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CC 11-09-61 505 10321 SO. SARATOGA-SUNNYVALE ROAD At 2-1.1-505 C I T Y 0 F CUP E R TIN 0 CUPERTINO, CALIFORNIA MINUTES OF THE ADJOURNED REGULAR MEETING OF THE CITY COUNCIL - November 9, 1961 PIA CE : TIME: 10321 So. Saratoga-Slli~nyva1e Road 7:30 P.M, ROLL CALL: Councilmen Present: Councilmen Absent: Staff Present: Benetti, Jewett, Pelosi, Saich Lazaneo City Manager, City Attorney, City Engineer, City Clerk I Set date for study seSSlon on signalization of Homestead and Stelling. City Manager to contact Sunnyvale and get information regarding traffic count, etc, The City Manager reported that the information was not yet avallable from the City of Sunnyvale. II Set date for study session on Blaney Avenue grade separation, Moved by Councilman Pelosi that the date ce set for a study session on the Blaney Avenue grade separation on November 20, 1961. Seconded by Councilman Jewett. AYES: Councilmen: NAYS: Councilmen: ABSENT: Councilmen: MOTION CARRIED: Jewett, Pelosi, Saich, Benetti None Lazaneo 4-0 III Study session on MacKay & Somps application for rezoning from R-2-H and R-3-H to C-l-H. Moved by Councilman Jewett that the City Council reopen the hearing on the MacKay & Somps application, Sec,mded by Councilman Saich, AYES: Councilmen: NAYS: Councilmen: ABSENT: Councilmen: MOTION CARRIED: Jewett, Pelosi,Saich, Benetti None Lazaneo )+-0 Councilman Pelosi asked if the protestants had been notified. The people who had previously objected to this application had not been notified that there would be a hearing this date. In response to a question, the City Attorney said it is posslble to reopen a hearing, but it is not usually considered good practlce due to the requirement that both sides and all interested parties be given a chance to state their opinion, He said further- more that there would be no point in reopening a'hearing if only to consider the same maps and same data again. He said he would not advise the reopening of a hearing for the purpose of considering new data and new material unless it was a duly noticed hearing at which all interested parties could be heard, Moved by Councilman Jewett tha.t the motion to reopen the hear- ing be rescinded. Seconded by Councilman Saich. AYES: Councilmen: NAYS: Councilmen: ABSENT: Councilmen: MOTION CARRIED: Jewett, Pelosi, Saich, Benetti None Lazaneo L,l_O Councilman Jewett asked a question as follows: If the Council deems it advisable that the application should come under a PO-H zoning district and therefore deems it advisable that the applica- tion go back to the Plannlng Commission can the Council ask the applicant if he would be in favor of changing or amending his application accordingly? -I· 506 r,....... ¡.- C'.~~ The City Attorfír--y said !~h2:. the C:nmcE could def1nìtely act to allovl the applicant to amend his application, whereupon J'ohn Racanelli, on behalf of the applicant, said tr<at they would be willing to change the applicatic~ to request for PO-H, He said that they have no reservations in that regard other than the time element. Ee said that the appllccmt is on !ecord as to the restrlctlons proposei on the property. He asked specifically what a change o~ the application would iTI$an in terms of time. :¡~ r.'¡;;; He was advised that the ordinary hearing process would mean tW8 or three months. CouncilD~n Pelosi said the issue is whether or not the City Council feels the property is C-I-H, s~ggesting that the land in questlon may not belong in C-I-H, If in favor of PO-H, the applicatlon could very well be sent back to the Planning Commission. Councilman Saieh sald that the application before them is one for C-I-H and if the Council does not want C-l-H in that area, they have to tear it down. The City co~ld draft a PO-H ordinance, he said, giving the applicant the opportunity to resubmit in that way, The Vice-î1ayor, preslding, reviewed the fact that the application was deadloc]red by the 2·,2 vote east on November 6. He said that he would still li]ce to look into the PO-H possibilities, saying that he had not changed his opinion and apparently Councilman Jewett has not changed his stand either, Councilman Jewett said that reference has been ~Îde to a PO-H zoning and he feels strongly that this application would be an asset to the City. If the Council were to entertain the idea of PO-H and the application made PO-H, how would they proceel. The City Attorney said that the City could establish f()·"H by an urgency