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13. Mojgani reconsideration City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 (408) 777-3308 Fax: (408) 777-3333 CITY OF CUPEIUINO Community Development Department Summary Agenda Item No. 1-' Agenda Date: May 15, 2007 SUBJECT Request for a Petition for Reconsideration of the City Council's decision on R-2006-08 and RM-2006-13 to eliminate a second-story, master bedroom balcony on the rear elevation of a new two-story, single-family residence to be constructed at 21180 Grenola A venue. The petitioners are the property owners, Mehrdad and Homa Mojgani. Note: The petitioner's request for reconsideration relates only to the denial of the master bedroom balcony. RECOMMENDATION Deny the request for reconsideration by making required findings outlined by the City Attorney. If the Council finds the applicants' arguments meet the required findings, the City Council may grant the request for reconsideration by making required findings outlined by the City Attorney (reconsideration could either be heard at this time or a future meeting). Environmental Assessment: Categorically Exempt BACKGROUND: Mehrdad and Homa Mojgani are requesting the City Council to reconsider the approvals of their two-story residential design review (R-2006-08) and minor residential permit (RM-2006-13) only as they relate to the elimination of the master bedroom balcony on the second floor of their proposed residence. The Mojganis' would like the Council to reconsider allowing the master bedroom balcony. The two-story residential design review and minor residential permit were originally approved by the Director of Community Development in August of 2006. However, /3-1 Printed on Recycled Paper R-2006-08, RM-2006-13 Page 2 Mojgani Reconsideration May 15, 2007 the City received two appeals of the Director's approvals of these applications. The appeals were filed by John Tracy jJessica Rose and Elena HerrerajSubir Sengupta, and focused on concerns related to the privacy impacts of the balconies, adequacy of the privacy protection landscape plan, the design and color of the residence and the preservation of the existing oak tree on the property. The Planning Commission conducted two public hearings to consider these appeals in October and November of 2006. On November 14, 2006, the Planning Commission, on a 3-2 vote, denied the appeals and upheld the approvals of the applications by the Director of Community Development with the additional condition that the property owners submit a complete privacy protection landscape plan to be reviewed and approved by the Planning Commission. The same appellants subsequently filed appeals of the Planning Commission decisions to the City Council. The City Council held public hearings to consider these appeals on February 6 and March 20, 2007, providing direction to the property owners to revise their plans after the February 6 meeting to mitigate the privacy impacts of the master bedroom balcony. Additionally within this time period, the appellants and the property owners participated in a mediation process to attempt to resolve the issues; however, the parties still were not able to reach agreement. On March 20,2007, the City Council reviewed a revised plan submitted by the property owners and determined that they had not followed the Council's direction to properly mitigate the privacy impacts of the master bedroom balcony. Therefore, the Council approved the two applications with additional conditions to eliminate the second-story master bedroom balcony along the west side of the rear elevation and to provide a sufficient privacy protection landscaping plan to be reviewed and approved by the Director of Community Development. The applicants were asked to meet with their neighbors and come up with an acceptable design for the balcony. This effort failed and the master bedroom balcony was subsequently denied due to its design. The applicants still have the ability to re-apply with a new design that responds to the neighbors' privacy concerns. Since the City Council meeting, the applicant submitted a revised privacy protection landscape plan for staff to review. The privacy protection landscape plan has been reviewed by staff and was approved on May 7, 2007 with modifications to conform to the City Council direction. Hence, the applicant is free to file for a building permit to construct the house with the approved smaller balcony located toward the east side of the rear elevation of the home. On April 2, 2007, the property owners submitted a request for reconsideration (Exhibit B) of their applications pertaining only to the second-story master bedroom balcony that was denied by the City Council. /3-2. R-2006-08, RM-2006-13 Page 3 Mojgani Reconsideration May 15, 2007 DISCUSSION: Applicants' Appeal: Specific grounds for reconsideration are provided in the Cupertino Municipal Code. The petitioners' reasons for the reconsideration request are outlined in the reconsideration request attached to the staff report (Exhibit B). The grounds for reconsideration are discussed in the attached report and matrix as prepared by the City Attorney (See Exhibit A). The City Attorney determined that the arguments submitted by the applicants do not support approval of the reconsideration and recommends that the City Council deny the request for reconsideration, for the reasons stated in Exhibit A. A resolution for denial is enclosed. ENCLOSURES City Council Resolution Exhibit B: Exhibit C: City Attorney's Report, including Council Findings in Response to Petition for Reconsideration Petition of Reconsideration City Council minutes of March 20,2007 Exhibit A: The City Council previously received all of the background material consisting of 161 pages that include the March 20,2007 City Council report and all previous reports and exhibits that were provided as attachments, when the City Council considered the appeal of the Planning Commission decision. Staff will have a copy of this Council report with its attachments at the Council meeting, or can make a copy available to any of the Council members upon request. Prepared by: Aki Honda Snelling, Senior Planner Approved by: Steve Piasecki Director, Community Development ~ David W. Knapp City Manager G: \ Planning \ PDREPORT\ CC\RM-2006-13, Reconsideration.doc /3~3 DRAFT RESOLUTION NO. 07-089 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO DENYING THE PETITION OF MEHRDAD AND HOMA MOJGANI SEEKING COUNCIL RECONSIDERATION OF APPLICATION R-2006-08 AND RM-2006-13, A RESIDENTIAL DESIGN REVIEW AND MINOR RESIDENTIAL PERMIT TO CONSTRUCT A NEW, TWO-STORY RESIDENCE WITH TWO SECOND-STORY REAR YARD BALCONIES Whereas, application R-2006-08 and RM-2006-13, a Residential Design Review and Minor Residential Permit to construct a new, two-story residence with two second-story rear yard balconies was approved by the Planning Commission on October 10, 2006; and Whereas, the Planning Commission decision was appealed by John Tracy & Jessica Rose and Elena Herrera & Subir Sengupta to the City Council on March 20, 2007 where the appeal was sustained; and Whereas, applicants Mehrdad and Homa Mojgani have 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 May 15, 2007 reconsideration hearing. NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS: 1. The petitioner's 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 petitioner has 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 S 2.08.096B(I).) 3. The City Council did not exclude any evidence presented by the petitioners at any prior city hearing. (See Municipal Code S 2.08,096B(2).) 4. The City Council has proceeded entirely within its jurisdiction regarding the application for a use permit. (See Municipal Code 9 2.08,096B(3).) 5. The petitioner has failed to present any evidence that the City Council failed to provide a fair hearing. (See Municipal Code S 2.08.096B(4).) 6. The petitioner has failed to demonstrate that the City Council abused its discretion regarding the application. (See Municipal Code S 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. c. The findings of fact related to the City Council's decision were supported by substantial evidence in the record of proceedings. /3-1 Resolution No. 07-089 2 7. The specific allegations contained in the petition for reconsideration are refuted by specific City Council findings, as follows: PETITION AND FINDINGS PETITION FINDING 1. "Despite our many requests (email, Petitioners were given clear direction from phone calls), the City Council and Planning the planning staff and the City Council that office did not provide us the guidance for adverse visual impacts on adjoining the height of the balcony barrier which was properties must be reasonably mitigated. suggested as a solution in prior City's With the plans, as presented, the Council meetings. They also refused to meet us to could not make that finding. answer our questions to know what to do. They never responded why the latest revised design invaded the privacy of the appellants so we could correct the deficiencies. " 2. "Instead of focusing on the privacy invasion that the neighbors claimed, the hearing was covering irrelevant comments and personal preferences of appellants, and their supports, including the City Council members. The City Council accused us that we want to have the balcony just to see our neighbors back yard. People who live in a multi million dolor homes should have better ways of enjoying their time than picking to neighbor's house. Inconsistence time allocation during hearing for us (applicants) vs. appellants. This statement is not based on fact. Discussion has centered on privacy intrusion since the plans first came forwarded. The City Council made no such accusation. This statement is irrelevant and based on opinion onlt. Time was allocated fairly. In the appeal hearing the two appellants shared eleven minutes and 46 seconds. The applicant was given ten minutes and 38 seconds, 3. "The City Council and Planning office have not yet provided an objective reason that what in our design violated the "Rl" ordinance. And why with appropriate privacy plan, we could not have the balcony similar to the other Cupertino citizens who have balconies. Petitioner makes no offer of facts to support the allegation. The Council has repeatedly said that with an appropriate privacy plan petitioners' balconies could be allowed. However, the plans are vague and non-specific. The City Council has stated that the petitioner can come back later with a more specific plan and request the west balcony. The Council agreed to approve the project without the balcony so as to 13~5 Resolution No. 07-089 3 allow the project to proceed. Rl Ordinance: 'The goal of the permit requirement is not to require complete visual protection but to address privacy protection to the greatest extent while still allowing the construction and use of an outdoor deck. This section applies to second-story decks, patios, balconies.' The City not being able to decide because of lack of supporting material and the case being prolong is not a good reason for denying a permit which is our right. The only planning office point that had listed in the report was that someone can still look over the 4.5' Stucco wall on the west side of the balcony but both planning and City council failed to tell us: 1. Why Balcony with 4.5' stucco wall is different from any side windows which are installed in the height ranging from 3 '2" to 3' 10"? 2. What height is acceptable to make the west side balcony wall acceptable? 3. What is so special about our neighbor that the city can bend the ordinance for them? Should the participation in annexing give more rights for our neighbor to waive an ordinance. 4. Why they continued to say having a balcony is a privilege when it is well documented in the R 1 ordinance that people have a right to have it if they meet a reasonable privacy mitigation plan? 5. While most ofthe new Cupertino houses are built with balconies why our house is an exception? What is the difference between our house and the house within 100' of our house at 21135 HazeIbrook Dr.? What is difference between our house and the rest of the new houses with balconies which are builtlbuilding in Cupertino under same ordinance. 