CC Resolution No. 21-118 approving the Modified Development Permit (M-2021-002)RESOLUTION N0. 21-118
A RESO[UTION OF THE CUPERTINO CITY COUNCIL
APPROVING A DEVELOPMENT PERMIT MODIFICATION TO THE
PREVIOUSLY APPROVED WESTPORT CUPERTINO PROJECT BY REDUCING
THE UNITS OF THE ASSISTED LIVING FACILITY (BUILDING 1) FROM 131 TO
123, AND REDUCTION IN PARKING LOCATED AT 21267 STEVENS CREEK
BOULEVARD (APN: 326-27-043)
SECTION I: PROJECT DESCRIPTION
Application No.: M-2021-003
Applicant: Related Califomia (Cascade Zak)
Property Owner: 190 West St. James, LLC
Location: 21267 Stevei'is Creek Blvd. (APN #326-27-043)
SECTION II: FINDINGS FOR DEVELOPMENT PERMIT:
WHEREAS, the City of Cupertino received an application for a Development Permit as
described in Section I of tl'iis resolution; and
WHEREAS, The Westport Cupertino Mixed-Use Project ("Project"), including the Heart
of tl-ie City Exceptio:it, is fully described aitd analyzed in the Initial Study and proposed
Final Environmental Impact Report (State Clearinghouse No. 2019070377) ("EIR" or
"Final EIR") for the Project; and
WHEREAS, on August 18, 2020, after consideration of substantial evidence contained in
the entire admit"iistrative record, the City Council approved tlie Westport Cupertino
project, by adopting resolutions including the Development Permit Resolution No 20-
106, and Resolution No. 20-105 certifying the EIR, adopting and requiring as conditions
of approval all of the mitigation measures for the Project that are identified in tl"ie EIR and
are within the responsibility and jurisdiction of tlie City, and adopting the Mitigation
Monitoring and Reporting Program for tlie Project; and
WHEREAS, on October 15, 2021, the applicant submitted and requested the City to
consider modifications to tlie approved Westport Development project which include
adjusting unit mix in the assisted living facility (Buildiiig I) to 123 assisted living units
and 35 memory care rooms, reclassification of approximately 8,000 square feet of public
dining area to private dining, reducing the underground parl<ing to reflect adjustinents
in uses, and reduction of massing on the top floor to accommodate a sixth floor aqua
therapy pool; and
Resolution No. 21-118
Page 2
WHEREAS, other thai"'i the changes described above, the Development Permit proposes
tlie same development and public improvements approved in August 2020, covering 8.I
gross acres, and providing for 88 single-family units, and 48 below-market-rate units; and
WHEREAS, the proposed changes to tlie project would not have any new or
substantially more severe significant environmental impacts; and
WHEREAS, all necessary public notices having been given as required by tlie Procedural
Ordinance of the City of Cupertino and tlie Government Code, and on December 7, 2021,
the City CounciI heId a public hearing to consider the Heart of the City Exception; aitd
WHEREAS, tlie City Council moved to continue the item to tlie City Council hearing on
December 21, 2021; and
WHEREAS, tlie City Council of the City of Cupertino is the decision-making body for
tins Resolution; and
WHEREAS, the applicant has met the burden of proof required to support the application
for a Development Permit Modification; and
1. The proposed development, at the proposed Iocation, will not be detrimental or
injurious to property or improvements in the vicinity, and will not be detrimental to
the public health, safety, general welfare, or convenience;
With the co;nditions of approva( and the approved densi-h) bonus, parking reduction, waivers,
and incentive/concessioyq, t7ie project is consiste;nt with the General Pla;n and Zoning
Ordinance and has been designed to be compatible with and respectful of adjoining la;nd uses.
Additiona11y, all mitigation measures that are within the respoyqsibility and jurisdiction of the
City 7axave been adopted and wiu be made conditioyqs of approva7 in order to mitigate potentia7
impacts to a Less than significant 7eveL The use of mechanica2 lifts and valet par7cing staff will
be conducted in a safe manner as described in the application as it would maintaiyq an adequate
supply within the project parcel. Therefore, the project wiu not be detrimenta7 or injurious to
properties or improvements in the vicinity, and w'dl not be detrime'iqta7 to tlie public health,
safety, generaI weffare, or co;nvertieyqce.
2. The proposed development wilI be Iocated and conducted in a manner in accord with
the Cupertino Comprehensive General Plan and the purpose of the City's zoning
ordinances.
