CC Resolution No. 05-196
RESOLUTION NO. 05-196
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
DENYING THE PETITION OF CATHY AND DALE HELGERSON SEEKING
COUNCIL RECONSIDERTION OF ITS APPROVAL OF A TENT A TIVE MAP
(TM-2004-05) FOR SUBDIVISION OF LANDS OWNED BY CALIFORNIA WATER
SERVICE (APN 326-33-107) LOCATED ON GREENLEAF DRIVE, CUPERTINO
WHEREAS, the California Water service Company owns real property, located on
Greenleaf Drive, Cupertino, California, more specifically, APN 326-33-107; and
WHEREAS, Application TIM 2004-05 for a tentative subdivision map of the property
was brought before the Planning Commission by Wayne Aozasa and approved on January 25,
2005 by the Commission; and
WHEREAS, that approval was appealed to the City Council on March 15, 2005 by Cathy
and Dale Helgerson and Leo and Jian Wang; and
WHEREAS, the City Council, after hearing testimony, tabled this item until an
independent evaluation of the project could be completed; and
WHEREAS, the appeal was heard on November 1, 2005 and after testimony and
discussion, was denied by the City Council; and
WHEREAS, Cathy and Dale Helgerson requested that the City Council reconsider its
decision under the provisions of Section 2.08.096 of the City's ordinance code; and
WHEREAS, the City Council has considered all relevant evidence presented by the
parties at all hearings, including evidence presented at the November 29,2005 reconsideration
hearing.
NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:
1. The petitioners' Reconsideration Petition is defective on its face in that it does not offer
proof of facts as required by Municipal Code Section 2.08.096.
2. The petitioners have made no offer of new relevant evidence that, in the exercise of
reasonable diligence, could not have been produced at any earlier city hearing. (See Municipal
Code § 2.08.096B(I).)
3. The City Council did not exclude any evidence presented by the petitioners at any prior
city hearing. (See Municipal Code § 2.08.096B(2).)
4. The City Council has proceeded entirely within its jurisdiction regarding the application
for a tentative subdivision map. (See Municipal Code § 2.08.096B(3).)
Resolution No. 05-196
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5. The petitioners have failed to present any evidence that the City Council failed to provide
a fair hearing. (See Municipal Code § 2.08.096B(4).)
6. The petitioners have failed to demonstrate that the City Council abused its discretion
regarding the application for a tentative subdivision map. (See Municipal Code § 2.08.096B(5).)
Specifically, the City Council determines that:
The City Council proceeded in a manner required by law.
The City Council's decision is supported by findings of fact.
The findings offact related to the City Council's decision were supported by
substantial evidence in the record of proceedings.
7. The specific allegations contained in the petition for reconsideration are refuted by
specific City Council findings which are attached to this resolution and incorporated herein.
8. The petitioners' Petition for Reconsideration of the City Council's determination of
November I, 2005 is DENIED.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 29th day of November, 2005, by the following vote:
Vote
Members of the Citv Council
AYES:
NOES:
ABSENT:
ABSTAIN:
Kwok, Lowenthal, Sandoval, Wang, James
None
None
None
ATTEST:
. ~~
Ci~
CITY COUNCIL FINDINGS IN RESPONSE TO PETITION FOR
RECONSIDERATION
Municipal Code section 2.08.096 states:
"A petition for reconsideration shall specify, in detai~ each and every ground for
reconsideration. Failure of a petition to specify any particular ground or grounds for
consideration, precludes that particular omitted ground or grounds ftom 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.
S. Proof offacts which demonstrate that the City 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 ofTM-2004-0S, a tentative map of a subdivision of
property owned by California Water Service Company (CWSC) on Greenleaf Drive,
submitted by Cathy and Dale Helgerson on November 10, 2005 asserts as follows:
1. An offer of new relevant evidence, which in the exercise of reasonable diligence,
could not have been produced at any earlier city hearing:
ResDonse: The appellant has failed to provide relevant evidence of any kind that was not
considered at the appeal hearing.
PETmON
"The santa Clara County
Water District should have
tested the water and the soil
of the well at the East End
well and did not." P. 2
"I was amazed that the City
did not tell us about these
FINDING
The question of which ofthe wells was tested was
completely clarified by Shawn Heffuer, Director of Real
Estate and Corporate Development for the CWSC in
direct testimony to the City Council at the hearing of
November I, 2005 and further in response to a direct
question by Council member Sandoval that the well
tested was the well at the east end of Greenleaf Drive on
the parcel proposed for development owned by the
CWSC.
