CCSGI Committee - Request to put CCSGI ballot question on May 3rd Council Meeting Agenda

From: CRSZaction 
Date: Thu, Apr 28, 2016 at 8:07 PM
Subject: Request to put CCSGI ballot question on May 3rd Council Meeting Agenda
To: City Council <citycouncil@cupertino.org>
Cc: City Clerk <CityClerk@cupertino.org>, David Brandt <davidb@cupertino.org>

Dear Mayor Chang and Councilmembers,

Here is a request to put CCSGI ballot question for re-consideration on May 3rd Council Meeting Agenda. You can still amend the agenda by 4pm Friday April 29th with 72 hour notice or call a special 9 pm meeting with 24 hour notice.

The text of the Cupertino Citizens' Sensible Growth (CCSG) Initiative should be the basis of any discussion on CCSG Initiative. Once CCSG Initiative is adopted, the text will become the law, not any interpretation in the EC 9212 Report or Sand Hill’s attorney letters.

The 9212 Report made a very significant mistake since it changed the wording in Policy LU-3.0 by removing the phrase "shown in Figure LU-1" and derived the false conclusion that CCSG initiative would change building heights of Neighborhoods from 30 feet to 45 feet. The false interpretation of 9212 Report was the basis of your decision on April 5. (See the slide included below for details.)

Furthermore, the ballot question adopted does not comply with Elections Code 9051.

Elections Code 9051 states that the 75-word ballot question (namely "ballot label") "shall be a condensed version of the Ballot Title and Summary" and the City Attorney "shall give a true and impartial statement of the purpose of the measure in such language that the ballot title and summary shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure."

The 9212 Report or any attorney's interpretation of the CCSG Initiative is simply an opinion. Such an opinion has no place in the ballot question at all, since it's not a "statement of purpose" as written in the initiative text. Such an opinion belongs in the Arguments and Rebuttals section, not the ballot question.

We trust that the Council value the importance of following Elections Code and value the importance for voters to know the true intent of the CCSG Initiative, as required by the Elections Code. We hope that.

Both the City Attorney and the outside counsel Mr. Perlmutter said they don't feel comfortable with the ballot question you adopted on April 5, which states that CCSG Initiative would increase building heights. Both of them referred to Elections Code 9051when they made the recommendation against using the word "increase".

Cupertino citizens are watching. We believe that Cupertino City Council would represent the people and do the right thing. Please do not waste taxpayer money to defend the city from a potential lawsuit from residents to request the City to adopt a true and impartial ballot question, as required by Elections Code 9051. Please prove to Cupertino citizens that the Council can be trusted to make good decisions.

We urge the Council to put the ballot question of CCSG Initiative on a future City Council meeting agenda for discussion as soon as possible to relieve any distrust and confusion from the citizens. 

There is still time to amend the May 3rd regular Council meeting to add one more agenda item if you act by 4pm Friday April 29. The Council may also call a 9 pm special meeting scheduled right after May 3 regular Council meeting, as you've done for the April 5 9 pm special meeting.


Sincerely,

Committee supporting Cupertino Citizens' Sensible Growth Committee

CCSensibleGrowth.org

Paid for by Committee supporting Cupertino Citizens' Sensible Growth Initiative, PO Box 1132, Cupertino, CA 95015, FPPC# 1381645.

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The EC 9212 Report never referenced Policy LU-3.0 of the CCSG Initiative in full when discussing building heights of Neighborhoods. Therefore, it is not possible for the reader to recognize the mistake or misinterpretation when the report conveniently dropped an important restrictive subordinate clause “shown in Figure LU-1.”

Page 5 of CCSG Initiative: “Policy LU-3.0: Community Form

The maximum heights and densities for the special areas shown in the Community Form Diagram (Figure LU-1) shall not be exceeded. Outside of the Special Areas shown in Figure LU-1, building heights may not exceed 45 feet.”

Figure LU-1, as included in Page 6 of the CCSG Initiative, shows “Neighborhoods” under a list of special areas and a box showing the maximum height in the Neighborhoods as 30 feet. This Figure LU-1 comes from the most recent General Plan Amendment, adopted on Oct. 20, 2015, without any change. 

Policy LU-3.0 carefully put “shown in Figure LU-1” in both the first sentence and second sentence as a “restriction subordinate clause” so that the “special areas” referenced include Neighborhoods, according to Figure LU-1. Therefore, Neighborhoods would maintain the existing height of 30 feet under CCSG Initiative. Mr. Perlmutter, the attorney prepared EC 9212 Report, interpreted Policy LU-3.0 by removing “shown in Figure LU-1”. And they draw the description of “Special Areas” from other pages in the General Plan instead. An apparent mistake!

Here is the false argument from EC 9212 Report:

Perhaps the most significant of the Initiative’s amendments regarding standards is the provision in the proposed new Policy LU-3.0 that increases maximum building heights for the bulk of the City. Specifically, the second sentence of this Policy (on page 5 of the Initiative) provides that “[o]utside of the Special Areas shown in Figure LU-1, building heights may not exceed 45 feet.”

The only areas of the City that are “outside of the Special Areas” are the City’s Neighborhoods, which comprise approximately three-quarters of the City’s land area. Both the adopted General Plan and the City’s Zoning Ordinance establish a maximum height limit of 30 feet (or less) for the Neighborhoods. Accordingly, this provision of the Initiative increases the maximum height limit in Neighborhoods by fifty percent (50%) from 30 feet to 45 feet.

Notice that “Special Areas shown in Figure LU-1” in the first paragraph (above) is replaced by only “Special Areas” in the second paragraph. Then, the report referenced to “Special Areas” defined elsewhere to argue that Neighborhoods is not one of the Special Areas. The two letters from Sand Hill's attorneys are based on the same false interpretation and ignored Figure LU-1, which was referenced and included explicitly in the CCSG Initiative.

Policy LU-3.0 in the CCSG initiative text is very clear and precise. The policy uses the phrase “Special Areas shown in Figure LU-1”, not simply “Special Areas,” in both the first and the second sentences. Therefore, the interpretation of Policy LU-3.0 given in EC 9212 Report is false. The CCSG Initiative maintain existing building heights in all special areas, including Neighborhoods. The height of Neighborhoods is maintained at 30 feet as specified in Figure LU-1.

REFERENCE:

•  Cupertino Citizens' Sensible Growth (CCSG) Initiative text.
•  Policy LU-3.0 and Figure LU-1 from Page 5 and 6 of the CCSG Initiative.
•  EC 9212 Report for CCSG Initiative (Appendix 1 to Appendix 7 are available from March 31 Council meeting packet.)