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CC Resolution No. 11-191 Denying the Petition of Darrel Lum Seeking Council Reconsideration of its Decision to Approve a Heart of the City Exception, 20750 Stevens Creek Boulevard RESOLUTION NO. 11-191 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO DENYING THE PETITION OF DARREL LUM SEEKING COUNCIL RECONSIDERATION OF ITS DECISION TO APPROVE A HEART OF THE CITY EXCEPTION TO ALLOW A 30 FOOT FRONT SETBACK FOR A NEW 5,086 SQUARE FOOT RETAIL PAD BUILDING WHERE A 35 FOOT FRONT SETBACK IS REQUIRED AT 20750 STEVENS CREEK BOULEVARD WHEREAS, on September 6, 2011, the Cupertino City Council held a public hearing and at the conclusion of the hearing approved on a 5-0 vote applications DP-2011-03, ASA-2011- 12, EXC-2011-10, and TR-2011-30 for two new retail building pads at the Crossroads Shopping Center at 20730 Stevens Creek Boulevard. WHEREAS, the Cupertino City Council's decision was within its discretion and made at a properly noticed public meeting. WHEREAS, Darrel Lum requested that the City Council reconsider its decision under the provisions of Section 2.08.096 of the City's municipal code; and WHEREAS, the City Council has considered all relevant evidence presented by the parties at all hearings, including evidence presented at the November 15, 2011 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 did not provide new relevant evidence which 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 petitioner has failed to provide proof of facts which demonstrate that the City Council proceeded without, or in excess of its,jurisdiction (See Municipal Code § 2.08.096B(3)). 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(4).) 6. The petitioners have failed to demonstrate that the City Council abused its discretion by not proceeding in a manner required by law; rendering a decision which was not supported by findings of fact; and/or rendering a decision in which the findings of fact were not supported by the evidence. Specifically, the City Council determines that: a. The City Council's decision is supported by findings of fact attached as Exhibit A. b. 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 September 6, 2011 on item_ is DENIED, thereby affirming the original decision. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 15th day of November 2011, by the following vote: Vote Members of the City Council AYES: Wong, Chang, Mahoney, Wang NOES: Santoro ABSENT: None ABSTAIN: None ATTEST: APPROVED: /jAtitilr giOr Kimberly Smith,"ity Clerk Gilbert Wong, Mayor, City of Cup rno EXHIBIT A CITY COUNCIL FINDINGS IN RESPONSE TO PETITION FOR RECONSIDERATION Cupertino 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 reconsideration 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." The petition for reconsideration submitted by Dr. Lum consists of six pages contesting the approval of the Heart of the City Exception (EXC-2011-10) for Building F's reduced front setback. Reconsideration of this item constitutes the third full hearing of this matter conducted by the City. As stated in the petition, the petitioner has made claims for reconsideration under the above referenced criteria #2, #3, #5b and #5c. The City's findings of fact and responses on each of these criteria are set forth below. 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 meeting, nor has petitioner proven that any evidence was previously excluded by the City Council. Petition Res.onse In regard to Building F and its Parking was a prominent discussion topic at the Planning associated parcel, the petitioner Commission and City Council hearings. Both staff reports alleges that the City Council noted that the project provides less parking than required by and Planning Commission the City's Parking Ordinance. However, the ordinance allows failed to discuss and answer his for alternative parking considerations through a parking study questions on its parking prepared by a professional traffic/parking engineer since its requirement,the adequacy of parking requirements do not fully capture the dynamic needs the parcel to provide the of a multi-use sho..in: center. Conse•uentl ,the •arkin required supply, and the study completed by Hexagon Transportation Consultants, Inc. seating capacity for Islands analyzed the comprehensive parking demand of the entire Restaurant. shopping center, not on a parcel-by-parcel basis.The approved parking supply rate for the shopping center exceeded the rate from the Institute of Transportation Engineers (ITE) for similarly-sized shopping centers and also from field parking surveys of local shopping centers with similar tenant mixes. Both rates were based on the highest surveyed rate and adjusted to account for the specific percentage of restaurants in the shopping center(15%). These rates are based on the square footage of the entire shopping center, not on parking requirements for individual uses. It is acknowledged that some parcels in the shopping center are not self-sufficient in terms of parking, as is common in other multi-parcel shopping centers. Sufficient parking supply is provided by reciprocal access parking easements throughout every parcel. Moreover, the parking layout in the shopping center allows for sharing of parking between uses, such as patronizing a restaurant and retail store while parked in the same parking space. To remove any doubt as to the accuracy of the study,the property owner will be required to fund a parking demand survey a year after completion of the two new building pads for the City Council's review. The petitioner alleges that The approval in question was for the core and shell of the Islands Restaurants have building pads and the floor plan provided by the applicant did separate bars and therefore not indicate a separate bar, as it was yet to be finalized by the require parking based on 1 future Islands tenant. If Islands requests a separate bar within space for every 3 seats plus 1 the restaurant, then they would be required to apply for a space for each employee. Conditional Use Permit, which would be reviewed by the Planning Commission at a future public hearing. Regarding the parking ratio, the City typically requires 1 space/3 seats for bar seats only; not the entire restaurant. Restaurant seats require a parking ratio of 1 space/4 seats. As stated previously,the plans did not indicate a separate bar;therefore a bar seat parking calculation was not identified in the parking study. Furthermore, it should be noted that since the parking survey was based on restaurants of all types and the Council approved an alternative parking calculation based on shopping center square footage, the bar area would not be subject to a parking requirement based on each individual use. However, the Planning Commission has the discretion to require additional stalls,through such means as restriping in other areas of the shopping center(assuming no violation to leases). 