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SB35 - Vallco Town Center Non-Compliance IssuesVALLCO TOWN CENTER SB 35 NON-COMPLIANCE ISSUES JUNE 18, 2018 FRIENDS OF BETTER CUPERTINO TABLE OF • Tableof Contents.................................................................................................................................................... 1 Figures..................................................................................................................................................................... 2 Tables...................................................................................................................................................................... 5 Introduction............................................................................................................................................................. 7 ProjectDescription.................................................................................................................................................. 7 Summary of Non-compliance issues in Vallco SB 35 Application: ....................................................................... 9 I. Applicant Plans' Metadata Indicates Late Submittal of Plans.................................................................... 9 Il. SB 35 Site on Hazardous Materials List: Not Compliant......................................................................... 10 Vallco Special Area DEIR Indicates Project on List of Hazardous Materials Sites Pursuant to Gov. Code § 65962.5.......................................................................................................................................................... 11 III. SB 35 Zoning Requirement: Not Compliant............................................................................................ 11 SB 35 Application Must follow General Plan — no specific plan can be required ......................................... 12 CupertinoGeneral Plan Zoning..................................................................................................................... 13 IV. SB 35 2/3 Residential Square Footage Requirement: Not Compliant..................................................... 15 V. GP Objective Standard For Ground Floor Retail: Not Compliant............................................................ 23 VI. Compliance Test Excluding Concessions: Not Compliant...................................................................... 24 Density Bonus is not Allowable — Exceeds City -Wide EIR Studied Totals .................................................. 25 VII. Number of Dwelling Units inconsistent with Table LU-1 - Excessive ................................................. 26 VIII. Density Bonus Concessions: Not Compliant (Exceeds Maximum) ..................................................... 28 Three Concessions Requested by Applicant.................................................................................................. 28 Discussion of Three Concessions.................................................................................................................. 29 Floor Plans of BMR and Market Rate Units: Not Equivalent...................................................................... 43 Floor Plans of Market Rate Units — Do Not Match Below Market Rate Units in Size or Number of Bedrooms....................................................................................................................................................... 46 IX. Vallco Park Land Requirement not Met in Vallco SB 35.......................................................................... 66 General Plan EIR Population Multiplier is 2.94 Persons per Household...................................................... 66 Cupertino Municipal Code for park land dedication..................................................................................... 68 X. SB 35: Previous GP Conflict with Plan Heights: Not Compliant........................................................... 70 XI. SB 35 Objective Standard for Transit Hub Not Compliant....................................................................... 72 XII. Financial Analysis for DBU Concessions MissIng: Not Compliant .................................................... 73 Vallco SB 35 Violates State Density Bonus Law and Housing Accountability Act- Specific Adverse Impacts— See Vallco DEIR........................................................................................................................... 74 Vallco Specific Plan Draft Environmental Impact Report Summary............................................................ 75 XIII. Objective Standard for Protected Tree Removal: Not Compliant........................................................ 80 XIV. Easements Not Ministerially Created or Vacated................................................................................. 86 Table and Plan View of Easements................................................................................................................ 86 Vallco Roadway Easements........................................................................................................................... 87 Roadway Easement Recoded July 29, 1975, Bk 526 P 74, No. 5058714 of SCC records ............................ 89 Roadway Easement Blocks Underground Parking Structure Below It .......................................................... 93 Planning Commission and City Council May Reject Tentative Map............................................................ 94 SB 35 Objective GP 1:1 Building Setback: Incomplete. Not Compliant..................................................... 94 XV. Subdivision Map Act — Not Compliant............................................................................................... 104 XVI. Tentative Map and Civil Engineering Plans Show Nonexistent Existing Driveway, and Do So Inconsistently —Not Compliant....................................................................................................................... 105 Surveyor of record License Information...................................................................................................... 105 Engineer of Record License Information..................................................................................................... 106 Benefit of Including a Nonexistent Driveway............................................................................................. 106 Plans By Same Civil Engineer and Surveyor Show Correct Driveway....................................................... 116 Subdivision Map Act Gov. Code § 66477. Quimby Act; Park and Recreational Purposes ......................... 119 XVII. Project Application Claims CMC Does not Administer BMR Program ............................................. 119 XVIII. Plan Alternative is a Second Plan, Incomplete For Review............................................................ 121 References........................................................................................................................................................... 126 Figure 1: Screenshot of Vallco SB 35 Site Plan Parking and Square Footage Totals, annotated version ........... 16 Figure 2: Cross Sections Illustrating Excluded Square Footage in SB 35 Application ....................................... 21 Figure 3: Plan View of Parking Illustrating Garages Excluded in Square Footage in SB 35 Application .......... 22 Figure 4: VTC SB 35 Architectural Site Plans, Building Plan Street Level P-0800.01....................................... 24 Figure 5: VTC SB 35 Table LU-1 Consistency Analysis.................................................................................... 27 Figure 6: Land Use Table LU-1, GP-2014........................................................................................................... 27 Figure 7: Location of Below Market Rate Units in SB 35 application................................................................ 31 Figure8: Gound Floor, No BMRs........................................................................................................................ 32 Figure9: 2nd Floor, No BMRs............................................................................................................................. 32 Figure 10: 3rd Floor, BMRs in Middle Portion of Floor...................................................................................... 33 Figure 11: 4th Floor, BMRs in Middle Portion of Floor....................................................................................... 33 Figure 12: 5th Floor, BMRs in Middle Portion of Floor....................................................................................... 34 Figure 13: 6th Floor, BMRs in Middle Portion of Floor...................................................................................... 34 Figure 14: 7th Floor, BMRs in Middle Portion of Floor...................................................................................... 35 2 Figure 15: 8th Floor, BMRs in Middle Portion of Floor...................................................................................... 35 Figure 16: 9th Floor, BMRs in Middle Portion of Floor...................................................................................... 36 Figure17: 10th Floor, No BMRs.......................................................................................................................... 36 Figure18: 1 lth Floor, No BMRs.......................................................................................................................... 37 Figure 19: 12`" floor — "Terrace Level 0 1 " no BMRs........................................................................................... 37 Figure 20: 13th floor — "Terrace Level 02" no BMRs.......................................................................................... 38 Figure 21: 14th floor — "Terrace Level 03" no BMRs.......................................................................................... 38 Figure 22: 15th floor — "Tower Level 1" no BMRs, has swimming pool............................................................. 38 Figure 23: 16th floor - "Tower Level 2" no BMRs............................................................................................... 39 Figure 24: 17th floor — "Tower Level 3" no BMRs.............................................................................................. 39 Figure 25: 18th floor — "Tower Level 4" no BMRs.............................................................................................. 39 Figure 26: 19th floor — "Tower Level 5" no BMRs.............................................................................................. 40 Figure 27: 20th floor — "Tower Level 6" no BMRs.............................................................................................. 40 Figure 28: 2 1 A floor— "Tower Level 7" no BMRs.............................................................................................. 40 Figure 29: 22nd floor — "Tower Level 8" no BMRs............................................................................................. 41 Figure 30: 23th floor — "Tower Level 9" no BMRs.............................................................................................. 41 Figure31: 24th floor — Green roof........................................................................................................................ 41 Figure32: BMRs Typical Location...................................................................................................................... 42 Figure 33: BMR Studio, SB 35 Architectural Plans, 388 SF...............................................................................44 Figure 34: BMR 1 Bedroom: 528 SF (vs traditional size market rate 1BR: 863 SF, 1 BR loft size 1085 SF).. 45 Figure 35: Traditional (TRD) "Market Rate" Studio: 620 SF............................................................................. 46 Figure 36: TRD "Market Rate" One Bedroom Unit: 863 SF..............................................................................47 Figure 37: Two Story One Bedroom Loft "Market Rate" 1085 SF..................................................................... 48 Figure 38: 2 BR Market Rate TDR unit 1117 SF................................................................................................ 49 Figure 39: 5 BR Market Rate Co -Housing, 2,015 SF.......................................................................................... 50 Figure 40: Market Rate 4 BR Townhouse: 2,310 SF.......................................................................................... 51 Figure 41: Market Rate 3 BR Townhouse, 1,923 SF........................................................................................... 52 Figure 42: Market Rate 2 BR Townhouse, 1,539 SF........................................................................................... 53 Figure 43: Market Rate 2 BR Loft 1,395 SF; Market Rate 3 BR Loft 1,705 SF .................................................. 54 Figure44: Market Rate 4 BR Loft 2,170 SF......................................................................................................... 55 Figure 45: Market Rate 4 BR Terrace unit 2,177 SF........................................................................................... 56 Figure 46: Market Rate 3 BR Terrace unit 1,842 SF........................................................................................... 57 Figure 47: Market Rate 2 BR Terrace unit 1,508 SF........................................................................................... 58 Figure 48: Market Rate 3 BR Tower unit 1,712 SF, Market Rate 4 BR Tower unit 2,255 SF ............................ 59 3 Figure 49: Market Rate 2 BR Tower unit 1,424 SF............................................................................................. 60 Figure 50: Market Rate 6 BR Full Tower unit 4,646 SF...................................................................................... 61 Figure 51: VTC SB 35 Project Description Part 4, p. 1, PDF 9, Retail Reduction Justification Letter Excerpt. 64 Figure 52: Retail Reduction Justification Letter.................................................................................................. 65 Figure 53: VTC SB 35 Application Park Land Total Incorrect with 2.83 residents/unit..................................... 67 Figure 54: VTC SB 35 Site Plans: Private Residential Open Space, Public Green Roof Park Space ................ 67 Figure 55: CMC 13.08.050 Park Land Dedication.............................................................................................. 68 Figure56: Roof Too Sloped................................................................................................................................. 70 Figure 57: County Assessor's Map, Vallco Area................................................................................................. 71 Figure58: Air Easement, 26'................................................................................................................................ 72 Figure 59: VTC SB 35 Site Plans P-0101, Tree Removal/Replacement - Remove 475 Trees, Relocate 6 SpecimenTrees..................................................................................................................................................... 81 Figure 60: Vallco Fashion Park Planting Plan & Details, Wurster, Bernardi and Emmons, Inc. Architects, August6, 1975, Slit. L-11..................................................................................................................................... 83 Figure 61: VTC SB 35 "Landscape Lighting and Signage" Planet, "TREE DISPOSITION PLAN - EXISTING PLANTING - STREET LEVEL", P-0602 — Gray colored street trees to be removed ......................................... 84 Figure 62: Google maps Sears Parking Lot......................................................................................................... 85 Figure 63: Easement Table from VTC SB 35 Civil Drawings Part 1: P-0306..................................................... 86 Figure 64: VTC SB 35 Civil Drawings Part 1: P-0306, Existing Easements....................................................... 87 Figure 65: Google Map Roadway Easement........................................................................................................ 88 Figure 66: Roadway Easement Recoded July 29, 1975, Bk 526 P 74, No. 5058714 of SCC records ................. 89 Figure 67: VTC SB 35 Civil Plans Part 1 P-0306, Existing Easements.............................................................. 91 Figure 68: Vallco Roadway Easement Various Plans.......................................................................................... 92 Figure 69: Site Plans P-0202A, PDF 8................................................................................................................. 93 Figure 70: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8................................ 95 Figure 71: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8................................ 96 Figure 72: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8................................ 96 Figure 73: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8................................ 97 Figure 74: VTC SB 35 Civil Plan Set 1: Existing Surface Contours, N. Wolfe Rd., P-0302 (North is to left) .. 97 Figure 75: As -Built Wolfe Rd. Street Plan (Curb Line) 1/3................................................................................ 98 Figure 76: As -Built Wolfe Rd. Street Plan (Curb Line) 2/3................................................................................ 99 Figure 77: As -Built Wolfe Rd. Street Plan (Curb Line) 3/3.............................................................................. 100 Figure 78: GPA-2015, LU-1 Community Form Diagram.................................................................................. 101 Figure 79: GPA-2015, Building Planes 1: 1, Expanded View of LU-1: Community Form Diagram ............... 101 Figure 80: Unofficial GP-2015, Figure M-2, Circulation Network................................................................... 102 4 Figure 81: Building Section, Architectural Plans Part 3, P-0831, indicates 1:1 setback lines ........................... 103 Figure 82 Building Section, Architectural Plans Part 3, P-0831, Walkway over N. Wolfe Rd. Reference lines do notmatch up........................................................................................................................................................ 104 Figure 83: Google Maps Street View - Single Driveway.................................................................................. 106 Figure 84: VTC SB 35 Civil Drawings Part 1, Existing Parcels, P-0303.......................................................... 107 Figure 85: Nonexistent Driveway, Existing Surface Plan, P-0301.................................................................... 108 Figure 86: Nonexistent Driveway on Tentative Map TM 2.8 - Annotated View .............................................. 109 Figure 87: Nonexistent Driveway on Civil Engineering "Existing Surface Contours" P-0302 of plans — AnnotatedView.................................................................................................................................................. 110 Figure 88: Compare Nonexistent Driveway (SB 35 "existing") to Proposed SB 35 Plan, and Actual Driveway Locations: "Actual" location is illustrative and requires a survey to verify ...................................................... 111 Figure 89: Google Map vs. SB 35 P-0302 Existing Surface Contours Plan with Nonexistent Driveway......... 112 Figure 90: Nonexistent Driveway, Existing Surface Plan, P-0301 Expanded View — Nonexistent Driveway.. 114 Figure 91: VTC SB 35 Existing Parcels — Nonexistent Driveway.................................................................... 115 Figure 92: VTC SB 35 Existing Offsite Rights, P-0305 —Nonexistent Driveway ............................................ 116 Figure 93: Tentative Subdivision Map Vallco Town Center Existing Public and Private Easements and Boundaries - Does NOT show nonexistent driveway......................................................................................... 117 Figure 94: Expanded View of TM 6.8 — (Notice the driveway is drawn correctly — see light lines, heavier lines areproposed)....................................................................................................................................................... 118 Figure 95: VTC SB 35 Application, Vallco Town Center Project Description City Standards Consistency Analysis, p. 55, PDF 80...................................................................................................................................... 120 Figure 96: Master Site Plan - Street Level......................................................................................................... 121 Figure 97: Master Site Plan - Street Level, expanded view............................................................................... 122 Figure 98: Master Site Plan - Street Level - Alternate....................................................................................... 123 Figure 99: Master Site Plan - Street Level - Alternate, expanded view............................................................ 124 Figure 100: Alternate Proposed Public Utility and Access Easements.............................................................. 125 Table 1: Aerial Photograph of Project -VTC SB 35 area in green, Apple Park in NE corner ............................... 8 Table2: Late Filing Metadata.............................................................................................................................. 10 Table 3: Cupertino GP Dec. 2014, Table HE-5, Ch. 4: HE, P. HE-18, PDF 18, see Notes ................................ 14 Table 4: Calculation of Total Residential Square Feet, SF including parking and amenities .............................. 18 Table 5: Residential Square Footage Totals. ........................................................................................................ 19 Table 6: Comparison of 2/3 Calculation Methods - VTC SB 35 Not Compliant ................................................ 20 Table 7: Comparison of BMR and Market Rate Unit Sizes................................................................................. 43 5 Table 8: Vallco Town Center SB 35 Site Plan Residential Units........................................................................ 62 Table 9: Vallco Town Center SB 35 Site Plan Residential Program Types ........................................................ 63 Table 10: Vallco DEIR Summary of Project and Alternatives............................................................................ 76 Table 11: Comparison of SB 35 Plan to Projects studied in various EIRs........................................................... 77 Table 12: DEIR Health Effects of Air Pollutants................................................................................................. 79 Table 13: DEIR Health Effects of Air Pollutants................................................................................................. 