CC Resolution No. 10-073 Petition Denial, Scenic Circle access to Blackberry Farm RESOLUTION NO. 10 -073
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
DENYING THE PETITION OF SUSAN SIEVERT, ET AL. AS AMENDED BY DONALD
BAUTISTA, JR. SEEKING COUNCIL RECONSIDERATION OF ITS DECISION ON
SCENIC CIRCLE ACCESS TO STEVENS CREEK TRAIL AND BLACKBERRY FARM
WHEREAS, on February 16, 2010, the Cupertino City Council received a staff report and
recommendation to construct a trail connection from Scenic Circle across an existing bridge
over Stevens Creek to provide access to Stevens Creek Trail and Blackberry Farm Park.
WHEREAS, the Cupertino City Council acted to approve the design and construction of an
additional public access point to Stevens Creek Trail and Blackberry Farm from the west side of
the Creek near Scenic Circle.
WHEREAS, the Council also gave further direction to Staff to develop a trail alignment
option that accessed the park somewhere between the locations detailed in the February 16 staff
report for Alternative A and Alternative B to avoid. to the greatest extent possible, a trail
entrance directly across the street from the front of residential property.
WHEREAS, the Cupertino City Council's decision was within its discretion and made at
a properly noticed public meeting.
WHEREAS, Susan Sievert, et al., and Donald Bautista requested that the City Council
reconsider its decision under the provisions of Section 2.08.096 of the City's ordinance code;
and
WHEREAS, the City Council has considered all relevant evidence presented by the
parties at all hearings, including evidence presented at the April 6, 2010 reconsideration
hearing.
NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:
1. The petitioners' Reconsideration Petition is defective on its face in that it does not offer
proof of facts as required by Municipal Code Section 2.08.096.
2. The petitioners have made no offer of new relevant evidence that, in the exercise of
reasonable diligence, could not have been produced at any earlier city hearing. (See
Municipal Code § 2.08.096B(1).)
3. The City Council did not exclude any evidence presented by the petitioners at any prior
city hearing. (See Municipal Code § 2.08.096B(2).)
4. The City Council has proceeded entirely within its jurisdiction. (See Municipal Code §
2.08.096B(3).)
Resolution No. 10 -073
5. The petitioners have failed to present any evidence that the City Council failed to provide
a fair hearing. (See Municipal Code § 2.08.096B(2).)
6. The petitioners have failed to demonstrate that the City Council abused its discretion
regarding approving the design and construction of an additional public access point to
Stevens Creek Trail and Blackberry Farm from the west side of the Creek near Scenic
Circle and giving direction to Staff to develo a trail alignment option to access the park
somewhere between the locations detailed in the February 16 staff report for Alternative
A and Alternative B. (See Municipal Code § 2.08.096B(5).) Specifically, the City
Council determines that:
a. The City Council proceeded in a manner required by law.
b. The City Council's decision is supported by findings of fact attached as Exhibit A.
c. The findings of fact related to the City Council's decision were supported by
substantial evidence in the record of proceedings.
7. The petitioners' Petition for Reconsideration of the City Council's decision of February
16, 2010 on item 17 is DENIED, thereby affirming the original decision.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 6 day of April, 2010, by the Following vote:
Vote Members of the City Council
AYES: Wang, Wong, Chang, Mahoney, Santoro
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
City Clerk ∎ i!yor, City of Cupe o
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Resolution No. 10 -073
EXHIBIT A
CITY COUNCIL FINDINGS IN RESPONSE TO PETITION FOR
RECONSIDERATION
Municipal Code section 2.08.096 states:
"A petition for reconsideration shall specify, in detail, each and every ground for
reconsideration. Failure of a petition to specify any particular ground or grounds for
consideration precludes that particular omitted ground or grounds from being raised or
litigated in a subsequent judicial proceeding."
The grounds for reconsideration are limited to the following:
1) An offer of new relevant evidence which, in the exercise of reasonable diligence, could not
have been produced at any earlier city hearing.
2) An offer of relevant evidence which was improperly excluded at any prior city hearing.
3) Proof of facts which demonstrate that the city council proceeded without, or in excess of its
jurisdiction.
4) Proof of facts which demonstrate that the city council failed to provide a fair hearing.
5) Proof of facts which demonstrate that the city council abused its discretion by:
a) Not proceeding in a manner required by law; and / or
b) Rendering a decision which was not supported by findings of fact; and / or
c) Rendering a decision in which the findings of fact were not supported by the evidence."
Original Petition and Addendum
The original petition consisted of 16 pages of allegations and accusations with diagrams and
pictures, partial quotes and e- mails, which have no relevance with respect to the required
findings criteria.
The grounds in Mr. Bautista's addendum to the petition are more deliberately and narrowly
drawn with respect to the grounds for reconsideration required by the CMC and are those to
which the following response applies. The rest o f the material in the original petition, most of
which is not referenced in Mr. Bautista's addendum, is either immaterial or irrelevant and
therefore not a part of the response.