The Genera! Pla;n Land use designation for the property is CommerciaUResidential. Th(!
proposed use is co;nsistent with the General Than. The subject properh) is zo;ned as P1anned
Gerterar CommerciaL/Residentict7 with a further designation as a Priority Housing E7ement
Site. Projects that propose a densih) above the allocatioiq provided in the Housing Element are
required to obtai;n a Conditioiqa7 Use Permit (CUP), which the project is seek'mg and subject
to approval, see Condition of Approval (COA) #3 7:7? Section III. With the conditions of
Resolution No. 21-118
Page 3
approval ayqd t7ie grant'mg of the requested exception, t7ie proposed developmeyqt has met the
applicable deve(opmertt sta'ildards of the Heart of the City Specific Plan and qualifies for a
de'iqsity bonus, dertsih) bomts par7cing reduction, and certain de;nsity bonus waivers and
incentives/concessions for certain general plan and zoning development standards as
permitted in the City of Cupertino's MunicipaL Code Chapter 19.56 Density Bonus.
Therefore, the proposed deve(opment is consistent with. the pvirpose of the City's zoniy'tg
ordiyqance.
3. The remaining sites identified in the Housing Element are adequate to meet the
requirements of Section 65583.2 and to accommodate tlie City's share of the regional
housing need. (Findings required by Governinent Code Section 65863(b)(2).)
The remaini'iqg sites in the 7tousiyqg element inventory are adequate to meet the require'inents
of Section 65583.2 and to acconmodate the City's share of the regiona7 Lower income )'tousi;ng
need. The proposed project does not reduce the density of the site below what was projected in
the City's housing element; the 7iousing element shows a site capacity of 200 units, whereas
267 units are proposed. However, th.e proposed project'mcludes oyzly 48 lower income units,
whereas the site was projected to contain 200 tower income'bmits. Nonetheless, the remaining
sites in the inventory are adequate to accommodate the City's share of the regioyqal lower
income housing iqeed, iiz that 1,2421 (ower income 'bmits have been approved by t7ie City at the
remaining housing elemeyqt sites (Vallco Shopping District, Marina Plaza, the Hamptons, and
t7ie Barry Swenson site), wel7 in excess of the 563 units that must be acconmzodated to meet
the City's share of the regiona2 Lower income housing need. The City has approved a total of
3,2092 units on these four sites, also well in excess of the City's aLLocation of 1,064 units to
meet its tota7 share of the regio;na7 7tousiyqg need.
4. The applicant has requested a density bonus. Pursuant to Cupertino Municipal Code
Section 19.56.070, before approving an application tliat includes a request for density
bonus, incentive, parking reduction aitd/or waiver, the decision-making body shall
make the following findings, as applicable:
a) A finding that the residei-itial project is eligible for the density bonus and any
incentives, parking reductions or waivers requested.
Th.e application is a for a density bomts project that provides for approximately 20% of
its base density as Bedow Market Rate Ho'btsing. Becartse 22% of the tmits on-site will
be Limited to Very Low Iyqcome seniors, the project is eligible for a 35% deyqsity bonus,
par7cing reduction, waivers, and up to two (2) incentiveslcoricessions. The site is
I Consisting of the following lower ii'icome units iii approved projects: Vallco Shopping District, 1,201 units;
Veranda affordable liousing (Bai'iy Swenson site), 18 units; Marina Plaza, 16 ruxits; Hamptons, 7 units net.
2 Consistiiig of tlie followiiig total units iii approved projects: Vallco Shopping District, 2,402 units; Veranda (Bariy
Swenson site), 19 units; Mariiia Plaza, 188 units; Hamptons, 600 net new units.
Resolution No. 21-118
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eligible for a density bonus par7cing reduction vmder Government Code section (-
65915(pX2) andMunicipal Code Section 19.56.040(C) (0.5 space per bedroom), in that
it includes the maxirmmy mtmber of very Low income uyqits and is located within one-
half mite of a major transit stop, with vmobstructed access, as described in the staff
report a;nd F'ma! EIR.
b) A finding that the requested incentive(s) or concession(s) will result in
identifiable and actual cost reductions based upon tlie documentation
provided by the applicant atqd the findings of tlie peer reviewer, if incentive(s)
or concession(s) are requested (other than mixed use development).
