18 Critzer Appeal
PUBLIC WORKS DEPARTMENT
Summary
AGENDA ITEM
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AGENDA DATE ADril4. 2006
SUBJECT AND ISSUE
Hearing on Appeal by David and Margaret Critzer and Jowei Chen of the Notice of
Determination by the City Manager denying the Appeal of the Community Development
Director's decision regarding the installation of a bathroom window at 20272 Northcove
Square and Recommendation by Staff to deny the Appeal.
BACKGROUND
On January 17, 2006 the City Council had scheduled a hearing (Item 23, Council Agenda
of 1-17-06) on the appeal of David and Margaret Critzer and Jowei Chen of the City
Manager's determination regarding the installation of a bathroom window at 20272
Northcove Square.
Unfortunately, due to an inadvertent error in assembling the lengthy Council meeting
agenda packet, the letter and attachments for the appeal from Mr. James Eller, the
attorney representing the appellants, were not received by the Mayor and City Council
Members. Therefore, on recommendation of the City Staff, the City Council acted to
postpone the hearing on the appeal to Monday February 27, 2006 at 6:45 PM.
However, on Friday February 24,2006, the City received a subsequent letter from Mr.
Eller (dated February 23, 2006) in support of the same appeal. Since this letter was not
received until one working day prior to the Council hearing, with the consent of the
appellant, staff recommended and the Council approved a further postponement to
April 4, 2006.
James Eller letter of F ebruarv 23
In reviewing this most recent correspondence from Mr. Eller on behalf of the appellants,
David and Margaret Critzer and Jowei Chen, staff cannot find any new, relevant
information that would in any way alter the basis for the original determination by the City
Manager to deny the appeal nor the staff's current recommendation to deny the appeal.
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The letter simply further alleges, as in previous letters, the appellants assertion that the
City has erred in its interpretation and application of the Cupertino Municipal Code in
making the original determination by the Community Development Director to issue the
building permit on February 13, 2004 as well as attempting to make the same case in the
appeal of the City Manager's determination of October 25,2005 to deny the appeal.
Therefore, attached to this report is the most current letter from Mr. James Eller dated
February 23, 2006 noted above and the original appeal by Mr. Eller on behalf of the
Critzers and Jowei Chen dated November 30, 2005 along with various attachments to the
appeal. A letter from Mr. Steven White dated January 10, 2006 representing the
Northpoint Homeowners Association is also attached.
Finally, enclosed for the Council's consideration is the original staff report from the
January 17, 2006 meeting, which recommends that the appeal be denied The January 17,
2006 report is the first attachment to this report since it articulates the City staff's
complete response to the original appeal and includes the November 15, 2005 Notice of
Determination of the City Manager's denial of the appeal.
STAFF RECOMMENDATION
It is recommended that the City Council deny the Appeal by David and Margaret Critzer
and Jowei Chen of the Determination by the City Manager that the Community
Development Director acted properly and in full compliance the Cupertino Municipal
Code in issuing the building permit for the Modification to install a window in the upper
bathroom at 20272 Northcove Square.
Submitted by:
Approved for submission:
~~::J~uutf
Director of Public Works
David W. Knapp
City Manager
Attachments:
January 17, 2006 Staff Report
November 15, 2005 Notice of Deterrnination by City Manager
February 27, 2006 Staff Report
Appeal Letter dated February 23,2006 from James Eller
Appeal Letter and enclosures from James Eller dated November 30,2005
Letter from Steven White dated January 10, 2006
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CITY OF
CUPEI\11NO
Plml Tr WORKS DFPARTlVTFNT
Summary
AGENDA ITEM
AGENDA DATE January 17. 2006
SUBJECT AND ISSUE
Hearing on Appeal by David and Margaret Critzer and Jowei Chen of the Notice of
Determination by the City Manager denying the Appeal of the Community Development
. . Director's decision regarding the installation ofa bathroom window at 20272 Northcove
Square and Recommendation by Staff to deny the Appeal.
INTRODUCTION
On September 6,2005, the Council heard an appeal filed by David and Margaret Critzer
to the City Manager's determination to dismiss an administrative appeal hearing
regarding the Community Development Directors decision to issue a permit for the
installation of a bathroom window at 20272 Northcove Square. The hearing was
dismissed because the City learned that a civil suit in Superior Court had been previously
served on the parties regarding the same issue in dispute.
Upon hearing the appeal, the Council directed the City Manager to hold the
Administrative hearing (which was dismissed without prejudice, allowing it to be
reconsidered at a later date) and that hearing was held on October 25,2005. Following the
hearing, the Director of Public Works, as the hearing officer designated by the City
Manager City, issued a Notice of Determination dated November IS, 2005 finding that
the Community Development Director acted properly and in full compliance with the
Cupertino Municipal Code in issuing the building permit for the Modification to install a
window in the upper bathroom at 20272 Northcove Square.
On December 1,2005 the Mr. James Eller, the attorney representing the Critzers and
Ms.Chen filed an appeal to that notice of determination with the City Council. This report
and the attached Notice of Determination respond to the appeal.
BACKGROUND
In December of2003 Mr. Jerry Enos, the owner and resident at 20272 Northcove Squáre
requested that the Northpoint Homeowners Association (HOA) approve his request to
install a window in the upstairs bathroom of his œsidence. The HOA, in January of2004,
approved this request which then, in accordance with the Cupertino Municipal Code
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(CMC), formed the basis for the issuance of a building permit by the City to install the
window. The window was installed in late February of2004. Mr. Enos has recently sold
his home and relocated to Nevada. The new owner is Mr. Darien Tung who has been
advised of these most recent transactions.
By letter on May 17, 2004, Attorney Christian Picone representing the Critzers requested
that the City review the issuance of the permit, alleging that it violated city ordinances
and claiming that the window is a "visual privacy intrusion".
Efforts were subsequently made at several points throughout the next year by the City to
assist in resolving the differences between the parties including a City sponsored
mediation through Project Sentinel. This effort culminated in a letter from the Director of
Community Development on April 27, 2005 summarizing those efforts and noting that at
some point the HOA reportedly offered to pay for the installation of obscure glass in the
window and further noting that this was an acceptable solution to the City and, as such
. would conclude the City's involvement in the matter. At some point thereafter, obscure
glass was actually installed in the window.
However, on May 10, 2005 the Critzers and Ms. Chen by letter requested a meeting with
the City Manager to appeal the Community Development Directors position as stated
above from his letter of April 27, 2005. Attempts were made by the City Manager to
schedule a hearing on June 6, 2005 and subsequently July 12, 2005.
The City then received a letter from James Eller, who apparently was now the attorney
representing the appellants. (Mr. Picone had earlier advised the City that he no longer
represented the Critzers.) Mr. Eller requested another postponement, which was then set
for July 19, 2005.
It was at this point that the City learned of the case pending in Superior Court on the same
issue and dismissed the hearing. As noted above following Council direction on the
Critzer's appeal of this dismissal, the hearing was held on October 25,2005 with the
Director of Public Works acting as the hearing officer designated by the City Manager.
The Notice of Determination by the City Manager dated November 15, 2005 denying the
Appeal is attached.
APPEAL OF CITY MANAGERS DETERMINATION TO COUNCIL
On December 1, 2005 attorney James Eller representing the Critzers and Ms. Chen filed
an appeal to the City Manager's determination of November 15, 2005. The appeal is to
the City Council and the appeal hearing is scheduled for January 17, 2006.
In reviewing the appeal letter from Mr. Eller, while detailed and replete with legal
citations and references along with a chronology of events, it does not in any material way
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present any new relevant fact or compelling argument to support the appeal. The report
can be summarized into three basic components as follows:
"..City Manager Mischaracterizes the Proper Standard for Modifications"
"..City Cannot Permit This Violation of Its Ordinance to Stand"
The Notice of Determination clearly and correctly cites the applicable provisions of the
Cupertino Municipal Code (CMC) which governed the decisions of the Community
Development Director in that "The proper procedure for applications for a modification
permit for a property in the RlC zone is found in CMC Sections 19.44.080A and
19.44.080B which specifically provides that the applicant, along with other required
submittals shall also include a letter of approval from the appropriate Homeowners
Association." This procedure was followed and the appellant's argument to the contrary,
and notwithstanding their references to various sections of the code, simply has no merit.
As such, there has been no violation of any ordinance on this matter so the second claim
. . regarding a violation is not relevant or applicable.
"..City Cannot Allow the Appellants Due Process Rights to Be Violated"
This entire claim is directed at the Home Owners Association in their alleged failure to
notify the Critzers of the proposed changes. The Notice of Determination references this
point in noting that ".. .there is no legal requirement for the City to notice any party or
property beyond the permit applicant when the permit is issued. Whatever noticing may
or may not be done by the HOA is strictly within the purview of the HOA and the City
has no jurisdiction or responsibility for the HOA's process beyond compliance with
applicable law." It further notes that "..whatever dispute remains following this finding
and determination, is strictly a civil matter by and between the private parties involved
and no further action is required or necessary by the City of Cupertino."
This is clearly stated in the determination and the appellants offer nothing further to
support their position except demanding that the City take jurisdiction over the HOA's
procedures and policies. It is not, as the appellant suggests, a matter of the City
".wash(ing) its hands of any defects in the HOA's process." Whatever failing the
appellants believe occurred in the HOA transactions is a matter solely between the
property owners and their Association.
CONCLUSION
The determination by the Director of Public Works was carefully considered and, in
evaluating of all the facts and representations of the various parties it concluded that the
Community Development Director's Decision to issue the building permit for the
modification to install the window was found to be fully compliant with the existing
provisions of the Cupertino Municipal code, and as result the Appeal was Denied.
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The appeal, as noted variously above, does not provide any new relevant fact, evidence or
other compelling basis to alter the Determination of the City Manager of November 15,
2005. Therefore staff recommends that the Council uphold the Determination by the
Director of Public Works on behalf of the City Manager and deny the appeal of the
determination by David and Margaret Critzer and J owei Chen.
ST AFF RECOMMENDATION
It is recommended that the City Council deny the Appeal by David and Marg'aret Critzer
and Jowei Chen of the Determination by the City Manager that that the Community
Development Director acted properly and in full compliance the Cupertino Municipal
Code in issuing the building permit for the Modification to install a window in the upper
bathroom at 20272 Northcove Square.
Submitted by:
Approved for Submission:
~~~V(aUsd
Director of Public Works
David W. Knapp
City Manager
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City Hall
10300 Torre Avenue
Cupertino, CA 95014-3255
(408) 777-3354
DEPARTMENT OF PUBLIC WORKS
Ralph A. Qualls, Jr., Director
Date of Determination: November 15, 2005
David and Margaret Critzer
20282 Northcove Square
Cupertino, CA 95014
Jowei Chen
20292 Northcove Square
Cupertino, CA 95014
Jerry Enos
2547 Deora Way
Henderson NY 89052
Northpoint Homeowners Assn
Attn: Celeste Strarr
10880 Northpoint Square
Cupertino, CA 95014
Darien Tung
20272 Northcove Square
Cupertino, CA 05014
Steven M. White
White & MacDonald
99 Almaden Blvd, Ste 1050
San Jose, CA 95113
James Eller
Eller and Associates
60 South Market Street
San Jose, CA 95113
Subject: Hearing on Appeal by Critzer regarding window installation at 20272
Northcove Square - Notice of Determination
This notice refers to the Hearing held at 2:00 PM on October 25, 2005 at the Cupertino
City Hall on the above subject which I conducted as the City Manager's designated City
Hearing Officer on this matter. The following persons were present:
David and Margaret Critzer, Appellants
James Eller, Esq. Eller and Associates (Representing the Appellants)
Leslie Starr, Northpoint Homeowners Association (HOA)
Stephen White, Esq., White and MacDonald (Representing Northpoint HOA)
Steve Piasecki, Director of Community DevelopmentZi of Cupertino
Ciddy Wordell, Principal Planner, City of Cupertino
Eileen Murry, Esq., Asst. City Attorney, City of Cupe . 0
Carol Shepherd, Admin. Assistant, City of Cupertino
Issue of ADDeal
The Appellants in this matter, Margaret and David Critzer and Jowei Chen are appealing
the determination of the Director of Community Development to issue a building permit
under the provisions of Cupertino Municipal Code (CMC) to Jerry Enos for a building
Printed on Recycled Paper
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modification to install a window in the upper bathroom at 20272 Northcove Square in the
City of Cupertino: This residence is located in the Northpoint Condominiums, a
residential single-family cluster (RlC) development and the management of the
development rests with the Northpoint Homeowners Association (HOA).
The Appellants claim that this window, which faces their yard with their home being
visible from the bathroom window, creates a nuisance and invasion of their privacy. They
further claim that they received no notice of this modification to Mr. Enos' home and had
no opportunity to object until the window was actually being installed.
The Appellants cite CMC sections 19.44.060 Site Development Regulations and
19.44.080 Changes after Granting of a Cluster Zone as the basis for their claim of
invasion of privacy on this appeal. They also cite CMC section 1.09.180 as the basis for
claiming that the modification is a nuisance. They seek to have the City remedy the
situation because they claim that they had no prior notice and that the permit was not
properly issued for this modification.
Finding and Determination on the appeal:
I have carefully reviewed the written documentation presented by any and all parties
noted above and have reviewed the applicable sections of the Cupertino Municipal Code.
I have carefully considered the statements made at the hearing by the Appellants, the
Community Development Director and the Northpoint Homeowners Association.
Based on that review and consideration, I find that the Community Development Director
acted properly and in full compliance the Cupertino Municipal Code in issuing the
building permit for the Modification to install a window in the upper bathroom at 20272
Northcove Square.
The basis for this finding is that CMC section 19.44.060 cited by the Appellants relates to
the process followed in the initial design and planning reviews of a project and not to
. modifications. The proper procedure for applications for a modification permit for a
property in the RlC zone is found in CMC Sections 19.44.080A and 19.44.080B which
specifically provides that the applicant, along with other required submittals shall also
include a letter of approval from the appropriate Homeowners Association.
This process was properly followed as required by the CMC, as the Northpoint HOA
responded with its approval of the proposal and the building permit was issued in full
compliance with the law. Further, there is no legal requirement for the City to notice any
party or property beyond the permit applicant when the permit is issued. Whatever
noticing mayor may not be done by the HOA is strictly within the purview of the HOA
and the City has no jurisdiction or responsibility for the HOA's process beyond
compliance with applicable law.
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Finally, this installation of the window does not rise to the level of meeting the criteria to
be declared a nuisance since it is a minor change and it was installed in compliance with
existing regulations and procedures.
Since the Director's Determination to issue the building permit for the modification is
found to be fully compliant with existing provisions of the Cupertino Municipal code, the
Appeal is Denied.
Further, whatever dispute remains following this finding and determination, is strictly a
civil matter by and between the private parties involved and no further action is required
or necessary by the City of Cupertino.
Please note that my decision may be appealed to the City Council by filing an appeal with
the City Clerk of Cupertino within ten business days of the date of this Notice of
Determination.
