residential land use within the City. There is nothing in the Government Code
that would allow the City to adopt a modification to its density bonus rules by resolution.2 Perhaps
more than anything else, any argument that the Resolution was not a zoning ordinance is
undermined by the City's own conduct in later passing Ordinance No. 21-2226 as a zoning
ordinance, with a fully noticed hearing before the Planning Commission.
These are not mere technical concerns. Because Resolution No. 20-141 was invalid, it
could not be relied on by an applicant seeking to develop housing in the City. During the period
between the adoption of Resolution No. 20-141 and the effective date of Ordinance No. 21-2226,
a project opponent could successfully argue that the City is required to reject housing projects
b eing developed under the new limits in Resolution No. 20-141, given the City's failure to validly
adopt these new limits. Ordinance No. 21-2226 will go into effect on June 3 -far too late to bring
the City within the ambit of the exemption provided in Government Code Section 65915(s).
We note that the City could have adopted a change to its density bonus rules through an
urgency zoning ordinance under Govemtnent Code Section 65858, which (if validly adopted)
would have resulted in a bona fide zoning ordinance that could bring the City within the Section
65915(s) exemption. We can only assume that the City chose not to go this route because it did
not want to actually commit itself to its new density bonus rules in 2020, or because it did not
believe it could comply with the substantive requirements of Section 65858.
Ordinance No. 21-2226 is invalid because it violatesAB 2345.
Because Resolution 20-141 is invalid, the City is not entitled to the exemption in
Government Code Section 65915(s). Accordingly, because Ordinance No. 21-2226 purports to
2 Nor is the City helped by characterizing the change as a "housing program"-a Housing
Element component that would need to be adopted tmough an amendment to the City's General
Plan, with all of the procedures required for such an amendment.
525 S. Virgil Avenue
Los Angeles, CA 90020 CALIFORNIANS FOR HOMEOWNERSHH)
May 25, 2021
Page 3
implement state density bonus law, it must fully comply with the current requirements in
Government Code Section 65915.
It does not. Among other things, the Ordinance provides a 40 percent maximum density
bonus for mixed-income projects, whereas state law requires the City to provide a 50 percent
maximum bonus. Gov. Code § 6591 5(f)(1). Ordinance No. 21-2226 is therefore invalid.
Sincerely,
Matthew Gelfand
cc: City of Cupertino
Deborah Feng, City Manager (by email to deborahf@cupertino.org)
Dianne Thompson, Asst. City Manager (by email to diannet@cupertino.org)
Albert Salvador, Acting Comm. Dev. Dir. (by email to alberts@cupertino.org)
Piu Ghosh, Planning Manager (by email to piug@cupertino.org)
Heather M. Minner, Esq., City Attorney (by email to minner@smwlaw.com)
Department of Housing and Community Development
Robin Huntley (by email to robin.huntley@hcd.ca.gov)
525 S. Virgil Avenue
Los Angeles, CA 90020 CALIFORNIANS FOR HOMEOWNERSHIP