Cupertino Matters

This week’s big news is Friends of Better Cupertino’s (FoBC) loss of the legal battle over the Vallco SB 35 project. This case, brought by Planning Commission Chair Kitty Moore, FoBC President Ignatius Ding, and Peggy Griffin, alleged numerous ways in which the Vallco SB 35 project did not qualify for streamlined treatment under this 2017 housing legislation. The Hon. Helen Williams, the Superior Court judge who heard the case, painstakingly dismantled each of FoBC’s contentions, one after another. As far as the law is concerned, Chair Moore and FoBC were wrong on every single point.

As Marisa Kendall reports in the San Jose Mercury News, those points only buttress the court’s main conclusion that SB 35 doesn’t even require a city to reject a project. Citing local attorney and Cupertino for All co-founder, J.R. Fruen, Kendall writes, “That means community groups like Friends of Better Cupertino have no grounds to block SB 35 projects in court.” The decision means the Vallco SB 35 project may continue to move forward.

The decision received extensive coverage in the press. In addition to the Mercury News article above, Janice Bitters of the San Jose Spotlight writes “Controversial Vallco project can continue under SB 35, judge rules.” Roland Li picked up coverage for the San Francisco Chronicle with “Vallco wins: Massive Cupertino development can proceed, judge rules Cupertino’s giant Vallco project near Apple headquarters wins legal case,” J. Jennings Moss for the Silicon Valley Business Journal notes “Judge hands developer big win in Vallco housing project case.” Cupertino Today similarly describes it: “Vallco redevelopment wins big in court.”

The 62-page ruling is relatively readable even to laypeople and is scathing in its rebuke of FoBC’s points and the conduct of their attorneys. The court sums up its view of FoBC’s legal reasoning on page 18, “Petitioners discussion of the facts and their legal significance in the context of this traditional mandate proceeding is disorganized and undisciplined.” The tone of the review sets in on page 19: “Petitioners . . . failure to frame their arguments through the lens of an appropriate standard of review within the context of the traditional mandate their petition invokes is burdensome.” On page 26, the court remarks that “because Petitioners do not have a consistent and coherent analytic approach and present their arguments in a scattershot and conclusory fashion, it is difficult to truly engage with the points they make in a meaningful and legally permissible way . . .” This lack of clear and coherent argument led the court to engage in its own exhaustive analysis of how to approach the SB 35 statute.

Similar comments punctuate the rest of the court’s treatment of FoBC’s arguments. Regarding FoBC’s view on the 2/3 residential use requirement on page 41, the court notes that “[i]t seems the Petitioners may not understand the nature of the California Building Standards Code . . .” On page 46, the court’s exasperation rises as it addresses FoBC’s claim that Vallco sits on a disqualifying hazardous waste site: “[a]dopting Petitioners’ interpretation would lead to absurd results.” That frustration becomes more palpable as the court refutes FoBC’s arguments on parkland dedication on page 56: “Petitioners’ approach is inapt . . . [sic]  Petitioners also use emphatic typography to make a circular argument that Developer’s proposed public spaces are not parkland because they are not parkland.” The court perhaps most clearly described the flaws in all of FoBC’s advocacy in a parallel order on the evidence before the court filed the someday: “Petitioners’ approach to critiquing the technical assistance [from HCD] is not particularly helpful because of the mischaracterizations, hysterical language, and reliance on principles other than those concerning deference to agency interpretations.” It is reassuring to read that judges impose higher standards than those we see in food fights.

Even the city attorney’s highly unusual and ethically questionable “non-opposition” filings discussing the supposed jobs-housing impact of the Vallco SB 35 project did not escape the court’s reproval in footnote 10: “A true statement of nonopposition is meant to narrow the issues and to help the Court use resources efficiently, not to raise issues or sandbag by pointing to positions allegedly not being argued. And, while the City then filed a reply to Developer’s response reasserting that the jobs—housing imbalance is a fact before the Court that should be considered, it failed to provide adequate support for this contention. [sic] The Court therefore disregards the City’s impromptu negative commentary on the Project disguised as nonopposition.” Why on earth did this council waste precious staff time forcing the city attorney’s office to file such problematic documents?

For the last few years,  the public has had to endure commentary from Better Cupertino and its exponents on council: Mayor Steven Scharf, and Councilmembers Liang Chao and Jon Willey claiming that the Vallco SB 35 project was unlawful, that staff were incompetent and we just needed better councilmembers. It seems that was just psychological projection. As this ruling demonstrates, not only were they wrong on every objection, staff avoided hefty legal exposure by approving this project. Had the city denied this application, it appears that Cupertino would be sitting where Los Altos is now, staring down the barrel of tens of millions of dollars in fines under the Housing Accountability Act.

Not only that, but these same councilmembers plus Vice-Mayor Darcy Paul chose to deprive Cupertino residents of their voice in obtaining an alternative with more housing, less office, and a bevy of community benefits by rescinding the Vallco Specific Plan despite its supporters’ claim that it should go to a public vote. All four of them appointed to the Planning Commission one of the named petitioners in this suit, Kitty Moore—a suit she claimed taught her much about planning and land use law. Clearly not, as the court noted she was wrong on every point raised. It should be plain now that fervent belief in the rightness of one’s cause and homemade legal analysis is no substitute competence and reasoned compromise. November will give Cupertino the opportunity to decide whether it wants to continue down this uncomfortable and ineffectual path or if it wants to pick a different direction.

It’s time to start building housing and communities, not just hotels. The city approved ZERO multi-family projects in 2019. The Vallco SB35 has 2402 homes, and the Westport Enhanced Senior and Family Living Project for The Oaks, which comes before the Planning Commission today (see below) would add 294 residences, including 206 badly needed senior units. It will take several years for these to become available, so need to start now, regardless of COVID-19.