Additional Comments
Apart and aside fÌ"om this determination, it is my general conclusion that the City has
made a considerable effort over a long period oftime, to help resolve the matter by
facilitating discussions between the private parties and through a City-sponsored
mediation, even though the City would typically have no obligation to do any of these
things.
In consideration of the discussion at the hearing regarding possible solutions in this
dispute that are outside the purview of the City, I am strongly encouraging the private
parties, including the Northpoint Homeowners Association, the Appellants and the
apparent new owner of the residence, Mr. Darien Tung, to work together to seek a
common, timely and equitable solution. The City has suggested this on numerous
occasions for an entire year.
Finally, it is my opinion and conclusion that the HOA is, irrespective of their stated view
to the contrary, best suited to facilitate that effort in order to seek a common end to this
dispute.
Sincerely,
to- ~ c..J. u ¿¿ u f-J..
Ralph A. Qualls, Jr. V
Director of Public Works
C: David Knapp, City Manager
Charles Kilian, City Attorney
Steve Piasecki, Director, Community Development
1~-9
CITY OF
CUPEIQ1NO
PUBLIC WORKS DEPARTMENT
Summary
AGENDA ITEM
AGENDA DATE February 27, 2006
SUBJECT AND ISSUE
. Hearing on Appeal by David and Margaret Critzer and Jowei Chen of the Notice of
Determination by the City Manager denying the Appeal of the Community Development
Director's decision regarding the installation of a bathroom window at 20272 Northcove
Square and Recommendation by Staff to deny the Appeal.
BACKGROUND
On January 17, 2006 the City Council had scheduled a hearing (Item 23, Council Agenda
of 1-17-06) on the appeal of David and Margaret Critzer and Jowei Chen of the City
Manager's determination regarding the installation of a bathroom window at 20272
Northcove Square.
Unfortunately, due to an inadvertent error in assembling the lengthy Council meeting
agenda packet, the letter and attachments for the appeal from Mr. James Eller, the
attorney representing the appellants, were not received by the Mayor and City Council
Members. In consultation with Mr. Eller and Mr. And Mrs. Critzer at the January 17,
2006 City Council meeting, rather than holding the hearing as scheduled, it was deemed
more appropriate to postpone the hearing in order for the Mayor and Council to have all
the documents before them.
Therefore, on recommendation of the City Staff, the City Council acted to postpone the
hearing on the appeal to Monday February 27,2006 at 6:45 PM. Attached to this report is
the appeal by Mr. James Eller on behalf of the Critzers and Jowei Chen dated November
30, 2005 along with various attachments to the appeal. A letter from Mr. Steven White
representing the Northpoint Homeowners Association is also attached. Finally, enclosed
for the Council's consideration is the original staff report from the January 17, 2006
meeting which recommends that the appeal be denied.
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STAFF RECOMMENDATION
It is recommended that the City Council deny the Appeal by David and Margaret Critzer
and Jowei Chen of the Determination by the City Manager that that the Community
Development Director acted properly and in full compliance' the Cupertino Municipal
Code in issuing the building permit for the Modification to install a window in the upper
bathroom at 20272 Northcove Square.
Submitted by:
Approved for submission:
~~u U Uf;.d
. Director of Public Works
j)d
David W. Knapp
City Manager
Attachments:
Appeal Letter and enclosures from J am~s Eller representing the Critzers et. al.
Letter from Steven White representing the Northpoint Homeowners Association
January 27,2006 Staff Report
November 15, 2005 Notice of Determination by City Manager
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ELLER & ASSOCIATES
ATTORNEYS AT LAW
60 SOUTH MARKET STREET, SUITE 1201
SAN JOSE, CALIFORNIA 95113-2351
TELEPHONE: (408) 299-0180
FACS1M[LE: (408) 271-0754
jelleresq@aol.com
CUPERTINO CITY CLERK
February 23,2006
VIA TELECOPY AND MAIL - 777-3333
Cupertino City Council
.City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Re: Appellants: David and Margaret Critzer
Installation of window at 20272 Northcove Square
Supplement to appeal of City Manager's denial of appeal
Cupertino City Council hearing date: February 27, 2006
Dear Members of the Cupertino City Council:
The purpose of this letter is to supplement the appeal (the "Appeal") filed with the
Cupertino City Council (the "Council") by the Appellants, David and Margaret Critzer
and Jowei Chen ("Appellants"), on November 30, 2005, and is submitted in response to
certain matters that were contained in the Summary (the "Summary") prepared by the
Director of Public Works (the "Director"), the hearing officer for the City Manager in the
administrative proceedings below, for consideration at the appeal hearing originally set to
be held before the Council on January 17,2006, and rescheduled for February 27, 2006.
At issue in this Appeal is the City Manager's decision to deny the Appellants'
appeal of the Community Development Director's decision to take no further action on
the Appellants' claims with regard to the installation of a second story master bathroom
window (the "Window") at 20272 Northcove Square (the "Property") in February 2004,
which was carried out pursuant to a building permit issued by the City of Cupertino (the
"City"). In the Summary, the Director sets forth several statements and positions that are
in error, which this letter shall address below.
In the Summary, the Director contends that the Appellants' argument that the
proper standard for issuing a modification permit in an RlC cluster zone is set fOl1h in
Section 19.44.080.F of the Cupertino Municipal Code (the "Code"), "simply has no
merit." Summary, p. 23-3. The Director asserts instead that the applicable standard is
found in Sections 19.44.080.A and 19.44.080.B of the Code, and that the City fo!1owed
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Cupertino City Council
City of Cupertino
February 23,2006
Page 2
this ordinance. ¡d. As pointed out in the Appeal, however, by their very language, the
provisions cited by the Director do not govern applications for permits to modify specific
units in an RlC cluster zone, but instead address modifications to the development plan or
the covenants for entire projects in an RlC cluster zone. Appeal, p. 5. In other words,
these provisions govern the original development of such projects, not the subsequent
modifications of individual units in such projects.
Further, the position taken by the Director would render Section 19.44.080.F of
the Code superfluous. If, as the Director contends, Sections 19.44.080.A and
19.440.080.B govern changes to individual units in such projects after the original
development of such projects, Section 19.44.080.F would have no reason to exist. Thus,
the Director's position on these ordinances is in error, as it is a well-settled principle of
. California statutory interpretation that a law may not be construed in such a manner as to
render another law meaningless. See, Brewer v. Patel (1993) 20 Cal. App. 4th 1017, 1022
(a statutory interpretation that renders part of a regulation surplus is erroneous). In view
of the above facts, the Appellants' position, that SectionI9.44.080.F requires that the
design standards set forth in Section 19.44.060 (which include the policy of "preclud(ing]
visual intrusion into private outdoor yards 9r1ftterior spaces") be applied to structural
modifications in the cluster zone, suchJ!S"the installation of the Window at the Property,
is the correct one. ( ~ . 2. .
If the Council were to adopt the Director's position, it would effectively negate
the City's express policy, as set forth in Section 19.44.060, to protect the privacy of the
residents in the RlC cluster zone. This result would be consistent with the Director's
apparent view that the Appellants' privacy claims are insignificant and unworthy of the
City's protection. Contrary to the City's policy, as articulated in the Code, the Director's
views on this issue permeate both the Summary and the decision by the City Manager to
dismiss the Appellants' appeal, and are exemplified by mischaracterizations and errors,
as follows:
I. The Director states that obscure glass was installed in the Window
(Summary, p. 23-2); the Director fails to note, however, that the Window
could still be opened, thus negating the effect of the obscure glass, and
that the Appellants had actually reached an agreement through mediation
with the Northpoint Homeowners Association ("HOA") to install in the
place of the existing Window an obscure glass "awning" window (a
window hinged at the top that swings out at a limited angle to open only a
small space for ventilation, fully blocking the view from the Window) that
would protect the Appellants' privacy. Unfortunately, the prior owner of
the Property, Jerry Enos ("Enos") refused to agree to the installation of
this type of window.
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Cupertino City Council
City of Cupertino
February 23, 2006
Page 3
2. The Director states that "[ w ]hatever failing the appellants believe occurred
in the HOA transactions is a matter solely between the property owners
and their Association," but fails to recognize that the City also has a duty
to ensure that the interests of neighboring property owners are protected in
the permit process, as established by Section 19.44.080.B of the Code,
which states that the City Planner must make a finding that the proposed
modifications do not affect "the interests of owners of property within or
adjoining" the property in question before issuing a building pelmit. It is
simply unacceptable that the City can justify having made such a finding
without having first either (a) inquired into the adequacy of the HOA's
procedures with regard to the interests of other owners (which would have
revealed the defects of those procedures) or (b) made its own investigation
into whether the interests of the other owners would be affected.
In his zeal to trivialize the Appellants' position, the Director glosses over the
HOA's violation of certain legal requirements for its consideration of applications for
structural modifications, e.g., the rules established in Cohen v. Kite Hill Community Assn.
(1983) 142 Cal. App. 3d 642,652,654 (approval of a nonconfonning structure by a
homeowners association "is analogous to the administrative award of a zoning variance,"
which requires a public hearing with notice to affected persons, and a decision to approve
such a structure "must be 'in keeping with the general plan for the improvement and
development of the Project,' and.. . must be made in good faith and not arbitrary.") and
California Civil Code § 1378(a)(3) (homeowners association may not approve a physical
change that violates a law or ordinance). In addition, subsequent to this dispute. the HOA
began to provide specific notice of applications for structural modifications to affected
homeowners.
In view of the foregoing, it is difficult to understand how the Director can justify
its support of a decision that effectively punishes the Appellants, who have been deprived
of important legal benefits as a result of sloppy procedures and violations of the law on
the part of the City and the BOA, and that effectively rewards the City, the BOA and the
owner of the Property for their intransigence, sloppiness, and disregard for the law by
absolving them for their failures. It is thus respectfully requested that the Appellants be
granted the relief requested in the Appeal.
14549
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ELLER & ASSOCIATES
ATTORNEYS AT LAW
60 SOUTH MARKET STREET, SUITE 1201
. SAN JOSE, CALIFORNIA 95113-2351
TELEPHONE: (408) 299-0180
FACSIMILE: (408) 271-0754
jelleresq@aol.com
November 30, 2005
Cupertino City Council
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Re: Appellants: David and Margaret Critzer and Jowei Chen
Installation of window at 20272 Northcove Square
Appeal of City Manager's denial of appeal
Dear Members of the Cupertino City Council:
This letter is submitted to you on behalf of the Appellants, David and Margaret
Critzer and Jowei Chen ("Appellants"), in support of their appeal of the City Manager's
determination to deny their appeal of the Community Development Director's decision to
take no further action on the Appellants' claims with regard to the installation of a second
story master bathroom window (the "Window") at 20272 Northcove Square (the "Subject
Property") in February 2004, pursuant to a building permit that was issued by the City of
Cupertino (the "City").
Appellants have taken this action because, as currently installed, the Window
affords direct, unobstructed views from the Subject Property into their homes located at
20282 Northcove Square (the "Critzer Home") and 20292 Northcove Square (the "Chen
Home"), contrary to Sections 19.44.060 and 19.44.080 of the Cupertino Municipal Code
(the "Code"), prohibiting structural alterations that create visual intrusions into private
areas in cluster zones.
By this appeal, the Appellants ask that the City Council direct City staff to revoke
or amend the building permit that was issued for the construction of the Window in order
to require that the Window either be removed or modified to completely and permanently
eliminate any view from the Window into the Appellants' homes, as mandated by the
Code sections cited above.
The grounds for this appeal are as follow.s: (1) The City Manager's ruling is in
error because it mischaracterizes the proper standard that must be applied by the City in
its consideration.of applications for the modification of structures located in the City's
RIC zone; (2) the City cannot allow such a violation of its ordinances to stand; and (3)
the City must not countenance the use of its permitting procedures to violate the due
process rights of Appellants.
/ 't-IS
Cupertino City Council
City of Cupertino
November 30, 2005
Page 2
A. Statement of Relevant Facts
Northpoint Homeowners Association (the "HOA") is a California nonprofit
mutual benefit corporation that owns the common areas of that certain common interest
development in Cupertino known as Northpoint ("Northpoint"). The HOA oversees
management and control of the townhouses, condominiums and common areas within
Northpoint through its board of directors, subject to and governed by the City's zoning
ordinances and the HOA's covenants, conditions and restrictions ("CC&Rs") and bylaws;
relevant provisions of these governing instruments are set out below.
Northpoint is zoned (P) RIC, which is a residential single-family cluster zone
subject to Chapter 19.44 of the Code, which governs the development and modification
of such planned communities. Section 19.44.060.F.2, relating to site development
regulations in the residential cluster zone, provides that "[t]he relationship between
adjoining units shall be designed in such a manner so as to preclude visual intrusion into
private outdoor yards or interior spaces." (Emphasis added.) Section 19.44.080.F,
relating to changes that are made after a residential cluster zone is granted, states that
"[n]o building, structure or land shall be hereafter erected, structurally altered or
enlarged in a residential cluster zone, otherwise than in conformance" with all of the
provisions of Chapter 19.44 (emphasis added).
Section 5.01 of the CC&Rs mandates that no structures may be built or altered in
Northpoint until an application for construction or alteration has been submitted to the
HOA's board for approval. Section 5.02 of the CC&Rs allows the HOA's board to
assign the review of such applications to an architectural committee, and Section 8.0 I of
the bylaws requires the board to appoint such a committee. Section 5.06 of the CC&Rs
states that the HOA's board may prescribe standards, specifications or conditions for the
construction or alteration of structures in Northpoint. Section 10.0 I of the CC&Rs
provides that the HOA, the City, and any owner of property at Northpoint shall have the
right to enforce all of the provisions of the CC&Rs and any rule or regulation adopted
thereunder. Section 11.01 of the CC&Rs states that the HOA and any property owner in
Northpoint has the right to enforce all restrictions, conditions, covenants, reservations,
liens and charges imposed by the City. Section 5.01 of the bylaws states that regular
board meetings shall be held monthly without notice. Copies of the above CC&Rs and
bylaws are attached hereto as Exhibit "A" and Exhibit "B", respectively.
Appellants own and reside in homes located at 20282 (Critzer:) and 20292 (Chen)
Northcove Square in Northpoint. On or about December 22,2003, Jerry Enos ("Enos"),
who then owned and resided at the Subject Property, a home adjacent to the Appellants'
in Northpoint, submitted an application to the HOA's board for permission to install the
Window in his home. That application stated that Enos would install one vinyl window
in his master bathroom on the upstairs outer wall facing the rear fence of another home-
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Cupertino City Council
City of Cupertino
November 30, 2005
Page 3
in other words, facing the Critzer Home and the Chen Home. At that time, the master
bedroom of Enos's home had a solid wall facing the Critzer Home and the Chen Home.
