CC Resolution No. 20-034 Denying the Petition of Laborers International Union of North America, Local Union No. 270, 10931 N. De Anza Blvd Hotel RESOLUTION NO. 20-034
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
DENYING THE PETITION OF LABORERS INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL UNION NO. 270, SEEKING COUNCIL
RECONSIDERATION OF ITS DECISION TO APPROVE A NEW 155-ROOM
SEVEN-STORY HOTEL (24-HOUR OPERATIONS) WITH UNDERGROUND
PARKING, EVENT MEETING ROOMS,A GROUND FLOOR RESTAURANT
WITH SEPARATE BAR,AND A ROOFTOP LOUNGE WITH SEPARATE BAR BY
DEMOLISHING A COMMERCIAL BUILDING WITH AN AREA OF 8,323 SQ. FT.,
GENERAL PLAN AMENDMENTS TO AMEND TABLE LU-1 BY INCREASING
THE DEVELOPMENT ALLOCATION OF HOTEL ROOMS TO 155 HOTEL
ROOMS IN THE HOMESTEAD SPECIAL AREA AND FIGURE LU-2 AND POLICY
LU-23.2 ADDING FIGURE LU-5 TO ALLOW INCREASED HEIGHTS AND
REDUCED BUILDING PLANE WITHIN THE NORTH DE ANZA GATEWAY
SPECIFIC TO THIS DEVELOPMENT, DEVELOPMENT,ARCHITECTURAL AND
SITE APPROVAL,AND USE PERMITS. LOCATION AT 10931 N DE ANZA BLVD.
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WHEREAS, on March 3, 2020, the Cupertino City Council held a public hearing and
at the conclusion of the hearing approved on a 4-1 vote (Willey voting no) applications
GPA-2018-01, DP-2018-01, ASA-2018-02, U-2018-02, EA-2018-03 for a new seven story,
155 room located at 10931 N. De Anza Blvd ("Project");
WHEREAS, the Cupertino City Council's decision was within its discretion and
made at a properly noticed public meeting;
WHEREAS,petitioner Laborers International Union of North America, Local Union
No. 270 ("LIUNA") filed a petition for reconsideration with the City on March 13, 2020,
and petitioned the City Council to reconsider its decision under the provisions of
Cupertino Municipal Code ("CMC") Section 2.08.096; and
WHEREAS, the City Council has considered all relevant evidence presented by the
parties at all hearings,including evidence presented at the April 7,2020 reconsideration
hearing.
NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:
1. The petitioner's petition for reconsideration is defective on its face in that it does
not offer proof of facts as required by CMC Section 2.08.096.
Resolution No. 20-034
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2. The petitioner did not provide new relevant evidence which, in the exercise of
reasonable diligence, could not have been produced at any earlier city hearing on
the Project(CMC§ 2.08.096 (B) (1)).
3. The petitioner did not provide relevant evidence which was improperly
excluded at any prior city hearing on the Project (CMC § 2.08.096 (B) (2)).
4. The petitioner has failed to provide proof of facts which demonstrate that the
City Council proceeded without, or in excess of its,jurisdiction (CMC§2.08.096
(B) (3))•
5. The petitioner has failed to present any evidence that the City Council failed to
provide a fair hearing (CMC§2.08.096 (B) (4)).
6. The petitioner has 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 (CMC § 2.08.096 (B) (5)).
7. The City Council determines that:
a. The City Council's decision is supported by findings of fact in the attached
Exhibit A.
b. The findings of fact of the City Council's decision are supported by
substantial evidence in the record of proceedings as demonstrated in
Exhibit A.
