Randy - Vallco Initiative and Community Facilities Districts

From: Randy Shingai
Date: Sun, May 29, 2016 at 9:32 AM
Subject: Vallco Initiative and Community Facilities Districts.
To: City Attorney's Office <CityAttorney@cupertino.org>, City Council <citycouncil@cupertino.org>, David Brandt <Davidb@cupertino.org>

Dear City Manager, City Attorney, and City Council.

Section 9.7 of the Vallco Initiative (on page C-207)  states that the developer will make use of one or more "Community Facilities Districts", or CFDs, to secure financing.  CFDs are made possible by the Mello-Roos Act, that was created to finance public works.  My understanding of the Initiative text is that the developer plans to use provisions of Mello-Roos to obtain tax-exempt financing for the "green roof" and more.  This seems to be a gross perversion of the intent of Mello-Roos, but I will leave that for another time.

I asking that the following be covered in the 9212 Report for the Vallco Initiative.

1. Is the City required to create one or more CFDs as specified by the Vallco Initiative if the initiative passes?

2. Who pays for the formation of these CFDs?

3, Once created, how much control will the City be able to exert over these CFDs?

4. How much control will the City be able to exert over the terms of financing that these CFDs utilize?

• What about recourse in the event of default.  What is the exposure to the City?
• A quick scan of the assessed values for parcels in the Vallco Plan Area have parcels with an assessed value of anywhere from $80 to $78 million.  Since special taxes levied by CFDs cannot be "ad valorem", there could easily be situations where the taxes levied on a parcel could exceed its market value.  I have read estimates that the "green roof" will cost as much as $300 million, so the special taxes levied will be significant.  How can this be mitigated?
• What about future parcelization that the Initiative says is likely (See C-199)?  How will affect the distribution of special taxes assigned to individual parcels.  If parcels are dedicated to the City, will that affect the distribution of special taxes levied to remaining privately owned parcels?

Thanks for your consideration,

Randy Shingai

From: Randy Shingai <randyshingai@gmail.com>
Date: Mon, May 30, 2016 at 1:04 PM
Subject: Re: Vallco Initiative and Community Facilities Districts.
To: City Attorney's Office <CityAttorney@cupertino.org>, City Council <citycouncil@cupertino.org>, David Brandt <Davidb@cupertino.org>

The State Treasurer keeps a list of troubled Mello-Roos Community Facilities Districts.  These include districts that have either defaulted or are nearing default.

http://www.treasurer.ca.gov/cdiac/default-draw/issuename.asp

I would like the 9212 Report to have an analysis on on the default risks and the alternatives for structuring debt and debt service to minimize that risk for the Vallco Initiative's plan for the use of Community Facilities District.

I would also like a characterization of the exposure to the City of Cupertino  for a default of the Community Facilities District(s) that the Vallco Initiative plans to use to finance Vallco.

Thank you,

Randy Shingai

Liang - EC 9212 Report for Vallco Initiative - which benefits are locked in and who pays for them?

From: Liang C
Date: Sun, May 8, 2016 at 12:37 PM
Subject: EC 9212 Report for Vallco Initiative - which benefits are locked in and who pays for them?
To: City Council <citycouncil@cupertino.org>, City Clerk <CityClerk@cupertino.org>

Dear City Council,

The Vallco flyers or website boast “unprecedented community benefits” to Cupertino. However, in the text of Sand Hill’s Vallco office park initiative (a.k.a. Vallco Town Center Specific Plan Initiative), these benefits are NOT locked in at all as the flyers led us to believe.

Look deep into the Vallco Initiative and you’ll discover the deceptive not-locked-in benefits include, but not limited to, free shuttles, vineyard, amphitheater, pedestrian trails, children’s play areas, refuge for native species of plants and birds, a 1000-seat banquet hall, performance venues, high school innovation center, or a new elementary school.

Below is just a partial list of commonly mentioned benefits that are NOT locked in by the Vallco Initiative, as RevitalizeVallco.com might imply. Sand Hill won't be required to provide any of these benefits.

• "will spearhead": free shuttles.
• "may include": pedestrian trails, a playground, vineyards, orchards, organic gardens, an amphitheater, pavilion buildings, community hub, student union and a nature area. A refuge for native species of plants and birds.
• "may include": a general purpose community hub, an approximately 1,000 seat banquet hall, and a 300-seat outdoor amphitheater.
• "strongly encouraged": 10,000 high school innovation center. 700-student elementary school on 3.5 acre Nan Alan site.

The EC 9212 Report should look into all community benefits promised in Chapter 3 of the Vallco Initiative to identify which ones are legally enforceable and to what extent? Also, which ones are just best-effort items? Which ones will be paid for in full by the project applicant? Which ones will be paid for by future tenants or shared by future property owners in Vallco? Whose responsibility to maintain the public accessible "free" benefits and the safety of these facilities, including security guards? Future property owners of Vallco?