The architectural review committee and board of the HOA then took up Enos's
application at one of their regular meetings, and Enos's application was approved on or
about January 20, 2004. Prior to that time, neither ofthe Appellants ever received any
notice from either Enos or the HOA regarding Enos's application or the meeting at which
Enos's application would be considered. Some time after January 20, 2004, Enos filed an
application with the City for a building permit to install the Window, and the City later
approved that application and issued the permit in reliance on the HOA's prior approval
of Enos's application. The Appellants did not learn until February 24,2004, that changes
to the Subject Property had been considered or approved by the City or the HOA, when
. they saw the Window being installed in the Subject Property on that date.
Due to grade differences in Northpoint, the second story of the Subject Property
affords a direct view into the first floor of the Critzer Home; the Window has a direct
view all the way through the Critzers' living room clear to the interior wall on the farthest
side of their living area from the Subject Property. The Window also has a view into the
Chen Home. Due to the location of the Window, Appellants have been forced to choose
between protecting their privacy against visual intrusion resulting from the Window by
keeping their blinds and shades closed, or being able to enjoy natural light, fresh air, and
a view of their yard and common area landscaping in their homes.
Immediately on learning of the window's installation, the Appellants challenged
the HOA's approval of Enos's application and the City's issuance of its building permit
with representatives of both the HOA and the City. After several months of discussions,
Ciddy Wordell, a City Planner, wrote a letter to the HOA on November 10, 2004, asking
the HOA to contact the City in order to determine the best course of action to address the
situation, as the City had consulted with the HOA prior to approving the building permit
for the Window, and relied upon the HOA to consult with and represent the interests of
all affected property owners, and as Ms. Wordell had since determined that the Window
created privacy issues for Appellants. This letter resulted in a mediation between the
Appellants and the HOA conducted by Project Sentinel in January 2005; Enos did not
participate in the mediation, and later sold the Subject Property to Darien Tung ("Tung")
in July 2005. In their mediation, the Appellants and the HOA reached an agreement,
subject to Mr. Enos's acceptance, to install at the Subject Property in the Window's place
an obscure glass "awning" window (a window hinged at the top that swings out at a
limited angle to open only a small space at the bottom for ventilation, blocking the view).
Mr. Enos ultimately would not agree to the solution proposed in mediation, and the HOA
would not agree to the solution then proposed by Appellants, to increase the height of the
fence between their homes and the Subject Property to block the view from the Window.
The HOA later proposed to pay to install obscure glass in the Window, but Appellants
rejected this idea as it would not block the view from the Window if it were opened.
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Cupertino City Council
City of Cupertino
November 30, 2005
Page 4
On April 27, 2005, Steve Piasecki, Director of Community Development, wrote
to David Critzer to advise him that the City would take no further action with regard to
the Window on the ground that he believed that an acceptable compromise had been
proposed by the HOA because the HOA offered to pay for the installation of obscure
glass in the Window. The Director of Community Development further stated that, if
David Critzer disagreed with the City's position, he had the right to appeal the decision to
the City Manager within ten business days. As the Appellants' view is that installation of
obscure glass in the Window will not protect their privacy as long as the Window can be
opened, the Appellants filed an appeal with the City Manager.
The City Manager dismissed this appeal without a hearing on July 13,2005,
however, based on the belief that the Critzers' pending civil lawsuit against the HOA
. rendered that proceeding moot. The Appellants then appealed the City Manager's
dismissal to the City Council, asking that the City Council either revoke the building
permit and require the removal of the Window or refer the matter back to the City
Manager for a hearing; a copy of this law firm's appeal letter to the City Council dated
July 27,2005, setting forth the Appellants' position with regard to the City Manager's
dismissal of their appeal and summarizing the underlying facts of this dispute, including
copies of Appellants' appeal letter to the City Manager and copies of Ciddy Wordell's
and Steve Piasecki's correspondence referred to above, is attached hereto as Exhibit "C".
After a hearing held on September 6, 2005, the City Council remanded the matter
to the City Manager for a hearing on the merits, which was held October 25, 2005 before
the Director of Public Works, acting as the City Manager's designated hearing officer.
On November 15,2005, the Director of Public Works issued the City Manager's Notice
of Determination, denying the Appellants' appeal based on a finding that the Community
Development Director acted properly and in full compliance with the Code in issuing the
building permit for the Window, on the ground that Section 19.44.060 of the Code relied
upon by Appellants relates only to design and planning issues, not modifications, and that
modifications are governed by Sections 19.44.080.A and 19.44.080B. The City Manager
also found that the City had no obligation to give notice to affected homeowners and that
the City had "no jurisdiction or authority for the HOA's process beyond compliance with
applicable law." Finally, the City Manager found that the installation of the Window did
not rise to the level of a nuisance as it was a "minor change" installed "in compliance
with existing regulations and procedures." This appeal follows.
B. The City Manager Mischaracterizes the Proper Standard for Modifications
The City Manager ruled that "the Community Development Director acted
properly and in full compliance [with] the Cupertino Municipal Code in issuing the
building permit" to install the Window. The City Manager justified his ruling as follows:
The basis for this finding is that CMC section 1944.060 cited by the
Appellants relates to the process followed in the initial design and planning
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Cupertino City Council
City of Cupertino
November 30, 2005
Page 5
reviews of a project and not to modifications. The proper procedure for
applications for a modification permit for a property in the RIC zone is found in
CMC Sections 19.44.080A and 19.44.080B which specifically provides that the
applicant, along with other required submittals shall also include a letter of
approval from the appropriate Homeowners Association.
The City Manager's basis for his finding, however, is in error. First, Sections
19.44.080A and 19.44.080.B of the Code do not govern applications for a modiíìcation
permit for a property in an RlC zone; rather, they address changes to the development
plan or the covenants in place with regard to such a project. Those sections read as
follows:
A. In the event that the applicant shall desire to make any change,
alteration or amendment in the approved Development Plan or covenants after a
cluster zone has been granted by the City Council, a written request and revised
development plan shall be submitted to the Building Department. Along with the
plans, a letter of approval from the appropriate homeowners association or
architectural board shall be submitted. [Emphasis added.]
B. If the number of dwelling units is not increased, and the City Planner
makes a finding that the changes are minor and do not affect the general
appearance of the area or the interests of owners of property within or adjoining
the development area, the building permit will be issued. If the homeowners
association fails to act, the Planning Director may make a determination of
significance. The Planning Director may issue a building permit or require that
the applicant receive architectural and site approval. If the homeowners
association issues a statement opposing the proposed modifications, the property
owner must submit for architectural and site review. Building permits will not be
issued until City Council approves the request.
Those provisions deal with changes to the design of a project, not to modifications
of individual units, and so are thus inapplicable to the type of modification in question in
the instant situation, contrary to the City Manager's view.
Second, the City Manager is in error in stating that the Appellants rely solely on
Section 19.44.060 of the Code for their position that the City must correct its erroneous
approval of the installation of the Window. As clearly stated in their appeal letter (p. 2,
Section 2(b)), the Appellants also rely on Section 19.44.080.F of the Code, which is a
portion of the section entitled "Changes After Granting of a Cluster Zone," and which
provides as follows:
F. No building, structure or land shall be used, and no building or
structure shall be hereafter erected, structurally altered or enlarged in a
residential cluster zone, otherwise than in conformance with the following
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Cupertino City Council
City of Cupertino
November 30, 2005
Page 6
provisions, except that uses, buildings and structures lawfully in existence at the
time the ordinance codified in this title takes effect may remain as long as no
alterations take place (except those alterations permitted by Chapter 19.112)
[relating to nonconforming uses]. [Emphasis added.]
While it is clear that Section 19.44.060 establishes design standards for the cluster
zone, it is equally clear that Section 19.44.080.F establishes that the design standards of
Section 19.44.060 are equally applicable to structural alterations. As such, those two
sections, taken together, create a standard under the Code for the review and approval of
structural alterations that prohibits "visual intrusion into private outdoor yards or interior
spaces." This standard should have been taken into account by the HOA and the City in
their consideration and review of the application to install the Window, but clearly was
. not until after the fact, when Ciddy Wordell noted in her letter that the window created
"privacy problems" for the Appellants.
In view of the foregoing, the City Manager's mling is in error, and the City
Council should overrule that ruling and render a decision in favor of Appellant by
requiring the City's Community Development Director to revoke or amend the existing
permit in order to require that the Window be either removed or modified so as to
completely and permanently eliminate any view from the Window into the Appellants'
homes, as required under Sections 19.44.060 and 19.44.080 of the Code.
C. The City Cannot Permit This Violation of Its Ordinance to Stand
As set forth above, it is Appellants' position that the Window violates applicable
Code provisions and should not have been installed, pursuant to Sections 19.44.060 and
19.44.080 of the Code. Furthermore, the CC&Rs and bylaws ofHOA incorporate these
standards and are enforceable under those governing documents. Specifically, Section
11.0 I of the CC&Rs of HOA provide that that the HOA and any property owner in
Northpoint has the right to enforce all restrictions, conditions, covenants, reservations,
liens and charges imposed by the City, including the above-referenced Code provisions
prohibiting the installation of the Window.
In light of the fact that the Window's approval and installation violates the Code
as well as the CC&Rs and bylaws of the HOA, the Window constitutes a public nuisance
under Sections 1.09.030 and 1.09.180 of the Code and Civil Code § 3479. The City, by
and through its administrative officers, has a duty to enforce the Code and all applicable
laws. See, Taliaferro v. Wampler (1954) 127 Cal. App. 2d 306,309. As such, the City
may require that the Window be removed as a nuisance, even though the City has already
issued a permit for its installation. See, o 'Hagen v. Board of Zoning Adjustment (1971)
19 Cal. App. 3d 151, 158. As such, the City may, indeed must, require that the Window
be either removed or modified so as to completely and permanently eliminate any view
from the Window into the Appellants' homes, as requested by Appellants.
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Cupertino City Council
City of Cupertino
November 30, 2005
Page 7
D. The City Cannot Allow the Appellants' Due Process Rights to Be Violated
In support of his denial of the Appellants' appeal, the City Manager stated that
"[w]hatever noticing [that] mayor may not be done by the HOA is strictly within the
purview of the HOA and the City has no jurisdiction or responsibility for the HOA's
process beyond compliance with applicable law." This statement is mistaken for two
reasons. First, it is clear that the City relied on the HOA to consult with and represent the
interests of all affected property owners in its consideration of the installation of tlle
Window, as stated by Ciddy Wordell; as such, the City should not be able to wash its
hands of any defects in the HOA' s process. Second, to the extent the City relied on the
HOA to review the application for the installation of the Window in an adequate manner,
the City is responsible for any rights violations that may have occurred on the HOA's
. watch.
In his letter to the City Manager dated July 7, 2005, counsel for the HOA argues
that the Appellants were given proper notice of Enos's application to install the Window;
in support of this position, he states that the HOA's CC&Rs do not require that individual
notice be sent to homeowners when HOA's board considers recommendations from its
Architectural Committee, which reviews all homeowners' applications to modify their
homes. Because the HOA takes up those recommendations at every "regularly noticed
meeting" of the board, the HOA's counsel claims that the Appellants were given notice
of Enos's application.
These procedures are inadequate in this situation, however, because consideration
and approval by the HOA's board of an application for a use such as the Window, which
creates a visual intrusion contrary to the provisions of the Code, requires that the HOA's
board give all affected homeowners specific notice of such a request. Cohen v. Kite Hill
Community Assn. (1983) 142 Cal. App. 3d 642,652,654 (approval of a nonconforming
structure by a homeowners association "is analogous to the administrative award of a
zoning variance," which requires a public hearing with notice to affected persons, and a
decision to approve such a structure "must be 'in keeping with the general plan for the
improvement and development of the Project,' and of course, must be made in good faith
and not arbitrary."). As the Code's prohibition against the modification of structures that
would create visual intrusions in the cluster zone are incorporated in the HOA's CC&Rs
and Bylaws, these requirements are enforceable as part of those governing instruments;
fì.1rther, these requirements have an independent basis under state law, as described in
Cohen, for the protection of property owners' due process rights.
As such, to the extent that the HOA's CC&Rs and bylaws fail to provide for this
type of notice to be sent to affected homeowners under these circumstances, they violate
both the Code and general legal requirements for due process. The City's obligation to
enforce the law is not mitigated, vitiated or excused by its reliance on HOA's procedures
for considering and granting approval to applications by homeowners to modify their
homes, and the City cannot simply permit such a violation to go unchallenged. The City
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Cupertino City Council
City of Cupertino
November 30, 2005
Page 8
must therefore require that the Window be either removed or modified in order to
completely and permanently eliminate any view from the Window into the Appellants'
homes.
E. Conclusion
Boiled down to its essence, the City Manager's decision is that the invasion of the
Appellants' privacy caused by the Window is only a minor issue, unworthy of the City's
time and effort to bother with. Similarly, the Director of Community Development felt
that the HOA's offer to pay to install obscure glass in the Window was enough to protect
Appellants' privacy, even though the purpose of the obscure glass was easily defeated by
simply opening the Window. While the City Manager and the Director of Community
. Development are entitled to their views, they are not consistent with the clear statement
of policy enunciated by the City in its Code and its General Plan, which state that private
indoor and outdoor spaces that are free from any visual intrusion must be protected.
Based on the foregoing, it is the Appellants' position that the City Council must
direct City staff to revoke or amend the existing building permit issued for construction
of the Window in order to require that the Window either be removed or modified so as
to completely and permanently eliminate any view from the Window into the Appellants
homes. Thank you for your attention to this matter.
.
_very truly yours,
,i . 87
(-~Y:f4çt///~
Jámes J. Eller v
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enclosures
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AMENDED AND RESTATED
COVENANTS, CONDmONS AND RESTRICTIONS OF
NORTHPOINT HOMEOWNERS ASSOCIATION
Ta ble of Contents
INTRODUCTION 2
ARTICLE I DEFINITIONS 3
ARTICLE II COMMON AREA 4
ARTICLE ill MEMBERSHIP AND VOTING RlGHTS 5
ARTICLE IV COVENANT FOR ASSESSMENTS 6
ARTICLE V ARCillTECTURAL CONTROL 9
ARTICLE VI EXTERlOR MAINTENANCE 10
ARTICLE VII USE RESTRICTIONS 11
ARTICLE VIII ENCROACHMENTS 13
ARTICLE IX DAMAGE OR DESTRUCTION 14
ARTICLE X GENERAL PROVISIONS 15
ARTICLE XI CONDITIONS IMPOSED BY TIlE
CITY OF CUPERTINO 17
ARTICLE XII CONFLICTS BETWEEN DOCUMENTS 18
Exhibit A
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4.09 The lien of the ass~ssments provided for herein shall be subordinate to the lien of any first
mortgage. The Association may subordinate such lien to a second mortgage if the Board
determines that the Owner's equity in the Lot will, after such subordination, be not less than 25%
of its fair market value. Sale or transfer of any Lot shall not affect the assessment lien. However,
the sale of any Lot pursuant to mortgage fore.closure or transfer to the mortgage holder in lieu of
foreclosure shall extinguish the lien of such assessments as to payments which became due prior
to such sale or transfer. No sale or transfer shall relieve su~h Lot from liability for any
assessments thereafter becoming due or from the lien thereof
ARTICLE V - ARCHITECTURAL CONTROL
5.01 No building, fence, wall or other structure shall be commenc~d, erected or maintained, nor shall
any alteration be made therein nor shall any exterior addition be made to any Building Unit, nor
shall any air-conditioning unit or other appliance be installed in a window op~ning, nor shall any
window be covered on th~ inside or outside with a material not approved by the Board, nor shall
any exterior wall be painted, nor .any tree planted until an application for approval thereof has
been submitted to the Board together with the plans and specifications showing the nature, kind,
shape, height, materials, and location of the same, and ifa tree, the species thereof, and they have
b~en approved in writing by the Board of Directors of the Association as to harmony of external
design and lo~ation in r~lation to surrounding structures and topography and as to other
applicable features.
