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CC 03-02-70 CITY OF CUPERTINO, State of California 1300 Torre Avenue, Cupertino, California Phone: 252-4505 CC-39 MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL HELD MARCH 2, 1970 IN THE COUNCIL CHAMBERS, CITY HALL CUPERTINO, CALIFORNIA The meeting was called to order at 8:00 P.M. by Mayor Dempster who led the salute to the flag. Roll Call Councilmen present: Beaven, Fitzgerald, Noel, Stokes and Mayor Dempster. Also present: City Manager Storm; City Attorney Anderson; City Clerk- Finance Director Ryder; Director of Public Works Yarborough; Director of Planning Sisk; Chief Building Inspector Benevich; Parks and Recreation Director Parham; Assistant Planner Cowan. roll call :,~. Minutes of Previous Heeting Mayor Dempster called for any corrections, additions or omissions to the minutes of February 16, 1970. Councilman Noel commented that under the public hearing for Application l-Z-70 of the Saratoga Foothills Development Corporation he had a com-.. plaint on the manner in which this was presented. He said the minutes were a legal report and in reading through them it was noted that several people had been named as opposing the application. After these objections had been recorded the minutes then showed, "Considerable discussion follow- ed concerning this application." He continued that from there the minutes then reflected Councilman Stoke~ motion for approval. He said it was his belief that each Councilman had stated his reason for voting as he did but that the minutes did not reflect it. He requested that the minutes reflect these positions of the Councilmen on this issue and, particularly, as to why the number of dwelling units were reduced to sixteen per acre. correction of 2/16/70 inutes The Mayor requested that this portion of the minutes be expanded and re- submitted at the next meeting of the City Council. Councilman Stokes said that he had reread the minutes of February 2, 1970 after his requested correction had been made. He said the full sentence in question included a double negative which voided the intent and asked that the original minutes be adjusted excluding "not" that had been in- serted by the correction. am'endment to 2/2/70 minutes Written Communications City Clerk Ryder reported that the following communications had been re- ceived: 1. A letter from Marvin Nathanson relating to zoning and the master plan of the City. page 2 written communications traffic congestion attitude survey donation fo pool table winery renovation offer low income housing Minutes of the City Council March 2, 1970 CC-39 Written Communications cont'd. 2. Results of the bid opening for Mary Avenue extension which he then requested be deferred to its proper place on the agenda. 3. League of Women Voters request of February 23, 1970 that members of the Council attend a meeting relating to the San Jose Metropolitan Airport proposal. 4. Resolution from the Town of Los Gatos opposing any bay fill on the development in the vicinity of Dumbarton Narrow. It was moved by Councilman Noel, seconded by Councilman Stokes and passed unanimously that the written communications be filed. Oral Communications Mr. Martin Jacobsen of Shannon Court, Cupertino made a suggestion that some plan be started for the improvement of the traffic congestion at Stevens Creek Boulevard and Highway 9. The Mayor replied that such plans and studies were now being undertaken by the City staff. Mr. Ron Wright, President of the Cupertino Jaycees, submitted a copy of a recently completed community attitude survey which had been conducted in conjunction with the Cupertino Union School District. Mr. Wright also presented a check for $425 for use by the Cupertino Parks and Recreation Department for the purchase of a pool table to be placed at Sedgwick School for use in the Teen Center being formed there. Mr. Wright also related to the Council that the Jaycees had made a com- mitment to assist in any way possible in the renovation of the winery on the Damico property should the City acquire it. He added that the Jaycees were sincere in this commitment in that they had $2,000 that would be contributed toward this purpose to assist in such rehabilitation. A representative from the League of Women Voters inquired as to what dis- tribution had been made of their request that the Council not reject de- velopments involving the construction of low and middle income housing in Cupertino. The Mayor explained that this particular letter had been re- ceived and read by members of the Council but it always has been the custom for the Council not to state a formal position on such requests through the taking of a vote but to let the record of past and future actions speak for themselves. Councilman Stokes offered that there was a difference between low cost hous- ing and low quality housing and if this particular inquiry stemmed from the recent denial for a condominium on South Blaney that decision was based on not wanting low quality. He added that Cupertino was one of the cities in the County having entered into a rent agreement with the County Housing Authority which working agreement was still in effect. status of Merritt Drive Minutes of the City Council March 2, 1970 cc-39 page 3 Oral Communications cont'd. Mr. Vern R. Schwartz, 20446 Merritt Drive inquired as to the status