Developer Should Not Write Vallco Specific Plan by Liang

Liang points out that
  - General Plan "Community Vision 2040" did not provide height limit for Vallco Area, istead it says "Per Specific Plan".
  - Yet, Sand Hill is now writing Vallco Specific Plan. This is wrong.
  - Vallco Specific Plan Advisory Committee should be formed to write Vallco Specific Plan.
  - North 40 Specific Plan Advisory Committee in Los Gatos is a great example to follow.

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From: Liang C
Date: Tue, Jun 30, 2015
Subject: Developer should not be allowed to write Vallco Specific Plan
To: Gary Chao <garyc@cupertino.org>, planning@cupertino.org, City Council <citycouncil@cupertino.org>

In Figure LU-1 of Community Vision 2040, for Vallco Shopping District Special Area, it states
"West of Wolfe Rd: Maximum Residential Density: 35 units per acre
      Maximum Height: Per Specific Plan
East of Wolfe Rd: Maximum Residential Density: 35 units per acre
     Maximum Height: Per Specific Plan"

The Maximum Height for Vallco area is not defined in the General Plan at all.

The height is supposed to be specified in the Specific Plan and now the developer is writing the Vallco Specific Plan.

This is wrong. A developer should not write the Vallco Specific Plan even though the developer happens to own that property.

A Specific Plan should not become a wish list for a specific developer. A Specific Plan should still take into account of the best interest of the entire city, all the residents in the City and especially all the residents living in surrounding neighborhoods of a specific area.

The city and the residents should be writing the Specific Plan, not a developer.
And now the limit on height is even removed in Community Vision 2040 to be left to the Specific Plan. It is all the more important for the city to organize a Vallco Specific Plan Advisory Committee, with mostly community residents, to write the Specific Plan.

Liang-Fang Chao

Cupertino Resident

From: Liang C
Date: Tue, Jun 30, 2015 at 11:22 AM
Subject: Re: Developer should not be allowed to write Vallco Specific Plan
To: planning@cupertino.org, City Council citycouncil@cupertino.org

Please follow the example of North 40 Specific Plan Advisory Committee in Los Gatos.

In Los Gatos, North 40 Specific Plan Advisory Committee, consists of 6 city officials and 9 community representatives. This committee submits the Specific Plan for review by the Planning Commission and the City Council. Therefore, the North 40 Specific Plan is prepared by the city and the community, NOT the developer, as it should be.

The North 40 project in Los Gatos is quite similar in size to Vallco Redevelopment Project.
The North 40 refers to approximately 40 acres located at the southeast quadrant of the intersection of Highways 85 and 17. In the current General Plan, adopted in 2010, the guiding principals of North 40 include a mix of uses.

Liang

Don't Legalize Bribery using Development Management Program (a.k.a. Community Benefits program) by Liang

From: Liang C
Date: Tue, Jun 30, 2015
Subject: Development Management Program is still Community Benefits Program
To: City Council citycouncil@cupertino.org
Although the meeting description does not mention it, the focus of this proposed GPA process concerns different forms of "Community Benefits" program, now renamed "Development Management Program." As long as a development project follows all current zoning codes and the current General Plan, the project does not need any GPA at all. Why not encourage all developers to follow our General Plan and zoning code? An amendment should be granted only under very rare circumstances.
The proposed new GPA process would allow exceptions or variables to the General Plan as a common annual practice. However, General Plan Amendments or variances should not be an annual occurrence. Such exceptions to General Plan should be few and far between; otherwise, the 25-year General Plan would not be able to serve its long-range planning purpose.

The proposed new GPA process sends a message to developers: You are welcome to break the zoning code and violate our approved General Plan as long as you bribe us with attractive Community Benefits. And we open the door once a year to see who gives us the best bribe.

Please don't approve a process that legalizes breaking city codes and violating policies in General Plan with bribes, which are confusingly named Community Benefits or Community Amenities or whatever name used.

Liang-Fang Chao
Cupertino Resident

Zoning Exists to Regulate Land Use by Phyllis

From: Dicksteinp
Date: Tue, Jun 30, 2015 at 9:55 AM
Subject: Development Management Program is still Community Benefits ...

I fully agree with Liang, who has gotten right to the point. Zoning exists for a purpose -- which is to regulate land use (what may be built where, with what heights, densities, setbacks) in accordance with the vision of the community at large. It is the blueprint, the norm, not a "base" from which variances are regularly granted. The variances are the exceptions, which should be few and far between, and only when the project in its essence (not a few amenities) is of overwhelming benefit to the community.

A "community benefits program" or formal list of amenities, is merely a pretext  to justify four or five major variances each year. At the end of ten years (45-50 projects), the developers achieve piecemeal what the community, even through last year's biased survey, clearly has rejected accomplishing globally -- namely, changing the skyline of our city from 45 or 60 ft to  perhaps 75 or 90 ft.