5.02 The Board may assignto an Archit~ctl.\ral.C0mmittee, to be appointed by the Board, the review
of any application filed under Section 5.01 and for the purpose of making a report to the Board.
5.03 If a decision has not b~en made within tblrty {3 0). d!\Ys after the application is. submitted, the
applicant .shall be entitled to a hearing before tl,e,Board on his application within sixty (60) days
after the application has b~en submitted.
5.04 If the. BO<µ"d,giyes approyal to an Owner fo~ theW.stallation of a structure or exterior addition,
such as but not limited to, a sunshade Dr patio cover, the Owner shall be prohibited from making
any additions thereto or changes therein, from painting the same, ITOm installing ~lectric lights
thereon, and fro!Irpermittingplants or vil).~s to growtl,ereon, withoutprior written approval of
the Board after submission to the Board of anappHcation therefor pursuant to S~ction 5.01.
5.05 (a)
Each Owner who receives Board approval for installation of a structure or exterior
addition shall be required;to ÇQpfoliIIl to aU of the conditions of approval, and to keep and
maintain th~ structure or: exterior ¡tdditionin gqod condition and repair at his own expense
in accordance with Regµlations of the Board then in effect and as may be thereafter
adopted.
9
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(b) If an Owner violates the provisions of section 5.05(a) or shall fail to maintain the structure
in good condition and repair, the Board may, after giving the Owner ten (10) days written
notice requiring him so to do, make such repairs as will bring it into good condition and
repair at the expense of the Owner. The costs so incurred shall constitute a special
assessment upon the Owner's Lot and be enforceable as provided in Article N.
(c) The Association shall have the right to enter into and upon any Lot, upon reasonable prior
notice, to correct any violation of Section 5.01 and carry out the work described in
Section 5.05(b) and shall also have a non-exclusive easement to the extent required for
such work.
5.06 The Board may by Rule or Regulation give general approval to any of the acts or items mentioned
in Section 5.01 and may prescribe standards and/or specifications therefore and conditions
applicable thereto. The doing of any of said acts by an Owner shall be deemed an acceptance of
all conditions applicable thereto as set forth in such Rule or Regulation.
ARTICLE VI - EXTERIOR MAINTENANCE
6.01 In addition to maintenance of the common area, the Associa.tion shall provide maintenance to the
exterior of each unit wruch is subject to assessment hereunder, as follows: paint, repair, replace and
care for roofs, gutters, downspouts, exterior building surfaces, and walks. Such exterior
maintenance shall not include glass surfaces, doors, garage doors, window and door screens, metal
window frames, doorknobs, locks, light fixtures, patio and balcony covers, concrete patio decks,
damage from termites or other wood-destroying organisms or any structure or exterior addition
installed or maintained by an Owner pursuant to the provisions of Article V of the CC & R's.
Provided, however, it shall include painting of doors and garage doors. Where any condition
requiring maintenance or repair is call sed by the owner or tenant - the Association shall have no
obligation to provide maintenance or repair.
[Revised by vote of the Members; recorded January 31, 1987.]
6.02 Each Lot shall be subject to a·non-exclusive easement in fàvor of the Association to the extent
required forthe perfonnance by the Association of its obligations to provide exterior maintenance
as set forth in Section 6.01. .
6.03 In the event that the need for maintenance or repair is caused through the willfu1 or negligent act
of the Owner, rus family, guests, invitees or such acts of his tenants, contract purchasers, their
families, guests or invitees, the cost of such maintenance or repairs shall be added to and become
a part of the assessment to which such Lot is subject and be enforceable in the same manner as is
provided in Article N. Before making such assessment, written notice of the proposed.
assessment shall be given to the Owner,· and a reàsonable opportunity to be heard on the matter
shall be afforded to him.
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9.08 All property and liability insurance carried by the Association or the owners shall contain a cross
liability endorsement and, if possible, waiver of subrogation as to the Association, officers and
directors, and any Members, tenants, guests, agents and employees. Where there is damage to, or
destruction of more than one unit, repair or reconstruction shaH be subject to the coordinating
authority of the Association.
9.09 Annual Insurance Disclosure. In accordance with Civil Code Section 1365.9(c), the Association
shall, upon issuance or renewal of insurance, but no less than annually, notifY the Members as to
the amount and type of insurance carried by the Association, and it shall accompany this
notification with statements to the effect that the Association is or is not insured to the levels
specified by Civil Code Section 1365.9(c), and that if not so insured, Owners may be liable for the
entire amount ofajudgment, and if the Association is insured to such levels, then Owners may be
individually liable only for their proportional share of assessments levied to pay the amount of any
judgment which exceeds the limits of the Association's insurance.
ARTICLE X - GENERAL PROVISIONS
10.01 The Association, any Owner, or the City of Cupertino shall have the right to enforce, by a
proceeding at law or inequity, all restrictions, conditions, covenants, reservations and provisions
imposed by this Declaration, and any Rule or Régulatioll adopted thereunder. The prevailing party
in such proceeding shall be entitled to reasonable attorney's fees,to be· fixed by the court. Failure
to enforce any such provision shall not be deemed a waiver of the right to do so thereafter.
10.02 Alternative Dispute Resolution
(a) ADR Procedure. Unless theapplicablètime'limitation for commencing the action would
run within one hundred twerity(120)days prior to the filing of a civil action by either the
Association or an Owner solely for declaratory relief or injunctive relie~ or for declaratory
reliefot'injunctive reliefin conjunction with a claim for monetarydamáges, other than
assessments, not in excess offive thousand dollars ($5,000), related to the enforcement of
the Association Mailagement Documents, the party shall endeavor, as provided herein, to
submit their dispute to a form of alternative dispute resolution, such as mediation or
arbitration. Thefonn of IDtemative tlispute resoIution chosen may be binding or
nonbinding at the option of the parties. Any PartY to such a dispute may initiate this
process by servicing on another party to the dispute a Request for Resolution. The
Request for Rescrlution shall include (1) a briefdescriþt!on of the dispute between parties,
(2) a request fOI'afternative dispute resolution, and (3) a notice that the party receiving the
Request for Resolution is required to respona thereto within thirty (30) days of receipt or
it will be deemed rejected. Service ofthe'Request for Resolution shall be in the same
manner as· prescribed for service in a Small claim action as provided in Section 116.340 of
the California Code of CivilPtocedures. Parties receiving Request for Resolution shall
have thirty (30) daysfollowil1g selVÌcê of the Request for Resolution to accept or reject
alternative dispute resolution and, if not accepted within the t.!ûrty (30) day period by a
15
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10.05 This Declaration shall remain in force for a term of twenty (20) years from the date this
Declaration is recorded, after which time it shall be automatically extended for successive periods
often (10) years, subject, however, to the power of the Owners to amend.
10.06 This Declaration may be amended by the vote or written assent (or a combination thereof) of the
owners of not less than sixty percent (60%) of the Lots; provided, however, any amendment
which:
(a) changes the method of determining the obligations, assessments, dues and other charges
which may be levied against an Owner; or
(b) authorizes the abandonment, partition, subdivision, encumbrance, sale or transfer of the
Common Area other than as provided herein, shall require the written consent of the
Owners of at least seventy"five percent (75%) of the Lots.
10.07 An amendment to this Declaration shall become effective upon the recording in the office of the
Recorder of Santa Clara County of a certificate signed and acknowledged by the President and
Secreta¡¡y of the. AssoQiation certifYing. that such amendment has been approved by the vote or
written consent of the requisite percentage of Lot Owners as specified in SectiortlO.06.
.
10.08 The Article headings herein are for convenience only and they are not intended to be a part of
this Declaration nor do they describe the scope or intent of the particular Article to which they
refer.
ARTICLE XI - CONDffiONS IMPOSED BY THE CITY OF CUPERTINO
11.01 The Association, or any Owner, shall havetherightto enforce, by any proceeding at law or in
equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter
imposed by the City of Cupertino. Failure by the Association or by any Owner to enforce any
requirement of the City of Cupertino herein contained shall in no event be deemed a waiver of the
right to do so thereafter.
11.02 All of the conditions setfort\1 in Resolutions No. 928 and 9290fthè City of Cupertino are made a
part hereof as if recited in full.
11.03 All of Resolution No. 951 of the Planning Commission of the City of Cupertino recommending
the granting ofa Use Permit to Ditz-Crane is hereby made a part hereof as ifrecited in full.
17
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LH.JOL:],:H ¿1 j
CRITZER INSURANCE
AMENDED AND RESTATED
BYLAWS OF
NORTHPOINT HOMEOWNERS ASSOCIATION
PAGE B2/23
Table or Contents
ARTICLE I NAME AND LOCATION 1
ARTICLE IT DEFINITIONS 1
ARTICLE ill MEMBERS MEETINGS 2
ARTIëLE IV BOARD OF DIRECTORS 6
ARTICLE V MEETINGS OF DIRECTORS 7
ARTICLE VI POWERS OF DUTIES OF THE BOARD
OF DIRECTORS 8
ARTICLE VII OFFICERS 11
ARTICLE VIII COMMITTEES 13
ARTICLE IX BOOKS AND RECORDS 13
ARTICLE X ASSESSMENTS 14
ARTICLE XI BUDGETS AND FINANCIAL STATEMENTS 14
ARTICLE XU FISCAL REVŒW 16
ARTICLE xm LIMITATION OF RESERVE EXPENDITURES 17
ARTICLE XIV RESERVE STUDY REQUIREMENTS 18
ARTICLE XV OFFICER AND DIRECTOR LIABILITY 18
ARTICLE XVI INSPECTION OF BOOKS AND RECORDS 19
ARTICLE xvn CORPORATE SEAL 20
ARTICLE XVDI AMENDMENTS 20
ARTICLE XIX MISCELLANEOUS 20 /2- ;¿z
Exhibit B
~~(Ö~/L~~4 18:19
4882531213
CRITZER INSURAN~Ç
PAGE 89/23
ARTICLE V MEETINGS OF DIRECTORS
5.01 Regular Meeting.
Regular meetings of the Board of Directors shall be heJd monthly without notke, at such place
and hour as may be fixed from time to time by resolution of the Board. Should said meeting falJ
upon a legal holiday, then that meeting shaIl be held at the same time on the next day which is not
a Friday, Saturday, Sunday or a legal holiday; provided, however, that the Board may specify a
different day or time.
5.02 Special Meetings.
Special meetings of the Board of Directors shaH be held when caJled by the President, Vice
. President, Secretary or any two Directors of the Association, after not Jess than three (3) days
notice to each Director.
5.03 Quorum.
A majority of the number of Directors shall constitute a quorum for the transaction of business.
Every act or decision done or made by such majority shaIl be regarded as the act of the Board,
except as may be otherwise specifically provided in these Bylaws, the Articles of Incorporation or
the Declaration.
5.04 Attendance by Members and Association Manager.
(a) With the exception of executive sessions of the Board (see subparagraph (b). below)
and any meetings conducted by conference telephone, aU meetings of the Board shaIl
be open to Members of the Association, provided that non-Director Members may
only participate in deliberations or cliscussions of the Board when expressly
authorized bya vote of a majority of a quorum of the Board. If the Association has
rete.ined the services of a Manager, such person may. in the Board's discretion,
attend regular and special meeting.
(b) The Board may adjourn a meeting and reconvene in executive session to discuss and
vote Upon litigation, matters that relate to the formation of contracts with third
parties, or personnel matters. The nature of any and all business to be discussed in
executive session shall first be announced in open session. Any matters discussed in
executive session shall be generally noted in the minutes of the Board of Directors.
In any matterrelating to the discipline of an Association member, the Board of
Direciors shall meet in executive session if requested by the Member, and the
Member shall be entitled to attend the executive session. Nothing provided herein
shall be construed to obligate the Board to first call an open meeting before meeting
in executive session with respect to the matters described above.
7
/ g -:2- 9
,
09/08!200~ 18:19
4082531213
CRITZER INSURA'"'"7
PAGE 15/23
Authorization
(e)
The Board may, by resolution ITom time to time, a.uthorize action to be taken by or
through an officer or officers. Unlesg a specific termination is provided f<Jr in such
resolutjon, the authorization shall continue in effect until revoked.
ARTICLE VITI
COMMITTEES
8.01 The Board of Directors shall appoint an Architectural Committee, as provided in the Declaration.,
and a Nominating Committee as provided in these Bylaws. In addition, the Board ofDjrectors
shall appoint other committees as deemed appropriate În carrying out its purpose
No committee, regardless of Board resolution., may:
(a) Take any final action on any matter which, under the Non-Profit CorpOfa¡tjon Law
of California., also requires a.pproval of the Members.
(b) Fill vacancies on the Board ofDirectórs or in any committee which has beeT)
delegated any authority of the Board.
(c) Amend or repeal Bylaws or adopt new Bylaws.
(d) Amend or repeal any resolution of the Board of Directors which by its express terms
is not so amendabJe or repealable.
(e) Appoint any other committees of the Board of Directors or the members of those
committees.
(f) Approve any transaction (1) to which the corporation is a party and one or more
Directors have a material financial interest; or (2) between the corporation and one
or more of its Directors or (3) between the corporation or any person in which one
or more of its Directors have a material financial interest.
(g) Levy Fines.
ARTICLE IX BOOKS AND RECORDS
9.01 The books, records and papers of the Association shall at all times, during reasonable business
hours, be subject to inspection by any Member. The DeClaration, the Articles of Incorporation
and the By-Laws of the Association shall be aYailable for inspection by any Member at the '
principal office of the Association, where copies may be purchased at reasonAbJe cost.
13
I f ~ 30
ELLER & ASSOCIATES
A TTORNEYS AT LA W
60 SOUTH MARKET STREET, SUITE 1201
SAN JOSE, CALIFORNIA 95113-2351
TELEPHONE: (408) 299-0180
FACSIMILE: (408) 271-0754
jelleresq@aol.com
July 27,2005
Cupertino City Council
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Re: Appellants: David and Margaret Critzer
Installation of window at 20272 Northcove Square
Appeal of City Manager's determination to dismiss appeal
Dear Members of the Cupertino City Council:
This letter is submitted to you on behalf of the Appellants, David and Margaret
Critzer (the "Critzers" or "Appellants"), in support of their appeal of the determination by
the City Manager to dismiss their appeal with respect to the installation of a second story
master bathroom window (the "Window") by Jerry Enos ("Enos") at his home at 20272
Northcove Square in February 2004. The Critzers are taking this action because Enos
now has a direct, unobstructed view through the Window into the Critzers' living room
and backyard located at 20282 Northcove Square, next door to Enos's home, in violation
of Sections 19.44.060 and 19.44.080 of the Cupertino Municipal Code (the "Code").
