Loading...
CC 09-05-95 CC-907 MINUTES Cupertino City Council Regular Adjourned Meeting September 5, 1995 PLEDGE OF ALLEGIANCE At 6:47 p.m., Dean called the meeting to order and led the Pledge of Allegiance. ROLL CALL Council members present: John Bantistz, Don BurneR, Barbara Koppel, Lauralee Sorensen and Wally Dean. Council members absent: None. Staff present: City Manager Don Brown; Deputy City Clerk Roberta Wolfe; Administrative Services Director Carol Atwood; Personnel Officer Bill Woska; Community Development Director Bob Cowan; City Attorney Charles Kilian; Parks and Recreation Director Steve Dowling; Public Information Officer Donna Krey; City Planner Wordell; and Public Works Director Bert Viskovich. CEREMONIAL MATTERS - PRESENTATIONS - None. POSTPONEMENTS - City Council agreed to continue Items 26, 27, 32 and 35 to September 18, 1995. ORAL COMMUNICATIONS Ardith West, 1021 Tuscany Place, spoke regarding traffic noise levels in residential neighborhoods since the opening of Highway 85. She mentioned a petition signed by 3,000 people declaring that the traffic noise pollution from the Route 85 Freeway greatly exceeds acceptable levels and petitioning Caltrans, the Santa Clara County Traffic Authority and all other responsible agencies for immediate remedial action. She said she lives one block from the depressed freeway and she never imagined it would be as loud as it is. Because she felt betrayed by what she was led to believe regarding the noise, she joined the noise abatement committee to see if she could understand what had happened. Even without technical training, it did not take long for her to begin to understand. She said the noise abatement committee has endorsements from all area political representatives, the Traffic Authority, Caltrans, and the City of Saratoga to create an experimental demonstration project to study effects of freeway noise as it relates to invading established residential neighborhoods. She asked Council to join others in · _ searching for a solution and to allow the noise abatement committee to present the results of their studies. ', ,. September 5, 1995 Cupertino City Council Page Bumett said he had written to Ms. West. He said he was in favor of agendizing the item and Bautista agreed. The City Attorney explained the options available to Council. Mort Schorr, 20151 Northwood Drive, spoke about the problems with the Citation/Portofino homes. He said there have always been tradeoffs made with developers. However, the Portofino developers raised the elevations of the homes without notifying the Northpoint homeowners. Mr. Schorr asked what the tradeoff for the BMR units is. Regarding traffic he said the perimeter has been a walking pattern for Northpoint residents. He said the City must look at traffic patterns to preserve the safety of walkers. Mr. Schorr was info~med that Planning Department staff would answer his questions about the below market rate units. Joan Hershkowitz, 19364 Shubert Court, Saratoga, said she is the co-chair of the Highway 85 noise committee. She said Saratoga City Council put aside a segment of a study session so they could hear the presentation of consultants and suggested that this might work here as well. She said legislators and the Traffic Authority have expressed a willingness to work with the committee and presented the petition to the Clerk. Farokh Deboo, 10257 Nile Drive, said he was representing himself and about 90 neighbors. He raised the issue of numerous lawsuits the condominium owners have been going through. He said Cupertino Waterfall has gone through a $5 million lawsuit. They are questioning what has gone wrong since the building was built and whether it is a question of the inspection process or something that was incorrectly done between the City and the contractor. He said he was requesting a meeting with Mr. Cowan and possibly the attomeys so they can find out why they are expending so much on attorneys and lawsuits. He said he would like the matter to be agendized if it is a legitimate issue. CONSENT CALENDAR' Dean explained to those in the audience who had come expecting a hearing at 7:00 p.m. regarding Highway 85 noise that a presentation had been made under oral communications earlier this evening. Sorensen requested that Item 20 be removed f~om the Consent Calendar as there was no backup for it included in the packet. Bumett stated that his motion on the August 1 minutes should include approval of the project as a planned development. Koppel moved to approve Items 1-24 with the exception of Item 20, and with the August 1 minutes amended to reflect Bumett's change. Sorensen seconded and the motion carried 5-0. 1. Resolution No. 9407: Accounts Payable, August 4, 1995. .' geptember 5, 1995 Cupertino City Council Page 2. Resolution No. 9408: Accounts Payable, August 11, 1995. 3. Resolution No. 9409: Accounts Payable, August 18, 1995. 4. Resolution No. 9410: Payroll, August 11, 1995. 5. Resolution No. 9426: Payroll, August 25, 1995. 6. Review of application for Alcoholic Beverage and Control Licenses: (a) Thrifty Payless, Inc., 20580 Homestead Road; Co) Oakmont Market, 19944 Homestead Road; (c) Dartanians Restaurant, 1655 Saratoga-Sunnyvale Road. 7.Approval of 1-cent increase to basic cable service rate for TCI-San Jose system. 8. Resolution No. 9411: Authorizing execution of agreement with Cupertino Union School District for After School Enrichment Program. 9. Resolution No. 9412: Setting date for consideration of annexing area designated "Byrne Avenue 95-04', property located on the west side of Byrne Avenue between Lomita Avenue and Hermosa Avenue, approximately 0.28 acre, Lo/Lin (APN 357-11-012). 10. Resolution No. 9413: Setting date for consideration of annexing area designated "Orange Avenue 95-02", property located on the west side of Orange Avenue between Almaden Avenue and San Fernando Avenue; approximately 0.18 acre, Chu/Tang (APN 357-15 -097). 11. Request to set work session with Affordable Homing Committee for October 16 meeting. 12. Resolution No. 9414: Authorizing execution of Settlement Agreement between City of Cupertino and County of Santa Clara in order to resolve a dispute over the payment of interest allegedly accruing on certain assessments and property taxes collected by the County on behalf of the City. 13. Minutes of the regular adjourned meetings of July 31, August 1 and August 7, 1995. 