Updated February 4, 2019

Brief Filed in Vallco SB35 Court Case January 29

Friends of Better Cupertino (FoBC), our nonprofit that supports local government that is accountable to its residents (among other things), has filed a detailed brief in its court challenge to the City’s unlawful “approval” of Vallco’s SB35 (CA Senate Bill 35) project application. 

The SB35 law provides for a “streamlined, ministerial approval” procedure for residential development projects. To take advantage of the procedure, projects must meet ten separate eligibility criteria. The Vallco project application fails on at least two of those criteria, and FoBC contends the City should never have declared the application eligible.

Following its earlier court filings on June 25 and October 16, 2018, FoBC’s new brief details the case against the Vallco project with legal references and evidence based on Vallco’s own application documents.  

As FoBC explains, the City ignored multiple legal problems with Vallco’s SB35 application. As a result, the City’s “approval” of the project is unlawful and improper and must be set aside. Problems include:

(1) Missing parkland. Vallco admits that based on the 4,320 new residents to be housed in the project, at least 12.96 acres of parkland should be provided to comply with Cupertino’s General Plan. In fact, Vallco’s project provides only two acres of park.

Vallco’s excuse for not providing an additional 11 acres of park land is that the roof of its megaproject will double as a “park.” Cupertino’s General Plan (GP) does not allow a developer to offer roof space instead of real parks. Under the GP, only actual land that contains or connects to creeks and bike paths can be dedicated as “parkland” to balance the impact of a large project.

Additionally, Vallco’s so-called “green roof” would need to be maintained at huge expense by the City of Cupertino, year after year. 

(2) Polluted site. Sadly, the Vallco site is suffused with many types of pollution after decades of pesticide-based agriculture, car repair facilities and a gas station operating on the site. Several LUSTs (leaking underground storage tanks) remain on the site and pose major ongoing problems.  The Vallco site was never fully cleaned up and has no fewer than 64 listings on California’s statewide environmental database of polluted problem sites known as the “Cortese list.” 

Under SB35, hazardous sites listed on the Cortese List are not eligible for SB35 approval unless the pollution hazards have been fully cleared by the Department of Toxic Substances Control in Sacramento. In fact, the Department of Toxic Substances Control (DTSC) has never been asked to clear Vallco’s site for residential use. 

Excavation and construction work on the hazardous Vallco site would inevitably raise air-borne pollution throughout the area. Asbestos and dust pollution are also likely if old buildings are torn down without prior, careful inspection of the building materials used. 

(3) Failure to reserve 2/3 of project floor space for residential use. Under SB35, Vallco was required to dedicate at least two-thirds (66.7%) of the total floor area for residential use. Vallco falls far short of this minimum. In fact, the project offers only 57.53% of its area (not including parking) for residential use. The shortfall amounts to several hundred apartments that Vallco will not build to maximize its profit on office development instead. 

To hide the shortfall in residential space in its project, Vallco’s calculation includes residential parking areas as residential floor area, but omits parking from the calculation of office and commercial floor areas. 

(4) City staff withheld matter from Planning Commission and City Council and issued “approval” without City Council involvement. Under Cupertino’s long-established legal rules, zoning and other land use decisions must be made by the Planning Commission at a public hearing. Despite this, the SB35 application was never considered by the Planning Commission or the City Council. Some City staff unlawfully acted without authority. 

(5) Vallco violates zoned building heights. Vallco’s project openly flouts building height limitations under Cupertino’s zoning laws. For example, Vallco’s plan includes a 217.8 ft tower on a plot with a zoned building height of only 30 feet — more than seven times the permitted height. SB35 expressly confirms that general zoning standards apply to SB35 projects.

The Cityof Cupertino and Vallco Property Owner, LLC (the developer), have around five weeks to file their response, and a ruling is expected in May 2019.

You may read the petition yourself  and download it below. Support this groundbreaking legal action with a donation to Friends of Better Cupertino here.