As a preliminary matter, please note that this appeal is submitted with respect to
the Director of Community Development's initial decision to take no further action upon
the Critzers' claims (the "Director's Decision"), as well as the determination by the City
Manager to dismiss the Critzers' appeal of the Director's Decision (the "City Manager's
Dismissal"). I
By this appeal, the Critzers request that the City Council direct City staff to
revoke or amend the existing building permit issued for the construction of the Window
in order to require that Enos either remove the Window or modify it so as to completely
and permanently eliminate any view from the Window into the Critzers' home. In the
alternative, the Critzers request that the City Council refer this matter back to the City
Manager and direct the City Manager to conduct the hearing that was cancelled when the
City Manager made his determination to dismiss the appeal without prejudice to permit
1 The Critzers' appeal is being submitted without the filing fee required for appeals from decisions of the
Director of Community Development and Planning Commission, in reliance on infonuation given by the
City Clerk; a copy of the City Clerk's email advising there would be no appeal fee in this case is attached to
the coversheetc-"Fh..-eritze" p.o,iuu,ly paid an appeal fee with their appeal of the Director's Decision.
Exhibit C
1 ~- 31
Cupertino City CouncÎ1
City of Cupertino
July 27, 2005
Page 2
the Critzers' civil lawsuit to proceed, in order that the parties may have the opportunity to
attempt to resolve their issues through the City's administrative review process.
I. F actual Background
The facts of this dispute are set forth in the Critzers' appeal of the Director's
Decision, a copy of which is attached hereto and incorporated herein by reference as
Exhibit A. Those facts will not be reiterated in detail here; for ease of reference, a
time line of significant events relevant to this appe'al is attached hereto and incorporated
herein by reference as Exhibit B.
2. Appeal of the Director's Decision
With regard to their appeal of the Director's Decision to take no further action
upon their claims, the Critzers believe that the City must act to compel Enos to remove or
otherwise render opaque and unopenable the Window in order to (a) enforce the
applicable provisions of the City's Municipal Code that have been violated by Enos's
installation of the Window, and (b) remedy the failure of North point Homeowners
Association CHOA") to employ a legally adequate architectural control process in
approving Enos's installation ofthe Window.
The Critzers' position has previously been set forth in detail in Exhibit A, their
appeal ofthe Director of Community Development's decision to take no further action
upon their claims. We invite you to review the Critzers' appeal, and shall not repeat in
detail in this letter the arguments set forth therein. Rather, we ask that the City Council
take note of the following:
(a) With the installation of the Window, Enos's house now has a view directly
through the entire depth of the living area of the Critzers' home and into
the Critzers' private back yard.
(b) The Window violates applicable Code provisions and is not allowed to be
installed under either the Code or HOA's CC&Rs. Section 14.44.060 of
the Code precludes visual intrusion into private outdoor yards and interior
spaces in the RlC zone, where the Critzers' and Enos's homes are located,
and Section 19.44.080 of the Code states that no stmcture may be altered
in a manner that would violate the zoning provisions for the RlC zone2
Pursuant to Section 11.01 ofHOA's CC&Rs, restrictions imposed by the
City, including the above-referenced Code provisions, are applicable to
2 In his letter to the City Manager dated July 7, 2005, HOA's counsel states that Chapter 19.44 of the City's
Municipal Code does not apply here because that chapter does not relate to planned developments or multi-
family residential zones. That statement is in error; City staff has identified the zone where the Critzers'
and Enos's homes are located as RlC.
I 2 - .52
Cupertino City Council
City of Cupertino
July 27, 2005
Page 3
the Northpoint development. A copy of the relevant provisions ofHOA's
CC&Rs are attached hereto and incorporated by reference as Exhibit C.
(c) HOA approved the installation of the Window without giving adequate
notice to the Critzers. While counsel for HOA contends in his letter to the
City Manager dated July 7, 2005, that the Critzers were afforded proper
notice of Enos's application to install the Window, that position is legally
defective. HOA's counsel states that HOA's CC&Rs do not require that
individual notice be sent to homeowners when HOA's board considers
recommendations from its Architectural Committee, which reviews all
homeowners' applications to modify their homes. Because HOA takes up
those recommendations at every "regularly noticed meeting" of the board,3
HOA's counsel claims that the Critzers were given notice of Enos's
application. These procedures are inadequate in this situation, however,
because consideration and approval by HOA's board of an application for
a nonconforming use such as the Window (see (b), supra) requires that
HOA's board provide all affected homeowners with specific notice of
such a request. See, Cohen v. Kite Hill Community Assn. (1983) 142 Cal.
App. 3d 642, 652, 654 (approval of a nonconforming structure by a
homeowners association "is analogous to the administrative award of a
zoning variance," which requires a public hearing with notice to affected
persons, and a decision to approve such a structure "must be 'in keeping
with the general plan for the improvement and development of the
Project,' and of course, must be made in good faith and not arbitrary.").
Both HOA's CC&Rs and Bylaws fail to provide for this type of notice to
be sent to affected homeowners under these circumstances; copies of
relevant provisions ofthe CC&Rs and Bylaws are attached hereto and
incorporated herein by reference as Exhibit C and Exhibit D, respectively.
(d) In view of the fact that the Window's approval and installation violates the
Code, the Window constitutes a public nuisance under Sections 1.09.030
and 1.09.180 of the Code. As such, the City may require that the Window
be removed, even though the City has already issued a permit for its
installation. See, o 'Hagen v. Board of Zoning Adjustment (1971) 19 Cal.
App. 3d 151, 158.
(e) The City, by and through its administrative officers, has a duty to enforce
the Code. See, Taliaferro v. Wampler (1954) 127 Cal. App. 2d 306, 309.
The City's obligation to enforce the Code is thus not mitigated, vitiated or
excused by relying on HOA' s procedures for considering and approving
homeowners' applications to modify their homes.
3 As noted in the Critzers' appeal, the only notice given ofHOA board meetings is a calendar item in the
HOA newsletter, which does not include any agenda of Architectural Committee recommendations to be
taken up by HOA's board.
1 ?-- $5.
Cupertino City Council
City of Cupertino
July 27, 2005
Page 4
Based on the foregoing, the Critzers' position is that the City must require Enos to
remove the Window or otherwise render the Window fixed and non-transparent in order
to eliminate any possible view from the Window into the Critzers' home.
3. Appeal of the City Manager's Dismissal
With regard to their appeal of the City Manager's determination to dismiss t)1eir
appeal on the ground that the Critzers have filed a civil suit against Enos and HOA, it is
the Critzers' position that this administrative process, rather than the courts, is the most
appropriate forum for the resolution of this dispute because of the City's unique position
to enforce the Code. See 2( e), supra. The Critzers have been attempting in good faith to
. resolve this dispute through these administrative processes,' and only filed their civil suit
in order to protect their rights.5 At the Critzers' request, the Santa Clara County Superior
Court has postponed further action in that lawsuit until after the anticipated date of the
hearing of this appeal in order to allow this appeal to proceed to a resolution. In the event
the City Council will not act upon the Critzers' appeal, in the alternative, the Critzers ask
that this matter be referred back to the City Manager to allow the hearing that had been
cancelled to proceed, before the court takes any action with regard to this matter.
4. Conclusion
Based on the foregoing, it is the Critzers' position that the City Council must
either direct City staff to revoke or amend the existing building permit issued for the
construction of the Window in order to require that Enos either remove the Window or
modify it so as to completely and permanently eliminate any view from the Window into
the Critzers' home, or refer this matter back to the City Manager to conduct a hearing in
order that the parties may have the opportunity to attempt to resolve these issues through
the City's administrative review process. Thank you for your attention to this matter.
4 Contrary to the claim made by HOA's counsel in his letter of July 7, the Critzers did not breach the
Contidentiality Agreement entered into by the parties in connection with the mediation held on January 19,
2005, by making reference to matters discussed during the mediation. Under its tenns, the Confidentiality
Agreement provides only that the proceedings of the mediation could not be used in civil court; as such,'
these matters could in fact be discussed during the City's administrative review process.
, In his letter of July 7, HOA's counsel claimed that HOA was unaware that the civil suit had been filed
until just prior to the date of that letter. This statement is untrue, as HOA had been served with the
complaint well before that letter and HOA's counsel had contacted counsel for the Critzers to discuss the
lawsuit shortly after the HOA was served.
I r-gj
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
(408) 777-3223
OF
CUPEI\IINO
APPEAL
1.
Application No.
N/A (Re: Window installation at 20272 Northcove Sq.)
2.
Applicant(s) Name:
See below (same as Appellants)
Phone Number
David and Margaret Critzer, by James J. Eller, Esq.
Eller & Associates
60 S. Market Street, Suite 120 I
San Jose, CA 95113
(408) 299-0180, fax (408) 271-0754
3.
Appellant(s) Name:
Address
Ernail
ielleresq@aol.com
4. Please check one:
Appeal a decision of Director of Community Development
Appeal a decision of Planning Commission
1- Appeal a decision of the City Manager
5. Date of determination of Director or mailing of notice of City decision:
July 13,2005
6. Basis of appeal:
See attached letter from Eller & Associates.
Eller &
Signature(s)
Please complete ,inc éJe appeal fee of$145.00, and return to the attention of the
City Clerk, 10300 Torre Avenue, Cupertino, (408) 777-3223. [Appeal fee not
applicable per email from Kimberly Smith dated July 19,2005 attached hereto,]
I ?> 3JS:
Yahoo! Mail- dsgonzale6@yah00 com
ì'age j or j
Y.J(SOO! MAIL
Print - Close Window
Subject: appeal fee for appeal re 20292 Northcoast Square
Date:
Tue, 19 Jul 2005 15:50:47 -0700
From:
"Kimberly Smith" <Kimberlys@cupertino.org>
dsgonzale6@yahoo.com
To:
Hello Mr. Gonzales,
There is no appeal fee in this case.
Kimberly smith
Cupertino City Clerk
(408) 777-3217
kimberlvs@cupertino.orq
>
>
>
>
>
>
>
> Hello Mr. Gonzales,
>
> Here is the appeal form you requested (see attached).
>
> . « rile: Appeal form. doc »
> Someone from my office will contact you in the next day or so to let
you know if there is an appeal fee for appealing the decision of the
City Manager.
>
>
>
>
>
>
-----Original Message-----
From: Kimberly smith
Sent: Tuesday, July 19, 2005 3;39 PM
To: 'dsQonzale6@vahoo.com'
Subject: appeal form re 20292 Northcoast
Square
Kimberly Smith
Cupertino City Clerk
(<lOB) 777-3217
kimberlvs@cupertino.
orq
/ J~3!P
http://us.f518.mail.yahoo.comlymlShowLetter?box=Critzer&Msgld=8588 _ 8696613 _31 07... 7/20/2005
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
(408) 777-3223
<:1 YOf
CU PEJQ1NO
APPEAL
I. AÐ>plication No.
2. Applicant(s):
3.
AppeIlant(s):
name, address,
ph~ne number,
andl email
- y¡ C\rÓ ~
.:20[)''6d-. NO(-th~
c'Lcper-hno, (]A Cj'501
l./00-C¡13- 11'84
rn Q.R.¡ -rz.az..@ K P tv! E, .CbN\
4. Pkase check one:
~/ Appeal a decision of Director of Community Development
o Appeal a decision of Planning Commission
5. Date of determination of Director or mailing of notice of City decision:
Ap~l \ 27-ti-ì I 2.U:JS
6. Basis of appeal:
SeD
A*6hu:1
S ignature( s)
/~' ¡::(. "
, I ,,/ - ../ -
1,- ,/ C /
(le., / (. --
--\
------
Please complete form, . elude appeal fee of$145.00, and return to theãitention of the
City Clerk, 10300 Torre Avenue, Cupertino, (408) 777-3223.
Exhibìt A
I ò>- -31
David and Margaret Critzer
20282 Northcove Square
Cupertino, CA 95014
Jowei Chen
20292 Northcove Square
Cupertino, CA 95014
May 10, 2005
Mr. David Knapp
City Manager
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Dear Mr. Knapp,
We are writing to request a meeting with you to appeal the decision of Cupertino's
Director of Community Development, Mr. Steve Piasecki, in the atta¢hed letter
postmarked April 27, 2005 (Attachment A) and received by us on April 28, 2005. Mr.
Piasecki states in the letter that the City will have no further involvement in the matter of
a second story master bathroom window1 installed in a previously windowless; wall of the
townhouse neighboring and directly east of our home in the Northpoint townhouse
development The second story window was installed in the townhouse belonging to Mr.
Jerry Enos at 20272 Northcove Square. The window was installed with no advance
notice to us, and is a nuisance that violates Cupertino Municipal Code Title 19.
Additionally, Mr. Piasecki states that the Northpoint Homeowners' Associations' offer to
pay up to $200 to replace the glass in Mr. Enos' window with obscure glass is "an
acceptable compromise". We disagree and that is the reason we contacted the City to
begin with We contacted the City Attorney last September, asking him to investigate the
window installation because it violates RIC code (see attached letter from Berliner Cohen
dated 9-28-04 -Attachment B).
The installed window contains transparent glass, slides open for ventilatiûn, and is
installed so that the entire dimensions of the window are at a height directly above the
top of our backyard privacy fence. The window is in a direct alignment wi~h our rear
living room windows (Mr. Enos himself has stated the window is "dead on"), 81nd affords
Mr. Enos a clear view through the entire depth of our previously private living space and
backyard from the master bathroom of his residence. Despite Mr. Enos' aSsEi;rtion éarly
on that he "cannot see us", shortly after the installation of the window, Mr. Enag returned
1 This is the only master bathroom window in 416 units.
/ !t-3r
· Page 2
May 10, 2005
a wave from Margaret Critzer as she was standing in her living room. It is not possible to
prevent the visual intrusion with landscaping because the line of sight of the window is
directly over our fence gate and there is a concrete walkway under the gate.
The Northpoint development is zoned RIC on the Cupertino zoning map. Cupertino
Municipal Code section 19.44.060 (Chapter 19.44 - Residential Cluster Zones!) states:
"the relationship between adjoining units shall be arranged in such a manner
so as to preclude visual intrusion into private outdoor yards or interior
spaces."
"Private outdoor space shall be provided for each unit.."
Section 19.44.080 states:
"... no structure shall be hereafter erected, structurally altered or enlarged in a
residential cluster zone, otherwise than in conformance with the following
provisions"
Additionally, the Cupertino General Plan policies state:
"ensure that the site design for a residential project has private indoor and
outdoor spaces for each unit.."