14. Request from the Library Foundation for waiver of fees for the me of the Cupertino Room at the Quinlan Community Center on October 19, 1995. 15. Resolution No. 9417: Approving change order no. 21 for Cupertino Nine School Site Improvements, Project 93-9106. '- geptember 5, !005 Cupertino City Council Page · ~' 16. Resolution No. 9418: Authorizing execution of improvement agreement between the city and Deke Hunter/Hunter Properties; Homestead Road/Grant Road. 17. Resolution No. 9419: Accepting grant of easement for roadway purposes from F. Ettefagh and Abdy Mirzadegan, Orange and Olive Avenue, APN 357-09-079. 18. Resolution No. 9420: Accepting quitclaim deed and authorization for underground water rights from F. Ettefagh and Abdy Mirzadegan, Orange and Olive Avenue, APN 357-18-030. 19. Resolution No. 9421: Authorizing execution of "Agreement for Maintenance of State Highways in the City of Cupertino" between the city and the State of California Department of Transportation. 20. Acceptance of city projects performed under contract: (a) Lincoln Elementary School Site; (b) Garden Gate Elementary School Site; (c) Fremont Older School Hazardous Material Abatement Project 95-109. Removed from Consent Calendar 21. Resolution No. 9427: Authorizing the City Manager to execute the agreement between the city and county for Cornrnunity Development Block Grant for fiscal year 1995-96. 22. Resolution No. 9428: Establishing a date and time to consider a public hearing to change street name of Saratoga-Sunnyvale Road to De Anza Boulevard. 23. Monthly Treasurer's Report and budget update, July, 1995. 24. Resolution No. 9429: Authorizing execution of agreement with Santa Clara County Humane Society. Vote Members of the City Council AYES: Bautista, BurneR, Dean, Koppel, and Sorensen NOES: None ABSENT: None ABSTAIN: None ITEMS REMOVED FROM THE CONSENT CALENDAR 20. Acceptance of city projects performed under contract: (a) Lincoln Elementary School Site; Co) Garden Gate Elementary School Site; (c) Fremont Older School Hazardous Material Abatement Project 95-109. .. ,. geptember 5, 1995 Cupertino City Council Page 5 ..-- The Public Works Director explained that no documentation is required for this kind of item and that in the past the Clerk had included that information on the agenda. Sorensen moved and Koppel seconded to accept the projects. The motion carried 5-0. PUBLIC HEARINGS 25. Second reading and enactment of Ordinance No. 1693: "An Ordinance of the City Council of the City of Cupertino Amending Chapter 16.40 of the Cupertino Municipal Code." pertaining to the Unifo~,ii Fire Code. The Deputy City Clerk read the title of the ordinance. Sorensen moved and Koppel seconded to read the ordinance by title only and that the Deputy City Clerk's reading would constitute the second reading thereof. Motion carded 5-0. Sorensen moved and Koppel seconded to enact Ordinance No. 1693. Motion carried 5-0. 26. Public hearing to consider an application for a bingo pemdt submitted by Northern California Community Foundation, Inc. (Continued from the August 7, 1995 meeting.) (Continued to the meeting of September 18, 1995.) 27. Application No.(s): 3-TM-95, 6-Z-95 and 11-EA-95 - Marguerite V. Roberts and Blanche Grose/Leroy Grose Trustee - Tentative Map to subdivide two parcels totaling 1.97 acres into six parcels located at 11545 Upland Way and 11571 Upland Way. Environmental Detemdnation: The Planning Commission recommends the granting of a negative declaration. Recommended for approval. (a) First reading of Ordinance No. 1694: "An Ordinance of the City Council of the City of Cupertino Amending Section 1 of Ordinance No. 2 By Rezoning Approximately 1.97 Acres from RHS to RHS10, Located at 1545 Upland Way and 11571 Upland Way, Application No. 6-Z-95." (Continued to the meeting of September 18, 1995.) 28. Application No.(s) 13-TM-89, 10-U-89, 8-U-94 and 6-TM-94 - Citation Homes - Modification of conditions of approval regarding below market rate housing, phasing of development, access to open space, and other related matters. The project is located at the southeast corner of De Anza Boulevard and Homestead Road. Environmental Deteimination: Categorically Exempt. Recommended for approval. The Director of Community Development presented the staff report and said Council had received a copy of the preliminary injunction. He showed a vugraph " geptem[~er $, ! 995 Cupertino City Council Page with staff's suggested rewording of condition 15. He said he thought when he left a meeting last Thursday that the parties were getting closer to an agreement, but as of late today they still hadn't. The City Attorney said the ruling is a preliminary injunction. It would require a final decision plus appeals for it to become a final decision. However, It is the first step. He said he understood that the parties have not arrived at an agreement. He said unless a continuance would aid in the settlement he suggested that Council adopt the staff's recommendation at this time. Cowan showed a transparency of the suggested rewording of Condition 15 as presented by Citation and Portofino and said there have been further changes made. Mr. Steve Schott, representing Citation Homes, said he was optimistic that they will have a resolution between the two parties as to the common facilities. Kilian asked Mr. Schott if the applicant were willing to continue the matter for two weeks. Mr. Schott said no because they need to record the final map of the next phase and get the roads paved before winter arrives. He said that after review of staff's recommendation he is receptive to it. He said there is a possibility that the court may determine that only a portion of the Corsica homeowners will have access to the common area, as was the case in the preliminary injunction, and the staff's wording does not address that situation. He asked that if a certain portion of the units get legal access to the common area that the remaining units would have access to the Phase II common facilities. He said this request is contained in the new revised wording of the condition. Mr. Peter Kline, attorney representing Portofmo Homeowners Association, said he believed the preliminary injunction was granted based on the court's perception that because the land has not yet been developed that in order to maintain status quo the least hardship was caused by allowing the few homeowners