CC Resolution No. 20-110 Approving Heart of City Exception to Allow Reduction of Retail Requirement, Mixed-Use Development, Licensed Assisted Living Memory Care Residences, 21267 Stevens Creek Boulevard
RESOLUTION NO. 20‐110
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A HEART OF THE CITY EXCEPTION TO ALLOW A REDUCTION
OF THE RETAIL REQUIREMENT FOR BUILDINGS FRONTING STEVENS CREEK
BOULEVARD TO ACCOMMODATE A MIXED‐USED DEVELOPMENT
CONSISTING OF 267 HOUSING UNITS (88 ROWHOUSE/TOWNHOMES, 179
SENIOR APARTMENTS, OF WHICH INCLUDE 48 SENIOR AFFORDABLE
APARTMENTS), 27 MEMORY CARE LICENSED ASSISTED LIVING RESIDENCES
(“MEMORY CARE RESIDENCES”), AND 20,000 SQUARE FEET OF COMMERCIAL
SPACE LOCATED AT 21267 STEVENS CREEK BOULEVARD
(APN: 326‐27‐042, ‐043)
SECTION I: PROJECT DESCRIPTION
Application No.: EXC‐2019‐03
Applicant: KT Urban (Mark Tersini)
Property Owner: 190 West St. James, LLC
Location: 21267 Stevens Creek Blvd. (APN #326‐27‐042, ‐043)
SECTION II: FINDINGS FOR HEART OF THE CITY EXCEPTION:
WHEREAS, the Planning Commission of the City of Cupertino received an application
for a Heart of the City Exception as described in Section I of this resolution; and
WHEREAS, The Westport Cupertino Mixed‐Use Project (“Project”), including the Heart
of the City Exception, is fully described and analyzed in the Initial Study and proposed
Final Environmental Impact Report (State Clearinghouse No. 2019070377) (“EIR” or
“Final EIR”) for the Project; and
WHEREAS, the City of Cupertino’s Environmental Review Committee at its April 16,
2020 meeting reviewed the Final EIR consisting of the April 7, 2020 Public Review Draft
EIR and Response to Comments, received public comments, and voted 5‐0 to recommend
that the City Council certify the EIR for the project; and
WHEREAS, based on substantial evidence in the record, on May 12, 2020, the Planning
Commission recommended on a 5‐0 vote that the City Council certify that the EIR has
been completed in compliance with the California Environmental Quality Act, Public
Resources Code Section 21000 et seq. (“CEQA”) and reflects the independent judgment
and analysis of the City, adopt Findings, adopt and require as conditions of approval all
of the mitigation measures for the Project which are within the responsibility and
Resolution No. 20‐110
Page 2
jurisdiction of the City that are identified in the EIR, and adopt the Mitigation Monitoring
and Reporting Program for the Project (EA‐2018‐04); and
WHEREAS, on May 12, 2020 the Planning Commission recommended on a 5‐0 vote that
the City Council approve the Vesting Tentative Map (TM‐2018‐03), in substantially
similar form to the Resolution presented (Resolution No. 6904), approve the
Development Permit (DP‐2018‐05) in substantially similar form to the Resolution
presented (Resolution No. 6901), approve the Architectural and Site Approval Permit
(ASA‐2018‐05) in substantially similar form to the Resolution presented(Resolution No.