Phyllis Dickstein

Formal Complaint of Possible Violation of Municipal Code and Misleading City Council

Summary of Violations:

• Illegal Contract: Contract with the traffic consultant Fehr & Peers  for "Traffic Data Collection for Vallco Mall Redevelopment Project Services" was already signed on March 2014 without Council approval when the total amount of contract exceeds $175,000.
• Misleading Answers to City Council: During June 16, 2014 City Council Meeting, City Staff contended that "So the scope that's before you. They haven't started working yet." But a contract was signed back in March and the work on traffic data collection, which is a part of the scope of work listed in the EIR contract, has already started.
• Conflict of Interest: The City Attorney signed the contract with Fehr & Peers when the attorney should be the enforcement officer for City Municipal Code.

 

Entire Formal Complaint in PDF with all attachments.

Attachment A & B: (Page 3-6) Email exchange between Randy Shingai and Assistant Attorney Colleen Winchester, where Winchester indicated the contract with the traffic consultant Fehr & Peers for "Traffic Data Collection for Vallco Mall Redevelopment Project Services" was already signed on March 2014.

Attachment C (Page7-9): Transcript of June 16 Council Meeting, where staff insisted that no Vallco EIR work is done when pressed by Vice Mayor Barry Chang.

 

Attachment D (Page 10-): Relevant sections of Cupertino Municipal Code highlighted, which states that Council approval is required for any contract over $175,000.

 

 

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

From: Peggy Griffin
Date: Wed, Jun 24, 2015
Subject: Formal Complaint of Possible Violation of Cupertino Municipal Code and Misleading City Council
To: rsinks@cupertino.org, City Council <citycouncil@cupertino.org>
Cc: City Clerk <CityClerk@cupertino.org>, City Attorney's Office <CityAttorney@cupertino.org>

 

Dear Mayor Sinks, Vice Mayor Chang and City Council Members,

 

I am submitting this formal complaint letter with its attachments on behalf of Cupertino Residents for Sensible Zoning Action Committee FPPC #1376003.  The letter and it’s attachments follow below and I have attached the .PDF version to this email. 

 

Sincerely,

Peggy Griffin, on behalf of Cupertino Residents for Sensible Zoning Action Committee, FPPC #1376003

 

 

CRSZaction Formal Complaint letter with Attachments 2015-06-24

                                                             June 24, 2015

 

Cupertino Residents for Sensible Zoning Action Committee

FPPC #1376003

 

 

 

Mayor Rod Sinks

City of Cupertino

 

Dear Mayor Sinks:

 

One of our members, Randy Shingai, wrote an e-mail addressed to the City Council and City Attorney about a possible violation of Cupertino Municipal Code 3.22.060.  That is Attachment A to this letter.

 

Assistant City Attorney Colleen Winchester’s response to that e-mail is included as Attachment B.

 

The specific point raised in Mr. Shingai’s e-mail was not addressed in Ms. Winchester’s response.  Mr. Shingai did not contend that work was performed without a contract.  Mr. Shingai made no mention of a contract.  Mr. Shingai’s contention was that, “The work was billed before it was approved by the council.”  Mr. Shingai also pointed out that the work would only be exempt from the bidding requirements in Municipal Code 3.22, and would therefore still be subject to the dollar threshold that would require prior City Council approval.

 

In her e-mail response to Mr. Shingai, Ms. Winchester attached a copy of the contract with Fehr & Peers that the City signed without City Council approval In March 2015.  Mr. Shingai forwarded a copy of that contract to the City Council on June 20, 2015.  Notice that the City Attorney has also signed this document under the heading “APPROVED AS TO FORM.”

 

The “scope of  work” in that illegally signed March 2015 contract is a subset of the “Scope of Work” in the contract that was approved as Agenda Item #10 at the June 16, 2015 City Council Meeting.  Since Fehr & Peers’ estimate of the entire traffic portion of the scope of work was $256, 795; according to Municipal Code 3.22.060(B) the City should have forseeably known that the full scope of work would be over the $175,000 threshold in 22032(b) of the Public Contract Code.  Therefore the March 2015 was in violation of Municipal Code, as segmenting the full scope of work into portions that fall under the $175,000 threshold would violate the intent of the law.

 

This issue was brought up during the questioning of City Staff during the deliberation of Item #10 at June 16, 2015 City Council Meeting.  Attachment C is a transcript of a portion of that exchange.

 

The answers provided by City Staff at the June 16 City Council Meeting are troubling.  We request the City have a hearing on this issue.  The issues we have are as follows:

 

• Did City Staff violate Municipal Code 3.22.060 in the awarding of the March 2015 contract with traffic consultant, Fehr & Peers.