The window installation violates Cupertino Municipal Code Title 19, and therefore
constitutes a nuisance under Cupertino Municipal Code Title 1. Because of'the impact
on our privacy, and the comfortable enjoyment of our property, it also canstitutes a
nuisance under California law. Great care was taken in the initial des,ign of the
Northpoint development, and extensive common area landscaping was installed and has
been painstakingly maintained in the development for the enjoyment of the residents and
to ensure privacy, specifically for the backyards and rear living area windows; the space
now impacted by the window was the private space in our home prior to tile window
installation. The window installation forces us to choose between accessing daylight,
fresh air, and a view of our backyard and the common area landscaping, or keeping our
blinds closed at all times to prevent Mr. Enos from viewing into our home. The City has
an obligation to enforce municipal code and to cause the window to conform and comply
with municipal law. '
/ ¿r- 3 9
. Page 3
May 10, 2005
The window contains two distinct sections of glass and slides open for ventilation. Even
if the panes of glass were replaced with obscure glass, it would not afford us any control
over when we have privacy and when we do not, as the window can be opened at any
time by Mr. Enos; this concept is clearly expressed in Cupertino's R1 privacy planting
ordinance, which states that the only windows exempt from privacy planting arre:
· Obscure, unopenable windows
· Windows with fixed louvers
· Windows with a sill height of 5 ft. or higher
Thus, the City has clearly codified in R1 zoning the standards for second st6Jry window
installations to realize the goals stated in the privacy protection policies of the General
Plan, and has codified that an equivalent protection should apply in R1C dewelopments
through code section 19.44.060 (i.e., "precludes visual intrusion...."). (The Merriam-
Webster online dictionary defines "preclude" as "to make impossible by necessary
consequence: rule out in advance"). A sliding openable window clearly does not
"preclude visual intrusion".
Mr. Piasecki's position that replacing the glass in the existing window is an "acceptable
compromise" is also inconsistent with my November 15, 2004 telephone cQnversation
with Assistant City Attorney Eileen Murray. Ms. Murray stated that the initent of the
November 10, 2004 (Attachment C) letter from Planner Ciddy Wordell to the Northpoint
Homeowners' Association was that if obscure glass were installed, it would be non-
openable privacy glass; Ms. Murray stated that she asked Ciddy Wordell abQut this and
had told Ms. Wordell that she would see no point in openable privacy glass being
installed
The window was installed with no advance notice to us that the exterior alteration was
being considered or had been approved. Although the Northpoint Board af Directors
considered and approved the modification at an open meeting of the Board, no notice
that consideration of an alteration that would impact our privacy and the oomfortable
enjoyment of our home was given to us, and no agenda was posted in advance of the
meeting. Under the Brown Act and other provisions of law, advance notice that a
modification to property will be considered at an open meeting is required to be provided
to City residents possibly impacted by the proposed modification; an agenda of the
meeting is required to be posted in advance. The opportunity to provide inpu~ only after
the approval and installation of a modification does not in any way equate to advance
notice or to the ability of an impacted resident to give advance input prior to a governing
body's consideration of a modification.
Shortly after the window was installed, on or about March 9, 2004, Margaret Critzer
called the City Building Department and spoke to Sue, who incorrectly told her she could
not file a complaint about the window because the City approved it based on the
L <J- -Lj-o
· Page 4
May 10, 2005
Homeowners' Association approval. On May 17, attorney Christian Picone sent a letter
to Cupertino Code Enforcement and was also incorrectly informed by Gary Chao of the
Planning Department that City zoning! and code enforcement do not apply to RIC zones
(Attachment D).
As Mr. Piasecki's letter states, the C~y arranged a Project Sentinel mediation after the
issuance of Ciddy Wordell's November 10, 2004 letter. In attendMce were
representatives of the City and the Northpoint Homeowners' Association, us, and each
parties' attorneys. The mediator's opinion was that the only meeting notice we received,
which was a monthly event calendar stating the time and date of the regular monthly
Board meeting and with no agenda, was completely inadequate notice of the proposed
window installation. An agreement was reached that the Northpoint Board would install
an awning window containing obscure glass and with a limited opening capability in Mr.
Enos' unit. Mr. Enos did not attend the mediation, so the advance premise of the
mediation was to discuss modifications to restore privacy that would not jnvolve his
participation. The Northpoint Board suggested the awning window, in preference to
proposals we presented that would not involve Mr. Enos' window, and represented that
they firmly believed this was a solution requiring Mr. Enos' participation that he would be
agreeable to. After the mediation, Mr. Enos refused to accept installation of the awning
window, and instead attempted to clandestinely sell his townhouse from an Internet site,
not on the multiple listing service and without any "For Sale" signs. Thlis became
apparent to Margaret Critzer, while in her living room, as she observed throug~ Mr. Enos'
bathroom window that potential buyers were touring his property.
At no time during the mediation was there any consideration by the intereste<i! parties of
placing obscure glass into Mr. Enos' existing window. When we learned that Mr. Enos
would not accept the limited opening awning window, we proposed to the Northpoint
Homeowners' Association that they increase the height of our fence in order; to restore
our privacy, without altering Mr. Enos' window; the Northpoint Homeowners' Association
refuses to increase our fence height or to allow us to do so (the Homeowners'
Association owns the fence).
The City appears to be retreating from its duty to enforce the municipal code, in part
because Mr. Enos was issued a building permit by the City for the windm^,,_ As the
building permit states, it does not entitle the holder of the permit to violate municipal
code. Therefore, the window installation is not legal even if the building p¡ermit was
obtained through a valid process. Additionally, Mr. Enos stated on the owner-builder
verification he signed to obtain the permit, that he or an immediate member of his family
would perform the window installation and that the total installed cost of tine window
would not exceed $200. It is our belief that Mr. Enos actually used a contractor or
workers of some sort to perform the installation, as David Critzer witnessed -one of íhe
workers, who were present for several weeks at Mr. Enos' residence performing an
extensive interior remodel, leaning through the opening cut in the exterior wall of Mr.
Enos' unit after the wall was opened and before the window was installed into the
161-4-1
· Page 5
May 10, 2005
opening. This was our first indication that the window would be installed. If h!e did use a
licensed contractor, Mr. Enos was required to provide the contractor's state license
number on the permit application; if the workers were not licensed, the building permit
application states that a worker's compensation Certificate of Insurance needed to be on
file at the City of Cupertino Building Department. Additionally, it is our belief that the total
cost of the window and installation including the opening of the wall, the stucci) repairing,
and the installation and painting of wood trim on the wall would have exceæded $200.
The permit application listed the "occupancy group" as R-3; the Northpoint dævelopment
is zoned RIC on the Cupertino zoning map. If "occupancy group" determijnes which
zoning ordinances apply to the subject property, there may be an error on the
application, or in the planner's review of the application. These are issuæs the City
should investigate and resolve to its satisfaction before it withdraws from 1his matter,
based partly or entirely on a belief that Mr. Enos has a valid building penmit for the
window Mr Piasecki stated the City issues building permits relying on the
Homeowners' Association to represent the interests of all parties; the Homeowners'
Association clearly did not represent the interests of all parties in this case.
The Northpoint Homeowners' Association has not responded to Ciddy Word~I's April 11
letter requesting that the Association contact her and inform her how they plan} to resolve
this matter Eileen Murray informed me that Northpoint's attorney stated that the
Northpoint Board does not want to increase our fence height because declination by the
Board of similar requests from members of the Association may be deemed "arbitrary".
This is a ludicrous assertion by the Northpoint Board, given the code violation that the
Board has approved and the City's requests for property improvements to restore
privacy. The City should not accept this as a reasonable response from the Northpoint
Board when the Board will not agree to any other acceptable remedy. We believe
Cupertino Municipal Code Title 19 and/or Title 1 give the City the authority to require the
Homeowners' Association to increase our fence height.
Additionally, we believe Mr Enos may represent a risk to our personal safety; he is
certainly not someone we want viewing into our home at times of his choosir1g from his
master bathroom. See Attachment E.
It is incumbent upon the City to perform its duty to enforce municipal code Ëlnd require
either the Northpoint Homeowners' Association, Mr. Enos, or both parties, tò bring the
modification into compliance with Cupertino's RIC code and the General Plan policies on
privacy, and in a manner that affords us control of our privacy in the previously private
indoor and outdoor spaces of our home. The restoration of privacy needs to be
accomplished consistent with Cupertino's extensive history of protecting the pnivacy of its
residents to afford us equal protection under the municipal code, and consistent with the
character of the Northpoint development. At a minimum, possible solutions the City
could require are installation of a window with unopenable, obscure glass or fixed
louvers; a reconstruction of our fence in the manner we proposed to the Northpoint
Board; or the limited opening awning window agreed to in mediation.
I f-rLf 2-
·..
. Page 6
May 10, 2005
An openable, sliding window does not achieve a result consistent with the zoning
ordinance intent or language, and therefore will not bring the window installation into
compliance with municipal code. The City should not vacate its duty to éonsistently
enforce code simply because Mr. Enos obtained a building permit for his wih1dow. The
purpose of zoning is to provide predictability concerning the use of neighboring property;
to enhance property values and the comfortable enjoyment of property; to minimize
nuisances, and to implement community goals as described in the general plan. Those
purposes are undermined if the zoning ordinances are not enforced.
We look forward to meeting with you to discuss this further.
Sincerely,
dY4f
'15~vid ~'n zer,
cc: Mr. James J. Eller, Esq.
I r~13
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CUPEIQ1NO
Apri124,2005
Mr. David Critzer
20282 Northcove Square
Cupertino, California 95014
Dear Mr. Critzer:
The City of Cupertino staff issued a building permit for a window adjacent to, your
property (20272 Northcove Square) in the Northpoint residential developmenit. The
permit was issued based on the letter of approval from the Northpoint Homedwners
Association Design Review Committee. The issuance of a permit such as this is
discretionary on the part of the City and we rely on the Homeowners Association to
represent the interests of all the homeowners in approving such projects.
After the project was completed we were contacted by you and your neighbot, Jowei
Chen, where you expressed your concerns about the privacy impacts of the ~indow. We
wrote to the Northpoint Homeowners Association on November 10, 2004 and.l offered to
continue to work with aU parties to help resolve the privacy concerns, which we did
through the mediation services of Project Sentinel.
We wrote to the Homeowners Association on April 11, 2005, encouraging th~m to arrive
at a solution that met everyone's needs to the greatest extent possible. We aL$o offered to
coordinate additional mediation if that was desired. Although we have had nIJ response
from the Homeowners Association, we understand that they have offered to l]ay for the
installation of obscure glass in the window. We feel tllis is an acceptable cOfllpromise.
Therefore, we will not be involved any further in tllis matter, since our role hits been to
help coordinate communication between the Homeowners Association and t1'J!e property
owners. If you are in disagreement with this position, you may appeal my de,~ision to the
City Manager within ten business days.
G:planninglmisc/20282 Northcove Square
Printed on Recycled Paper
If -Ij<-f
BERLINER COHEN
ATTORNEYS AT LA W
SANFORD A. BERLINER·
ANDREW L. flABBR
wn..uAM J. OOINES·
II.OBERTW.HUMPHREYS
:RA11'H I. SWANSON
PEGGY 1- SPRINGGA Y
JOSBPH Ii DWORAK
SAMUBLL. FARB
ALAN-J, MNNER
FRANK R. UBHAUS
IDIDA A CALLON
lAMEs P. CASHMAN
STEVEN J. CASAD
NANCY J. JOHNSON
JEROLD A.REITON
ROBBRTl.. a-rORTEK
JONATIiAN D. WOLF
KATHLB8N K. SIPLE
KBVIN F. KELL8 Y
MARK MAKIEWICZ
JEfFREY S. KAUFMAN
lDUB HOUSTON
A PARTNERSHIP INCLUDING
P'ROFBSSIONAL CD'RPORATIONS
TEN ALMADEN BOULEV ARD
ELEVENTH FLOOR
SAN JOSE, CALIFORNIA 95113-2233
TELEPHONE: (408) 286-5800
PACSJMILE: (408) 998-5388
www.berliner.com
PAUL A. PELOSI
TIiOMAS P. MURPHjl'
NADIA V. HOLOBE~.
BRIAN 1.. SHBTI.Ep'
MICHAEL VIOLANl I
CHRISTIAN E. PICO!-æ
ElLERN P. KENNED,{
PETER BAJOREK
HARRY A. LùPEZ
JOHN F. DOMlNGUt<
SEl1it COHEN
MONICA B. BOROCHOFP
CHRIS11NE H LONG
DAVID D: W ADa
THOMAS E. EBERSOLE
LIV K. HASSETT
LAURAPALAZZOLQ
AARON M V ALENT!
SHANNON N. COGAN
CLAlRB LENCIONl
IENNIFBR L. GROSSMAN
·AProfeuiollnJ(»rpoOl1ioß
R6TIRED
SAMUEL 1. COHEN
September 28, 2004
OF COUNSEL
HUGH L. ISOLA
STBVBN L. HALLORlMSON
ERiC WONO
NANCY l. BRANDT
CHARLE.S W. VOLPE
BrlU)Ch omce - MercW, CA
Charles Kilian, Esq.
City Attorney
City of Cupertino
10320 South DeAnzaBlvd_ Ste 1D
Cupertino, CA 95014
Re: Critzer/Enos
Violation of Municipal Code §§19.44.060 and 19.44.080
20272 Northcove Square, Cupertino, CA 95014
Our File No.: 13772-00]
Dear Mr. Kilian:
Berhner Cohen represents David and Margaret Critzer, My clients Jeside.at 20282
Northcove Square, Cupertino, CA 95014. Recently their neighbor, Jerry Enos, whose address is
20272 Northcove Square, Cupertino, CA 95014, ins taIled a clear glass bathroom window in his
unit where previously there was just a solid wall.
This window constitutes a visual pri vacy intrusion, i.e. a nuisance, Mr. [Enos added the
window to his dweIling in violation of Cupertino's single family cluster zones (~1IC). Mr. Enos
did not followed code sections 19.44.060 and 080 when he obtained a permit for the
modification. "The relationship between adjoining units shall be designed in s1JlCh a manner so
as to preclude visual intrusion into...ìnteJior spaces," My clients had no notice' or input in the
decision. My clients have demanded that lvlr. Enos remove this window because '.t violates code.
Mr. Enos refuses to remove his window.
My clients attempted to seek regress from the Northpoint Homeowners Association it
was fruitless. My clients next contacted Code Enforcement and unfortunately tJilley were told to
close their drapes. Once involved, I contacted Code Enforcement and was politel¡y informed that
ICEP\ß3B959.1 .
092804·13772001
( r¿ -4'5'
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-- -- -,-----
Charles Kilian, Esq.
City Attorney
September 28,2004
city zoning and code enforcement did not apply to RIC zones. I disagree as Title 19 dearly
applies to the Northpoint buildings.
I request that your office look into this matter to determine whether this window violates
Cupertino's Ordinance Code and, if so, require that Mr. Enos remove the window.