of Merritt Drive under the proposed Mariani shopping center which recently had been announced. He requested that the Council consider having some street other than Merritt Drive be used as a feeder for this commercial development. The Mayor replied that as yet no application was before the City and if and when one does come that there would be due notice given and public hearings held. At the suggestion of Councilman Noel it was moved by Councilman Stokes, seconded by Councilman Fitzgerald and passed unanimously that a letter of appreciation be sent to the Cupertino Jaycees for their committment and contribution to the City. Report of Plannin~ Commission 1. Application l-V-70 from J. Cyril Johnson Investment Corporation for a Variance to allow 136 units in an apartment project on 8.5 acres presently zoned for 130 units; located south side of Barranca Drive. Approved by Planning Commission Resolution No. 739. p'-,entation Planning Director Sisk presented the application saying that a previous o. I-V-70 rezoning had changed the subject parcel from Light Industrial to an R3- 2.2 apartment facility. The proposed development covers an overall 8.5 acres for which the zoning allows 136 dwelling units. He said that at the time the Tentative Map had been processed there had been a required dedication to the Flood Control District of 37,000 square feet (45' wide next to Stevens Creek with an additional 15' easement adjacent to the dedication for access to the Flood Control facility). The loss of the six dwelling units caused by this dedication, he said, leaves l30 permit- ted which the request for Variance seeks to have increased to 136. number of units requirement for approval Councilman Noel asked if the applicant knew of these Flood Control re- quirements when the Tentative Map was considered and, if so, why did he not then request the 136 units. Mr. Sisk replied in the affirmative and that the 136 units had been requested but the zoning had reduced it to 130. Mr. James Knittel of the J. Cyril Johnson Investment Corporation stated that the discussion was for the same amount of land as that portion which had to be dedicated; would not be built up and would remain as open space. Councilman Stokes noted that Planning Commissioner Frolich had been in favor of granting this Variance when it was before the Planning Commission and inquired if Mr. Frolich would be willing to give the reasons why he had taken that position. Mr. Frolich then said the ordinance having to do with variances was very explicit on its requirements for approval and he felt that the applicant had met these conditions in that a hardship did exist. He also said that the number of people who would be residing on this parcel would not have changed if the dedications had not been made. page 4 units permitted I-V-70 approved 237-HC-66 approved 448-HC-70 approved nasonry <all Minutes of the City Council March 2, 1970 CC-39 Councilman Stokes then questioned as to how the calculation for the dwell- ing units per acre had been made. Mr. Sisk replied that the 8.5 acres as calculated by the applicant's engineer or architect had not included a portion of Homestead Road which could have been included in the calcula- tion of the gross property. When it had been submitted to the Planning Commission he had caused a recalculation to be made which indicated a total of 142 dwelling units permitted. The overall reduction caused by the Flood Control dedication resulted only in the loss of 6 dwelling units from the 142 figure. He said it was the subsequent zoning which reduced this number to 130. Councilman Fitzgerald said that a variance could be granted only for hard- ship and that it was his feeling the taking of property by the Flood Control constituted a hardship. It was his belief, he said, that some consideration should be given in such circumstances. He then made a motion which was seconded by Councilman Beaven that the Variance be granted per the Planning Commission Resolution 739. The roll call vote was as follows: Ayes: Councilmen Beaven, Fitzgerald, Mayor Dempster Noes: Councilmen Noel, Stokes Absent: None Report of Architectural and Site Approval Committee 1. Application 237-HC-66 from W. A. Sutton request- ing review of the existing Batting Range; locat- ed at 22202 Homestead Road. It was moved by Councilman Stokes, seconded by Councilman Fitzgerald and passed unanimously that this Application 237-HC-66 be approved subject to the conditions imposed by the Architectural and Site Approval Committee. 2. Application 448-HC-70 from John A. Sobrato request- ing approval of the landscaping for Lot 17, West Valley Industrial Park. It was moved by Councilman Stokes, seconded by Councilman Fitzgerald and passed unanimously that Application 448-HC-70 be approved subject to the conditions imposed by the Architectural and Site Approval Committee. 