1. New relevant evidence which, in the exercise of reasonable diligence, could not have
been produced at any earlier city hearing:
Finding: The petitioner has failed to provide relevant evidence of any kind that the Brown
Act was violated in any way. The comments do not provide relevant evidence which in the
exercise of reasonable diligence, could not have been produced at any earlier city hearing. In
addition, the comments are inaccurate and based on personal opinion rather than facts.
Petition Response
Alleged Public Meeting Law The City provided proper Brown Act compliant
Violation and Related notification of the Council's intention to consider
Complaints: providing access from the Scenic Circle residential
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Resolution No. 10 -073
a.) the discovery of a 2007 area to Stevens Creek Trail and Blackberry Farm Park
Public Works drawing on at the February 16, 2010 Council meeting. This
the City's web site with a information was mailed to the Council members,
notation "Scenic Circle posted on the City's web site, and public notices were
Pedestrian Bridge" posted more than 72 hours prior to the public meeting.
demonstrates that the City
of Cupertino's decision to As a courl.esy to the residents of Cupertino, the City
open access to Blackberry notified approximately 546 residents by email of the
farm and the Stevens Creek agenda item two working days and two weekend days
trail via Scenic Circle was before the meeting took place.
made without a public
hearing prior to the official The description of a bridge type like this is irrelevant
February 16, 2010 City with respect to the Brown Act.
Council action, which is a
violation of California Open
Meeting Law (The Brown
Act).
b.) The use of the word The word pedestrian is used to define the bridge as a
"pedestrian" in the 2007 non - vehicular bridge. A pedestrian bridge has been in
drawing impeaches the this location for many years and was present when the
City's repeated Categorical City purc:riased the property from a private group
Exemption "maintenance picnic operator in the early 1990s. The bridge was
bridge" also present when the CEQA review was conducted
argument/fabrication for the for the construction of the Stevens Creek Trail. That
new bridge that did not review addressed the impacts of removing the bridge if
receive a CEQA review. the City chose to do so.
Public access to Stevens Creek Trail from Scenic
Circle was not contemplated in the early stages of
planning the Stevens Creek Corridor Park project so
the CEQA review did not address its potential impacts.
The bridge was given the terminology of a
maintenance bridge when the old picnic area was
restored to a native plantings area and it was
determined that maintenance personnel would be using
it.
On February 16, 2010 City Council directed staff to
initiate a CEQA review for an access trail between
Scenic Circle and Stevens Creek Trail. That
environmental process is now underway.
c.) Environmental Planning Ms. Sokale' use of the term "pedestrian bridge" rather
Consultant Jana Sokale's than calling it a "maintenance bridge" was irrelevant
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Resolution No. 10 -073
email referring to the bridge to the concurrence being sought from the agencies.
as pedestrian replacing
pedestrian impeaches the
City's Categorical
Exemption CEQA Guideline 15302(b) permits replacement or
argument/fabrication. reconstruction of existing facilities of this type without
additional CEQA review.
d.) Ms. Sokale misrepresented The material of the bridge that was to be temporarily
the bridge /facts (and the removed, and the material of the replacement bridge,
taxpayers) when seeking following the completion of creek bank modification
permission from permitting and restoration, was irrelevant to the concurrences
agencies, the US Army Corp being sought. As noted and referenced in the staff
of Engineers, the San report, replacing the bridge span at the same location
Francisco Regional Water with a better material for the improved safety of the
Quality Control Board, and maintenance personnel using it, was entirely within the
the National Oceanic and discretion of the project engineers, with proper agency
Atmospheric concurrence, which was obtained.
Administration: The
"existing bridge" was
removed and demolished,
not "temporarily lifted
aside, "and she failed to
mention the bridge that was
"repositioned" was a
completely different metal
bridge for a wooden bridge.
2. An offer of relevant evidence which was improperly excluded at any prior City
hearing:
Finding: The petitioner has offered no new relevant evidence that was excluded at any prior
City Council meeting, nor proven that any evidence was previously excluded by the City
Council. The complaint is an opinion of the petitioner and offers no new relevant
information. City staff always advises Council about significant cost impacts of particular
actions being considered for the benefit of the community.