6902), approve the Use Permit (U‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6903), approve the Tree Removal Permit (TR‐2018‐22) in
substantially similar form to the Resolution presented (Resolution No. 6906), approve the
Heart of the City Exception (EXC‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6905) for the Senior Enhanced Alternative; and
WHEREAS, on June 4, 2020, as updated on June 25 and 26, 2020, the applicant submitted
and requested the City to consider revisions to the Project (“Revised Senior Enhanced
Project”) that include relocating nine Below Market Rate units from Building 1 to an
additional top story on Building 2, altering the unit mix in Buildings 1 and 2 to provide
additional space for terraces on the tops of those buildings, and changing the unit mix in
Buildings 2 to include two‐bedroom units in addition to studios and one‐bedroom units;
and
WHEREAS, because the revisions in the Project affect building height and dispersion of
BMR units, the project was reviewed by the Planning Commission on July 14, 2020 for
recommendation to the City Council; and
WHEREAS, on July 14, 2020, the Planning Commission recommended on a 3‐2 vote that
the City Council deny the project in accordance with Resolution No. 6908; and
WHEREAS, on July 31, 2020, the applicant submitted a request for an
incentive/concession to consolidate all 48 of the senior BMR units in Building 2; and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Commission held at least one public hearing in regard to this application, and on August
18, 2020, the City Council held a public hearing to consider the Architectural and Site
Approval; and
WHEREAS, the City Council of the City of Cupertino is the decision‐making body for
this Resolution; and
Resolution No. 20‐110
Page 3
WHEREAS, on August 18, 2020, after consideration of substantial evidence contained in
the entire administrative record, and prior to consideration of the Development Permit,
the City Council adopted Resolution No. 20‐105 certifying the EIR, adopting and
requiring as conditions of approval all of the mitigation measures for the Project which
are within the responsibility and jurisdiction of the City that are identified in the EIR, and
adopting the Mitigation Monitoring and Reporting Program for the Project; and
WHEREAS, the applicant has met the burden of proof required to support the application
for a Heart of the City Exception; and
WHEREAS, the City Council finds as follows with regard to this application:
1. The proposed development is otherwise consistent with the City’s General Plan and
with the goals of this specific plan and meets one or more of the criteria for an
exception for reasons to provide design flexibility in situations when small lot size,
unusually shaped parcels, or unique surrounding land uses make it difficult to adhere
to the development standards and where all efforts to meet the standards have been
exhausted.
The project site is located along Stevens Creek Boulevard (identified Priority
Development Area), surrounded by a mix of uses, proximity to services, and access to
public transportation makes it conducive to a residential development. However, the
location of the project site is constrained by the fact that the Stevens Creek Boulevard
frontage is adjacent to the onramp for Highway 85. This would discourage pedestrian
traffic and reduce the visibility of future retail tenants significantly limiting the
viability for commercial use. With the approved density bonus and associated waivers,
the project is consistent with the General Plan. Other than this requested exception,
the project is consistent with the Heart of the City Specific Plan.
2. The proposed development will not be injurious to property or improvements in the
area nor be detrimental to the public health and safety.
The project site is designated as a Priority Housing Site in the City’s Housing Element.
The location is surrounded by similar urban uses and, with the approved density bonus
and associated waivers and incentive/concession, the project is consistent with the
General Plan for density, landscaping, private outdoor space, access, streetscape,
setbacks, and design. The existing shopping center will be developed with a mix of
residential housing stock including affordable, age‐restricted apartment complexes and
market rate townhome/rowhouse condominiums built to the current building and fire
safety codes. Therefore, the project will not be detrimental or injurious to properties or
improvements in the vicinity, and will not be detrimental to the public health, safety,
general welfare, or convenience.
Resolution No. 20‐110
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3. The proposed exception will not result in a hazardous condition for pedestrian and
vehicular traffic.
The exception requested for the proposed project does not relate to the creation of a
hazardous condition for pedestrian and vehicular traffic.
4. The proposed development has legal access to public streets and public services are
available to serve the development.
The proposed project proposes the installation of a two‐way driveway to allow access to
Stevens Creek Boulevard and Mary Avenue, public streets, that the property has
frontages along. Additionally, all services necessary for development are available to
serve the development. The proposed project will provide the appropriate hook‐ups for
access.
5. The proposed development requires an exception, which involves the least
modification of, or deviation from, the development regulations prescribed in this
chapter necessary to accomplish a reasonable use of the parcel.