The Vallco Initiative intends to parcelize Vallco, so the many buildings of Vallco will eventually have multiple owners. Despite what Sand Hill promises at open houses, they normally only keep office buildings or hotels and sell off retail and residential buildings. The burden of maintenance will be upon the new owners or eventually the City. What's the cost of maintaining the 30-acre living rooftop and all the features promised, vineyards, playground, banquet hall, etc.?

Page 226 and 227 touches a bit about possible financing options for 30-acre rooftop park, trails, and traffic improvement. One of the funding source is "community facility district":

While a variety of financing techniques are available, Specific Plan
development components will be installed or constructed using private
financing for the great majority of the development costs. Certain
elements of the improvements, however, may use assessments or
community facility district mechanisms. If used to fund improvements, the
assessment or community facility district will only apply to the Plan Area
and only be assessed against the property owner, tenants, or occupants
thereof.

 

If future tenants and property owners do not reach an agreement to fund improvements and maintenance of 30-acre rooftop park, trails, and traffic improvement, does that mean some of the community benefits promised won't get implemented or won't get maintained? Would the future tenants and property owners who will pay for the "community benefits" be able to not allow the public "free" access or charge an entrance fee later? Would the City be forced to pay for the maintenance or even improvement promised by Sand Hill?

EC 9212 Report should look into worse case scenario, as it did for CCSG Initiative, when evaluating the Vallco Initiative.

----------------------------

The RevitalizeVallco.com website states "In order to eliminate any doubt as to whether Cupertino residents can count on these benefit promises, they have been written into the Vallco Town Center Specific Plan Initiative. This means that upon approval by Cupertino voters, these community benefits will become law and a legal mandate of the redevelopment, an obligation on any future developer." Is is true? Will the community benefits listed on that site become law?

Below is just a partial list of commonly mentioned benefits that are NOT locked in by the Vallco Initiative, as RevitalizeVallco.com might imply. Sand Hill won't be required to provide any of these benefits.

• "will spearhead": free shuttles.
• "may include": pedestrian trails, a playground, vineyards, orchards, organic gardens, an amphitheater, pavilion buildings, community hub, student union and a nature area. A refuge for native species of plants and birds.
• "may include": a general purpose community hub, an approximately 1,000 seat banquet hall, and a 300-seat outdoor amphitheater.
• "strongly encouraged": 10,000 high school innovation center. 700-student elementary school on 3.5 acre Nan Alan site.

In the Vallco Specific Plan, as in the General Plan, only provisions specified with “shall” are potentially enforceable. Any other provisions specified with “will”, “should”, “may”, or “encourage” are optional and not enforceable at all. Any general descriptions in the introduction or executive summary are not binding either.

Listed below are just a few of such deceptive not-locked-in benefits we’ve looked up in the initiative text.

• Sand Hill won’t provide free shuttles as voters were led to believe by Sand Hill’s paid circulators or supporters. Sand Hill will only make an attempt, but free shuttles may or may not be provided.
• [Truth] The Vallco Initiative states “Require that a project applicant spearhead and provide substantial funding for a community effort to provide a free community shuttle, in partnership with the City, VTA, local school districts, property owners, and/or corporate employers. [Section 3.6, p. 3-4, Vallco Initiative]

• Vineyard, amphitheater and other features on green roof “may be included”, but may be not. So, they are not promised or locked in at all.
• [Half-Truth] Sand Hill’s PR article states the green roof provides “vineyards, orchards and organic gardens, amphitheater, children’s play areas and a refuge for native species of plants and birds.”
• [Truth] The Vallco Initiative states “Amenities [of the landscaped roof] may include pedestrian trails, a playground, vineyards, orchards, organic gardens, an amphitheater, pavilion buildings, community hub, student union and a nature area.” [Section 2.4.5, p. 2-35, Vallco Initiative]

• Banquet hall, performance venues and other features on green roof “may be included”, but may be not. So, they are not promised or locked in at all.
• [Half-Truth] Sand Hill’s flyer states “Free space for non-profits and civic organizations, a banquet hall, performance venues, and a community center.”
• [Truth] The Vallco Initiative states “Multiple pavilions will be located in the [rooftop park]. Community benefit uses may include a general purpose community hub, an approximately 1,000 seat banquet hall, and a 300-seat outdoor amphitheater.” [Section 2.4.5, p. 2-35, Vallco Initiative]

• For benefits to schools, the Letter of Intent signed with CUSD and FUHSD are non-binding as the Superintendents admit. Although Sand Hill may provide things “valued at” approximately $40 million, these things may or may not actually worth $40 million in reality.
• [Half-Truth] Sand Hill’s flyer states “Supplementary benefits to schools of approximately $40 million for things like a new elementary school and a high school innovation center;”
• [Truth] The Vallco Initative states “[For FUHSD] the following are strongly encouraged: Construction and 34-year charitable lease of a new 10,000 square foot, turn-key High School science and engineering Innovation Center…[For CUSD] Examples of such enrollment capacity benefits could include: A new 700 student elementary school at the former Nan Allan Elementary School site;..” [Section 3.3, p. 3-3, Vallco Initiative]

On the other hand, Sand Hill will get the following benefits from the Vallco Specific Plan Initiative and these are locked in as law:

The RevitalizeVallco.com website states "In order to eliminate any doubt as to whether Cupertino residents can count on these benefit promises, they have been written into the Vallco Town Center Specific Plan Initiative. This means that upon approval by Cupertino voters, these community benefits will become law and a legal mandate of the redevelopment, an obligation on any future developer." This is not true. The community benefits listed on that site won't become law.