3. Application 454-HC-70 from Warren Gilbert & Associates, AlA, requesting approval to construct a l40 unit Town- house Complex off Foothill Boulevard, north of Stevens Creek Boulevard. When it had been determined by the Mayor that the applicant was not in at- tendance it was moved by Councilman Stokes, seconded by Councilman Noel and passed unanimously that this item be deferred to later in the meeting. Chief Building Inspector Benevich requested that the Council refer to page 2 of the H Control Minutes where it indicated that Mr. George Bonacich, representing homeowners on Scofield Drive, had expressed concern over the varying heights of the masonry wall constructed by the commercial developer along the abutting property line. He said that these varying heights were caused by differences in grade levels. Minutes of the City Council March 2, 1970 Mr. Benevich said that the Standard Conditions of the Architectural and Site Approval Committee should be changed to conform to the Standard Conditions of the Planning Commission to have the height of such walls measured from the minimum side of the wall. When Mr. Sisk was asked if this particular condition had been attached to the application by the Planning Commission he said that no such action was required as the zoning for the parcel had preceded the formulating of the conditions, therefore, no conditions were attached for the develop- er of this property. Mrs. Pauline Woodruff, one of the owners of the commercial property, said that no regulation had been in effect at the time of the zoning (1958) or for when the other developments had been undertaken but that walls had been constructed as a prerequisite for the obtaining of building permits. She conceded that some difficulties had arisen but felt that the responsi- bility was that of the homeowners and not the commercial developers so long as a six-foot masonry wall existed. She said that due to the slope of the property and the grading was part homeowner's in some instances, a fourteen-foot fence or wall would be required at one end. She also said that existing fences of homeowners had been allowed to remain except two which had been constructed on the commercially zoned property. Councilman Beaven said that he had inspected this area and found that the fence posts while of good sound construction had been undermined by ex- cavation. He said that while maliciousness on the part of the developer was not indicated a problem had been created for the homeowners which was not of their asking. Mr. George Bonacich of 20745 Scofield Drive relayed that the previous in- quiries of the homeowners resulted in Mr. Hedley of 20739 Scofield and Mr. Hoyt of 20725 Scofield feel;ag it unnecessary at that time to under~ take the extra cost to add the additional height to the masonry wall then being constructed as their wooden fences had been quite adequate. This was not now the case because there had been excavation damage to these fences and it was doubtful if the original condition could be restored. Mayor Dempster inquired of the City Attorney as to the City's position with regard. to the rights of the property owners and the developer. Mr. Anderson replied that the property owners had a right of lateral support but that anything in excess of this was a matter of planning and site control. Mayor Dempster suggested that the homeowners and the commercial developers have a joint meeting using the City Hall facilities if necessary to see if they could not resolve this matter among themselves before forcing theCoun- cil to take action which might not be acceptable to either side. Mrs. Woodruff said this was agreeable to her and at her suggestion the Mayor CC-39 page 5 conditions not improved owner's statements property owners I position City's position Mayor's suggestion page 6 amend condiUon 9 nuisance abated Ord. 220(l) enacted Minutes of the City Council March 2, 1970 CC-39 designated the Chief Building Inspector to act as the Chairman for such meeting. Mr. Bonacich then offered his objection to the creation of a space between the wooden fences and the masonry wall, to which the Mayor replied the same situation existed allover the City and that the City was powerless to take corrective action. Councilman Stokes moved, Councilman Noel seconded and it was passed unani- mously that action be initiated to rewrite Condition 9 of the Twelve Standard Conditions of the Architectural and Site Approval Committee which Conditions appear as Exhibit "A" of Ordinance No. 306. The rewriting of this Condition is to have the measurement taken from the minimum side of the wall. Parks and Recreation Committee There had been no meeting of the Parks and Recreation Committee and no minutes were submitted. Public Hearings l. Conditions imposed on Use Permit 8-U-69 granted to Mrs. Stella Kester for keeping horses. Planning Director Sisk reported to the Council that the removal of the horses on this property had abated the nuisance but there were other con- ditions which would require this particular Use Permit to be brought be- fore the Planning Commission. It was moved by Councilman Stokes, seconded by Councilman Noel and passed unanimously that this matter be referred to the Planning Commission. Ordinances 1. Second reading of Ordinance No. 220(1) amending Ordinance No. 220 and regulating Public Buildings (BA), Quasi-Public Buildings (BQ) and Transporta- tion (T) Zones. It was moved by Councilman Stokes, Seconded by Councilman Noel and passed unanimously that Ordinance 220(1) be read by title only and that such reading constitute the second reading. It was moved by Councilman Stokes, seconded by Councilman Noel that Ordi- nance 220(l) be enacted. Ayes: Councilmen Beaven, Fitzgerald, Noel, Stokes, Mayor Dempster Noes: None Absent: None Resolutions 1. Resolution No. 1950, approving payroll for period ending