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CC Resolution No. 18-080 Denying the Petition of Richard K. Abdalah Seeking Council Reconsideration of Its Decision to Deny a Tentative Map Application (TM-2015-01) to Allow the Subdivision of Three.RESOLUTION NO. 18-080 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO DENYING THE PETITION OF RICHARD K ABDALAH SEEKING COUNCIL RECONSIDERATION OF ITS DECISION TO DENY A TENTATIVE MAP APPLICATION (TM-2015-01) TO ALLOW THE SUBDIVISION OF THREE (3) PARCELS INTO FIVE (5) PARCELS, FOUR (4) RESIDENTIAL AND ONE (1) COMMON (PRIVATE ROAD) AND DENDIAL OF A TREE REMOVAL PERMIT (TR-2016-28) TO ALLOW THE REMOVAL AND REPLACMENT OF SEVEN (7) PROTECTED TREES AT 10234 SCENIC BOULEVARD (APN# 357-08-014 AND 357-08-047) WHEREAS, on May 15, 2018, the City Council of the City of Cupertino held a public hearing and at the conclusion of the hearing denied on a 5 -0 vote, applications TM-2015-01 and TR-2016-28 for a Tentative Map and Tree Removal permits located at 10234 Scenic Boulevard (Decision); WHEREAS, the City Council's Decision was within its discretion and made at a properly noticed public hearing; and WHEREAS, on May 29 , 2018, Petition Richard K. Abdalah (Petitioner) filed a Petition for Reconsideration requesting that the City Council reconsider its May 15, 2018 decision under the provisions of Section 2.08.096 of the City Council'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 August 21 , 2018 reconsideration hearing; and WHEREAS, based on the evidence above, the City Council hereby makes 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 new relevant evidence which, in the exercise of reasonably diligence, could not have been produced at an earlier city hearing (Municipal Code Section 2.08.096(B)(l)). 2 . Petitioner failed to offer evidence which was improperly excluded at a prior city hearing (Municipal Code Section 2.08.096(B)(2)). 3. Petitioner failed to provide proof of facts which demonstrate that the City Council proceeded without, or in excess of its, jurisdiction (Municipal Code Section 2.08.096 (B)(3)). 4. Petitioner has failed to present any evidence that the City Council failed to provide a fair hearing (Municipal Code Section 2.08 .096 (B)(4)). Resolution No. 18-080 Page2 5 . Petitioner has failed to demonstrate that the City Council abused its discretion by not proceeding in a maiu1er required by law; and/or rendering a decision which was not supported by findings of fact; and/or rendering a decision which the findings of fact were not supported by the evidence (Municipal Code Section 2.08.096 (B)(5)). 6. Specifically, the City Council determines that: a. The City's 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. 7. The petitioner's Petition for Reconsideration of the City Council's decision of May 15, 2018 on item #12 is DENIED, thereby affirming the original decision . PASSED AND ADOPTED at a Regular Meeting of the City Council of the City of Cupertino the 21st day of August 2018, by the following roll call vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: Members of the City Council Paul, Sinks, Chang, Scharf, Vaidhyanathan None None None APPROVED: GaK~~~'# ~~Paul,~ Grace Schmidt City Clerk City of Cupertino Res olution No . 18-0 8 0 Pag e 3 EXHIBIT A CITY COUNCIL FINDINGS IN RESPONSE TO PETITION FOR RECONSIDERATION 1. Ground for Recons ide ration (Section 2.08.096 (B) (5) (a)) -Not proc ee din g in a mann er required by law. The petition does not identify how the City Cmmcil abused its discretion by not proceeding in a manner required by law. A duly noticed public hearing was held for the project as required by law. All aspects of the Brown Act were respected in the conduct of the public hearing, including allowing public testimony. Finding: The petition has not offered evidence that the City Council did not proceed in a manner required by law. Therefore, the petition does not meet the requirements of Cupertino Municipal Code Section 2.08.096 on the basis of this assertion. 2. Ground for Reconsideration ( S ec tion 2 .0896 (B) (5) (b) and ( c)) -Counc il's decision was not supported by facts and /or or findings of fact we re not supported by th e evid en ce. Projects that request a Tentative Subdivision Map may be denied by the decision making body if it makes any of the findings identified in CA Government Code Section 66474. The project was denied because the Planning Commission and City Council made the finding that the "site is physically unsuitable for the intensity of development contemplated under the approved subdivision." The Property Owner's main contention is "that the Planning Commission findings are not supported by any evidence and that consideration of ADUs as part of the approval process contravenes state law" (see page 4 of Attachment D). Finding: The Petitioner only identifies the Planning Commission's findings as "not being supported by any evidence." It does not identify deficiencies in the City Council's findings . 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. Therefore/ the Petition for Reconsideration does not meet the requirements of Cupertino Municipal Code Section 2.08.086 on the basis of this assertion. 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 b y findings of fact, or rendering a decision in which the findings of fact were not supported by the evidence. Resolution No. 18-080 Page4 Petition Quoted Finding A. "The Property proposes construction of four houses in the subdivision, which will have to be served by a single road. The Project also proposes an additional driveway leading to the single road, which will create additional traffic. These conditions will contribute to the unsafe driving and road conditions on Scenic Boulevard." Petitioner Comment The number of driveways leading to Scenic Boulevard will be the same if the three parcels are developed or the subdivision is approved for four parcels. As explained above, at present, the Property consists of three legal parcels. If the property owner wishes to build on these parcels, each parcel would have a separate driveway onto Scenic Boulevard. There are four parcels directly across from the Property (one house is built on two parcels). Each parcel has a separate driveway, an in one case the property has two driveways. The proposed subdivision mirrors the properties on the opposite side of the street but has one fewer driveway and is therefore consistent with the adjacent development. The proposed subdivision will have two parcels bordering Scenic Boulevard, each with its own separate driveway. The other Response The three existing legal lots on the site are currently are served by two driveways. There is one driveway curb cut on Scenic Boulevard serving one legal lot (APN#357-08-014), and one driveway curb cut serving two legal flag lots (APN#357-08-047). The proposed project would have two lots with street frontage on Scenic Boulevard, requiring two driveway curb