8. The petitioners' Petition for Reconsideration of the City Council's decision of
March 3, 2020 is DENIED, thereby affirming the original decision.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 7h day of April 2020,by the following vote:
Vote Members of the City Council
AYES: Scharf, Paul, Chao, Sinks
NOES: Willey
ABSENT: None
ABSTAIN: None
Resolution No. 20-034
Page 3
SIGNED:
Jr� z Zo2 G
Steven Scharf, Mayor Date
City of Cupertino
ATTEST:
'� .�
4/27/2020
Kirsten Squarcia, City Clerk Date
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 petition for reconsideration submitted by Michael Lozeau, Lozeau Drury LLP on behalf
of LIUNA, consisting of 374 pages, contests the City Council's March 3, 2020 decision on the
grounds listed in CMC Section 2.08.096.B.5. Each of the grounds for the reconsideration as
submitted by the petitioner and the City's findings of fact and responses to each of the
grounds is described below.
If reconsideration is granted, the Cotuicil may conduct a hearing and reconsider its decision
in light of the new evidence presented. Reconsideration of the Project approvals would
constitute the third full hearing on the Project conducted by the City.
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.
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City Findings of Fact: j
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The petitioner has not provided any proof of facts that demonstrate that 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.
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Petition Response
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A. The petitioner states that "[d]espite A. The City Council proceeded in a
the additional conditions of manner required by law and based its
approval for the Project added by decision to approve the Project on
the City Council on the Project, and substantial evidence including j
after reviewing the Project, MND, substantial evidence in the Initial
and the City's response to our Study/Mitigated Negative
comments,a'fair argument'remains Declaration ("IS/M ND") and
that the Project may have supporting technical studies, other
unmitigated adverse environmental prepared written material including,
impacts. Therefore, CEQA requires but not limited to, responses to
that the City prepare an comments, staff reports, and
environmental impact report ('EIR') testimony at the hearings. Petitioner
for the Project pursuant to the has not made a fair argument based
California Environmental Quality on substantial evidence that the
Act ('CEQA'), Public Resources Project may have a significant effect
Code section 21000, et seq. By on the environment for the reasons
adopting the [Mitigated Negative stated in the Response to Comments
Declaration] (MND), the City failed Memos dated December 5, 2019 and
to proceed in a manner required by February 20, 2020, Attachments AF
law." (Petition for Reconsideration and AG, and Attachment AD Initial
Letter,p.2.) Study and Mitigated Negative
Declaration Response to Comments
Memo for City Council dated March 24,
B. & C. Petitioner's "[n]oise expert, 2020,
Derek Watry, reviewed the proposed
Project and relevant documents B. & C. The City Council conducted
regarding the Project's noise impacts, the hearing in a manner required by
and concluded that the MND law,and rendered a decision based on
improperly analyzed construction the established regulations in the
noise levels." and that "construction Cupertino Municipal Code, and the
noise levels during the five stages of findings based on substantial
the Project construction would create evidence in the record as a whole
a significant noise impact." (Petition including substantial evidence in the
for Reconsideration Letter,p. 4.) IS/MND and supporting technical
studies, other prepared written
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material including,but not limited to,
responses to comments, staff reports
and testimony by staff and members
of the public. Please refer to
Attachment AD, Initial Study and
Mitigated Negative Declaration Response
to Comments Memo for City Council
dated Mach 24, 2020, for a complete
response to the petitioner, which
concludes based on substantial
evidence, that (1) the City previously
responded to petitioner's comments,
including the alleged grounds for
reconsideration; (2) the interpretation
of the construction noise limits in the
CMC is based on scientific and factual
data which has been reviewed by the
City and is reflected in its historical
practices used for other projects as
well as guidance from the Federal
Transit Administration; (3) the
construction noise levels on adjacent
properties was calculated based on all
construction equipment operating
simultaneously, which is an
extremely conservative assumption;
(4) the City followed best practices
with regard to spatial assumptions for
calculating noise levels on adjacent
properties and conservatively did not
account for intervening structures and
the buffering parking lots;(5)locating
a hotel next to another hotel is not an
incompatible use for purposes of the
noise increase thresholds in the
General Plan; and (6) the calculated
traffic noise increase due to the Project
is well below the threshold and would
be imperceptible. For the foregoing
reasons, there is no substantial
evidence that the Project may have a
significant effect on the environment
due to noise and the petitioner has not
made a fair argument.
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