February 24, 1970. Minutes of the City Council March 2, 1970 It was moved by Councilman Noel, seconded by Councilman Beaven that Re- solution No. 1950 be adopted. Ayes: Councilmen Beaven, Fitzgerald, Noel, Stokes, Mayor Dempster Noes: None Absent: None 2. Resolution No. 1951, approving miscellaneous and general expenditures. It was moved by Councilman Beaven, seconded by Councilman Stokes that Resolution No. 1951 be adopted. Ayes: Councilmen Beaven, Fitzgerald, Noel, Stokes, Mayor Dempster Noes: None Absent: None 3. Resolution No. 1952, designating precincts and polling places and appointing members of pre- cinct boards for General Municipal Election to be held on Tuesday, April 14, 1970. It was moved by Councilman Noel, seconded by Councilman Stokes that Resolution No. 1952 be adopted. Ayes: Councilmen Beaven, Fitzgerald, Noel, Stokes, Mayor Dempster Noes: None Absent: None 4. Resolution No. 1953, determining the wage scale for construction of the Cupertino Library. It was moved by Councilman Stokes, seconded by Councilman Noel that Resolution No. 1953 be adopted. Ayes: Councilmen Beaven, Fitzgerald, Noel, Stokes, Mayor Dempster Noes: None Absent: None A recess was called by Mayor Dempster at 9:02 P.M. The meeting was reconvened at 9:l2 P.M. Unfinished Business A. Application l-TM-70 from Saratoga Foothills Development Corporation for a Tentative Map to divide 37.45 acres into nine parcels; located southwest corner of Homestead Road and Blaney Avenue. Continued from meeting of February l6, 1970. The Mayor recognized the applicant, Mr. Jerome J. Lohr of the Saratoga Foothills Development Corporation, who addressed the Council. He said that after having had a chance to review the results of the Council meeting of two weeks ago it had'been felt that the presentation was somewhat different before the Council than the one that had been given CC-39 page 7 Res. 1950 adopted Res. 1951 adopted Res. 1952 adopted Res. 1953 adopted l-TM-70 applicant request page 8 applicant request (cont'd.) City Attorney ruling reopening public hearing City Attorney ruling powers of zoning procedural objection Minutes of the City Council March 2, 1970 CC-39 to the Planning Commission. He said that the Planning Commission presenta- tion had taken some forty-five minutes with the ensuing discussion lasting between two to two and one-half hours. He said the presentation to the City Council had purposely been shortened so as to take up lesser time of that body. He thought that in light of the results the lesser presentation must not have been as effective. Mr. Lohr offered that there were a number of points relative to density, zoning an~ particularl~ the merits of their project that after reevaluating the possible alternate proposals that they could make, the City Council was being requested to continue the action on the Tentative Map and the subsequent zoning ordinance. This continuance would give the developer the chance, if the Council desired, to have the public hearing reopened which would permit them to present in more depth their feelings about this particular project. Mayor Dempster inquired of the City Attorney if the public hearing could be reopened in view of the status of the applications and, if so, what was the procedure. City Attorney Anderson said the rule laid down by the League of Cities is that where a matter once ruled upon leaves questions of law which are un- resolved or questions of uncertainty which are unresolved the Council may for good cause and at its discretion reopen the public hearing and re- consider the matter. He cautioned, however, that in the interest of safety for the City and the applicant a Notice of Public Hearing should be published if the Council votes to reconsider. The Mayor then raised one other question. He said that there had been sane discussion at the Council level that the application had been pre- sented by an applicant and not the property owner. There existed on the property Commercial Zoning as well as Residential, both Multiple and Single-family. He asked if the application was approved but the request- ed density was not - did that negate the Commercial and Multiple Zoning? City Attorney Anderson replied that there are two separate and individual powers to zone. One, an act initiated by the landowner which is the pre- sent proceedings under which the Council is acting and two, the power of the Council itself to initiate a rezoning in the public interest. He said that here, under the current case, both actions are present which leads to a ticklish legal situation. He said he would not want to take a strong stand either way as to what a possible decision by a judge might be. At this point Councilman Stokes said it was his understanding the con- tinuance was for the purpose of allowing the applicant time in which to decide whether or not he wished to accept the zoning. It was not for the purpose of giving him the choice of whether or not he wanted the Council to rehear his application. He said in his six years on the Council he didn't think that this had ever been done before; that an application has been voted on with the applicant coming back and asking to have a revote. He said he was not opposed to hearing it again if it came back through regular channels. This has been done before when, after denial, there had been new material to present. He said he