who occupy the Citation homes, pending the fmai trial, access to the common facilities. He said they also believe that the court misconstrued certain evidence and that there will be an entirely different decision at the trial. Because of that he cautioned Council against using the preliminary ruling to guide them in making a decision at this meeting. He said they feel Council should consider the relationship between Condition 15 of the use permit granted to the Mariani developers and Citation's request. He said Condition 15 recites its purpose to ensure that open space area is available to the entire development. The entire development at that time included the lot 98 open space and also Phase II open space. The final map for tract 8325 and the Portofino CC&Rs limit the fights to those common areas base upon annexation. If Council is going to fashion the requirements of the Corsica development upon what they predict the court will rule with respect to the pending lawsuit, they should also provide Portofmo with ' geptember 5, 1995 Cupertino City Council Page 7 .--- the benefit of access to the common area in Phase II, which they believe is what Council originally intended with the original development. There must be some assurance that the Portofino Homeowners Association will be allowed access to the additional common areas that will be developed, but there must also be some assurance that those common areas will be constructed. Kilian asked if he agreed with the representative from Citation that the two parties are getting closer to a settlement. Kline said he understood they have moved in the direction of a settlement but there are still steps to be taken. Ms. Sandra Adams, 11030 Via Sorrento, said she was there to speak to the issue of the holdback versus a bond. He said she hoped that negotiations with Citation will succeed. Until that agreement is finalized they must request that the City continue with the actions contemplated at the last meeting, i.e., to require a hold back of at least 50% of the certificates of occupancy of the Citation Phase III homes until the recreational facilities are in place on Phase II. She said they don't feel that a bond or anything less than a 50% hold back is sufficient to g~jarantee that the recreational open space will be completed. A bond is supposed to guarantee that the work will be completed as agreed. There is a bond in existence now, but with what results? She showed pictures which she said showed the effectiveness of the bond. The pictures were of uncompleted areas and areas with and without street lights. She said the bond is in force but isn't working. Citation assumed the responsibility to complete the areas when they purchased the property. Citation has said many times that they will be completing these areas, but she felt their actions speak louder than words. She spoke about the effect of the bonds on Citation's actions and representations to Planning Commission, Council and the people who had purchased the ten homes. She said they consider this uncompleted work as an indication of what a bond or less than 50% hold back would do, and an indication of what Citation would do if the City does not hold back at least 50% of the occupancy certificates on the Phase III residences. Ms. Adams told Council the pictures had been taken the previous weekend. Dr. Frances Winslow, 20405 Via Volante, said she appreciated staff's help, especially Mr. Cowan's attendance at the meeting last Thursday to help them reach a compromise they could bring to Council tonight. She said she was sorry to report that they don't have one. She said that al~er the last Council meeting they received a letter from Citation listing five issues they wanted to discuss. They appointed a resident committee to respond to those five issues. They tried to develop a compromise about Condition 15. They recommended at the Thursday meeting that they ail get behind staff's recommendation for Condition 15 as reworded to require everyone to share, and with wording added that in the event the applicant is unable to obtain legal access to the existing Portofmo Homeowners Association open space, Condition 15 would be modified to require that properties in the Corsica Homeowners Association have access to the recreational facilities in Phase II. She said they were told that it is not §eptember 5, 1995 Cupertino City Council Page economically feasible for Citation to build what Mariani promised and that the one pool that Mariani put in as part of the first phase should be enough. She said they don't think that's reasonable. She said they then suggested that they might give up some of the open space common area in exchange for the development of a swimming pool by Citation which would be big enough to serve both developments, but they were unwilling to do that in the way it was proposed. She said their attorney advised them that unless the right to use a facility runs with the land they would have no way to assure that anyone would keep it up. She said she was sorry their proposals were not accepted. They are anxious to find a solution that results in a good neighborhood for ail the families that choose to live there, including the originai homeowners who went there with certain expectations and asked for Council's help in reaching a decision that is fair to everyone in the community. Dr. Winslow said they had not received a copy of Citation's latest rewording prior to the meeting tonight and that they had not had a response abort their proposai since the meeting Thursday. Tim Robertson, 20395 Via Volante, president of Portofmo Villas Homeowners Association, said he was present to clarify or discuss the proposed changes to the condition. Jim Sullivan, Citation Homes, said he spoke with Sandra Adams at about 4:30 this afternoon and had left a voice mail message. He talked about the reworded condition. He indicated on a map which homes the preliminary injunction said could utilize and share in the maintenance costs of the common area pool. He pointed out the Phase III homes which would not be able to utilize the pool under the preliminary injunction. The apartment units that are going to be developed on the site would not be able to use the pool either. He talked about the choices the court might make in their final ruling. He said their concern and the reason they want the staffs recommendation modified