80 m INTRODUCTION The Vallco Town Center (VTC) SB 35 application was submitted by the Vallco developer with an undated cover letter. The City's website states that the application was submitted on March 27, 2018, but some parts of the application were accepted by the City on or after March 29, 2018. This document demonstrates numerous non-compliance issues affecting the application, including failure to meet "objective" preconditions. As Friends of Better Cupertino advised the City in a letter dated June 14, 2018, failure by the City to issue a timely notice detailing and documenting those items of non-compliance within 90 days would result in those objections being forfeited, thus effectively locking the City out of significant parts of the process. To date, the city has failed to respond to any communications advising of these non-compliance issues, and has not given any public indication as to whether the plan is compliant. The inaction of pertinent departments and individuals is extremely puzzling. I PROJECT DESCRIPTION The VTC SB 35 site consists of 50.82 acres of land in total on the east and west side of Wolfe Rd. adjacent to and south of the I-280 freeway. The site is currently a 1.2 Million square foot mall with Bay Club Gym, BowlMor lanes, Ice Rink, Starbucks Coffee, and Dynasty Restaurant still in operation. The site is used as a transit hub for park and ride use for various technology companies. Additionally the site is used for new car storage. The western portion of the project site, west of North Wolfe Road, is developed with several buildings: a three-story (approximately 85 foot tall) mall building, two single -story (approximately 25 feet tall) satellite buildings, three multi -story (two- and four -level, up to 50 feet tall) parking structures, and surface parking lots. The eastern portion of the project site, east of North Wolfe Road, is developed with an additional two-story (approximately 60 foot tall) mall building, a single -story satellite restaurant building, a three -level (approximately 60 foot tall) parking structure, and surface parking lots. The two sides of the project site are connected by an enclosed, pedestrian bridge which includes shops on either side of a pedestrian walkway. A five -story (60 foot tall), 148-room hotel is currently under construction at the north end of the eastern portion of the site (Hyatt House Hotel). Perimeter Road, a two-lane roadway, is located along the west, north, and east boundary of the site. Two landlocked lots (Hyatt House Hotel and the Simeon property) have public access to Wolfe Road via public access easements from Perimeter Road. As shown in General Plan Table LU-1, the General Plan development allocation for the Vallco Special Area is as follows: up to a maximum of 1,207,774 square feet of commercial uses (i.e., retention of the existing mall) or redevelopment of the site with a minimum of 600,000 square feet of retail uses of which a maximum of 30 percent may be entertainment uses (pursuant to General Plan Strategy LU- 19.1.4); up to 2.0 million square feet of office uses; up to 339 hotel rooms; and up to 389 residential dwelling units.5 Pursuant to General Plan Strategy LU-1.2.1, development allocations maybe transferred among Planning Areas, provided no significant environmental impacts are identified beyond those already studied in the Cupertino General Plan Community Vision 2015-2040 Final EIR (SCH#2014032007) (General Plan EIR).6 Therefore, additional available, residential or other, development allocations may be transferred to the project site.. (Vallco DEIR p 7 PDF 43) 7 The VTC SB 35 project submitted consists of- 0 1.81 Million SF office • 3.4 Million SF office and retail subterranean parking • 400,000 SF retail • 2,402 residential units 0 2.2 Million SF actual apartments 0 2.5 Million SF residential amenities which include internal, above ground parking garages ringed with apartments Total size of project: approximately 10.3 Million square feet. For reference, Apple Park is 5.9 Million SF (including parking) on 176 acres. Table 1: Aerial Photograph of Project -VTC SB 35 area in green, Apple Park in NE corner U AA App'e Campus 3 IX �..al'STUr;h)rL y¢� x I IMmed4".J L-----____J _ I --- ?m�ect 9cundary N (Vallco DEIR p 6 PDF 42) 8 I. Applicant Plans' Metadata Indicates Late Submittal of Plans II. SB 35 Site on Hazardous Materials List: Not Compliant III. SB 35 Zoning Requirement: Not Compliant IV. SB 35 2/3 Residential Square Footage Requirement: Not Compliant V. GP Objective Standard For Ground Floor Retail: Not Compliant VI. SB 35 Compliance Test Excluding Concessions: Not Compliant VII. Number of Dwelling Units inconsistent with Table LU-1 — Excessive VIII. SB 35 Density Bonus Concessions: Not Compliant (Exceeds Maximum) IX. Vallco Park Land Requirement not Met in Vallco SB 35 X. Previous GP Conflict with Plan Heights: Not Compliant XI. Provide Transit Hub Per GP: Not Compliant XII. Financial Analysis for Density Bonus Unit Concessions XIII. Protected Tree Removal: Not Compliant XIV. Easements not Ministerially Created or Vacated XV. Subdivision Map Act — Not Compliant XVI. Application Claims CMC does not Administer BMR Program Under SB 35, XVIl. Plan Alternative is a Second Plan, Needs a separate submittal and review. APPLICANT PLANS' METADATA INDICATES LATE SUBMITTAL OF PLANS SB 35 requires the City to inform the Applicant whether their application is consistent with local objective standards within certain time limits, for VTC SB 35, the time limit is 90 days. The `clock' starts when the plans are submitted. VTC is not compliant with SB 35 because several files were created and submitted after the initial application `clock' started. Ca. Gov. Code § 65913.4 (b)(1)(B). The PDF file format contains timestamps for content creation and for the content's last modification. These timestamps do not change when the file is copied or transmitted. The timestamps are kept separate from the file's data content, and are what is known as "metadata." These timestamps can be displayed using Adobe's Acrobat Reader. The last modified timestamp in many of the Project files show that these files could not have been submitted before the close of business on March 27, 2018, the date that the Application package was putatively submitted. In particular, the City could not have received the file, ArchitecturalPlansPart3.pdf, before March 30, 2018, because it was last modified after the close of business on the previous day, March 29, 2018. The metadata of the PDF files submitted include several after the application was `officially' submitted. This indicates a new submittal date of 3/29/2018, not 3/27/2018. It is alarming that the city accepted late filing of plans in such a high profile SB 35 project. At the very least, the application submission date must be changed to reflect the last document added to the plans after the submittal date. L1 Table 2: Late Filing Metadata Vallco Town Center SB 35 Project Application File Name and Metadata Component files modified after SPM, March 27, 2018 Filename Date Created Time Created Date Last Time Last Modified Modified 3/28/2018 3.52:35 PM 3/28/2018 3:52:35 PM Renerings.pdf VallcoSB35ProjectDescriptipdf(1) 3/27/2018 9:15:59 PM 3/27/2018 9:15.59 PM VallcoSB35ProjectDescriptipdf (2) 3/27/2018 9:16.00 PM 3/27/2018 9:16:01 PM VallcoSB35ProjectDescriptipdf (3) 3/27/2018 9:16:06 PM 3/27/2018 9:16:07 PM VallcoSB35ProjectDescriptipdf(4) 3/27/2018 9:16.09 PM 3/27/2018 9:16:09 PM SitePlans.pdf 3/28/2018 3:53:19 PM 3/28/2018 3:53:19PM SiteDiagrams.pdf 3/28/2018 3:55.06 PM 3/28/2018 3:55.06 PM ArchitecturalPlansPartl.pdf 3/28/2018 5:54:38 PM 3/28/2018 5:45:38 PM ArchitecturaIl'lansPart2.pdf 3/28/2018 5.46.36 PM 3/28/2018 5.46.36 PM ArchitecturalPlansPart3.pdf 3/28/2018 5:37:26 PM 3/29/2018 102626 PM ArchitecturalPlansPart4.pdf 3/28/2018 5:35:19 PM 3/28/2018 5:35:19 PM CMIPlansPartl.pdf 3/28/2018 5:43:52 PM 3/28/2018 5:43:52 PM CivilPlansPart2.pdf 3/28/2018 5.44:34 PM 3/28/2018 5.44:34 PM Landsca e' tingands' Lpdf 3/28/2018 3S5S2 PM 3/28/2018 3:55:52 PM Source: Adobe Acrobat Reader DC Version 2018.011.20020 II. SB 35 SITE ON HAZARDOUS MATERIALS LIST: NOT COMPLIANT The Project does not comply with the criteria of SB 35, in that the site is listed as a hazardous waste site and thus does not comply with Gov. Code § 69513.4(a)(6)(E). Gov. Code § 69513.4(a)(6)(E): (a) A development proponent may submit an application for a development that is subject to the streamlined, ministerial approval process provided by subdivision (b) and not subject to a conditional use permit if the development satisfies all of the following objective planning standards: (6) The development is not located on a site that is any of the following: (E) A hazardous waste site that is listed pursuant to Section 65962.5 or a hazardous waste site designated by the Department of Toxic Substances Control pursuant to Section 25356 of the Health and Safety Code, unless the Department of Toxic Substances Control has cleared the site for residential use or residential mixed uses. 10 VALLCO SPECIAL AREA DEIR INDICATES PROJECT ON LIST OF HAZARDOUS MATERIALS SITES PURSUANT TO GOV. CODE § 65962.5 "Impact HAZ-2: The project (and project alternatives) is located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code Section 65962.5;" See Draft Environmental Impact Report for Vallco Specific Plan Special Area, SCH# 2018022021, p. 143, PDF 179. htip://www.cu,oertino.orWhome/showdocument?id=20887 Ministerial approval of a site on the Cortese list is beyond the scope of SB 35 and would be a subjective decision on an environmental matter regarding hazardous materials. III. SB 35 ZONING REQUIREMENT: NOT COMPLIANT The Project does not comply with the criteria of SB 35, in that the site is not zoned for housing according to Gov. Code § 65913.4 (a)(1)(C). Per SB 35, Gov. Code § 65913.4 (a)(1)(c): (C) A site that is zoned for residential use or residential mixed -use development, or has a general plan designation that allows residential use or a mix of residential and nonresidential uses, with at least two- thirds of the square footage of the development designated for residential use. (SB 35 Law) And SB 35, Gov. Code § 65913.4(a)(5)(B): (5) The development, excluding any additional density or any other concessions, incentives, or waivers of development standards granted pursuant to the Density Bonus Law in Section 65915, is consistent with objective zoning standards and objective design review standards in effect at the time that the development is submitted to the local government pursuant to this section. For purposes of this paragraph, "objective zoning standards" and "objective design review standards" mean standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal. These standards may be embodied in alternative objective land use specifications adopted by a city or county, and may include, but are not limited to, housing overlay zones, specific plans, inclusionary zoning ordinances, and density bonus ordinances, subject to the following: (A) A development shall be deemed consistent with the objective zoning standards related to housing density, as applicable, if the density proposed is compliant with the maximum density allowed within that land use designation, notwithstanding any specified maximum unit allocation that may result in fewer units of housing being permitted. (B) In the event that objective zoning, general plan, or design review standards are mutually inconsistent, a development shall be deemed consistent with the objective zoning standards pursuant to this subdivision if the development is consistent with the standards set forth in the general plan. (SB 35 Law) The Cupertino General Plan Community Vision 2015-2040. October 20, 2015 (GP) states quite clearly that the site is zoned Planned Development with Regional Shopping and Commercial (P[Regional Shopping and P[CG]) housing only becomes allowable when a Specific Plan is adopted, additionally, no Specific Plan has been adopted as of May 31, 2018 which means there would be hearings considering the removal of Vallco as a Priority site: 11 "...zoned Planned Development with Regional Shopping and Commercial (P[Regional Shopping and P[CG]). Strategy 1 provides that the City will adopt a Specific Plan for the Vallco site by May 31, 2018 that would permit 389 units by right at a minimum density of 20 units per acre. The zoning for the site would be modified as part of the Specific Plan process to allow residential uses as part of a mixed -use development at a maximum density of 35 units per acre. If the Specific Plan is not adopted, the City will schedule hearings consistent with Government Code Section 65863 to consider removing Vallco Shopping District as a Prioirty Housing Site and replacing it with the sites shown in Scenario B." ( GP: AMB, HE, p. B-140, PDF 140) The applicant states that no Specific Plan is needed, therefore, no housing is allowable. This is consistent with the General Plan. The SB 35 law, Gov. Code § 65913.4(a)(5)(A) states: (a) A development proponent may submit an application for a development that is subject to the streamlined, ministerial approval process provided by subdivision (b) and not subject to a conditional use permit if the development satisfies all of the following objective planning standards: (1) The development is a multifamily housing development that contains two or more residential units. (A) A development shall be deemed consistent with the objective zoning standards related to housing density, as applicable, if the density proposed is compliant with the maximum density allowed within that land use designation, notwithstanding any specified maximum unit allocation that may result in fewer units of housing being permitted. (SB 35 Law, 65913.4(a)(5)(A)) Vallco site has no current housing density, because it is not zoned for housing. SB 35 APPLICATION MUST FOLLOW GENERAL PLAN — NO SPECIFIC PLAN CAN BE REQUIRED Vallco Town Center SB 35 Development Application pp. 4-5 PDF 4-5: The Project site is currently Zoned P(Regional Shopping) and P(CG). Planned Development zoning districts are tailored to a specific program or project, which in this case is the existing mall. Because the zoning contemplates the existing mall, and the General Plan calls for a complete redevelopment of the larger site with a mix of uses, the zoning is inconsistent with the General Plan. In accordance with SB 35, because the General Plan and zoning standards are inconsistent, only the General Plan standards apply. See Section 3: Consistency with Objective City Standards and Appendix B: Objective Standards Consistency Analysis. SB 35 cannot require the adoption of a Specific Plan. A Specific Plan is unquestionably a subjective discretionary legislative action under California law,i and thus adoption of a future undefined Specific Plan cannot meet the definition of an "objective planning standard" under SB 35. The 389 residential unit allocations set forth in General Plan Table LU-1 are inapplicable to the Project because SB 35 states that density is determined by the "maximum density allowed within that General Plan land use designation, notwithstanding any specified maximum unit allocation that may result in fewer units of housing being permitted." 12 Footnote "1" referred to in the above excerpt from Vallco Town Center SB 35 Development Application p. 5 PDF 5: i See Yost v. Thomas, 36 Cal. 3d 561, 570 (1984) (the adoption of a Specific Plan, like a general plan, is a legislative action); see also California Government Code Section 65453. CUPERTINO GENERAL PLAN ZONING The General Plan clearly states that the Vallco site is not zoned for residential, and that residential only becomes allowable with the adoption of a Specific Plan. Without the Specific Plan, which the application insists they cannot be required for SB 35, the site is not allowed housing. CUPERTINO GENERAL PLAN APPROVED DECEMBER 4, 2014, AMENDED OCTOBER 20, 2015: GP-2014: The Cupertino General Plan 2040: Cupertino Community Vision 2040 (Dec. 4, 2014), Appendix B: Housing Element Technical Report, and Amendments to Community Vision 2040 Resolution No. 15-087, October 20, 2015, p. B-149-141, PDF 139-141: Site A2 (Vallco Shopping District) The site is designated Regional Shopping/Office/Residential B-141 Appendix B Housing Element Technical Report HCD REVIEWED DRAFT HOUSING ELEMENT in the General Plan and zoned Planned Development with Regional Shopping and Commercial (P[Regional Shopping and P[CGJ). Strategy 1 provides that the City will adopt a Specific Plan for the Vallco site by May 31, 2018 that would permit 389 units by right at a minimum density of 20 units per acre. The zoning for the site would be modified as part of the Specific Plan process to allow residential uses as part of a mixed -use development at a maximum density of 35 units per acre. If the Specific Plan is not adopted, the City will schedule hearings consistent with Government Code Section 65863 to consider removing Vallco Shopping District as a Prioirty Housing Site and replacing it with the sites shown in Scenario B. Strategy 1, GP-2014: The Cupertino General Plan 2040: Cupertino Community Vision 2040 (Dec. 4, 2014), Chapter 4: Housing Element, p. HE 21-22, PDF 21-22: Strategy 1: Land Use Policy and Zoning Provisions. To accommodate the Regional Housing Needs Allocation (RHNA), the City will continue to: • Provide adequate capacity through the Land Use Element and Zoning Ordinance to accommodate the RHNA of 1,064 units while maintaining a balanced land use plan that offers opportunities for employment growth, commercial/retail activities, services, and amenities. • Monitor development standards to ensure they are adequate and appropriate to facilitate a range of housing in the community • Monitor the sites inventory and make it available on the City website. • Monitor development activity on the Housing Opportunity Sites to ensure that the City maintains sufficient land to accommodate the RHNA during the planning period. In the event a housing site listed in the Housing Element sites inventory is redeveloped with a non-residential use or at a lower density than shown in the Housing Element sites inventory, ensure that the City has adequate capacity to meet the RHNA by making the findings required by Government Code Section 65863 and identifying alternative site(s) within the City if needed. 13 Priority Housing Sites: As part of the Housing Element update, the City has identified five priority sites under Scenario A (see Table HE-5) for residential development over the next eight years. The General Plan and zoning designations allow the densities shown in Table HE- 5 for all sites except the Vallco Shopping District site (Site A2). The redevelopment of Vallco Shopping District will involve significant planning and community input. A specific plan will be required to implement a comprehensive strategy for a retail/office/residential mixed use development. The project applicant would be required to work closely with the community and the City to bring forth a specific plan that meets the community's needs, with the anticipated adoption and rezoning to occur within three years of the adoption of the 2014-2022 Housing Element (by May 31, 2018). The specific plan would permit 389 units by right at a minimum density of 20 units per acre. If the specific plan and rezoning are not adopted within three years of Housing Element adoption (by May 31, 2018), the City will schedule hearings consistent with Government Code Section 65863 to consider removing Vallco as a priority housing site under Scenario A, to be replaced by sites identified in Scenario B (see detailed discussion and sites listing of "Scenario B" in Appendix B - Housing Element Technical Appendix). As part of the adoption of Scenario B, the City intends to add two additional sites to the inventory: Glenbrook Apartments and Homestead Lanes, along with increased number of permitted units on The Hamptons and The Oaks sites. Applicable zoning is in place for Glenbrook Apartments; however the Homestead Lanes site would need to be rezoned at that time to permit residential uses. Any rezoning required will allow residential uses by right at a minimum density of 20 units per acre. Table 3: Cupertino GP Dec. 2014, Table HE-5, Ch. 4: HE, P. HE-18, PDF 18, see Notes One particular site will involve substantial coordination for redevelopment (Vallco Shopping District, Site A2). Due to the magnitude of the project, the City has established a contingency plan to meet the RHNA if a Specific Plan is not approved within three years of Housing Element adoption. This contingency plan (called Scenario B and discussed further in General Plan Appendix B), would involve the City removing Vallco Shopping District, adding more priority Cupertino has hsstorlcally had more jobs sites to the inventory, and also increasing the density/ fh— t ous,-,y allowable units on other priority sites. Site A7 (The Hamptons) High Density North 75 ft; or 60 ft in certain P(Res) Vallco Park $5 locations'; 600 net Site A2 (Vallco RS/O/R Vallco height to be determined Shopping District) P(Regional Shopping) Shopping 35 in Vallco Shopping 389 & P(CG) District District Specific Plan Site A3 (The Oaks C/R Heart of 30 45 ft 200 Shopping Center) P(CG, Res) the City Site A4 (Marina Plaza) C/O/R P(CG, Res) Heart Of the City 35 45 ft 200 Site AS (Barry Swenson) C/O/R P(CG, Res) Heart of the City 25 45 ft 11 Total 1,400 Nates. Z— 9 for Srte A2 (Vane.} �jh be determined by Specific Plan to allow res,denral uses. S,te A t (Hamptons) he,ght limit of 60 feet is 4.nrr'dni'; !,,, ,ae,1 ,w'h1r, 50 feet of p; operry lines abutt-g Wolfe Rd, Prur,endge A- & Apple Campus 2 we. S,te A2 (Vafkol Plan Fo, more detail on height limits, see Land the and Community D—gn El—nt. Figure LU.1 14 IV. SB 35 2/3 RESIDENTIAL SQUARE FOOTAGE REQUIREMENT: NOT COMPLIANT The Project does not comply with the criteria of SB 35, in that the 2/3 residential square footage is not met by objective calculations. Gross and Net square footage calculations are 46% and 54% respectively, and do comply with SB 35, Gov. Code § 65913.4 (a)(1)(C). The Applicant seeks to circumvent the clear intent of SB35 by resorting to inconsistent criteria for the calculation of residential and non-residential floor -space, respectively. SB35 itself clearly requires a like -on -like calculation of floor space to derive the statutory floor space ratio. Instead, Applicants artificially inflate the residential floor space by including most parking and utility space in the residential total, but excluding parking and utility space entirely from the calculation of non-residential totals. This makes a mockery of the SB35 requirements. Whether calculated on a gross basis (i.e., consistently including the parking and utility floor space), or on a net basis (i.e. consistently excluding parking and utility floor space), the Applicants fail to meet the statutory 2/3 floor space ratio. As detailed below, the Applicant's methodology is also also inconsistent with the California Building Code, and with pertinent provisions of the Cupertino Municipal Code. According to the Applicant, because the residential portion of the proposal was claimed to be 4,700,000 sq. ft. (when the actual apartments themselves only total 2.2 Million SF) and the residential portion would comprise 68% of the total square footage of the development, the development qualifies for SB 35, Gov. Code § 65913.4 approval streamlining. The Applicant claims the project contains 4,700,000 sq. ft. of residential, 400,000 sq. ft. of retail, and 1,810,000 sq. ft. of office space. The Applicant includes unequally distributed shared amenities such as the two story walkway over Wolfe Rd. only for the residential total (despite this structure connecting a residential building to an office building), large unexplained windowless areas on the top floor of each interior area of the residential units, and all of the above ground interior parking garages in their residential square footage totals as amenities. Office and Retail parking, which is all subterranean, totals 3.4 Million SF and is not included in the totals for non-residential. The totals for non-residential also exclude underground utility and infrastructure spaces. The Applicant's claim is incorrect, because the residential calculation is based upon a inconsistent and statutorily improper application of the Floor Area Ratio calculation method and definition of "floor area" found in CMC § 19.08.030 and contain an error when used in the context of SB 35: office is no longer a conditional use. The following screenshot with added notations is from the Vallco SB 35 Site Plan: 15 Figure 1: Sereenshot of Valleo SB 35 Site Plan Parking and Square Footage Totals, annotated version OEVEIM MT MAUMY PK A1fnOM0A I RF*CA ►r-At 401CAi0 Rf•A% rUK1i. W Oopci <ACAEV TOT4 $LGO AFf A 4 +OC 0{4 X* r► Ml�s s`#rT► _ �� TMM[ 1�0 Q/i1N111O M.!