feet adjacent to dirt sidewalk area) and temporary construction easement would apply.6 The sidewalk is less than one-fourth the size of the 2.368-acre Property,7 and there appears to be ample space within existing rights-of-way (i.e., dirt side walk and road) to access existing utility lines along Riverside Drive.8 Furthermore, future street improvements (e.g., street, sewer, traffic signal, utility lines, etc. ) are already anticipated along Vineyard right-of-way (i.e., five-lane with 8-foot multi-use trail) as subject to the previously approved ORSC.9 In sum, it is unclear how this significantly smaller temporary construction easement is necessary here to qualify as exempt, which would nevertheless have to be declared exempted at a regular public meeting.
2. THE DDA’S PROPOSAL OF A 227-ROOM HOTEL WAS NOT ANALYZED UNDER THE PRIOR EIR Under CEQA, once an EIR has been prepared, a subsequent or supplement EIR is required for granting a later discretionary approval when there have been: (i) substantial changes to the project, (ii) substantial changes in the circumstances involving the project, or (iii) significant new information involving the project. (See Pub. Res. Code § 21166; CEQA Guidelines § 15162.) Projects not contemplated or not within the geographic area may require additional CEQA analysis.10 Here, the DDA contemplates a 227-room hotel, which the staff report suggests was covered by the previously certified EIR.11 However, the EIR does not mention the DDA or the proposed 227-room hotel Project. Instead, the EIR contemplated a mere 100-room hotel located in planning area (“PA”) 3, and anticipated retail uses within PA2 (i.e., where the City-owned Property is located).12 It is unclear if the City is now contemplating a single larger hotel in a different location (i.e., a 227-room hotel in PA2) or is considering two hotels (i.e., 227-rooms in PA2 plus the 100-room hotel in PA3).
As disucssed below, even a single larger hotel would likely have exacerbated impacts not analyzed or mitigated under the certified EIR. Therefore, the proposed 227-room hotel development appears 6 See Agenda Report, p. 2; Exhibit A (area generally located along sidewalk area); DDA, PDF p. 7, 59, 78 (section 1.1.49, Exhs. A-1 & D-1).
7 For example, this SLA exemption has been cited by other agencies exchanging relatively comparable properties. (See e.g., Capitola Planning Commission Agenda Report (4/4/24), p. 1 [5,592 -sf property [Soquel Union Elementary School District] in exchange for 4,284-sf property [City of Capitola]), https://mccmeetingspublic.blob.core.usgovcloudapi.net/capitolaca -meet- 7a1699cfde7f4d0f8d2bce5df22a5e22/ITEM-Attachment-003-fa130eb7dab849d0a07fab4d3f57eaa1.pdf. 8 See GoogleMaps, https://www.google.com/maps/place/S+Vineyard+Ave+%26+E+Riverside+ Dr,+Ontario, +CA+91761/ @34.019553,-117.6108423,3a,60y,275.55h,90.32t/data=!3m7!1e1!3m5! 1sg62gK6vh1vo5 oTVRplSt-w!2e0!6shttps:%2F%2Fstreetviewpixels-pa.googleapis.com%2Fv1%2 Fthumbnail%3Fcb_client% 3Dmaps_sv.tactile%26w%3D900%26h%3D600%26pitch%3D-0.31853410523336834% 26panoid%3Dg62g K6vh1vo5oTVRplSt-w%26yaw%3D275.5462992542434! 7i16384!8i8192!4m6!3m5!1s0x80c334cd1f399d7 b:0x14ca414b23038095!8m2!3d34.0195981!4d-117.610924!16s%2Fg%2F11gdzt7tpb?entry=ttu&g_ep= EgoyMDI1MDIxMi4wIKXMDSoJLDEwMjExNDU1SAFQAw%3D%3D .
9 See DEIR, PDF p. 101, 117, 127-136, 151-159, 692; see also Agenda Report (7/16/24, Item 20, p. 4. 10 See e.g., Concerned Citizens of Costa Mesa, Inc. v 32nd Dist. Agric. Ass'n (1986) 42 C3d 929, 937 (plans for approved amphitheater project changed to increase seating significantly, expand the site, and reorient the stage to face nearby residences); Save Berkeley's Neighborhoods v Regents of Univ. of Cal. (2020) 51 CA5th 226, 237 (claim that university changed project described in campus long -range development plan by approving increases in student enrollment well beyond development plan and EIR projections, without considering whether further CEQA review was required, alleged violation of CEQA). 11 See Summary Report, p. 1; Agenda Report, p. 2; DDA, PDF p. 60 [Exh. B Scope of Development]. 12 DEIR, PDF pp. 32, 41-43, 114-117 (project components and planning areas), 176-178 (listing the project approvals); MMRP, PDF p. 7.