The applicant has requested as a concession that all senior BMR units be co;nso(idated
in Building 2, rather than dispersed between Buildi'iqg I and Building 2. The City
proposes to expand this concession to al(ow the applicant to consolidate al2 BMR rmits
in Building 2, rather than dispersing them t7iroug?yout BuiLdi'iqg I and the
Tow'iqhouse/Rowhouse portion. The expanded concession woutd result in actua2 cost
reductio;ns to the project. First, the age restricted Buildi'izgs I and 2 are required to be
constructed usiyqg different methods and materials. As a stateAicensed assisted living
facility, Building I would be required to be built as a Type I bu.i1ding per the State of
Califor;nia due to t7te'iqature of the proposed reside'nts. Building 2 is u'iqder 7?0 such
restriction, however, and can be constructed as a Type IIIA Sprin7dered SM building
for the top five Ieve1s and Type L4 SprinkIered SM for the ground floor a;nd coimected
parlci;ng garage to Building 1 (Type IA). Therefore, the total cost savings by
conso(idatiyqg the BMR units in Building 2 wotdd be approxiynately $200,000 per BMR
uyqit i'iq construction costs. Secoiqd, there is a substa;ntia7 on-go'mg operati;ng cost to
provide the services associated with a state-licertsed assisted (iving facility. These costs
far exceed the BMR 7iousing al(owance for rent aizd utilities and represent substantia7
cost saviyqgs if the uyqits were relocated to Bui[di;ng 2 as senior indepeyqdent Living u'iqits.
Third, a sigrtificayzt source offunding for affordabLe 7xousi;ng, rn7'tic7x is from the sale of
tax credits, would not be avaiLable for the nine BMR units if they were developed in
Building 1 as state-licensed assisted living u.nits. Higher total fiyqancing cost p7tts the
additiona7 time and cost of delay wouLd be incurred to fiu this gap. These costs are saved
by conso1idating the BMR rmits 'nq Building 2 as sertior indepe;nde;nt liv'nqg units.
Fourth, providing BMR townhouse/row7'xouse units would be more expe;nsive than
providing senior BMR units in Building 1 for a mtmber of reasons, iyqcLuding that t7ie
toztm)'xouse/rowhouse units are proposed to be'inuch larger than the senior units in
Building I ayqd the applicant wotdd have easier access to affordable financ'trtg if al7
BMR rmits are consolidated inn a sin5de building.
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c) If the density bonus is based all or in part on donation of land, a fiitding tliat
all requirements included Section 19.56.030C have been met.
The densiti) bonus is yqot based 07? the donatioyq of land, so the finding is not applicable.
d) If the density bonus is based all or in part on the inclusion of a clnldcare facility,
a finding that all requirements included in Section 19.56.030 (D) have been met,
Tlie density bomts is'not based on the inclusion of a c7iildcare facility, so tlie find'mg is
;not applicabLe.
e) If the density bonus or incentive is based on a condominium conversion, a
finding that all the requirements included in Section 19.56.030 (E) liave been
met.
The density bomts is not based on a condominium conversion, so the finding is yqot
applicable.
f) If the incentive includes mixed-use development, a finding that all
requirements included in Section 19.56.40 (B) (2) liave been met.
Wlqile t7ie project is a mixed-use development, the density boiqus is not based 07? the
mixed-used deveLopment as an i'iqcentive, so the finding is not applicab7e.
g) If a waiver is requested, a finding that that the development standards for
which the waivers are requested would liave the effect of physically precluding
the construction of the housing development witli the density bonus and
incentives or concessions permitted.
BMR Unit Dispersion Waiver: The project applicant requested a waiver of the
requirement that "[tl7ie BMR units shau be dispersed throughout the resideyqtia!
project," (CMC § 19.56.050.G 1 and BMR Mitigatio;n Mamta7 Section 2.3.4(D)),
insofar as it would have required BMR units to be dispersed in the
Townhouse/Rowhouse compoyqent of t7ie project. However, this waiver is not justified.
There is 7?O evidence that this requirement-rnhich requires dispersio'iq of BMR units,
but does not require the BMR units to be se'izior BMR rmits -wo'tdd "physically
preclude" the project. Rat7ier, enforci'iqg this requiremertt would simp(y require the
applicant to coiqvert some of the existing town7xouses/rowhouses from mar7cet rate units
to BMR rmits. VVlqiLe that conversio'iq may have fmancial impacts, t7i.ose fitancia7
impacts are not a basis for gra;ntiiqg a waiver under State Density Bonus Law. No
Resol'ition No. 21-118
Page 6
cha;nge is required in th.e physical desig;n of the project to disperse the BMR units. The
City 7ias proposed an expaiqded co'iqcessioyq that would aL1ow the applica'iqt to co;nsolidate
a[[ BMR units 'trt Bui(ding 2, rather than dispersing them in t7ie Townhouse/Rowhouse
portion of t7ie Project.