6. Why the planning office ignored our This is true. However, the Council must be able to make the finding that adverse visual impacts on adjoining properties have been reasonably mitigated. With the plans, as presented, the Council could not make that finding. This statement is unintelligible. However, there is no "right" to a second story balcony. The Council must make specific findings to permit it, which, in this case, they could not make. These questions are irrelevant. The Planning Department and the City Council do not design the proj ects that come before them. They have informed applicant of the standards that must be met, including reasonable mitigation of the adverse visual impacts on the neighbors. As presented, the plans do not meet the standards. 13~(P Resolution No. 07-089 4 requests to provide their input to our privacy landscape and design change? And why in the City council meeting planning office dictated the City Council what they should put in their motion? 8. The petitioner's Petition for Reconsideration of the City Council's determination of March 20, 2007 is DENIED PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 15th day of May 2007, by the following vote: V ote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST APPROVED: City Clerk Mayor, City of Cupertino / '3..7 Exhibit A CITY ATTORNEY'S REPORT REGARDING THE REQUEST FOR RECONSIDERATION OF APPLICATION R-2006-8 AND RM-2006-13 Reconsideration is a two-step process. First the Council must make one or more findings that the petition has sufficiently specified grounds that justify the reconsideration of a previous City Council decision. Secondly, once such findings are made by the Council, the Council proceeds with a reconsideration hearing, where, in light of the evidence presented in the Petition and at the reconsideration hearing, the Council makes findings specific to the original application. 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 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. " One or more of the foregoing grounds for reconsideration must be found for granting a rehearing. A hearing may be held concurrently or set for a later date. Ifnone ofthe grounds for reconsideration apply, the request for reconsideration will be denied. The present request for reconsideration is submitted by Mehrdad and Homa Mojgani, the applicants for R-2006-08 and RM-2006-13, a Residential Design Review and Minor Residential Permit to construct a new, two-story residence with two second- story rear yard balconies. Two appeals submitted by Elena Herrera & Subir Sengupta and Jessica Rose & John Tracy, objecting to privacy invasion by the two balconies, were heard by the City Council on March 20,2007. The Council approved the residential design review and minor residential permit to allow construction of the two-story residence, eliminating the master bedroom balcony on the west side of the rear elevation. 1'3~3 1 The Mojganis now request reconsideration ofthe minor residential permit to allow them to build the master bedroom balcony. CITY COUNCIL FINDINGS NECESSARY FOR GRANTING A MINOR RESIDENTIAL PERMIT Pursuant to Cupertino Municipal Code section 19.28.090 a Minor Residential Permit, which is required for all new or expanded second story decks with views into neighboring residential side or rear yards, may be granted where the decisionmaker makes all of the following findings: 1) The project is consistent with the Cupertino General Plan, any applicable specific plans, zoning ordinances and the purposes of the Cupertino zoning ordinance Title 19; 2) The granting of the permit will not result in a condition that is detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety or welfare; 3) The proposed project is harmonious in scale and design with the general neighborhood; and, 4) Adverse visual impacts on adjoining properties have been reasonably mitigated. In granting the minor residential permit the City Council must make all of the foregoing findings. PETITION AND FINDINGS Petitioners have timely submitted a petition for reconsideration based on the following grounds. 1. Proof of facts which demonstrate that the City Council proceeded without, or in excess of its jurisdiction. Response: The petitioners have not provided any proof of facts to demonstrate that the City Council proceeded without, or in excess of its jurisdiction. PETITION FINDING "Despite our many requests (email, phone Petitioners were given clear direction from calls), the City Council and Planning office the planning staff and the City Council that did not provide us the guidance for the adverse visual impacts on adjoining height of the balcony barrier which was properties must be reasonably mitigated. suggested as a solution in prior City's With the plans, as presented, the Council meetings. They also refused to meet us to could not make that finding. answer our questions to know what to do. They never responded why the latest revised design invaded the privacy ofthe appellants so we could correct the 2 13-1 I deficiencies." 2. Proof of facts which demonstrate that the City Council failed to provide a fair hearing. Response: The petitioners have not provided any proof of facts required as grounds for reconsideration to demonstrate that the Council failed to provide a fair hearing. In fact, a review of the hearing shows that the Council heard lengthy testimony from the appellants and from the petitioners as well as numerous facts presented by the city staff and the public. The Council heard and considered all evidence presented. There is no basis in any material provided in the petition that supports the allegation that the Council failed to provide a fair hearing. PETITION FINDING "Instead of focusing on the privacy invasion that the This statement is not based on fact. Discussion has neighbors claimed, the centered on privacy intrusion since the plans first came hearing was covering forwarded. The City Council made no such accusation. irrelevant comments and personal preferences of appellants, and their supports, including the City Council members. The City Council accused us that we want to have the balcony just to see our neighbors back yard. People who live in a multi This statement is irrelevant and based on opinion anlt. million dolor homes should have better ways of enjoying their time than picking to neighbor's house. Inconsistence time allocation Time was allocated fairly. In the appeal hearing the two during hearing for us appellants shared eleven minutes and 46 seconds. The (applicants) vs. appellants. applicant was given ten minutes and 38 seconds. 3. 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. Response: The petition under this heading presents unsubstantiated statements about the Council's consideration at the appeal hearing. The petition makes no offer of proof. 3 ! '3.../0 Petitioners offer no facts to substantiate their claim that the City Council abused its discretion by not proceeding in a marmer prescribed by law; and/or 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. PETITION FINDING "The City Council and Planning office Petitioner makes no offer of facts to have not yet provided an objective reason support the allegation. The Council has that what in our design violated the "Rl" repeatedly said that with an appropriate ordinance. And why with appropriate privacy plan petitioners' balconies could be privacy plan, we could not have the allowed. However, the plans are vague and balcony similar to the other Cupertino non-specific. The City Council has stated citizens who have balconies. that the petitioner can come back later with a more specific plan and request the west balcony. The Council agreed to approve the project without the balcony so as to allow the proj ect to proceed. Rl Ordinance: 'The goal of the permit This is true. However, the Council must be requirement is not to require complete able to make the finding that adverse visual visual protection but to address privacy impacts on adjoining properties have been protection to the greatest extent while still reasonably mitigated. With the plans, as allowing the construction and use of an presented, the Council could not make that outdoor deck. This section applies to finding. second-story decks, patios, balconies.' The City not being able to decide because This statement is unintelligible. However, of lack of supporting material and the case there is no "right" to a second story being prolong is not a good reason for balcony. The Council must make specific denying a permit which is our right. findings to permit it, which, in this case, they could not make. The only planning office point that had These questions are irrelevant. The listed in the report was that someone can Planning Department and the City Council still look over the 4.5' Stucco wall on the do not design the projects that come before west side of the balcony but both planning them. They have informed applicant of the and City council failed to tell us: standards that must be met, including 1. Why Balcony with 4.5' stucco wall is reasonable mitigation of the adverse visual different from any side windows which are impacts on the neighbors. As presented, installed in the height ranging from 3 '2" to the plans do not meet the standards. 3' 10"? 2. What height is acceptable to make the west side balcony wall acceptable? 3. What is so special about our neighbor 4 13 ~I/ that the city can bend the ordinance for them? Should the participation in annexing give more rights for our neighbor to waive an ordinance. 4. Why they continued to say having a balcony is a privilege when it is well documented in the Rl ordinance that people have a right to have it if they meet a reasonable privacy mitigation plan? 5. While most of the new Cupertino houses are built with balconies why our house is an exception? What is the difference between our house and the house within 100' of our house at 21135 Hazelbrook Dr.? What is difference between our house and the rest of the new houses with balconies which are built/building in Cupertino under same ordinance. 6. Why the planning office ignored our requests to provide their input to our privacy landscape and design change? And why in the City council meeting planning office dictated the City Council what they should put in their motion? Conclusion In reviewing the Petition filed by Mehrdad and Homa Mojgani to reconsider the Council's decision to grant the appeals of Elena Herrera & Subir Sengupta and Jessica Rose & John Tracy, objecting to privacy invasion by the two balconies, on March 20, 2007, no relevant evidence or proof of facts that support any of the grounds for reconsideration as required by Cupertino Municipal Code Section 2.08.096 B. 1-5 have been presented. 5 IJ~/2. Exhibit B We would like to request reconsideration of the City council decision for denying the permit for west side balcony as part ofRM-2006-13 based on the following grounds: 3. F--ocF :fi'?c-:s '"~r~~~C~j c::--~'=,I:S-~~2~e :22t t1Je C:ry !~Ju2c~1 ~::=~oceeG-ej '"\i:\-itbC,L:t. '2T ~L e~:ces~ :,,:r::s. , ~. ~. - -- . '-'~' -.,..... J-_ ~::-- '- . L;., ,-. 2..'-. Despite our many requests (email, phone calls), the City Council and Planning office did not provide us the guidance for the height of the balcony barrier(Tall Stucco wall on west side of the balcony) which was suggested as a solution in prior City's meetings. They also refused to meet us to answer our questions to know what to do. They never responded why the latest revised design invaded the privacy of the appellants so we could correct the deficiencies. Attached please fmd the emails. ~. ~~~ocf .Jff2.cL:s ,,\~o-'!~cb :-eI:1CDS"lTc:te ~tG.'C lle ::=-ity C='_:i1cil fz;iied to ::,rcl\-ide a tl~- he.2.ril~g. _ Instead of focusing on the privacy invasion that the neighbor claimed, the hearing was covering irrelevant comments and personal preferences of appellants, and their supports, including the City Council members. The City Council accused us that we want to have the balcony just to see our neighbors back yard. People who live in a multi million dolor homes should have better ways of enjoying their time than picking to neighbor's house. _ Inconsistence time allocation during hearing for us(applicants) vs. appellants. 