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17. McNair CITY OF CUPEIUINO PUBLIC WORKS DEPARTMENT Summary AGENDA ITEM 11 AGENDA DATE June 5.2007 SUBJECT AND ISSUE Items related to the residential development of Thomas McNair at 22261 McClellan Road. 1. Adoption of Resolution No. 07- r 01. , accepting the quitclaim deed for access easement over City property at 22241 McClellan Road, APN 357-06-014, from Thomas M. McNair. 2. Release of securities for City-specified improvements, including grading, storm drainage and erosion contro~ as required by the improvement agreement with the City for a single- family dwelling building permit. BACKGROUND Mr. Thomas McNair received approval from the Planning Commission on February 8, 1999, to construct a new residence on his parcel at 22261 McClellan Road. Because nearly the entire parcel is characterized by a steep slope, the authorization to build the house required approval of a hillside exception to build on a slope greater than 30 percent. After considering an appeal of the Planning Commission approval of the project, the City Council approved the project on May 3, 1999. Subsequently, the Planning Commission approved a request to extend its approvals on May 30,2001. Since the steep slope of the site makes construction access difficult, the City decided to grant Mr. McNair a temporary right to cross adjoining City-owned land, known as the Simms' property, so that he could proceed with construction. On March 18, 2002, the City Council adopted Resolution No. 02-246, authorizing the City Manager to negotiate and execute an access agreement between the City and Mr. Tom McNair. An access agreement was executed on March 26, 2002, and subsequently extended through September 10,2004. 1 17 - 1 Printed on Recycled Paper During Council consideration of an amendment to further extend the access agreement at its April 19,2004, meeting, Mr. McNair showed evidence that his property already has a recorded roadway access over the Simms property from Scenic Circle, making his access agreement with the City unnecessary. Because the future use of the Simms property could be compromised by the existence of a road access easement, the Parks and Recreation Director recommended that the amendment to the agreement include Mr. McNair's quitclaim of the easement. Council included quitclaim of the easement as one of the items to be included in the amendment. After reviewing the proposed amendment forwarded by Public Works pursuant to the Council direction, Mr. McNair on the advice of his attorney declined to agree to negotiate the quitclaim or an amendment to the agreement, since the agreement had been shown to be unnecessary. Mr. McNair eventually set a price of about $140,000 for his quitclaim ofthe easement. DISCUSSION However, subsequently he said he would consider quitclaiming the easement if he were not required ~o regrade the access road and remove rock he had placed to make the access road usable, and if the City would begin releasing his grading permit security in order for him to acquire funds necessary to complete his project. Staff believes it would be in the City's long-term interest to place priority on obtaining the quitclaim. Further, retaining the rock stabilization on the haul road may prove to be an asset during the completion of the Stevens Creek corridor project and a decision on the ultimate condition of that access can be made at that time. From the time that he first broke ground, progress on Mr. McNair's project has been very slow, taking eight years from the original approval to this point. AlthQugh Staff has always believed it to be in the public interest to exercise whatever authority the City could bring to bear to encourage Mr. McNair to make speedier progress, the main leverage that the City has at its disposal, stopping the work, would very likely have had the opposite effect. Mr. McNair has stabilized the slope below McClellan Road by completing his foundation, alleviating one of Staff's primary concerns. The house is completely framed and the Tyvek house wrap installed. The final exterior siding and fenestration remains to be completed, as does the interior finishing. Mr. McNair's building permit is active, since he has maintained an adequate schedule of inspections. Although it has taken a painfully long time, Mr. McNair has made a credible amount of progress, and appears to be on the verge of completion. Mr. McNair has executed a quitclaim of the easement (see attached drawing) that runs with his property over the old haul road that runs from Scenic Circle through the Simms property to his property. This quitclaim will be effective if Council decides to approve the release of grading securities, except for 100.10 of which will be held for one year. With this action it will be possible to plan for true creek restoration in the area as the City considers moving ahead with future phases of the corridor project. 2 17 - 2 Mr. McNair has completed the bulk of the grading work, so that all that remains is finish work on conveyance of the roof drainage. Staff recommends that the process of releasing the grading securities be approved and initiated, with 90% of the securities to be released upon approval and 10% retained for one year, and a hold will be placed on final occupancy pending approval of any small amount of finish grading work that may be required to accommodate the roof drainage. FISCAL IMPACT Adoption of the resolution accepting the quitclaim would save the City the undetermined cost of purchasing the quitclaim. STAFF RECOMMENDATION Staff recommends that the City Council 1. Adopt Resolution No. 07- 101 , accepting the quitclaim deed for access easement over City property at 22241 McClellan Road, APN 357-06-014, from Thomas M. McNair. 