Planning Commission Chair calls on city to rescind SB 35 approval of Vallco

Photo courtesy of City of Cupertino Facebook page.Photo courtesy of City of Cupertino Facebook page.

Chairman Wang calls potential $24 million in fines and legal liability a “small price to pay” in fight against Vallco

The Cupertino City Planning Commission spent two and a half hours Tuesday night discussing the recent report that gave Vallco’s soil a clean bill of health.

The prolonged debate, which became heated at times, included input from the Santa Clara County Fire Department that conditions at the Vallco site are normal and typical, seeming to corroborate the WSP USA report from late last week.

In one exchange, Planning Commission Chairman R “Ray” Wang started to propose a motion that would have recommended the City Council re-review the SB 35 approval process.

Assistant City Attorney Seph Petta noted that, if the city followed that recommendation and issued a moratorium on demolition or building permits that the SB 35 requires be issued, the “city could be subjecting itself to high litigation risk.”

In response, Chairman Wang called that risk a “small price to pay” despite the potential exposure of taxpayer funds.

Commissioner David Fung stated that the Housing Accountability Act has a minimum penalty, in addition to the potential litigation damages, of $10,000 per unit, which the city’s taxpayers could be on the hook for should it fail to meet the SB 35 process obligations.

That would amount to at least $24 million given the number of units proposed at the Vallco site.

Chairman Wang, due to the lack of support from other commissioners, decided against moving forward with that series of motions that would have recommend to the City Council that they rescind the Vallco project’s approvals.

Instead, he proposed a motion recommending two things: that the City Council review the analysis recently completed by WSP USA, and that the city review if it is able to conduct its own site analysis. That analysis would be done using taxpayer funds. The compromise motion passed 4-0.

Approval for redevelopment of the Vallco Town Center site, which is slated to include more than 2,400 residential units with 1,200 at affordable levels, was done under an SB 35 process, which required the site characterization report submitted by WSP USA. That report was also peer reviewed by the environmental consulting firm that completed the Apple Park analysis.

The Planning Commission moved forward with Tuesday evening’s discussion of the report despite city staff not having had enough time to review or engage their consultant’s assistance to review the 1,234-page report.

Tuesday’s resolution, if agreed to by the City Council, could bring about an additional city-funded review and would likely result in the delay of the issuance of demolition permits.

Commissioner Kitty Moore recused herself from the discussion because she is actively involved in litigation opposed to the Vallco Town Center project.

During a related portion of the debate, Commissioner Alan Takahashi and Vice Chairman Vikram Saxena discussed the need for a better notification process to Cupertino residents from Sand Hill Property Company, which is developing the Vallco site. Saxsena noted the “need to restore the trust in the process” particularly around notifications to residents in the area surrounding Vallco during demolition and construction.

12 Comments on "Planning Commission Chair calls on city to rescind SB 35 approval of Vallco"

  1. Fun fact: Under the California Housing Accountability Act, the penalties are quintupled, to $50,000 per unit. That means not 24 million dollars, but 120 million dollars. And I’m pretty sure that money is already earmarked to Mayor Scharf’s wall.

  2. Dave Roberts | April 25, 2019 at 2:26 pm | Reply

    If the city staff failed to review the report before this meeting, the planning department head should be terminated. A potential $24 million fine should have called for some serious overtime.

  3. The chair of the planning commission, R Wang, was responsible for placing the item on the agenda before staff had time to review the report. In any case, the agenda item was out of scope of the commission. The city attorney kept reminding the chair that there is fire a lawsuit pending.

  4. This was an overt attempt at obstruction of a Ministerially approved project. Even a delay in issuing permits places the city at risk of substantial penalties.

  5. Watch the meeting here: https://youtu.be/omXee9M03KQ

  6. Hello.

    Always great to get discussion from the community.

    The planning commission meeting on April 24th had a number of agenda items that addressed procedural issues related to the health, safety, and welfare of Cupertino and also provided a discussion forum on the trust and transparency of the process related to the Vallco approval.