If you have any questions or would like to discuss this matter, please contact me.
Very truly yours,
BERLINER COHEN
~~
CHRISTIAN E. PICONE
E-Mail: cep@ber1íner.com
CEP:jk
Cc: Clients
\CEP\638959.1
092804-13772001
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__ ____u.
______'_"_n___
10300 T011re Avenue
Cupertino, Califorr~a 95014
Telephone: (408) 777-3308
[,AX. (408)' 777 J3]]
COMMUNITY DEVELOPMENT'
November 10, 2004
Northpoint Homeowners Association
10880 Northpoint Way
Cupertino, California 95014
Re: 20272 Northcove Square (property owner Jerry Enos)
Deaf" Homeowners Association:
I had intended to send this letter to you last week. Please excuse me if this is th¡è second
time I have sent it.
It has come to our attention that a second stOlY window was installed at the above
address. As you are aware, the City consulted with the Northpoint Homeownerm
Association prior to approving a building permit for the window.
I visited the area adjacent to the window, and determined that it creates privacy (problems
for property owners west of the window. The city relied on the Homeowners ABsociation
to consult with and represent the interests of all affected property owners. We would like
to continue to work with the Homeowners Association representatives and the j1Iroperty
owner, Jerry Enos, to detennine options to improve the privacy situation. ImpnJvements
options could include installing obscure glass or louvers that prevent views out )fthe
window into adjacent properties.
Please contact me to determine the best course of action to address this matter. The City
can help convene a meeting of interested parties, if there is a need for that. Y 01.1 may
reach me at 777-3236. Thank you in advance for your cooperation.
Yours truly,
fZcitÚl LUð2~/
Ciddy WordeU
City Planner
Cc: Jerry Enos, 20272 N0l1hcove Squan;, Cupertino, CA 95014
Eileen Murray, Assistant City Attomey
G:planning/misc/Northpoint HomeownerS" Associ~tion
be. ~
D~ ~'1h z~
Printed on Recycled Paper
I [Ç- ~1
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City of Cupertino
Code Enforcement Department
May 17, 2004
Enos looking at my clients while he is in his bathroom. The window as it is situlJlted, whether
open or shut, presents a full view of the Enos bathroom, and sometimes Mr. Enos hiJ1nself.
The copies of photographs, attached hereto, were taken by my clients from inside their
family room windows. Mr. Enos has claimed that he is unable to see the Critzers in their home
from the window in his bathroom. To make a point, on one occasion Margaret Critzer waived to
Mr. Enos while he was in his bathroom and she was in her family room. Mr. lEnos had the
audacity to return my client's wave, despite his previous assertions that he could no! see into my
clients' family room. As you can see from the photos, my clients are forced to look in to a
window where there should be a significant level of privacy. As Margaret Critze1 put it, "Mr.
Enos decides when I have privacy." This lack of privacy is a nuisance to the Crit~ers and their
surrounding neighbors.
We respectfully ask that your department determine whether this wincilow violates
Cupertino's Ordinance Code and, if so, require that !vIr. Enos remove the wincjlow. In the
alternative, should Mr. Enos feel the need for some kind of window, that tbe City re! uire that the
window be replaced with a skylight or ventilation type window that meets code.
My clients are very distressed about the present situation and have request~ that I seek
immediate legal action. I have informed them that the proper first step is to contact your
department for action, as it is our understanding that the location of this window vicilates code. I
would appreciate your immediate review of this matter.
If you have any questions or would like to discuss this matter further, please ~;ontact me.
Very truly yours,
~
CHRISTIAN E. PICONE
E-Mail: cep@berliner.com
CEP:jk
Enclosure
Cc: Clients
Jowei Chen
ICEPI623624.2
051504-13772001
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Window
20272 Northcove Square
Impact
Mr. Enos early on in this situation (before March
9th BOD meeting returns wave to Ms. Critzer.
- He can't see us?
·
March 17th Prior to blinds being installed Ms.
Critzer views an at least partially undressed Mr.
Enos in his bathroom.
·
April 24th - The Critzers awake to find that Mr.
Enos has posted 2 pictures in his newly installed
window, one in each half-width window pane.
- One is of a kitten, the other of a man of unknown identity making
a funny expression.
~ By 1 PM Mr. Enos has removed the pictures from
window
the
·
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~
o
-
20272 Northcove Square Window
Impact
hOllle
window
,
Memorial Day, 2004,
- Mr. Enos intruded onto the Critzers'
twice telling them to leave him and his
alone. At one point, he discussed the "30
degree cone of vision" and ranted that the
window was not within the "30 degree cone"
but was "DEAD ON"
.
-
~
~
--
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20272 Northcove Square Window
Impact
Day, 2004,
Memorial
- Later that day, within n1inutes of Ms. Chen turning on
her living room lights (after returning home - with
friends), Mr. Enos visited her hOll1e and began telling
her in front of her guests to leave hÍ111 alone.
.. Critzers told Mr. leave
.
Enos returns and taunts Mr.
Critzers called the police.
Ms. Chen installs a home security
Ì'ncmê:tÌI.
immediately
Critzer
Enos to
Mr.
The
..
shortly after this
system
..
..
-.
~
~
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20272 Northcove Square Window
Impact
the
June 14, 2004, return from an evening walk
around 7:50 pn1 to see Mr. Enos on the other side
of his open blinds, he in1n1ediately spun around
and dropped his arms as if he was holding a
camera or binoculars. Once he had his back to
window, he quickly closed the blinds.
.
Evening - Critzers had a neighbor over when Mr.
Enos began viewing into their hOlne as if he was
"figuring out" who was in our home.
- Once we looked in Mr Enos direction, he quickly
closed the blinds.
.
-
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,
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20272 Northcove Square Window-
Impact
· February 24, 2005 - Mr. Critzer sees Mr. Enos riding a bicycle
on the street outside the Critzer's home. Several minutes later,
Mr. Critzer drives to his place of business, about 1.5 miles
away. As he opens the door to exit his car, Mr. Enos rides his
bike swiftly by the trunk of Nlr. Critzer's car and continues,
without looking back at Mr. Critzer or his car, to the far end of
the parking lot. Mr. Critzer stands and watches as Mr. Enos
circles his bicycle at the far end of the lot to look back at Mr.
Critzer's car, and rides out of the parking lot when he sees Mr.
Critzer looking at him.
"-
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12/22/03
1/20/04
1/04-2/04
2/24/04
3/04-4/04
4/28/04
5/11/04
5/1 7/04
5/27/04
9/28/04
l1/10/04
EXHIBIT B
APPEAL OF DAVID AND MARGARET CRITZER
TIME LINE OF SIGNIFICANT EVENTS
Enos files architectural application with HOA to install the Window; no
notice of this filing is mailed to the Critzers.
HOA approves Enos's application to install the Window at HOA board
meeting; no notice of the consideration of Enos's application at the
meeting or its approval is mailed to the Critzers.
Enos files building permit application with City to install the Window,
which City approves; no notice of this filing or its approval is mailed to
the Critzers.
The Critzers first learn of Enos's Window when they see the Window
being installed; the Critzers communicate with onsite manager and HOA
president to protest installation of the Window.
The Critzers attend HOA meetings to ask HOA to remedy this problem,
citing violation of privacy and nuisance, and to request that HOA comply
with the City's code requirements.
Letter from HOA to the Critzers suggesting binding arbitration
Letter from the Critzers' counsel to HOA suggesting nonbinding
alternative dispute resolution.
Letter from the Critzers' counsel to City Attorney to investigate code
violations resulting from the Window's installation.
Letter from the Critzers' counsel to Enos and HOA requesting non-
binding arbitration pursuant to HOA CC&Rs to resolve this dispute. Enos
fails to respond to this request.
Letter from the Critzers' counsel to City Attorney stating that the Window
violates the Code and asking for investigation and Code enforcement.
Letter from City Planner Wordell to HOA noting that City consulted with
HOA prior to approving Enos's building permit application and that the
Window creates privacy issues, and requesting that the parties work
together to achieve a resolution
Exhibit B
/ ?- 5S-
1/05
1/19/05
3/2/05
3/4/05
3/31/05
4/1 1/05
4/14/05
4/20/05
4/27/05
5/10/05
The Critzers and HOA participate in City-sponsored mediation, which
Enos does not attend, and which produces a compromise between the
HOA and the Critzers for the installation of an opaque awning window
with limited opening capability to replace the Window.
The Critzers file a civil lawsuit against HOA and Enos to preserve their
rights against those parties; the Critzers do not immediately serve HOA
and Enos with the lawsuit, and later advise the court that they are not
actively prosecuting this lawsuit pending conclusion of City-sponsored
mediation and City's administrative processes.
Letter from the Critzers to City Attorney advising of Enos's refusal to
comply with the compromise produced by the City-sponsored mediation
and intention to sell his property, and pointing out Enos's code violations.
Letter from the Critzers to Enos informing Enos that they were aware of
his efforts to sell his property and his refusal to carry out the compromise
produced by the City-sponsored mediation, but that they would continue
to pursue a resolution with HOA, the City, and any owner of Enos'
property.
Letter from the Critzers to City Attorney demanding that City enforce its
ordinances with regard to Enos and the Window.
Letter from City Planner Wordell to HOA encouraging HOA to arrive at a
solution to the Critzers' problem and asking for information on what
action HOA will take to resolve the matter.
Letter from HOA's counsel to the Critzers' counsel and Enos proposing a
settlement in which Enos would replace the clear glass of the Window
with obscure glass but would continue to allow the Window to be opened,
with HOA to bear no more than $200 of the cost, and each party to release
the other parties and bear own attorneys' fees.
Letter from the Critzers' counsel to HOA's counsel rejecting proposed
settlement.
Letter from City Director of Community Development Piasecki to the
Critzers stating City's view that the installation of obscure glass in the
Window is an acceptable compromise and advising of City's decision that
City will no longer be involved in the matter (postmark date).
Appeal of City Director of Community Development's decision to City
Manager Knapp filed by the Critzers.
/ ?- 5 b
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7/7/05
7/13/05
14332
Letter from HOA's counsel to City Manager Knapp setting forth HOA's
position in response to appeal filed by theCritzers.
Letter from City Director of Public Works Qualls, acting as City Manager
Knapp's hearing officer, to the parties notifying them of his determination
that the Critzers' appeal is dismissed without prejudice and canceling the
hearing on the Critzers' appeal, based on the Critzers' civillawsllit against
Enos and HOA.
/ f-5 7
,
.
AMENDED AND RESTATED DECLARATION OF COVENANTS,CONDmONS AND
RESTRICTIONS OF NORTHPOINT HOMEOWNERS ASSOCIA TION
The Declaration of Covenants, Conditions and Restrictions applicable to that certain subdivision of real
property known as NORTHPOINT located in the City of Cupertino, County of Santa Clara., as shown on
that certain map entitled "TraCj:!No, 5Q70 Northpoint" filed for record in the office of the Recorder of the
County of Santa Clara on December 29, 1971, in Book 294 of Maps at pages 38 to 42 inclusive and as
shown on that certain Map entitled "Tract No. 5071 Northpoint Unit No.2", filed for record in the office
of the Recorder of Santa Clara County on June 12,1972, in.Book 303 of Maps at pages I, 2, 3, 4 and 5,
which Declaration was recorded December 23, 1980, in Book F808, Pages, et.seq., Instrument No'.
6935037. The Amended an4 Restated DeclaratioI\ Was amended by an Amendment to Amended and
Restated Declaration of Covenants, Conditions and Restriction of North point recorded January 30, 1984
in Book 1267, Page 351, Instrument No. 7962115, and by a further Amendment, recorded February 17,
1987 in Book K040, Pages 1493-1495, Instrument N"o. 91589.67 and a second Amendment to Amended
and Restated Declaration of Covenants, Conditions and Restrictions of North point recorded March 29,
1990 in Book L304, Pages 386-388, Instrument No. 10470968. Tracts 5070 and 5071 above referred to
are hereinafter referred to as "the Property", "the Properties", and as "NORTHPOINT".
WHEREAS, Article X, Section 10.05, of the CC&R's ofNORTHPOINT provides that they may be
amended by an instrument signed by not less than sixty percent (60%) of the Lot Owners, and
WHEREAS, The Owners of sixty percent (60%) or more of the Lots in NORTHPOINT deem it to be for
the best interests of all interested parties to amend and restate the CC&R's ofNORTHPOINT,
NOW, TIIEREFORE, the CC&R's ofNORTHPOINT are hereby amended and restated to read in full as
follows:
Declarants declare tha.t the Property sh1\lj.þe h.eld, sold, leased, encumbered and conveyed subject
to the easements, covenants, conditions and restrictions contained in this Declaration which are
imposed as equitable servitude's pursuant to a general plan for the development of the Property
and for the purpose of protecting the val.ue and desirability of the Property. This Declaration shall
run with each and every lot and parceLofJand comprising th.e Property and shall be binding upon
the Owners thereof and each and every successive Owner for the benefit of each and every
portion of the Property and the pro\IÎsions of this Declaration shall inure to the benefit of each and
every Owner of a lot or parcel ofland comprising the Property and his or her heirs, successors
and assigns.
2
Exhibit C
19---5~
·
4.09 The lien oÜhe as~e.~.smentsprovided forJ:¡erein~hallbe:su.bordÎJ)íIte to the lien of any first
mortgage. The Association may subordinate such lien to a second mortgage if the Board
determines that the Owner's equity in the Lot will, after such subordination, be not less than 25%
of its fair market value. Sale or transfer of¡g¡y I,.ot shallnot.¡µ:rect the asse.ssm.ent .lien. However,
the sale of any Lot pursuant to mortg~ge fore.cloSl.lre or tr<µ1sfer to the mortgage holder in lieu of
foreclosure shall extinguish the lien of such assessments as to payments which became due prior
10 such sale or tr<µ1sfer. No sale or transfer shall reUeye, such Lot from liability for any
assessments thereafter becoming due or fi:om the lien. thereof,
ARTICLEV.ARC~ÇTURALCQNTROL
5.01 No building, fence, wall or other structure shall be commenced,e,ected or maintained, nor shall
any alteration be made therein nor shall any exterior addition be made to any Building Unit, nor
shall any air-<;onditioniIlgunit or other appliance be installed in a window opening, nor shall any
window be covered on tl¡e inside or outside with a material,Ilot :¡pproved by the Board, nor shall
any exterior wall be painted, nor any tree planted untiLan application for approval thereofhas
been submitted to the Board together with the plans and specifications showing the nature, kind,
shape, height, materials, and location of the same, and if a tree, the species thereof, and they have
been approved in writing by the Board of Directors of the Association as to harmony of external
design and locationinrelation to surrounding structures. and topography and as to other
applicable features.
5.02 The Board may assign-loan Archite,ctµral Committee, to be appointed by the Board, the review
of any application filed under Section 5.01 and for the purpose ofmalång a report to the Board.
5.03 IT a decision has not been made within tbJrt< (30}dq-ysafter the application is submitted, the
applicant ~hall be entitled to a hearing before the Board on his application within sixty (60) days
after theapplicatiol:l has been submitted.