/rMAi M01046'�ta9►T Alfl�' 0?K;�►fit •t4d�yI Tt1y fvr►uti�►i41C►+.r�i *, , A .. �fl�!tOf' N1(}1:1►1''� t Ai�'S bN � 1�1 t� 4 *'�", � !k ±�#�' ��"� t;� � T� �+fOs 3� LAIMri! !oft 1UlM K- WD& OM1flq I '► No retail parking a► included •e No office parking included The reference to "Residential, retail, parking," in Figure 3, it implies that the gross square feet includes retail parking, but the gross square footage, SF, does not include any retail parking. Retail parking is all subterranean. The Underground Structures on the east and west properties do not contain any residential and no office and retail parking is included at ground level or above (in internal parking garages). The Application does not comply with SB 35, because its "designated for residential use" calculation uses this definition of "floor area" found in CMC § 19.08.030 and ignores the implications of SB 35: "Floor area" means the total area of all floors of a building measured to the outside surfaces of exterior walls, and including the following: 1. Halls; 2. Base of stairwells; 3. Base of elevator shafts; 4. Services and mechanical equipment rooms; 5. Interior building area above fifteen feet in height between any floor level and the ceiling above; 6. Basements with lightwells that do not conform to Section 19.28.070(I); 7. Residential garages; 8. Roofed arcades, plazas, walkways, porches, breezeways, porticos, courts, and similar features substantially enclosed by exterior walls; 9. Sheds and accessory structures. "Floor area" shall not include the following: 1. Basements with lightwells that conform to Section 19.28.070(I); 2. Lightwells; 16 3. Attic areas; 4. Parking facilities, other than residential garages, accessory to a permitted conditional use and located on the same site; 5. Roofed arcades, plazas, walkways, porches, breezeways, porticos, courts and similar features not substantially enclosed by exterior walls. The subterranean parking facilities are not conditional uses under SB 35. The retail portion is already zoned properly and would not be conditional, and the office portion is allowable under SB 35, if the zoning is allowed to be modified through SB 35 streamlining. Therefore, the subterranean garages must be factored in. The definition of "floor area" includes residential garages and excludes nonresidential garages if they are "accessory to a permitted conditional use and located on the same site ". The Applicant misused this definition of "floor area" as justification for including all the project's residential garages as a "residential use", and as justification for excluding all other parking garages from its square footage total. SB 35 allows the office and retail uses (if the zoning is indeed changed through SB 35 streamlining), making the office no longer a conditional use. The use of Cupertino Municipal Code 19.08.030's "floor area" definition was invoked independent of its context. The "Golden Rule" says that words should be followed unless it would lead to an inconsistency. The "floor area" definition should therefore not be used, because of the inconsistency it introduces, and in the context of an SB 35 plan, the office and retail parking facilities would actually be added in. A second reference for definitions of building areas is from CMC § 16.04.010 Code Adoption of the 2016 California Building Code, Volumes 1 and 2 inclusive, and Appendices. From Title 24 2016 California Building Code, Part 2, Volume 1- Includes January 2017: 201.4 Terms not defined Where terms are not defined through the methods authorized by this section, such terms shall have ordinarily accepted meanings such as the context implies. AREA, BUILDING. The area included within surrounding exterior walls (or exterior walls and fire walls) exclusive of vent shafts and courts. Areas of the building not provided with surrounding walls shall be included in the building area if such areas are included within the horizontal projection of the roof or floor above. FLOOR AREA, GROSS. The floor area within the inside perimeter of the exterior walls of the building under consideration, exclusive of vent shafts and courts, without deduction for corridors, stairways, ramps, closets, the thickness of interior walls, columns or other features. The floor area of a building, or portion thereof, not provided with surrounding exterior walls shall be the usable area under the horizontal projection of the roof or floor above. The gross floor area shall not include shafts with no openings or interior courts. FLOOR AREA, NET. The actual occupied area not including unoccupied accessory areas such as corridors, stairways, ramps, toilet rooms, mechanical rooms and closets. Part 2 - California Building Code ■ Part 2, Volume 1 (HTML (http://codes.iccsafe.org/app/book/toc/2016/Califomia/Building% 20Volume%201/index.html)) Using the State of California Building Code definitions makes it clear that the parking garages for retail and office would be included along with the utility areas for retail and office. 17 The Applicant also chose to ignore a competing definition, "gross building area" in CMC § 03.32.020 (D) that would have excluded all the parking garages in the project. D. "Gross building area," as used in this chapter, means the area of the several floors of a building included within the surrounding exterior walls of a building or portion thereof exclusive of noncommercial parking garages. Parking garages that obtain their primary source of income from the parking of vehicles for a fee shall be considered commercial parking garages. Other types of garages shall be considered noncommercial. The floor area of a building, or portion thereof, not provided with surrounding exterior walls shall be the usable area under the horizontal projection of the roof or floor above. CMC § 03.32.020 (D) "gross building area" definition would have excluded all parking garages in the proposed project, and therefore would have avoided the inconsistency found in Municipal Code 19.08.030's "floor area" definition. The Applicant should have used this definition. It is only with the inconsistent treatment of parking garages that the project meets the two- thirds residential use threshold required by SB 35. When all parking garages are consistently included or consistently excluded, the project does not meet the two-thirds threshold required by SB 35. Table 4: Calculation of Total Residential Square Feet, SF including parking and amenities TOTAL RESIDENTIAL SQUARE FEET BLOCK BLOCK 1 BLOCK 2 BLOCK 3 BLOCK 4 BLOCK 5 BLOCK 9 BLOCK 10 TOTAL RESIDENTIAL, RETAIL, RES. PKG LESS RETAIL SF TOTAL RESIDENTIAL + RESIDENTIAL PARKING Gross SF Land Use 352,000 Residential, Retail, Residential Parking 750,000 Residential, Retail, Res. Parking 1,380,000 Residential, Retail, Res. Parking 700,000 Residential, Retail, Res. Parking 538,000 Residential, Retail, Res. Parking 710,000 Residential, Res. Parking 654,000 Residential, Res. Parking 5,094,000 4,684,000 lL Table 5: Residential Square Footage Totals Residential Square Footage Totals Unit # Avg Size SF Total SF 1,057 423 447,111 488 654 319,152 71 1,117 79,307 71 1,450 102,950 50 2,015 100,750 45 1,539 69,255 26 1,923 49,998 9 2,310 20,790 67 1,085 72,695 58 1,395 80,910 105 1,705 179,025 53 2,170 115,010 59 1,508 88,972 44 1,842 81,048 67 2,177 145,859 32 1,412 45,184 16 1,712 27,392 74 2,255 166,870 10 4,646 46,460 2,402 2,238,738 Avg. Unit Size 932.03 SF Residential Total SF (including parking and amenities) 4.68M SF Usable Square Feet "In a nutshell, usable square footage is the actual space you occupy from wall to wall. Usable square footage does not include common areas of a building such as lobbies, restrooms, stairwells, storage rooms, and shared hallways. For tenants leasing an entire floor or several floors, the usable square footage would include the hallways and restrooms exclusively serving their floor(s)" Source: Property Metrics. Including the residential amenity space, when following the Cupertino Municipal Code definitions, results in an unfair and inconsistent allocation of parking area and massive amenities shown under the roof structure and a two -floor huge residential walkway over Wolfe Rd. and encourages the developer to `fabricate' amenities to further increase the size. This could be done for a variety of reasons which are not related to obtaining a reasonable rate of return for the project, but to protect certain unwelcome portions of a project (office space) and maintain the 2/3 residential ratio. The office space totals did not have parking spaces added, for example. 19 The following table summarizes the percentage of residential when considering the Gross SF, Net SF (assuming a 15% load factor for common areas in the retail and office component, the Net SF is given for residential), and comparing these figures to the VTC SB 35 calculations. The Net and Gross SF calculations both yield a non compliant result of 54% and 46% respectively. Table 6: Comparison of 2/3 Calculation Methods - VTC SB 35 Not Compliant Comparison of 2/3 Calculation Methods: Net SF vs. VTC SB 35 Methodology vs. Gross SF Non -Residential Uses Total SF Non -Residential % Residential SB 35 Retail SF Office SF Residential Uses plus Residential SF By Each Compliant? (> Method 2/3, 66 /o?) SF 400,000 1,810,000 - 2,238,738 1,478,000 SF Parking 1,906,000 SF Parking Plus Amities 2,445,262 Subtotal Net SF (Subtract 15% Load for Common 340,000 1,538,500 2,238,738 Areas) Calculation Method Total Net SF (Subtract 15% Load for Common 1,878,500 2,238,738 4,117,238 54% No Areas - Office and Retail) Total SF By VTC SB 35 Methodology (CMC § 19.08.030) Eg. Not 2,210,000 4,684,000 6,894,000 68% Yes Counting Retail and Office Parking Gross Total SF (Including 5,594,000 4,684,000 10,278,000 46% No Parking and Amenities) 20 Figure 2: Cross Sections Illustrating Excluded Square Footage in SB 35 Application Example Cross Sections from SB 35 Vallco Town Center Architectural Plans Labeling the areas counted and omitted in the SB 35 VTC application • The "NOT INCLUDED" Office and Retail areas total OVER 3.4 Million SQUARE FEET • TOTAL PROJECT SIZE: 10.3-f- MILLION` SQU ARE FEET • Office and Retail Mechanical, Electrical, and Plumbing spaces, plus Basement UtilitievInfrastructure areas are not tabulated in the plans an3, here to determine how much of that space was omitted. Note: 7 Luxury Residential Towers, 22 Stories Tail, 228' each uvoim :. IU\50.1: 0I Large basement parking and utilities spaces ARE NOT INCLUDED for office and retail C7OME OFFO ptnY i V14 lK'1 WXE At SO Unk MLNTY! • 1 , a s!v- Areas labeled ;;Residential" are the ACTUAL apartments �•Tal � _ ': Rt1H1fMW M.IENIY prjlp[YHMk(SOfHIUI MENI'/ iE51[IEH14L_N(SU(NIUt 1Y4NiyfDAR/NG H51 J�CNTY Rt%"hTt4AIFhITY All Residential parking garages and amenity spaces (below the roof space, two story Wolfe Road pedestrian structure which is approximately 100'x220) ARE INCLUDED in residential totals arrct _ pESpfMilFl - RELOE.NIW MLN'Y 31AMOG (QSI" NrSC7ENi1K� RESIOENiUIMiNiy; PMt[DK CiSbfylM'. �Et 'ri «. RESIDENIYl Ii►EN1Y;iMa(hL R[S , .. .. =i "... � in ��`x-10�r� . RER EL i?94' a Utilitv areas for Residential were included, but NOT included for Office and Retail: MEP (Mechanical, Electrical, and Plumbing) and all Utilities'Infmstrueture ARE NOT LNCLL'DED for Office and Retail 1 IMA 21 Figure 3: Plan View of Parking Illustrating Garages Excluded in Square Footage in SB 35 Application .N to N t i-j a-J i = +-J t6 O U C L •®e®000 ■M® ■® L4I�Iil�ilil a f6 O i I j U paen01nog New— ° 4-J o a f O c t9 c �t:i 4-+ ! ► - c� U— C- i Q i a low a N Y m lle pd 4- oar �r»r i.um . O tU V) cv - o o O v } NC I �o U f 1 L J Y i ^V)' t ll Z O V O O LL �pM 0Ovy 08Z N 1 22 V. GP OBJECTIVE STANDARD FOR GROUND FLOOR RETAIL: NOT COMPLIANT The Project does not comply with the criteria of SB 35 in that the General Plan requirement for ground floor retail and active uses with residential allowed on upper floors is not met, and thus it does not comply with Gov. Code § 65913.4(a)(5). Chapter 3 of the 2014 GP ("archived" at http://www.cupertino.org/home/showdocument?id=9150) describes uses for the "Vallco Shopping District Special Area" as follows: Strategy LU-19.1.4: Land use. The following uses are allowed on the site (see Figure LU-1 for residential densities and criteria): 1. Retail: High -performing retail, restaurant and entertainment uses. Maintain ... 2. Hotel: Encourage a business class hotel ... 3. Residential: Allow residential on upper floors with retail and active uses on the ground floor. Encourage a mix of units for young professionals, couples and/or active seniors who like to live in an active "town center" environment. 4. Office: Encourage high -quality office space ... Chapter 2 of the 2014 GP (p. 9) similarly provides: The City envisions this area as a new mixed -use "town center" and gateway for Cupertino. VTC SB 35 Architectural Site Plans, Building Plan Street Level P-0800.01 have shaded retail in pink, residential in yellow, and office in blue. The retail includes active uses and is shaded pink in the plans. The retail is nearly all clustered on the west property and on the south end adjacent to Stevens Creek Blvd. (lower right on the plan). The residential areas are on both the east and west property and there are two buildings on the west property with no ground floor retail (blocks 09 and 10). Blocks 03, 05, 04N and 04S have only some ground floor retail. 23 Figure 4: VTC SB 35 Architectural Site Plans, Building Plan Street Level P-0800.01 9 I t OOOOpOpOpOpGpOpOpO©OOOpOpOpO 44 L L J ,J VI. COMPLIANCE TEST EXCLUDING CONCESSIONS: NOT COMPLIANT VALLCO TOWN CENTER The Project does not comply with the criteria of SB 35, in that when the concession provided by the Density Bonus Law are excluded, the project does not comply with objective standards and thus does not comply with Gov. Code § 65913.4(a)(5): (5) The development, excluding any additional density or any other concessions, incentives, or waivers of development standards granted pursuant to the Density Bonus Law in Section 65915, is consistent with objective zoning standards and objective design review standards in effect at the time that the development is submitted to the local government pursuant to this section. For purposes of this paragraph, "objective zoning standards" and "objective design review standards" mean standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal. These standards may be embodied in alternative objective land use specifications adopted by a city or county, and may include, but are not limited to, housing overlay zones, specific plans, inclusionary zoning ordinances, and density bonus ordinances, subject to the following: 24 (A) A development shall be deemed consistent with the objective zoning standards related to housing density, as applicable, if the density proposed is compliant with the maximum density allowed within that land use designation, notwithstanding any specified maximum unit allocation that may result in fewer units of housing being permitted. (B) In the event that objective zoning, general plan, or design review standards are mutually inconsistent, a development shall be deemed consistent with the objective zoning standards pursuant to this subdivision if the development is consistent with the standards set forth in the general plan. SB 35 Law. ) The development, excluding additional density, concessions, and incentives is not consistent with objective zoning standards: 1. Plan is inconsistent with objective zoning standards: site is not zoned residential. Additionally, the General Plan does have a conditional use permit process which would allow the movement of residential units between priority housing sites, however, there is not enough housing in the city-wide pool for housing over 800 residential units. The General Plan EIR studied 800 residential units at Vallco and approximately 400 remain in the city-wide pool. 2. Plan is not consistent with 1:1 setback. 3. Plan exceeds height limits in place without the Specific Plan which are 85' and 30' 4. BMR units are not dispersed throughout the project as required, before (and after) adding the Density bonus units. 5. Easements may not be ministerially vacated for project, this requires a plan redesign. 6. BMR units are not same size and number of bedrooms as Market Rate Units, as required. 7. BMR units have different finishes, as required, normally a City Council decision. 8. Retail may not be reduced below General Plan minimum 600,000 SF, as required. 9. Park Land requirement not met. 10. Protected Tree and Street Tree removal requires permits and posting, a subjective concession. 11. (Alternative plan submitted requires a second submission package to fill in missing information.) DENSITY BONUS IS NOT ALLOWABLE — EXCEEDS CITY-WIDE EIR STUDIED TOTALS Vallco Specific Plan DEIR Indicates Inability to Arrive at Number of Residential Units through General Plan. On May 24, 2018, the City of Cupertino circulated the Draft Environmental Impact Report (DEIR) for Vallco Specific Plan. The DEIR, p. 15 PDF p 51, states in 2.4.2: "The General Plan, however, controls residential development through an allocation system. This alternative [General Plan Buildout with Maximum Residential Alternative] assumes that there are no residential allocation controls in place and development can occur at the maximum density allowed by the General Plan". (Vallco DEIR, p. 15, PDF p 51) The number of units in the SB 35 application cannot be met, because there are only about 400 residential units in the residential allocation `pool' remaining, according to City Assistant Manager Aarti Shrivastava, June 4, 2018 during the Vallco Specific Plan City Council Study Session, and that a General Plan Amendment would be needed to have such number of units. 25 SB 35, while negating the allocations the city imposed on Vallco (389 residential units per General Plan Table LU-1), does not consider that the allowable density would result in more housing than was studied and accepted by the City Council across the entire city in the General Plan EIR. For a large city, it would likely be difficult to `swallow up' the entire housing supply offered by one SB 35 project, but Cupertino is a small city with only 1,882 residential units available city-wide, residential units cannot materialize with no environmental review, along with the review of all sites city-wide which may be eligible for SB 35. The result in SB 35 removing local control results in an immeasurable amount of "by right" development, and brings chaos to the General Plan and jobs : housing balance with no horizon. VII. NUMBER OF DWELLING UNITS INCONSISTENT WITH TABLE LU-1 - EXCESSIVE Table LU-1 shows a citywide available number of units of 1,882. The total number of units was studied in the General Plan EIR, going beyond that amount studied would be unacceptable. WHEREAS, on October 20, 2014, the Planning Commission recommended on a 4-0-1 (Takahashi absent) vote that the City Council certify that the Final EIR has been completed in compliance with the California Environmental Quality Act, Public Resources Code Section 21000 et seq., and reflects the independent judgment and analysis.of the City, adopt the Findings and Statement of Overriding Considerations, adopt the Mitigation Measures, and adopt the Mitigation Monitoring and Reporting Program, in substantially similar form to the Resolution presented (Resolution no. 6760); adopt the General Plan Amendment (GPA-2013-01) (Resolution no. 6761); authorize staff to forward the Dratt Housing Element to the State Department of'Housing and Community Development for review (GP A- 2013-02); approve the prioritized list of potential Housing Element sites in the event amendments are needed to the proposed Housing Element sites upon HCD review (Resolution no. 6762); approve the Zoning Map Amendments, Z-2013- 03, in substantially similar form to the Resolution presented (Resolution no. 6763); approve the Municipal Code Amendments to make changes to conform to the General Plan and Housing Element and other clean up text edits (MCA-2014-01)(Resolution no. 6764); approve the Specific Plan Amendments, SPA-2014-01, in substantially similar form to the Resolution presented (Resolution no. 6765); and ...NOW, THEREFORE: After careful consideration of the, maps, facts, exhibits, testimony and other evidence submitted in this matter, the City Council hereby finds: 1. The General Plan is necessary to prescribe reasonable controls and standards for affected land uses to insure compatibility and integrity of those uses with other uses; 2. The General Plan provides reasonable property development rights while protecting environmentally sensitive land uses and species; 3. The General Plan identifies standards and policies for use throughout the City; 4. The General Plan conforms with requirements of State Law and The General Plan is necessary to protect the general public health, safety, or welfare of the community as a whole. (Cupertino City Council Resolution 14-211, December 4, 2014.) 26 Figure 5: VTC SB 35 Table LU-1 Consistency Analysis Table LU-1: Citywide Residential allocation Consistent. The Project will include 2,402 units, Development Allocation not required. The 389 which is allowed based on the standard of 3.5 units Between 2014-2020, 389 unit allocation is per acre plus the density bonus. residential units will be inapplicable because SB allocated to Vallco as a Priority 35 deems a project Housing Element Site (see also "consistent with the HE-1.3,1 and Table HE-5). objective zoning standards related to housing density, as applicable, if the density Figure 6: Land Use Table LU-1, GP-2014 Heart of the 1.351.730 2,145,000 793,270 2,447,500 2,464,613 17,113 404 City Vallco Shopping 1,207,774 1,207,774 2,000,000 2,0D0A00 148 Dhtrfct" lionestead 291,409 291,408 - 69,S50 69,550. 126 526 122 1,336 1,805 +.. 339 191 - 389 38- 126 600 750 S,J N. De Anna S6,708 56,708 - 2.081,021 2A81,021 - 123 123 • 49 146 97 N. Vaiko 133.147 133.147 - 3,069,676 3,069,676 - 315 315 SS4 1,154 600 S. De Anna 352283 352,283 - 13D,708 130,706 - - - • 6 6 - Bubb - - - 444,753 444,753 - - - Monts Vista 94,051 99,698 5,647 443.140 456,735 13,595 - - 828 878 So Vipage Other 144.964 144,964 - 119,896 119,896 - - - 18,039 18,166 1[ Major • - - 109,935 633,053 523,178 - - • • - Employets citywide 3.632.065 4,43D,982 799,917 8,916,179 11,470,0% 2,553,826 1,116 1,429 313 21,412 23,294 1,882 &rildout totah for Office and Res)dentiaf allocation within the Vallco Shopping District are contingent upon a Specific Plan be{ng adopted for the area by May 31, 2018. if a Specific fUn is not adopted by that date. City wi0 consider the removal of the Office and Retidemial allocations for Vallco Shopping Districe. See the 1*rusing Fkment (CMpter 41 for additional information and requuen+enb within the Vallco 5hooping District. 