Height and Slope Setbaclc Waivers: According to ana1ysis prepared by the
architectural firm RRM, applying the height and s(ope setback (imitatioyqs would
physica)7y preclude the project by: (a) decreasi'iqg the aynotmt of proposed open space
ayzd layqdscaped areas below what is otherwise required by the Cih); (b) reducing the
average size of senior'bmits; (c) reduci;ng commercia7 ceiling heights; (D decreasing
above-ground parking and increasing rmderground parking. Therefore, the
development standards for the slope l'me setbac7c and height would physically preclude
the development.
W7qile the evidence in the record supports these waivers, there is also evidence
suggesting these waivers could have been supported as concessions, and City CovinciFs
preferertce would have beert to approve t7iese modificatioyqs as concessions
h) If a reduction in off-street parking standards for an eligible liousing
development is requested, a finding that all the applicable requirements in
Section 19.56.040.C have been met. (The project is eligible to provide O.5 space
per bedroom, which requires at least 11% very low income or 20% low income
units; within one-half mile of a Major Transit Stop; and unobstructed Access to
the Major Transit Stop.)
T7ie project proposes that 12% of the units on-site wil7 be limited to Very Low Income
seniors; it is within '!/2 mite of a Major Transit Stop at t7ie i'iqtersectioyz of N. Stelling
Road a;nd Stevens Cree7c Boulevard, defined, as relevant for this project, as the
intersection of two or more major bus routes with a frequency of service interva1 of 15
mirtutes or Less during the morning and afternooyq peak conmute periods; a;nd residents
wil7 7iave'vmobstructed access to this major transit stop because they will be able to
access it without eyqco'bmtering natura7 or constructed impediments. At a ratio of O.5
spaces per bedroom, 243 spaces cou(d be provided for the residences, but the project
proponent has elected to provide 320 spaces.
Reso.lution No. 21-118
Page 7
5. Since the applicable findings required above can be made, the decision-making body
may deny an application for a waiver only if one of the following written findings as
applicable to eacl"i type of application, supported by substantial evidence:
a) That tlie incentive or concession, or waiver would have an adverse impact on
real proper4q listed in tlie California Register of Historic Resources; or
There are 7?O affected Historic Resources in the viciyqity.
b) That the incentive or concession, or waiver would have a specific, adverse
impact upon public liealth or safety or the physical environment, ai"id tliere is
no feasible method to satisfactorily mitigate or avoid the specific, adverse
impact witliout rendering tl"ie residential project unaffordable to low- and
moderate-income households. For the purpose of this subsection, "specific,
adverse impact" means a significant, quantifiable, direct, and unavoidable
impact, based on objective, identified, written public health or safety
standards, policies, or conditions as they existed on the date that the
application for the residential project was deemed complete; or
As evidertced by the fiyqd'mgs and conchtsions of the Eyqviroyqmental Impact Report,
there exists'iqo sigyqificant, quantifiabLe, direct, and rmavoidabLe impacts, based On
objective, identified, written public healt7i or safety standards, policies, or conditions as
they existed on th.e date that the application for the residentia7 Project was deeyned
complete.
c) Tliat tlie incentive or concession, or waiver is contrary to state or federal law.
The requested waivers are ;not contrary to state or federa! Law.
6. The applicant is proposii"ig an alternative parking standard pursuaiit to Cupertino
Municipal Code Section 19.124.040(I), before approving an application that includes
a request for an alternative parking standard, the decision-making body shall make
the following findings, as applicable:
a) The applicant submits a detailed parking study wliich demonstrates that the
proposed use is compatible with the proposed parking supply. Adjacent on-
street parking may be iiicluded in the parking supply.
The applicant is not proposing to reduce the par7cing supply as required by CMC
19.124 ayqd 19.56. All park'mg required by the devedopment wiL7 be accommodated
onsite. The applicant has demonstrated that t7ie par7cing Lift will be ordy operationa1 by
staff of t7ie Assisted Living Facility and wiu be parked by the valet service emp(oyed by
Resolution No. 21-118
Page 8
t7ie operators of the bu.ilding. The project has been co;nditioned that the gifts wil1 be o;nly ( -
operated by the employees of the facility.
b) The project is owned or managed by a single entity.
The parking Lifts are on7y available by the residents, staff, and users of the Buildiiig I
retail. The alternative parking standard is applicable to the assisted Living facility ordy.
c) If adjacent properties are used to share parking, they are in close proximity to
each otlier, and reciprocal parking and access easements and maintenance
agreements are recorded on the applicable properties to run with the land.
No adjaceyqt properties mi2I be used to acconmodate the parking Lift a'iqd va(et services.