is that they feel it would be unfair to say that 76 homeowners will share one pool and yet the whole development will share the common area. Kilian said he had no problem with any of the proposed wording but said there is a built in ambiguity in the wording presented by the two parties. If Council decides they will go ahead tonight they must decide whether Portofino would be ailowed to utilize other common areas in the development or is limited to the common area it thought it was using, i.e., the triangle piece. Bautista suggested deferring the decision of what access Portofino should have to Phase II until they fully understand what the outcome of the court case is. Burner said he thought what he had heard from Dr. Winslow tonight was a community spirited, forward looking option for use and sharing of the facilities. He said he would like to see everybody sharing ail the facilities and thinks that is Council's point of view. .. /:eptember 5, 1995 Cupertino City Council page Cowan said some people at this meeting feel that the Phase II development will be this model. However, one of the items Council continued tonight is to change to a lower density which would result in a plan that doesn't match this one at all. Kilian presented Council options of what action they might take at this time and what the consequences might be. Cowan asked if tonight's action could be considered an interim solution. Kilian said if the developer can record the tentative map the impetus to settle will not be forthcoming. He said he thought Council ought to deal with Condition 15 tonight if they were going to approve the tentative map Burnett suggested scaling the project back in proportion as to what we expect in terms of recreational facilities in Phase II. Koppel said it would be difficult to decide since they don't know how many units Sorensen suggested taking the condition as amended by the City Attorney and perhaps add fmai paragraph from Citation's condition Kilian read his suggested wording for Condition 15 into the record as follows: "The common recreation areas shall remain available to all phases of the project provided that the applicant, Citation Homes, diligently prosecute its legal action to require said access. In the event that the applicant is unable to obtain legal access, or only obtain access for a limited number of units, Condition 15 is hereby modified to require that properties in the Corsica Homeowners Association that do not have access to the recreation facilities in phase I have access to recreation facilities in Phase II. The design, including the size and type of facilities and extent of access to the recreational open space in Phase II (including access bythe Portofino Homeowners Association) will be deteLmined at a hearing on the use permit and tentative map for Phase II. Said access, if required, shall be conditioned upon an agreement for the joint maintenance of the recreational facilities. Fifty percent of the occupancy pc,lilts for Phase III dwellings shall be withheld until the plans have been approved and construction has begun on the common recreational area in Phase II. A document acceptable to the City Attorney describing this condition shall be recorded as a covenant running with the land on Phase II property when the final map on Phase III is recorded. The final map of Phase III development may be recorded following the approval of this resolution." Sorensen moved and Koppel seconded to approve Condition 15 of Planning Commission Resolution 4627 as read by the City Attorney. Motion carried 5-0. September 5, 1995 Cupertino City Council page lO Sorensen expressed concern about the uncompleted lighting in the project. Viskovich said the City is in litigation regarding Citation's bond. Regarding traffic from Portofmo going through Northpoint to Blaney, Viskovich said a condition had been placed to force those from the development to go out to Homestead Road. Measures are being taken including a stop sign at Blue Jay. Burner suggested replacing the small speed bumps in Northpoint with larger ones. Viskovich said that is a private road and the homeowners would have to initiate that change. In response to a question about the litigation that Viskovich had referred to, Kilian said that has to do with Phase I. There were bonds posted to do that work and there's a dispute between Portorino and Citation regarding who's responsible for doing that work. That's currently in litigation being handled by another attorney for the city as well as other attorney for Portofino and Citation. Viskovich said the City is in litigation as to the bond issue as to whether Citation would be able to use the bonds from Portofino. There is a condition on Citation that requires that they meet all the requirements Portofmo had to meet under their map conditions, so once the map is recorded and the bonds are in place they will be in the same position as Portofino was in making the improvements. Kilian said the City is saying that once this map is ready to be recorded on Phase II the lighting is going to have to be fLxed or we won't issue the final map. Viskovich said as they record the map which is being held right now the bonds are put into action to make sure that those things are taken care of. They could do it in advance. Kilian said they could but they don't have to, they can post bonds. Sorensen moved to adopt 4627 with Condition 15 as previously adopted. Bautista seconded. Motion carried 5-0. Bautista said he had been handed a flyer from a resident who thought a hearing had been scheduled to consider the freeway noise issue. Many people apparently came tonight thinking this was an agendized item. He asked staff to follow up. The City Manager said action tonight would have been impossible and he apologized for any inconvenience. Bautista suggested that citizens refer to the Cupertino Scene and call City Hail directly to get definitive agenda infoi-i,afion 29. Public hearing to consider cancellation of Williamson Act Contract No. 71-907; Otis F. and Muriel N. Forge, 20691 Homestead Road. (Continued from August 7, 1995) Res. 9422 making findings required by CEQA. Res. 9423 certifying cancellation fee, giving tentative approval to cancellation. Burner said he has appealed modifications to the project which include reduction in the streetside setbacks and the addition of locked security fences which weren't