cuts, and a third driveway curb cut serving two lots in the rear. The proposed project would increase the number of curb cuts on Scenic Driveway from two to three. Therefore, the Petition wrongly identifies that with, or without, the subdivision application approved there would be being three driveway curb cuts on Scenic Boulevard. Regardless of the street improvements proposed, the Planning Commission and City Council found that the Resolution No. 18-080 Page 5 Petition Quoted Finding B. "The size, location, and slope of the proposed parcels does not support the proposed density." Petitioner Comment Response two parcels will access Scenic Boulevard addition of a third driveway will by a single driveway. In sum, the number contribute an increased number of of driveways leading to Sceriic Boulevard unsafe movements at this location on will be the same if the three parcels are Scenic Boulevard. developed or the subdivision is approved for four parcels. Since the Planning Commission meeting, Staff has agreed to allow 4 feet more widening to Scenic Blvd. The Council appears to have overlooked or disregarded this revision altogether. No facts of evidence were cited to support the conclusions of the three- person majority of the Planning Commission. Again, the proposal is to increase the number of parcels from the existing three to four. The City's professional Staff found that the site was suitable for the intensity of development. The three members of the Planning Commission who voted to deny the project failed to city any fact or conclusion made by Staff that was not The Petition points to a deficiency in the Planning Commission's findings . It does not point to deficiency in the City Council's findings of fact. Therefore, this does not constitute grounds for reconsideration. However, the Planning Commission was concerned about the large quantities of grading required to implement the project, including required drainage and infrastructure improvements and retaining walls required to stabilize the slope in order Resolution No. 18-080 Page 6 Petition Quoted Finding C. "While the zoning designation allows up to four ( 4) dwelling units with (four) accessory dwelling units on this site, the grading, drainage, and other infrastructure improvements required for the proposed density cannot be supported given the slope of the site and building constraints." Petitioner Comment supported by the evidence or was plainly erroneous. In sum, there is nothing cited by the three person majority on the Planning Commission to support the conclusion that the Property does not support the proposed density. Nothing in the record supports the assertions that grading, drainage or infrastructure were not adequately addressed. Staff concluded that the project required satisfactory grading, drainage mitigation measures, and that a detailed updated plan be reviewed by the Project Geotechnical Consultant. There is not a single fact set suggested by the Planning Commission to suggest that the Staff findings are not valid or accurate. Response to support the future improvements on the site (including any homes.) The Petition points to a deficiency in the Planning Commission's findings. It does not point to deficiency in the City Council's findings of fact. Therefore, this does not constitute grounds for reconsideration. The Planning Commission and City Council did not make a finding that grading, drainage or infrastructure were not adequately addressed or that these were not technically feasible. They were concerned about the large quantities of grading required to implement the project, including required drainage and infrastructure improvements and retaining walls required to stabilize the slope in order to support the future improvements on the site (including any homes.) Resolution No. 18-080 Page 7 Quoted Finding Petition Response Petitioner Comment By exerc1smg its discretionary The construction of Accessory authority to deny construction of Dwelling Units (ADUs) were not future Accessory Dwelling Units, the denied since they were not a part of the City has likely violated State Law that project. The denied project was for the has converted approval of these units to a ministerial act. In addition, the power to regulate the construction of Accessory Dwelling Units ("ADUs") is no longer within the discretion of the City. In 2016 and 2017, the California legislature passed reforms regarding ADUs. One reform was to establish design standards that, when met, required municipalities to give "ministerial approval" instead of discretionary approval of ADUs. subdivision of the site into five (5) parcels, four (4) residential and one (1) common, and the associated tree removals. The reference to ADUs was a statement of fact that four ADUs could be built along with four residences on the site. The City would implement its existing ADU ordinance, regardless of the subdivision application. The property owners of the three legal lots could construct three ADUs on the project site with a ministerial approval as required by state law. Denial of a proposed subdivision I See response above. because ADUs may be erected in the future is an attempt by the City to thwart state law. Resolution No. 18-080 Pages Petition Quoted Finding Petitioner Comment Whether an ADU is permitted is no longer within the discretion of the City . In addition, nothing in the City's regulation says the possibility of construction of an ADU will be a factor in deciding whether to approve or disapprove. Response D. "Finally, the proposed project cannot I Again, Staff concluded that the I While City Staff and the applicant ensure the preservation of mature specimen trees, including Tree #39, due to the number of parcels and buildable area for homes thereon." Owner was taking reasonable steps to preserve this tree and identified the steps. continued to work with the Fire Department to identify improvements and steps necessary to attempt to preserve Tree #39, the Planning Commission and City Council, at its To address the possibility that the project discretion, determined that the might damage a specimen tree, the City improvements necessary would could require that the Owner agree to negatively impact the tree . replace the tree with a like kind in the event the tree cannot be saved. The Council apparently ignores the fact that since the matter went before the Planning Commission, the Fire Marshal has approved a smaller inner circle so there will be more native soil around the Additionally, despite the attempts to relocate structures, and mitigate the grading, drainage, retaining wall and other improvements necessary to accommodate the tree, the Planning Commission and City Council found that preservation of the mature Resolution No. 18-080 Page9 Quoted Finding Petition Petitioner Comment tree. The arborist reported this change would ensure the survival of this tree . Response specimen trees, including Tree#39, was not certain.