February 28, 2019

What’s happening with our referendum effort to challenge the Vallco Town Center Specific Plan?

We are bombarded with information from the Vallco property owner, the contract legal counsel hired by City Council, and the Office of the City Clerk regarding possible next steps for the referenda effort to overturn the Fall 2018 approval of the Vallco Town Center Specific Plan. Meanwhile, Vice Mayor Liang Chao remains recused from decisions affecting Vallco while the City Attorney seeks an opinion from the Fair Political Practices Commission (FPPC) to confirm that her involvement would not constitute a conflict of interest.

Also, because it seems all things related to statewide construction mandates must be gauged for maximum impact on Cupertino residents and redevelopment of the Vallco Shopping District site, we have the introduction on February 19 by State Senator Nancy Skinner, D-Berkeley, of SB 330, the so-called “Housing Crisis Act of 2019.” SB 330 is remarkable in its specificity in the way it would undo our referendum effort and any efforts by Council to rescind the unpopular legislation that allows the Vallco Town Center Specific Plan. The Housing Crisis Act of 2019 is aptly named for its complete disregard for the root cause of the housing shortage — overproduction of office relative to the construction of housing — and that, if passed, will certainly make a bad housing situation worse — especially in the Bay Area. (Read the text of SB 330 here)

In an effort to keep referenda supporters and the general public informed regarding the status of the Vallco Town Center Specific Plan legislation (notwithstanding pending SB 330 legislation), Better Cupertino offers status updates and recommended actions for Council for all affected Cupertino legislation:

Final Environmental Impact Report (Final EIR), Resolution 18-084, approved by Council in 2018. Environmental impact reports are challenged by litigation and not challenged by referendum. No one challenged the approval of the Final EIR for the Vallco Town Center Specific Plan, so it remains unaffected by referenda activity. The Final EIR is required for Council approvals or actions to rescind the Vallco Town Center resolutions and ordinances. Recommended Action: No action.

Development Agreement, Ordinance 18-2179, BLUE petition, 4,115 valid signatures, 14% of registered voters signed the BLUE petition. The referendum to rescind the Development Agreement (BLUE) gained enough signatures to require a vote on the matter by the city council or by Cupertino voters. There has been no legal challenge to the validity of the referendum. The Development Agreement spells out the City’s obligations to honor the Vallco Town Center resolutions and ordinances. As soon as the Development Agreement is rescinded, Council is free to start actions to rescind other Vallco Town Center resolutions and ordinances without violating pending or real obligations to the property owner. Recommended Action: Rescind the Development Agreement as a referendum action as the FIRST action as soon as Council Members are free to vote on items affecting the Vallco Shopping District site.

Specific Plan, Resolution 18-086, GOLD petition, 4,139 valid signatures, 14% of registered voters signed the GOLD petition. We have no legal challenges pending against the Specific Plan (GOLD) petition. Recommended Action: Rescind the Specific Plan Resolution as a referendum action as the SECOND action as soon as Council Members are free to vote on items affecting the Vallco Shopping District site.

General Plan Amendment, Resolution 18-085, RED petition, 4,736 valid signatures, 16% of registered voters signed the RED petition. The City Clerk’s Office released multiple versions of the signed, dated, and attested copies of Resolution 18-085. As a result, residents received a different version of Resolution 18-085 than what is shared on the City’s records database. Additionally, to meet a requirement that relevant referendum petition content be legible and represented in “at least 8 pt font,” residents made minor changes to some table labels to ensure that the table content would be legible, proper size, and able to fit inside the existing table cells. The General Plan Amendment (RED) petition has been challenged by the property owner as invalid because the content differs from the content presented on the City’s records database. Recommended Action: rescind the General Plan Amendment Resolution as a Council action. Follow the legal protocol to push the resolution back to Planning Commission for hearings and vote, then back to Council for hearings and vote. Ensure that the public is properly noticed regarding the Planning Commission and Council actions required to rescind General Plan Amendment, Resolution 18-085 (GPA Resolution).

Municipal Code, Ordinance 18-2177, not challenged by referendum due to the ordinance’s very large 13,000+ page count. There are no legal challenges that threaten the Council’s ability to rescind the Municipal Code Ordinance as a Council Action. Council has full discretionary rights to rescind the Municipal Code Ordinance as a Council action. In fact, the Municipal Code Ordinance is dependent upon the GPA Resolution and cannot stand without it. Recommended Action: Rescind the Municipal Code Ordinance as a Council action after Council is able to rescind the GPA Resolution successfully.

Rezoning, Ordinance 18-2178, GREEN petition, 4,124 valid signatures, 14% of registered voters signed the GREEN petition. There are significant legal challenges pending against the Rezoning (GREEN) petition due to a problem introduced accidentally by residents on a map included in the ordinance. The effort to enlarge text in the map legend to the “at least 8 pt font” size, information included in another area of the map was removed by mistake. Legal representation for the City and Friends of Better Cupertino agree that the Rezoning petition probably would not survive if left to a judge to decide as a referendum action. However, Council has complete discretion to rescind the Rezoning Ordinance as a Council action. In fact, the Rezoning Ordinance is dependent upon the GPA Resolution and cannot stand without it. Recommended Action: Rescind the Rezoning Ordinance as a Council action after Council is able to rescind the GPA Resolution successfully.

A majority Council has the power to rescind the Fall 2018 approvals for the Vallco Town Center Specific Plan.

By rescinding Resolution 18-085, Resolution 18-086, Ordinance 18-2177, Ordinance 18-2178, and Ordinance 18-2179 using a combination of referenda and Council actions, the 2018-2020 Cupertino City Council can prevent the Specific Plan from being built while also working to engage the community to create a plan for the redevelopment of the Vallco Shopping District site that the residents can stand behind.