there originally 'and which he didn't feel were appropriate. He had spoken with a Planning Commission member who was not aware that the gates had been added. '. '. : geptember S, 1oos Cup rtlno City Council Page 11 He said he is not in favor ofht project with the changes made by the Commission and will not support it. The City Attorney had indicated that the hearing on the Williamson Act should not be held until the final project is approved. He requested continuance until his appeal is heard. Jim Sisk representing the Forge family said he understood that the decision on whether or not to continue this item is based on whether the changes are significant to the plan. He said they would have had a public hearing before the planning commission to change them if they were significant changes. Burner said the setbacks along a major arterial are not minor and they affect the appearance of the project. Adding the gates changes the character of the development. He does not consider the changes minor and will not support the project with the changes. Mr. Sisk said the setback was moved up 5 ft. He said the fire department had no problem with going through security gates. Kilian said that as a condition to granting a Williamson Act cancellation Council must approve a development plan. If they feel the changes to the plan are significant they need to rule on the development plan changes before they rule on the Williamson Act cancellation. If they deem them not significant they can take the cancellation action tonight with the understanding that the appeal will be coming up at the next Council meeting. Koppel said we have approved a plan which may or may not be modified. Bautista said he favored waiting until the appeal issues are heard and dealing with both issues at the same time Bautista moved and Burnett seconded to continue this item to the September 18 meeting to consider it at the same time as the appeal of Planning Commission approval of Application 9-U-94. Motion carried 5-0. 30. Application 2-Z-94 (Modified) - Ju-Ping Chang (Emily Chen), The E & H First F.L.P., 19340 Phil Lane - Modification of a zoning condition of approval. (Continued from the August 7, 1995 meting). Ord. 1695 modifying condition regarding tree protection and bond. 36. Application 3-TM-94. Cowan announced that the two items would be considered together and presented the staff report. September 5, 1995 Cupertino City Council Page 12 Bumett left the dais stating that the development is in his immediate neighborhood. Cowan clarified what the modification would accomplish and said an arborist had submitted a recent report on the protection of the tree. Sorensen had visited the site and expressed concern about the oak. Staff was directed to check on the fill being placed on the property. Bautista moved and Sorensen seconded to approve Application 2-Z-94 (Mod.) per Planning Commission Resolution 4616 with Condition 4 amended to require an inspection or site visit by an arborist on a home-by-home basis at the time of final approval of each home and two years after that. Motion carried 4-0 with Bumett abstaining. The Deputy City Clerk read the ordinance by rifle. Sorensen moved and Koppel seconded to read the ordinance by rifle only and that the Deputy City's Clerk's reading would constitute the first reading thereof. Motion carried 4-0 with Burner abstaining. Bautista moved and Sorensen seconded to approve Application 3-TM-94 per Planning Commission Resolution __ with Condition 4 amended to require an inspection or site visit by an arborist on a home-by-home basis at the time of final approval of each home and two years after that. Motion carried 4-0 with Burner abstaining. Bumett returned to the dais. 31. Application No(s). 9-U-95, 8-Z-95 and 16-EA-95 - Cupertino City Center Associates - Use permit to construct 24 single-family homes on 2.41 acres located on the east side of Torte Avenue between Stevens Creek Boulevard and Rodrigues Avenue; zoning to allow low to medium density residential development. Recommended for denial. Environmental Determination: The Planning Commission recommends the granting of a negative declaration. Ord. 1696 rezoning approximately 2.41 acres low to medium density residential; located at eat side of Torre Avenue south of Stevens Creek Blvd. (Application 8- Z-95 Classic Communities, Inc.). RECESS: 8:20-8:30 p.m. Cowan presented the staff report. He said Council had two decisions to make at this time, one having to do with the Commission decision to recommend denial because of the 1983 language and the other that because the Planning Commission did not take an action based on the merits of the case they might want to refer to it back to them to discuss the act~_~_al design. .- geptember 5, 1995 Cupertino City Council Page Cowan showed excerpts from the existing general plan. He said he believed that the crificai thing is whether the pmpnsal is consistent with the general plan and not necessarily the 1983 zoning case. He said the Development Reallocation Table would show public parks but not common or privately held open space. He said in 1993 all the rules about development changed in terms of which properties could be development in which way and at which intensity. Essentially the trip end allocation was rescinded and the city went back to a floor area ratio requirement. With the exception of one property in Vallco Park, the general plan does not render any property undevlopable. He said the table shows maximum ceilings (caps). Cowan talked about the city's policy of allowing property owners to transfer unused development potential from one property to another. This has been done all over the community following assessment on an individual basis. Bautista said with respect to this piece of property there was some issue of development potential being transferred from the property for the development of other properties. Cowan said the 1983 overall master plan did not show any development on the property so it may be a de facto transfer. Cowan said his final point was regarding residential development. There is a general plan policy which is amplified in the Stevens Creek Boulevard specific plan that allows additional development to occur including 300 units in the Stevens Creek Boulevard area. The general plan is not site specific. The specific plan council will consider tomorrow night has more detailed