The existence of other wells, while not relevant, was also
made known at the Ii h·
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three wells even after the
appeal parties were
inquiring about any other
wells in Cupertino." P. 2
2. An offer of relevant evidence whicb was improperly excluded at any prior city
bearing:
ResDonse: The petitioner has made no offer of relevant evidence that was improperly
excluded at the original appeal hearing. The petition contains a number of statements and
asks questions that are not fact based nor do they describe any relevant evidence of any
kind. They are simply questions or opinions on subjects that were fully considered at the
prior hearing.
PETmON FINDING
". .. we feel that the This discussion was presented at the original appeal
California Water Company hearing and was discounted by the City staff's
should not have been presentation. The Council considered that matter along
involved in any type of with all others. This "evidence" was not excluded at any
referral or recommendation prior city hearing.
to the City on choosing of
the vendor." P. 2
"The appeal parties would As noted above the confusion over which well had been
like to know about possible tested was fully and adequately clarified by Shawn
well testing at the West End Heffner's testimony at the appeal hearing.
of Greenleaf Drive near
Garden Gate School. P.2
Why was the information The existence of other wells, while not relevant, was also
about the abandoned will made known at the appeal hearing.
[sic] kept ftom the appeal
parties and the Cupertino
Citizens.
3. Proof of facts which demonstrate that the City Council proceeded without, or in
excess of, its jurisdiction.
Re!\POnse: The petitioner has not provided any evidence regarding contamination of
water wells, abandoned or in production. The petition contains unfounded and
unsubstantiated statements. These statements, which are apparently the petitioner's
personal opinion of what should or should not have been done, are irrelevant and do not
represent evidence to support the allegation that the Council acted either without
jurisdiction or in excess of its jurisdiction.
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PETmON FINDING
"The City Council approved None ofthe wells in Cupertino are contaminated. This
the abandonment of the [West statement by petitioners appears to offer an opinion, but
End] well without proper offers no facts or proof that the Council acted without or
consideration of any possible in excess of its jurisdiction.
contamination to the four
wells. Even after the approval
of the Water Well test of the
Well at the East End of
Greenleaf Dr. the appeal
parties and the Cupertino
Citizens had made the City
very aware of their concerns
about any possible
contamination of any wells in
Cupertino and this should
have been considered prior to
any abandonment of a well
without a proper water and
soil test" P. 3
"The possible contamination Petitioners make no offer of proof of contamination of
of the East End Well near the well. In fact, testing of the subject well indicated
Apple Computer should have that the water meets domestic use standards.
been a wakeup call for the
City...." P. 3
"The Air Quality Control The reference to issues between Apple Computer and
Board has sent Apple the Air Quality Board (which was spoken to at the
Computer a letter requesting a hearing by Michael Foulkes of Apple Computer) is not
list of all contaminants in the relevant to the appeal and is not a factor for the
building...." P.3 Council's consideration or reconsideration of the appeal.
4. Proof of facts which demonstrate that the City Council failed to provide a fair
hearing.
ResDonse: The petitioner has not provided any proof of facts required as grounds for
reconsideration to demonstrate that the Council failed to provide a fair hearing. In fact, a
review of the hearing shows that the Council heard lengthy testimony ftom the appellants
and ftom the applicants as well as numerous facts presented by the city staff.
PETmON
"We still wish to ask the
question was the West End
Well tested?" . 4
FINDING
Whether or not the West End Well was tested at tlñs
time is irrelevant to this application. The West End
Well is not on the sub· ect ro crt . The hearin was in
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regards to a tentative subdivision map approval for
property located on Greenleaf Drive, Cupertino. All
relevant evidence was considered by the council.
"The East End well is the well As noted above, the confusion over which well had been
that was part of the original tested was fully and adequately clarified by Shawn
appeal and because the City Heffner's testimony at the appeal hearing.
did not review the correct well
at the meeting, we feel that
one of the reasons for
reconsideration should be this
well."P.4
"The appeal parties had asked The hearing was in regards to a tentative subdivision
the City and the California map approval for property located on Greenleaf Drive,
Water Company to provide Cupertino. All relevant evidence was considered by the
information pertaining to the . council.
other wells in Cupertino and
we hoped to view these well
[sic] in order to get a good
idea of how close these wells
were to the streets, sidewalks
and home." P. 4
"We also believe that the The existence of other wells, while not relevant, was
California Water Service also made known at the appeal hearing.
