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~ A U G U S T 2 0 1 8 ~
CUPERTINO AT THE CROSSROADS
The election: what’s at stake
Jon Willey & Liang Chao, candidates for City Council
Vallco: We need to act now
September 18 and October 2 City Council meetings are crucial
and then there's the lawsuit…
Friends of Better Cupertino vs. City of Cupertino
TAKE A BREAK AND SEE THIS:
See Battle for Brooklyn FREE this Saturday, September 8!
MORE NEWS:
Where’s our City Attorney?
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The next few months will determine the fate of our city. It sounds like hyperbole. But consider: soon we will find out what Sand Hill Property Co. really
has in mind for Vallco, and how much our City is willing to give away.
That will be determined in part by the outcome of SHP’s SB35
application, which has allowed them to seriously upsize the project.
City staff have approved the SB35 application, but Friends of Better
Cupertino sued the City (see And then there’s the lawsuit), saying that it has approved a clearly ineligible application. Whether the approval is allowed to stand is crucial, as all of SHP’s bloated plans for Vallco are based on it (see Vallco: it’s complicated, by design).
Equally important is the City Council election on November 6. Three
seats are open, with seven candidates competing. Currently, three
council members, Rod Sinks, Savita Vaidhyanathan, and Bary Chang,
consistently vote for Sand Hill Property Co. Steven Scharf is the only
council member to consistently support Sensible Growth, while Mayor
Darcy Paul, who has voted with Scharf in the past, lately seems less
reliable. Two Better Cupertino supporters, Jon Willey and Liang Chao,
are in the race, and their election can end the undue influence of big
developers on our city government. Read more in The election: what’s at stake.
Now is the time for all good Cupertinians to come to the aid of their
City. Every article in this issue has an action item. Please do what you
can! And VOTE!!
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~ E L E C T I O N M A T T E R S ~
The election: what’s at stake
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For the first time since many of us have been keeping track,
residents have an opportunity to elect fellow residents to the
Cupertino City Council who will stand up for our community in the face
of tremendous pressure to build, Build, BUILD.
Please, let’s not squander this chance to take back City Council, take back City government, for the benefit of the PEOPLE!
Liang Chao and Jon Willey
are dedicated sensible growth activists who do their homework, question
the status quo, and are determined to create a Cupertino we can all be
proud of. They need your support to do the work that must be done to
ensure a promising future for Cupertino.
Are you eligible to vote, but not yet registered at your current address? Register to vote today! Read more about Liang and Jon (below), contribute to their council campaigns, and volunteer to help them get out the vote!
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~ M E E T O U R C A N D I D A T E S ~
 Liang Chao (Ph.D.,
Princeton, 20-year Cupertino resident) has taught at the university
level in the U.S. & Germany before moving into industry for 18+
years. She co-founded
Better Cupertino in 2014 and was elected to the Cupertino School Board
in 2016. She brought positive changes to schools, including restoring
trust and replacing a superintendent. Liang volunteers in service clubs,
science & technology education for underprivileged students, and
voter education.
Liang’s message on why she’s running:
Cupertino is at a critical crossroads
Volunteer to help Liang’s campaign here:
liang4cupertinocouncil.com
campaign donation form
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 Jon Willey and
his wife Amor are the parents of three young children. He has worked at
Applied Materials for 14 years & holds a license as a Mechanical
Engineer in the State of California. He is a dedicated basketball coach
at the YMCA & National Junior Basketball Association. As a longtime
Cupertino resident, Jon is known for his strong representation of
residents’ concerns about oversized development projects to the City and
as a leader of Better Cupertino. On the City Council, Jon will protect
our quality of life by ensuring that development adheres to the law and
benefits the community.
Volunteer to help Jon’s campaign here:
jonswebsitegoeshere.com
campaign donation form
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~ T A K E A C T I O N ~
Vallco: We need to act now
Please attend these important public hearings on Vallco. Show up and speak out to demand that any votes on Vallco happen after the election in November. AND write City Council NOW. Why?
The Vallco Specific Plan alternatives are much larger than The Hills at
Vallco (Measure D) which was voted down by Cupertino citizens just two years ago.