standards in terms of where housing development goes. He said the key point is that nowhere in the general plan does it say that this property cannot be used. The general plan was adopted ten years after the 1983 zoning case. Individual property owners always have the right to change their zoning plan for the property based upon its existence in the general plan. He said he had informed the Planning Commission that in his opinion, the action they took would require a general plan change to effect that particular change. Bautista said the markings on the map seem to exclude residential development. Kllian said he reviewed staff's recommendation and the various provisions of the general plan. He stated the opinion that the 1993 general plan decided that there was residential potential or development potential on the triangle site and therefore it is his view that the Planning Commission's decision itself cannot be supported because it is inconsistent with the general plan. Therefore, because the Planning Commission did not consider the merits of the application the options for council come down to two: Either send it back to the Planning Comraission for review of the application on its merits or send it back to Planning Commission with direction to initiate a general plan amendment that would place this property in an open space designation. He said no legal counsel was present at the geptember 5, 1995 Cupertino City Council Page 14 Commission meeting and only three of the commission members were present. The vote was 2-1. Bautista said he would like to understand how Kilian reached his conclusion. He feels there are ambiguities that make it impossible for him to conclude there could be residential development. Kilian said he was present at 1983, 1988 and 1993 heatings and it was clear to him that Council decided with the 1993 general plan to resolve the issue in favor of allowing potential development there. At least two of the current council members were there at the time. He said he had looked at a map not shown at this meeting that referred to height differentiation on that parcel which indicated to him that there was the intent to allow some development on the property. He said that since 1983 the laws have changed and it is very difficult to say that a property cannot ever develop and it could constitute the taking of property. He talked about what had happened regarding this property in 1983 and the various conclusions that had been reached. The debate lasted for ten years. Many hearings were held in 1988 on a project which was eventually abandoned by the developer so the issue was never resolved until the 1993 general plan at which time council resolved the issue in favor of allowing a potential for development on that site. Bautista said he supported a prudent effort which included looking at the historical record. Koppel said she recalled it was zoned for development but she didn't recall the density. She was surprised at the Commission's decisions. She agreed with Sorensen that it should be returned to the Planning Commission. Kilian asked if there were three council members that supported the potential of development on the site. Scott Ward, representing the applicant, Classic Communities, urged them to approve the use permit for this project. He said in their view the project offers a reasonable, well balanced approach to development of the property. He gave background information on Classic Communities. He said they consider the City's adopted general plan to be an important trust with the community and have never undertaken a project that is inconsistent with the general plan. The land use designation for the site clearly provides for residential use, not open space or other recreational use. They have acted in good faith with respect to the general plan goals for this site and it is their expectation that council will do so as well. He said they have worked hard to balance all interests and have made an attempt to accommodate to some degree all interests. They have had a dialog with neighbors. He talked about the various beliefs about what should occur on the property. He said the original proposal was for a project with more units, a smaller open space area and less parking. They have had to compromise. He said in their opinion there was never a transfer of development fights from the subject -. ,. geptember 5, 1905 Cupertino City Council page 15 .... property to any other property. He said they feel such a transfer would need to be very specific and have a great deal of romar documentation. Mr. Ward said in their opinion, the development rights have always been vested in the property. It is clear that development rights exist today. The project accepts the reality as ratified in the 1993 general plan that this is an appropriate site for residential development. The task at hand is to evaluate the project on the merits and to determine whether this is the type of housing that makes sense on this site. He said if Planning Commission's had applied this stalld_ard the project would be before council with a recommendation for approval. In their opinion they have incorporated higher development standards than the other projects recently developed of this type - deeper setbacks, more parking, more bindle and unit variety and diversity - and they are confident they can resolve any outstanding issues with staff. Discussion followed regarding ownership of the property and why there might not be a written development agreement. Bautista said he thought the fact that there was not written development agreement in 1983 was irrelevant given the fact that the property was under one ownership. Mr. Ward said it is standard operating procedure in the real estate development business to foxm a separate partnership for every project they undertake but he didn't know how Prometheus operated. Mr. Ward said Cupertino City Center Associates A is the owner of the property and he didn't know when they acquired ownership. Bumett asked if Mr. Ward was aware when they started the project that the zoning was open space. Mr. Ward said the objective of their zoning application is to bring the zoning into conformance with the general plan. Dean said he thought it was the consensus of Council to return the matter to the full Planning Commission, with legal counsel. Bautista said he thought the Commission should have