CC Resolution No. 20-108 Approving Use Permit, Mixed-Use Development, Licensed Assisted Living Memory Care Residences, 21267 Stevens Creek Boulevard
RESOLUTION NO. 20‐108
A RESOLUTION OF THE CUPERTINO CITY COUNCIL
APPROVING A USE PERMIT TO ALLOW A MIXED USE
DEVELOPMENT ON A PRIORITY HOUSING SITE THAT EXCEEDS
THE NUMBER OF RESIDENTIAL UNITS DESIGNATED FOR THAT
PRIORITY HOUSING SITE AS WELL AS ALLOWING MEMORY
CARE UNITS WITHIN A PORTION OF A SENIOR HOUSING
FACILITY LOCATED AT 21267 STEVENS CREEK BOULEVARD
(APN: 326‐27‐042, ‐043)
SECTION I: PROJECT DESCRIPTION
Application No.: U‐2019‐03
Applicant: KT Urban (Mark Tersini)
Property Owner: 190 West St. James, LLC
Location: 21267 Stevens Creek Blvd. (APN #326‐27‐042, ‐043)
SECTION II: FINDINGS FOR A USE PERMIT:
WHEREAS, the City of Cupertino received an application for a Use Permit as described
in Section I of this resolution; and
WHEREAS, The Westport Cupertino Mixed‐Use Project (“Project”), including the Use
Permit, is fully described and analyzed in the Initial Study and proposed Final
Environmental Impact Report (State Clearinghouse No. 2019070377) (“EIR” or “Final
EIR”) for the Project; and
WHEREAS, the City of Cupertino’s Environmental Review Committee at its April 16,
2020 meeting reviewed the Final EIR consisting of the April 7, 2020 Public Review Draft
EIR and Response to Comments, received public comments, and voted 5‐0 to recommend
that the City Council certify the EIR for the Project; and
WHEREAS, based on substantial evidence in the record, on May 12, 2020, the Planning
Commission recommended on a 5‐0 vote that the City Council certify that the EIR has
been completed in compliance with the California Environmental Quality Act, Public
Resources Code Section 21000 et seq. (“CEQA”) and reflects the independent judgment
and analysis of the City, adopt Findings, adopt and require as conditions of approval all
of the mitigation measures for the Project which are within the responsibility and
jurisdiction of the City that are identified in the EIR, and adopt the Mitigation Monitoring
and Reporting Program for the Project (EA‐2018‐04); and
Resolution No. 20‐108
Page 2
WHEREAS, on May 12, 2020 the Planning Commission recommended on a 5‐0 vote that
the City Council approve the Vesting Tentative Map (TM‐2018‐03), in substantially
similar form to the Resolution presented (Resolution No. 6904), approve the
Development Permit (DP‐2018‐05) in substantially similar form to the Resolution
presented (Resolution No. 6901), approve the Architectural and Site Approval Permit
(ASA‐2018‐05) in substantially similar form to the Resolution presented(Resolution No.
6902), approve the Use Permit (U‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6903), approve the Tree Removal Permit (TR‐2018‐22) in
substantially similar form to the Resolution presented (Resolution No. 6906), approve the
Heart of the City Exception (EXC‐2019‐03) in substantially similar form to the Resolution
presented (Resolution No. 6905) for the Senior Enhanced Alternative; and
WHEREAS, on June 4, 2020, as updated on June 25 and 26, 2020, the applicant submitted
and requested the City to consider revisions to the Project (“Revised Senior Enhanced
Project”) that include relocating nine Below Market Rate (“BMR”) units from Building 1
to an additional top story on Building 2, altering the unit mix in Buildings 1 and 2 to
provide additional space for terraces on the tops of those buildings, and changing the
unit mix in Buildings 2 to include two‐bedroom units in addition to sudios and one‐
bedroom units; and
WHEREAS, because the revisions in the Project affect building height and dispersion of
BMR units, the Revised Senior Enhanced Project was reviewed by the Planning
Commission on July 14, 2020 for recommendation to the City Council; and
WHEREAS, on July 14, 2020, the Planning Commission recommended on a 3‐2 vote that
the City Council deny the project in accordance with Resolution No. 6908; and
WHEREAS, on July 31, 2020, the applicant submitted a request for an
incentive/concession to consolidate all 48 of the senior BMR units in Building 2; and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Commission held at least one public hearing in regard to this application, and on August
18, 2020, the City Council held a public hearing to consider the Architectural and Site
Approval; and
WHEREAS, all necessary public notices having been given as required by the Procedural
Ordinance of the City of Cupertino and the Government Code, and the Planning
Commission held at least one public hearing in regard to this application, and on August
18, 2020, the City Council held a public hearing to consider the Heart of the City
Exception; and
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WHEREAS, the City Council of the City of Cupertino is the decision‐making body for
this Resolution; and
WHEREAS, on August 18, 2020, after consideration of substantial evidence contained in
the entire administrative record, and prior to consideration of the Vesting tentative Map,
the City Council adopted Resolution No. 20‐105 certifying the EIR, , adopting and
requiring as conditions of approval all of the mitigation measures for the Project which
are within the responsibility and jurisdiction of the City that are identified in the EIR, and
adopting the Mitigation Monitoring and Reporting Program for the Project; and
WHEREAS, the applicant has met the burden of proof required to support the application
for a Use Permit; and
WHEREAS, the City Council finds as follows with regard to this application:
a) The proposed development, at the proposed location, will not be detrimental or
injurious to property or improvements in the vicinity, and will not be detrimental to
the public health, safety, general welfare, or convenience;
With the conditions of approval, approved Specific Plan exception, and approved density
bonus, parking reduction, waivers, and incentive/concession, the project is consistent with the
densities and land uses as allowed in the General Plan, Zoning Ordinance, and Heart of the
City Specific Plan, and the project will not be detrimental or injurious to property or
improvements in the vicinity, and will not be detrimental to the public health, safety, general
welfare, or convenience. The EIR also concludes that, with mitigation, the Project will have no
significant environmental impacts.
b) The proposed development will be located and conducted in a manner in accord with
the Cupertino General Plan and the purpose of the City’s zoning ordinances.