- City Council First Public Hearing, Vallco Specific Plan • Tuesday, September 18th at 5 pm, Cupertino Community Hall, 10350 Torre Avenue
- City Council VSP Second Reading • Tuesday, October 2, time TBD
Here’s what you need to know:
- Neighbors are pursuing legal action to stop the SB35 project at Vallco. (see “Friends of Better Cupertino vs. The City of Cupertino: is this about Vallco?” below)
- The Cupertino City Council is scheduled to consider two Vallco Specific Plan (VSP) alternatives to the SB35 project.
Both VSP projects are inappropriate for our area and ignore residents’
concerns. They contain only a small percent of BMR (Below Market Rate)
housing. You can see details of the VSP projects on the City of Cupertino web site.
The
SB35 project continues to appear to be primarily a threat to increase
pressure on the council to approve one of the Vallco Specific Plans. It
is likely that the pro-development majority on the current council will
approve a VSP on October 2. Then we’ll have 30 days to collect
signatures of concerned registered Cupertino voters for a referendum,
which will stop the VSP approval process and put the decision before
voters.
What you can do:
- Write City Council and ask them to vote against the Vallco Specific Plans.
Tell them you support the lawsuit against the City for approving the SB
35 Vallco plan that actually makes the housing / jobs ratio in our city
worse.
- Attend the September 18 and October 2 City Council meetings.
- Keep an eye out for emails from Better Cupertino. We’ll let you know how to sign the petition for the referendum. If you are a registered Cupertino voter, you can sign. Anybody (over 18) can help collect signatures by circulating a referendum petition.
- Spread the word to vote for Jon Willey and Liang Chao. If the Council continues with a pro-developer majority, it will be very hard to revitalize Vallco for residents.
- Talk to your friends and neighbors.
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~ H O L D I N G T H E M A C C O U N T A B L E ~
Friends of Better Cupertino vs. City of Cupertino: is this about Vallco?
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Yes, it is. Here’s what you need to know: On March 27, Vallco Property Owner LLC sent an application to our City to develop Vallco under a new California law, SB35,
which gives developers a shortened approval process for housing
projects, as well as other concessions and benefits. In order for SB35
benefits to apply, an application must meet certain requirements. The
application is reviewed by city staff, who are supposed to make
objective judgments on whether the plan meets each and every criteria;
if it fails to meet any of the criteria, the city must deny the application. This review must occur within 90 days of receiving the application.
On June 24, Friends of Better Cupertino
petitioned the court to order the City of Cupertino to revoke its
improper approval of Vallco’s SB35 application, and to instead to deny
the application. FoBC’s petition claims that the Vallco SB35 application
fails to meet SB35 legal criteria in multiple ways, including:
- Housing is not 2/3 of project.
Under SB35, at least two-thirds (2/3) of the development must be
residential (thus the Vallco application fails to fulfill the very
criterion SB35 was meant for: more housing). Documents filed with the
petition show that the developer attempts to make the application appear to consist of 2/3 housing by counting garage space for housing, but not for commercial/office areas. There are as also other substantive irregularities.
- The Vallco site is on the statewide listing of hazardous waste sites. SB35 requires that a site not
be on the list. The Vallco site has been found to be contaminated by
earlier uses as a gas station and a vehicle repair facility, and the
site does appear on the statewide listing, indicating a complicated environmental history.
- The application doesn’t meet parkland requirements.
Residential projects are required to include three acres of parkland
per 1,000 residents. The developer has not done so, and tries to argue
that its “green roof” amounts to parkland.
Any
one of these issues should be fatal to the legal viability of the
project, but Cupertino city staff has shown little appetite for
reviewing the application based on the actual legal criteria. Besides
those listed above, there are a number of other issues that can be used
to challenge the city’s approval of the application (e.g, the site lacks
necessary easements for traffic).
What happens next?
In September, FoBC will file an amended petition with updated
documentation showing how the Vallco SB35 application fails to meet the
legal criteria. Because this type of lawsuit relies in large part on
written briefs and affidavits rather than oral court hearings with live
witnesses, the hearing could then occur in a matter of weeks.
It is important to note that since SB35 is a new law, there are no
precedents for challenges. But there is a well-developed body of law for
challenging clerical (as opposed to discretionary) determinations by
cities and other public entities in all sorts of situations.