• No need to provide 7-acre of ground-level parkland as required under Quimby Act, due to the promise of "maybe" roof top "park", where visitors can only stay on concrete trails.
• Quimby Act: 3 acres of parkland per 1000 people, which is already lower than the common requirement of 5-acre per 1000 people.)
• A reduction on parking space requirements due to the promise of the "maybe" free shuttles.
• With the approval of just one staff member, the number of housing units can be increased up to the maximum available in the General Plan. Thus, Vallco project could use up all residential allocation with only staff approval.
• No need to follow regulations in Cupertino Municipal Code, since Vallco is designated as its own special zoning area.
• "As envisioned by the General Plan, a zoning district entitled the "Vallco Town Center Specific Plan" district (VTCSP) is established." [Page 6, Vallco Initiative]
• No development agreement is required.
• "Consistent with state law, a Development Agreement between a legal or equitable owner or applicant and the City of Cupertino may also be entered into, but is not a required entitlement." [Section 9.3, Page 9-3, Vallco Initiative]
• Demolition of Vallco Shopping Center can start as soon as the Vallco Initiative is adopted by the Council or approved by the voters.
• "It is the intent of this Specific Plan that demolition, excavation, grading, site work and then construction will commence upon voter approval." [Section 9.6.1, Page 9-9, Vallco Initiative]

Last, but not least, the 2 million square feet of office space allocation will be locked into Vallco Specific Plan. The following impact will become reality, not maybe.

• The massive office park will house 10,000 workers (200 square feet of office space per worker).
• Daily commute traffic for 10,000 workers will be added to Cupertino, which has only about 20,000 households, on top of 14,000 workers going to Apple Campus 2.
• The demand of 6,666 housing units (one housing unit per 1.5 worker according to ABAG) will drive up housing prices and generate more state-mandated requirements to build more housing units, on top of the demand of 9,333 housing units.

REFERENCE:

• Vallco Town Center Specific Plan Initiative text

Darrel - 9212 Report for CCSG Initiative is flawed

Letter from the representative of Cupertino Concerned Citizens (CCC).

------------------

From: Darrel Lum
Date: Mon, May 2, 2016 at 2:25 PM
Subject: Ballot Language for Cupertino Citizens' Sensible Growth Initiative
To: City Council <citycouncil@cupertino.org>, Barry Chang <bchang@cupertino.org>, Savita Vaidhyanathan <svaidhyanathan@cupertino.org>, Darcy Paul <dpaul@cupertino.org>, Rod Sinks <rsinks@cupertino.org>, Gilbert Wong <gwong@cupertino.org>, Grace Schmidt <cityclerk@cupertino.org>, Grace Schmidt <graces@cupertino.org>
Cc: David Brandt <davidb@cupertino.org>, Aarti Shrivastava <aartis@cupertino.org>, Randolph Hom <rhom@cupertino.org>

Please find attached concern about the City's Ballot Language for the Cupertino Citizens' Sensible Growth Initiative 

for the November 8, 2016 election, attachment is in black and red :

                                            Page 1-3  History

                                            Page 4- 5  Fact Sheet

                                            Page 6 Recommendation

                                            Page 7  Figure LU-1 Community Form Diagram, General Plan Amendment

                                                         to Community Vision (General Plan) 2040 approved by

                                                         Resolution #15-087 by the City Council of City of Cupertino     

                                                         on October 20, 2015

                                                         see page 245 of 248 of General Plan Amendment or hand-delivered copy

                                                         to City Clerk

Darrel Lum

CCC Letter to Council: 9212 Report for CCSG Initiative is Flawed (PDF preview below)
 

Liang - Numerous Justifications for Special Meeting on May 3rd, but None for the one on April 5.

Liang listed numerous justifications for calling a special meeting to discuss the ballot question of CCSG Initiative on May 3rd, while there was no reason given to call the special meeting on April 5.

Besides Darcy Paul and Barry Chang, the same letter was sent to the other three Councilmembers as well with the same information.

---------------------------------

From: Liang C <lfchao@gmail.com>
Date: Mon, May 2, 2016 at 8:45 AM
Subject: JUSTIFICATION for 9 PM Special Meeting on May 3rd: Supporters of CCSG Initiative Deserve a Fair Chance
To: Barry Chang <bchang@cupertino.org>
Cc: "dpaul@cupertino.org" <dpaul@cupertino.org>

Dear Mayor Chang,

Councilmember Darcy Paul said that he supports to put CCSG Initiative on Tuesday May 3rd meeting agenda if a second Councilmember or in particular the Mayor second it.