would consider it highly irregular if the Council did not follow the Minutes of the City Council March 2, 1970 same procedure for this application. Councilman Fitzgerald asked if the applicant's presence was due to the in- ability to live with the 16 dwelling units per acre or if there was new material to present. Mr. Lohr replied that there was not new material but material to be pre- sented in greater depth. He continued with the point that their propos- al was based on 19 units per acre with the added units allowing them to reduce the per unit cost and in several ways provide a much better project. He said they realized this was a greater density than the l6 required by the City but one of the things they failed to point out in depth was that this particular area was the only area in Cupertino in which the general plan allows a greater density than in other areas. Their project would increase the density in this area to only 7.3 units per acre which is significantly below the 10.2 units per acre shown on the master plan. He said that they had not had as many questions from the Council as they had from the Planning Commission wherein the latter had brought out some of these facts. City Attorney Anderson read Section 4D of the League of Cities on re- consideration which follows: 4 D Reconsideration "Any member who voted with the majority may move a reconsi- deration of any action at the same (or having entered on the minutes for the next succeeding) meeting; provided no legal rights have intervened to create an estoppel. A motion to reconsider shall require the same number of votes as is required to adopt an ordinance or a resolu- tion. After a motion for reconsideration has once been acted on no other motion for reconsideration thereof shall be made without unanimous consent." Councilman Fitzgerald said he had voted with the majority at the last meeting but now feels it would have been better either to deny or ap- prove the application as presented. He said he would have no objection to reopening the public hearing if it was so published and moved to grant the request to reopen the public hearing with publications so the opponents would be advised of it. Councilman Beaven seconded the motion but commented that he saw no point of sending it back down to the Planning Commission level as the Planning Commission already had gone on record in the minutes by ap- proving this project by a vote of 4 - O. He said if there is more in- formation which would shed more light on this project he would like to be availed of it as he felt the previous presentation was complete- ly inadequate and was favorable to giving the application a rehearing. Councilman Stokes commented that the applicant had had his day in court, a public hearing had been published and heard and he had had his opportunity. He said that he thought that if the information was CC-39 page 9 question of density rule on r econs ider a ,- tion motion to reopen second to motion page 10 councilman's comments comments (cont'd.) comments (cont'd.) ruling by chair substitute motion approval to refile l-TM-70 to be refiled Minutes of the City Council March 2, 1970 CC-39 so important it should have been presented at the public hearing. He reiterated his feelings that the entire procedure was out of order, that he would abstain on the vote and would not participate in any further discussion on this project now or any time in the future un- less it goes back through the proper procedures. Councilman Noel also stated he felt the proceedings were improper; that the applicant was coming now and asking for something without those people being present who had been here before. He said if a Notice of Public Hearing is published and the application goes back and comes through normal channels that was a different situation. It is necessary to give the people their rights at the Planning Com- mission level as well as at the Council level. When the Mayor asked the applicant if he had an objection to letting it go back to the Planning Commission Councilman Stokes interjected the comment that he did not think it was the applicant's decision whether he objects or not but that the decision was that of the Council's. He said the vote at the previous meeting was for the ap- plicant to return and tell the Council whether he wanted that zoning but he was here now telling them what he would like to do. He con- tinued by saying that the applicant had been asked but one question and that is all he should have answered. He said all of the state- ments by the applicant were out of order as they were arguments for his application given without benefit of a public hearing. The pub- lic hearing on this was closed and a vote had been taken. Councilman Fitzgerald said he thought the Council was out of order again as there was a motion on the floor which should be disposed of before proceeding further. Mayor Dempster replied to this last remark saying that in view of this particular situation some very strong statements had been made and inquired if the maker of the motion might not want to retract the motion. He added that the Chair can invoke any rules it desires, which statement was confirmed by the City Attorney, with the exception of when it is overruled by unanimous vote of the other four Councilmen. Councilman Fitzgerald requested permissio~with the approval