Council Comments RE: Ontario Ranch Hotels, LLC DDA
February 18, 2025
to reflect substantial changes to the project, meaning that further CEQA review should be required before the City approves the DDA.
3. EXACERBATED GHG/VMT IMPACTS CAN BE FURTHER MITIGATED As mentioned above, the staff report suggests the proposed action was covered by the prior FEIR, including the Council finding that “all environmental impacts” have been addressed within the prior EIR and that “no new or additional mitigation measures or alternatives are required.” (Proposed Resolution, p. 3.) However, the prior EIR contemplated only a 100-room hotel, including assessing VMTs and GHGs associated with the hotel use.13 By more than doubling that size, the anticipated Project would possibly significantly increase the amount of VMTs and GHGs (including those deriving from mobile emissions) associated with the hotel use (i.e., new or exacerbated impacts). These are impacts going above and beyond those previously found significant and unavoidable.14 As it relates to hotel-related development within PAs 2 and 3, the EIR largely relies on mitigation measures GHG-4 (i.e., point system under City’s Community Climate Action Plan (“CCAP”)) and TRAF-1a (development of Transportation Demand Management (“TDM”)).15 (See excerpts below.)
GHG-4 The City of Ontario shall require applicants to design and construct buildings in Planning Areas 2, 3, and 4 to achieve a 100 -point score with the 2022 Community Climate Action Plan (CCAP), Table 6, “Screening Table for Implementing GHG Performance S tandards for Commercial, Office, Medical, Hotel, Industrial, and Retail Development, 2030.” Alternatively, the analysis of development projects can be done through emissions calculations to demonstrate equivalent reductions using CalEEMod or a similar tool . Projects that do not use the CCAP Screening Tables to demonstrate consistency with the 2022 CCAP must demonstrate that they will generate annual GHG emissions that do not exceed the following emission screening thresholds from the CCAP:
1. For residential development completed between 2020 and 2030, the project shall not produce GHG emissions greater than 5.85 MTCO 2e/dwelling unit.
2. For residential development completed after 2030, the project shall not produce GHG emissions greater than 1.53 MTCO 2e/dwelling unit.
3. For nonresidential developments of all types completed between 2020 and 2030, the project shall not produce GHG emissions greater than 8.84 MTCO2e/2,500 square feet of conditioned space.
4. For nonresidential developments of all types completed after 2030, the project shall not produce GHG emissions greater than 3.61 MTCO 2e/2,500 square feet of conditioned space.
For projects that include both residential and nonresidential space, the residential and nonresidential components must be assessed separately against their respective applicable thresholds
###
13 DEIR, Appendix D1 (Air Quality GHG Modeling), PDF pp. 4, 31, 683; DEIR, Appendix L1 (VMT Memorandum), PDF pp. 9, 34; FEIR, PDF p. 171.
14 See e.g., CEQA Findings of Fact and Statement of Overriding Considerations, pp. 105-109, 115-119, 137, 141-142.
15 Ibid., see also MMRP, pp. 23, 30,
Council Comments RE: Ontario Ranch Hotels, LLC DDA
February 18, 2025
TRAF-1a Commercial/Hospitality TDM Measures. Applicants for commercial and hotel development in Planning Areas 2, 3, and 4 shall prepare Transportation Demand Management (TDM) measures analyzed under a VMT -reduction methodology consistent with the Californ ia Air Pollution Control Officers Association’s (CAPCOA) Final Handbook for Analyzing Greenhouse Gas Emission Reductions, Assessing Climate Vulnerabilities, and Advancing Health and Equity (2021) and approved by the City of Ontario. Measures shall include but are not limited to:
• Implement a voluntary commute trip reduction program for employees. • Implement an employee parking cash-out program for employees. • Collaborate with the City to support transit service expansion. • Comply with requirements detailed in the Parking Management Plan, including providing parking validation for retail and hospitality visitors. (See ORSC EIR, MMRP, pp. 23, 30.)
While the ORSC EIR stated there were no other feasible mitigation measures,16 additionally feasible mitigation measures do seem available to reduce the impacts exacerbated by the larger hotel Project17—especially measures that can minimize VMTs and associated GHG mobile emissions recommended by the California Air Pollution Control Officers Association (“CAPCOA”) and other public agencies (e.g., Governor’s Office of Planning and Research (“OPR”), the Southern California Association of Governments (“SCAG”), South Coast Air Quality Management District (“SCAQMD”), and the California Air Resources Board (“CARB”)).18 For example, the City could require a mandatory rather than merely voluntary commute trip reduction program (“CTRP”), provide subsidized transit passes, include bike/scooter-share facilities, and other strategies.19 CAPCOA estimates that a mandatory CTRP is more than six times more effective at reducing GHG impacts (i.e., up to 26%) as compared to a voluntary CTRP (i.e., up to 4%).20 Furthermore, it is unclear why some of the 227 rooms could not accommodate some form of on-site housing, such as affordable or 16 Ibid., 109, 119
17 To the extent impacts are part of the existing baseline conditions, it is nevertheless proper to evaluate a development’s exacerbating effects on existing impacts. (See Clews Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 194 [quoting California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 377, 388].)