Thank you for meeting with us yesterday. Thank you for sharing the events leading up to the calling of the surprise 9pm special meeting. So, the justification was that Gilbert Wong said someone called to ask for the meeting. So, you seconded Gilbert's motion to call the meeting, is that right?

Well, this time, many residents emailed to request a 9pm special meeting. We just want to have a fair chance to refute the false interpretation in the 9212 Report. This time there are many reasons for calling a special meeting:

• There is evidence that the attorney who prepared the 9212 Report made a mistaken and referred to an out-dated version of the report.
• There is evidence that the Council violated Elections Code 9051 as explained in earlier emails. The ballot question should be "true and impartial purpose of statement" and not meant to prejudice voters for or against any measure.
• There are many emails from residents to request a 9 pm May 3rd special meeting to be held right after the regular meeting.
• The 9 pm special meeting on May 3rd to re-visit the ballot question of CCSG Initiative might avoid a lawsuit to force the city to comply with Elections Code 9051.
• The 9 pm special meeting on May 3rd to re-visit the ballot question of CCSG Initiative might avoid wasting the taxpayer dollars on a lawsuit to force the city to comply with Elections Code 9051.
• On March 31, the supporters of CCSG Initiative was not give a fair chance to refute the false interpretation in EC 9212 Reprot since the City only announced the amended ballot question during March 31 meeting. The CCSG Initiative committee had no access to the letter from Sand Hill's attorney. The Council didn't even display the amended ballot question on screen during the discussion for the residents to see what's being amended.
• On April 5, the supporters was once again surprised at 9 AM in the morning for a 9 PM special meeting. The residents didn't have time to study the issues during the day. People did scramble to speak with the little time they have, but no time was spent studying the 9212 report or Elections Code. People did scramble to attend the meeting, but many people were not able to attend.
• The supporters of CCSG Initiative should be finally given a fair chance to refute the false interpretation in the 9212 Report with sufficient preparation.

With all these reasons, we are requesting a 9 PM special meeting to be called on May 3rd right after the regular meeting. If the 9 PM meeting called on April 5 because of some phone call is justifiable at all, this request for the 9 PM meeting on May 3rd is reasonable and justifiable.

If you as an elected representative of the voters of Cupertino, a Mayor of Cupertino, believe in fairness and good governance, you would support the request to call a 9 pm May 3rd special meeting.

Sincerely,

Liang Chao

Liana - EC 9212 report references wrong version of General Plan; CCSG Initiative ballot question requires correction

Liana pointed out that the Consultants might have referenced wrong version of the General Plan.

-------------------------------

From: 'Liana Crabtree' via CCSGI-Core <ccsgi-core@googlegroups.com>
Date: Mon, May 2, 2016 at 5:47 AM
Subject: Fw: EC 9212 report references wrong version of General Plan; CCSG Initiative ballot question requires correction

This is a copy of the message I sent to all Council Members individually this morning.

Liana

On Monday, May 2, 2016 5:35 AM, Liana Crabtree <lianacrabtree@yahoo.com> wrote:

Dear Council Member Paul:

This is a follow up to a message I posted to all City Council Members on Sunday, May 1, 2016.

In my earlier message, I asserted that it appeared the team responsible for the EC 9212 report for the CCSG Initiative referenced the wrong version of the General Plan in those places where the EC 9212 report states that the CCSG Initiative will raise the maximum building heights in neighborhoods.

It is understandable why those responsible for the EC 9212 report could have cited the wrong version of the General Plan.

For those not familiar with the Web page that links users to each chapter of the General Plan, it appears current information about land use will be included in the link "Chapter 3: Land Use and Community Character Element". However, in October 2015, the City Council approved an amendment to the General Plan that replaced Figure LU-1 with the updated figure that is included exactly as it was approved in the CCSG Initiative. The updated Figure LU-1 is not included in the Chapter 3 link on the General Plan Web page. Instead, Chapter 3 available on the City Web site today includes the outdated version of Figure LU-1 (PDF p 18).

The resolution that adopted the updated Figure LU-1 in October 2015 is visible from a link in the General Plan Web page called "here" (second paragraph of the introductory text). See PDF p 40 of Resolution 15-087 for the current Figure LU-1. Note that Neighborhoods is defined in the legend as a special area and that the Neighborhoods special area box establishes a maximum building height of 30 feet.

Resolution 15-087 includes this instruction on PDF p 4, under the heading "NOW THEREFORE, BE IT RESOLVED," item 3:

"3. Adopts the amendments to the General Plan (Application No. GPA-2015-01), text and figures, as shown in Exhibit GPA-1, which is incorporated herein by reference as part of this resolution, and authorizes the staff to make grammatical, typographical, numbering, and formatting changes necessary to assist in the production of the final published General Plan;"

And, the third paragraph of the introductory text on the General Plan Web page says: "The final General Plan layout is currently under review and will be posted on this website as soon as it is available. (Tentatively by December 31, 2015)." In my review of Chapter 3, it appears the update to the "final" General Plan to incorporate the content of Resolution 15-087 has not been completed, so it is understandable that a consultant agency on a very short timeline to complete the EC 9212 report might have been given or might have collected for itself the wrong version of the General Plan to build its arguments related to the EC 9212 report.