5. ~?::),=fcjftlc:ts \;-'~C1 jeIJ).=r:~,!ra:e :;:ct :rjc CilT~. "~()~Dcij c..t-u.~,ed its ci~~c7e-c':':Y~J ':.=:\:": . . c.. }\..TC: }.:TecediLg i--: G Ir~EJJJ)t: -c-~L~:ed ty 15'1\':-: 2-f_C -c,_ ~e1l8ef=g a dec~s:;o1} \,,-tjcb -:\,,~ss ~ot SU?;:.:;!1.ed b~7 f:::lc:::cgs of-E2..c:: c~:Jci.'cr c. ~e;~~e:~T~s 3. ~ec~si~:J j~ \~\~ti: b t:le fiQC i=gs of f&ct -,:~.ere nC-I SL,r;;C1:te- j .~-:"\' t~.l~ e\~~,~e"!:"~c'.e. '- ~. lS~7~ ~ 1. ~9;;}. The City Council and Planning office have not yet provided an objective reason that what in our design violated the "RI" ordinance. And why with appropriate privacy plan, we could not have the balcony . similar to the other Cupertino citizen's who have balconies. R1 Ordinance: "The goal of the permit requirement is not to require complete visual protection but to address privacy protection to the greatest extent while still allowing the construction and use of an outdoor deck. 'This section applies to second-story decks, patios, balconies." The City not being able to decide because of lack of supporting material and the case being prolong is not a good reason for denying a permit which is our right. The only planning office point that had listed in the report was that someone can sti11100k over the 4.5' Stucco wall on the west side of the balcony but both planning office and City council failed to tell us: 1. Why Balcony with 4.5' stucco wall is different from any side windows which are installed in the height ranging from 3'2" to 3' IO"? 2. What height is acceptable to make the west side balcony wall acceptable? 3. What is so special about our neighbor that the city can bend the ordinance for them? Should the participation in annexing give more rights for our neighbor to waive an ordinance. 4. Why they continued to say having a balcony is a privilege when it is well documented in the RI 13 -13 ordinance that people have a right to have it if they meet a reasonable privacy mitigation plan? 5. While most of the new Cupertino houses are built with balconies why our house is an exception? What is the difference between our house and the house within 100' of our house at 21135 Hazelbrook Dr.? What is the difference between our house and the rest of the new houses with balconies which are built/building recently in Cupertino under the same ordinance. 6. Why the planning office ignored our requests to provide their input to our privacy landscape and design change? And why in the City council meeting planning office dictated the City Council what they should put in their motion? HOW CITY COUNCIL WORKS: http://www.cupertino.org/city_governmentlcity_council/index.asp 1-\ D W\J),. ~ ;v1 <z krJaJ JY7 96 ~ Y1 \ 4-0D-- 41;?--- bLb 2- ?; Ka~"rJ.;",,j; P 11'60 Gre)l1c ItA. J)r (2ctf~i\",Q)1 C-~q5o ILf h W\ fo-VV1; ~eSbcd' 10 6"" \ . M".+ rB)[E~[E~W[ErRI lfll APR - 2 2007 l1J) ~ CUPERTINO CITY CLERK v- G ~ civtc v-~~ ~ v rl ,') ? ~V/\) /3 --Iy' Office of the Cupertino City Clerk 10300 Torre Avenue Cupertino, CA 95014-3255 rD}[E ~ [E ~ W [E rR\ tf\l APR 1 2 2007 l1!J CUPERTINO CITY CLERK On March 27th, we received the letter dated March 23, postmarked on March 26th from the office of the City Clerk regarding the City Council's decision made on March 20th for application R -2006-08 and RM 2006-13. We would appreciate it if you provide us the "statement of decision" which is missing from the letter. Regards, Homa & Mebrdad Mojgani I 3 ~/ S Dear City Councils, First, just want to say that Persian new year which celebrates the renewal of life at the start of Spring, started about 2 hours ago so happy Persian new year with best wishes for all. Now lets Back to our house case: Our west side balcony is redesigned to make it unfurnishable and unlivable. The depth of the balcony lS reduced to 3'10' I on the sides and 4.5' in center. It is significantly reduced comparing to the original design which was 8'. This was suggested several times by Steve Piasecki, and also City commission. In the recent revised plan, a 4'6" stucco wall has also been added on the west side to permanently block the view to our concerned neighbor's yard. Later we found out that two of the dimensions were not listed and is causing confusion for our neighbors so our designer fixed it and this is what I am showing here. (Show the floor plan) As a reference point, comparing to the height of the stucco wall, majority of the second floor side windows are at 3'2" to 3'10". We must reiterate that our neighbors' issue is not privacy and they simply do not want us to have a balcony. This became apparent to the Planning commission and that was the reason why they rejected the appeal. Even Commissioner Chen who did not reject the appeal clarified that his reason was the privacy mitigation plan which had incomplete vision cones, and it was not the balcony or the design of the house. We are also aware that one of our neighbor within 100' from our house at 21135 Hazelbrook got the permits for a bigger size home with a big size balcony in 2006, which directly faces their neighbors' back yards. So why the City treating us differently? We have some comments about the way the council meeting was handled on Feb 26. 1- We respect the people who were active in annexing the neighborhood to bring the area under the City's / '3 -/ ~ ordinance. Being active in annexing to Cupertino City does not give people more rights than other residents. We should all be following the same City's rules and regulatios and this should not be any advantage to justify the appeal. 2- No one should question the reason why we want balcony. NO one should be forced to justify why they want to exercise their rights. We want the balconies to simply enjoy looking at our own yard and our foot hill views and not the neighbors~ backyard. We are offended and feel insulted with some comments in the first meeting suggesting that. 3- We were questioned why we have not brought people to the Council's meeting like the appellants did and so this shows that we do not have the support of our neighbors. In fact we do have the support of our neighbors. Our east side neighbor even waived the privacy landscape. We do not believe that we should take other people's time and energy lobbying for our right per the Rl ordinance. Exercising our right is not a political campaign. We already have a signed petition of over 20 of our neighbors for their support of our plan. If you have any doubts please call or visit them. Also if there is any City rules in this regard please point it to us. To me democracy is not arguing about other people's rights just because it conflicts with my interest. It is about being able to raise our voice to change what is right or not right. 4. As was "mentioned at the Feb 26th meeting, giving us a couple of more minutes to provide necessary information about the case could have saved a lot of everybody's time discussing things with no information. We would have also benefited if we had a chance to reply to the comments made by the people supporting the appellants, who were given 3 minutes each. Even the criminals get a chance to defend themselves properly in the court but unfortunately we did not get enough time to support our right. 5- After the mediation, we sent our revised plan on /3 -/7 March 9th to the City planning to be evaluated against the ordinance and requested for their feedback. We also sent the plans to the appellants for their feedback. The only feedback we received from the City was on March 12th and that was the second story floor plan was missing. Our designer provided that on March 13th. We did not receive any more feedback from the City or the appellants regardless of our two requests until finally receiving the March 20th City Council report which included the City director of development's recommendation. On March 17th, we received the response from Tracys pointing that the revised balcony is even larger than before so they will see us at the City C~uncil. Our goal was to make sure that our plans comply with the City's ordinance and also to be reviewed by the appellants and discussed before we finalize it. But from the report it seems that City planning has already decided about our case and has not even bothered to provide feedback to us before writing their recommendation! Without providing any good reason, they.are recommending that OUT permit for the west side balcony should be denied. The City has not also provided the Exhibit D that we asked for. We believe that the City should provide strong reasons why our plan was approved on August 21, 2006 but now with much stringent design, it must be denied. After all, we had a once approved plan that now no one in the City wants to stand behind it. We have significantly reduced the balcony depth, blocked completely the west side view to/from our neighbor's yard to have the same effect as a window and provided the privacy landscaping plan which addresses planning office's comments. So with all the changes made we are hoping that the appeal will be denied. /J-/~ We have been treated differently with respect to other new homes in Cupertino. Not just with the issue of the balcony but also with respect to the need for additional privacy landscaping. The City has required privacy landscaping even in the areas where there are no invasions of privacy including southeast:> south center:> parts of the southwest and east side-yards. 7' f~~ ""'&oj South East (South neighbor's Garage roof) . _ . 7 ''>''''''--1 Pn\/t"J.-cy lcvv-.c1rCCLfJZ- South Center ~ South West. (Blocked by Existing huge Oak) (Blocked by South neighbor's huge redwood) / 3 -/9 1 i .~ ~ 'l '^ ~ \~ 5ff'Vi.tk- u,~" f ,~ J t_ PiItooporum c.-molimu Hci&bI : %.S r... SprelAl:1S.28fe<t _ Spa:ciaJ": I fEet Granola DriVe, CupertlDD {rJraghoHa: ~1(9/D6 5c.I.A.rJll.W. n"" i I" . Bui I III . CD l\1l r,. u ~ r:i 6111 H~igJ(* 00" D-nIq- ~o Custom lII"dSC:.1I1 DKlgn Anlll Cclrwuvaian Sp;r6'e'd: ~O' :;:Andolin. Sli5 -==:!~~~::::'~1W.~:;' R~;~f~~.r ~0Il-92S-0'811 _ .. atBd: W _...,.....cop;......m ._...., ",__ _ ___._~...... _ _...-._ .__ ~_~.~!..neWPlant3~~,~~~~QCA-I.J:EN5ED-'DNom-IN5URED-lhr'de~!IT II .-___._~L--------- I J~26 vtt/( ~r5'~ fY y~ \I'\ffl^)~ V" 'VI I' J ) :;. l/ p..Y) ,.-/-if ! I J 'I -1-0...