2. Release securities for City-specified improvements, including grading, storm drainage and erosion control, as required by the improvement agreement with the City for a . single-family dwelling building permit. Submitted by: Approved for submission: ~ ,<1 c.J U~ "~A-- Ralph A. Qualls, Jr. -V Director of Public Works aJl David W. Knapp City Manager 3 17 - 3 RESOLUTION NO. 07-102 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO ACCEPTING THE QUITCLAIM DEED FOR ACCESS EASEMENT OVER CITY PROPERTY AT 22241 ~CLELLAN ROAD, APN 357-06-014, THOMAS M. MCNAIR WHEREAS, Thomas M. MCNair has offered a quitclaim of the recorded access easement over City owned land at 22241 MCClellan Road appurtenant to his property located at 22261 MCClellan Road; and WHEREAS, Thomas M. MCNair, as a condition of offering said quitclaim, has requested that the City approve release of securities submitted by him to secure grading work in connection with his development at 22241 ~Clellan Road, and relieve him of the task of removing rock paving from the access road; and WHEREAS, the City Council of the City of Cupertino has determined that it is appropriate and in the public interest to accept said quitclaim on the terms upon which it is offered. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby accepts said quitclaim on the terms upon which it is offered, on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City council of the City of Cupertino this 5th day of June 2007, by the following vote: . Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN : A TrEST: APPROVED: City Clerk Mayor, City of Cupertino 17 - 4 .;1/'1/119/1" ":J.':.-:'.u; ,.~- "t#UJ ~"-IIU "k~~ ~ ~ ;Ht~ ~ ~. fh~~ ~ .~ ,- h~:: ll\'H).. i:): !i~ ~IHh ~ ~~H"~I ... lh"ltt! !l. it. ".J ~ ~!~~ ~ ~~ :..\l: .. " .. ~ ~!l II 'Ol" t ~ .lIo . \) ~ Sh~i~ ~ ~~~~~ ~l>~'~~~ ,,~ t"'~li . l:: ~dt" ~!I>h, ~ '~~~t ~ ~ Hia ~)" U 'J.1J.d)lU . .- ~ t ;:j " ~~ If'~ r- " .It"'\i-ls~ It ~, ~ f t~! ~ '. , .. 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"'.~ \, ~... #a-1..- J ~ ~ ..,,~ .....;,., r.....? -......~~..10~ .~.... ~"""'"'i- ...~~ .....,...' ~....:;,~~.. ~ .......~~...._..- t l . ~ ~ ~:: ~ I I 1I.::t .. ~ .. ... ~ . ~ \ ~ ~ II ~ ~ :j I' 'I ~ 3 !- "~~~~G& I ~ I I I ~ ~ ~!!.08eG ~ i I '-. \ 17 - 5 E IBI ~ I n~ #/7 r-;:'\ ,J~ S- fD'7 / June 4, 2007 re: Agenda Item 17, Thomas M. McNair, 22261 McClellan Road, APN 357- 04-067; Agenda Date, June 5, 2007 Dear Mayor Wang and City Council Members, Seventeen years have passed since the City of Cupertino purchased the Simms property for $1.15 million dollars as part of the open space element of the General Plan, to protect Stevens Creek and the riparian zone from development, and to expand McClellan Ranch habitat protection and educational opportunities to the west side, of the creek. Sixteen years have passed since the City Council leased the Simms house to a nonprofit organization providing low-income housing and designated the property as McClellan Ranch (Resolution 8369). The lease of the house was continued for nine years. The occupants of the Simms house were instructed regarding their obligations as caretakers of the west side of McClellan Ranch. Public access through the property was established. The City Naturalist initiated a native plant restoration project along the creek that included youth instruction. After about ten years, the relevant top staff and elected officials in City Hall experienced complete turnover. Steve Dowling left his position as Director of Parks and Recreation, and a new City Manager and Director of Public Works began employment. The history of the Simms house and property was apparently lost, disregarded, and/or not properly researched. The house and property were now leased to a private party who was not even made aware that the land was open to public access. The occupants were not instructed on how to take care of this sensitive creekside environment to avoid such degradations as introduction of invasive plants or predator pets. The fact that the land had been annexed to McClellan Ranch for management purposes was denied. This disregard for previous Council decisions is what lead to the situation we have today: over three years of part of the property closest to the creek being used as a heavy vehicle road, parking lot, and construction staging area for materials, debris, garbage, porta-potty, and at one point, toxic chemicals. I should also remind the Council that the building permit for the McNair house required a General Plan Amendment to allow building on a greater than 30% slope, and was permitted after strong opposition by Council Member Wally Dean. If that exception to the General Plan had been denied as I believe it should have been, this whole, long mess would have been avoided. This was the first mistake made with regard to the McNair property. Without an independent legal opinion, I am powerless to say whether the City is correct in its belief that an old map showing a road through the Simms property granted a use easement to the McNair property. Because of the City's original use permit to McNair, and its acceptance of Mr. McNair's easement claim, we are now faced with waiting for several more years at least before the damage that his construction site use of this property has done to the riparian environment can be reversed. Tons of rock are now embedded in the soil and the native plant restoration project, as well as the native and nonnative plants that once grew along this corridor, are long obliterated under it. The property bought with public funds for open space, natural habitat protection, and public access is now in worse condition than when it was first purchased seventeen years ago, with no end in sight. To date, none of the Stevens Creek corridor discussion has included any plans for restoration of the west side of McClellan Ranch. Can you understand the frustration that I other knowledgeable residents, as well as the conservation groups who have been following this saga, feel about how the City has treated this creekside public property? Can you understand why we may mistrust the city's ability to redevelop the entire corridor? There have been many laudable words regarding habitat protection and restoration, but actions speak louder than words. The City's actions give little assurance that the future of the Stevens Creek corridor is in good hands. Most sincerely, Deborah Jamison 2