of the second, to withdraw his motion and substitute that the hearing be re- opened and sent back to the Planning Commission and publicized at the Planning Commission level. Mayor Dempster explained his understanding of the motion that the ap- plicant be allowed to refile at the Planning Commission level and that the fee be waived. Councilman Noel clarified the question that the matter was to go through normal channels of a duly noticed public hearing. The Mayor advised the City Clerk that Councilman Beaven had seconded the motion. The roll call vote is as follows: Ayes: Councilmen Beaven, Fitzgerald, Noel, Mayor Dempster Noes: None Abstain: Councilman Stokes . Minutes of the City Council March 2, 1970 Unfinished Business cont'd. B. First reading of Ordinance No. 455, rezoning from Multiple Residential (R3-2.2) ,Single-family Re- sidential (Rl-7.5) and General Commercial (CG) Zone to Multiple Residential Cluster 2200 sq. ft. per dwelling unit (R3-2.2) Zone on approximately 38.49 acres located southwest corner of Homestead Road and Blaney Avenue. The ordinance as listed on the agenda was not read due to the matter be- ing returned to the Planning Commission. C. Common Boundary Agreements with neighboring Cities. CC-39 page 11 ord. not read Planning Director Sisk reviewed the history of why these Common Boundary explanation Agreements were being drawn among the cities in the County and advised the Council of those particular facts relating to the current presenta- tion for a common boundary between the City of Cupertino and the City of Los Altos Hills. Public Works Director Yarborough previously distributed the material that had been prepared for presentation at the meeting of the Local Agency Formation Commission scheduled for March 4, 1970. The material and maps were for the purpose of substantiating Cupertino's claim for the common boundary to be set along township lines rather than the splitting of the presentation Permanente properties as had been proposed by Los Altos Hills. The first map described the steepness of the slopes on the hillside which showed that the majority of the area consisted of slopes 50 percent or more in steepness. The second map described the gravity drainage down into Cupertino and portrayed the fact that services could not be provided by Los Altos Hills. The third map was a topographical map; the fourth was a compilation of common boundaries of the neighboring cities to Cupertino. Mr. Yarborough said that the Cities of Saratoga, San Jose, Palo Alto, Los Altos, Sunnyvale and Santa Clara all were fairly firm as they related to the Cupertino sphere of influence. He went on to report that the pre- sentation to be made to the Local Agency Formation Commission was one of a cooperative effort by the City Manager's office, the Department of Public Works and the Department of Planning and had entailed many hours of research. Councilman Noel complimented the staff for the manner in which this in- formation had been put together and presented. Councilman Stokes moved and Councilman Noel seconded and it was passed unanimously that the City Council concur in and adopt Planning Commission Resolutions No. 741 and 742 and instructed that copies be forwarded to the Local Agency Formation Commission for its meeting of March 4, 1970. New Business A. Award of Bids for Phase I of Mary Avenue Extension Project. resolutions adopted page l2 award of bid library plans carnivals authorized Minutes of the City Council March 2, 1970 CC-39 The Director of Public Works presented the results of the bid opening which took place earlier in the day for the construction of Phase I of the Mary Avenue Extension Project. On his recommendation it was moved by Councilman Stokes, seconded by Councilman Fitzgerald and passed unanimousl~with Councilman Noel being absent, that the contract be awarded to the firm of Sweeney & Sons for their low bid of $53,080.01. Report of Officers A. City Treasurer There was no further report from the City Treasurer. B. City Manager The City Manager reported that he had had a conversation "ith the Architect for the Library and had been advised that the difficulty recently had been between the State Fire Marshal and the County Fire Marshal on the stair- well. This question had been resolved, the plans revised and were to have been delivered to the State offices on the following day. Mr. Storm was of the opinion that the plans should be back for approval by the Council at its March l6 meeting. He said that other than for the Board of Super- visors all other items on the Library plans had been approved by both State and County personnel. Mr. Storm requested and received unanimous approval on the motion of Councilman Fitzg~rald and the second of Councilman Beaven to honor the request of the Cupertino Little League to hold a carnival between July 9 and July l2. The Little League request for denial of all other carni- vals sixty days before and thirty days after their carnival was denied by the Council as a precedent already had been established to the con- trary. Also, as requested by the City Manager, the Council unanimously approved on a motion by Councilman Stokes and second of Councilman Fitzgerald the Cupertino Jaycees' request for a carnival to be held between the dates of March l8 and March 22. In both this instance and the one for the Little League the