27 VIII. DENSITY BONUS CONCESSIONS: NOT COMPLIANT (EXCEEDS MAXIMUM) The Project does not comply with the criteria of SB 35, in that the number of concessions requested under the Density Bonus Law, which are an allowable three, are exceeded and thus does not comply with Gov. Code § 65915(d)(1) and CMC § 19.56, and Gov. Code § 65913.4(a)(5)(A). The following is from the Vallco Town Center SB 35 Development Application, Appendix A: SB 35 Eligibility Checklist, Item 8, p. 3, PDF 22: The Project as proposed is consistent with all applicable objective standards, excluding the two concessions allowed under the State Density Bonus Law, Gov. Code § 65915(d)(1) and CMC § 19.56. The Project qualifies for 3 concessions based on the inclusion of 15% of the total units for very income households. As described in the Project Description, one concession will be used to allow 400,000 square feet of retail in the Project, as opposed to the 600,000 square feet of retail stated in the General Plan and a second concession will be used to waive the requirements of CMC § 19.56.050(G). Summary of Concession for Density Bonus Units: 1. Plan is inconsistent with objective zoning standards: site is not zoned residential. Additionally, the General Plan does have a conditional use permit process which would allow the movement of residential units between priority housing sites, however, there is not enough housing in the city- wide pool for housing over 800 residential units. The General Plan EIR studied 800 residential units at Vallco and approximately 400 remain in the city-wide pool. 2. Plan is not consistent with 1:1 setback. 3. Plan exceeds height limits in place without the Specific Plan which are 85' and 30' 4. BMR units are not dispersed throughout the project as required, before (and after) adding the Density bonus units. 5. Easements may not be ministerially vacated for project, this requires a plan redesign. 6. BMR units are not same size and number of bedrooms as Market Rate Units, as required. 7. BMR units have different finishes, as required, normally a City Council decision. 8. Retail may not be reduced below General Plan minimum 600,000 SF, as required. Retail reduction letter is insufficient to justify necessity to reduce retail. 9. Park Land requirement not met. 10. Protected Tree removal requires permits and posting. Development Trees were not delineated in plans as "Protected Trees" and possibly hundreds qualify. Plans show removal of city owned street trees. 11. Review of Financial Statements for Concessions: no financial statements provided 12. (Alternative plan submitted requires a second submission package to fill in missing information.) 13. Heights are limited by zoning and previous General Plan 14. Density Bonus Units Not Allowed — Health Impacts shown in DEIR THREE CONCESSIONS REQUESTED BY APPLICANT State Density Bonus Law, Gov. Code § 65915(d)(1) and CMC § 19.56 allow the maximum three concessions if certain criteria are met with regards to the percent of low and very low income units. VTC SB 35 qualifies for the maximum 3 concession and a 35% density bonus for housing. However, the actual plan requires an excessive amount of concessions and is not compliant. 28 The SB 35 application states that the project qualifies for three concessions derived from the density bonus as follows: 1. Waive the requirement in Cupertino Municipal Code Section 19.56.050.G to have the identical design as market rate units. 3 This reduces the costs of constructing the affordable units to design them to a specification consistent with other affordable housing projects, including different materials and finish quality. Purpose-built affordable housing projects typically include more cost-effective finishes including appliances, cabinetry, lighting, counter tops, fixtures, windows and other items. To the extent such finishes are different from those used in market rate units, the cost will be reduced for the affordable units. 3 The Project has been designed to comply with the "dispersal" requirement, as affordable units are located throughout the Project. (The one area that is an exception is that the 623 density bonus units are geographically separate, as permitted by state law and Cupertino Municipal Code section 19.56.030.F.7.) While the Project complies with this code provision, it is not obligated to under SB 35 because the requirement to be "dispersed throughout the project" is not objective because it involves personal judgment and there are no "uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal." For these reasons, a concession is not needed for this requirement. Nonetheless, the following provides a brief explanation for why relief from a requirement to uniformly disperse would achieve cost reductions. Separating the affordable units into distinct areas that can be included as separate condominiums allows them to be financed separately and with lower cost financing. Because the cost of capital is a significant component of the overall project cost, obtaining more favorable financing represents a clear and identifiable cost savings to the Project. 2. The Project proposes 400,000 square feet of retail, a reduction from the minimum amount of retail specified in the General Plan of 600,000 square feet. According to a recent Retail Opportunity Analysis of the trade area in which the Project is located summarized in Appendix K — Retail Reduction Justification Letter, in order to achieve stabilization of 600,000 square feet of retail, the Project would have to capture 100% of the existing retail demand in the trade area, an unrealistic scenario given the tenant types and pricing realities of the high quality retail product to be delivered at the Project. As such, the analysis recommended a maximum of 400,000 square feet of retail at the Project. Building in excess of 400,000 square feet would result in additional and unrecoverable costs to VPO in the form of extraordinary transaction costs (i.e. excessive monetary contributions for tenant improvements and/or lease procurement brokerage fees), extraordinary construction costs (i.e. turn -key buildouts or other non-standard improvements for tenants, or construction of un-leasable space), and/or extraordinary operating losses (i.e. operating costs in excess of rental income as a result of heavy discounts or vacant space) and cannot be offset by other Project revenues given the composition of its uses, including but not limited to the Project's affordable housing component. Limiting the retail component of the Project to 400,000 square feet would facilitate cost reductions and, in concert with other strategies, should allow VPO to offer the affordable rents contemplated by the Project's housing component. 3. If the City properly identifies an inconsistency with an objective zoning standard and waiving that standard would achieve cost reductions, this final concession is reserved for such purposes. Vallco SB 35, pp. 15-16, PDF 15-16) DISCUSSION OF THREE CONCESSIONS Concession 1 and footnote 3 From VTC SB 35 application requests to "Waive the Cupertino Municipal Code Requirement to have identical designs as market rate units. 19.56.050.G." (Vallco SB 35, p.15 PDF 15) This requirement for "identical designs as market rate units" is regarding finishes, however the BMR housing units are of different sizes than the market rate units. That does not appear to be following the Cupertino Municipal Code for affordable units which they reference in the concession. In the footnote they claim that another part of the Cupertino Municipal Code, 19.56.030.F.7 allows them to ignore the dispersal requirement, however that portion of the code is for calculating density bonus and is not an allowance to not disperse the units. CMC § 19.56.030. F.7: al 7. For purposes of calculating a density bonus, the residential units do not have to be based upon individual subdivision maps or parcels. The bonus units shall be permitted in geographic areas of the housing development other than the areas where the affordable units are located. (Ord. 16-2149, § 8, 2016) (Muni Code, 19.56.030.F.7) CMC § 19.56.040 2. For purposes of this chapter, permissible incentives or concessions include, but are not limited to: a. A reduction of development standards or a modification of zoning code requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission as provided in Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code, including but not limited to, a reduction in setback requirements, square footage or parking requirements, such that the reduction or modification results in identifiable, financially sufficient, and actual cost reductions. b. Approval of mixed -use zoning in conjunction with the housing development if commercial, office, industrial or other land uses will reduce the cost of the housing development, and if the commercial, office, industrial or other land uses are compatible with the housing development and the existing or planned development in the area where the proposed housing development will be located; c. Other regulatory incentives or concessions proposed by the developer or the City, which result in identifiable, financially sufficient, and actual cost reductions. 3. Nothing in this section requires the provision of direct financial incentives for the housing development, including but not limited to the provision of financial subsidies, publicly owned land by the City or the waiver of fees or dedication requirements. The City, at its sole discretion, may choose to provide such direct financial incentives; 4. A housing development which requests incentives or concessions must demonstrate, in compliance with Section 19.56.060B, that the requested incentives or concessions are required to provide for affordable rents or affordable housing costs, as applicable. CMC § 19.56.050: G. Affordable units shall be provided as follows: 1. Affordable units shall be dispersed throughout the project; 2. Affordable units shall be identical with the design of any market rate rental units in the project with the exception that a reduction of interior amenities for affordable units will be permitted upon prior approval by the City Council as necessary to retain project affordability. (Muni Code, 19.56.050) BMR UNITS NOT DISPERSED: NOT COMPLIANT WITH GOV. CODE § 65913.4(A) The Project does not comply with the criteria of SB 35 in that the BMR units are not dispersed throughout the project, the units are not in the towers, floors 1 and 2 and in floors 10 through 23, and the units are clustered in the center parts of each floor. Part of the reason this occurred is because the Applicant chose to cluster the 623 density bonus units, while there are 1,201 BMR units, then further limited locations where BMRs would be placed relegating them to the 3'- 9' floors. By segregating the BMR units in objectively identifiable areas geographically, in the project, the project does not comply with Ca. Gov. § 65580, CMC § 19.56.060(G) and CMC § 19.172, and Gov. Code § 65913.4(a) The city's Below Market Rate (BMR) Housing Mitigation Program Procedural Manual, 2015, authorized by CMC § 19.172 Below Market Rate Housing Program, reiterates the dispersal requirement of CMC § 19.172: 2.3.4 BMR Unit Design Requirements 30 A. BMR units shall be comparable to market rate units in terms of unit type, number of bedrooms per unit, quality of exterior appearance and overall quality of construction. B. BMR unit size should be generally representative of the unit sizes within the market -rate portion of residential project. C. Interior features and finishes in affordable units shall be durable, of good quality and consistent with contemporary standards for new housing. D. The BMR units shall be dispersed throughout the residential project. (BMR Manual, p5, PDF 9) Figure 7: Location of Below Market Rate Units in SB 35 application RESIDENTIAL ROOFTOP AMENITY, TYP. \ to 20.0' ti \ REST a RESI. RESI b RESI. Total of 7 RESI b RESI Z. Luxury RESI RESI. Towers RESI. b RESI Having No REST c REST. RESI. a RESI. BMR Units RESI. a RESI. RESL b RESI + 115.0' RESI. b e RESI. + 95.2' + 95.1 RESI. o o RESI. ti r r + 80.10' RESI. o MEP RESIDENTIAL + 79.2` ESIDENTIA ESIDENTIA 73.2 RESIDENTIAL AMENITY AMENITY RESIDENTIAL J. r+68,10' RESIDENTIAL RESI PARK. RESI. PARK RESIDENTIAL RESIDENTIAL RESI. PARK. RESI. PARK. RESIDENTIAL RESIDENTIAL RESI. PARK. RESI. PARK. RESIDENTIAL RESIDENTIAL RESI PARK. a RESI. PARK. RESIDENTIAL 'T-11' RESIDENTIAL RESI. PARK. RESI. PARK. RESIDENTIAL RESI. RESL PARK. RESI. PARK RESI. EL 179'-W _ RESI. RESI. PARK. a EL 180'-8' RESI, PARKING I UTILITIE IINFRASTRUG (SB 35 Plan, P-0831, PDF 3) Block 10 example from the plan set, following, shows that building has no BMR units on the Ground and 2' floor, BMRs are side by side and in the center portions of floors 3-9 and there are no BMR units in floors 10-23. This is typical for every block which has BMR units in the plan. That is an objective, identifiable failure to comply with the BMR standards. The following Plan Views of Block 10, of Architectural Plan Set 1 are representative of every residential block which has BMRs in it: 31 Figure 8: Gound Floor, No BMRs ' s r• .♦ r � r• •i /1111 r r aM • � r r r r.1 r r r r � r s s sy r• AIM. .YC r� i r { f iE` 1� ii 4� 1 r----------- Figure 9: 2nd Floor, No BMRs • 9 go 1 t 1 1 1 I I 1 I 1 i.Y r, ., • +s a. s r r. + .. .. .. .. .. .s .. ,. •. .. r AJ I I { I � I ♦ 999 ' Figure 10: 3rd Floor, BMRs in Middle Portion of Floor _,!` ♦ s � 4 • } i • rn Figure 11: 4th Floor, BMRs in Middle Portion of Floor -r— .j.. . j t ! j w car K' so i ILL— I r' .. e i• , �+.�� J3 Figure 12: 5th Floor, BMRs in Middle Portion of Floor f 1 • r {, t "4C t t V�F • „� Millis f Figure 13: 6th Floor, BMRs in Middle Portion of Floor — —7—k • s • a qt ... ♦ • + —4r- f t f LI p7 4f4v4 — — �-.....-,.-,...o-�-.►�,.-�.-..ram-,r-.,...�. 1 i 34 Figure 14: 7th Floor, BMRs in Middle Portion of Floor u Figure 15: 8th Floor, BMRs in Middle Portion of Floor r- Q r- 35 Figure 16: 9th Floor, BMRs in Middle Portion of Floor t y Ip It 1 it �-.. �� • f • r • 1 f M r, i Figure 17: 10th Floor, No BMRs i i ra i � ''ti}• 1 ' 1 W 1 cn ld Worn Figure 18: 1Ith Floor, No BMRs Ftl�— :r, I �" � U 'RESIDENTIAL AMENITY EEL Y— 1 a c � Figure 19: 12"' floor — "Terrace Level 01" no BMRs I 17 Figure 20: 13th floor— "Terrace Level 02" no BMRs • :r.+ :°l y ! % .� .'ice n► Figure 21: 14th floor — "Terrace Level 03" no BMRs 11 Figure 22: 15th floor — "Tower Level 1" nn RMRQ .....«...r.sup.a...rww.r.w.wrrw`"AM -.r.. i..... ..._...1 .. _..... .rr.r+rrr.air..w.�+o.•r..r.�.r.+i�.r,ww�r.: , 1 38 Figure 23: 16th floor - "Tower Level 2" no BMRs 4 Figure 24: 17th floor — "Tower Level 3" no BMRs - - - - - - - - - - - p. Figure 25: 18th floor — "Tower Level 4" no BMRs 39 Figure 26: 19th floor —"Tower Level 5" no BMRs - 1 1 Figure 27: 20th floor — "Tower Level 6" no BMRs k S iaYeuim.iP S k Figure 28: 21st floor — "Tower Level 7" no BMRs Figure 29: 22nd floor — "Tower Level 8" no BMRs «.rrrrrrr..ra... Figure 30: 23th floor — "Tower Level 9" no BMRs Figure 31: 24th floor — Green roof �.- - .. -... �-rYwrai�rililY�r11��41�liYiYri�+iiYi-,�.._.•"••... r-- i 41 Typical level with BMRs shows them side by side and in the center portion of buildings. Figure 32: BMRs Typical Location 1=3-1 jai fit. ii t 1091 �yy ny� fi�T �mu�ueGlp�G;wnii �� ' 'Ir■��wrli�irrrt 4 loom HrMAI �� tt BMR UNITS AND MARKET RATE UNITS ARE NOT IDENTICAL SIZE OR NUMBER OF ........... BEDROOMS: NOT COMPLIANT The proposed affordable BMR units have a studio and a one bedroom floor plan. There is a traditional (TRD) studio market rate floor plan, a TRD one bedroom market rate floor plan, and a loft one bedroom market rate floor plan which are each larger than their equivalent BMR floor plan. There are no BMR equivalents for the 2,3,4, and 5 bedroom plans which is in violation of CMC 19.56.050(G)(2) and the city's Below Market Rate (BMR) Housing Mitigation Program Procedural Manual, 2015 quoted in the above section. 42 Table 7: Comparison of BMR and Market Rate Unit Sizes Residential Unit Size Comparison of BMR (Affordable) and Market Rate in Square Feet (SF) Residential Unit Type Size of Unit, SF Studio BMR (affordable unit) 388 SF Traditional (TRD) Studio (Market Rate) 620 SF One Bedroom BMR (affordable unit) 528 SF One Bedroom TRD (Market Rate) 863 SF One Bedroom Loft (Market Rate) 1085 SF Two Bedroom Market Rate: Traditional 1,117 Townhouse 1,539 Loft 1,395 Terrace 1,508 Tower 1,412 Three Bedroom Market Rate: Traditional 1,450 Townhouse 1,923 Loft 1,705 Terrace 1,842 Tower 1,712 Four Bedroom Market Rate: Townhouse 2,310 Loft 2,170 Terrace 2,177 Tower 2,255 Five Bedroom Market Rate: Co -Housing 2,015 Towers Full Floor 4,646 FLOOR PLANS OF BMR AND MARKET RATE UNITS: NOT EQUIVALENT The Project is not compliant with the requirements for BMR units to be equivalent to market rate units. The following floor plans are for BMR and Market Rate and their sizes are tabulated in Table 7 above: 43 Figure 33: BMR Studio, SB 35 Architectural Plans, 388 SF I' i#ATHROOM FOYER COATS 471 KITCHEN I u f I "! t iVINGI LEEPIWG � 13 r--7 I' f I FRENCE AND - --- _ UNIT L<X,'ATIO?45 E►.tAROeD () tT rsa?r♦ DI AN APfCRC�6 #400 W3 STUI)f(* OAA 4Fg 9N= (SB 35 Plan, P-0871, PDF 13) 44 Figure 34: BMR 1 Bedroom: 528 SF (vs traditional size market rate 1BR: 863 SF, 1 BR loft size 1085 SF) COAT BATHROOMOYER. �- — L�' "r DiW DINING tivn t t _G Y p (r` r t KITCHEN 1 j 'BEDROOM i LiVINO LL UNIT LOCATK>NS EN.AAWAV LftT f LOOP PLAN AFt�Hi[utlli E h{�JwlN�a CANE BEQR6CM {SiA %f) �y �y.•f a. L (SB 35 Plan, P-0871, PDF 13) 45 FLOOR PLANS OF MARKET RATE UNITS — DO NOT MATCH BELOW MARKET RATE UNITS IN SIZE OR NUMBER OF BEDROOMS Figure 35: Traditional (TRD) "Market Rate" Studio: 620 SF L ...ill.„- ✓ n *e M1( i SLEEPW r -t NWK 1.•jlfit i 1 i ED FOR REFERENCE ANI) PFFMIT WT IOGArtOHy EALLItftGfil taut F:OOR PUW - 5tt3Li'tfl Lf11t ld2p Sf) t2Mi ..� ,� (SB 35 Plan, P-0872, PDF 14) .o Figure 36: TRD "Market Rate" One Bedroom Unit: 863 SF t 1 LCOAT, FOYER KITCHEN } BATHR(Wil TFcWID DINING MASTER EEDR(-X.Al a k } I '1NG MCONL (SB 35 Plan, P-0872, PDF 14) LWIT LMATOks £t� WB AD'AfT F0OR PL&N - !BEDROOM UN.7 *3 5P; L �.y 47 Figure 37: Two Story One Bedroom Loft "Market Rate" 1085 SF (SB 35 Plan, P-0875, PDF 17) M Figure 38: 2 BR Market Rate TDR unit 1117 SF �rJ' J BATHROOM I TOYER y tj 1l 1 Af 1 ..IL v COAT WIC CLO, CLOD Pc ' I Wo L _ J DINING j J:^� MASTER "' t BEDROOM I sl. LIVING BALCONY I 1L lu _-_---�_— UNIT LOCATIONS ENLARGED {ftiLT FLUOR PLAN 18EDR0OM L tAT (I IV SF) TDR lxw= ' (SB 35 Plan, P-0872, PDF 14) Figure 39: 5 BR Market Rate Co -Housing, 2,015 SF ANTR 0 ® BATHROOM OATS BATHROOM �, FOYER W C EY BATKtOOM y QL'L CLOSET..' CLOSETv, CLOSET CLOSET CLOSET CLOSET CLOSET I � it 4 f ., '.l :P LIVING 1BEDROOM r = BEDROOM B ) BEOR(701.1 3EOROOM uwtiocArbru (SB 35 Plan, P-0873, PDF 15) 50 Figure 40: Market Rate 4 BR Townhouse: 2,310 SF (SB 35 Plan, P-0874, PDF 16) 51 Figure 41: Market Rate 3 BR Townhouse, 1,923 SF Mtllw,'�OM riL nC 1 W 4a4-rx oC."+aCa'P4 Y..nt:ege Kt.1Y4:%4 (SB 35 Plan, P-0874, PDF 16) 52 Figure 42: Market Rate 2 BR Townhouse, 1,539 SF r, a p_ 69 Epp 1pJY •IY.lVt �d•� i'kvT4.. (SB 35 Plan, P-0874, PDF 16) 53 Figure 43: Market Rate 2 BR Loft 1,395 SF; Market Rate 3 BR Loft 1,705 SF (SB 35 Plan, P-0875, PDF 17) 54 Figure 44: Market Rate 4 BR Loft 2,170 SF Mnw00b Y11�`QI ■ Y.cwed-N 6�nxt+ lttwpy � wroM W-i (SB 35 Plan, P-0876, PDF 18) 55 Figure 45: Market Rate 4 BR Terrace unit 2,177 SF OS KITCHEN 4w FOYER BAATHj{DOM.. tlA I.., BATHROOM.. BATHROOM 1 _ WD.._ WIC CLOSET CLOSET CLOSE] DINING MASTER '- BEDROOM n. U"NG r BEDROOM BEDROOM BEDROOM PRIVATE TERRACE -�- tkni LOG,MM3 (SB 35 Plan, P-0877, PDF 19) 56 Figure 46: Market Rate 3 BR Terrace unit 1,842 SF Er FOYER PaTLHFN BEDROOM xr _ (SB 35 Plan, P-0877, PDF 19) uwr wcl ra7eu 57 Figure 47: Market Rate 2 BR Terrace unit 1,508 SF (SB 35 Plan, P-0877, PDF 19) 58 Figure 48: Market Rate 3 BR Tower unit 1,712 SF, Market Rate 4 BR Tower unit 2,255 SF a� L=kf.—L' (SB 35 Plan, P-0878, PDF 20) 59 Figure 49: Market Rate 2 BR Tower unit 1,424 SF -f� L# L rl 'Q .avvm� r � " Mfip001 t IR 2PaFR4�K3 L H4:41iM 1 iF IL- tiarc. 11M." ever trans PWA=rl VEX ftmlly a arc; (SB 35 Plan, P-0878, PDF 20) 60 Figure 50: Market Rate 6 BR Full Tower unit 4,646 SF (SB 35 Plan, P-0879, PDF 21) 61 Table 8: Vallco Town Center SB 35 Site Plan Residential Units Em= "J2 i.7kt. Atz AFFORDABILITY SUMMARY A 62 A 62 62 Table 9: Vallco Town Center SB 35 Site Plan Residential Program Types RESIDENTIAL PROGRAM TYPES LW"TS SF WTS f SF S 63.0% I'M 4Z3 9ED._r_._...-.v._.._.�._...� 4?1 1,117 1450 TOTAL 4tiQ % t,687 CD41004MI(i (CC" f I. TS { SF LIMTS SF L9i1T % AVE S X (SF) I T 0 VE S+ZE (SFIi nUNfT M€G (5 BED) 100% 2,015 2 8ED 34 T% 59 1,56:? 3 BED 25.9% 4t 1842 48ED 394% 67 2,1Ti _TOTAL 10016 5i3 %TOTI 1Q1T% 1T6 TOWOM (MI t TM TOwees ( UMTS r SF I s1 UNIT % LW* AVE SIZE $SF) _ t T % � i T 1t AVE SIZE t , 2 BED TOYNYf#Ot1SE 563% 45 1,539 2 BED 24 32 _ _ 1412 3 BED TOY�NNOtfSE 325% 26 1923 ` 3 BED 12 1% t6 _.7._.. 