Please do consider that the reason the EC 9212 report states the CCSG Initiative will "increase building heights in Neighborhoods" is because the consultants were referencing the wrong version of the General Plan. Indeed, no other explanation for the inclusion of the false statement "increases to 45 feet the maximum building heights in neighborhoods" in the EC 9212 report and now in the ballot question for the CCSG Initiative makes any sense.

We have urgency to correct the error in the ballot question for the CCSG Initiative. Best for all if the City Council corrects the ballot question voluntarily now and not with legal mandate later. Act today to add the correction of the ballot question as an agenda item for a special meeting following the May 3, 2016 regular City Council meeting.

Thank you,

Liana Crabtree
Cupertino resident


REFERENCES:

+ City of Cupertino Web page "General Plan: Community Vision 2015 - 2040".

(Link: http://www.cupertino.org/index.aspx?page=1275)

Note that "Chapter 3: Land Use and Community Character Element" still includes the December 2014 version of Figure LU-1 and does not include updated text to describe the special area that was created in the October 2015 GPA called "Neighborhoods".

Users must click the "here" link in paragraph two of the introductory text on the City of Cupertino Web page "General Plan: Community Vision 2015 - 2040" to view Resolution 15-087 in order to view the content of the October 2015 GPA, including the updated Figure LU-1 with the new Neighborhoods special area with residential densities and criteria defined.

+ Entire text visible to the public regarding the status of the General Plan: Community Vision 2015- 2040 on the City of Cupertino Web site as of May 2, 2016.

(Link: http://www.cupertino.org/index.aspx?page=1275):

"General Plan: Community Vision 2015 - 2040

On December 4, 2014, the City Council formally adopted an amended General Plan for Cupertino known as Community Vision 2040. The General Plan is a State-mandated document and provides the vision for Cupertino’s future. It sets the City’s policy direction in a number of areas including land use, mobility, housing, open space, infrastructure, public health and safety, and sustainability through specific goals, policies and strategies.

On October 20, 2015, the City Council adopted minor amendments to the language to the Community Vision 2040 including a change in the name of the document to "General Plan: Community Vision 2015 - 2040." The resolution adopting the changes is available here.  Community Vision 2040 posted below and the resolution adopting the changes together constitute the General Plan: Community Vision 2015 - 2040.

The final General Plan layout is currently under review and will be posted on this website as soon as it is available. (Tentatively by December 31, 2015).

Community Vision 2040 (adopted by the City Council on December 4, 2014)

Cover and Contents
Chapter 1: Introduction
Chapter 2: Planning Areas
Chapter 3: Land Use and Community Character Element (note: contains outdated Figure LU-1)
Chapter 4: Housing Element
Chapter 5: Mobility Element
Chapter 6: Environmental Resources and Sustainability Element
Chapter 7: Health and Safety Element
Chapter 8: Infrastructure Element
Chapter 9: Recreation, Parks and Community Services Element

Attachment A: Land Use Definitions
Attachment B: Housing Element Technical Report
Attachment C: Air Quality
Attachment D: Community Noise Fundamentals
Attachment E: Geologic and Seismic Hazards
Attachment F: Slope Density "

Liang - Supporters of CCSG Initiative Deserve a Fair Chance

This email was sent to each Councilmember individually hoping to get a response from them without violating the Brown Act.

Savita Vaidhyanathan <svaidhyanathan@cupertino.org>
Barry Chang <bchang@cupertino.org>
Rod Sinks <rsinks@cupertino.org>
Gilbert Wong <gwong@cupertino.org>
Darcy Paul <dpaul@cupertino.org>

Only Councilmember Darcy Paul replied to support the special meeting to discuss the ballot question for CCSG Initiative as long as a second Councilmember would agree.


---------- Forwarded message ----------
From: Liang C
Date: Sunday, May 1, 2016 at 4:08 PM
Subject: Supporters of CCSG Initiative Deserve a Fair Chance
To: Savita Vaidhyanathan <svaidhyanathan@cupertino.org>

Dear Councilmember Savita Vaidhyanathan,

   Your prompt response is appreciated on this very important matter.

   Supporters of CCSG Initiative deserves a fair chance to refute the claims in EC 9212 Report. Please send Mayor Chang an email to request to put the ballot question of CCSG Initiative on May 3rd Council meeting agenda.

   By requesting to put the ballot question of CCSG Initiative for discussion, you simply agree to be fair and finally giving the supporters of CCSG Initiative enough time to prepare to refute the claims made in EC 9212 Report on building heights. I'm sure that you won't deny the citizens a fair chance as they well deserve.

   We just realized that May 3rd Council meeting is the last chance for the Council to amend the ballot question before the citizens are forced to pursue other legal action.