Find out how to support Friends of Better Cupertino in this ground-breaking legal action here.
SB35:
Signed into law on September 29, 2017, SB35 is a state law that changed
the local review process for certain development projects by
establishing a streamlined, ministerial review and approval process if
they meet objective planning standards.
Friends of Better Cupertino (FoBC) is a nonprofit, non-campaign organization set up by Better Cupertino supporters to further the BC mission)
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~ N E W S ~
What happened to our City Attorney? Why?
 Cupertino’s
City Attorney, Randolph Hom, has not been seen since before the May 15
City Council meeting. The City has not given any explanation for this,
though they have held three closed sessions on his employment, with no
action on the matter reported to the public. Residents have written
letters to the City, and asked about it at Council meetings, to no
avail.
Timeline:
- May 11:
first closed session held on “Performance Evaluation: City Attorney”
and “Employee Discipline/Dismissal.” Four residents, all well-known Sand
Hill Property Co. supporters, wrote City Council, and two residents
spoke in favor of firing the city attorney. One resident’s letter stated
“Now that there has been an SB 35 application filed with the city, I'm
concerned that Randy Hom’s approach will result in lawsuits on a much
larger scale…”
- May 15: City Attorney Randy Hom is absent from the City Council meeting; Assistant City Attorney Rocio Fierro attended in his place.
- May 23:
second closed session for “Performance Evaluation: City Attorney” and
“Employee Discipline/Dismissal.” “Mayor Paul noted that no action was
taken on either item.” (from the approved minutes)
- June 4: Acting City Attorney Rocio Fierro attends City Council meeting in Hom’s place again.
- June 5:
third closed session for “Performance Evaluation: City Attorney” and
“Employee Discipline/Dismissal.” “Mayor Paul noted that no action was
taken on either item.” (from the approved minutes)
- August 21:
Minutes from the May 15 City Council meeting, including the May 11
closed session, are finally approved (on the third attempt). For the
first time, Asst. City Attorney Rocio’s name appears as “Acting City
Attorney” on the agenda (even though she has appear on the dais since
May 15).
Here is what we know: (1) The City Attorney did not resign (otherwise, the City would have announced it as required by law, and started searching for a new city attorney); (2) The City Attorney was not fired
(otherwise, the City Council would have had to disclose their action
and who voted for it in the closed session, as required by law; (3) The City Attorney didn’t do anything wrong (otherwise, the City Council would have fired him for cause).
How much is the shelving, sidestepping, silencing or suspending of the City Attorney costing us? (1)
He is still employed by the City with a likely full salary of $21k a
month plus benefits ($63k and counting); (2) the City has to employ
outside legal counsel to handle his workload. (3) the City has to employ
other outside legal counsel to advise them on the matter of the City Attorney; and (4) if the city does let go of the City Attorney eventually, he will get nine months severance pay.
Questions:
1. What triggered the closed sessions about the City Attorney?
2. How did the pro-SHP residents know about the first closed session enough in advance to write letters and speak at the meeting? Why do they
want the City Attorney fired? When asked, Mayor Paul and Council Member
Steven Scharf both expressed their satisfaction with the city
attorney’s performance, and said they cannot talk about what happened in
the closed sessions. City Attorney Hom is known to have tightened up
city contracts to better protect the city’s interests.
3. Could this mystery be related to Hom’s handling of SHP’s SB35 application?
The law:
Gov. Code
54953(c)(2) states that “The legislative body of a local agency shall
publicly report any action taken and the vote or abstention on that
action of each member present for the action.”
Gov. Code 54953 (c) (1) No legislative body shall take action by secret
ballot, whether preliminary or final. (2) The legislative body of a
local agency shall publicly report any action taken and the vote or
abstention on that action of each member present for the action. Nowhere
does Gov. Code 54953 state that the City Council only needs to report
“the final action.” The code does states “any action taken,” which
refers to “any preliminary or final action.”
Analysis:
As of press time, the City has still not offered any explanation. But
one has to wonder if the City Attorney will miraculously reappear after
crucial matters on Vallco have been decided. The four pro-Vallco
developer residents’ foreknowledge of the May 11 special closed session,
where the city attorney’s fate was first discussed, seems to suggest a
smoking gun. Time will tell, if the City won’t.
REFERENCES
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