ordinance insofar as the County PO-H regulatiúns are concerned, Any "new" ordinance such as the ordinance presently before the Planning Commission which differs in its substantive nature must go through the regular hearings for land use ordinance. He emphasized that the Cow,ty ordinance could be adopted as an urgency measure but not any other ordinance and specifically not the ordlnance now published for hearings before the Planning Commission. The proposed 002(h) ordinance could not be adopted as an urgency ordinance. Councilman Pelosi remi;,ded the Council that the City has already turned dO~1l1 (tabled) 350 acres because of the lac]( of a PO-H ordinanc The Vice-Mayor, Mr. Benetti, said that the Council needs to make a decision by NO'Jember 20th. George Somps, one of the applicants, asked how long it would take for the PO-H ordinance to be adopted and put into effect. ThG City Attorney said that the normal course of events would take about three months to which Mr. Somps thought that was too long. The City Attorney ¡"aid that an urgency ordinance could be put into effect in about one month, by holding one hearing at the Plannin~; Commission level and one hearing and reading combined at the City Councll level. The second reading is not required for e.n u.rgency ordinance, é'.nd in addition t'1e ordinance is effective imr'ledia'cely with no 30-day referendum pe::'iod necessary. Councilman Pelosi said tll3.t the discu,ssion begins to sOlmd as if the application is as good as grant8d if only the PO-H ordinance can be put into effGct. He said that the éìpplicat:l.On must still be heard, after the passage of a FJ-H crdir"ance 2.nd tl,at tÏ'1e mere en- actment of the nec&ssary ol'c,inance does not of j.tseJt approve the application. Vice-Mayor Benetti as::ed t.hEo CG1¡;,cil if they ·,¡ished to review the application at this tlme. Cur<census of opinion was "no". Councilman Jewett as]c8d for a copy of the CO\.E1ty ordinance containing the PO-H regulatlons. - 2· 507 The Vice-Mayor said that it has been established that the applicant wants the professional use and considering PO-H at this time is simply looking for a way out of the dilema, He said the presentation has been made on the grounds that it is not a commercial use, but is intended for a professional use. The appli- cant is hampered in this respect by the lack of a PO-H ordinance, and he has concluded that a C-l-H application is the only avenue by which he could operate, Mr. Benetti agreed that there was no way by which the City can limit the uses in a C-I-H zone, but at the same time there is no way for the applicant to apply except in terms of C-l-H -- at least in the recent past when the applicant submitted his papers. With reference to a statement by the applicant, the City Attorney said that deed restrictions might answer the problem but that this is not in the sphere of City government; this is a matter between the buyer and the seller. The City must concern itself with the public interest and cannot be involved in deed restrictions. As to the private contract between the buyer and seller, Mr. Anderson said that it has never been done as far as he can discover and he advlsed the City to stay away from this phase of the problem and grant or deny the application on the basis of the material already before the Council rather than some new contract ,¡hich might be devised by the applicant, He concluded however, that the applicant can amend his own application. The Vice-Mayor summarized the proceedings thus far by saying that the application can either be sent back to the Planning Commission or tabled by the City Council, Councilman Jewett said that the phrase "good faith" has been used rather loosely in the past and that there have been instances wherein the City Council toolc action relying on the representation of applicants which in fact never materialized, In this instance, the applicants have submitted a letter of intent on which the City may be able to rely, It bothers him he said, to keep applicants waiting four, five or six months while the City institutes the necessary mechanics, He said it behooves the City to aid the developers within the limits of the law and said he believes that public opinion is in favor of the application, and therefore the applicant should be encouraged to amend his application, requesting PO-H zoning as soon as available, The City Attorney said that the ordinance procedure, i,e., whether or not the City adopts urgency ordinance or