   On March 31, 2016, the supporters of CCSG Initiative did not know that the city would amend the ballot question based on a letter from Sand Hill. The public has no knowledge of the existence of the letter from Sand Hill's attorneys sent moments before March 31 Council meeting. The public has no knowledge that the staff would change the recommended ballot question in the staff report and prepared by the City Attorney. The public were surprised by the amended ballot question. All throughout the March 31 meeting, the amended ballot question was not never once displayed on the screen for all to see what exactly were being amended in the context of the full 75-word ballot question.

    Therefore, the supporters of CCSG Initiative were not prepared to argue against EC 9212 Report at all on March 31 since the last minute amendment was a total surprise. The public did not know why the outside counsel Mr. Perlmutter derived his false interpretation in EC 9212 Report at all during March 31 Council meeting. Without going back to study EC 9212 Report, the public was not given a chance to refute Mr. Perlmutter's false interpretation.

   In the morning of April 5, 2016 at 9 am, the CCSG Initiative committee were given a courtesy notice of the 9 pm special meeting called to change the ballot question to "increase to 45 feet". Scrambling to prepare for the meeting while juggling daytime jobs and family commitment, the supporters of CCSG Initiative was again caught by surprise. There was no staff report given in the 9pm special meeting to give any reason why the city decided to call a special meeting with no new evidence.

   The supporters of CCSG Initiative didn't read the argument in EC 9212 Report and the letter from outside counsel Ms. Bricks sent at 4:40pm on April 5 until after April 5 meeting. And as it turns out, EC 9212 Report and outside counsel Ms. Bricks made the same mistake of ignoring the important phrase "shown in Figure LU-1" and Figure LU-1 in Page 6 of the CCSG Initiative text. As Liana Crabtree pointed out in another email, the outside counsel who prepared EC 9212 Report most likely mixed up versions of the General Plan from Dec. 2014 with the most recent one adopted on Oct. 20, 2015.

   We plead that the Council give the supporters of CCSG Initiative a fair chance to refute false interpretation in EC 9212 Report. It's important that the ballot question of CCSG Initiative reflects the "true and impartial statement of purpose" in accordance to Elections Code.

   On March 31, we were surprised with a last-minute amendment with literally no time to study or prepare any rebuttal.. On April 5, we were surprised with a last-minute special meeting with again literally no time to study and prepare sufficient rebuttal.

   Putting the ballot question of CCSG Initiative on May 3rd meeting is only giving the citizens a fair chance to refute false interpretation in the EC 9212 Report and in the letter from outside counsel sent at 4:30pm on April 5, moments before the April 5 Council meeting. I'm sure that you believe in fairness and a through process. Please send an email to Mayor Chang to request the ballot question of CCSG Initiative be placed on May 3rd Council meeting agenda.

   Your prompt response is appreciated on this very important matter, whether or not you agree to give supporters of CCSG Initiative a fair chance. As long as 2 Councilmembers support in giving citizens a fair chance, Mayor Chang has agreed to put the matter on May 3rd agenda as a 9pm special meeting.

   We would be available to meet any time on Monday if you would like to understand more about the issues surrounding building heights in CCSG Initiative.

Sincerely,

Liang Chao

Liana - Justification for a special meeting to amend ballot question for CCSGI

The false interpretation of the EC 9212 Report could be derived from an out-dated General Plan on the city website.

Liana spoke to both Councilmembers Rod Sinks and Barry Chang in person and both of them agreed that it is something worth looking into and asked Liana to send them more information.

-------------------------------

From: Liana Crabtree
Date: Sun, May 1, 2016 at 12:25 PM
Subject: request for a special meeting, Tuesday, May 3, to amend ballot question for the CCSG Initiative (includes justification)
To: "bchang@cupertino.org" <bchang@cupertino.org>, "svaidhyanathan@cupertino.org" <svaidhyanathan@cupertino.org>, "rsinks@cupertino.org" <rsinks@cupertino.org>, "gwong@cupertino.org" <gwong@cupertino.org>, "dpaul@cupertino.org" <dpaul@cupertino.org>
Cc: City Clerk <cityclerk@cupertino.org>, "manager@cupertino.org" <manager@cupertino.org>, Liang Chao <lfchao@gmail.com>, Joan Lawler <joan.lawler@gmail.com>, Peggy Griffin <griffin@compuserve.com>

Good Afternoon Mayor Chang, Vice Mayor Vaidhyanathan, and Council Members Paul, Sinks, and Wong:

Mayor Chang, thank you for meeting with a small group of supporters for the Cupertino Citizens' Sensible Growth Initiative (CCSG Initiative) this morning to discuss why the phrase "increase to 45 feet the maximum building height in the Neighborhoods" is false and deceptive and why it needs to be removed from the ballot label (ballot question) for the CCSG Initiative.

Council Member Sinks, thank you for taking the time during the Earth Day festivities yesterday to talk with me about why the phrase "increase to 45 feet the maximum building height in the Neighborhoods" is false and deceptive and why it needs to be removed from the ballot question for the CCSG Initiative.