- {o.iZA^A 11\.Ii'; 14' . I -truJ I (V/Y- LI2d ,teVl Cc- )?: ~re-, East view There are no invasions of privacy from our second floor to l\fu. Herrera's house( two houses down). Her roof can only slightly be seen from our TQOftOp. As shown in this picture taken from our root: our next door neighbor Mr. Lee's side fence begins where our backyard does. Therefore there would be no invasions of privacy upon Mr. Lee's or Mrs. Herrera's yard/home if no additional privacy landscaping is provided to the east of our yard(10 Pittisporum on the east). Is this the City Council's direction to have these additional plants on the east side yard as we have been told by the planning office? Ig~2/ Date: Sun., 8 Apr 200723:10:16 -0700 (pDT) "mehrdad mojgani" <hmfamily@sbcglobaLnet> ~JView Contact Details \ii; Add Mobile Alert From: 'l ahi.Ju! J....1c<;ji1inKe~ys .ha.5 C(ifrf'irrncd th.at this mC3S8.ge -'v\'3.S SC11t 11)1 5bcglctl-:a1..rH~~~t p Learn more S b. t.:'attachment #3:Supporting documents(attachments) "Petition for u ~ec .R "d . II econS1 erabon To: citycIerk@cupertino.org Note: forwarded message attached. Forwarded Message [Download File I Save to Yahoo! Briefcase] Date: Sun., 18 Mar 2007 19:04:37 -0800 From: "mehrdad mojgani" <Mehrdad.Mojgani@Sun.COM> Subject:Our requests from City planning and neighbors for feedback T '. kwang@cupertino.org, pkwok@cupertino.org, rlowentha1@cupertino.org, o. dsandoval@cupertino.org, omahoney@cupertino.org Plain Text Attachment [ Scan and Save to Computer I Save to Yahoo! Briefcase] Please see the attached messages, our several unsuccessful requests from the City planning and our neighbors to provide us feedback for the revised plans. We finally received the feedbacks after the City has already decided and the City Council report was prepared/written. We are still not sure if the City ever would provide us any guidelines regarding the City's compliance per our twice requests, and Exhibit D, the feedback from the appellants, which we were hoping to receive them directly from the appellants according to the City Council's direction from last meeting. Thanks. Forwarded Message Date: Fri, 09 Mar 200714:51:47 -0800 From: "Mehrdad Mojgani" <Mehrdad.Mojgani@Sun.COM> Subject: [Fwd: Re: request for extension] To: AkiH@cupertino.org CC: SteveP@cupertino.org, SteveP@cupertino.org, hmfamil@Sun.COM HTML Attachment [ Scan and Save to Comouter I Save to Yaboo! Briefcase] Dear Aki, Attached please find the new plan for 21180 Grenola and the privacy mitigation plan.. In the interest of meeting 13~2Z our neighbors' privacy concern, based on some of the suggestions made in the meetings, the west side balcony is redesigned to be unlivable/unfumishable. We have also added 4.5 feet stucco wall that permanently blocks direct view to the west side neighbor, Tracys. With your feedback, the "flowering pears" has been changed with "Magnolias". Per .Mrs. Hererra's request one more tree than what is required by the City will be planted in the Front Yard on Ivfrs. Rererra's side. Per Mr. Bowers request, we already changed all the big trees on the back side with Pittrosporum.. The revised plans are much more stringent with respect to the already approved plan in August and are based on the suggestions were made at the meetings, so we are hoping that the planning office can support us. We will provide a copy of the plans to our neighbors today as well. Please provide your comments. Regards, Mehrdad -------- Original Message ------- Subject:Re: request for extension Date:Fri, 09 Mar 2007 11:50:35 -0800 From:Cliff Cowles <raven585@sbcS?Jobal.net> To:1\1ehrdad.Mojgani@)Sun.COM References:<E27 40541 02E86042B969073A1331AA3EO 121EFB4@cupexchange.ad.cuvertino.org> <45ED94E5 .60505@SuIl.COM> <46F3824 7 -6BBF-43CO-81 OB- D73BEIIB80A9@sbcglobatnet> <45EEDD33.5060004@sun.com> <45EF55C2.9000703@Sun.COM> <45F035D5.60601 O~Sun.COM> <4A,.4.818DC- AEIA-4BID-BA12-All7EA9B9854(cV,sbcglobal.net> ... <45F1941 E.6090009@Sun.COM> <0A2A0742- E55C-4633-99 14- 2FE301161864(ci),sbcglobaLnet> <45FI9ECD.3070 102@Sun.COM> These are 24" x 36" that can be printed at any blueprint company. Cliff Cliff Cowles P. O. Box 223201 Carmel, CA 93922 831. 626.8219 831.659.5161 Fax Forwarded Message 13--23 Date: Thu, 08 Mar 2007 13: 11 :34 -0800 From: "Aki Honda" <AkiH@cupertino.org> Subject:RE: [Fwd: Re: request for extension] To: Mehrdad.Mojgani@Sun.COM:, "mehrdad mojgani" <hmfamiIy@sbcglobal.net> HTMLAttachment [Scan and Save to Comuuter j Save to Yahoo! Briefcase] Hi Mehrdad, Thanks for your emaiL If Cliff does not have them available by the end of today, I suggest that you still submit them by tomorrow (Friday) and make sure that you specify that you are dropping the plans off for me. Are there also revised landscape plans as well? I would also suggest that you send copies of your modified plans to Jessica Rose/John Tracy and Elena HerreralSubir Sengupta so that they may have an opportunity to review them before the meeting. Thanks, Aki . ----Original Message- From: Mehrdad Mojgani [mailto:Mehrdad.Mojgani@Sun.COM] Sent: Thursday, March 08, 2007 11:31 AM To: Aki Honda; mehrdad mojgani Subject: [Fwd: Re: request for extension] HiAki, Cliff will be sending the modified balcony today. But since you are not here tomorrow and there is still a chance that he delivers it late, can we get them to you on Monday morning? Thanks, Mehrdad -------- Original Message ---..:..-- Subject:Re: request for extension Date:Thu, 08 Mar 200708:15:12 -0800 From: Cliff Cowles <raven585@sbcglobal.net> To:Mehrdad.1\.10jgani@Sun.COM References:<E2740541 02E86042B969073A1331AA3EOI21EFB4@cupexchange.ad. cupertino.org> <45ED94E5.60505@Sun.COM> <46F38247-6BBF-43CO-81OB- D73BEIIB80A9@sbcglobal.net> <45EEDD33.5060004@sun.c-om> <45EF55C2.9000703@Sun.COM> <45F035D5 .6060 104@Sun.COM> I was called to LA on a project with inspectors waiting on Tuesday, and arrived back late last night. I will get you out this morning. One more threat of any kind (at all) and we can all await legal action which will delay your project for 3 months and in the end cost you. Thanks, / 3 ~af Cliff On Mar 8, 2007, at 8: 12 AM, Hehrdad lliIoj gani wrote: Cliff, I tried to call you with no luck and left another message. Today is our deadline for March 20th. I am not sure what I have done to deserve this and must let you know tha t i.vhile I hate to take legal action, I will if I have to. Could you please send the drawing so that we can get the approval in the next meeting? Regards, Hehrdad Mehrdad Mojgani wrote On 03/07/07 16:16,: > > > > > > > > > > > > mehrdad mojgani wrote On 03/07/07 07:41,: > >> >> >> >> >> >> >> Cliff Cowles wrote: >> >>> I will get it out today >>> >>> On Mar 6, 2007, at 8:20 AM, Mehrdad Mojgani wrote: >>> >>> >>> >>> >>> >>> >>> >>> >>> >>> >>> Aki Honda wrote On 03/06/07 08:03,: >>> >>>> Hi Mehrdad, >>>> >>>> The City Clerk's office has received your request and it will be >>>> considered at tonight's City Council meeting. We have also Cliff, I am getting nervous/concerned because you said this will be delivered yesterday but you are neither responding to phone nor email. We do not have much time and if you don't deliver it on time with the city's deadline, our project is in jeopardy. Could you please send it to us when you receive this email? Thanks, Mehrdad Cliff, I ddn't get it yesterday. to me this morning? Thanks, Mehrdad Are you done and will you be sending it Cliff, We do not 3/1/07 and you back to us today? Thanks, Mehrdad have much time to deliver the revised balcony plan on said will do it. Could you please complete and send it / 3 ~c1-5, >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> Thanks, >>>> >>>> Aki >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>> >>>>> >>>>> >>>>> >>>>> >>>>> >>>>> >>>>> >>>>> >>>> >>>> >>>> >>> >>> >> >> > > prepared a report that indicates your request for a continuance and that the appellants are in agreement about the continuance. However, you still will need to attend tonight's meeting because the Council must still take a vote on whether to approve the continuance. Have you the revised plans ready to submit to the need them by this Thursday, March 8th, so that we them and incorporate them into the Council report Council continue this item to March 20th. City? I will can review should the -----Original Message----- From: Mehrdad Mojgani [mailto:Mehrdad.Mojgani@Sun.COM] Sent: Monday, March 05, 2007 1:19 PM To: Mehrdad.Mojgani@Sun.COM Cc: Aki Honda; mehrdad mojgani Subject: Re: request for extension Hi Aki, We have not seen any email follow up with this request. Could you please confirm? Thanks, Mehrdad Mehrdad Mojgani wrote On 02/28/07 16:58,: Dea:r; Aki, As. you know, we attended the mediation last night and we made some progress. To finalize our plan, we need some more time. We would appreciate it if our City council meeting get extended to March 20th. Regards, Mehrdad Forwarded Message Date: From: Sat, 10 Mar 2007 09:53 :31 -0800 "mehrdad mojgani" <Mehrdad.Mojgani@Sun.COM> I J -2~ Subject:Revised plans To: elena_herrera@yahoo.com, "JESSICA TRACY" <rosetracy3@sbcglobaLnet> HTML Attachment [ Scan and Save to Computer I Save to Yaboo! Briefcase] Dear Elena and Tracys, Attached please find the revised plan for our home and the privacy mitigation plan. In the interest of meeting your concerns, the west side balcony is redesigned to be unlivable/unfurnishable. The depth is now down about what was suggested several times at the meetings but our architect did not agree to. We have also added 4.5 feet stucco wall that permanently blocks direct view to the west side, changing it to have the same effect of a window. With your feedback, the "flowering pears" has been replaced with "Magnolias". Per Elena's request one more tree than what is required by the City will be planted in the Front Yard on the far east side of our house. Per Mr. Bowers request we have changed all the big trees with Pittisporum on his side. We hope the new plans meet your concerns. So please let us move forward with the building of our home to be. Regards, Mehrdad ForwardedMessage Date: Thu, 15 Mar 2007 08:47:06 -0800 From: "mehrdad mojgani" <Mehrdad.Mojgani@Sun.COM> SubjectRe: revised plans To: elena _ herrera@yahoo.com Plain Text Attachment [Scan and Save to Computer I Save to Yahoo! Briefcase] Dear Elena, Did you get a chance to review the plan? Please let us know your thoughts. Thanks, Mehrdad Forwarded Message Date: Thu, 15 Mar 200708:43:36 -0800 From: "mehrdad mojgani" <Mehrdad.Mojgani@Sun.COM> Subject:Re: Revised plans I 3 ~;;;7 To: "JESSICA TRACY" <rosetracy3@sbcglobaLnet> Plain Text Attachment [Scan and Save to Computer I Save to Yahoo! Briefcase] Dear Tracys, Did you get a chance to review the plan? Please let us know your thoughts. Thanks, Mehrdad JESSICA TRACY wrote: > Thanks - we'll print them out and review. > > Jessica & John > > */mehrdad mojgani <Mehrdad.Mojgani@Sun.Ca~j* wrote: > >Dear Elena and Tracys, Attached please find the revised plan for our home and the privacy mitigation plan. In the interest of meeting your concerns, the west side balcony is redesigned to be unlivable/unfurnishable. The depth is now down about what was suggested several times at the meetings but our architect did not agree to. We have also added 4.5 feet stucco wall that permanently blocks direct view to the west side, changing it to have the same effect of a > window. With your feedback, the "flowering pears" has been replaced with "Magnolias". Per Elena's request one more tree than what is required by the City will be planted in the Front Yard on the far east side of our house. Per Mr. Bowers request we have changed all the big trees with Pittisporum on his side. We hope the new plans meet your concerns. So please let us move forward with the building of our home to be. Regards, Mehrdad > > Fonvarded Message Date: Thu, 15 Mar 2007 08:59:46 -0800 From: "mehrdad mojgani" <Mehrdad.Mojgani@Sun.COM> Subject:Revised plans To: "AkiHonda" <AkiH@cupertino.org> CC: "Ciddy Wordell" <CynthiaW@cupertino.org>, SteveP@cupertino.org Plain Text Attachment [Scan and Save to Computer I Save to Yahoo! Briefcase] Dear Aki, Please let us know if the submitted mitigation and revised balcony plans /3-~ are acceptable by the City and compliant. Any comments from the neighbors? Please provide feedback to help us move forward. Thanks, Mehrdad .