18 See CAPCOA (Dec. 2021) Handbook for Analyzing Greenhouse Gas Emission Reductions, Assessing Climate Vulnerabilities, and Advancing Health and Equity, pp. 31-32, 73, 76, 80-96, https://www.airquality.org/ ClimateChange/Documents/Final%20Handbook_AB434.pdf; CAPCOA (Aug. 2010) Quantifying GHGs and Mitigation, pp. 64-74, https://www.contracosta.ca.gov/DocumentCenter/View/34123/CAPCOA-2010-GHG- Quantification-PDF; OPR (Dec. 2018) Technical Advisory, pp. 27, https://opr.ca.gov/docs/20190122-743_ Technical_Advisory.pdf; SCAG (Dec. 2019) Final Program EIR, pp. 2.0-18 – 2.0-71 (see project-level mitigation measures for air quality, GHG, and transportation impacts), https://scag.ca.gov/sites/main/files/file- attachments/fpeir_connectsocal_complete.pdf?1607981618; SCAG (Apr. 2024), Program EIR, pp. A-7 – A-48, https://scag.ca.gov/sites/main/files/file-attachments/exhibit_a_mmrp_508_final.pdf?1712003625; CARB 2022 Scoping Plan, 4, 7, 24, 29 & Appendix D, pp. 23, https://ww2.arb.ca.gov/our-work/programs/ab-32- climate-change-scoping-plan/2022-scoping-plan-documents; CARB’s 2017 Scoping Plan, Appendix B-Local Action, pp. 1-8, 7-9 & Appendix D, p. 2, https://www.arb.ca.gov/cc/scopingplan/app_b_local_action_final.pdf. 19 See e.g., CAPCOA (Dec. 2021), supra fn. 16, pp. 83; CAPCOA (Aug. 2010), supra fn. 16, p. 66. 20 CAPCOA (Dec. 2021), supra fn. 16, at pp. 83, 86.
Council Comments RE: Ontario Ranch Hotels, LLC DDA
February 18, 2025
work-force housing. Therefore, we urge the City to consider a more robust, hotel-specific mandatory commuter reduction program that could include:
• Specific performance level to be reached (e.g., specific VMT or average daily trip reduction or both);
• Specified participation level (e.g., 100% of employees); • Participation in guaranteed ride programs for employees who need to respond to emergencies arising when normal public transit is infeasible; • Incentivize employee carpool/vanpool access to preferential parking spaces or hotel valet service or both;
• Subsidized transit passes for hotel workers and patrons; • Provide end-of-trip facilities; and
• Dedicated shuttle service for hotel patrons toward nearby destinations.21
4. MISSING INFORMATION AND PROJECT PIECEMEALING
The staff report also fails to explain and/or provide other key information. For example, the staff report cites a Thompson & Thompson Real Estate Valuation and Consulting, Inc. appraisal, which is not included. (See Summary Report, p. 3.) This is significant because the staff report does not explain to the public numerous key issues with the DDA, for example: (1) how was the fair market value of the City-owned property determined to be “$14.00 per square foot”; (2) what is the difference between the City’s purchase price (i.e., $1.4 million) and the estimated reuse value of the Property to the Developer, which is admittedly valued “significantly higher”; and (3) how much increased “revenue” is the City expecting from the new hotel (e.g., property tax, TOT, etc.). (Id.) Furthermore, as part of the City’s action in July 2024, the Property was rezoned CCS,22 which requires a hotel CUP under section 5.03.250 of the City’s Development Code, which requires (among other things) a market feasibility study23—also not mentioned or provided in the staff report.
Additionally, the increased hotel component and failure to consider the CUP here raises the concern of whether the City is improperly piecemealing the Project and project approvals. Under CEQA, the City must assess “the whole of an action” and not improperly piecemeal a project’s analysis whereby the full impacts of a development are masked by chopping up the overall project into smaller development projects. (CEQA Guidelines §§ 15003(h), 15378(a).24) This analysis must include all phases of the project and all reasonably foreseeable consequences of the project. (Id., § 15126.25) This analysis should be prepared as early as feasible in the planning process and before the City commits to any action. (Id., § 15004(b).) Here, the prior EIR looked at only a 100-room hotel—not a 227-room hotel—and the City seems to be considering committing to the larger hotel Project without conducting a subsequent CEQA analysis and evaluating a CUP. 21 See e.g., Santa Monica Municipal Code § 9.5.130(B)(2)(b); https://www.octa.net/getting-around/ rideshare/oc-rideshare/employers/guaranteed-ride-home-program/; https://www.ci.healdsburg.ca.us/ AgendaCenter/ViewFile/Item/3098?fileID=21731.
