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