\ / 3~a?' Subject: attachment #4:Supporting documents(attachments) "Petition for Reconsideration" From: mehrdad n10jgani <mehrdad.mojgani@sun.com> Date: Sun, 08 Apr 2007 22:45:41 -0700 To: cityclerk@cupertino.org BCC: mehrdad mojgani <hmfamily@sbcglobal.net> Subject: e-mail to City planning and plan From: mehrdad mojgani <mehrdad.mojgani@sun.com> Date: Mon, 19 Mar 2007 17:56:55 -0800 To: kwang@cupertino.org, pkwok@cupertino.org, rlowenthal@cupertino.org, dsandoval@cupertino.org, omahoney@cupertino.org Forwarded FYI. Attached please find our response to the City planning e-mail. The floorplan is also attached. Thanks. Subject: Re: [Fwd: Re: Balcony sizes and planning office document(one more correection)] . From: mehrdad mojgani <mehrdad.mojgani@sun.com> Date: Mon, 19 Mar 2007 16:59:37 -0800 To: Aki Honda <AkiH@cupertino.org>, SteveP@cupertino.org, Ciddy Wordell <Cynthia W@cupertino.org> Thanks AId. for finally replying to my e-mail. I have sent the revised plans to you and the appellants 11 days ago and requested for your feedbacks. Neither the City nor the neighbors provided any feedback to us. After repeating our request again, you sent us the City Council report. This is completely contradicting with the City Council's direction. Both you and the appellants had the responsinility to provide us feedback. You also have not yet responded to my several requests since last Tursday for the guidance and the Exhibit D. These are my questions/requests after you sent us the City's recommendation, assuming that the plan was the final draft. My requestes were sent to you, Ciddy, Steve in several e-mails with no luck/no response. You even did not reply to this e-mail until I resent it to you to make sure you have seen it. I do not really understand the City's intension for hiding the information and not helping to resolve the issue. The only difference between this plan and what you had last . week was a couple of dimensions that could have been easily derived from the plan and I also specified it in my earlier e-mails. If you still had any more questions or concern you should have let me know and not wait until the report was all written. I think the City is liable for failing to respond to us and at the same time recommending the City Council to remove the balcony. We will pick up the exhibit tomorrow morning. Please leave it at the front desk. Did you receive the softcopy of this exhibit which was sent to you last week? Regards, Mehrdad Aki Honda wrote: Dear Mehrdad, / , ~ 30 Thank you for your email. The Planning Department recommendation is included in the City Council report that I emailed to you last week. As the Council mentioned at ~. the last meeting, we cannot accept new information a day before the meeting. The City Council report has already been written and distributed to the Council with the information that you provided last week. However, you may provide this information to the Council at tomorrow's meeting if you wish. Please also pick up the large exhibit that you dropped off to our office. This is not an exhibit that staff will bring to the meeting; however, you may present this exhibit at tomorrow's meeting during your time to speak. Thank you, Aki -----Original Message----- From: mehrdad mojgani [mailto:Mehrdad.Moioani(cDSun.COM] Sent: Monday, March 19, 2007 2:27 PM To: AId Honda; Steve Piasecki; Ciddy Wordell Subject: [Fwd: Re: Balcony sizes and planning office document(one more correection) ] Hi AId, We still have not received your guidance or comments despite several requests. So please provide that. Attached please find the second story floor plan with the dilnensions (length= 13.2', side depth=3'10", center depth=4.5' ). Please confirm receiving the e-mail and let us know if there is still anything missing. Thanks, Mehrdad . - - -=1 ille-mail to City planning and plan! cConttentt-TEYPe:d. m7b~stsage/rfCS22 il i I on en - nco mg: 1 'I , , ! Att h d M ! Content-Type: message/rfcS227 ac e essage, C E d. 7b' II 1 ontent- nco mg: It 'i '-'- - --- - -.-J .----.-.-. - .-----------------------, ilM. . 2 dFI df' Content-Type: application/pdf 11 ;, oJyanl- n oor.p ; . :1 t_____... ____ ._.____.. __. _____._ ; Content-~~~_?dlng: base64 il 13...31 Subject: Attachment #2: Supporting documents(attachments) IIPetition for Reconsiderationll From: mehrdad mojgani <mehrdad.mojgani@sun.com> Date: Sun, 08 Apr 2007 22:41:24 -0700 To: cityclerk@cupertino.org BeC: mehrdad mojgani <hmfamily@sbcglobal.net> Subject: Please read: Case R-2006-08 and RM-2006-13 From: mehrdad mojgani <mehrdad.mojgani@sun.com> Date: Sun, 18 Mar 2007 16:09:17 -0800 To: kwang@cupertino.org, pkwok@cupertino.org, rlowenthal@cupertino.org, dsandoval@cupertino.org, omahoney@cupertino.org CC: Mehrdad Mojgani <Mehrdad.Mojgani@Sun.COM> Dear City Councils, Attached please find our emails to the planning office which is not responded yet. Our west side balcony is redesigned to become unfurnishable and unlivable. The depth of the balcony is reduced to 3'10" on the sides and 4.5' in center( reduced from 6' to 4' depth was originally suggested several times by Steve Piasecki, and also City cOUl.missioners and at the City Council meeting, but our designer did not advise for such a small balcony). The balcony depth was originally 8'. In the recent revised plan, 4'6" Stucco wall has also been added on the west side to permanently block the view to our concerned neighbor's yard. We are also willing to raise its height if the planning office responds to our question. We must reiterate that our neighbors' issue is not privacy. Based on their comments, they simply do not want us to have a balcony to enjoy our own yard. This became apparent to the Planning commission and that was the reason that they rejected the appeal. Even Commissioner Chen who did not reject the appeal clarified that his reason was the incomplete mitigation plan not including the vision cones, and not the balcony or the design of the house. Please note that the reason for requesting the City Council extension from March 6 ^th to the 20^th was the appelants' unavailability which caused the mediation to delay for two weeks. Before our first experience with the City council review process we hoped to see an unbiased, fair and fact based decision. But our expectation turned out to be wrong. We yet can not believe how the City is treating us different than the other neighbors. We are aware of an approval of a big size balcony in 2006, which is directly facing the neighbors' back yards and it is located within 100' of our house at 21135 Hazelbrook. We believe that the City had already set its mind against our case and has been trying to reason along the same line. Here are more comments to support our claim: 1- Annexing to Cupertino City does not give the people who have been active in annexing more rights than other residents. We should all be following the same Citya€TI'!s ordinance and this should not be any advantage to justify Tracys' appeal. 2- We want the balconies to simply enjoy looking at our own yard and our foot hill views and not the neighborsa€TM backyard as the Mayor said. We heard a self judgmental predisposition from the mayor which was insulting and offending to us. Dear mayor, you should not question why people want balconies. Instead, you should help people to exercise their rights based on the City's ordinance(R1). Please clarify if it is within your authority to impose your personal believes on our case.. . If you are wondering why people want balcony just to look at their neighbors' house why you are not taking it out of the ordinance to avoid wasting people's time and financial losses? We ask the. City council to identifY two story houses in Cupertino even vvith no / ?-3~ balconies that can not look at neighbor's yard from their windows. 3- Vice mayor questioned why we have not brought people to the Councila€ I'M s llleeting like the appellants and so this shows that we do not have the support of our neighbors. We do not believe this idea. Because this is our right as it clearly defined in the R1 ordinance. And we should have the right to exercise it even without asking any neighbors to attend the meetings. Exercising our right is not a political campaign. Why should we take over 20 of our neighbors' time who have already singed the paper for their supports of our plan to attend the long City meetings to prove our right? Does it mean that one should loose his/her rights that have already been well defined by the City ordinance? If there is any City rules in this regard please point it to us. The people who came to the meeting to support the appeal were not even our immediate neighbors and some were only the appellants friends. They brought all their issues 'with the City of Cupertino, their neighbors and the involvement or Tracys in annexation to support the appellants! 4- Because of the unclarity of the City meetings format, we did not even get a chance to present our case clearly in the given 3 minutes. We were not able to provide the City Council the information needed to decide accordingly and precisely. Please note that in the City commissions meeting, we and our designer each were given 10 minutes to present our case. At least you could have treated us similar to the appellants, and let us know at the beginning that we need to share the 10 minutes between the two of us, so we could have managed our time accordingly to make sure we would be able to cover the important facts and information. Even the criminals get a chance to defend themselves properly in the court but unfortunately we did not get enough time to support our right. As was mentioned at the meeting, giving us a couple of more minutes to provide necessary information about the case could have saved a lot of everybody's tune discussing things as result of lack of information. We would have also benefited if we had a chance to reply to the comments made by the people supporting the appellants, who were given 3 minutes each. - 5- After the mediation, we sent our revised plans on March 9 -"-th to the City planning to be evaluated against the ordinance and requested for their feedback. We also sent the plans to the appellants for their feedback. The only feedback received from the City on March 12-"-th was that they did not receive the second story floor plan. This was provided by our designer on March 13"^th . We did not receive any more feedback from the City or the appellants regardless of our two requests until finally receiving the March 20^th City Council report including City director of development recommendation. And finally yesterday, March 17"'th , we received the response from Tracys'" pointing that the revised balcony is even larger than before (NOT TRUE) and so they will see us at the City Council. Per City council's direction, our goal was to make sure that our plans are first comply with the City's ordinance arid also to be reviewed by the appellants and discussed before we could call it the final draft; But it seems that City planning has already decided about our case and has not even bothered to provide feedback to us before writing their recommendation for the City Council! Without providing any good reason, they are recommending that our permit for the west side balcony should be denied. The City has not even responded to our questions and not providing us the Exhibit D (Appellants' feedback). Please see attached e-mails. Doesn't this mean that City's goal is to deny our permit regardless of all our flexibilities with the size and blocking the view? We believe that City should provide strong reasons that why our plan was approved on August 21, 2006 but now with much stringent design, it must be denied. After all, we had a once approved plan that now no one in the City wants to stand behind it. We have significantly reduced the balcony depth, blocked completely the west side view to/from our neighbor's yard with stucco wall to make the balcony to have the same effect as a window and provided the privacy landscaping plan which addresses planning office's comments(Please also note that the Magnolia type and specification is exactly the one listed in the a€ceCity Privacy Landscape List~€D. So with resolving the privacy issue we are hoping that we can get our plan approval in the March 20'^th meeting. Please let us know if you have any questions or need more clarification. 