I am writing to all Council Members today to request that a sufficient number of you (my understanding from today's meeting with Mayor Chang, two are required) agree to request a a special meeting on Tuesday, May 3, 2016 at 9 pm following the regularly scheduled City Council meeting. The purpose of the special meeting is to remove the false and deceptive phrase "increase to 45 feet the maximum building height in the Neighborhoods" from the ballot label (ballot question).

The justification for the City Council to amend the ballot question for the CCGG Initiative is based on our group's assertion that it is possible the team responsible for the EC 9212 report, which is the guidance some Council Members followed when they added language about maximum building heights to the ballot question, referenced the December 2014 version of the General Plan that is published on the City of Cupertino Web site without amendment and not the October 2015 version of the General Plan, which is the General Plan of record today and at the time of the drafting of the CCSG Initiative.

As Mayor Chang and Council Member Sinks are aware, the General Plan amendment adopted in October 2015 (October 2015 GPA) as part of Resolution 15-087 includes an update to Figure LU-1 to add a special areas box called "Neighborhoods" where residential density and criteria are defined. The Neighborhoods special area is a super set comprised of the 12 neighborhoods that are also defined in the October 2015 GPA. With the addition of the Neighborhoods special areas box, the October 2015 GPA established that residential densities and criteria will be defined in Figure LU-1. In the Neighborhoods special area on Figure LU-1, maximum residential densities and criteria are defined as "15 units per acre for Neighborhood Commercial Sites" with a maximum height of "30 feet".

The CCSG Initiative includes Figure LU-1 exactly as it appears in the October 2015 GPA.

The relevant text from the CCSG Initiative, Policy LU-3.0 Community Form, related to maximum building heights says, "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."

Because the current version of Figure LU-1 now includes the special area called Neighborhoods, the area defined in the CCSG Initiative as "outside of Special Areas" is very small and might include real estate adjacent to freeway interchanges or other undeveloped areas that are under Cupertino's jurisdiction but have not been assigned a land use designation. "Outside of the special areas" is an important part of the CCSG Initiative because any land annexed to Cupertino in the future will be introduced with the building density maximum of 45 feet.

The CCSG Initiative and the Title and Summary for the CCSG Initiative prepared by the City Attorney include no proclamations that the CCSG Initiative will "establish" or "increase" building heights in Cupertino.

Elections Code 9051 requires that the responsible body assigned the responsibility of approving the title and summary, and by extension, the ballot question ensure that the language "shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure".

As written today, the ballot question for the CCSG Initiative is false and deceptive because it includes the phrase "increase to 45 feet the maximum building height in the Neighborhoods," which is not supported by the content of the CCSG Initiative, the content of the Title and Summary for the CCSG Initiative as prepared by the City Attorney, or the content of the General Plan of record today and at the time of the drafting of the CCSG Initiative.

I urge all Council Members to act promptly to take the required actions to amend the ballot question for the CCSG Initiative to remove the false and deceptive language "increase to 45 feet the maximum building height in the Neighborhoods".

Thank you,

Liana Crabtree
Cupertino resident



REFERENCES
+ current October 2015 GPA, Figure LU-1, see PDF p 40.

(Link: http://64.165.34.13/weblink/0/edoc/428960/CC%20Resolution%20No.%2015-087%20Approving%20a%20General%20Plan%20Amendment%20to%20Community%20Vision%202040%20%28General%20Plan%29%20Policy,%20Text%20And%20Figures%20and%20change%20land%20use%2010950%20N.%20Blaney%20Ave.pdf)

Note that the October 2015 GPA includes the following statement on PDF p 4, item 3 under the heading "NOW THEREFORE, BE IT RESOLVED":

"3. Adopts the amendments to the General Plan (Application No. GPA-2015-01), text and figures, as shown in Exhibit GPA-1, which is incorporated herein by reference as part of this resolution, and authorizes staff to make grammatical, typographical, numbering, and formatting changes necessary to assist in production of the final published General Plan;"


+ outdated Community Vision 2040 (General Plan approved in December 2014), Chapter 3 "Land Use and Community Design Element", Figure LU-1, see PDF p 18.

(Link: http://www.cupertino.org/index.aspx?page=1275)

It appears that as of today, May 1, 2016, the exercise to update the final published General Plan approved in December 2014 with the amendments approved in Resolution 15-087 has not been completed. As a result, the Community Vision 2040, Chapter 3 "Land Use and Community Design Element" includes the previous version of Figure LU-1 that does not include the Neighborhoods special areas box where residential densities and criteria would later be defined in the October 2015 GPA.

If those responsible for preparing the EC 9212 report referenced the outdated Figure LU-1 included in the now outdated Chapter 3 of the General Plan approved in December 2014, the statement "increase to 45 feet the maximum building height in the Neighborhoods" could be argued to be true because in December 2014, Figure LU-1 did not include the Neighborhoods special areas. As a result, for the window of time between December 4, 2014 and October 20, 2015, residential densities and criteria for neighborhoods is not defined in Figure LU-1 and the Neighborhoods special area did not exist.


