CC Resolution No. 16-069 Denying the Petitions of Jan Kucera Jr. and Matthew R. and Angela M.D. Miller Seeking Council ReconsiderationRESOLUTION NO. 16-069
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
DENYING THE PETITIONS OF JAN KUCERA JR., AND MATTHEW R. AND
ANGELA M.D. MILLER SEEKING COUNCIL RECONSIDERATION OF ITS
DECISION TO APPROVE A TWO-STORY PERMIT (R-2015-08) TO ALLOW THE
CONSTRUCTION OF A NEW 5,140-SQUARE-FOOT SINGLE-FAMILY
RESIDENCE AND A MINOR RESIDENTIAL PERMIT (RM-2015-08) TO ALLOW A
SECOND STORY BALCONY ON THE NEW RESIDENCE AT 21900 OAKVIEW
LANE.
WHEREAS, on April 19, 2016, the Cupertino City Council held a public hearing
and at the conclusion of the hearing approved on a 4-0 vote (Paul abstaining)
applications R-2015-08 and RM -2015-08 for a new 5,140-square-foot two-story
residence and a new second story balcony on the residence located at 21900 Oakview
Lane.
WHEREAS, the Cupertino City Council's decision was within its discretion and
made at a properly noticed public meeting;
WHEREAS, Jan Kucera Jr., and Matthew R. and Angela M.D. Miller requested that
the City Council reconsider its decision under the provisions of Section 2.08.096 of the
City's municipal code; and
WHEREAS, the City Council has considered all relevant ev idence presented by the
parties at all hearings, including evidence presented at the June 21, 2016
reconsideration hearing.
NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:
1. The petitioners' 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 petitioners did not provide new relev ant evidence which, in the exercise of
reasonable diligence, could not have been produced at any earlier city hearing
(Municipal Code§ 2.08.096 (B) (1)).
3. The petitioners did not provide relevant evidence which was improperly
excluded at any prior city hearing (Municipal Code § 2.08.096 (B) (2)).
Resolution No . 16-069
Page2
4. The petitioners have failed to provide proof of facts which demonstrate that the
City Council proceeded without, or in excess of its, jurisdiction (Municipal Code
§ 2.08.096 (B) (3)).
5. The petitioners have failed to present any evidence that the City Council failed to
provide a fair hearing (Municipal Code § 2.08.096 (B) (4)).
6. The petitioners have failed to demonstrate that the City Council abused its
discretion by not proceeding in a manner required by law; 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 (Municipal Code §
2.08.096 (B) (5)).
7. Specifically, the City Council determines that:
a. The City Council's decision is supported by findings of fact attached as
Exhibit A.
b. The findings of fact related to the City Council's decision were supported
by substantial evidence in the record of proceedings.
8. The petitioners' Petition for Reconsideration of the City Council's decision of
April 19, 2016 on item #16 is DENIED, thereby affirming the original decision.
PASS ED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 21 51 day of June 2016, by the following vote:
AYES:
NOES :
ABSENT:
ABSTAIN:
ATTEST:
Members of the City Council
Vaidhyanathan, Sinks, Wong
Paul
Chang
None
OVED:
~#
Grace Schmidt, City Clerk Savita Vaidhyanatha
City of Cupertino
Resolution No. 16-069
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EXHIBIT A
CITY COUNCIL FINDINGS IN RESPONSE TO PETITION FOR RECONSIDERATION
Cupertino 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
reconsideration, 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 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."
The petitions for reconsideration submitted by Jan Kucera Jr., and Matthew R. and Angela
M.D . Miller (Attachments B & C) consists of three pages each contesting the project
approval and lists claims for reconsideration of the Council's April 19th decision on the
grounds of criteria #1-#5. Each of the grounds for the reconsideration as submitted by the
petitioners and the City's findings of fact and responses to each of the grounds are listed
below.
If the reconsideration is granted, the Council may conduct a hearing and reconsider its
decision in light of the new evidence presented. Reconsideration of this item constitutes the
third full hearing conducted by the City.
Resolution No. 16-069
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1. An offer of new relevant evidence which, in the exercise of reasonable diligence, could
not have been produced at any earlier city hearing.
City finding: The petitioners have offered no new relevant evidence that could not have
been produced at any earlier city hearing.
Petition
A. The petitioners (Millers) state that they
have new evidence that the house
should not be built on this site .
B. The petitioner (Kucera) states that
advice from an attorney validated that
his property is on a slope (more than 10
ft. drop across his property) and that
the Planning Department never visited
his property to see the natural slope
drop-off. Therefore, he claims that the
28 ft. height limit (CMC Section
19.28.070 (J)) is clearly being violated in
reference to his property at 21917
Oakview Lane.
Response
A. The petitioners did not provide any new
relevant evidence in their petition for
City review and failed to specify the
particular ground(s) for reconsideration.
B. Building height was discussed at both
the Planning Commission and City
Council hearings and is highlighted in
both staff reports. Total building height
is a vertical measurement of the highest
point of . exterior construction of the
proposed building to the natural grade
of the subject site, and not a
measurement of the proposed building
to the natural grade of any other
property. Furthermore, the proposed
building height is 25 feet 4 inches and
therefore, within the maximum 28 feet
total building height regulation for
properties, such as this one, that are
located within the R-1 Zone.
