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CC Resolution No. 07-186 RESOLUTION NO. 07-186 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO DENYING THE PETITION OF FATEKH VERGASOV SEEKING COUNCIL RECONSIDERATION OF APPLICATION RM-2007-14, A MINOR RESIDENTIAL PERMIT TO CONSTRUCT A NEW SECOND-STORY REAR YARD BALCONY Whereas, application RM-2007-14, a Minor Residential Permit to construct a new second-story rear yard balcony was approved by the Design Review Committee (DRC) on June 21, 2007; and Whereas, the DRC decision was appealed to the Planning Commission by Fatekh Vergasov on August 28,2007, where the decision of the DRC was upheld; and Whereas, the Planning Commission decision was appealed by Fatekh Vergasov to the City Council on October 2, 2007 where the appeal was denied; and Whereas, petitioner Fatekh Vergasov has requested that the City Council reconsider its decision under the provisions of section 2.08.096 ofthe 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 November 5, 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 Code S 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. 07-186 2 7. The specific allegations contained in the petition for reconsideration are refuted by specific City Council findings, as follows: PETITION FINDING "In particular there was insufficient Petitioner makes no offer of facts to evidence before the Council that either the support the allegation, but goes on to cite Design Review Committee or the Planning CMC S 19.28.060(H) as the code section Commission or the council itself had allegedly "read out of the relevant applied the appropriate standards as set Municipal ordinance." In fact, that code forth in the relevant Municipal ordinance section was included both in the written sections, in approving the Balcony Permit and oral staff report for the Council's Application, as the DRC, PC and Council consideration and was emphasized again by itself appear to have read out ofthe petitioner's attorney in his oral comments. relevant Municipal ordinance, the core Assessment of privacy impacts was the requirement that an assessment be central topic of discussion by the City undertaken regarding privacy impact Council. mitigation when considering a Balcony Permit application." "The Balcony Permit Ordinance explicitly This is a misinterpretation of the Municipal sets forth an assessment regarding privacy Code. The privacy planting ordinance is a that must be undertaken upon consideration mitigation ordinance. This ordinance of a minor permit application, namely governs one of the main methods used by confirming that privacy protection has been the city to mitigate privacy intrusion assessed "to the greatest extent." This caused by new construction, including requirement ... is separate and distinct from balconies. It does not require a "separate the requirements explicitly set forth in the and distinct" analysis from the balcony Municipal Code at Section 19.28.070 (the permit ordinance, but rather, it contains "Privacy Planting Ordinance"). mitigation measures to be employed to reasonably protect privacy. "Unfortunately only the Privacy Planting As a result of the Balcony Permit Ordinance requirements were met. The Ordinance, the balcony impacts were requirement of the Balcony Permit assessed. It was determined by the DRC, Ordinance that an independent assessment the Planning Commission and the City of whether privacy was being protected "to Council that privacy could be protected, to the greatest extent" was not met or the the greatest extent, by privacy planting. subject matter even considered." "... there are two privacy analyses that must Petitioner again misinterprets the meaning be concluded - one assessing the Privacy of the ordinances. Privacy planting is a Planting Ordinance, the other assessing mitigation of impacts on privacy. In this whether privacy concerns overall, not just case "privacy concerns overall" were given by way of the Privacy Planting Ordinance, careful consideration. Given that have been addressed "to the greatest petitioner's driveway, but not his house, is extent." The record from the DRC and the directly behind the subject property, given Resolution No. 07-186 3 PC and the Council consideration of the appeal is bereft pf any indication that the second consideration was undertaken." the great distance from the balcony to petitioner's house and other neighboring houses, and given the mature privacy planting already in place, the City Council determined that additional privacy planting was sufficient mitigation to protect the privacy of neighboring properties "to the greatest extent." 8. The petitioner's Petition for Reconsideration of the City Council's determination of October 2, 2007 is DENIED PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 5th day of November 2007, by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: Wang, Sandoval, Lowenthal, Mahoney None None None ATTEST . ~7l Ci~ APPROVED: