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CC Resolution No. 07-089 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(1).) 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 Codes 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. 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 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' 1O"? 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 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 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 projects 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. 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: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: Wang, Kwok, Lowenthal, Mahoney, Sandoval None None None ATTEST APPROVED: ~~ City Clerk ~