the standard ordinance, is not a matter for the applicant to discuss but is a matter for the City Council to decide. As far as the application is concerned the applicant is definitely entitled to amend it as he sees fit, Councilman Jewett aslced if the City could pass an urgency ordinance on November 20th. The City Attorney answered that the Council could adopt the County professional zoning ordinæce on an urgency basis but no other, also explaining that even this procedure would require one hearing before the Planning Commission. CO'.:;'):.; llman Pelosi said that he believes the applicants have cel'cainly received due process and that no unnecessary delay has occurred, He said he thinks the applicants themselves will admit that they have been treated properly and fairly, He asked the City Attorney what creates an urgency ordinance? ¡Uth r~gèl.'d to public opinion he said that it would depend on which group of people or which individual was aslced. Certain people in the City are opposed to the application and have voiced objections at the hearings, The City Attornqy answered that the nature of the urgency must be stated in the ol~inance itself, The most common cause of urgency involves the public health, safety, welfare, etc. In this case he said, loss of the land or loss of value vlould have to be demonstra ted. Councilman Saich said that the application appeared to be a 1:"281 est"-a te trans?ctian, rec.:-:-!,lli.'1.~~ tha t R~·2 ê.Ed TI~, 3 W8}"e g;rR.:,trd (;1". -'~ . 508 ... -- , , ~ the same plece orp'.~''")p~rtJ7'' l'1(~'t J..vnh a.t..!,;J <I. - œi1 Councilman Pelosi said that he never recalled taking a position that the applicant lÜll Get rezoning before tl"le r.ecessary ordinance is adopted or before the hearing is held, The Vice-Mayor said, to clar'ify his position, that the dis- cussion does not necessarily mean the appl:!.cant \/ill get PO-H. That remains to be seen, but the applicant does want one thing which he can't get unless he asles for something else. Councilman Pelosi reviewed the Planning Con~ission Resolution N0. 70 which contains the de,Üal by a 5-0 vote of the Ccm:nission on the present application. He referred to the map indicating the sur- rounding neighborhood and reiterated that f.r the application is a good one it should be good for the entire property, not half. Councilman Saich said that it is up to the Council to act on the application by granting or denying the C-l-H. Councilman Jewett said he is not in favor 02~ C-I-H on this parcel, but that he does feel that the proposed building is as good if not better buffering than R-3··H would be. He said he will not go for,C-l-H zoning beyond the existing masonry wall at the west end of the Allario Shopping Center, He repeated that PO-H ~s just as good or better than R-3-H from the community standpoint. Councilman Saich said it is up to th~ applicant if that is the case. Councilman Pelosi suggested it be submitted to the C01IDCil cn November 20, In response to a question from Councilman Jewett, the City Attorney said that the Council can permit an amendment. Moved by Councilman Jewett that the applicant be allowed to amend his application prior to a certain date, the application to be held at the Planning Commission level until an ordinance is passed providing regulations for PO-H district. The motion died for lacle of a secord, The City Attorney sald that if the applicant can prove up a. case for another zone, it is a remedy to which he would be en- titled within the present hearing structure, not new matter or data that would require the reopening of a hearing with all parties en- titled to sçeak, The Vice-Mayor said that this is a study session only on this subject, and that the application should be rescheduled for November 20th, The City Attorney said that this is an adjourned regular meet- ing and that actlon can be taken. Councilman Pelosi asked the City Engineer to explain the status of the north-south road planned at the west end of the sub- ject property, The Vice-11ayor said that the applicant wj,ll be required to meet the terms of the ordinance and that it would be unnecesûary to discuss the road structure at this time. The City Engineer stCt ted that the subdivision ordinance calls for a 60 road, dedicated 8 nd impro'ved. \'Ihen the road is placed along a property line, both owners nmst imprQve Qnd dedicate 30', except that the first OtE1er dev<;òloping m'J.st install a 40' half street, since it is unli!