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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 2 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 3 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 4 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 5 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 6 Resolution No. 10 -073 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 7 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. 8