1,712 d BED TOWNHOUSE _ 112% 9 _ 2,3W 4 BED 561% 4 2 _.w. FULL FLOOR 16% 10 4,w T70TAL 100 % so TOTAL 100 % 132 <OTE SEE PROJECT M'T*N FOR NFORMATi0%RELATED TOMF E SING THE RE IAL TYPES INDICATED IN THESE TABLES ARE DISTRIBUTED GST THE DWFERENT BU4DAG BLOC KS AS NOTED'N THE TABLES BELOW T14E D1 KIN OF RESIDENTIAL UNITS ±S FOR REFERENCE AND ` C€ TO CKANGE IN SUBSEO2JE iT BUKX NG RERWT APPL TMS Aid: SIZE (S�} 48ED u:Tx 51� _ 2.17t# TOTAL ,�� The "Residential Program Types" table above does not clearly state that the BMR units' quantity are mixed in with the Traditional (TRD) totals in the upper left. That is determined by working backwards looking at the floor plans and checking off the avg. square footage until the studio and 1 bed values for TRD do not match the square footage of the floor plans. The average sizes listed are weighted averages and give the appearance that the BMR units are the same as the TRD studio and one bedroom units and one bedroom loft units at market rate. Concession 2: reduce retail. The inadequate justification for reducing retail is that the Project would have to "...capture 100% of the existing retail demand in the trade area" (VTC SB 35, however this is due to an alleged qualification of future retail which is not a part of the SB 35 application. In other words, the types of retail in the future are unknown. The retail is further encumbered by the affordable housing component from the SB 35 application, which is a scenario not in the General Plan. The SB 35 application, by its size and configuration, may in fact increase retail demand significantly to the area, particularly the entertainment, supermarket, basic necessities, restaurant, and clothing needs (particularly athletic and office wear). San Jose repeatedly generates an excellent Market Analysis and Cupertino needs to provide the same data:(hgps•//www.sapjoseca.Qov/DocumentCenterNiew/53472) This document includes information on 63 numbers of workers in various companies' which provided real data of existing businesses and their names. Retail market analysis is included which covers the West San Jose Area. San Jose has no qualms about capturing our retail leakage, and still builds more. This one paragraph from the "Retail Reduction Justification Letter" is the sum total reason for reducing retail in the project, and in turn, increase the office component by 200,000 SF, which at a low 1 employee per 300 SF amount, would result in an additional 667 employees at the site. From a jobs:housing standpoint, this choice worsens the housing shortage. Retail generates fewer employees than office, and the retail employees would be more likely to qualify for the BMR units than the office employees. Figure 51: VTC SB 35 Project Description Part 4, p. 1, PDF 9, Retail Reduction Justification Letter Excerpt In March 2018 TCG performed a Retail Opportunity Analysis in connection with the redevelopment of the Vallco Shopping Mall property (the "Vallco Town Center Project" or "Project") on behalf of Vallco Property Owner, LLC ("VPO"). This analysis determined, among other things, that in order to achieve stabilization of 600,000 square feet of retail (as required by the City of Cupertino's General Plan for the Vallco site), the Vallco Town Center Project would have to capture 100% of the existing retail demand in the trade area, an unrealistic scenario given the tenant types and pricing realities of the high quality retail product to be delivered at the Project. As such, TCG recommends building a maximum of 400,000 square feet of retail at the Project. Building in excess of 400,000 square feet would result in additional and unrecoverable costs to VPO in the form of extraordinary transaction costs (i.e. excessive monetary contributions for tenant improvements and/or lease procurement brokerage fees), extraordinary construction costs (i.e. turn -key buildouts or other non-standard improvements for tenants, or construction of un-leasable space), and/ or extraordinary operating loss (i.e. operating costs in excess of rental income as a result of heavy discounts or vacant space) and cannot be offset by other Project revenues given the composition of its uses, including but not limited to the Project's affordable housing component. Limiting the retail component of the Project to 400,000 square feet would facilitate cost reductions and, in concert with other strategies, should allow VPO to offer the affordable rents contemplated by the Project's housing component. Retail reduction justification letter, VTC SB 35 Project Description Part 4, Appendix K, Retail Reduction Justification Letter, p. 1, PDF 9: M Figure 52: Retail Reduction Justification Letter AL 4W THE CONCORD GROUP VALLCO PROPERTY OWNER, LLC Attu: Reed Moulds, Managing Director Sand Hill Property Company 965 Page Mill Road Palo Alto, CA 94304 Dear Mr. Moulds, With offices across the nation, The Concord Group ("TCG I offers a comprehensive range of real estate advisory services for all asset classes, product types, and investment scenarios. We excel at a variety of scales and time horizons, from highest and best use analysis of a single site to portfolio valuations spanning multiple markets, from assessment of immediate investment opportunities to long-range programming for master -planned communities. Through incisive research, analytical rigor, and creative problem -solving, we empower our clients to capitalize upon market opportunities and manage risks associated with each phase of the cycle. in March 2018 TCG performed a Retail Opportunity Analysis in connection with the redevelopment of the Valko Shopping Mail property (the "Vallco Town Center Project" or `Project') on behalf of Vallco Property Owner, LLC CWPO'). This analysis determined, among other things, that m order to achieve stabilization of 6W,000 square feet of retail (as required by the City of Cupertino's General Plan for the Vallco site), the Vallco Town Center Project would have to capture 100% of the existing retail demand in the trade area, an unrealistic scenario given the tenant types and pricing realities of the high quality retail product to be delivered at the Project_ As such, TCG recommends building a maximum of 400,000 square feet of retail at the Project. Building in excess of 400,000 square feet would result in additional and unrecoverable costs to VPO in the form of extraordinary transaction costs (i_e. excessive monetary contributions for tenant improvements and/or lease procurement brokerage fees), extraordinary construction costs (i.e. turn -key buildouts or other non-standard improvements for tenants, or construction of un-leasable space), and/ or extraordinary operating loss (i_e_ operating costs in excess of rental income as a result of heavy discounts or vacant space) and cannot be offset by other Project revenues given the composition of its uses, including but not limited to the Project's affordable housing component_ Limiting the retail component of the Project to 400,000 square feet would facilitate cost reductions and, in concert with, other strategies, should allow VPO to offer the affordable rents contemplated by the Project's housing component. Very Truly Yours, Tim Comwell Principal The Concord Group Tian Carravell is a Principal in the San Francisco office. Mr. Connell is art: expert in nnarket--based inban in;fill deuelopnrentstrategl delivering a best -in -class quantitatwefqualitative approach to soling macro - and inicro-economic challenges.facing urban redexeloprnent aronmd the Lkired States. Tam is afrequent speaker on multi family, development, to -ban inftll trends and issites facing his Gen Ypeers, and is active ,idth the Dban Land Institute, SPUR and other industry -leading organizations. In addition to the market works onrnarized abom Mr: Corvivell leads The Concord Group's affordable housing practice, completing more thane forty engagennents annually in supportf ending applications, acquisitions and planning efforts. Tiw, a native of the San Francisco Bm, Area, is a graduate of Ponnona College with a degree in international relations and economics. Vallce Property Owner, LLC Page 1 March 2018 X, Concession 3 states essentially that if the City finds any inconsistency with an objective zoning standard and waiving that standard would achieve cost reductions, this final concession is reserved for such purposes. The problem with this concession is that there may be multiple objective zoning standard not found to be consistent with the SB 35 application which could have cost reductions. For instance, the number of units calculated does not appear consistent, reducing them would be a cost reduction. The General Plan does not appear to allow housing without a Specific Plan which will not be adopted according to the SB 35 application, this inconsistency results in no SB 35 project, a huge cost savings. Source: Vallco Property Owner, Vallco Town Center Project Description, March 27, 2018, p. 16 www.cupertino.org/home/showdocument?id=19613 . IX. VALLCO PARK LAND REQUIREMENT NOT MET IN VALLCO SB 35 The Project does not comply with the criteria of SB 35, in that there is inadequate parkland provided, there would need to be 21.2 acres of parkland dedicated, while the project calculations state there would need to be 12.96, and provides park space on the roof of the subterranean garage and on the green roof. The applicant does not state how much "at -grade" park space is actual park land, only stating 4 acres of at -grade space will be provided, thus the parkland is not compliant with the Density Bonus Law, Ca. Gov. Code § 65915 and CMC § 18.24.030. The Project does not The City of CMC park land requirement is inconsistent with the Quimby Act and the text of the Municipal Code: The Municipal Code Table 13.08.050: Park Land Dedication. Formula Table does not result in 3 acres park land per 1000 residents, it ends up with less. For instance, Vallco SB 35 would have 6,798 residents according to their application showing 2.83 residents/DU. However, the General Plan EIR states the multiplier is 2.94 residents per dwelling unit. This would require 21.2 acres of park land, but the table results in just 12.96, which is incorrect. The text is what must be followed. We must insist we have park land on the ground for safe play spaces shielded from the noise and air pollution of the freeway. GENERAL PLAN EIR POPULATION MULTIPLIER IS 2.94 PERSONS PER HOUSEHOLD Population is calculated by 4,421 units times 2.94 persons per household, which is the ABAG 2040 estimated generation rate. (GP EIR p. 3-12, PDF 46) VTC SB 35 shows 2,402 residential units times 2.94 persons per household yields 7,062 residents. This would require 21.2 acres of park land. The following SB 35 application statement regarding park land indicates 12.96 acres of park space, this is not the same as the requirement for park land. The `at — grade' park space mentioned is on the roof of the subterranean garages and at a fictional `at grade' location determined by the plan. The roof park space is 95' in the air. The City's General Plan park standard is three acres of park per 1,000 residents (RPC-1.2). Pursuant to Cupertino Municipal Code requirements for household size, the Town Center would generate the need for 12.96 acres of park space. The Town Center Project will provide a 30-acre rooftop park and up to 26 acres of publicly -accessible open space, including 2 acres of at -grade park space and children's play area adjacent to Perimeter Road, 2 acres in two Town Center plazas, and 14 to 22 acres of publicly accessible green roofs on all blocks connected by bridges (the final amount of public green roof space depends on office tenant needs). The Project will also include almost 14 acres of private open space for .: residents of the Town Center. As such, the Project complies with (and exceeds) the General Plan park standard. (Vallco SB 35, p. 8, PDF 8) Figure 53: VTC SB 35 Application Park Land Total Incorrect with 2.83 residents/unit Recreation, Parks, and Community Services Element Policy RPC-1.2: Parkland Applicable. The parkland Consistent. The Project exceeds the City's park Standards. Continue to acquisition requirements standards. Based on the City's average household implement a parkland do not require subjective size of 2.83 in the proposed 2400 units, the Project acquisition and judgment and are based will generate the need for 12.96 acres of parkland. implementation program that provides a minimum of three on uniformly verifiable criteria and thus are The Project includes up to 26 acres of publicly - accessible open space, including 4 acres of at -grade acres per 1,000 residents. objective and applicable, park space and two plazas, and 14 to 22 acres of publicly accessible green roofs on all blocks connected by bridges (final amount depends on tenant needs). As such, the Project complies with (and exceeds) the General Plan park standard. Source: Vallco Property Owner, Vallco Town Center Project Description, March 27, 2018, Appendix B: City Standards Consistency Analysis p. 26 www.cupertino.org/home/showdocument?id=19613. Please note that the first page of the SB 35 plans from where the following table is copied, shows up blurred at the city website and following pages do not.) Figure 54: VTC SB 35 Site Plans: Private Residential Open Space, Public Green Roof Park Space • �•�'I �i�v+EA?uk � ip+� I :;x,�t} 5?R'.x t • # A'��' i>�M�MIGe� URy fail' � ahi W141'I'iR1C?t,#� ; � 'ra Source: Vallco Property Owner LLC, Vallco Town Center Site Plans, Project Information Data Table, P-0101, http://www.cu]2ertino.ora/home/showdocument?id= 19614 67 CUPERTINO MUNICIPAL CODE FOR PARK LAND DEDICATION Figure 55: CMC 13.08.050 Park Land Dedication t 13.03.040 Reserved. '13.08.050 Park Land Dedication. A. Where the Cann determines that a park or recreational facxli v is to be located in whole or in part within the proposed development, land sufficient in topography and size shall be dedicated per the formula beloxv. Park land dedication DU, = (Average number of persons; DU) x (Park Acreage Standard) 1000 persons B The Park Acreage Standard is three acres of property for each one thousand persons. C, Park land dedication based on development density-: Table 13.08.050 indicates the average park land dedication required per dwelling unit based on development density per the formula above (Section 13.08.050.A) Table 13.0$.050: Park Land Dedication Formula Table Density (DUiacre) Average number of persons,/DU Average Park Land Dedicatioru DU (in acres) 0-5 3.5 .0105 i - 10 2.0 .0060 10 - 20 2.0 .0060 20- 1.8 .0054 10- Ls _00-54 Senior Citizen Housing: Development 1.0 .0030 (Ord. 11-2125, § 1 (part) 201-1) DENSITY BONUS DOES NOT ALLOW A PARK LAND DEDICATION CONCESSION CMC § 19.5 6.040(3): Nothing in this section requires the provision of direct financial incentives for the housing development, including but not limited to the provision of financial subsidies, publicly owned land by the City or the waiver of fees or dedication requirements. The City, at its sole discretion, may choose to provide such direct financial incentives; (Muni Code, 19.46.040A(3)) TENTATIVE MAP PROCESS DOES NOT ALLOW A PARK LAND DEDICATION CONCESSION VTC SB 35 includes a Tentative Map. Cupertino Municipal Code indicates that a subdivider, shall provide park land pursuant to CMC § 13.08.050. CMC § 18.24.180: MS; General. As a condition of approval of a map, the subdivider shall reserve sites, appropriate in area and location, for parks, recreational facilities, fire stations, libraries or other public uses according to the standards and formula contained in this article. (Ord. 14-2125, § 2 (part), 2014; Ord. 2085, § 2 (part), 2011; Ord. 1384, Exhibit A (part), 1986) CMC § 18.24.030 Requirements. A. As a condition of approval of a final subdivision map or parcel map, the subdivider shall dedicate land, pay a fee in lieu thereof, or both, at the option of the City, for park or recreational purposes at the time and according to the standards and formula contained in this chapter. B. The provisions of this chapter are not applicable to the following land use categories: 1. Commercial or industrial subdivisions; 2. Condominium conversion projects or stock cooperatives which consist of the subdivision of air space in an existing apartment building which is more than five years old when no new dwelling units are added; 3. Convalescent hospitals and similar dependent care facilities. (Ord. 14-2125, § 2 (part), 2014; Ord. 2085, § 2 (part), 2011; Ord. 1384, Exhibit A (part), 1986) CMC 18.24.040 General Standard. The Park Land Dedication shall be as identified in the City's General Plan and Chapter 13.08. (Ord. 14-2125, § 2 (part), 2014; Ord. 2085, § 2 (part), 2011; Ord. 1384, Exhibit A (part), 1986) CMC 18.24.050 Dedication of Land. A. Where a park or recreational facility has been designated in the open space and conservation element of the General Plan of the City, and is to be located in whole or in part within the proposed subdivision to serve the immediate and future need of the residents of the subdivision, the subdivider shall dedicate land for a local park sufficient in size and topography to serve the residents of the subdivision. B. The formula for determining acreage to be dedicated shall be pursuant to Section 13.08.050. (Ord. 14-2125, § 2 (part), 2014; Ord. 2085, § 2 (part), 2011; Ord. 1384, Exhibit A (part), 1986) .......................................................................................................................................................................................................................................................................................................................................... GENERAL PLAN RECREATION, PARKS, AND COMMMUNITY SERVICES ELEMENT General Plan 2014 Recreation Parks and Community Services Element, Chapter 9: Strategy RPC-2.1.1: Dedication of Parkland. New developments, in areas where parkland deficiencies have been identified should be required to dedicate parkland rather than paying in -lieu fees. Strategy RPC-2.2.2: New Facilities: If public parkland is not dedicated, require park fees based on a formula that considers the extent to which the publicly -accessible facilities meet community need. 69 VALLCO SB 35 PARK CROSS SECTION: TOO SLOPED FOR MANY USES Figure 56: Roof Too Sloped Most of the roof is sloped, unacceptable for volt yball, s4 ccer, etc. �✓ Wolfe Road The amount of park space required at Vallco needs review and very clear information needs to be provided about what roof areas would be forced on the city residents to pay, and `accept' as park space under the General Plan. X. SB 35: PREVIOUS GP CONFLICT WITH PLAN HEIGHTS: NOT COMPLIANT The Project does not comply with the criteria of SB 35 in that the heights are above those allowable in the General Plan and thus does not comply with the General Plan and Municipal Code. The Vallco SB 35 Proposal has to comply with the zoning requirements in Cupertino Municipal Code unless the Municipal Code conflicts with Cupertino's General Plan. When there is a conflict, Municipal Code is subordinate to the General Plan. There are two parcels, 316 20 080 and 316 20 081, within the proposed Vallco SB 35 Plan area that are zoned P(CG). The other parcels in the plan area are all zoned P(Regional Shopping) (Cupertino General Plan Community Vision 2015-2040, Appendix B: Housing Element Technical Report pages 154-155) Cupertino Municipal Code Table 19.60.060 sets the maximum height for General Commercial (CG) zones at " 30 feet unless otherwise permitted by the General Plan or applicable Specific Plan." "Regional Shopping" has no defined maximum height in Cupertino Municipal Code. (Muni Code, 19.60.060) The Cupertino General Plan on page LU-17 defers to the Specific Plan for the Vallco Shopping District Special Area's maximum height. (GP LU, p 17, PDF 17) There is no Specific Plan for the Vallco Shopping District Special Area. Therefore, the General Plan does not set a maximum height for the Vallco Shopping District Special Area. Parcels zoned P (Regional Shopping) in the Vallco Shopping District have no maximum height, because neither Municipal Code nor the General Plan set a maximum height for P (Regional Shopping). However, the maximum height for parcels zoned P(CG) within the Vallco Shopping District is set by CG zoning and Municipal Code sets the maximum height for CG zones at 30 feet. Therefore, the two parcels zoned P(CG) in the Special Area have a 30' maximum height. The two parcels mentioned are on the West side of Wolfe Rd adjacent to Stevens Creek Blvd. The Vallco SB 35 Proposal has several buildings taller than 30 feet proposed for that area, and that is not allowed by Municipal Code. 70 Figure 57: County Assessor's Map, Vallco Area (Cupertino Property Information) The Project is entitled to concessions under the State Density Bonus Law. On pages 15 and 16 of the Vallco Town Center SB 35 Development Application Project Description, March 27, 2018, it specifically requests that (1) Cupertino Municipal Code 19.56.050.G, and (2) the minimum square footage of retail specified in the General Plan be waived. The third request is, "If the City properly identifies an inconsistency with an objective zoning standard and waiving that standard would achieve cost reductions, this final concession is reserved for such purposes." Reducing height would result in a cost reduction, especially considering the narrow based - design of the residential towers which are less than 70' square. Cupertino DEIR Vallco, p. 162, PDF 198, circulated May 24, 2018: "Cupertino Municipal Code The Vallco Special Area is zoned P(Regional Shopping) — Planned Development Regional Shopping north of Vallco Parkway, and P(CG) — Planned Development General Commercial south of Vallco Parkway (west of North Wolfe Road). The Planned Development Zoning District is specifically intended to encourage variety in the development pattern of the community. The Planned Development Regional Shopping zoning designation allows all permitted uses in the Regional Shopping District, which include up to 1,645,700 square feet of commercial uses, a 2,500 seat theater complex, and buildings of up to three stories and 85 feet tall.81 81 Council Actions 31-U-86 and 9-U-90. The maximum building height identified was in conformance with the 1993 General Plan and were identified in the Development Agreement (Ordinance 1540 File no. 1-DA-90) at that time (Vallco DEIR, p. 162, PDF 198) 71 Therefore, the building height limits at the Vallco site are: P(Regional Shopping): 85' P(CG): 30' However, there is an air rights easement still in effect which limits part of the site to 26' and has a subterranean easement: Figure 58: Air Easement, 26' granted. Vallco hereby excepts and reserves all rights, title and interest above the upper plane (i.e. twenty-six (26) Beet above said portion of Vall,co's real property) of the air rights easement and below the bottom plane of the subterranean easement hereinabove offered. (Perpetual and Exclusive easements Recorded 6/19/1974, Book B 135 O.R. 370, and Book B 135 O.R. 370/Document Number 4877118, City of Cupertino and Vallco Park Ltd.) Some portions of the air rights easement were intended to be vacated by Cupertino City Council Resolution 06- 007, January 3, 2006. In retrospect, because the cause to vacate (no longer anticipated a transit hub and associated parking on the site) has returned to the General Plan at some point, and is in the plan today. XI. SB 35 OBJECTIVE STANDARD FOR TRANSIT HUB NOT COMPLIANT The Project does not comply with the criteria of SB 35 in that there is no transit hub and thus does not comply with the General Plan, and Gov. Code § 65913.4 (a). The General Plan sought to place a transit transfer station at Vallco. The DEIR for Vallco (p 301, PDF 337) indicates there is a current "... a transfer center for VTA bus routes, and as a transit hub for private shuttles operated by large companies for employee pick up and drop off. In addition, these employees utilize the mall's parking garages as park -and -ride lots." The lack of a transit hub is inconsistent with the General Plan. General Plan Amendments, October 20, 2015 have the following Mobility Policy for Vallco: Policy M-4.X: Vallco Shopping District Transfer Station. Work with VTA and/or other transportation service organizations to study and develop a transit transfer station that incorporates a hub for alternative transportation services such as, car sharing, bike sharing and/or other services. Unofficial GP, CH 5: Mobility, p. M-19, PDF 19: POLICY M-4.7: VALLCO SHOPPING DISTRICT TRANSFER STATION Work with VTA and/or other transportation service organizations to study and develop a transit transfer station that incorporates a hub for alternative transportation services such as, car sharing, bike sharing and/ or other services. The DEIR for Vallco States: 72 Currently, the project site acts as a transfer center for VTA bus routes, and as a transit hub for private shuttles operated by large companies for employee pickup and drop off. In addition, these employees utilize the mall's parking garages as park -and -ride lots. As part of the Specific Plan, the existing transit hub would be upgraded and include additional features such as an information center, drop-off point, and a bike sharing distribution point. The upgraded transit hub would continue to be used by employer shuttles to pick up and drop off employees, and is expected to serve residents of the site and employees living near the site in Cupertino and surrounding local jurisdictions. As part of the project (and General Plan Buildout with Maximum Residential Alternative and Retail and Residential Alternative), the upgraded transit hub is assumed to generate the same numbers of shuttle trips and shuttle -related vehicle trips into the site. The existing shuttle related vehicle trips were estimated from driveway counts and field observations of shuttles and employee vehicle trips to the site and park -and -ride locations collected in January 2018. (Vallco DEIR, p. 301, PDF 337) VTC SB 35 provides no transit hub and additional parking which would be required according to the General Plan. XII. FINANCIAL ANALYSIS FOR DBU CONCESSIONS MISSING: NOT COMPLIANT The Project does not comply with the criteria of SB 35 due to the missing Financial Analysis for the Density Bonus Unit concessions required by CMC § CHAPTER 19.56, and especial necessary given the 7 228' towers above the expansive green roof. The missing Financial Analysis results in the project not complying with Ca. Gov. Code 65913.4(a). The missing Financial Analysis results in the project not complying with CMC § 19.56.070(5), CMC § 19.56.070 (6), CMC § 19.56.070 (7). The results of the Vallco Specific Plan DEIR result in the project not complying with The Project is ineligible for the density bonus requested because the number of concessions exceeds three (CMC § 19.56.070 (1)). Cupertino Municipal Code § CHAPTER 19.56: DENSITY BONUS "19.56.060 Application Requirements. a. A project financial report (which may be in the form of a pro forma) demonstrating that the requested incentive(s) or concession(s) will result in identifiable, financially sufficient, and actual cost reductions to the housing development and that they are required to provide for affordable rents or affordable housing costs, as applicable. The financial report shall include the capital costs, operating expenses, return on investment, loan -to -value ratio and the debt coverage ratio including the contribution(s) provided by any applicable subsidy program(s); b. An appraisal report indicating the value of the density bonus and of the incentive(s) or concession(s); and c. A use of funds statement identifying the financial gaps for the housing development with the affordable housing units. The analysis shall show how the funding gap relates to the incentive(s) or concession(s); The acceptance of the density bonus application would be based on a subjective decision by the city. See CMC § 19.56.070 Findings: A. Before approving an application that includes a request for a density bonus, incentive or concession, waiver or reduction in parking standards, pursuant to this chapter, the decision -making body shall determine that the proposal is consistent with State Law by making the following findings, as applicable: 1. That the housing development is eligible for the density bonus requested and any incentives or concessions, waivers or reductions in parking standards requested. 