1'3...33 Regards, Mehrdad and Hama Mojgani Rl Ordinance H. Second Story Decks. All new or expanded second story decks with views into neighboring residential side or rear yards shall file for a Minor Residential Permit, subject to Section 19.28.090, in order to protect the privacy of adjoining properties. The goal of the permit requirement is not to require complete visual protection but to address privacy protection to the greatest extent while still allowing the construction and use of an outdoor deck. This section applies to second-story decks, patios, balconies, or any other similar unenclosed features. . */mehrdad mojgani <Mehrdad.Moiaani(@Sun.COM>/* wrote: Date: Frt 16 Mar 2007 10:34:37 -0700 From: Mehrdad Mojgani <Mehrdad.Moiaani(@Sun.COM> Subject: Re: [Fwd: Revised plans] To: Mehrdad.Moiaani(ci)Sun.COM CC: Aki Honda <AkiH(ci)cupertino.ora>, CvnthiaW(ci)cupertino.ora, SteveP(@cupertino.ora Could you please provide your guidance? Regards, Mebrdad Mehrdad Mojgani wrote On 03/15/07 17:56,: > Hi Aki, > Thanks for providing us the document that you will be presenting to > the City council. '-. > > I have to say that I am disappointment with your recommendation to > remove the west side balcony. You are recommending this removal > without providing any ordinance support and not even because of the > lack/insufficient privacy mitigation reasons. > > Your document misses exhi.:qit D. If you send it to us, we can > possibly talk and settle with our neighbors ahead of the meeting time > which it has been the intention and recommendation of the City council. . > > You have mentioned 2 dimensions for the west side balcony that > apparently does not match or > comply with City planning rules which we are not aware of them. These > are: > > 1. The depth of the balcony has been reduced from original 8' to 6' > and now to 4.5' that was not even advised by our architect. This is > almost the size that has been recommended few times in the City > council. Planning commission meetings and by the director of > development but was turned down by our architect since he thought > this size of the balcony would be too small architecturally. I must > reiterate that the bigger depth provides more privacy for our neighbor > because of the extension of the stucco wall outward. Would reducing it > to 4' make it acceptable? > 13 ~ 3Y- > 2. Stucco wall height is 4.5' comparing to the height of the bedroom > window in master bedroom which is > -3.5'. You are saying someone standing close to the stucco wall can > peek into neighbor's yard. Couldn't that happen for almost every > window more comfortably? What is your recommendation? Would 5' stucco > work? If not, how about 5.5'? > I am hoping that if our balcony permit gets rejected by the City > council, the planning office can provide a detailed technical analysis > of the reasons for the rejection despite of our flexibility for the > sizes. > > Please note that our goal is to enjoy our house as much as our > neighbors enjoy theirs. We have talked to several architects regarding > faux balcony. They all believe that faux balcony is decorative and > used for the front and not back windows. They are used with windows > and not patio sliding/French doors. They all strongly believe that > having full height windows (sliding/French) with faux balcony is > extrem.ely dangerous and no City should allow it and as an architect > they would never use it in their design. > . > We have compromised a lot and revised and created the same effect of a > 2 story home with back windows but no balconies by building a > permanent stucco wall and reducing the depth. Our house construction > has been delayed for about a year after City's approval just to be > able to have the west side balcony. It does not make any sense to > remove it now when we are implementing the City's previous > recommendations. > The City must provide good reasons why now with all the changes they > are not approving it. > > We would appreciate your guidance on the dimensions above as early as > possible. > Regards, > Mehrdad Moj gani > Aki Honda wrote On 03/15/07 11:54,: > > > Dear Mehrdad, >> >> The City Council report for next Tuesday's meeting is attached for > > your review. > > Sincerely, >> >> Aki >> >> >> > > -----Original Message----- >> From: mehrdad mojgani [mailto:Mehrdad.Moiaani(ci)Sun.COM] >> Sent: Thursday, March IS, 2007 10:53 AM >>To: Aki Honda >> Cc: Steve Piasecki; Ciddy Wordell >> Subject: [Fwd: Revised plans] >> >> >> Due to the networking problem, resending.. >> > / 3 ~3S Subject: attachment #5:Supporting documents(attachments) "Petition for Reconsideration" From: mehrdad mojgani <mehrdad.mojgani@sun.com> Date: Sun, 08 Apr 200722:59:11 -0700 ' To: cityclerk@cupertino.org BCC: mehrdad mojgani <hinfamily@sbcglobal.net> Subject: FWD: Clarification of East/South views with regard to privacy FroIn: mehrdad mojgani <mehrdad.mojgani@sun.com> Date: Sun, IB Mar 2007 18:22:11 -0800 To: kwang@cupertino.org, pkwok@cupertino.org, rlowenthal@cupertino.org, dsandoval@cupertino.org, omahoney@cupertino.org Forwarded- FYI. Thanks. Subject: Clarification of East/South views with regard to privacy From: mehrdad mojgani <mehrdad.mojgani@sun.com> Date: Thu, 15 Mar 2007 22:21:43 -OBOO To: Aki Honda <AkiH@cupertino.org>, CC: SteveP@cupertino.org, Ciddy Wordell <CynthiaW@cupertino.org> Dear Aki, The purpose of this exhibit was to show that the privacy landSCape in East side and SOme for the South side is unnecessary for the privacy, but we do not intend to change the privacy plan that we have provided. Attached are the same photos showing the views for the East and South of our home. Hopefully these will De in the right format. As it appears, and was written on the exhibit, from the East view, only the top of Mrs. Herrera's roof can be seen and not even her back yard because of the existing trees. According to the pictures from South East, only the top of Mr. Bower's garage roof can be seen. The South Center is mostly covered by the existing oak., and the very South West is also covered by the existing Cedar tree. So, it seems that only West and small portion of the South East needs privacy landscape. Please correct me otherwise. Regard, Mehrdad Aki Honda wrote: Hi Mehrdad, Thank you for your emall. Yes, I did receive it and incorporated it into the City Council report for next Tuesday's meeting. A couple of days ago you or Homa dropped off a large exhibit with photos showing views from the proposed balcony area We cannot accept this exhibit since there is no explanation as to what to do with it. AlSo, it is not in a format that we could present to the Council. Could you please pick up this exhibit before the meeting? If you wish to shaw this to the Council at the meeting, you may do so when you have your opportunity to speak. Thanks, Aki. -Original Message- From: mehrdad mojgani [mailto:Mehrdad.MoicraniC6lSun.COMl Sent: Wednesday, March 14, 2007 6:48 PM , To: Aki Honda Subject: [Fwd: [Fwd: Re: [Fwd: Fwd: FW: [Fwd: Re: request for extension]]]] Hi AId, Please confirm that you have received this. Thanks, Mehrdad .., '-.- ;;]t"" ',""..' ., . ......- ,..,.... .. "",' :,",;:' ~ , ,;/ " ' " . '-,. 1'3 --3tJ Date: Sun, 8 Api 2007 22:58:55 -0700 (PDT) "mehrdad mojgani" <hmfamily@sbcglobaLnet> ~View Contact Details w Add Mobile Alert From: ~{ahoj')l [)('1rnail1r~e:~s. has c.t)11firrned tilar this rnessage -,;;/"38 sent b)T sbcglobal.r~et. Learn more S b. t.~Fwd: Attachment #6:Supporting documents(attacbments) "Petition for u ~ec 'R "d " " econSl eratIon To: "Roma Mojgani" <hmfamily@sbcglobaLnet> --- mehrdad mojgani <hmfamily@sbcglobal.net> wrote: > Date: Sun, B Apr 2007 22:57:42 -0700 (PDT) > From: mehrdad mojgani <hmfamily@sbcglobal.net> > Subject: Attachment #6:Supporting > documents (attachments) "Petition for > Reconsideration" > To: cityclerk@cupertino.org > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > Note: forwarded message attached. > Date: Sun, 4 Feb 2007 12:25:04 -0800 (PST) From: mehrdad mojgani <hmfami1y@sbcglobal.net> Subject: Regarding Tuesday hearing: R-2006-0B and RM-2006-13 To: kwang@cupertino.org, pkwok@cupertino.org, rlowenthal@cupertino.org, dsandoval@cupertino,org, omahoney@cupertino.org Dear City council, We started our house plan approval process in November, 2005. We went back and forth with the City planning to make sure everything was in accordance with the ordinance and supported by the City. Eventually, we received plan approval in August 2006. While our balcony size exceeded all the city's setback requirements and met the city's code, in the spirit of respecting our neighbor's concerns, we reduced the balcony size to almost half of the original plan. This was the first time that our neighbors raised their concern, before the plan's approval. Inspite of this fact, two of our neighbors appealed the already approved plan in the last minute, We had to go through two city commissioner's meetings. We had to spend days to /3-3~ > put together the > documents and evidence, and spent hours at the > meetings, until our > rights became clear to the commissioners and they > denied the appeal. > We reasoned that the ordinance already granted us > the right for having > balconies if it came with privacy landscaping plan. > We reasoned that we > had the right to choose the color of our house, and > the height of our > porch as long as it is within the City code. We had > to prove our right > to choose the type and color of our roof, the type > of our windows, and > our right to build a house that not necessarily must > match the 50+ year > old houses in the neighborhood. > > We believe there is a fundamental issue in the > City's process that so > far has caused us tremendous emotional impact along > with significant > time and monetary damage, which we would like to > have addressed by the > City. > > We live in a crowded city and this is why we should > go by rules and > regulation as much as possible. Almost all houses in > the City are built > next to each other, most in 1/4 of acre or smaller > size lots. This is > very obvious that absolute privacy for a neighbor's > back yard can not > be easily possible unless, the house is on top of a > hill or built in at > least an acre of a lot. > > Unfortunately the city instead of facing and > responding to the > appellants for their concerns based on the City's > ordinance, has created > a frustrating, time-consuming process using public > money which has. no > merit and only puts one neighbor against another. > > We believe the limitations must be well documented > and plans must be > reviewed technically and architecturally against the > ordinance. It > should not be up to the neighbors to redesign > others' houses and change > them either for their more comfort or to serve their > opinions. > > After the appeal denial by the City commission's /3~39 > meeting, our two > neighbors appealed the plan in the last minute again > to the City > council, delaying our construction for another 4 > months so far. But > just during the past month, when it has already been > scheduled for the > City council meeting, we have been contacted several > times by Project > Sentinel Mediation Programs, to resolve the issues > with a mediator. > Even though, the City planning has called it > "optional" for us, they > still have threatened us that our refusal to go to > the mediation will > be reported to the City Council and we will be > considered as being > uncooperative. Our impression is that the City can > not face the > unreasonable concerns of these two neighbors and > tries to force us to > go through an unnecessary step and do unnecessary > things. > > We are very clear about our rights and the defined > ordinance of the > City. We are expecting the City to make it clear to > our two neighbors > and not to allow our construction to be delayed any > longer. Please, > consider that we started the approval of our plan > with the City in > November of 2005, and we are now in February of > 2007. Please, also note > that over 20 of our neighbors have already signed > and supported our > plan. > > Since there was no visual impact to our east > neighbors, our immediate > east neighbor had already waived the privacy > landscaping on east side, > but the City planning forced us to put privacy > plants on the plan. To > please our neighbors, we had to change our plants to > what they > preferred even though our selected plants were in > the City's suggested > privacy plants list. We also added lattices in both >. sides of our > balconies for extra privacy protections. > > Unfortunately, Roma's father just passed away, not > having a chance to > live in our future house that was supposed to be our > dream home. We > feel that if the City had felt more responsibility, /3-lf6 > this unnecessary > long delay would not have happened to cause us of > emotional and > monetary set-backs. > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > We strongly believe that all citizens of Cupertino should be treated the same with the same rules and regulations, and we hope that City council will evaluate our rights properly without bias. Attached are the documents presented to the City commissioners for your review. Regards, Homa & Mehrdad Mojgani > Date: Fri, 20 Oct 2006 19:49:55 -0700 (PDT) From: mehrdad mojgani <hrnfamily@sbcglobal.net> Subject: Regarding R-2006-0B and RM-2006-13 To: hrnartyrniller@yahoo.com, cary.chien@comcast.net, gief@sbcglobal.net, gwong212@aol.com, tsaadati@sbcglobal.net Dear Mr. chairman and City commissioners: First, we would like to thank you for your time for holding public hearings. We understand the criticality of your job and the challenges that you are facing to make fair judgments