 

• Did City Staff mislead the City Council during questioning at the June 16, 2015 City Council Meeting?

 

 

It is worth noting that the City Attorney signed the March 2015 contract with the traffic consultant, Fehr & Peers, under the heading “APPROVED AS TO FORM.” A conflict may therefore exist with the City Attorney’s role of enforcement officer that is specified in Municipal Code 2.18.020(F).

 

Here is 2.18.020(F):

 

 F.   Prosecute all violations of City ordinance; provided, however, that the City Attorney is not required to prosecute any misdemeanor or infraction within the City arising out of a violation of State law. 

 

The City Council should therefore consider appointing an independent party to investigate and prosecute the March 2015 contract with the traffic consultant, Fehr & Peers.

 

 

Cupertino Municipal Code 3.22 is included as Appendix D.

 

Here is a link to the alleged illegal contract with Fehr & Peers that the City signed in March 2015

 

https://drive.google.com/file/d/0B-t-isgqFFeOdmktbUhKY1oxV00/view?usp=sharing

 

Here is a link to the full Scope of Work from the June 16, 2015 City Council Meeting Agenda

 

http://cupertino.legistar.com/gateway.aspx?M=F&ID=11567850-587e-4bd1-bbb5-60d4c9889e4f.pdf

 

 

 

Thank You,

 

Cupertino Residents for Sensible Zoning Action Committee

 

Entire Formal Complaint in PDF with all attachments.

 

Vallco EIR Work Violates Municipal Code 3.22.060 by Randy

From: Randy Shingai
Date: Fri, Jun 19, 2015 at 1:58 PM
Subject:  Possible violation of Cupertino Municipal Code 3.22.060
To: City Council <citycouncil@cupertino.org>, City Attorney's Office <CityAttorney@cupertino.org>
Cc: City Clerk cityclerk@cupertino.org

Dear Councilmembers and City Attorney,

I would like to bring a possible violation of Cupertino Municipal Code 3.22.060 to your attention.

Municipal Code 3.22.060 begins as follows:

B.   Purchases Approved by City Council–Application of Formal Competitive Bidding Procedures.  In instances where the acquisition of supplies, materials, equipment or services will foreseeably result in the issuance of a purchase order, check request, or the award of a contract with a dollar value in excess of the required dollar value for public works contracts described in section 22032(b) of the Public Contracts Code, such will be authorized only by action of the City Council.

While 3.22.070 of the Municipal Code contains an exemption from bidding requirements for professional services, it does not offer an exemption from the provisions of 3.22.060 that do not relate to the biding process.  Therefore I believe that any work that could forseeably result in a charge in excess of the $175,000 threshold in 22032(b) should have been authorized by the City Council.

 

D.   Professional Services.  Professional services including, but not limited to, services of lawyers, architects, engineers, land surveyors, artists and accountants are exempt from the bidding requirements of this chapter. 

A charge from FEHR & PEERS ASSOC INC was listed as Number 683006 in the Payment Register for 6/1/2015 to 6/5/2015 that was submitted for approval to the City Council under Consent Item #9 at the June 16, 2015 City Council Meeting.

The date for this item is: 05/08/2015.

The description for this item is: "Traffic Data Collection for Vallco Mall Redevelopment"

The amount is $25,198.25

I have included that page of the Payment Register as an attachment.  I am awaiting a Public Records Request for the invoice.  I should receive it by Thursday, June 25.

 

There appears to be a reference to this work on Page 30 under the heading "Task 2 Data Collection" in the Scope of Work for the Vallco Specific Plan Redevelopment Project that was presented for approval to the City Council on June 16,2015.  It is under The total cost of this work was over $754,000, and the traffic specific work subcontracted to Fehr & Peers was over $256,000.   The City Council did grant approval for this work.  However that was over a month after the work appears to have been competed. The work was also billed before it was approved by the council.  I have included a pdf of that page as an attachment.

Here is a link to the Scope of Work document:

https://cupertino.legistar.com/View.ashx?M=F&ID=3818915&GUID=AD058C47-4BB7-4DCD-81BE-B9599D935090

Thank you,

Randy Shingai

Vallco EIR Contract is Illegal Without Competitive Bidding Process by Randy

From: Randy Shingai
Date: Thu, Jun 18, 2015 at 2:57 PM
Subject: ILLEGAL ACTION by the Cupertino City Council on June 16, 2015
To: rsinks@cupertino.org, bchang@cupertino.org, gwong@cupertino.org, svaidhyanathan@cupertino.org, Darcy Paul <dpaul@cupertino.org>, City Attorney's Office <CityAttorney@cupertino.org>, City Clerk <cityclerk@cupertino.org>, David Brandt Davidb@cupertino.org

Dear City Council and staff,

At the June 16, 2015 Cupertino City Council meeting the City Council voted to authorize the City Manager to execute a consulting contract with David J. Powers and Associates. We believe this is illegal under Cupertino Municipal Code 2.30, because there was no competitive bidding for this contract. Cathy Helgerson brought this issue to our attention.