Company were aware of the
othe£ wells and also
deliberately held back. this
information ftom the appeal
parties and the Cupertino
Citizens." P. 4
There is a great deal of verbalizing in this section presented by the petitioner that refers to
matters that were previously heard and discussed by the Council, some relevant and some
irrelevant as regards the approval of the tentative subdivision map, the subject of the
appeal. The rest of the verbiage consists of irrelevant and inaccurate comments by the
petitioner regarding well test results. For example, the appellants state in their petition
that "...the four metals that were detected are non cancer chemicals but that is not true
they cause cancer". The fact is that the report presented at the appeal hearing described
the metals as non-carcinogenic as represented by the toxicologist preparing the report,
which is fact and science·based. (See p. 3, SLR Report.) The appellant's statement to the
contrary is not supported by proof or evidence of any kind. It is unfounded and
unsupported. This is true of all the statements made by the petitioner in reference to the
SLR report provided to the city and presented at the original hearing. An example of the
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uninformed and irrelevant comments in the peûtion is the statement that the metal
"Vanadium's test results was 6.5 ppb. the detection limiUs 3.0 ppb ... the metal is
considered toxic and causes cancer" This statement is completely at odds with the report
and has no basis in fact and is without proof or substantiation. The pcûtioner apparently
believes incorrectly that the reporting limit (which the petition calls the detection limit) is
the health level of concern. In fact, the reporting limit is the lowest limit at which the
metal could be expected to be detected. The health level of concern, called the "action
level," is actually 15 ppb, which is well above the tested level. (See Table 1, SLR
Report.) The petition similarly goes on to inaccurately list a variety of seemingly random
extracts of numbers ftom the toxicologist's report with no relevance or context.
The petitioner has had ample opportunity to respond to anything presented by the staff
and the consultant's report with fact based evidence at the hearing. However, even
though the petitioners offered no prÒof, data, facts or science to support their statements,
questions or comments, the Council heard and considered everything presented. There is
no basis in any material provided in the petition that supports the allegation that the
Council failed to provide a fair hearing.
s. ProoF of Facts which demonstrate that the City Council abused its discretion by:
a. Not proceeding in a manner prescribed 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 fmdings offaet were not supported by the
evidence.
Response: The appellant's petition under this heading presents a lengthy statement of
unsubstantiated or untrue remarks about the Council's conduct and consideration at the
original appeal hearing. The petition makes no offer of proof.
PETmON FINDING
"The City Council failed to review the Petitioner offers no basis in fact for this
overall concerns of the appeal parties and allegation.
the CUDertino Citizens." P. 6
" . . . the request ttom the appeal parties and There is no proof of fact of any kind to
Cupertino Citizens to extend the 50 feet support this allegation. In fact. that
standard to 100 feet to protect the well was suggestion was heard and was not deemed
never considered." p. 6 necessary by either the staff or the
applicant so no action was needed or taken.
Petitioners' other remarks are statements that certain things, such as the location of storm
and sanitary sewer lines or proximity of the well to the sidewalk are not acceptable to
them. While that may be their opinion, petitioners offer no evidentiary facts to support
any of the grounds for reconsideration.
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Tbe petition presents a lengthy statement about how the SLR report should be completely
discounted because the City"... should not have used. .. SLR or BC Labs because the
California Water (Services) Company told them who to use." They further allege that the
vendor selection should have been a". ..non bias selection and this was not done." This
discussion was previously presented at the original appeal hearing. The Council
considered that matter along with all others. The petitioner offered no evidence at the
original hearing to support that allegation, nor have they offered any in the petition for
reconsideration. This is a rehash of petitioners' earlier objection and, in no way,
constitutes an abuse of discretion by the Council. .
The balance of Petitioners' claims regarding the Council's "disregard" of evidence and
the appellant's "right to speak... or to discuss the issues" are untrue and/or
unsubstantiated. Additionally, petitioners offer no facts to substantiate their claim that the
City Council abused its discretion by not proceeding in a manner prescribed by law; .
and/or rendering a decision which was not supported by findings offact and/or
rendering a decision in which the findings of fact were not supported by the evidence.
Conclusion
In reviewing the Petition filed by Cathy and Dale Helgerson to Reconsider the Council's
decision to deny the original Appeal on November 1, 2005 as noted in detail above, the
City Council fmds that there is no relevant evidence or proof of facts that support any of
the grounds for reconsideration as required by Cupertino Municipal Code Section
2.08.096 B. 1-5.
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