Œly that both propel'tics l'Iill develop simultaneously, Councilman Pelosi :said tha':~ the road question has never been answered, rlr, Benetti responded that the applicant is required to abide by City ordinances. ,J! 509 The City Attorney mentIoned the Lyddon, Swanson, Allario and Cross Roads Shopping Center developments, noting that the dedication and improvement normally go all the way around, The City Engineer stated that a half street will have to be put in at least in front of the development. The Vice-Mayor said that the requirements ln this case will be the same as those in the past. Councilman Pelosi asked for a complete report at the next meeting. Mr, Racanelli asked the Council what he has to do now, The Vice-Mayor advised that at the next meeting, November 20, motIons will be tried with passage or denial resulting, Possibly motions to amend the application will be tried or some other decision, He said he could not prophecy; that the hearing itself would tell, Moved by Councilman Pelosi that item V on the agenda be con- sidered next, Seconded by Councilman Saich. AYES: Councilmen: NAYS: Councilmen: ABSENT: Councilmen: MOTION CARRIED: Jewett, Pelosi, Saich, Benetti None Lazaneo Lf-O IV Annexation of Stevens Creek #11 (Glasson, Golf Course, etc,) The Vice-Mayor asked Mr. Banks to step to the podium and brief the Council on the position of his clients. Mr. Banks introduced Mr, and Mrs. Glasson, Al Bracher, Bruce Hubback, and Newell Hughey, attorney for Hubbaclc and Bracher. He began by saying that he had no more to say and it was his opinion they were invited to hear from the City Council. The Vice-Mayor said that he is interested in knowing why Banles, on behalf of his clients, is asking to be de-annexed, add- ing that his clients might like to substantiate their views. Mr. Banks said that his unequivocal position is that they want de-annexation for the Hubback-Bracher-Glasson property, On the basis first, that they were annexed against the wishes of Clark Glasson, and secondly that the disadvantages of being in Cupertino out-weigh the advantages, Mainly, he said, he means the tax possibilities. They feel that a lawsuit is the only practical way to bring about the de-annexation, since the cost of following the statutory method is prohibitive cost-wise. Since the only alternative consists of a lawsuit, he thought perhaps the City Council intended to instruct the City Attorney in the conduct of the case, whether friendly or not, He said he has no intention of having the City Council examine the people present nor try the law- sui t wi th the Council. The Vice-Mayor said it is his understanding that a vote of the people is the only way to allow de-annexation, according to the Government Code, He is still at a loss, he said, as to why the City should give up this property, Councilman Pelosi asked if they could question the people in attendance. He said that he would like to have the facts sub- stantiated, Mr. Banks said that the Council must accept the facts as he gave them last week. Councilman Pelosi saJ_d that inasmuch as he asked for the presence of Hubback, Bracher, et aI, that he would certainly like to explore the situation. He referred to Mr. Barnes' main objection, namely taxes, and said that the tax provisions to aid open areas, green belts and similar property have been devIsed by other agencies. He suggested that some form of tax relief could be considered by the City Council in the present instance. ,,5 510 With re:ference tü the gX'&¿;I1 belt ordi'lal1ce, the City Attorney said that such an ordinance is in effect in the City of Cupertino but that it has never been used. As to the property tax situation, he said this could only oe answered by the County Assessor. How- ever, the County has seen fit to green belt certaln golf courses. ~ ~ ~ - tI:J Discussion revolved around the property tax with the main facts being developed j,!xllcating that the tax rate throughout the City must be uniform; the same for all property (excluding the possibility of future bond issues which would not apply to areas annexed after the issue was voted). However, the property tax is derived by multiplying the rate by the assessment and the assessment of property is a matter for the discretion of the Assessor, and in Cupertino's case, the County Assessor, Tax relj,ef can be afforded by assesslng the property as a green belt rather than as potential subdivision property, thus affecting a relatively great change in the actual tax paid. It was brought out