Resolution No. 16-069
Pages
2. An offer of relevant evidence which was improperly excluded at any prior city hearing.
City finding : The petitioners have offered no relevant evidence that was improperly
excluded at any prior City meeting, nor have the petitioners proven that any evidence was
previously excluded by the City Council.
Petition
A. The petitioners (Millers) state that their
computer malfunctioned and was not
allowed to show evidence later in the
meeting when the computer worked.
B. The petitioner (Kucera) states that he
ran out of time in his 10 minute
presentation to show that the proposed
building was violating the 28 ft. height
limit with respect to his property.
Response
A. The petitioners did not provide the
evidence they claim were improperly
excluded at previous city hearings in
this petition, nor have the petitioners
proven that any evidence was
previously excluded by the City
Council. Additionally, although the
media for conveying the Millers'
information may not be in proper order
or in the form they envisioned, the
petitioners were not prevented from
presenting any evidence that they
wished to convey to the Council in
other forms.
B. The petitioner did not provide relevant
evidence that was excluded from any
hearing as building height regulations
were discussed at Planning
Commission and City Council hearings
and the project was found to be within
the allowance as permitted by
Cupertino Municipal Code (CMC
19.28.070 (J)). Furthermore, per the
Flowchart for Agenda Items
(Attachment L), included as part of the
Planning Commission and City Council
agenda cover sheets, applicants are
permitted 10 minutes for their
presentation; accordingly, the petitioner
was given 10 minutes for his appellant
statement, consistent with established
time limits that apply to all appellants.
Resolution No. 16-069
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3. Proof of facts which demonstrate that the City Council proceeded without, or in excess of
its, jurisdiction.
City finding: The petitioners have not provided any proof of facts that demonstrate the
Council proceeded without, or in excess of, its jurisdiction.
Petition
A. The petitioners (Millers) state that City
staff was researching online in real time
during City Council meeting to advise
City Council members regarding
applicable solar ordinances, and has yet
to show how they do or do not apply .
B. The petitioner (Kucera) states that the
facts show that the proposed house is
not harmonious in scale and design with
the neighborhood. He states that the
original homes were 1,100 sq. ft. and 13
ft. high and that the proposed home is
5,140 sq. ft. and 25 1h ft. high. He claims
that this clearly violates the code and
that a jury of peers will agree with these
facts.
Response
A. The City Council responded to and
requested information from the
applicant, the petitioners, Planning
staff, and the City Attorney prior to
rendering their decision which is within
their authority and jurisdiction.
B. Both the Planning Commission and the
City Council considered and discussed
the findings for both the Two-Story and
Minor Residential permit and acted
upon the project accordingly and within
their jurisdiction.
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4. Proof of facts which demonstrate that the City Council failed to provide a fair hearing.
City finding: The petitioners have not provided any proof of facts which demonstrate that
the City Council failed to provide a fair hearing.
Petition
A. The petitioners (Millers) state that the
City Council did not allow them to
present all of their computer data that
supported their appeal.
B. The petitioner (Kucera) states that with
the exception of Mr. Darcy Paul and
Mr. Rod Sinks, the City Council ignored
the fact that the developer maximized
the proposed building size within one
sq. ft. of the allowed square footage.
Response
A. The petitioners were given 10 minutes
for their appellant statement, consistent
with established time limits that apply
to all appellants. Furthermore, the
petitioners were invited to the podium
to respond to questions and provide
additional clarification on multiple
occasions during the hearing. The
petitioners do not provide facts which
demonstrate that the City Council failed
to provide a fair hearing.
B. The petitioner acknowledges that the
project is within the square footage
allowance as set forth in the Cupertino
Municipal Code (CMC 19.28 .070 (B))
and opinions regarding square footage
of homes do not demonstrate that the
City Council failed to provide a fair
hearing.
Resolution No. 16-069
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5. Proof of facts which demonstrate that the City Council abused its discretion by:
a. Not preceding 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.
City finding: The petitioners have not provided any proof of facts that demonstrate the
Council abused its discretion by not preceding in a manner required by law, 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.
Petition
A. The petitioners (Millers) state that
City staff was not 100% sure that
certain solar ordinances applied or
did not apply, and all but one council
member voted based on flawed
advice.
B. The petitioner (Kucera) states that
the City Council is elected by the
citizens of Cupertino to serve the
Cupertino community and is not
supposed to rubber stamp buildings
by millionaire developers with no
voting rights in the City of
Cupertino. He states that sixteen
citizens who vote, signed a petition
that they "do not want" the
proposed project in their
neighborhood and that the Council is
ignoring the concerns of these and
favoring a non-voting developer.
Response
A. The City Council proceeded in a
manner required by law and rendered a
decision supported by findings and
facts including information from
prepared written material and
testimony as brought up at the hearing.
As stated by staff at the public hearing,
there is no solar-related ordinance or
law that applies to this project.
B. The City Council conducted the hearing
m a manner required by law and
rendered a decision based on the
established regulations in the Cupertino
Municipal Code and the findings and
evidence brought forth in written
material and testimony by staff and
members of the public.