that could affect the Cupertino residents' lives. Since within the 10 minutes allocated time for us during the hearing on 10/10/2006 we could not get a chance to speak about all the facts, we are sending this letter and photos attached to facilitate your fair decision making. Needless to say that the 10 minutes given to us could have been enough to provide you with all the necessary information and to show you the pictures taken if the City had offered us the same working computer connection that they offered to the representative from the Blackberry Farm. These pictures include the views from the existing roof to our west and east neighboring houses, pictures of the houses in our neighborhood, and the look of our existing house and the color rendering of proposed house. We believe that all residents of Cupertino should be treated equally and fairly based on the City's rules and regulations. The design of our house has 15~4/ > been in City since November of 2005. It has been > reviewed several times and revised to make sure that > it is compliant with the Cupertino ordinance, rules > and regulations. The City planners had the > opportunity for about a year to review, consider all > the aspects of the design against the ordinance and > provide us feedback for any possible changes. We do > not believe that any design changes should be > decided on the spot. > > > We have the City ordinance for the new two story > houses with balconies. If this house is an > exception, it should have been the City's > responsibility to add it to the deed of this house, > so that who ever wanted to purchase the property > would have known that balconies can not be built, or > they can not build a house similar to the style, > size and look of all the other Mediterranean homes > in the neighborhood and in Cupertino. FYI, there > are over 30 Mediterranean styles homes in the > vicinity of our house. (pls refer to the pictures) > As commissioner Chien mentioned we should consider > ~the transition" in Cupertino neighborhood. We > should not expect that the newer homes to match the > 50 year old houses. > > > > > > > > > > > > Although we believe that any size issue of the porch ceiling should have been caught and notified by the City planners at early stages of the design to change, we are still willing to stay with the rules, and we would change the height if it is not meeting the City's ordinance. Please also see the pictures of the porches in our neighborhood, and the home under construction for their heights. Almost all are the same size or taller. > > We are also willing to go with any privacy > landscape that City recommends. We are fine to plant > extra privacy landscape on our neighbors back yard > too. We can replace the Bay window with different > type of window for bedroom 3 if an architect > suggests a window that looks better with the style > of our house However, we are not willing to remove > or make the balcony smaller than what we have > already done. The balcony has already been reduced > to half of its original size. The current size > exceeded the City's expectation and as a result we > got the approval. We are not willing to change the > exterior color to a dark color just to match 50 > year old houses. The selected beige color very much > matches almost all the newer homes in our > neighborhood. > > / 3 -tf2. > Please note, from any window of a second story > house without privacy landscape, you can easily see > the neighboring backyard and even through their > windows at night. With a simple physics experiment > we can show this. If you make a small hole in a > sheet of paper and hold it close to your eyes, you > can see persons in front of you but they can't see > your face. This is true for both sides. So, reducing > the balcony size, does not create more privacy. > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > > We also need to consider that we are living in City not countryside . Most of the lot sizes are between 5000 to 11000 sf and the houses are built next to each other. For complete privacy, people usually cover their windows and use privacy landscape for their yards. This is very different than living in countryside that the houses are usually one story and not that close to each other. Our plan has been approved by City on August 21, 2006, almost 10 months after we started the project with the City. They approved the project since we had addressed all the City's concerns and recommendations. We believe our house should not be an exception or restricted for having normal size balconies which meet City's ordinance. We want to be treated similar to other houses with balconies in our neighborhood and in Cupertino. Otherwise we do not expect City of Cupertino to approve any new houses with balconies. We are not asking to be treated differently or better than others but we are definitely asking for a strong justification from the City commissioners as to why our house is an exception and why we can not follow the City's ordinance, while others new houses in Cupertino or the ones under construction are having balconies and light color exterior. We hope the City to evaluate things based on the facts and not being influenced by the party with better communication skills and/or being more fluent in English. Attached is the document that we planned to present at the hearing but we could not show them all because of the shortage of time as a result of City's technical difficulty with the computer connection. We hope that the commissioners to be more sensitive to our concerns by learning more about the facts before making any decisions that could delay the construction of our house even )3-~3 > longer and affect the quality of our life. Please > also see the related photos at: > > http://www.kodakga11ery.com/ShareLandingSignin.jsp?Dc=62waaob9.c9326hxh &Uy=64jeul&Upost signin=Slideshow.jsp%3Fmode%3Dfromshare&Dx=O > > > > and let us know if you have any questions. > > Regards, > Homa & Mehrdad Mojgani > > /~-~r 1) City Rules and Regulations Our home design: - Meets all the development regulations for two story homes with balconies. - It is compliant with R1 ordinance, effective March 1, 2005 for second story Deck. The goal of the permit requirement is not to require complete visual protection but to address privacy protection to the greatest extent while still allowing the construction and use of an outdoor deck. This section applies to second-story decks, patios, balconies, or any other similar unenclosed features. 2) Oak tree - We did not mislabel the Oak tree as it was mentioned in the appeal letter of R-2006-08 & RM-2006-13 page 2 dated October 10, 2006. Our initial plan prepared by our designer mislabeled the oak tree. - City and ourselves raised the question to our designer, who had claimed to be a tree surgeon for over 17 years, if this is an oak? Below e-mail was his first response. On Apr 6, 2006, at 5:59 PM, Cliff Cowles. wrote: It is not an oak, at all. I will send a picture, asap! Thanks, Cliff Later, after receiving the City Arborist's report and when the result of the survey was available, the plan got revised from 12' to 14' 2" distance from the tree so it meets the house setbacks too. This new tree set-back has already been approved by the City Arborist. 3) Privacy Balconies: We went to our neighbor's house to talk about their concerns. We agreed that they easily can see "our house and whoever is standing in our balcony. And from our balcony, if somebody wants to see their backyard, he/she can, of-course if there is no privacy landscape. But what we did not agree and discussed was: - What details can be seen from our house? - Maintaining privacy landscape should be mutual. - People use curtains for more privacy. Looking at this neighborhood with many new two story houses, some with balconies and also looking at the trend of new developments, and understanding the City ordinance should help the people who renovate their older houses to set their expectations realistically. One should /3-t.{5 anticipate a possibility of two story houses to be built next to them replacing over 50 year old houses. There is also a concern that from our window and balcony one can see through our neighbor's window. What we can see from our window and balcony is not significant. We took several zoomed/un-zoomed pictures from the roof of our existing house. Looking at these pictures, it is obvious that there is hardly any visibility even from the zoomed pictures. (Pictures: 1.nb ) We also took some pictures from a window of an existing two story house without balconies. (pIs refer to Pictures) It is clear that any two story house next to a one story or even a two story can see its neighbor's back yard through the windows. Is City restricting the two story homes to have no windows on the rear side? This is obvious that there is no absolute shielding protection from the houses built next to each other, which is in alignment with the Rl ordinance and says: The goal of the permit requirement is not to require complete visual protection but to address privacy protection to the greatest extent while still allowing the construction and use of an outdoor deck. We have tried very hard to fulfill our neighbors concerns while we would still be able to enjoy our own house. Here are some of the reasons: Privacy protection landscape: - Has been revised few times. According to City planning, it has been planned to the maximum extent. - Has met the City's privacy protection landscape requirements. - Agreed for two more additional plants. - Chosen plants from the City's privacy protection planting list. Story Poles: - Per our neighbor's request, we paid extra $600 to put up the story poles for the balconies to show their exact locations. - According to our subcontractor who has been putting up the story poles for many years in Cupertino, he never had to do story poles for the balconies but he did for this house. Balcony Setbacks: - Exceeding the minimum setbacks for east, west, and rear sides. Balcony size: - Initially was 113 sf. Even though, it met the two story balcony requirements, just to satisfy our neighbor. we compromised and reluctantly reduced the size significantly to almost half of the initial size, down to 60 sf. Our desire is to go back to the original size. Design Implementation: To design our house, we also considered our neighbors' windows and tried to put almost all the second floor windows on the side of the adjacent neighbor with no window on that side. Compatibility, look & feel of Garden Gate Neighborhood: I 3- tj..1P There are concerns that the look and feel of this house is not compatible with the neighborhood. - This is a mixed neighborhood. Many 2 story new homes are built next to 50+ years-old single story homes. - Throughout Cupertino, and specifically in this neighborhood, most of the existing newer homes or the ones under construction, are Mediterranean style, and some have rear balconies. - The color of the tile roof and the exterior stucco is very similar to all the other Mediterranean houses in the same neighborhood. - The new houses in the Garden Gate neighborhood are mostly within the same size range or bigger. The size of our house meets the City's rules and regulations based on our lot size and it is about 3500 sf living area. This is much smaller than the 5000 sf house in Grenola Drive. (pictures: 2balc, neighborhood) The impact of the house on the quality of life, and the real estate appreciation: The other concern is that this house will bring down the quality of life, the values of community living and the house values. - How this house could affect the quality of life when so many existing newer homes in this neighborhood are built almost the same style and size of our house? Why are house should be an exception? -How possibly the proposed plan could cause the value of the properties in the neighborhood to depreciate? It is so easy to judge if you compare the current look and the color rendering for the future look of the house. (pIs refer to the last pictures) We have talked to several of our neighbors at Grenola, Hazelbrook, and Flora Vista. As opposed to only two appellants, they all strongly support the proposed design and believe that this house will add value to their houses , and they are very satisfied for this replacement. 