applicable business license fee was waived. Mr. Storm also reported briefly on his meeting with other City repre- mass trans t sentatives in the County at the request of the City of pan Jose to con- sider a proposal for solving the problem of mass transit in the area. He reported that the proposal had not been too well,r~ceived by the other cities. overtime payments City Manager Storm also reported on the letter from the Vice President of Operation HOPE, a De Anza Evening College organization, stating their appreciation for declaring the first week in March as Anti- Pollution Week. Mr. Storm then reminded the Council that at one time they had approved in concept the payment of time and a half for emergency overtime by Street Department employees when they are required to be called out after normal working hours. He requested that the Council approve Minutes of the City Council March 2, 1970 this officially but was asked by the Mayor to postpone the matter for two weeks. C. City Attorney City Attorney Anderson reported that the material necessary to answer the suit against the City for the Annexation "Alcalde 69-6" was ready and that he would inform the Council when further action was taken. Mr. Anderson reported that the resolution necesary for completing Application 9-V-69 had been prepared and would be presented to the Cou'lcH at the ílext meeting. In relation to this he explained the dif- fen'nce between the requested deed restriction and the restriction on the deed proceas which he felt was what had been indicated by the pre- vious motion approvIng the variance. Mr. Anderson said also that he had researched the question of whether or not a realtor having his office outside the City limits but doing business within the City was subject to a City business license or- dinance. He said that the location of the office was not pertinent; that th.. displaying of a sign is indicative that the person was doing businef:s within the City and that the applicable fee was in order. !h" que,'tion had originated with the appeal by a Mr. Lew Williams of Sunnyvale who had paid the business license fee under protest as the fee waa applicdbJ.e to 1969 and since Mr. Williams was no longer doing businesR within the City no further action needed to be taken. Councilman Fitzgerald inquired whether or not this was similar to a case a few years ago which had been lost and whether or not this same ruling could be applied to attorneys who when appealing before the City Co.mcil actually were practicing. Mr. Anderson said that in the first instance he had no recollection of business licenses being a factor and in the second instance if the question arose and the Council wished him to research the matter for a.n opinion he would be happy to do so. D. Director of Public Works Mr. Yarborough had no further report to make. E. Director of Planning Mr. Sisk had no further report to make. F. Chief Building Inspector Chief Building Inspector Benevich said that he had received a request to place an applicant (Photomat Corporation) on the Architectural and Site Approval Committee agenda and requested some indication from the Council as to their feelings on the propriety of the application. He then distributed pictures of this drive-in facility to the Council. The Mayor informed him that everyone was, or should be, aware of the prior opinions of the Council and how they voted on similar applica- CC-39 page 13 status of lawsuit 9-V-69 resolution business license ruling propriety of application page l4 youth conference warrants authorized 454-HC-70 continued Minutes of the City Council March 2, 1970 CC-3 tions but that if the application was submitted the Committee would have no choice but to place it on the agenda and hear it. G. Director of Parks and Recreation Director of Parks and Recreation Parham distributed to the Council some pictures and literature relative to the forthcoming conference having to do with Dialogue between Youth and Adults. H. City Clerk-Finance Director City Clerk Ryder advised the Council that he had that afternoof' ""',ived two invoices which had been too late for being placed on the Gell~ral Warrant Resolution. The first one was from the Cupertino Nursery which if paid prior to the next meeting of the Council could result in a sub- stantial discount being taken and he requested permission to draw and issue an appropriate warrant. It was moved by Councilman Noel, seconded by Councilman Beaven and approved unanimously that the subject warrant be drawn and issued to the Cupertino Nursery as requested. Mr. Ryder also informed the Council that he had received a statement from City Attorney Anderson for fees and expenses incurred to date on the law- suit of Murdock versus the City of Cupertino and requested permission to draw a warrant per the statement submitted. It was moved by Councilman Stokes, seconded by Councilman Noel and passed unanimously that the City Clerk-Finance Director be authorized to draw and issue the warrant as requested. Prior to adjournment Councilman Stokes moved and Councilman Beaven second- ed which was passed unanimously that the applicant of 454-HC-70 be inform- ed that his application would be continued to the agenda for March 16, 1970 and that his presence is requested. With the unanimous consent of the Council the Mayor adjourned the meeting at 10:05 P.M. ATTEST: ~~;¥