OCT 30: Read City Attorney Randy Hom’s complaint against the City of Cupertino:
OCT 23 BREAKING NEWS: Former City Attorney Randy Hom sues Cupertino for wrongful termination because certain council members didn’t like is legal opinion on the Vallco SB 35 plan. Read all about it here: Mercury News and press release.
Meanwhile, Friends of Better Cupertino filed an amended petition with the court last Tuesday, October 16, to ask for relief from the City of Cupertino’s illegal approval of the Vallco SB 35 plan. The suit is active (case No. 18CV330190).
Download the petition from the links at the bottom of this page.
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Friends of Better Cupertino vs. City of Cupertino: Is this about Vallco?
Yes, it is. Here’s what you need to know: On March 27, Vallco Property Owner LLC sent an application to our City to develop Vallco under a new California law, SB35,* which gives developers a shortened approval process for housing projects, as well as other concessions and benefits. In order for SB35 benefits to apply, an application must meet certain requirements. The application is reviewed by city staff, who are supposed to make objective judgments on whether the plan meets each and every criteria; if it fails to meet any of the criteria, the city must deny the application. This review must occur within 90 days of receiving the application.
On June 24, Friends of Better Cupertino** petitioned the court to order the City of Cupertino to revoke its improper approval of Vallco’s SB35 application, and to instead to deny the application. FoBC’s petition claims that the Vallco SB35 application fails to meet SB35 legal criteria in multiple ways, including:
- Housing is not 2/3 of project. Under SB35, at least two-thirds (2/3) of the development must be residential (thus the Vallco application fails to fulfill the very criterion SB35 was meant for: more housing). Documents filed with the petition show that the developer attempts to make the application appear to consist of 2/3 housing by counting garage space for housing, but not for commercial/office areas. There are as also other substantive irregularities.
- The Vallco site is on the statewide listing of hazardous waste sites. SB35 requires that a site not be on the list. The Vallco site has been found to be contaminated by earlier uses as a gas station and a vehicle repair facility, and the site does appear on the statewide listing, indicating a complicated environmental history.
- The application doesn’t meet parkland requirements. Residential projects are required to include three acres of parkland per 1,000 residents. The developer has not done so, and tries to argue that its “green roof” amounts to parkland.
Any one of these issues should be fatal to the legal viability of the project, but Cupertino city staff has shown little appetite for reviewing the application based on the actual legal criteria. Besides those listed above, there are a number of other issues that can be used to challenge the city’s approval of the application (e.g, the site lacks necessary easements for traffic).
What happens next? In late September, FoBC will file an amended petition with updated documentation showing how the Vallco SB35 application fails to meet the legal criteria. Because this type of lawsuit relies in large part on written briefs and affidavits rather than oral court hearings with live witnesses, the hearing could then occur in a matter of weeks.
It is important to note that since SB35 is a new law, there are no precedents for challenges. But there is a well-developed body of law for challenging clerical (as opposed to discretionary) determinations by cities and other public entities in all sorts of situations.
Support Friends of Better Cupertino in this ground-breaking legal action!
- Donate at our GoFundMe page
- Donate by PayPal, debit or credit card on our website
- Mail a check payable to: Friends of Better Cupertino, P.O. Box 1464, Cupertino , CA 94105
SB35: Signed into law on September 29, 2017, SB35 is a state law that changed the local review process for certain development projects by establishing a streamlined, ministerial review and approval process if they meet objective planning standards.
Friends of Better Cupertino (FoBC) is a nonprofit, non-campaign organization to further the BC mission to support:
- Informed, empowered residents who are engaged in civic matters
- Transparency and accountability in local and regional government
- Sensible growth aligned with the needs and interests of a majority of residents