that the present City tax rate of 26¢ would not amount to a large amount of money on the golf course, possibly around ':;30,00 per year at the present rate. The City Attorney said that sales tax would comprise the main revenue tax-wise and that the 4% tax rate would leVled whether the property was in the City or in the County. If the property is in the Cit~T, 1% goes to the Clty and 3% to the State, and if in the County, 3% goes to the State and 1% to the County. The City Attorney e](plained that the Council has jurisdiction over the zoning which in turn has grea.t a,ffect on the assessment. The City might be more sympathetic to the owners zoning and tax problems than would the County. This then would affect the taxes paid on the property. Councilman Jewett said that the City in that case, would be a tax asset rather than a disadvantage. The City Attorney observed that the Cupertino property tax is a minor factor compared to the over-all tax rate levied by counties, schools and other single purpose districts, The over- all tax rate amount to about *8.00. Returning to the de-annexation issue, Attorney Hughey said that his clients would prevail in court if it were established that a mutual mistake of fact had occurred or that actua: fraud or mis- representation took place. The City Attorney agreed it would be necessary to find mis- representation or fraud to de-annex. The City Attorney said that there is a ve~J serious question whether the City Council could de-annex without the vote of the people, since the public interest is involved both as to logic and as to the annexation act in the Government Code. The annexation acts are written so as to malce annexation or de-annexation of property a matter for the public to decide. He said, in addition, he could not see how this body has the power to enter into a friendly suit, since this would circumvent the letter and spirit of the Gove~1ment Code. Mr, Hughey said that if the fact were established that the Mayor wa.3 actually mista:cen and that Hubback and Bracher had signed under false prete¡1SeS, thé court would have no alternative but to rule in their favor. The City Attorney sald that the difference between a "friendly and drag-out suit" is mea;Üngless. Mr, Banks said that l¡ the City Council said to the City Attorney that they would not have passed the ordinance had they lmown then what they kno\'l now, the suit cO'J.ld be defended vigorously or not. The City Attorney said that the State Legislature requires an election to de-annex and that is the only method that is open, Mr, Hughey said suppose for example, the petitions were forged. ··f 511 '1bt City Attomey stated that to%'¡ed signatures WOuld oerta1n1y be trau4 but tœt tb1ø 11 not a contract between "A" and "B". that:Ls to aay. between two private parties. but it is a.con- tr&.ct. it aft7 contract at all, involV1ns all the peøple in the City of' Cupertino. Raferr1ns to the annexation steps, the O1t:l Attorney $lid that it a protest 1s not raised at the properly deB1gnate4 publ1c hearins, such r1Sht 01' protest 18 waived torever and the courts have 80 held. The Vice-Mayor retumed to the quest10n ot the tax rate, ask1ns Mr. Banks to elaborate on hie tee11ngs. Mr. Banke süd that it is his opinion tbat the owners are racing an unknown, and that there 18 no sense in their dOing this if th87 don't i8ve to. '!'he Vice-Mayor aaked it the Council 1e being asked to freeze taxes. Mr. Sanlœ answered in the neptive, but laid tl'Iat there is no way 01' kn0\1ing wllat the tax structure will be 1n 15 to 25 years. Couno11man Pelosi said be Is not able to understand why nothing va. said at the plic hear1ng. Now that the proceedings are com- plete. the question 18 be1~ msed. Mr. Hughey maintained that be did call the City Office tor a postponement. '!'he C;!.ty Attomey responded that the tact rellJa1ns. regardless of a phOne call or not. that the C1ty Council is the only body that can postpone the hearing. All parties asreed that nothing fUrther could be added at this time. 