With the conditions of approval, approved Specific Plan exception, and the approved density
bonus, parking reduction, and waivers the proposed development is in conformance with the
Cupertino General Plan, Municipal Code, and Heart of the City Specific Plan Requirements.
The Project is also consistent with the existing land use designations (Commercial,
Residential), Municipal Code and with other code requirements as demonstrated in the staff
report.. Further, memory care facilities and similar residential care uses are ancillary to senior
housing developments as evident by similar developments in the City such as The Forum and
Sunnyview.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter and the EIR and the Mitigation Monitoring and Reporting
Program for the Project (EA‐2018‐04), subject to the conditions which are enumerated in
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this Resolution beginning on PAGE 2 thereof, and those contained in all other Resolutions
approved for this Project,
The application for a Use Permit, Application No. U‐2019‐03, is hereby approved, and
that the subconclusions upon which the findings and conditions specified in this
Resolution are based are contained in the Public Hearing record concerning Application
no. U‐2019‐03 as set forth in the Minutes of the City Council Meeting of August 18, 2020
Meeting, and are incorporated by reference as though fully set forth herein.
SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1. APPROVED EXHIBITS
Approval is based on the plan set dated June 4, 2020, as updated June 25, 2020,
consisting of 39 sheets labeled as Westport Cupertino, G200 – G213, A001‐A222, VTM‐
1‐VTM‐6, and L100‐L300, drawn by C2K, and Kimley Horn except as may be
amended by conditions in this resolution.
2. ACCURACY OF PROJECT PLANS
The applicant/property owner is responsible to verify all pertinent property data
including but not limited to property boundary locations, building setbacks, property
size, building square footage, any relevant easements and/or construction records.
Any misrepresentation of any property data may invalidate this approval and may
require additional review, including any misrepresentation related to the note on the
Vesting Tentative Map that the Townhouse/Rowhouse units will be for‐sale.
3. CONCURRENT APPROVAL CONDITIONS
The conditions of approval contained in file nos. TR‐2018‐22, EXC‐2019‐03, TM‐2018‐
03, ASA‐2018‐05, DP‐2018‐05 and EA‐2018‐04 shall applicable to this approval.
4. ANNOTATION OF THE CONDITIONS OF APPROVAL
The conditions of approval set forth shall be incorporated into and annotated on the
first page of the building plans.
5. RESIDENTIAL CARE FACILITY
The memory care facility shall remain in operation in accordance with the City of
Cupertino’s Municipal Code land use restrictions for the Residential Care Use Class,
including but limited any required State and County licensing for its operation.
6. USE APPROVAL AND PROJECT AMENDMENTS
Approval is hereby granted to allow a residential density above the allocation for a
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Priority Housing Site and for a memory care unit in Building 1 as labeled on the
project plans. The Planning Commission shall review amendments to the project
considered major by the Director of Community Development.
7. CONSULTATION WITH OTHER DEPARTMENTS
The applicant is responsible to consult with other departments and/or agencies with
regard to the proposed project for additional conditions and requirements. Any
misrepresentation of any submitted data may invalidate an approval by the
Community Development Department.
8. INDEMNIFICATION
To the fullest extent permitted by law, the applicant shall agree to indemnify, defend
with the attorneys of the City’s choice, and hold harmless the City, its City Council,
and its officers, employees, and agents (collectively, the “indemnified parties”) from
and against any liability, claim, action, cause of action, suit, damages, judgment, lien,
levy, or proceeding (collectively referred to as “proceeding”) brought by a third party
against one or more of the indemnified parties or one or more of the indemnified
parties and the applicant related to any Ordinance, Resolution, or action approving
the project, the related entitlements, environmental review documents, finding or
determinations, or any other permit or approval authorized for the project. The
indemnification shall include but not be limited to damages, fees, and costs awarded
against the City, if any, and cost of suit, attorneys’ fees, and other costs, liabilities, and
expenses incurred in connection with such proceeding whether incurred by the
Applicant, the City, or the parties initiating or bringing such proceeding.
The applicant shall agree to (without limitation) reimburse the City its actual
attorneys’ fees and costs incurred in defense of the litigation. Such attorneys’ fees and
costs shall include amounts paid to the City’s outside counsel and shall include City
Attorney time and overhead costs and other City staff overhead costs and any costs
directly related to the litigation reasonably incurred by City. The applicant shall
likewise agree to indemnify, defend, and hold harmless the indemnified parties from
and against any damages, attorneys’ fees, or costs awards, including attorneys’ fees
awarded under Code of Civil Procedure section 1021.5, assessed or awarded against
the indemnified parties. The Applicant shall cooperate with the City to enter a
Reimbursement Agreement to govern any such reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment) if made necessary by
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proceedings challenging the project approvals and related environmental review, if
the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
9. NOTICE OF FEES, DEDICATIONS, RESERVATIONS, OR OTHER EXACTIONS
The Conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 18th day of August, 2020, by the following vote:
Vote Members of the City Council
AYES: Scharf, Paul, Chao, Sinks, Willey
NOES: None
ABSENT: None
ABSTAIN: None
SIGNED:
___________________ ________
Steven Scharf, Mayor
City of Cupertino
_________________________
Date
ATTEST:
_________________________________
Kirsten Squarcia, City Clerk
_________________________
Date
8/28/2020
8/28/2020