73 5. That the requested incentive(s) or concession(s) will result in identifiable, financially sufficient, and actual cost reductions based upon the financial analysis and documentation provided by the applicant and the findings of the peer -reviewer, if incentive(s) or concession(s) are requested (other than mixed use development). 6. That the proposed non-residential land uses within the proposed development will reduce the cost of the housing development and are compatible with the housing development and the existing or planned development in the area where the proposed development will be located, if an incentive or concession is requested for mixed use development. 7. That the development standard(s) for which the waiver(s) are requested would have the effect of physically precluding the construction of the housing development with the density bonus and incentives or concessions permitted, if a waiver is requested. B. If the findings required by subsection (A) of this section, as applicable, can be made, the decision - making body may deny an application for an incentive or concession or waiver requested pursuant to Section 19.56.040 only if one of the following written findings as applicable to each type of application, supported by substantial evidence: (... ) 2. That the incentive or concession, or waiver would have a specific, adverse impact upon public health or safety or the physical environment, and there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the residential project unaffordable to low and moderate income households. For the purpose of this subsection, "specific, adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified, written public health or safety standards, policies, or conditions as they existed on the date that the application for the residential project was deemed complete; or 3. That the incentive or concession, or waiver is contrary to state or federal law. (Muni Code, 19.56.070) VALLCO SB 35 VIOLATES STATE DENSITY BONUS LAW AND HOUSING ACCOUNTABILITY ACT- SPECIFIC ADVERSE IMPACTS — SEE VALLCO DEIR STATE DENSITY BONUS LAW REQUIREMENTS PER VALLCO SB 35 APPLICATION: Under the State Density Bonus law, the City can only deny an incentive or concession if it finds that an incentive or concession does not result in identifiable and actual cost reductions; would have a specific, adverse impact on public health and safety or the physical environment; or would violate state or federal law. It is the City's burden to provide the evidence supporting such findings. (Vallco SB 35, p. 16, PDF 16) Gov. Code § 65589.5(d)(2): (2) The housing development project or emergency shelter as proposed would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate -income households or rendering the development of the emergency shelter financially infeasible. As used in this paragraph, a "specific, adverse impact" means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. Inconsistency _01 with the zoning ordinance or general plan land use designation shall not constitute a specific, adverse impact upon the public health or safety. The State Density Bonus Law requirements have not been met for the following reasons: 1. Concessions requested are in excess of allowable. See Section V of this document. 2. Actual cost reductions were not presented to the city in a financial analysis. See Section VII of this document. Smaller, alternative projects studied in the Vallco Specific Plan Draft Environmental Impact Report circulated for review May 24, 2018 show multiple significant negative impacts with mitigation which will have an adverse impact on public health and safety or the physical environment. HOUSING ACCOUNTABILTY ACT REQUIREMENTS PER VALLCO SB 35 APPLICATION: The Vallco SB 35 Applicant states the following: The City is only permitted to reject a project under these circumstances if there is a preponderance of evidence that the project would have a significant, unavoidable, and quantifiable impact on "objective, identified written public health or safety standards, policies, or conditions." Gov. Code §65589.50). There is no evidence, let alone a preponderance of evidence, that the Project would have any impact on public health and safety that cannot be feasibly mitigated. A broad range of plaintiffs can sue to enforce the Housing Accountability Act, and the City would bear the burden of proof in any challenge. Gov. Code § 65589.5(k). As recently reformed in the 2017 legislative session, the Housing Accountability Act makes attorney's fees and costs of suit presumptively available to prevailing plaintiffs, requires a minimum fine of $10,000 per housing unit for jurisdictions that fail to comply with the act within 60 days, and authorizes fines to be multiplied by five times if a court concludes that a local jurisdiction acted in bad faith when rejecting a housing development. (Vallco SB 35, p. 17, PDF 17) The Housing Accountability Act requirements have not been met for the following reasons: 1. Vallco SB 35 plan does not comply with the City's objective standards and criteria. 2. Vallco SB 35 plan does not comply with SB 35 (not zoned residential, not 2/3 residential SF, is on a hazardous materials list). There is "...a preponderance of evidence that the project would have a significant, unavoidable, and quantifiable impact on "objective, identified written public health or safety standards, policies, or conditions." Gov. Code §65589.50)" (Vallco SB 35, p. 17, PDF 17) VALLCO SPECIFIC PLAN DRAFT ENVIRONMENTAL IMPACT REPORT SUMMARY The Environmental Impact Report for the Cupertino General Plan Community Vision 2015-2040, certified December 4, 2014 studied the following scenario at Vallco: The General Plan EIR analyzed the demolition of the existing 1,207,774 square foot mall and redevelopment of the site with up to 600,000 square feet of commercial uses, 2.0 million square feet of office uses, 339 hotel rooms, and 800 residential dwelling units within the Vallco Special Area (Vallco DEIR, p. xiii, PDF 14) The SB 35 plan was not studied, nor anything remotely close to it, in the General Plan EIR. The General Plan EIR, however, found significant unavoidable impacts with mitigation to air quality (AQ-1, AQ-2, AQ-3, AQ-6), FAI noise (NOISE-3, NOISE-5), and traffic (TRAF-1, TRAF-2, and TRAF-6) as tabulated in EIR Table 2.2, Executive Summary, Summary of Impacts and Mitigation Measures. GP DEIR, pp. 8-28, PDF 14-34). The DEIR for Vallco Special Area has numerous significant and unavoidable impacts with mitigation, and indicates the site is on a hazardous materials listing pursuant to Gov. Code § 65962.5 The Draft Environmental Impact Report for the Vallco Special Area Specific Plan, a.k.a. Vallco Shopping District Specific Plan, circulated, for public 45 day review May 24, 2018 studied the following Proposed Project and project alternatives: Table 10: Vallco DEIR Summary of Project and Alternatives Summary of Project and Project Alternative Development Land Uses Commercial Office Hotel Residential C*h ic Green (square (square (rootus) (+welling Space Roof footage) footage) units) (square (acres) feet) Proposed Specific Plan 600,000 2,000,000 339 800 65,000 30 Project Alternatives General Plan Buildout with Maximum 600,000 1,000,000 339 2.6. 0 65.00, 0 30 Residential Alternative Retail and Residential Alternative 600,000 Cr 3 39 4,000 C {� Occupied/Re-Tenanted Mall Alternative 1,207,774 Cr 145 0 0 ()allco DEIR, p. xiii, PDF 14) The Vallco SB 35 application has 2,402 residential units, 400,000 SF retail, 1,810,000 SF office and a roof park. The Vallco SB 35 configuration is similar to the Vallco DEIR Project Alternative "General Plan Buildout with Maximum Residential Alternative" which has 2,640 residential units, 600,000 SF retail, 339 hotel rooms and only 1,000,000 SF office. Note that 148 of the 339 hotel rooms are under construction and nearing completion. The Vallco Project Alternatives were based on the Vallco SB 35 plans and the results of the Vallco DEIR apply to the Vallco SB 35 plan, although, due to the number of significant negative impacts with mitigation, the Vallco SB 35 plan warrants an environmental impact report on its' specific configuration. 76 Table 11: Comparison of SB 35 Plan to Projects studied in various EIRs Projects at Vallco Studied in GP EIR or Vallco Special Area DEIR vs. SB 35 Plan Commercial Office SF Hotel Rooms Residential Civic Green Roof SF selling Units Space (acres) General Plan EIR 2014 600,000 2,000,000 1 339 1 800 no no Vallco Special Area DEIR 2018 Proposed 600,000 2,0001000 339 800 65,000 30 Project Project Alternatives General Plan Buildout with Maximum 600,000 1,000,000 339 2,640 65,000 39 Residential Alternative Retail and Residential 600,000 0 339 4,000 0 0 Alternative Occupied/Re- 1207,774 0 148 0 0 0 tenanted Mall Vallco SB 35 400,000 1,810,000 (148 under 2,402 0 "Up to 20 Plan construction) acres"' The Draft Environmental Impact Report for the Vallco Special Area Specific Plan states the following significant negative impacts with mitigation: SECTION 6.0 SIGNIFICANT AND UNAVOIDABLE IMPACTS As discussed in detail in Section 3.0, the project, General Plan Buildout with Maximum Residential Alternative, and Retail and Residential Alternative would result in the following significant and unavoidable impacts: • Impact AQ-2: The construction of the project (and General Plan Buildout with Maximum Residential Alternative and Retail and Residential Alternative) would violate air quality standard or contribute substantially to an existing or projected air quality violation. (Significant and Unavoidable Impact with Mitigation Incorporated) • Impact AQ-3: The operation of the project (and General Plan Buildout with Maximum Residential Alternative and Retail and Residential Alternative) would violate air quality standard or contribute substantially to an existing or projected air quality violation. (Significant and Unavoidable Impact with Mitigation Incorporated) ' Per Vallco SB 35 Development Application p. 15 PDF 51 77 • Impact AQ-4: The proposed project (and General Plan Buildout with Maximum Residential Alternative and Retail and Residential Alternative) would result in a cumulatively considerable net increase of criteria pollutants (ROG, NOx, PM10, and/or PM2.5) for which the project region is non - attainment under an applicable federal or state ambient air quality standard. (Significant and Unavoidable Impact with Mitigation Incorporated) • Impact AQ-6: The proposed project (and General Plan Buildout with Maximum Residential Alternative and Retail and Residential Alternative) would expose sensitive receptors to substantial construction dust and diesel exhaust emissions concentrations. (Significant and Unavoidable Impact with Mitigation Incorporated) • Impact AQ-9: Implementation of the proposed project (and General Plan Buildout with Maximum Residential Alternative and Retail and Residential Alternative) would cumulatively contribute to air quality impacts in the San Francisco Bay Area Air Basin. (Significant and Unavoidable Impact with Mitigation Incorporated) • Impact NOI-1: The project (and General Plan Buildout with Maximum Residential Alternative and Retail and Residential Alternative) would not expose persons to or generation of noise levels in excess of standards established in the General Plan Municipal Code, or applicable standard of other agencies. (Significant and Unavoidable Impact with Mitigation Incorporated) • Impact NOI-3: The project (and General Plan Buildout with Maximum Residential Alternative and Retail and Residential Alternative) would result in a substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project. (Significant and Unavoidable Impact with Mitigation Incorporated) • Impact NOI-4: The project (and General Plan Buildout with Maximum Residential Alternative and Retail and Residential Alternative) would result in a substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project. (Significant and Unavoidable Impact with Mitigation Incorporated) • Impact NOI-6: The project (and General Plan Buildout with Maximum Residential Alternative and Retail and Residential Alternative) would result in a cumulatively considerable permanent noise level increase at existing residential land uses. (Significant and Unavoidable Impact with Mitigation Incorporated) • Impact TRN-l: Under existing with project conditions, the project (and General Plan Buildout with Maximum Residential Alternative and Retail and Residential Alternative) would conflict with an applicable plan, ordinance, or policy establishing measures of effectiveness for the performance of the circulation system; and conflict with an applicable congestion management program, including standards established for designated roads or highways. (Significant and Unavoidable Impact with Mitigation Incorporated) • Impact TRN-2: Under background with project conditions, the project (and General Plan Buildout with Maximum Residential Alternative and Retail and Residential Alternative) would conflict with an applicable plan, ordinance, or policy establishing measures of effectiveness for the performance of the circulation system; and conflict with an applicable congestion management program, including standards established for designated roads or highways. (Significant and Unavoidable Impact with Mitigation Incorporated) • Impact TRN-7: The project (and General Plan Buildout with Maximum Residential Alternative and Retail and Residential Alternative) would result in a considerable contribution to a significant cumulative transportation impact. (Significant and Unavoidable Impact with Mitigation Incorporated) (Vallco DEIR, pp. 406-407, PDF 442-443) 78 The following tables from the Vallco Specific Plan DEIR describe the sources and health effects which arrise from the air pollutants mentioned in the Air Quality portion of the DEIR: Table 12: DEIR Health Effects of Air Pollutants Table3.3-1: Health Effects of .Air Pollutants Pollutants Sources Primari Effects Carbon 0 Incomplete combustion of fuels and 0 Reduced tolerance for exercise Monoxide (CO) other carbon -containing substances. 0 1111Pairtneut Of mental function such as motor exhaust * Impairment of fetal development 0 Natural events, such as * Death at high levels of exposure decomposition of organic matter # Aggravation of some heart diseases (angina) Nitrogen Dioxide 9 Motor vehicle exhaust a Aggravation of respiratory illness (NO2) * High teillper, ature sttiouary combu,,, ationary * Reduced visibility tion & Atmospheric reactions ozone # Atmospheric reaction of organic * Aggravation of respiratory and (03) gases with nitrogen oxides in cardiovascular diseases 0 Irritation of eyes yes, * Impairment of cardicipultnon-vy function Lead 0 Contaminated soil 0 Impairment of blood fmictious and (Pb) nerve construction 0 Behavioral and hearing problems in children Suspended * Stationary combustion of solid fuels ' Reduced hung fiinction Particulate 0 Construction activities 0 Aggravation of the effects of Matter 0 industrial processes gaseous pollutants (PM2--' and PM") * Atmospheric chemical reactions * Aggravation of respiratory and cardiorespinitory diseases 0 Increased cough and chest discomfort * Reduced visibility Sulfur Dioxide 0 Combustion of sulfur-coiltaming 0 Aggravation of respiratory (S(),-,) fossil fuels diseases (asthma, emphysema) * Smelting of sulfix-bearnig metal ores * Reduced hmi g function 0 Industrial processes * Irritation of eyes 0 Reduced visibility V, auco slat w'r%Ma speemc plau 52 Eliaft Emmonmentd Invict Repmt City of cuperhw May '210 18 (Vallco DEIR, p. 52 PDF 88) Wei Table 13: DEIR Health Effects of Air Pollutants Table 3-3-1: Health Effects of Air Pollutants Pollutants Sources Primary Effects Toxic Air . Cars and trucks, especially diesels • Cancer Contaminants . Industrial sources such as chrome • Chronic eye, lung, or skin irritation platers * Neurological and reproductive • Neighborhood businesses such as dry disorders cleaners and service stations Building materials and product (Vallco DEIR, p. 53, PDF 89) The above significant and unavoidable impacts with mitigation represent: "...a preponderance of evidence that the project would have a significant, unavoidable, and quantifiable impact on "objective, identified written public health or safety standards, policies, or conditions." Gov. Code §65589.50)" (Vallco SB 35, p. 17, PDF 17). Setbacks Non -Compliance — Applicant does not Reference Existing Curb XIII. OBJECTIVE STANDARD FOR PROTECTED TREE REMOVAL: NOT COMPLIANT The Project does not comply with the criteria of SB 35, in that 475 onfite trees, including misclassified protected development trees, protected specimen trees, and multiple offsite protected City Street Trees are to be cut down including trees which are over 40 years old. Approved Development Trees are protected trees under CMC § 14.18, and Street Trees are protected under CMC § 14.12.080. The Tentative Map and Tree Disposition Plans show City Street Trees being removed which does not comply with Ca. Gov. Code. 65913.4 (a)(5). The Vallco site has over 895 trees of which 475 with a diameter greater than 12" are slated to be cut down. The site design has nearly all of the 50.82 acre site covered with a subterranean parking garage which enables the developer to maximize the project size. As a comparison, Apple Park has 5.9 Million SF of development on 176 acres while VTC SB 35 is 10.3 Million SF of development on only 50.82 acres. The request to remove nearly every tree on the property within the subterranean garage footprint is excessive. The Applicant then proposes trees, however these would be on concrete surfaces in an untested plan with a massive green roof. The Applicant identifies 6 specimen trees and disregards that "development trees" are also protected specimen trees and would need to be catalogued with that designation. The location of the development trees is throughout the project site, ministerial approval to clear cut all but the trees along the perimeter of the site According to the Vallco DEIR publicly circulated May 24, 2018, the Vallco site has six protected specimen trees which would require an application and review before removal according to CMC 14.18. The Vallco SB 35 project application states on Project Application page 8 http://www.cupertino.org/home/showdocument?id=19613 : "As part of this SP 35 application, a tree removal permit is included to authorize the removal of trees as further described in the plans and arborist report attached as Appendix E." E311 The identified permit is not included as stated in the Vallco 35 Project Application page 8. There is an application process for the protected trees which are described in the DEIR and the process for their removal is as follows and contains subj ective decision making by the City. Figure 59: VTC SB 35 Site Plans P-0101, Tree Removal/Replacement - Remove 475 Trees, Relocate 6 Specimen Trees Applicant did not disclose the locations of "Approved Development trees" which would have been planted when the parking lot in front of Sears was remodeled, and all previous permitted projects. CMC §14.18.020 Definitions. "Approved development tree(s) " means any class of tree required to be planted or retained as part of an approved development application, building permit, tree removal permit or code enforcement action in all zoning districts. 