'V Cupert1no Propert1es: Appl1cation tor Arch. & Site Control approval. Tract 2880; Fourplex lots 39-49 inCl. approved by H-Control ColJlll1ttee on October 9. Moved by Counc1lme.n Jewett that this matter be taken next on the agenda. Seconded by Counc1lman Se.1ch. AYES; CoW1cl1men: Jewett, Pel.osl, Sa1eh, Benetti NA1S: Councilmen: None ABSENT: Councilmen: lazaneo MOTION CARRIED: 4-0 Counc1lD1an Pelosi left the meeting at 9:57 P.M. Georte Oakes posted the 118P Of the property. plus the reader1ngs and described the structures as rustic architecture, shake roofs, stucco siding. sun decks, fence-enclosed private patios. etc. He said that he 1s working on a Joint financing venture that wOUld put in a cabana club. The elevations of the fourp1exes w1ll all be different. Moved by Counc1lman Sa1ch that the render1ngs be approved and architectural and site approve be granted as per the H-Control Committee recommendation, Seconded by Councilman Jewett, AYES: Councilmen: NAYS: Councilmen: ABSENT: Councilmen: MOTION CARRIED: Jewett, Saich, Benetti None Pelosi, Lazaneo 3-0 Mr, Oakes said he would leave the renderings. VI Report from City Engineer on Church and School drainage fees. Moved by Councilman Jewett that this matter be consi.dered next on the agenda. Seconded by Councilman Saich. AYES: Councilmen: NAYS: Councilmen: ABSENT: Councilmen: ¡V;O'l'ION CARRIED: Jewett, Saich, Benettl None Pelosi, Lazaneo 3-0 -7- i~"H 2- iJ, Th~ City RngiriMl' !'e~crted that the Bethel Lutheran Church located on Miller Avenue, has already posted a ::;500,00 storm drain fee, which was the charge per acre at that time, 'fhe City is now concerned Iii th 1. 6 acres in addition. The improvements were temporarily waived by the City Council on a portion of the street fronting the church property. ~ /rœ3 o iaIIaI ~ The new storm drainage fees which are a part of the Storm Drain Master Plan adopted by Resolution ~66 on JUly 3, 1961, require $1,100.00 per acre for industrial and commercial property, The report stipulates that churches, schools, hospitals, etc, are to be counted in the commercial and industrial category, at $1,100 per acre, This would mean more than $1,700,00 of storm drain fees in the present case, The Vice-Mayor aslced Pastor Torvend of the Bethel Lutheran Church to address the City Council, Pastor Torvend said that finances are a problem with his church, as they are with most church groups, thus malcing it difficult to live under the laws and he noted that the church is a non-profit institution which does not have the necessary finances at the present time. He said they would like to put in the street improvements, but asked relief on the storm drain charges. He said they simply request the sawe treatment as other churches, Discussion followed on whether churches should be charged the same rate as industrial or commercial property. The Vice-Mayor suggested that the storm drainage be waived at this time until a firm policy can be established. Responding to a question, the City Attorney said that all churches come before us on one ground or another and have expressly asked for Naivers, He said that when the street improvements are put in, the storm drainage must be paid, Councilman Jewett said he feels it behooves the City Council to go along ¡lith the request. Moved by Councilman Jewett, that the City Council reconsider the storm drainage fees for churches and schools at a study session, Seconded by Councilman Salch. AYES: Councilmen: NAYS: Councilmen: ABSENT: Councilmen: MOTION CARRIED: Jewett, Saich, Benetti None Pelosi, Lazaneo 3-0 Moved by Councilman Jewett that the City approve the street impr0vements for the Bethel Luth.eran Church, and defer stOrm drainage levy for further consideration. Seconded by Councilman Salch. AYES: Councilmen: NAYS: Councilmen: ABSENT: Councilmen: MOTION CARRIED: Jewett, Saich, Benetti None Pelosi, Lazaneo 3-0 VII Report from City Engineer on Highway 9 wideiling, The City Engineer said that he needs certain information from the r·1ayor in order to complete his report on HißhHay 9. However, he said that John Rodrigues, Jr" has agreed to dedicate 10' now and has agreed to dedicate the additional property necessary to make 60' on his side of the Highuay when the entire 120' is being acquired by the City, conditioned on approval of the existing 5' walk in front of the Cupertino HarchJare store. Noved by Councilman Salch that the City Engineer write Mr, Rodrigues a letter to the affect that the City Council is in favor of the dedication and improvements proposed by Mr, Rodrigues, also -8- 5".I"Y Ù agreeing to the continued existance of the 5' walle in front of Cupertino Hardware. Seconded by Councilman Jewett. AYES: Councilmen: NAYS: Councilmen: ABSENT: Councilmen: MOTION CARRIED: Jewett, Saich, Benetti None Pelosi, Lazaneo 3-0 Adjournment at 10:35 P.M. APPROVED: Isl Nick J. Lazaneo Mayor, City of Cupertino ATTEST: t\~ . \ .-..{,--<.:.... / i - ~~"\ , '(l&. ,~., City Clerk -9-