The proposed development has met all other development standards for height, parking,
landscaping, density, and building placement as mandated by the General Plan, Heart
of the City Specific Plan, and Zoning Ordinance, with the exception of those the
applicant has requested density bonus waivers and incentive /concession for. The only
regulation it does not meet is the provision of at least 75% of the building frontage
along Stevens Creek Boulevard and 50% of the rear of the building be occupied by uses
that allow direct retailing of goods. The development is providing retail frontage along
Mary Avenue where it is not required by the Heart of the City Specific Plan, in an
equivalent size and scope that would have been needed to meet the retail frontage
requirement along Stevens Creek Boulevard.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the Environmental Impact Report and the Mitigation
Monitoring and Reporting Program for the Project (EA‐2018‐04), subject to the conditions
which are enumerated in this Resolution, beginning on PAGE 3 herein, and subject to the
conditions contained in all other Resolutions approved for this Project,
The application for Heart of the City Exception, Application No. EXC‐2019‐03, is hereby
approved, and that the subconclusions upon which the findings and conditions specified
in this Resolution are based are contained in the Public Hearing record concerning
Application No. EXC‐2019‐03 as set forth in the Minutes of the City Council Meeting of
August 18, 2020 Meeting, and are incorporated by reference as though fully set forth
herein.
Resolution No. 20‐110
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SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set dated June 4, 2020, as updated June 25, 2020,
consisting of 39 sheets labeled as Westport Cupertino, G200 – G213, A001‐A222,
VTM‐1‐VTM‐6, and L100‐L300, drawn by C2K, and Kimley Horn except as may
be amended by conditions in this resolution.
2. ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations, building setbacks,
property size, building square footage, any relevant easements and/or
construction records. Any misrepresentation of any property data may invalidate
this approval and may require additional review, including any misrepresentation
related to the note on the Vesting Tentative Map that the Townhouse/Rowhouse
units will be for‐sale.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. TR‐2018‐22, TM‐2018‐03, TM‐2018‐
03, DP‐2018‐05, U‐2019‐03 and EA‐2018‐04 shall applicable to this approval.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
first page of the building plans.
5. EXCEPTION
A Heart of the City Exception is granted to allow the construction of the proposed
project with a maximum of 40% of the building frontage along Stevens Creek
Boulevard and 75% of the rear of the building to be occupied by non‐retail uses.
6. PUBLIC ACCESSIBILITY TO RETAIL SPACES
All proposed retail space shall be open to the public for the consumption of any goods
or services offered in the mixed‐use buildings.
7. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies with
regard to the proposed project for additional conditions and requirements. Any
misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
Resolution No. 20‐110
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8. INDEMNIFICATION
To the fullest extent permitted by law, the applicant shall agree to indemnify, defend
with the attorneys of the City’s choice, and hold harmless the City, its City Council,
and its officers, employees, and agents (collectively, the “indemnified parties”) from
and against any liability, claim, action, cause of action, suit, damages, judgment, lien,
levy, or proceeding (collectively referred to as “proceeding”) brought by a third party
against one or more of the indemnified parties or one or more of the indemnified
parties and the applicant related to any Ordinance, Resolution, or action approving
the project, the related entitlements, environmental review documents, finding or
determinations, or any other permit or approval authorized for the project. The
indemnification shall include but not be limited to damages, fees, and costs awarded
against the City, if any, and cost of suit, attorneys’ fees, and other costs, liabilities, and
expenses incurred in connection with such proceeding whether incurred by the
Applicant, the City, or the parties initiating or bringing such proceeding.
The applicant shall agree to (without limitation) reimburse the City its actual
attorneys’ fees and costs incurred in defense of the litigation. Such attorneys’ fees and
costs shall include amounts paid to the City’s outside counsel and shall include City
Attorney time and overhead costs and other City staff overhead costs and any costs
directly related to the litigation reasonably incurred by City. The applicant shall
likewise agree to indemnify, defend, and hold harmless the indemnified parties from
and against any damages, attorneys’ fees, or costs awards, including attorneys’ fees
awarded under Code of Civil Procedure section 1021.5, assessed or awarded against
the indemnified parties. The Applicant shall cooperate with the City to enter a
Reimbursement Agreement to govern any such reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment) if made necessary by
proceedings challenging the project approvals and related environmental review, if
the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
9. NOTICE OF FEES, DEDICATIONS, RESERVATIONS, OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions.
Resolution No. 20‐110
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PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 18th day of August, 2020, by the following vote:
Vote Members of the City Council
AYES: Scharf, Paul, Chao, Sinks, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
___________________ ________
Steven Scharf, Mayor
City of Cupertino
_________________________
Date
ATTEST:
_________________________________
Kirsten Squarcia, City Clerk
_________________________
Date
8/28/2020
8/28/2020