the benefit of the evidence heard tonight along with minutes of meetings of the Planning Commission and Council in 1993. Discussion followed regarding the staff time required to gather the historical record. Bumett said he thought the issue is whether there is a will to change the general plan because of the feeling that this aspect of it was wrong and unfair to the community. He said this was stated as open space in 1983. It was clear that the intent is normally permanent. To change that is a betrayal of public trust that was involved when this was built in the first place. Bautista moved to proceed on full information and in order to acquire full information they need to ask the Planning Commission, with staff, to look at the minutes of the Planning Commission and City Council in 1993, with the City · geptember 5, 1005 Cupertino City Council Page 16 Attorney present, to determine whether the triangle is in fact available to be zoned as residential, commercial, etc. under the current 1993 general plan. City Manager Brown said that no matter how much history is reviewed, he suspected that there would still be disagreement as to whether this parcel is developable. He suggested that either they give the Planning Commission direction to start a General Plan amendment to take this out of development or review any development proposal that is consistent with the general plan, including this one. Bautista said he wanted to be completely satisfied from the record that the property should be something other than open space and he didn't think it would take more than two hours of staff time. Cowan estimated there had been 60 meetings and that it would take four or five days to go through those records. Koppel repeated that there were three current council members there during consideration of the current general plan. Baufista said he was on the Planning Commission at the time and couldn't remember what they decided with respect to the property. Sorensen said she agreed with Koppel. Kilian said he believed Council had to return the matter to the Planning Commission because their recommendation was not based on the merits of the plan. Sorensen moved to return this item to the Plarming Commission to be discussed on its merits. Koppel seconded and the motion carried 3-2 with Burnett and Bautista voting no. Dean urged that the people who filled out cards to speak at this meeting participate in the Planning Commission discussion and that their input was important. 32. Public hearing to consider appeal of Planning Commission's denial of Application 5-EXC-94 (Modification) (Cary Queen, Kornberg Associates, applicant/appellant) which requested amendment to the condition of approval requiring a sanitary sewage system for a project located at 22830 San Juan Road. (Applicant request confin~aqce of this item.) Previously continued to September 18. 33. Resolution No. 9424: Ordering vacation of portion of Carmen Road, located north of the cul-de-sac; retaining ingress and egress easement and public utility easement. Previously withdrawn from agenda. ·" eptember 5, 1995 Cuperfmo City Council Page 17 34. Public hearing to consider amending user fees. Res. 9425 rescinding Res. 9031 and establishing user fees. The Director of Administrative Services presented the staff report and answered questions about increases in building and planning fees. Discussion followed regarding applying the utility tax to cellular phones and dishes. In regard to fees at Blackberry Farm Golf Course, Dowling said that the golf course is not subsidized at all but generates a positive cash flow. Koppel moved and Bautista seconded to adopt Resolution 9425. Motion carried 5-0. 35. Applications No.(s) 2-GPA-95 and 18-EA-95 - Citation Homes Central - General Plan Amendment to change the land use designation from 20-35 to 10-20 dwelling units per gross acre. The project is located at the southeast comer of DeAnza Blvd· and Homestead Rd. Previously continued to September 18, 1995. PLANNING APPLICATIONS 36. Application No. 3-TM-94 (heard in conjunction with Item NO. 30). UNFINISHED BUSINESS 37. Applications 1-GPA-93 and 6-EA-93, Diocese of San Jose, Property Owner, APNs 342-52-03, 342-05-54, -56, -59, -60, located south of 1-280, west of Foothill Blvd. and north of Rancho San Antonio County Park and Stevens Creek Blvd. - General Plan Amendment to change the land use designation from Very Low Density Residential 5-20 acre slope density to Very Low Density Residential Foothill Modified 1/2 acre slope density with a cap of 293 units. The Diocese of San Jose applied for the above General Plan Amendment. the city council directed that a total of ten alternatives be analyzed in the Environmental Impact Report. An Environmental Impact Report was prepared. Ten alternatives were evaluated. Significant impacts identified related to loss of and intrusion into open space lands; elimination of potential park lands; loss of and intrusion into natural vegetation, wildlife habitat and wetland areas; exposure to adverse geologic conditions; storm run-off and erosion and pollution; wildf'tre hazard; visual impacts, water tank failure and leakage; and safety of school crossings. (continued from August 1, 1995.) Res. 9415 certifying EIR. Res. 9416 approving 1-GPA-93. : ~eptember $, ]/)~)5 Cupertino City Council Page The City Planner presented the staff report. She said the purpose of the meeting is to take final action on the resolutions; the public hearing was previously closed. Burner said he had read the EIR and it was very thorough as it should have been. Having evaluated all the impacts and traded them off against what he sees as the benefits of the project, he said he believes the effects are mitigated and compensated for. He said the report reflects broad community input and responsiveness from the applicant. Kilian said the action Council would take is to say the EIR is adequate to assess the project and that Council has all the infmmation reasonably necessary from an environmental standpoint to make a decision with respect to the general plan amendment. Bautista said he wanted to be sure that the specific environmental impacts that were identified in the EIR in te~suS of mitigation measures were made a part of the project. Wordell said they would be. Koppel moved and Burner seconded to adopt Resolution 9415. Motion carded 5- 0. Wordell pointed out one of the