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CC Resolution No. 14-215 denying the petition of Darrel Lum Seeking council reconsideration of its decision to approve a development permit for a hotel project located at 10380 Perimeter Rd RESOLUTION NO. 14-215 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO DENYING THE PETITION OF DARREL LUM SEEKING COUNCIL RECONSIDERATION OF ITS DECISION TO APPROVE A DEVELOPMENT PERMIT(DP-2014-04), USE PERMIT (U-2014-04), ARCHITECTURAL AND SITE APPROVAL (ASA-2014-06), PARKING EXCEPTION (EXC-2014-07),AND TREE REMOVAL PERMIT (TR-2014-28) FOR A FIVE- STORY, 148-ROOM HOTEL OF APPROXIMATELY 102,700 SQUARE FEET THAT INCLUDES A RESTAURANT, BAR,LOUNGE,AND CONFERENCE ROOMS BUILT OVER A 35,800 SQUARE FOOT UNDERGROUND PARKING GARAGE THAT CONTAINS TANDEM PARKING AT 10380 PERIMETER ROAD AND A TREE REMOVAL PERMIT (TR- 2014-40) AT 10150 NORTH WOLFE ROAD TO FACILITATE THE OFF-SITE IMPROVEMENTS ASSOCIATED WITH THE CONSTRUCTION OF THE HOTEL PROJECT WHEREAS, on October 21, 2014, the City Council of the City of Cupertino held a public hearing and at the conclusion of the hearing approved on a 4-1 vote applications DP-2014-04, U- 2014-04, ASA-2014-06, EXC-2014-07, TR-2014-28, and TR-2014-40 for a hotel project located at 10380 Perimeter Road (Decision); and WHEREAS, the City Council's Decision was within its discretion and made at a properly noticed public hearing; and WHEREAS, on October 30, 2014, Petitioner Darrel Lum (Petitioner) filed a Reconsideration Petition (Reconsideration Petition) requesting that the City Council reconsider its October 21, 2014 decision under the provisions of Section 2.08.096 of the City's Municipal Code; and WHEREAS, the City Council has considered all relevant evidence presented by the parties at all hearings, including evidence presented at the November 18, 2014 reconsideration hearing; and WHEREAS, based on the evidence above, the City Council hereby makes the findings in Exhibit "A", and, based upon these findings,; NOW, THEREFORE, BE IT RESOLVED: 1. The Reconsideration Petition is defective on its face in that it does not offer proof of facts which, in the exercise of reasonably diligence, could not have been produced at an earlier city hearing as required by Municipal Code Section 2.08.096(B)(1). 2. Petitioner failed to offer evidence which was improperly excluded at a prior city hearing as required by Municipal Code Section 2.08.096(B)(2). Resolution No.14-215 Page 2 3. Petitioner failed to provide proof of facts which demonstrate that the City Council proceeded without, or in excess of its,jurisdiction [See Municipal Code Section 2.08.096 (B)(3)]. 4. Petitioner failed to demonstrate that the City Council abused its discretion by rendering a decision which was not supported by findings of fact; and/or rendering a decision in which the findings of fact were not supported by the evidence. Specifically, the City Council determines that the City Council's Decision of October 21, 2014 is supported by findings of fact and the findings of fact related to the City Council's decision were supported by substantial evidence in the record of proceedings [See Municipal Code Sections 2.08.096]. 5. The Petition for Reconsideration of the City Council's Decision of October 21, 2014 on agenda item 13 is DENIED, thereby affirming the original decision. PASSED AND ADOPTED this 18th day of November, 2014, Regular Meeting of the City Council of the City of Cupertino, State of California,by the following roll call vote: AYES: Wong, Sinks, Chang, Mahoney, Santoro NOES: None ABSTAIN: None ABSENT: None ATTEST: APPROVED: Grace Schmidt Gilbert Wong, Mayor City Clerk City of Cupertino EXHIBIT A CITY COUNCIL FINDINGS IN RESPONSE TO PETITION FOR RECONSIDERATION 1. Ground for Reconsideration #1 [Section 2.08.096 (B)(3) of the Municipal Code]—Council acted in excess of its jurisdiction Petition Finding The General Plan allows buildings with a retail The petitioner presented this claim at the component located in the South Vallco area to August 26, 2014 Planning Commission hearing be constructed up to 60 feet tall. Otherwise, and submitted similar written comments for buildings may be constructed up to 45 feet the October 21, 2014 Council hearing. Both the without a retail component. The petitioner Planning Commission and the City Council alleges the hotel project has no retail thoroughly considered and discussed this component and therefore should not be claim and acted upon the project accordingly. allowed to be constructed at its approved Restaurants are considered legitimate retail height of 60 feet. uses and are allowed in the City's General Commercial Ordinance since they provide direct contact with customers and generate sales tax. The intent of the General Plan's 60-foot building height policy in South Vallco is to promote active ground floors. Based on past approvals and Council practice, restaurants have been deemed to be an appropriate ground floor retail use that supports the 60-foot height allowance. Finding and conclusion: It is within City Council's jurisdiction to interpret the General Plan and make decisions on its implementation. The petitioner has not provided any proof of facts that demonstrate the Council proceeded without, or in excess of its jurisdiction. 2. Ground for Reconsideration #2 [Sections 2.08.096 (B)(5)(b) and (c) of the Municipal Code] — Council's decision was not supported by facts or the findings of fact were not supported by the evidence. Petition Finding The petitioner notes that Hyatt House is an The General Plan's building height policy was extended stay, business service hotel with discussed in detail in the October 21, 2014 staff limited amenities to serve hotel guests, such as report and at the Council hearing. The Council complimentary breakfast and in-room kitchen considered the petitioner's testimony as facilities. The petitioner claims that there was provided but found that the hotel's restaurant, no finding of fact in the October 21, 2014 staff bar, and other active commercial ground floor report and meeting minutes that the hotel's uses are considered retail, thereby allowing the restaurant and bar is considered retail. 60-foot building height. In addition to serving the hotel guests, the hotel restaurant is required to be open to the public and is considered a full service restaurant similar to other restaurants in the Ci Finding and conclusion: The City Council considered, and rejected, the claim that the hotel's restaurant should not be considered retail. The petitioner has not provided any proof of facts that demonstrate the Council abused its discretion by rendering a decision which was not supported by findings of fact, or rendering a decision in which the findings of fact were not supported by the evidence.