+ CCSG Initiative, Policy LU-1 Community Form, see PDF p 5; and Figure LU-1 exactly as it was approved in the October 2015 GPA, see PDF p 6.

(Link: http://www.cupertino.org/inc/pdf/Initiatives/ccsgi/CCSG-initiative-text.pdf)


+ Title and Summary for the CCSG Initiative as prepared by the City Attorney. The Title and Summary for the CCSG Initiative, which is intended to be the basis for the ballot question according to Elections Code 9051, includes no references to "establishing" or "increasing" building heights in neighborhoods.

(Link: http://www.cupertino.org/inc/pdf/Initiatives/ccsgi/CCSGI-City-Attorney-Ballot-Title-and-Summary.pdf)


+ Elections Code 9051.

(Link: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=09001-10000&file=9050-9054)

Relevant items as applied to the drafting of the ballot question for the CCSG Initiative include:

"(b) The ballot label shall not contain more than 75 words and shall be a condensed version of the ballot title and summary including the financial impact summary prepared pursuant to Section 9087 of this code and Section 88003 of the Government Code.

   (c) In providing the ballot title and summary, the Attorney General 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."

Ignatius - False interpretation in consultants' reports contributes to erroneous and deceptive ballot question

---------- Forwarded message ---------- From: Ignatius Ding Date: Sun, May 1, 2016 at 12:56 AM Subject: ​False interpretation in consultants' reports contributes to erroneous and deceptive ballot question To: Cupertino City-Council <citycouncil@cupertino.org> Cc: City Attorney's Office <CityAttorney@cupertino.org>, David Brandt <manager@cupertino.org> Dear Council Members, An enormous mistake was made by the consultants who wrote the EC9212 report to analyze the impacts of CCSGI.  In the last paragraph of page ​ ​ 7 and first paragraph of page 8 of its Appendix A-2, they wrote: "Outside 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 part of the City that the General Plan defines as ​ Neighborhoods.  The existing General Plan--as well as the City's Zoning Ordinance--establish 30 feet as the maximum building height for the neighborhoods.  Accordingly, this provision would increase the maximum building height of the City' ​s Neighborhoods by 15 feet, to 45 feet.  (Please see attached)  However, the consultants have mistakenly used the December 2014 version of the General Plan as the current plan certified and adopted by the [current] City Council when the October 2015 version should be used since it was the latest version certified and adopted by the [current] City Council (please see page 6 of EC9212 report for reference). Both the CCSGI text and the October 2015 version of the General Plan clearly include the " ​​ Neighborhoods" in Figure LU-1 as a newly designated "special area."  Incidentally, the consultants have deleted the key reference to Figure LU-1 in a sub-clause of the quoted CCSGI text and a copy of Figure LU-1 from the CCSGI or the correct (October 2015) version of the General Plan. The box inserted for that designation in Figure LU-1 indicates the zoning for the maximum building height in the "Neighborhoods" is 30 feet.  CCSGI did not change, increase or decrease that zoning limit since the "Neighborhoods" is one of the nine "special areas" in the October 2015 version of the General Plan. Therefore, the council started out the discussion and eventually determined the contents of the 75-word "ballot question" (aka "ballot label") on an incorrect recommendation from the EC9212 authors who have charged the City $150,000 for this faulty report. Please see the detailed in the text below for a more detailed analysis and seriously consider to re-visit and promptly correct the text of the CCSGI ballot question.  Thank you. Respectfully yours, Ignatius Y. Ding A 39-year resident (408) 692-5757 ​​ False interpretation in consultants' reports contributes to deceptive ballot question in violation of Elections Code 9051 Cupertino Citizens' Sensible Growth (CCSG) Initiative maintains existing maximum building heights in all areas of Cupertino, except where there is no limit, such as Vallco. The text of the CCSG Initiative should be the basis of any discussion.. Once CCSG Initiative is adopted, the text will become the law, not any biased or false “interpretation” in any report or letter. The text of CCSG Initiative is clear and precise on building heights. The maximum heights of the Neighborhoods Special Area remain 30 feet in CCSG Initiative. Page 5 of CCSG Initiative: “Policy LU-3.0: 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, in Page 6, shows “Neighborhoods” under a list of special areas and a box showing its maximum height is 30 feet. Figure LU-1 comes from the most recent Oct. 20, 2015 General Plan Amendment. Policy LU-3.0 refers to “special areas shown in Figure LU-1” in both the first sentence and second sentence, so there is no confusion that the “special areas shown in Figure LU-1” includes Neighborhoods, which maintains the existing height of 30 feet. Mr. Perlmutter, the attorney prepared EC 9212 Report, and Sand Hill’s attorneys altered the meaning of Policy LU-3.0 by ignoring the important restrictive clause “shown in Figure LU-1” and ignoring Figure LU-1 in the next page. An apparent mistake! The deceptive ballot question, based on EC 9212 Report, is not only false, but also violates Elections Code 9051 since it is not a “true and impartial statement of purpose” and it is very “likely to prejudice voters against “the CCSG initiative. The Council should correct the mistake and follow Elections Code. ​