Petition Res . onse
Complaint The declaration that the driveway entrance
The unsafe Blackberry Farm entrance is unsafe is an opinion of the petitioner that
driveway is a relevant part of the project's is not shared by City staff.
safer route to school. Not only was it
"improperly excluded" additional The February 16, 2010 Council meeting, at
information has been discovered that which Scenic Circle Access was considered
argues it was intentionally excluded, with and addressed by many Cupertino
the motivation being cost. residents, was consistent with the quoted
portions of the February 20, 2007 Staff
Excerpts from Staff Report, February 20, Report. The Council considered the cost of
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Resolution No. 10 -073
2007 — Staff recommends that any three alternatives for re- opening the gate
subsequent consideration by the Council of and constructing an access trail, on
the issues surrounding the re- opening of February 16, 2010, as a separate item, apart
the Scenic Circle gate by deferred to from the School Traffic safety issues noted
another Council meeting and taken up as a in the February 20, 2007 staff report.
separate item apart from the School Traffic
safety issues noted above. An additional paragraph in the 2007 staff
report, ignored by the petitioner, makes it
Staff notes that if the Stevens Creek clear staff was not trying to hide relevant
Corridor area beyond the Scenic Circle information:
gate were to be re- opened to the tri- schools
commute the resulting requirements for "This discussion could be advertised
provision of facilities dedicated to safety throughout the Scenic Circle neighborhood
and accessibility for a safe route to school and the rest of the school community so
could have a significant cost impact on the that all interested stakeholders will be
Stevens Creek Corridor project. encouraged to participate in the
discussion. The Council could then either
re- affirm its original decision to keep the
gate closed or consider other options."
The potential cost of re- opening the gate on
Scenic Circle to provide access to Stevens
Creek Trail and Blackberry Farm was
discussed at the February 16, 2010 Council
meeting.
3. Proof of facts which demonstrate that the City Council proceeded without, or in
excess of its jurisdiction.
Finding: The petitioner has not provided proof of facts that demonstrate that the Council has
proceeded without or in excess of its jurisdiction.
Petition Response
Alleged Civil Right Violation: A civil right is an enforceable right or
The unequal City Council decisions for privilege, which, if interfered with by
trail setbacks of 100' (feet) for one another, gives rise to an action for injury.
neighborhood vs. less than 40' (feet) for Examples of civil rights are freedom of
another is excessive, and therefore speech, press, assembly, and the right to
discriminatory. vote. Distances for trail setbacks are not
civil rights and do not impinge on civil
rights.
In the original discussions regarding the
alignment of Stevens Creek Trail, staff and
Council expressed concern for protecting
residential privacy by making an attempt
where feasible (emphasis added) to locate
the trail 100 feet from a residence. This
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was accomplished in most locations.
It should be noted that access to the trail
via the existing driveway from San
Fernando allows pedestrians and cyclists to
pass closer than 100 feet from the
residences. Access to the trail from Scenic
Circle is considered to be similar.
4. Proof of facts which demonstrate that the City Council failed to provide a fair
hearing
Finding: The petitioner has not provided any proof of facts that demonstrate the Council
failed to provide a fair hearing. To the contrary, a review of the hearing on February 16,
2010 shows that the Council heard lengthy testimony from the petitioners, neighborhood
residents, and concerned parents, as well as factual information .resented by the City staff.
Petition Res . onse
Complaint: On February 16, 2010 the Council directed
The concerns that the Scenic Circle staff to initiate the environmental review
neighborhood will suffer the same fate as process to determine what, if any,
the Monta Vista neighborhood as a direct significant impacts might exist with the
result of the reduced Blackberry Farm opening of the Scenic Circle Access to the
parking lot were again not addressed, and Stevens Creek Trail and Blackberry Farm
any thoughts or conclusions expressed Park. That environmental review process
regarding impacts were unsupported by an has begun.
facts, studies, or qualified analysis.
5. Proof of facts which demonstrate that the City Council abused its discretion by:
a.) Not proceeding in a manner required by law; and /or
b.) Rendering a decision which was not su pported by findings of fact; and /or
c.) Rendering a decision in which the findings of fact were not supported by the
evidence.
Finding: The petitioner has not provided any proof of facts that demonstrate the Council
abused its discretion in any manner. The petitioner's comment indicates a significant
misunderstanding of the public meeting process.
Petition Res • onse
Alleged Public Meeting Violation: At the February 16, 2010 City Council
The discovery of a 2007 Public Works meeting there was an extensive public
drawing on the City's web site with a hearing about opening access between
notation "Scenic Circle Pedestrian Bridge" Scenic Circle and the Stevens Creek Trail
demonstrates that the City of Cupertino's and Blackberry Farm Park.
decision to open access to Blackberry Farm Previously, the Council received requests
and the Stevens Creek Trail via Scenic from the neighborhood during open
Circle was made without a public hearing comments at its public meeting on October
prior to the official February 16, 2010 City 20, 2009. It formally discussed the staff
Council action, which is a violation of recommendation that a task force be
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Resolution No. 10 -073
California Open Meeting Law (The Brown formed on November 30, 2009. Again on
Act). December 15, 2009, it considered the
access issue but did not make a decision. .
Complaint: These agendas and meetings were properly
The City has failed to present any data to noticed and in full compliance with the
quantify Scenic Circle through Blackberry Brown Act.
Farm as a safe /safer route to school. As noted in the discussions of other
Grounds above, the Council made
decisions based on all the facts that were
relevant and supported by information
provided and considered at the meeting. An
environmental review is in . ro t ress.
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