14.18.050 Protected Trees. Except as otherwise provided in Section 14.18.170, the following trees shall not be removed without first obtaining a tree removal permit: B. All mature specimen trees of the following species on private property (see Appendix A): 7. Platanus racemosa (Western Sycamore). C. Approved development trees(s). CMC §14.18.110 Application and Approval Authority for Tree Removal Permit. No person shall directly or indirectly remove or cause to be removed any protected tree without first obtaining a tree removal permit, unless such tree removal is exempt per Section 14.18.150. An application for a tree removal permit shall be filed with the Department of Community Development and shall contain the following information based on the size and type of the protected tree: The existing protected development trees would have been described in detail in each of the previous development applications on the Vallco site according to CMC § 14.15: Landscape Ordinance. They must be catalogued as well. There must be notice and posting per CMC § 14.18.130 for their removal. For example, the following is the 1975 Landscape Plan for Wolfe Rd. at Stevens Creek Blvd., Vallco Fashion Park Planting Plan & Details, Wurster, Bernardi and Emmons, Inc. Architects, August 6, 1975, Slit. L-11, PDF 66 of City of Cupertino plan file: https://www.dropbox.com/sh/cpwaenv4whea45 7/AACbi8yDXHjzKlYigvUm5 EK7Ga?dl=0&preview=ASBUIL T+51 %2C075.pdf# 81 Notice that the following landscape plan is from 1975 and the two driveways were consolidated to one curb cut after the gas station closed. There has been only one driveway for several decades. The surveyor obfuscated their plans and showed two driveways in the plan set. 14.18.120 Action by Director. Upon receipt of a complete tree removal permit application, the Director of Community Development or his or her authorized representative will: A. Review the application pursuant to Section 14.18.180; B. At the Director's discretion, conduct a site visit, within fourteen days, to inspect the tree(s) for which removal is requested. Priority of inspection shall be given to those requests based on hazard or disease; and C. Send notices or schedule a hearing in accordance with requirements in Section 14.18.130 and Chapter 19.12. (Ord. 14-2126, § 3 (part), 2014) 14.18.180 Review, Determination and Findings. A. The approval authority shall approve a tree removal permit only after making at least one of the following findings: 1. That the tree or trees are irreversibly diseased, are in danger of falling, can cause potential damage to existing or proposed essential structures, or interferes with private on -site utility services and cannot be controlled or remedied through reasonable relocation or modification of the structure or utility services; 2. That the location of the trees restricts the economic enjoyment of the property by severely limiting the use of property in a manner not typically experienced by owners of similarly zoned and situated property, and the applicant has demonstrated to the satisfaction of the approval authority that there are no reasonable alternatives to preserve the tree(s). D. The approval authority may require tree replacement(s) or accept a tree replacement in -lieu fee per Section 14.18.160 in conjunction with a tree removal permit. Tentative Map plan assumes tree removal of public street trees is "by right". Several mature street trees are planned to be removed along Stevens Creek Blvd. and Wolfe Rd. CMC § 14.12.080 Prohibited Acts. It is unlawful and it is prohibited for any person other than the Tree/Right of Way Supervisor or his/her designee, for any person to engage in, cause or allow any of the following acts: A. Plant, trim or cause to be planted, trimmed or removed any public tree. RE Figure 60: Vallco Fashion Park Planting Plan & Details, Wurster, Bernardi and Emmons, Inc. Architects, August 6, 1975, Sht. L-11 STEVENS CREEK oLVD� �11 6 r w 1 o ' 1y1J F'r § 1 jf - q D ,•i wit M1NT�w t AM a?LANIihtG -LAN' Avi,Y 6E (AILS E g 9 riURSTER, BERNARDI AND EMMONS, INC. u ARCHITECTS CUPERTINO, CALIFORNIA y (Vallco Fashion Park Planting Plan & Details by Wurster, Bernardi and Emmons, Inc. Architects, ant. L-11) VTC SB 35 "Landscape Lighting and Signage" Planset, "TREE DISPOSITION PLAN - EXISTING PLANTING - STREET LEVEL", P-0602 shows the following for Wolfe Rd. and Stevens Creek Blvd.: 83 Figure 61: VTC SB 35 "Landscape Lighting and Signage" Planset, "TREE DISPOSITION PLAN - EXISTING PLANTING - STREET LEVEL", P-0602 — Gray colored street trees to be removed. _ t ----- -- - -- ------ Ir o . nxr� i E 1 1.-t-.---._-..------------ _--_----._.--------------..... =�l ' _t ` f_e n x.. � • nx� r z.-.�'"':i8.,� 3�t2iad i3�S a� iai�Sr�t2,ms§�+q a. .: 73 : �• E However, Google maps show nearly 100 development trees in the Sears parking lot not included. Ell Figure 62: Google maps Sears Parking Lot Additionally, the Existing Tree plan, with the nonexistent driveway, appeared in the Vallco Town Center Measure D Environmental Assessment, with the same plan number. http://library. amlegal. com/nxt/gateway.dll/California/cupertino/cityofcupertinocalifomiamunicipalcode? f=templates$fn=default.htin$3.0$vid=amlegal•cu ertino_ca 85 XIV. EASEMENTS NOT MINISTERIALLY CREATED OR VACATED The Vallco site has multiple easements which would need to be vacated and/or relocated. Easements are not ministerially vacated and relocated. See CMC § 18.16.060: Action of Planning Commission —Recommending Denial upon Certain Findings. The easements onsite include public utilities, waterline, PG&E, Sanitary Sewer, Public Roadway etc. Each one would need to be studied for their impact on the plan, but some cross the site in such a way that they make the project impossible to build because of the subterranean garage structure and/or access needs. TABLE AND PLAN VIEW OF EASEMENTS Figure 63: Easement Table from VTC SB 35 Civil Drawings Part 1: P-0306 OAR i! iA-- n Mun+be+ OA 612 /04xWrW4 ftAr6er 0A 611u "lkor#M+ O A 4% INK Lw*#A t Ytfit+e+t[r ra _ 1 1S17S bOdt t116 0 R 713+� MamtMe*7 _w wV1UQdow f a _ _ . i9?S look l3?l 0 A. S7S ytftirrM 1l6+lS11 . UAM971 sash R36S 0.4 U2 /DDt%oft" mare r 0*121 K`aM*r rr C 4i 4?S la0k K0 O R Nil insew W 4s KvAv t*r U=710 book Q�tS6 Q.R S5r /bo[wntnt l�.rr S+Octi1t11 Px.+4a GAS R 1 1975 2 171197S eftk ssot O R 1I" Nxwnrnt it r+rOW SOS1027 Book W1 O R 653 M4xwnr t rater 4 1975 .Swk 6S2+i 0 R 74.10 NSe+atw Suit71+1 'Sr�ar E1kr240176 `nook S411 O R 001 '~f0 fd'~ w4w44 . 1 1477 look 007? O R 54+! Ss�c�R IwrAOr* 5 ,,�.. w.�+�E r a � �rrt 11I1 i/19M ;� 1C131t o R 734 wnet�[ NAt+'Ner R: a911A _ y1Rit+EA[rse E x re�ttgt 111 ".-;' 1444 fto=i A� M O A 741 !'tkx ,r --4 N sr tw 9 39111 .vat�M'1+� r t � �� 19h? Btac�► K? iit O 6 1? 37 /'tloc urwnt Mis*twrr 417 i 3 ad<tttne r a t 11 i/'Z41S 7 0ook ICUI O R 1142 r%ocwrrrt ken f 9S29 , aoett►w f• 1 ?Ou i>ottie^OW 1V+aerOrt 14tiE.7'E, . AMrK r r:$,morn# ` 10J1 X1171I 01x%0 &W ksrWtet ?t 01 It 11 tir�turt S. w<r tlh►tre+Mrtx ,S T119(11wi11 ¢look 141%0 a 2!<S uaas*s� 1 i r _.._ .. .. r [ smear [ t'��r l [ . ,. �.. � ; Sr 1�+19b4 Ilodt 6 t14 O R Pic 4 iC�c I% ? ": J' � 6774 0 0 t T+1,& r[ + 1 T "I : i+0i!! j40* re�rsa+;+� i s+e+*�e�t 'u13�'a9b4,.�eook array o �. m��,.tM h�. � 16T3l9{ ..�..:.+,� awe �•nti.n 3,eti, ',,`1ir19TS.;6ACkSH4OR fr4t>".Ik*O-V,4N..Ovto"f sev.aa 1 r + < a, 11/2U11 Oaar*+ 4 hwvtof 11112169 a� ��e r�r�xwrs ),1 !; roll tic�cua^arnt 2211214�i t �t atS c t t .e €aS ►a _ ^ i1' 1N141A 9a7k s 1S i1.1R 1;##1 r 4 .etr t t r e t�1 E raor 4r19+`197) ACAA UK of mogh. 7'ar j�A .;ts;raa f tcsewa K'++s �' 19! 5971 '1 tS t3d fr4�s r'a�t 12 Pevmt, ? and rwtItn'Vw kAvfftvota% 10.'17/1a1i 913S0R )101,1 c k.,MbO "7711A l Figure 64: VTC SB 35 Civil Drawings Part 1: P-0306, Existing Easements OQ= _ _ _ _ — �� i ,'""rm- i _T— T _� � ! 1//I77777r�r777/iiL� ----------- NOR� CIq£ - .... _ .. VALLCO ROADWAY EASEMENTS There are two roadway easements which encircle the now -vacant TGIFriday's and Alexander's Steak House buildings on the north end of the properties and adjacent to N. Wolfe Rd. The following Google Map shows the roadways in question which are the roads directly around the vacant TGIFriday's building on the west side and vacant Alexander's Steak House building on the east side of N. Wolfe Rd. 87 Figure 65: Google Map Roadway Easement a R- 41 W MOW, 7 -P, ., 'acilcxander s p Steak House Building, < ' . Or 88 ROADWAY EASEMENT RECODED JULY 29, 1975, BK 526 P 74, NO. 5058714 OF SCC RECORDS These easements are granted "...for public roadway purposes, together with the right to construct, repair, operate and maintain any and all public utilities and improvements which shall become necessary for preservation of the public safety, welfare, or convenience..." Figure 66: Roadway Easement Recoded July 29,1975, Bk 526 P 74, No. 5058714 of SCC records PI.T M9 Itld'1't[RN TO- FE 526 ma City i7t Rr'tt'partino 11)300 Torre Avenue i'.i� I'4 (t t+C�iOP'.IJ ctpeYC�lt1T}� A 9503$ .rk"6 ittD,:UZ-37 OF L*r Yf�9 A of A JUL 10 '15 4 N€ NN Li.Initx Part:zier —til,'+IIA, 110aCl }%,y :s Y �;•iiRyC've�Ga" '.•J:�e::7 �.l':G r'.(��)i: l;� Ct�tlSv:l't1Ga.? i`Etj�I:�.I'' C}pow".�+�� ttlf7 muntt,,,:. rt any arglli 111 pubIle and '�.Ct;jpx^�tti: C'3 �li�s3 t':17� C:1 Eyi.F 1..1 be o �r'4`Sii;;C`. ili Gt. '� %(y'' rjrof` ' s�iJ Kd% V 'vL "A n (6.4 tt}C Z]*,kii, a.0 l.'1.1r-,1 r s:or c iivf 'f, � r .w c •i,�enc i:lto ltozo.3iof�,v& t t n x. 4t :t_ti 9.ltC:= 'Wi4Y } ky',,,1k,0 m, E. , r , +,�•��. tip. Gc:.�;�1s.tt�'t1.4it il2G3 VTC SB 35 Site Plans P-0102 states: 7. THE VALLCO TOWN CENTER PROPOSES A REVISED ROADWAY EASEMENT TO RATIONALIZE THE TRANSECT STREET PLANNING AS REQUIRED BY THE CUPERTINO GENERAL PLAN STRATEGY LU-19.1.5. IN THE EVENT THE CITY OF CUPERTINO FINDS AND DETERMINES IT IS NOT IN THE PUBLIC INTEREST TO PROCESS AND APPROVE THE VACATION, RELOCATION, AND RE -DEDICATION OF THE EAST SIDE AND WEST SIDE ROADWAY AND PUBLIC UTILITY EASEMENTS WHICH CONNECT N. WOLFE ROAD TO PERIMETER ROAD, IN THE PROPOSED CONFIGURATION IDENTIFIED ON THIS SHEET, AN ALTERNATE SITE AND EASEMENT PLAN ARE INCLUDED ON SHEETS P-0202.A AND P-0307.A. The Vallco SB 35 Proposal proposes to relocate these roadway easements held by the City of Cupertino. Technically, these would actually involve a vacation and the establishment of a new easement. The vacation of a roadway easement is covered under California Streets and Highway Code, CSH, Div. 9, Par 3, Ch. 3 § 8320- 8325. CSH § 8320 says that a roadway easement vacation requires a noticed, public hearing: 8320(a) The legislative body of a local agency may initiate a proceeding under this chapter in either of the following ways: On its own initiative, where the clerk of the legislative body shall administratively set a hearing by fixing the date, hour, and place of the hearing and cause the publishing and posting of the notices required by this chapter. Upon a petition or request of an interested person, at the discretion of the legislative body, except as provided in subdivision (e) of Section 8321, where the clerk of the legislative body shall administratively set a hearing by fixing the date, hour, and place of the hearing and cause the publishing and posting of the notices required by this chapter. Ca. Streets and Highway Code § 8324 gives the legislative body of the local agency authority to hear evidence and make a decision at that hearing. CSH § 8324 (a) At the hearing, the legislative body shall hear the evidence offered by persons interested. (b) If the legislative body finds, from all the evidence submitted, that the street, highway, or public service easement described in the notice of hearing or petition is unnecessary for present or prospective public use, the legislative body may adopt a resolution vacating the street, highway, or public service easement. The resolution of vacation may provide that the vacation occurs only after conditions required by the legislative body have been satisfied and may instruct the clerk that the resolution of vacation not be recorded until the conditions have been satisfied. (Amended by Stats. 1998, Ch. 876, Sec. 23. Effective January 1, 1999.) httys://Ieginfo.legislature.ca.gov/faces/Codes displayText xhtml?lawCode=SHC&division=9 &ti tle=&part=3.&chapter=3.&article= Because roadway easement vacations must follow California Streets and Highway Code 8320-8325, none of the SB 35's requirements that project approval be subject to a "streamlined, ministerial approval process" apply, because the vacation of a roadway easement is not covered by Cupertino Municipal Code. Roadway vacation is governed by State Law, and if the Cupertino City Council finds that a roadway easement is "necessary for present or prospective public use", State Law gives the Cupertino City Council the authority to reject the request. Figure 47 below, shows the existing roadway easements and several others which need to be vacated/relocated. dl Figure 67: VTC SB 35 Civil Plans Part 1 P-0306, Existing Easements AW A AdPdW AW Mm 7 /� �// j 77 -- - -- -- ILjr _ - - -- - - - -- w _ L I —Zr AWk*E &M07 21 _ - - - W3�A et4�; F A Y 91 Figure 68: Vallco Roadway Easement Various Plans map 'ip'CAITUCI:C � 1 t t i �Y,�� r ` Proposed roadway easement map P-0307 >, a tk ` tlf na: . W !rnate easement map P-0307.A (VTC SB 35 Civil Plans Part 1, P-0306, P-0307, P-0307.A) 92 ROADWAY EASEMENT BLOCKS UNDERGROUND PARKING STRUCTURE BELOW IT VTC SB 35 — Plans Require a redesign Site Plans P-0202A, PDF 8, show the alternate building forms should the roadway easements not be ministerially vacated (which they may not be) however, their plan does not take into account the roadway easements include not just public ingress/egress rights, but "...the right to construct, repair, operate and maintain any and all public utilities and improvements which shall become necessary for preservation of the public safety, welfare, or convenience..." (Roadway Easement Recoded July 29, 1975, Bk 526 P 74, No. 5058714 of SCC records). The underground parking structure cannot happen due to the utilities rights associated with the roadway easement. Figure 69: Site Plans P-0202A, PDF 8 5` '^I SC St SF 10.?6 Atl¢E51 t 51 fl 5F (E%CL� EASf\\EYTL FIOR"rIATIPARK1110"'VELI 01UTtCNA'0.3971, TTNA7LY, ISM OFFiCEAAFK. _- 5 FLOORS • 35ASEtEHT ROCK _ FF fIEYAF�CAi:.t6C' 'GHT(GRACETOROpFj.T3Ft Mam SF t'TO"l{L. ClN•C6. r PUBUC TFNNSPORTATXSN NTA SV5 STCP� _ EM5TNG TUWilL WALLMOW ;;... _..:..,... EAI CURL L:HESFCR ai OA OI ORE OIALWVA5-SETSACK CCGWLWiCE WLAWK I WZ AND PEX57RM CRO5$ WALK _.... _.... NEW LEFT TWW LAVE A10 , TRAFFlC 5IG,VALAT 11 Woti^ FE ROM " P9IELLC TRANSPv^RTATIOR �VTA EVS STrg( -------------- ____ --T 1 L 1 _ 1 1 , V . t _ -TT -- i BLOCK MR+ i'FF)CE-FARF9i- .5-b'JtSEA1EYT FF ELEVATION'.-L6P'd 2,44• T(GRADE TO ROCF,f: 76.0 ETTO 665 2d:cCCO SF.iTOTAL C6V•Th5 ` � i f ss-5 PACFERTY L+'IE-- -.. -`'' -- - �_-------- -- EXM7-NGEARRYTOPAW14l, -� r - ._ I WS1P CGiLV TG pAfiN?kG.; R'Ei®1 _ _�.r SQ RAbC iID TO PARK3iG iEV°EL 2 ) • C----------- °-OCK 3A- CEVTRAL PLAVT- `. RASH ',LOCK 33 MIXM LEE WOLFE PP ROPERT3E5 LL.0 15.1 RETAL.RE'S;CENTAL-PAKKAn f2K1T PN SCCPEi 6 FLOM TO 4 FLOM - Y &L-EW-W FLOOR : "EQ-LGRAZE TO ROOF93 FT TO 63.5 Fi /174- i t me.=5F (EKCL MSEW£AT, ..- -`---- ------------------------------------ LINE OF MTMG FRtYALY SCRLgR WALL TOREL" It goes without saying that since the Cupertino City Council has the authority to reject the proposed roadway easement changes, the City Council has the authority to reject the alternate plan proposed too. The City Council only has to find that the present roadway easements are "necessary for present and prospective public use" to reject the vacation. No more and no less. PLANNING COMMISSION AND CITY COUNCIL MAY REJECT TENTATIVE MAP CMC § 18.16.060: Action of Planning Commission —Recommending Denial upon Certain Findings. A. The tentative subdivision map may be recommended for denial by the Planning Commission on any of the grounds provided by City ordinances or the State Subdivision Map Act. B. The Planning Commission shall deny approval of the tentative map if it makes any of the following findings: 1. That the proposed map is not consistent with applicable general and specific plans; 2. That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans; 3. That the site is not physically suitable for the type of development; 4. That the site is not physically suitable for the proposed density of development; 5. That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat; provided, however, the City may approve a tentative subdivision map if an environmental impact report was prepared with respect to the proposed subdivision and detailed findings were made pursuant to Public Resources Code Section 21081(a)(3) that specific economic, social, or other considerations make infeasible the mitigation measure or project alternatives identified in the environmental impact report; 6. That the design of the subdivision or the type of improvements is likely to cause serious public health problems; 7. That the design of the subdivision or the type of improvements will conflict with easements acquired by the public at large for access through or use ofproperty within the proposed subdivision. In this connection, the governing body may approve a map if it finds that alternate easements for access or for use will be provided, and that these will be substantially equivalent to ones previously acquired by the public. This subsection shall apply only to easements of record or to easements established by judgment of a court of competent jurisdiction and no authority is hereby granted to a legislative body to determine that the public at large has acquired easements for access through or use of property within the proposed subdivision. This provision does not apply to condominium projects or stock cooperatives which consist of the subdivision of air space in an existing structure unless new units are to be constructed or added. (Ord. 2085, § 2 (part), 2011; Ord. 1384, Exhibit A (part), 1986) SB 35 OBJECTIVE GP 1:1 BUILDING SETBACK: INCOMPLETE. NOT COMPLIANT Applicant is required to maintain a 1:1 view angle according to the General Plan and this requirement is included in the VTC SB 35 Project Description p. 7, PDF 7: 4.1.2 Building Set Backs Stevens Creek Boulevard and North Wolfe Road are considered `Boulevard (Arterial)" per the General Plan Mobility Element Chapter 5, Figure M-2 Circulation Network. The building blocks that front these streets are designed to meet the General Plan 's required P I set -back plane from the existing curb. However, the Applicant makes a subjective decision about the location of the "existing curb " and does not show the true existing curb location, which results in the plan being non -compliant. 94 Complicating the matter is the fact that the Applicant does not show the dimensions of the existing curb from the centerline of the street and the distances to the property line and the actual building setbacks. Considering the shoddy work of the surveyor in the Tentative Maps, and the fact that the curb ends up very close to the property line, makes the subjective choice an error. Further, the plans call for a widening of Wolfe Rd. with thorough lanes in portions which would move the curb lines closer to the property line. It would seem that in applying for street widening in the Tentative Map, that the future curb line should be the starting point for the setback line. VTC SB 35 Application, Site Diagrams, P-0508, PDF 8 shows only two cross -sections, one on Wolfe Rd. and one on Stevens Creek Blvd. for setback compliance. The problem with these sections are that they include too few dimensions, do not reference the street centerline and property line, and do not locate the existing curb, which has a variable location in relation to the centerline of N. Wolfe Rd. The City of Cupertino Street Plans include the N. Wolfe Rd. and Stevens Creek Blvd. "As Built" plans by De Leuw, Cather & Co., see sheets C6- C8 which are shown later in this section for reference. Figure 70: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8 �R K •AW�If' K �r s 2-a 95 Figure 71: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8 Figure 72: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8 '1:1 TYP 1:1 TYP 8 I- 6 u 7 1 ----------- ------ - T' { W , --------------------- --------------- ---------- VREET C ---------------- ------------ •W ;N N; 1 --. i S-REET 8 S'REET A o Figure 73: VTC SB 35 Application, Setback Compliance, Site Diagrams, P-0508, PDF 8 _IE 1-1 TYP K W01FE ROhD to iEp1A1_ ! BOU LEVhRD) µ _ 1:1 UP Curb line on the west side of N. Wolfe Rd is obviously closer to the property line than the Setback Compliance figures show, and the plans are drawn too poorly, with no dimensions. This is not compliant with city standards. Figure 74: VTC SB 35 Civil Plan Set 1: Existing Surface Contours, N. Wolfe Rd., P-0302 (North is to left) son w��wwi li iA ''�, fi■ ' , p "As -Built" Street Plans for Wolfe Road, De Leuw Cather & Co. Slits. C5-C7, 1975, last revision 6/77: htt 2s://www.dropbox.com/sh/cpwaenv4whea457/AACbi8y XHgKlYigvUm5EK7Ga?d1-0&preview=ASBUIL T+51 %2C075.pdf# 97 Figure 75: As -Built Wolfe Rd. Street Plan (Curb Line) 1/3 (De Leuw, Cather & Co.) 98 Figure 76: As -Built Wolfe Rd. Street Plan (Curb Line) 2/3 � e h 'kyi s 11 1"11 1 (De Leuw, Cather & Co.) •. Figure 77: As -Built Wolfe Rd. Street Plan (Curb Line) 3/3 (De Leuw, Cather & Co.) 100 Figure 78: GPA-2015, LU-1 Community Form Diagram Figure LU-1 COMMUNITY FORM DIAGRAM: "°.De... r N• [I va[•w[...r (! r r..:.•..waMaa o.w,.. � oak., [ ._ , �`r � - I � 1 ! Mubnun•..WntW OMMY {\\\\�`` - 7C_. Y� 3,jjn'C _� a,....onw x2 �.•q aro4ca S•kce.ne,.:.k+�V"+J�YA � ...• . {i Cityyc~ Node ry w2wrt.. y Norlh Clwe-M N.I. ' ! --b•-� • T.. i'', i/ �;, ;. <., legend SWod Mix Xd+uenaa t�NorG: vdco vaM EMwmtal aw CeY NOahpe- t � DD S— tni91P H�pwda fa+slron � .-•... V.WnS<M[e Arc. .••»•.. sa.�..alnn..r[e .....° WPun Tian.erior ---- �r , .M� - �k+M v.,, rv+, ,d rw,r..mi!%,., *m °"" A,,.+, auwma E.M:ry M..snww'eY asw J !��__-• /r/,, �'� .ice "k� ,�i� t. t 4i �.- Mcne Ynu V'li.g. 9ueb i nkn5hml:�oenkt '�""m°a' � A».rrzAlalor CeN.aa4 -- Awnw.OA—C.0— Q Kev bpa.,.�riom •lF ^rMy�.wod c.m.,, m...w.-xdtra! �:�om.ea .+.,.w?�w �s-s;e x,.a� ,..,o... >r:..:vo;,e�re..ra. Expanding the Building Planes table in the lower right corner of the Community Form Diagram, we find the 1:1 slope line from the curb requirement. If the project is anticipating a curb redesign, it would be logical that the new curb location would be where the building plan would be measured from. Figure 79: GPA-2015, Building Planes 1:1, Expanded View of LU-1: Community Form Diagram Building Planes: • Maintain the primary building bulk below a 1:1 slope tine drawn from the arterial/boulevard curb tine or lines except for the Crossroads Area. • For the Crossroads area, see the Crossroads Streetscape Plan. • For projects adjacent to residential areas: Heights and setbacks adjacent to residential areas will be determined during project review. • For the North and South Vallco Park areas (except for the Vallco Shopping District Spectral Area): Maintain the primary building bulk below a 1.5:1 (i.e., 1.5 feet of setback for every 1 foot of building height) slope line drawn from the Stevens Crock Blvd. and Homestead Road curb lines and below 1: t slope line drawn from Wolfe Road and Tantau Avenue curb line. Rooftop Mechanical Equiptment: Rooftop mechanical equipment and utility structures may exceed stipulated height limitations if they are enclosed, centrally located on the roof and not visible from adjacent streets. Priority Housing Sites: Notwithstanding the heights and densities shown above, the maximum heights and densities for Priority Housing Sites identified in the adopted Housing Element shall be as reflected in the Housing Element. While the Applicant references Figure M-2, which does show Wolfe Rd. and Stevens Creek Blvd. as Boulevards (Arterials), the General Plan Amendment LU-1 Community Form Diagram above, details the 1:1 setbacks. 101 Figure 80: Unofficial GP-2015, Figure M-2, Circulation Network 5unn'— Litt' Boundary wban 5ervvice Area Boundary Sphere of influence Boundary Agreement Line Un�morporated Areas and Expressways Boulevard.(Aterotsf Avenues (Major Coilectorsf Avenues (Minor Collecreas) .. Neighborhood Cotneclo ------- Main street t\/'j1Ni�Jl 4i rNw W ' x P-0831 and P-0832 Building Sections, Architectural Plans Part 3, have dimensioning errors where the line indicating where the existing curb is does not point to where the 1:1 setback should begin. Additionally, the existing curb line is not from field measurements, but is a subjective sort of averaging which is unacceptable under SB 35 making the setbacks not compliant. 102 Figure 81: Building Section, Architectural Plans Part 3, P-0831, indicates 1:1 setback lines, reference lines do not match up OFFICE OFFICE OFFICE OFFICE EL I8U-8' EL- 17TA* \ M EL VT4-, EL UV6 ti ,3 _C b,'� 6 - OFFICE S[DEWALK, BIKE LANE1*1 CAR iANE SIOEAfALK, BIKE LANE, AND PARKING WOLFE FRONTAGE ROAD WOLFE FRONTAGE ROAD AND LOADING 1 DROP-OFF AND LOADING i DROP-OFF NORTH AICILFE ROAD OIFI EL W-11" OFFI BASEMM PARKING INFRASTRUCTI 13ASEMENT PARK PASINIFNIT PARK 143-0' BLOCK 8 - OF AND PARK)I 103 Figure 82 Building Section, Architectural Plans Part 3, P-0831, Walkway over N. Wolfe Rd. Reference lines do not match up z LU r ENTIA1 AMENITY a M" + IA1 AMENITY I PARKING RESIDENT[,%- IAI AMENITY PARKING RE SIDENTIAL IA1 AME NITY,� PARKING RESIDENTIAL [AI.AMENITY? PARKING• RE SODENTIAL IA1 AMMENITY? PARKING RESIDENTIAL N E-182 EL 1BY-W RETAIL IPEL 183-9* t V� EL 183'.0' 141-0" 79'-3" 79'4" :-7SIDENTIAL, RETAIL SIDEYVALIC BIKE LANE. CAR SIDEWALK, BIKE LANE, D PARKING WOLFE FRONTAGE ROAD LANE WOLFE FRONTAGE ROAD AND LOADING I DROP-OFF AND LOADING I DROP-OFF NORTH WOLFE ROAD XV. SUBDIVISION MAP ACT — NOT COMPLIANT FA MEMEWPARKING1 I INFRASTRUCT11 BASEMENT PAW 143'-W BLOCK 7 - OFFIC AND The Tentative Map was not made public for review until the week of June I Ot", 2018, prior to that they were only available by request. The plans were submitted March 27, 2018. 