We believe the exemption from competitive bidding for professional services contracts in City Municipal Code 2.23.130 only applies to a "public works project." Here's the definition of "public works project" in Cupertino Municipal Code 3.23.020:

4. “Public works project” means:

a. The erection, improvement, painting or repair of public buildings and works;

b. Work to protect against overflow of streams, bays, waterfronts or embankments;

c. Street or sewer work except for maintenance or repair thereof;

d. Furnishing supplies or materials for any such project, including the maintenance or repair of streets or sewers.

(Ord. 1897, § 2 (part), 2002; Ord. 1583, § 1 (part), 1992)

While EIR work for private development is administered by the same City staff members that usually handle "public works projects", the Vallco Shopping District Planning Area development is a private undertaking by Sand Hill Property Company. Vallco is in no way, shape or form public.

The contract that the City Council authorized with David J. Powers and Associates to perform work in preparation for an EIR for the Vallco Shopping District Planning Area should have been handled under the general procurement rules in Municipal Code 3.22. Those are the rules that apply to the "purchase of supplies, materials, equipment and services." Therefore, the Formal Competitive Bidding Procedures" in 3.22.060 should have been followed, because the amount authorized was well above the dollar threshold specified in 22032(b) of the CA Public Contract Code.

The City Council's action to authorize the City Manager to execute a contract with David J. Powers and Associates is an illegal action. You must rescind this action to comply with Cupertino Municipal Code 3.22.

The City may decide to argue that the Vallco EIR work should be handled under the "public works project" rules, but we believe that courts would want to know what the public interest is in doing so. Since more than a dozen people wrote e-mail and/or complained in person about the lack of transparency in the selection of David J. Powers and Associates by the City, we think a good case can be made that the public's interest was not served by circumventing the competitive bidding procedures. We can also point to prior instances where the competitive bidding process was used to select consultants for public works projects by the City even though the City was not legally required to do so.

RFP for General Plan Amendment and Rezoning

General-Plan-Amdmt-EIR-RFP-2012-11-05.pdf

RFP for Climate Action Plan: Community Engagement and CEQA Support

RFP Climate Action Plan 2013-11-15.pdf

We will file a formal appeal on Tuesday of next week if we do not receive an indication from the City of Cupertino that the City will rescind the action taken by the City Council to authorize the City Manager to execute a consulting contract with David J. Powers and Associates. Please save us all the time and expense of not having to go through that process.

The ball is in your court.

Thanks!

Randy Shingai for Better Cupertino

============================================================================

On Thu, Jun 18, 2015 at 4:34 PM, Colleen Winchester <ColleenW@cupertino.org> wrote:

Mr. Shingai,

Allow this to respond to your email to City Council.   The contract with David Powers and Associates approved on June 16, 2015, is to prepare the environmental analysis for a private project.  Professional service contracts are exempt from the public bidding process, whether or not it is a public work.  See, Cupertino Municipal Code Section 3.22.070(D).

Thank you for your continued interest in Cupertino.

Colleen Winchester
Assistant City Attorney
City of Cupertino
(408) 777-3404

Vallo EIR Started Long Before Council Approval by Yu

From: Yu Ying
Date: Thu, Jun 18, 2015 at 11:46 AM
Subject: disappointed on the result for vallco item 10 in 06/16 council meeting
To: City Council <citycouncil@cupertino.org>, City Clerk cityclerk@cupertino.org

Dear City Councils,

I am writing to you to express my deep disappointment regarding authorizing the start of Vallco EIR process. In particular, I am extremely disappointed about how the planning staff approach this process. 

The staff must have started the EIR work with the now hired consultant long time before the applicant filed the request. Although Arti claimed the consultant doesn't charge the city, so what? All services have to be paid in some way. If the consultant didn't have the signal from our staff, it wouldn't have started the "free" consultant service. Not to mention they are "the only" bidder for this report.

 

This so-called back-end processing is a potential corruption tumor in our city governance. It has no transparency to the residents for sure; it is now found to hide under-table operations from our council too. This reminds me how they told the council the Community 2040 only needs to be reviewed for "clean up", which instead is a complete re-written of GP2005. This reminds me the staff refused to provide red-line copy to the residents until hundreds residents showed up on 05/19 meeting, and council realized the severity and requested for it. I now wonder what else is still hidden from Council the city projects over all. Do you want to know too?

I appreciate City council's efforts in this GPA process, I respect your ideas on how to improve existing problems. But the planning staff is not running the process in favor of our residents. They hide problems. They are misleading the Council. If you don't take actions to correct them, you are put against the residents. 

 

Yu (Cupertino Residents)