5.04 If the Board gJyes approval to an Owner fo, theW.stalJation of a stI1!cture or exterior addition,
such as but notlim.ited to, a sunshade or patio cover, the Owner shall be prohibited from malång
any additions thereto or changes therein, from painting the same, from installing electric lights
thereon, and ITom permitting pl<µ1ts or vines to grow thereon, without. prior written approval of
the Board after submission to the Board ofan application therefor pursuant to Section 5.01.
5.05 (a)
Each Owner who receives Board approval for installation of a structure or exterior
addition shl 11 be required to CQnfOI;i11 to all of the c9nditions of approval, and to keep and
maintain the Structure or exterior addition in good condition and repair at his own expense
in accordance with Regulations of the Board then in effect and as may be thereafter
adopted.
9
left-59
10.05 This Declaration s\J;!!J.1.r<:maiø in-iorce for!!. t~ oftwel)ty (20) years from the date this
Deç!aratiop is recorded,after whioh tÎn1e it shall beaµtomatically extended for successive periods
often (10) years, sµbject, however, to the power oftb.e Owners to aI11end.
10.06 ThisDectarationma:ybea,mencled by the vote or written assent (or a combination thereof) of the
oW!)ers of not less than sixty percent (60%) of the Lots; provided, however, any aI11endment
which:
(a) çhanges the method ofdeterrninipg the obligations, assessments, dues and other charges
which may be levied against an Owner; or
(b) authorizes the abandonment, partition, subdivision, encumbrance, sale or transfer of the
Con:unon A,reaother than as provided herein, shall require the written consent of the
Owners of at least seventy"five per-oent (75%) of the Lots.
10.07 An amendment to this Declaration shall become effective upon the recording in the office of the
Recorder of Santa CIara County of a certificate signed and acknowledged by the President and
Secreta.¡¡yoftheAssoqiation certifyjngthat suçhamendmenthas been approved by the vote or
written consent of the requisite percentage of Lot Owners as specified in Section 10.06.
10.08 The Article headings herein are for convenience only and they are not intended to be a part of
this Declaration nor do they describe the scope or mtent of the particular Article to which they
refer.
ARTICLE XI - CONDffiONS IMPOSED BY THE CITY OF CUPERTINO
11. 0 1 The Association, or any Owner, shall have the right to enforce, by any proceeding at law or in
equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter
imposed by the City of Cupertino. Failure by the Association or by any Owner to enforce any
requirement of the City of Cupertmo herem contained shalIin no event be deemed a waiver of the
right to do so thereafter.
11.02 All of the conditions set.forth in Resolutions No. 928 and 929 of the City of Cupertino are made a
part hereof as if recited in full.
11.03 All of Resolution No. 951 of the Planning Commission of the City of Cupertino recommending
thl;) granting of a Use Permit to Ditz-Crane is hl;)reby made a part hereof as if recited in full.
17
I lr- to 0
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-- -- . --.. -. .--.
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AMENDED AND RESTATED
BYLAWS OF
NORTHPOINT HOMEOWNERS ASSOCIATION
ARTICLE I NAME AND LOCATION
Thename'ofthe corporation is NORTIIPOINT HOMEOWNERS ASSOCIATION, hereinafter referred
to as the "Association". The principal office of the corporationshaU be located in the City of Cupertino,
County of Santa Clara, State of California, but meetings of Members and Directors may be held at such
places within Ùle State of California, County of Santa Clara, as may be designated by the Board of
Directors.
ARTICLE IT DEFINITIONS
2.01' "Association" shall mean and refer to NORTIIPOINT HOMEOWNERS ASSOCIATION, its
successors and assigns.
2.02 "Property" and "Properties" shall mean and refer to that certain real property d~scribed in the
Amended and Restated Declaration of Covenants, Conditiolls and Restrictions, and such additions
thereto as may hereafter be brought withill the jurisdiction ofthe Associatioll.
2.03 "Commoll Area" shall mean all real property owned by the Associatioll for the common use and
enjoyment of the Owners.
2.04 "Lot" shall mean and refer to any plot ofland shown upon any recorded subdivision map oflhe
Properties with exception of the Common Area.
2.05 "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of
the fee simple title to any Lot which is a part of the Properties, including COlllra,:t sellers, but
excluding those having such interest merely as security far the performance of an obligation.
2.06 "Declarant" shall mean the Owners, collectively.
2.07 "Declaration" shall mean and refer to the Amended and Restated Declaration of Covenants,
Conditions and Restrictions applicable to the Properties recorded December 23, 1980, in the
office of the Recorder, County of Santa Clara, State of California and any additions or
amendments thereto hereafter adopted.
2.08 "Member" shall mean and refer to those persons entitled to membership as provided in the
Declaration. The terms "Owner" and "Member" are synonymous.
Exhibit D
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ARTICLE V MEETINGS OF DIRECTORS
5.01 Regular Meeting.
Regular meetings nfthe Board of Directors shall be heJd monthly without notice, at such place
and hour as may be fixed ûom time to time by resolution of the Board. ShouJd said meeting fall
upon a legal holiday, then that meeting shaIl be held at the same time on the next day which is not
a Friday, Saturday, Sunday or a legal holiday; provided, however, that the Board may speciiÿ a
. different day or time.
5.02 Special Meetings.
Special meetings of the Board of Directors shal1 be held when caJJed by the President, Vice
President, Secretary or any two Directors of the Association, after not Jess than three (3) days
notice to each Director.
5.03 Quorum.
A majority of the number ofDirectoIS shall constitute a quorum for the transaction of business.
Every act or decision done or made by such majority shall be regarded as the act of the Board,
except as may be otherwìse specifically provided in these Bylaws, the Ar!icles of Incorporation or
the Declaration.
5.04 Attendance by Members and Association Manager.
(a) With the exception of executive sessions of the Board (see subparagraph (b), below)
and any meetings conducted by conference telephone, all meetings ofthe Board shaH
be open to Members of the Association, provided that non-Director Members may
only participate in deliberations or cliscussions of the Board when expressly
atithorized bya vote of a majority of a quorum of the Board. If the Association has
retained the services of a Manager, such person may, in the Board's discretion,
attend regular and special meeting.
(b) The Board may adjourn a meeting and reconvene in executive session to discuss and
vote Upon litigation, matters that relate to the formation of contracts v.ith third
parties, Of personnel matters. The nature of any and all business to be discussed in
executive session shall first be announced in open session. Any matters discussed in
executive session shall be generally noted in the minutes of the Board of Directors.
In any matterrelating to the discipline of an Association member, the Boord of
Directors shall meet in executive session ifrequested by the Member,and the
Member shaH be entitled to attend the executive session. Nothing provided herein
shaH be construed to obligate the Board to first call an open meeting before meeting
in executive session with respect to the matters described above.
7
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· f, tIITE & MacDONALD, LLl
ATIQRNEYS AT LAW
99 ALMADEN BOULEVARD
SUITE 1050
SAN JOSE, CALIFORNIA 95113-1601
(4081 345-4000
ROB D. MacDONALD
STEVEN M. WHITE
JAMES P. HILLMAN
FACSIMILE
(408) 345-4020
January 10,2006
[Ë!G[Ë~W[Ë
City Council of Cupertino
c/o Grace Schmidt
Deputy City Clerk
10300 Torre Avenue
Cupertino, CA 95014
~
JAN 1 1 2006
~
CUPERTINO CITY CLERK
Re: Notice of Appeal Hearing
Hearing Date: January 17,2006
Appellants: David and Margaret Critzer and Jowei Chen
Dear Council Members:
Please accept this letter in relation to your consideration ofthe above-referenced Appeal of
the Town Manager's decision of November 15,2006. This office is counsel to the Northpoint
Homeowners Association. Appellants are members ofthe Association. The subject permit applicant
Jerry Enos is a former member of the Association.
This appeal relates exclusively to the City's issuance of a permit to Mr. Enos for construction
of a window in the master bathroom of his townhome located in the Northpoint common interest
development. The Association was not a party to the permit application, and was not consulted by
the City before its issuance. Accordingly, the Association does not encourage the Council to decide
the subject appeal in any particular manner. However, for the Council's benefit, please know Mr.
Enos did satisfy the Association's requirements to alteration of his townhome, which included
procurement of a City building permit.
Of significance to the Association is the reference in the Town Manager's November 15,
2005 determination to the Homeowners Association best suited to facilitate an end to this dispute.
The statement suggests the Association has not been willing to resolve the dispute. That is not the
case. The Association has initiated multiple efforts to resolve this matter, including the facilitation
of meetings amongst the affected members, attendance at confidential mediations, and the incurrence
of costs to obscure glass in the window. Unfortunately, those efforts and expenses have not yielded
a conclusion. Indeed, the Association remains a defendant in the Santa Clara County Superior
Court, Action No.1-OS CV 034156, initiated by appellants. Moreover, the Association has no
authority to reconsider the issuance of a building permit by the City.
I ?-~ 3
City Council of Cupertino
c/o Grace Schmidt
Deputy City Clerk
Cupertino, CA 95014
January 10, 2006
Page 2 of2
Thank you for your consideration of the foregoing.
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City Hall
10300 Torre Avenue
Cupertino, CA 95014-3255
(408) 777-3354
DEPARTMENT OF PUBLIC WORKS
CITY OF
CUPEIU1NO
Ralph A. Qualls, Jr., Director
Date of Determination: November IS, 2005
David and Margaret Critzer
20282 Northcove Square
Cupertino, CA 95014
Jowei Chen
20292 Northcove Square
Cupertino, CA 95014
Jerry Enos
2547 Deora Way
Henderson NY 89052
Northpoint Homeowners Assn
Attn: Celeste Strarr
10880 Northpoint Square
. Cupertino, CA 95014
Darien Tung
20272 Northcove Square
Cupertino, CA 05014
Steven M. White
White & MacDonald
99 Almaden Blvd, Ste 1050
San Jose, CA 95113
James Eller
Eller and Associates
60 South Market Street
San Jose, CA 95113
Subject: Hearing on Appeal by Critzer regarding window installation at 20272
Northcove Square - Notice of Determination
This notice refers to the Hearing held at 2:00 PM on October 25,2005 at the Cupertino
City Hall on the above subject which I conducted as the City Manager's designated City
Hearing Officer on this matter. The following persons were present:
David and Margaret Critzer, Appellants
James Eller, Esq. Eller and Associates (Representing the Appellants)
Leslie Starr, Northpoint Homeowners Association (HOA)
Stephen White, Esq., White and MacDonald (Representing Northpoint HOA)
Steve Piasecki, Director of Community Development City of Cupertino
Ciddy Wordell, Principal Planner, City of Cupertino
Eileen Murry, Esq., Asst. City Attorney, City of Cupertino
Carol Shepherd, Admin. Assistant, City of Cupertino
Issue of Appeal
The Appellants in this matter, Margaret and David Critzer and Jowei Chen are appealing
the determination of the Director of Community Development to issue a building permit
under the provisions of Cupertino Municipal Code (CMC) to Jerry Enos for a building
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Printed on Recycled Paper
Finally, this installation of the window does not rise to the level of meeting the criteria to
be declared a nuisance since it is a minor change and it was installed in compliance with
existing regulations and procedures.
Since the Director's Determination to issue the building permit for the modification is
found to be fully compliant with existing provisions of the Cupertino Municipal code, the
Appeal is Denied.
Further, whatever dispute remains following this finding and determination, is strictly a
civil matter by and between the private parties involved and no further action is required
or necessary by the City of Cupertino.
Please note that my decision may be appealed to the City Council by filing an appeal with
the City Clerk of Cupertino within ten business days of the date of this Notice of
. Determination.
Additional Comments
Apart and aside from this determination, it is my general conclusion that the City has
made a considerable effort over a long period of time, to help resolve the matter by
facilitating discussions between the private parties and through a City-sponsored
mediation, even though the City would typically have no obligation to do any of these
things.
In consideration of the discussion at the hearing regarding possible solutions in this
dispute that are outside the purview of the City, I am strongly encouraging the private
parties, including the Northpoint Homeowners Association, the Appellants and the
apparent new owner of the residence, Mr. Darien Tung, to work together to seek a
common, timely and equitable solution. The City has suggested this on numerous
occasions for an entire year.
Finally, it is my opinion and conclusion that the HOA is, irrespective of their stated view
to the contrary, best suited to facilitate that effort in order to seek a common end to this
dispute.
Sincerely,
~u:!:Jr.U tiUtf
Director of Public Works
C: David Knapp, City Manager
Charles Kilian, City Attorney
Steve Piasecki, Director, Community Development
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· " .tIITE & MacDONALD, LU
ATTORNEYS AT LAW
99 ALMADEN BOULEVARD
SUITE 1050
SAN JOSE, CALIFORNIA 95113~ 1601
(408) 345-4000
ROB D. MacDONALD
STevEN M. WHITE
JAMES P. HILLMAN
FACSIMILE
~408) 345·4020
January 10, 2006
City Council of Cupertino
c/o Grace Schmidt
Deputy City Clerk
10300 Torre Avenue
Cupertino, CA 95014
rö) LE ~ LE ~ \Yl LE rñì
lJì} JAN 1 1 2006 lW
CUPERTINO CITY CLERK
Re: Notice of Appeal Hearing
Hearing Date: January 17,2006
Appellants: David and Margaret Critzer and Jowei Chen
Dear Council Members:
Please accept this letter in relation to your consideration of the above-referenced Appeal of
the Town Manager's decision of November 15,2006. This office is counsel to the Northpoint
Homeowners Association. Appellants are members ofthe Association. The subject permit applicant
Jerry Enos is a former member of the Association.
This appeal relates exclusively to the City's issuance of a permit to Mr. Enos for construction
of a window in the master bathroom of his townhome located in the Northpoint common interest
development. The Association was not a party to the permit application, and was not consulted by
the City before its issuance. Accordingly, the Association does not encourage the Council to decide
the subject appeal in any particular manner. However, for the Council's benefit, please know Mr.
Enos did satisfy the Association's requirements to alteration of his townhome, which included
procurement of a City building permit.
Of significance to the Association is the reference in the Town Manager's November 15,
2005 determination to the Homeowners Association best suited to facilitate an end to this dispute.
The statement suggests the Association has not been willing to resolve the dispute. That is not the
case. The Association has initiated multiple efforts to resolve this matter, including the facilitation
of meetings amongst the affected members, attendance at confidential mediations, and the incurrence
of costs to obscure glass in the window. Unfortunately, those efforts and expenses have not yielded
a conclusion. Indeed, the Association remains a defendant in the Santa Clara County Superior
Court, Action No.1-OS CV 034156, initiated by appellants. Moreover, the Association has no
authority to reconsider the issuance of a building permit by the City.
f p-& 1
City Council of Cupertino
c/o Grace Schmidt
Deputy City Clerk
Cupertino, CA 95014
January 10, 2006
Page 2 of2
Thank you for your consideration of the foregoing.
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