104 The plans violate the Subdivision Map Act: 1. There is a gross error showing an extra existing driveway on Stevens Creek Blvd., with associated minor errors showing parking striping in said driveway, and a fictitious topographic contour. 2. Violates Gov. Code § 66477: insufficient park land provided. XVI. TENTATIVE MAP AND CIVIL ENGINEERING PLANS SHOW NONEXISTENT EXISTING DRIVEWAY, AND DO SO INCONSISTENTLY — NOT COMPLIANT As part of the Tentative Map submittal, the plans are to consolidate parcels at the Vallco site, from the Civil Plans there are two driveways drawn on the east side of the Sears Building along Stevens Creek Blvd. however, only one exists. When looking at the official Tentative Map submitted, the nonexistent driveway shows up again, however it also has confusing parking spaces drawn through it. The plans need to be resubmitted with the erroneous driveway removed. This gross error give the appearance of extra access to the site which does not exist, this is not a trivial error. The city made the Tentative Map submitted available online the week of June 10', 2018. The plans, excluding the Tentative Map were available the week of May 271. The plans show a nonexistent existing driveway on Stevens Creek Blvd. This is not allowed under the Subdivision Map Act, Subdivided Lands Act, and the CMC § 18.16 Tentative Subdivision Maps. Given that Google Maps allows a person to virtually "walk" up and down the street and verify there is only one driveway on the east side of the Sears building on Stevens Creek Blvd., this negligence is a sign that a perfunctory site report was performed. The people of Cupertino deserve more than slapdash work. The people of Cupertino deserve more than a slapdash Vallco proposal. The following maps share the nonexistent driveway image: • P-0301 Existing Surface Plan • P-0302 Existing Surface Contours (with fabricated contours) • P-0303 Existing Parcels • P-0305 Existing Offsite Rights • P-0306 Existing Easements Plan • The Tentative Map package, TM 2.8 • P-0502 Site Diagrams — Pedestrian Circulation — Street Level • P-0503 Site Diagrams — Pedestrian Circulation — Green Roof Level • P-0504 Site Diagrams — Bicycle Circulation • P-0505 Site Diagrams — Vehicular Circulation (shows car movements in and out of the nonexistent driveway) • P-0506 Site Diagrams — Transit Circulation • P-0510 Site Diagrams — Construction Sequences The following two maps do not share the nonexistent driveway: • Tentative Map TM 3.8, Tree Disposition • Tentative Map TM 4.8 Existing Public and Private Easements and Boundaries • Tentative Map TM 6.8 Grading and Drainage Plan SURVEYOR OF RECORD LICENSE INFORMATION Name: JOHNSON, KELLY SANFORD License Type: Professional Land Surveyor License Number: 48759 105 License Status: Active First Issued Date: Dec 7 2011 License Issued: Mar 7 2017 Expiration Date: Mar 30 2019 Address:GREENACRES WA 99016 ENGINEER OF RECORD LICENSE INFORMATION Licensee Name: BROWNING CHAD JAMES License Type: CIVIL ENGINEER License Number: 68315 License Status: CLEAR Definition Expiration Date: September 30, 2019 Address: 778 LAYTON ST City: SANTA CLARA State: CA Zip: 95051 County: SANTA CLARA Actions: No BENEFIT OF INCLUDING A NONEXISTENT DRIVEWAY What the nonexistent driveway does, is give the appearance that there are two driveways plus Perimeter Rd., a private road which is on the west side of the Sears Automotive building. Then, when the plans show the two driveways that have not been at the site for at least 23 years, it looks like very little is modified. Then the Applicant can claim only a minor modification to Stevens Creek Blvd, and have ministerial approval under SB 35. A driveway is an access point for the property, and worth a lot to the developer. Vallco Town Center Measure D, upon review of the Environmental Assessment, April 2016, shows the same nonexistent driveway. However, they also photographed the area, and Google Maps has been offering "street view" for several years Figure 83: Google Maps Street View - Single Driveway 106 Figure 84: VTC SB 35 Civil Drawings Part 1, Existing Parcels, P-0303 TONAN ECER — / / , in ,�hnilMif*lHkff69HE � ,i ITITIMMIMMM a� vQ/i/1 ti f i1NN1�,IN 1�7) _ -� - f 1�' y � � yNHiWI C _ r _ i a� 107 Figure 85: Nonexistent Driveway, Existing Surface Plan, P-0301 108 In this very confusing expanded and annotated view of Tentative Map TM 2.8 the driveway edge line is drawn, and the topographic lines are drawn as if there is an object causing it to create a shape, like a curbed planter perhaps. The plans also show striping for parking spaces across the driveway opening when there obviously can be no parking there. Additionally, the driveway was embellished with a STOP sign. Figure 86: Nonexistent Driveway on Tentative Map TM 2.8 - Annotated View Expanded View of the "fake" driveway shown in the plans, especially the Tentative Map, TM 2.8. j Yellow'Arrows point to J Odd 'topographie line which 1 ## appears to be the outline of a planter area N a Green Arrows point Red Arrows point to f to the painted parking spaces t the fabricated Driveway Curbs There is no painted word STOP ell s t �33 i The driveway edge is { not shown i 1 109 Figure 87: Nonexistent Driveway on Civil Engineering "Existing Surface Contours" P-0302 of plans — Annotated View Expanded View of Civil Engineering Plans "Existing Surface Contours" P-0302, "fake" driveway shows throughout planset k l Fake driveway, does not have parking space striping like the Tentative Map, TM 2.8 shows There is no indication what this line is a 110 Figure 88: Compare Nonexistent Driveway (SB 35 "existing") to Proposed SB 35 Plan, and Actual Driveway Locations: "Actual' location is illustrative and requires a survey to verify. SB 35 "existing" ---� `. I i ; it d SB 35 Proposed Actual w o 71 I � €i lil Figure 89: Google Map vs. SB 35 P-0302 Existing Surface Contours Plan with Nonexistent Driveway lei A A 4 _,I - I ti 112 — y A-• �� WWIf ROAD\ ----------------- PDUACBES -- — ooc.izv4esesoa- ', 1 i y ( AP1F MS-" " r_M__,_�__ __ PARCB. ONE qyy '� n;... O.G ACJiEs i / 1 � 1 -F BTAT� M" E MC. l227405M OR- MW M0-20-80 _ _ .— M6-20-M j 016-20-t2 j ` 9Ni-20-100 (PORTION) - There are NOT 4 i ways aAUDM TO or Valldo on,- fBE FEMMM 14#evens Creek 1 ,-)flow is all of the lhone o.(, ..�I 1 /3 st rvey Aata made to ' j �' L� draw two -driveways?` 2/3 ��.� _____—__— PAMIL OE P)W ACIEG 1 1 DOC N774%W OR H» me-20-10 WADM TO Be RDIOYM i 1 R6 2DM 3* mo ae-2o-o� pr�nt�w3 I d t ) LAW* OF PMTAL M A2A t)l a1 113 Figure 90: Nonexistent Driveway, Existing Surface Plan, P-0301 Expanded View — Nonexistent Driveway Lam CF FWAL PLM NOT FOR CONSTRUCTION W� -35DEVFIOPMENT Rica 0 am mm 11 1 mmiiBM ------- 0 31 It IN WTV EXIMING SURFACE PLAN P-0301 I MAT 114 Figure 91: VTC SB 35 Existing Parcels — Nonexistent Driveway fiiMIR NOT FOR CON:,7RUCTCN I -35 DEVELOPMENT EXI57ING PMCz-L5 Tf it P_0303 VA03" , 115 Figure 92: VTC SB 35 Existing Offsite Rights, P-0305 — Nonexistent Driveway — — — — — — — — — -- ——— — — — — —— f_ • a , NOT FOR CONSTRUCTION �- � �I [. j _'' } F.'�avruaa�im, ems, aarowws ox �E eaer•..� n ��.»`'.4.� � \\ � ` \'-}l� fff I t r racuuese...nwrawruaE cr:ntam awEr ecc \ � i E \ � FRQECl'iNEu�"rdAElitErofiC.T91LEP�A. i + I �j' .. �5`� r � 4RCR2N YdiX LLldeiaTEOm wEet;-n.nur- - l � � I � � �X. pT'pEPMILEE DFMFIE]IkMi�mJ41!kTMJLriE i /f f�/ / t /c L�/f / / " � ✓� I I v cerarma%�.urE rarer Iaac+E iEFa4E I fJ .� /7T_ /s�// t ( �4. pao roay.cxrpac*^ce wiE•vetsrauEw^t.'ova / !-/i / �� i � � PRC:Fiq Nf:�ffil'{FMTN?hYYOtK.CKYFi3ipfC� SB -35 DEVELOPMENT APPLICATION in cE:cwrnaR oat=_ J �� a( I L�'_ �a u+ EVEAPvsnriFF' ^ vLxai--.:n•= PT i l f i f lTTI TT TIT . _ ! f� � i __! 13111(IiIllllill r �ll t -- -- _ _ _1 73' 3FIlmEAF .1.NJ ✓i�ySTY.,R% HY.:�'E-ii'" —, �.' I MC FP64 GSfECrF Ir { I _ LANE OF PORTAL PLAZA vies-ni'Ma ) j' ®, i { i, i -- i �Ypw:mm%air?xwKap in.^rrrnpEcafrpwEEx mow,. I _ j I i ppDlER r4R'£ CB-]ELFV�LpWE1'aF'+I[J„rt_ti { I TTNSIRVJN3 a%Lr3E'W'R fi.RFEe1.+L.iDFF]MT, '_ .._. _. 56FRr00eEPid: eialE —__ 9 3f Ep SSE te: ICJL[ EXISTING OFFSITE RIGHTS ._ I I �r I Y— IP-0305 1,6.w ;MEETMJR£EF: E 2ME 100WCtW/NCHREGrd PLI PLANS BY SAME CIVIL ENGINEER AND SURVEYOR SHOW CORRECT DRIVEWAY Oddly, the Tentative Subdivision Map TM 4.8 does NOT show the nonexistent driveway, and it shows the parking lot layout more correctly, showing the sidewalk which runs north -south and the curving city owned sidewalk in the public right of way on the east side of the driveway to the east of the Sears building. Why show it once correctly? Why have the same surveyor show the driveway configured differently on different plans? Plan set must be resubmitted with correct driveways. 116 Figure 93: Tentative Subdivision Map Vallco Town Center Existing Public and Private Easements and Boundaries - Does NOT show nonexistent driveway E.ESTATES DRIVE ••�watamar L .movr rro,Fmxw I � 4 rr ,xtwx �sr. � m ( NOT€ Y i � t tl11 MSs4 lIfOLYIS .tom 99w' d Ra 9(I/ .Y[ I[. LIYIpR lOkV N! M M£tp�[rt 4T AOYI a 1a ¢ 1Yp fors 14 z � I I � I I � a i y MATCH LINE - SEE SHEET TM4.10 TENTATIVE SUBDIVISION MAP ExiSTIND PUBLIC VALLCO TOWN CENTER TM4.8 AND PRIVATE EASEMENTS AND BOUNDARIES CUPERTINO CALIFORNIA 8t 117 Figure 94: Expanded View of TM 6.8 — (Notice the driveway is drawn correctly — see light lines, heavier lines are proposed) 118 SUBDIVISION MAP ACT GOV. CODE § 66477. QUIMBY ACT; PARK AND RECREATIONAL PURPOSES The Tentative Map indicates that parkland must be according to the census -derived multiplier used in the General Plan EIR (2.94 residents per unit) and results in a total of 21.2 acres, the park land provided in the SB 35 application is insufficient and thus the plan is not compliant with Ca. Gov. Code § 66477. (a) The legislative body of a city or county may, by ordinance, require the dedication of land or impose a requirement of the payment of fees in lieu thereof, or a combination of both, for park or recreational purposes as a condition to the approval of a tentative map or parcel map, if all of the following requirements are met: (1) The ordinance has been in effect for a period of 30 days prior to the filing of the tentative map of the subdivision or parcel map. (2) The ordinance includes definite standards for determining the proportion of a subdivision to be dedicated and the amount of any fee to be paid in lieu thereof. The amount of land dedicated or fees paid shall be based upon the residential density, which shall be determined on the basis of the approved or conditionally approved tentative map or parcel map and the average number of persons per household. There shall be a rebuttable presumption that the average number of persons per household by units in a structure is the same as that disclosed by the most recent available federal census or a census taken pursuant to Chapter 17 (commencing with Section 40200) of Part 2 of Division 3 of Title 4. However, the dedication of land, or the payment of fees, or both, shall not exceed the proportionate amount necessary to provide three acres of park area per 1, 000 persons residing within a subdivision subject to this section XVII. PROJECT APPLICATION CLAIMS CMC DOES NOT ADMINISTER BMR PROGRAM The Project does not comply with the criteria of SB 35 in that the Applicant claims the Cupertino Municipal Code would not be applicable to the administration of the BMR program, thus, without the BMR program administration the project does not comply with Gov. Code § 65913.4 (a)(4)(B)(ii). Gov. Code § 65913.4 (a)(4)(B)(ii): (ii) The locality did not submit its latest production report to the department by the time period required by Section 65400, or that production report reflects that there were fewer units of housing affordable to households making below 80 percent of the area median income that were issued building permits than were required for the regional housing needs assessment cycle for that reporting period, and the project seeking approval dedicates 50 percent of the total number of units to housing affordable to households making below 80 percent of the area median income, unless the locality has adopted a local ordinance that requires that greater than 50 percent of the units be dedicated to housing affordable to households making below 80 percent of the area median income, in which case that ordinance applies. 119 Figure 95: VTC SB 35 Application, Vallco Town Center Project Description City Standards Consistency Analysis, p. 55, PDF 80 19.172.030 BMR Program Not required. 5B 35 preempts Not applicable. Administration• a local government's A. The City Council shall adopt affordable housing ordinance rules and regulations consistent with with limited exceptions. SB 35 the provisions of this chapter and the provides that a local Housing Element for the purpose of affordable housing ordinance carrying out the administration of will apply only if the the Residential Housing Mitigation ordinance "requires that Program.. Such rules and regulations greater than 50 percent of the shall address, but are not limited to, units be dedicated to housing program eligibility requirements, affordable to households affordable housing cost, income making below 8o percent of limits, preferences for housing the area median income." applicants, minimum occupancy Because the CVs affordable limits, waiting list procedures, buyer housing ordinance requires selection procedures, methodology only 15 percent of new for the calculation of affordable residential units to be housing cost and affordable rent, dedicated as affordable, it resale restrictions and reasonable does not apply. accommodations for disable applicants. The rules and regulations shall also address Residential Housing Mitigation Program components such as the provision of rental 8MR units in for -sale housing developments or off -site BMR units. A copy of such policies, rules and regulations shall be on file and available for public examination in the office of the city clerk. B. Failure or refusal to comply with any such rules, regulations or agreements promulgated under tb i5 section shall be deemed a violation of this chapter. Cupertino's BMR Housing Mitigation Program Procedural manual, p. 7, PDF 11 states 2.3.7 Agreement between Developer and City A. Prior to recordation of a final or parcel map or issuance of any building permit, whichever is earlier, an affordable housing agreement shall be recorded against the property. The affordable housing agreement shall include, but not be limited to, the following: 1. Total number of BMR units, type, location, square footage and number of bedrooms, and construction scheduling of market -rate and BMR units; 2. Provisions to ensure concurrent construction and completion of BMR and market -rate units; 3. Affordability levels for each BMR unit; 120 4. Provisions for income certification and screening of potential occupants of BMR units; 5. Resale control mechanisms; 6. Financing of ongoing administrative and monitoring costs (City and private); XVIII. PLAN ALTERNATIVE IS A SECOND PLAN, INCOMPLETE FOR REVIEW Gov. Code § 65913.4(a): "(a) A development proponent may submit an application for a development... " Applicant may submit "an application", applicant submitted two plans: the main plan set and one referred to possibly minimally in the VTC SB 35 Development Application Project Description, Appendix B: City Standards Consistency Analysis, p. 41, PDF 66, and two pages of inserted plan sheets which show up in the Civil Plan Set as "Alternate Proposed Public Utility and Access Easements in the Civil Plans Part 1, P-0307.A, PDF 8 and also shows up in the Site Plan set as "Master Site Plan — Street Level — Alternate" found in the Site Plan set P-0202A, PDF 8. The plan set is incomplete for review, the subterranean garage under utility easement has not been contemplated and the main Project submitted also did not contemplate the utility easement included in the roadway easements at the former TGIFriday's site and the Alexander's Steak House locations. Main plan: "Master Site Plan — Street Level" in the Civil Plans Part 1, P-0307, PDF 7: Figure 96: Master Site Plan - Street Level )rttco O 'N CENTER _ y r— _=ram.. � - � .•--....: ,� � �_ r- L L l ! ! ! P-0202 121 Below is an expanded view of the "Master Site Plan — Street Level" in the Civil Plans Part 1, P-0307, PDF 7: Figure 97: Master Site Plan - Street Level, expanded view 122 The following is the alternative inserted in the plans as "Master Site Plan — Street Level — Alternate" in the Site Plan set P-0202A, PDF 8: Figure 98: Master Site Plan - Street Level - Alternate e+ieH. a.ow..n - - P-0202.A 123 Below is an expanded view of the "Master Site Plan — Street Level — Alternate" in the Site Plan set P-0202A, PDF 8: Figure 99: Master Site Plan - Street Level - Alternate, expanded view ■ 124 The following is the second sheet of the alternative plans "Alternate Proposed Public Utility and Access Easements" in the Civil Plans Part 1, P-0307.A, PDF 8: Figure 100: Alternate Proposed Public Utility and Access Easements The minimal reference to "alternatives" shows up only one place in the VTC SB 35 Development Application Project Description, Appendix B: City Standards Consistency Analysis, p. 41, PDF 66 where the Applicant provides an analysis of compliance with CMC § 18.16.050, Action of Planning Commission —Recommending Approval —Required Findings: Consistent. If approval of the Planning Commission is required, it "shall not in any way inhibit, chill, or preclude the ministerial approval provided by" SB 35 and must be based on objective standards that are uniformly verifiable by reference to an external and uniform benchmark pursuant to Gov. Code § 65913.4(a)(5), (c). Although the denial findings in 18.16.060 are subjective because they require judgment by decision -makers and thus are not applicable, none of those findings can be made: the map and the Project are consistent with the general plan; the site is physically suitable for the Project; the site is physically suitable for the Project's density (as confirmed by the General Plan); the Proposed project is not likely to cause substantial environmental damage; the Project will not cause serious public health problems; and the Project will not conflict with public easements, or if there is conflict, alternative easements will be provided that are substantially equivalent to existing easements. 125 However, the project is not compliant with CMC § 18.16.060, for the following reasons: 1. Denial findings would be based on CSH § 8320 which says that a roadway easement vacation requires a noticed, public hearing. It can not be `taken' by right. 2. The `main' project and alternative is not consistent with the General Plan. There is no accepted EIR with over 800 residential units at Vallco. 3. The General Plan has no determination that the site is suitable for the project's density (main or alternative) 4. The DEIR circulated for Vallco Specific Plan does show a multitude of significant negative impacts ABOVE those found in the General Plan EIR. 5. The project conflicts with public easements, and the alternative easements provided are NOT substantially equivalent to the existing easements because they render the project unbuildable and the project alternative plan cannot be built as shown (they cannot excavate below the road because of the underground utilities.) The plan Alternative, is a second plan and needs a second SB 35 submittal and full review. The number of SF, percentages and objective standards would all need to be submitted for review and the package is currently incomplete. While it could potentially become the basis of an effort at compliancy if the original submittal failed, the assumption that two plans are under review is not correct. Lastly, the site remains on a hazardous materials list which renders it ineligible for SB 35 ministerial streamlining. Ca. Gov. § 69513.4 (a)(6)(E). "BMR Manual." City of Cupertino Below Market Rate (BMR) Housing Mitigation Program Procedural Manual, Amended and Adopted by City Council, May 5, 2015, Resolution No. 15-037. Cupertino, 2015. <https://www.cupertino.org/home/showdocument?id=9788>. City of Cupertino. "GPA-2014 EIR." General Plan Amendment 2014 Environmental Impact Report. Cupertino, 7 October 2014. Cupertino Property Information. n.d. 4 June 2018. <http://64.165.34.13/weblink/O/edoc/3 91441 /Exhibit%20CC%2010-07- 14%201%20Draft%20EIR.pdf?searchid=5baf2925-bdeb-4f76-a575-e1 l bcc9ab7da>. De Leuw, Cather & Co. Wolfe Rd. Improvements, Construction & Paving Details 'As -Built". Cupertino, 1975. 15 June 2018. <https://www.dropbox.com/sh/cpwaenv4whea4571AACbi8yDXHgKlYigvUm5EK7Ga?dl=0&preview =ASBUILT+51 %2C075.pdf#>. "GP 2014 and Amendments 2015." Cupertino Community Vision 2040 (Dec. 4, 2014) and Amendments to Community Vision 2040 Resolution No. 15-087,October 20, 2015. Cupertino, 4 December 2014. <http://www. cupertino. org/our-city/departments/community-development/planning/general- plan/general-plan/archived-general-plans>. 126 "GP EIR." City of Cupertino General Plan Environmental Impact Report. Cupertino, 7 October 2014. <http://64.165.34.13/weblink/0/edoc/391441/Exhibit%20CC%2010-07- 14%201%20Draft%20EIR.pdf?searchid=5baf2925-bdeb-4f76-a575-e 11 bcc9ab7da>. "GP LU." Cupertino General Plan Community Vision 2015-2040, Chapter 3: Land Use and Community Character Element. Cupertino, 20 October 2015. <http://www.cupertino.org/home/showdocument?id=12729>. "GP: AppB, HE." Cupertino General Plan Community Vision 2015-2040, Appendix B: Housing Element Technical Report. 20 October 2015. <http://www.cupertino.org/home/showdocument?id=12717>. "Muni Code." City of Cupertino Municipal Code. n.d. <http://Iibrary.amlegal.com/nxt/gateway.dll/California/cupertino/cityofcupertinocaliforniamunicipalcod e?f--templates$fn=default.htm$3.0 $vid=amlegal: cupertino_ca>. "SB 35 Law." Ca. Senate Bill 35, Chapter 366, An act to amend Sections 65400 and 65582.1 of, and to add and repeal Section 65913.4 of, the Government Code, relating to housing. 29 September 2017. <https:Hleginfo.legislature.ca.gov/facesibillTextClient.xhtml?bill id=201720180SB35>. Vallco DEIR. "Draft Environmental Impact Report, Vallco Special Area Specific Plan, SCH# 2018022021." Cupertino, 24 May 2018. <http://www.cupertino.org/our-city/departments/community- development/planning/maj or -prof ects/vallco>. Vallco Fashion Park Planting Plan & Details by Wurster, Bernardi and Emmons, Inc. Architects, Sht. L-11. Cuperitno, 6 August 1975. 15 June 2018. <https://www.dropbox.com/sh/cpwaenv4whea457/AACbi8yDXHgKlYigvUm5EK7Ga?dl=0&preview =ASBUILT+51 %2C075.pdf#>. VTC SB 35 App. "Vallco Town Center SB 35 Development Application." Cupertino, 27 March 2018. <http://www.cupertino.org/home/showdocument?id=19613>. "VTC SB 35 Plan." Vallco Town Center SB 35 Development Application Architectural Drawings Part 3. Cupertino, 27 March 2018. <http://www.cupertino.org/home/showdocument?id=19621>. Wolfe Rd. Site Improvements by Sandis. Vol. https://www.dropbox.comishlcpwaenv4whea4571AACbi8yDXHgKIYigvUm5EK7Ga?dl=0&preview=l MP+52%2C388.pdf. Cupertino, 15 March 2006.15 June 2018. <https://www.dropbox. com/sh/cpwaenv4whea457/AACbi8yDXHgKIYigvUm5EK7Ga?dl=0&preview =IMP+52%2C388.pdf>. 127