1,-~7 Exhibit C March 20, 2007 Cupertino City Council Page 4 11. Adopt a resolution approving a final tract map for Kelly Gordon Development Corporation, 10114 Crescent Court, APN(s) 327-17-009 and 327-17-030, Resolution No. 07-044. Approval of the final tract map permits the map to be forwarded to the County for recording, which completes the subdivision. 12. Adopt a resolution approving a Stormwater Management Facility Easement Agreement, Kelly Gordon Development Corporation, 10114 Crescent Court, APN(s) 327-17-009 and 327-17-030, Resolution No. 07-045. Through an agreement with the City, the property owners of this residential development will be required to grant ingress and egress rights to the City for the purpose of inspecting stormwater management facilities installed in accordance with the approved Stonnwater Management Plan. 13. Adopt a resolution approving a Stonnwater Management Facilities Operation and Maintenance Agreement, Kelly Gordon Development Corporation, 10114 Crescent Court, APN(s) 327-17-009 and 327-17-030, Resolution No. 07-046. Through an agreement with the City, the property owners of this residential development will be required to operate and maintain stonnwater management facilities in accordance with the approved Stonnwater Management Plan, to minimize adverse impacts due to changes in storm and surface water flow conditions. 14. Accept the resignation of Housing Commissioner Richard Abdalah, direct staff to notice the unscheduled vacancy, and set the date to conduct interviews for May 22. ITEMS REMOVED FROM THE CONSENT CALENDAR (above) PUBLIC HEARINGS 15. Consider two appeals of the Planning Commission's decision to deny an appeal of a Residential Desi~ Review approval and a Minor Residential Permit to construct a new, two-story 4,219 square foot residence with two-second story rear yard decks, Application Nos. R-2006-08 and RM-2006-13, Cliff Cowles (Moigani residence), 21180 Grenola Avenue, APN 326-28-057. (Continued from March 6). The appellants are: a) Jessica Rose and John Tracy b) Elena Herrera and Subir Sengupta Community Development Director Steve Piasecki highlighted the staff report VIa a PowerPoint Presentation. Jessica Rose and John Tracy said that they are appealing the minor residential permit for two rear balconies. They showed pictures of the proposed project from their backyard and /3-C/-g March 20, 2007 Cupertino City Council Page 5 from inside their house. Ms. Rose also discussed discrepancies in the balcony measurements and the landscape plan. She urged Council to deny the permit for the second-story, rear-facing balconies, noting that neighbors on all three sides have protested the balconies. Elena Herrera said that the ordinance as written supports her proposition that the house is out of scale for the neighborhood. She noted that this is a transitional neighborhood and showed pictures of the neighborhood houses. She said that her appeal speaks to both balconies. The applicants, the Mojganis, said that they wanted to build the balconies for their own enjoyment only and that the design modification has reduced the buildings so much as to be unlivable. Mr. Mojgani said that they do have the support of the neighbors. Mrs. Mojgani showed pictures of the neighboring houses from the roof of their existing house, noting that the neighbor's backyard cannot be seen. Mayor Wang opened the public hearing. Lester Bowers said that the privacy issue would come up again, especially in Garden Gate where houses are changing, and that there should be a plan to give more consideration to privacy in a mixed neighborhood. Lee Xu said that he signed waivers on the privacy landscaping last year, but he said he didn't know there would be a large balcony planned. He said he wrote to the planning department about his concerns. He urged the neighbors to limit the size of both balconies to have a more harmonious relationship amongst all the neighbors. Patsy Zanto-Embry said she was in favor of the applicants building their balconies and urged Council to deny the appeal. Wesley Embry said that he understands the need to tear down and rebuild houses, and noted that on Grenola A venue a third of the homes are already two stories. Jennifer Griffin said that in her Rancho neighborhood there was a need to have the neighborhood annexed to Cupertino to have some restrictions on house size. She urged Council to keep the large oak tree and not cut into the canopy. Mayor Wang closed the public hearing. Mahoney/K wok moved and seconded to adopt the staff recommendation to approve the residential design review and minor residential permit to allow construction of a two- story residence including the balcony on the east side of the rear elevation, but eliminate the master bedroom balcony on the west side of the elevation, and amend the landscaping plan to assure that the magnolias and the pittosporums are 24-inch, 8-foot tall, and that the spacing on the pittosporums be adopted by staff to be appropriate for those plants. The decision upholds the appeal relating to the west side balcony and denies the appeal I "!-L(q March 20, 2007 Cupertino City Council Page 6 related to the design and east side balcony, and modifies the planning commission decision per the motion. The motion carried unanimously. 16. Consider an appeal of the Planning Commission's decision to modify the use permit for Peet's Coffee to allow an opening time of 5;30 a.m., Application No. M-2006-07, Laura Thomas (Peet's Coffee), 20807 Stevens Creek Blvd., APN 326-32-051. The appellant is Council member Richard Lowenthal. (Continued from March 6). Community Development Director Steve Piasecki highlighted the staff report Via a PowerPoint Presentation. Council member Richard Lowenthal explained that he had appealed this item because of the issue of inadequate parking on the Peet's Coffee side. He said this is a good opportunity for people to park once and shop twice, to allow pedestrian access between Whole Foods and the Peet's Coffee/office center parking lot. He also said he was concerned about Peet's Coffee opening of 5:30 a.m. because it was an imposition on the community including more traffic and noise early in the morning, and even more crowding for that parking lot, particularly for the office users. Mayor Wang opened the public hearing. Ellen Sinnott, District Manager for Peet's Coffee, asked Council to address the hours of operation for Peet's Coffee so that their permit is in compliance with the 5;30 a.m. opening time, which is consistent with when their competition opens. John Volckmannrn, property manager, said he met with Mr. Lowenthal because he didn't understand the connection between Peet's request to change the hours of operation and creating a pedestrian access. He said that tenants wouldn't use the path because they would have to cross a loading dock area with no sidewalk, and he was concerned about skateboarders, etc. causing liability issues. He added that it would impact the office center tenants to lose one of the parking spaces required in order to create the opening and he wasn't in favor of creating the access. Goeffrey Etnire, attorney for the Stevens Creek Office Center, distributed a letter addressed to Council outlining his comments. He noted that the issue is the question of whether there is a real nexus between Peet's opening at 5:30 a.m. and the pedestrian access. He said that most pedestrians would use the Stevens Creek sidewalk. He urged Council to deny the appeal. Mayor Wang closed the public hearing. LowenthallKwok moved and seconded to grant a temporary use permit allowing Peet's Coffee to open at 5:30 a.m. and to review the entire use permit in six months. The motion carried unanimously. Council was in recess from 9:32 p.m. to 9:39 p.m. /'3-95 D..i_:&:." .. 1.;1'" .. C....tt.u:.... =~~~~~-= ,..._-- r --.QUl.._.........._- ~Mt Af pl#"n~ r'- ; 1 \ IC 18'_6" PROPOSED 2nd FLOORPLAN SECTION "a" ScaJ...V4"= 1'- 0" .(1 PlAt~ 61::;; 12 T.... Ace f' [[] o r ...~ -- '~.~ ---~~ ._-~:~ -r -~'T:rl- r;n~ -r"'" 1 L ,......, I C"!I 1 ;'~ U \ 'it !r-' i f.'" \. i I " I I L".-:t ,~:,:J ,.;-, \.J. ."":"1 \ \ \ \ I '!;I :._1.( r------------.-----:! 1\1 \ lJ!'\ \ : r . ,., (i I J,: I l u. rl'.'! L,. l~ I I CUPERTINO C!TY CLERK LA W OFFICES OF JEFFREY P. WIDMAN CC 5 1ts-07 #:13 101 RACE STREET, SUITE 100 SAN .JOSE, CALIFORNIA 95126-3041 TELEPHONE 14081288.6777 FACSIMILE 14081288.7668 r-~XH~B~T May 11, 2007 DELIVERED BY HAND City Council City of Cupertino 10300 Torre Avenue Cupertino, California 95014 Property Owners: Mehrdad and Homa Mojgani; Property Location: 21180 Grenola Avenue; Agenda Date: May 15, 2007; Subject: Property Owners' Peti tion for Reconsideration of Decision on Appeals on Application nos. R-2006-08/13 To the Honorable Members of the City Council: I represent the Property Owners named above. I submit this letter in support of their petition for reconsideration of your decision on the above-referenced appeals on March 20, 2007. The Property Owners are seeking reconsideration of their decision on these grounds: A. The City Council did not provide the Property Owners with a fair hearing because the Council did not observe the provisions of section 19.28.060(H) of the Municipal Code (the "Ordinance") and because the Council considered evidence not relevant to the provisions of that Ordinance. B. City Council abused its discretion by not proceeding in the manner required by law; that is, observing and following provisions of the Ordinance. C. The City Council abused its discretion by not making findings of fact in support of its decision and/or making findings City Council City of Cupertino May 11, 2007 Page Two of fact which were not supported by the evidence presented. For those reasons, the Property Owners ask the City Council to reverse its decision and to deny the subject of appeals in their entirety. The Council's decision is unlawful on its face. The Council chose to eliminate altogether from the plans the master bedroom balcony on the west side of the proposed residence. The Ordinance expressly allows that balcony, just as it allows a balcony on the east side. (Both balconies are located on the second story of the proposed residence which faces in a southerly direction and into the backyard of the property. It is undisputed that the balconies comply with all setback requirements.) The Council may not prohibit something that its own Ordinance allows. It is one thing to control the design of the balcony. It is quite another thing to eliminate it from the plans altogether. This latter action is beyond the power of the Council. The Ordinance does allow the Council to consider the privacy rights of neighboring owners. But the ordinance expressly mandates a rational compromise between the allowed construction and use of the balcony and protection of privacy rights. The ordinance states: "The goal of the permit requirement is not to require complete visual protection but to address privacy protection to the greatest extent while still allowing the construction and use of an outdoor deck. This section applies to second-story decks, patios, balconies, or any other similar unenclosed features." This language circumscribes the action which the Council may take. Disallowing the construction and use of the balcony runs contrary to the express language of the ordinance. The modified plans already took into account the appellant neighbors' right to privacy. The balcony was reduced in size. A 4 ~ foot high stucco perimeter wall was added. The landscaping plan now includes additional tree plantings along the west side of the property. (The Property Owners do not contest conditions numbers 3, 4, 5 regarding privacy protection.) The Property Owners are prepared to take any and all steps necessary to protect their legal rights under the Ordinance. I City Council City of Cupertino May 11, 2007 Page Three trust that the Council will grant their motion for reconsideration and make any further action unnecessary. ver~V/):~f?IZll;~~ Jef~~j7p. Widman cc. Charles Kilian, City Attorney Mehrdad and Homa Mojgani