    As Gary Jones notes, SB35 legislation can be ministerially approved. However, as the law is written, the Planning Commission and City Council MAY also weigh in on the proposal. So, the result is staff can make the final decision, but nothing in the law says the planning commission and council CAN NOT or SHOULD NOT weigh in on the discussion and make their concerns known before ministerial approval as input to the staff. This sadly was not done in the Vallco case. In fact, both the previous Planning Commission and City Council either ceded their ability to review OR was given bad advice by the legal team and staff on this issue. As a city, we should NEVER cede this ability to review for health, safety, transportation, environment, and other impacts again!

    In the case of the specific SB35 Vallco proposal, this would not have been possible given how late the submission was made. Residents, City Staff, Planning Commission, and City Council only had days to review or comment before the 180 day deadline. If intentional, a very smart tactic by supporters for the SB35 proposal

    What was also alarming as we discovered, demolition permits were issued and neighbors were not notified. Instead, poor Cupertino neighbors woke up to loud sounds, traumatic experiences, and potentially toxic dust while Vallco advocates celebrated with joy amidst ribbon cutting ceremonies, politicians, and adult beverages. The Planning Commission made note to the department that this should never happen again. Residents should be notified as part of the demolition process.

    Richard Mehlinger’s points on fines is interesting. While he is technically correct, the question our community must ask, “what fines will the developer incur if the SB35 application is invalidated due to the fact that

    1. known hazardous materials were on the site
    2. the developer was aware of this based on their request for soil testing efforts in 2016
    3. yet an SB35 application was submitted with this knowledge of a listed hazardous site

    From the bill text
    SEC. 3. Section 65913.4 is added to the Government Code, to read:
    65913.4
    (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.

    What we may have, I stress may have, is a situation where an application was submitted for SB35 that should have been procedurally disqualified from the beginning. One would expect that an interpretation of SB35 would recognize that subsequent actions such as any approvals should be invalidated if this is true including demolition, permits, and draft subdivision map plans.

    Can a community level a fine for potential fraud in an SB35 submission? That will be a question that we will have to await from the courts.

    Personally, I welcome smart and sustainable development efforts in Cupertino to help with the Housing Crisis that follow procedure and do not attempt to circumvent the process. In order to re-establish trust among residents, the planning commission, and city staff, the agenda items were necessary to start this dialogue and establish how we move forward as other housing bill from Sacramento impact land use decisions for our residents. The intent is not to impede the developer. The intent is to ensure trust and transparency in the process.

    Speaking only for myself as a Cupertino City resident. Curious to your input and opinions. Always open to hear your point of view.

    R “Ray” Wang

    • The planning commission chair person should read SB35 before calling a meeting on an issue that the planning commission has no ability to take any action on.

      Ray’s comments clearly indicate that he does not understand the law or city planning.

  7. Remarkable that the “Better Cupertino” controlled elements of the city council hate the idea of building housing so much that they’re willing to jeopardize taxpayer funds running into possibly 9 figures.

  8. Thank you Mr. Wang for continuing to consider the safety and security for the citizens of Cupertino. Unfortunately past dereliction of duty in this regard has created a lack of trust in the process. Most of us do want more housing but do not want to be bullied into accepting the unsafe and intolerable. Once the concrete is poured these issues are much harder to rectify.

  9. New name for Better Cupertino: Bankrupted Cupertino. Over $100,000,000 in fines? Incredibly irresponsible governance.

  10. The soil got a clean bill of health.

    Real estate millionaires are distraught that affordable housing is coming to Cupertino. Knock knock, guess who is coming to dinner? You childrens’ teachers, emergency personnel, city employees, and service workers. Yes, they will get to live in the same city now.

    The anti-affordable housing city council majority appointed political donors and litigants against the city to the planning commission, all without any experience in city planning. They are still trying to build Mayor Scharf’s wall. This time, the city of Cupertino will have to pay for it.

  11. Will a $15.00 an hour employee be able to afford an “affordable housing” unit, and does a person need to meet qualifications and get on a waiting list? Is this housing reserved for certain people?

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