3. Proof of facts which demonstrate that the City Council proceeded without,or in excess of its jurisdiction: Finding: The petitioner has not provided any proof of facts that demonstrate the Council proceeded without, or in excess of its jurisdiction. Petition . "Res: The petitioner alleges that the The Heart of the Specific City Plan allows the Planning City Council proceeded Commission and City Council to approve exceptions to its without, or in excess of its development standards. The City followed the prescribed jurisdiction in its approval of procedures for an exception, including notifying the public the Heart of the City within 300 feet of the site and vetting the exception request Exception. through two public hearings. Therefore,the City did not act without, or in excess of its jurisdiction. 5. Proof of facts which demonstrate that the City Council abused its discretion by: 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. Finding: The petitioner has not provided any proof of facts that demonstrate the Council abused its discretion by rendering a decision which was not supported by findings of fact, or rendering a decision in which the findings of fact were not supported by the evidence. Petition Res.onse 1.■41, The petitioner alleges that the The project was approved in accordance with the required City Council did not make the findings needed for a Heart of the City Specific Plan necessary findings required for Exception: an exception to the Heart of the 1 The proposed development is otherwise consistent with the City Specific Plan. City's General Plan and with the goals of this specific plan and meets one or more of the criteria described above. The development is otherwise consistent with the City's General Plan and the specific plan.The project will help instill a"sense of place"by creating community gathering places with appealing architecture and pedestrian-oriented streetscape features. The location of the building was proposed after all efforts were exhausted to meet the prescriptive development standards in the specific plan and to maximize parking for the development. 2. The proposed development will not be injurious to property or improvements in the area nor be detrimental to the public health and safety. The development will not be injurious to property or improvements in the area nor be detrimental to the public health and safety. 3. The proposed develo ment will not create a hazardous condition for pedestrian vehicular traffic. The development will not create hazardous conditions for pedestrian and vehicular traffic. 4. The proposed development has legal access to public streets and public services are available to serve the development. The development has legal access to public streets and public services are available. 5. The proposed development requires an exception, which involves the least modification of or deviation from, the development regulations prescribed in this chapter necessary to accomplish a reasonable use of the parcel. The strict application of the front setback requirement does not allow for the most efficient parking layout and maximized parking supply. 1;n addition, the buildable area of the lot is constrained by a grade difference and the location of a large oak tree. The intent of the specific plan is addressed with the building positioned to promote an active streetscape. Furthermore,the City Council required the building to be setback an additional four feet to 30 feet. The petitioner asserts that an This is not a ground for reconsideration. Also,the City Council exception should not be based the approval of the exception on the merits of the approved based on an application. exception for other projects. The petitioner alleges that the The project provides an unobstructed 26 foot wide landscape 26 foot wide landscape easement, similar to other recently approved developments easement is not consistent with within the Heart of the City, such as Peet's/Panera and Whole the Heart of the City Specific Foods. The frontage will help create a pedestrian-friendly Plan. environment along Stevens Creek Boulevard. Building E's frontage is limited from providing the prescribed landscape easement dimensions due to the presence of mature trees and a VTA bus duckout. The proposed landscape treatment was discussed and approved by the Council at the September 6, 2011 hearing. The petitioner alleges that no The City does not require alternative plans to be submitted for alternative plans have been exception applications. However, various setback alternatives submitted to the Planning were discussed at the Council hearing and the Council finally Commission or City Council. adopted a revised setback of 30 feet for Building F. The petitioner alleges that there At the September 6, 2011 City Council hearing,the petitioner are no physical constraints on alleged that there were no physical constraints on the Building the Building F parcel to F parcel that would prevent it from being set back 35 feet. At prevent it from being setback the hearing, the petitioner did not provide these specific 35 feet from the curb as suggestions to meet the setback requirement. The City Council required by the Heart of the can only act on the facts and evidence on hand when its City Specific Plan. The decision is rendered. The Council considered the petitioner's petitioner suggests relocating a testimony as provided but chose to approve the project with a retaining wall and adjusting the setback of 30 feet for Building F. lot line to gain an additional four foot setback.