documents in the final EIR that relates to the project approval. She said the document contains the specific findings for the impacts and the mitigation measures and more detail on the overriding consideration and would be part of any approval for the amendment. Burnett asked about the project being approved as a planned development. Wordell said their is no wording specifically requiring it. Burner said he would like that to be a requirement. Kilian said it should be added to the resolution that any development be processed under the City's planned development ordinance. Wordell said it could be added to the general plan text as well. Burner moved adoption of Resolution 9416 with the addition of wording that any development be processed under the city's planned development ordinance. Koppel seconded. Bautista asked for clarification regarding the approved map and the affordable housing. He asked that it be clear that the 178 units include the 10% affordable housing under the city's BMR program. He also wanted the approval to include that the affordable housing units assumed in this plan are duet homes because it makes a difference in terms of the density of the project. He asked that in the general plan diagram it state 178 dwelling units maximum. Sorensen referred to a letter from Midpeninsula Regional Open Space District which Council had received. "' '; geptember 5, 1995 Cupertino City Council Page 19 Burnett accepted the amendments to his motion. Motion carried with Sorensen and Dean voting no. NEW BUSINESS 38. First reading of Ordinance No. 1697: "An Ordinance of the City Council of the City of Cupertino, Amending Title One (General Provisions) and Title Two (Administration and Personnel) of the Cupertino Municipal Code for the Purpose of Conforming the Provisions of the Code to the Requirements of State and Federal Law, Confomdng the Provisions of the Code to be Consistent with Present City Practices, Eliminating Redundant and Obsolete Provisions, Clarifying Old Provisions with New Language, and Consolidating and Streamlining Various Provisions." The City Attorney presented the staff report. He said they would be making similar changes to the rest of the municipal code. The City Attorney read the title of the ordinance. Sorensen moved and Koppel seconded to read the ordinance by title only and that the City Attomey's reading would constitute the first reading thereof. Motion carded 5-0. 39. First reading of Ordinance No. 1698: "An Ordinance of the City council of the City of Cupertino Amending Section 11.20.020 of the Cupertino Municipal Code Relating to Establishment of Vehicular Stop and Section 11.20.030 all Directional Vehicular Stop Required at Certain Intersections to Include Blue Jay Drive at the Intersection of Northwest Squ_are." The Public Works Director said he had nothing to add to the staff report. The Deputy City Clerk read the title of the ordinance. Sorensen moved and Koppel seconded to read the ordinance by title only and that the Deputy City Clerk's reading would constitute the first reading thereof. Motion carded 5-0. 40. Application No. 81.168 - City of Cupertino - Endorsemem of proposed West Valley hillsides joint planning review work program. Recommended for approval. The Community Development Director presented the staff report. He pointed out what the Planning Commission wanted added to the work program. In answer to questions, Wordell said Palo Alto and Los Altos Hills would probably be asked to join in the future. Regarding funding for public parks and open space, she said the new wording would say if you're talking about additional public open space, talk about where the funding would come from as well, September 5, 1995 Cupertino City Council Page .- .... Koppel moved and Sorensen seconded to approve the work plan as araended per Planning Commission Resolution 4638. Motion carried 5-0. WRITTEN COMMUNICATIONS - None. ORDINANCES - None. RESOLUTIONS - None. STAFF REPORTS Oral reports by staff members and submission of written reports. 41. Status report on Fourth of July discussions. The Director of Parks and Recreation told Council the results of a meeting coordinated by Sorensen. Members of services clubs and interested individuals met to talk about the potential of brining back the fireworks. The consensus was that the service clubs are willing to spearhead an effort to do that and possibly bringing back some of the daytime activities as well. Sorensen said the effort began with the Quota Club. Dowling said sites for the fireworks were being evaluated. Koppel suggested that they look at using the roof of the parking structure. Dowling said Parks and Recreation staff would provide logistical support and participate in the planning and implementation. If there will be direct costs those will be brought back to Council during the budget process. COUNCIL REPORTS Legislative Review Committee. The City Manager reported that the Committee recommended opposing SB 437 (Lewis), Air quality, congestion management, land use authority. Bautista moved and Burnett seconded to oppose SB 437 and direct the City Clerk to prepare a letter to the legislators for the Mayor's signature. Motion carded 5-0. Koppel reported regarding the Transportation Agency's West Valley Cities representative. She also reported that she had met with Apple and Caltrans regarding highway beautification by using companies' logos as landscaping. The large companies are supportive of this effort which would amount to them adopting a segment of the f~eeway and paying for the landscaping maintenance. There will need to be a policy regarding who can advertise. September 5, 1995 Cupertino City Council Page 21 Koppel said the hame of Highway 85 is West Valley Freeway. She said Jim Cuneen is willing to take a resolution to offi¢iaily name it that if the West Valley Mayor's will sign a letter. She asked staffto write that letter. Burner reported regarding funding of the flood control districts. A survey is being conducted to find out about the willingness to continue support of the efforts after the current funding sunsets in the year 2000. He said user fees had been mentioned as an alternative to having an election. Koppel will represent the City at the Joint Venture meeting on the 21st. At 9:55 p.m. the meeting was adjourned to 6:00 p.m., September 6, 1995, City Hall Council Chamber, for "Heart oftbe CitY~' hearings.