ML of those services wig( be conducted 07? -t7ie same parceL as t7ie assisted Living facility.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exlThbits, testimony aitd other evidence
submitted in this matter and the EIR and the Mitigation Monitoring aitd Reporting
Program for tlie Project (EA-2018-04), subject to the conditions whicli are enumerated in
this Resolution beginning on PAGE 3 thereof, and those contained in all other Resolutions
approved for tliis Project, ,y/i'- :
Tlie application for a Development Permit, Application No. M-2021-003, is liereby
approved, and that the conclusions upon which the findings and conditions specified in
this Resolution are based are contained in tlie Public Hearing record concerning
Application no. M-2021-003 as set forth in the Minutes of the City Council Meeting of
December 21, 2021, and are incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS
DEVEI,OPMENT DEPARTMENT
1. APPROVED EXHIBITS
ADMINISTERED BY THE COMMUNITY
Approval is based on the plan set dated December 15, 2021, consist-iltg of 14 sheets
labeled as Westport Cupertino Building 1: Enhanced Senior and Living Project,
GOO - Gl, and AIO-A31, drawn by Steinberg Hart except as may be amended by
conditions in tl"iis resolution.
2. ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible to verify all pertinent properff data
including but not limited to proper'cy boundary locations, building setbacks,
proper'cy size, building square footage, any relevant easements and/or
ResoIut-ion No. 21-118
Page 9
construction records. Any misrepresentation of aity property data may invalidate
tliis approval aiid may require additional review, including any misrepresentation
related to the note on the Vesting Tentative Map that tlie Townhouse/Rowhouse
units will be for-sale.
3. CONCURRENT AND PRIOR APPROV AL CONDITIONS
The conditions of approval contained in file nos. EXC-2021-003, and ASA-2021-007
shall be applicable to this approval. Tlie conditions of ;approval contained in file I-IOS.
TR-2018-22, TM-2018-03, TM-2021-002, DP-2018-05, U-2019-03, EXC-2019-03 and EA-
2018-04 shall be applicable to this approval iutless in conflict with the conditions of
approval of tl"'iis resolution.
4. ANNOT ATION OF THE CONDITIONS OF APPROV AL
The conditions of approval set forth shall be incorporated into and annotated on
the first page of the building plans.
5. CONSULT ATION WITH OTHER DEP ARTMBNTS
The applicant is responsible to consuIt witli otl'ier departments aitd/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.
6. DEVELOPMENT ALLOCATION
The applicaiit shall receive an allocation of 237 of tlie residential unit allocations
for the Heart of the City Special Area. By requesting only one concession prior to
City Council approval of these first development permits, the applicant has
waived any future claim to a second concession.
7. INDEMNIFICATION
To the fullest extent permitted by law, the applicant shall agree to iiidemnify, defend
with the attori"'ieys of the City's choice, and liold liarmless 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 tlie indemnified parties or one or more of the inden'uiified
parties aiid the applicant related to any Ordinance, Resolution, or action approving
the project, the related entitle'inents, 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
Resolution No. 21-118
Page 10
expenses incurred in connection with such proceeding whether incurred by tlie
Applicant, the City, or the parties initiating or bringing such proceeding
Tlie 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 incIude amounts paid to the City's outside counsel aitd shall include City
Attorney time and overliead costs and other City staff overhead costs and any costs
directly related to the litigation reasoi-iably incurred by City. The applicant shall
likewise agree to indemnify, defend, and ho!d harmless the indemnified parties from
and against ai'iy damages, attorneys' fees, or costs awards, including attorneys' fees
awarded under Code of Civil Pfflocedure section 1021.5, assessed or awarded against
the indemnified parties. The Applicant shall cooperate with the City to enter a
Rei'i'nbursement Agreement to govern any such reimbursement.
The Applicant shall agree to (witliout 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
tlie 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.
8. NOTICE OF FEES, DEDICATIONS, RESERV ATIONS, OR OTHER BXACTIONS
The Conditions of Project Approval set fortl"i lierein may include certain fees,
dedication requirements, reservation requirements, and other exactions.
PASSED AND ADOPTED at a reg,ular meeting of the City Council of tlie City of
Cupertino this 21"t day of December, 2021, by the following vote:
Vote
AYES:
NOES:
ABSENT:
ABST AIN:
Members of the City Council
Paul, Chao, Moore, Wei, Willey
Noi'ie
None
None
Resolution No. 21-118
SIGNED:
i /1- /zbr
5ClffiOr7cyOfPCauupl,-e€r
Date
ATTEST:
/y '/ /12-/Z-?_
I(i'rsten-Squarcia,' Ci'!Clerk
l-
Date
Page II
1271494.8
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