The City of Cupertino’s budget has been heavily impacted by COVID-19. City Manager Deb Feng outlines the impact in a letter to the community.  She provided more detail at city council meeting on Tues., May 5. Budget cuts are always difficult, but this has happened before. Kudos to the city staff for adjusting quickly to the fiscal reality that is impacting all cities and counties, as well as the state. The 4th of July celebration has been canceled, both for pandemic and financial reasons. Summer Parks and Recreation programs have been curtailed for the same reasons, since planning and hiring would have to be happening right now.

Your voice is important. Information on expressing your opinion via emails and oral communications with the city can be found at

 UPCOMING  PLANNING COMMISSION MEETING –Tues., May 12, 5, 2020, 6:45 Regular Meeting

Other than approval of the minutes from April 14, the redevelopment plan for the Oaks is the only item on the agenda:

Item #2 Development proposal to demolish a 71,250 square foot retail center (The Oaks), remove and replace 74 protected trees, and construct a mixed-use development consisting of 294 housing units (88 Rowhouse/Townhomes, 206 senior apartments, of which include 48 senior affordable apartments and 27 memory care units) and 20,000 square feet of commercial space.  Applicant(s): Mark Tersini (KT Urban); Location: 21267 Stevens Creek Boulevard APN #326-27-042, -043. This latest proposal to redevelop The Oaks shopping center has changed significantly from earlier iterations.

It has evolved into an Enhanced Senior and Family Living Project that is primarily residential. Buried in the planning documents  for 294 residences, the plan also includes 206 senior units, both market rate and below market-rate (BMR), that encompass independent living, assisted living, and memory care. These would be managed by a senior living management company which would provide services. This is a very significant contribution to senior housing and services in Cupertino, which currently has very limited senior care options. The location adjacent to the Cupertino Senior Center and Memorial Park, as well as along transportation on Stevens Creek Blvd., is optimal for seniors. It’s within easy walking distance to the Sports Center, as well as DeAnza College, which has a library and classes. In the wake of the superior court decision on the Housing Accountability Act, the Density Bonus Law, and SB 35 against Los Altos two weeks ago, the Planning Commission would do well to be mindful of the city’s exposure if the project is not ultimately approved.


YouTube: Part 1: 1 hr. 30 min. Study Session; Part 2: 3 hr. 10 min. Regular Meeting

The meeting ended at the reasonable hour of 10:20, due to the limited agenda. The 5:30 Study Session on Small Cell Facilities within the Public Right of Way went past the 6:45 cutoff, so the regular meeting started late. The session was basically a review of the permitting process, with staff recommending minor changes to clarify standards and checklists. The city has limited authority over these permits.

Item #1 City Manager update on COVID-19 response efforts. City Manager Deb Feng provided an extensive update on bringing back full time staff, and changing the work environment to maintain services. The city has to respond to county orders, and changing demands. Tennis courts and golf courses will be opened up, in addition to outside businesses.

Item #2 Reports on Committee assignments were minimal due to COVID-19. Vice-Mayor Paul reported on the Library JPA and Audit Committee meetings.  Mayor Scharf was in on calls to the county. Councilmember Liang Chao pulled consent item #5 setting a limit of $30,000 for the Nov. 2020 election. After discussion, council voted unanimously to keep the current process.

Item #9, Municipal Code Amendments, which modified rights of entry for inspection, nuisance abatement, and the administrative penalties associated with these activities to cleanup provisions in local law to be consistent with state law. The most significant change was the removal of the $100,000 limit on administrative penalties. Too much time was spent in details and hypotheticals, before this was passed unanimously.

Item #10 is Fiscal Year (FY) 2020-21 Community Development Block Grant (CDBG) Program, Below Market Rate (BMR), Affordable Housing Fund (AHF), and General Fund Human Service Grants (HSG) Program funding allocations. These grants had been thoroughly vetted by the housing manager and the Housing Commission. The agencies receiving funding had previously received funding so this item reflected approval of those allocations. The Housing Commission recommendation for an increase in General Fund Human Services Grants from a $100,000 cap established in 2018 to $125,000 due to increases in homelessness was approved unanimously with the item.

Item #11: Ordinance extending the validity of Planning entitlements and permits issued by the Community Development Department; extending the time for City review and action on development applications in the event state law deadlines are extended; and temporarily suspending certain CEQA requirements as provided by Executive Order N-54-20. After clarifying the permits that would be extended, this item received unanimous approval.


The front page photo and article on page 4 feature our own Josh Selo, executive director of West Valley Community Services, Needed now more than ever:  Nonprofit sees ‘unprecedented’ need for food, rental assistance. WVCS has had a 320% jump in clients in one year. Their biggest need is donations for rental assistance, though getting food supplies has also been challenging. The Westport redevelopment proposal is featured on page 8 in an article by George Avalos, Housing, retail mixed-use project pushes ahead: senior housing, market rate homes are part of project at prominent Cupertino site. Community briefs include (1) Students of merit recognizing four high school students named as National Merit Scholars, (2) Remote TAs project to support online elementary school teachers, and (3)  #CupertinoCares Initiative by the city to foster community connections. Legal notices on page 17 include (1) City of Cupertino Public Notice Unclaimed Funds, and (2) Notice of Public Hearing for BMR Residential Housing Mitigation and Commercial Linkage Fees for Cupertino’s BMR housing program on May 19, 2020.

I hope you enjoyed some type of Mother’s Day celebration, though traditional brunches out were not allowed.

Warm regards,
Jean Bedord
Cupertino Matters
Publisher and Editor