22 see July Resolution, PDF pp. 1-2.
23 Dev. Code, PDF p. 17, 44, 54, 130-132.
24 See also Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1454; San Joaquin Raptor/Wildlife Rescue Center v. Cnty. of Stanislaus (1994) 27 Cal.App.4th 713, 730. 25 See also Laurel Heights Improvement Ass’n v Regents of Univ. of Cal. (1988) 47 Cal.3d 376, 396-398; City of Santee v County of San Diego (1989) 214 Cal.App.3d 1438, 1454.
Council Comments RE: Ontario Ranch Hotels, LLC DDA
February 18, 2025
III. CONCLUSION
In sum, Local 11 is concerned that the City may not be following normal SLA rules that would make the City Parcels available to housing developers. Local 11 is also concerned about the City’s reliance on an inadequate CEQA review and mitigation that seems to have never contemplated the DDA or a 227-room hotel at the Property (among other concerns). Local 11 respectfully urges the City to stay action on the DDA until the issues mentioned above are adequately addressed.
Local 11 reserves the right to supplement these comments at future hearings and proceedings for this Project. (See Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1120 [CEQA litigation not limited only to claims made during EIR comment period].) This office requests, to the extent not already on the notice list, all notices of CEQA actions and any approvals, Project CEQA determinations, or public hearings to be held on the Project under state or local law requiring local agencies to mail such notices to any person who has filed a written request for them. (See Pub. Res. Code §§, 21092.2, 21167(f) and Gov. Code § 65092.) Please send notice by electronic and regular mail to the address identified on page one of this letter.
Thank you for consideration of these comments. We ask that this letter is placed in the administrative record for the Project.
Sincerely,
_________________________________________
Jordan R. Sisson, Esq.
Attorney for UNITE HERE Local 11
From: Kitty Moore
To: City Clerk; Lauren Sapudar
Subject: Written Communications Agenda Items 8 and 9 Mary Ave. Villas Date: Monday, March 2, 2026 6:05:41 PM
Attachments: Pages from NR 26-47 Response 1_Redacted.pdf Re Your Vote on Mary.pdf
Dear City Clerk,
Please include the attached documents and this email in the official administrative record for the Mary Avenue Villas project (Agenda Items 8 and 9) for tomorrow's meeting.
These materials—one discovered through a Public Records Act search and the other sent directly to me—are being submitted specifically to protect the integrity of the quasi- judicial process. Formal inclusion ensures full transparency and upholds the procedural due process required for this project.
Contextual Note: These records involve communications with Joshua Safran, the legal counsel for the project opposition, and John Anzur (who appears to be attorney John Andrew Anzur), regarding legal coordination against the project apparently with Councilmember Wang as intermediary.
Thank you,
Kitty Moore
Kitty Moore
Mayor
City Council
[email protected]
(408)
777-1389
From: R "Ray" Wang <[email protected]>
Sent: Monday, February 09, 2026 10:24 PM EST
To: Lina <S Brian Avery
; Walter Li
Subject: Re: Mary Avenue
>; Theresa Horng [i
[email protected]>; Roberta Murai
; City Council <[email protected]>
Hello Mary Avenue team,
This person wants to help you. I'll let you assess if he’s friend or foe but | can tell you he wrote a scathing letter to council and Kitty for her lack of support.
Warmest regards
R “Ray” Wang
Member, Cupertino City Council
www.ray4cupertino.org
Cupertino
City Council
Residents First e Fiscal Responsibility e Quality of Life
On Feb 9, 2026, at 14:55 wrote:
Ray, writing u on this email. You can forward my email to the leaders of the save cupertino stop mary. We would be willing to donate something to the legal fight to stop it. The newspaper said some legal corners were cut by the city and maybe a court will stop it.
Tks, john
1 of 2
Monday, March 2, 2026 at 14:24:05 Pacific Standard TimeMonday, March 2, 2026 at 14:24:05 Pacific Standard Time Subject: Subject:Re: Your Vote on Mary
Date: Date:Friday, February 20, 2026 at 7:30:01 AM Pacific Standard Time From: From:
To: To: Kitty Moore
CC: CC: R "Ray" Wang, John Andrew Anzur
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
Dear Ms Moore, Following up on this email which you did not respond to or even acknowledge.
Referring back to the election, you and Ray Wang were elected specifically because of your ability to form an anti development majority on the Board.
Instead you cast a deciding vote to move forward a very locally unpopular development project on Mary. Why do this?
Simply asking for an explanation how u possibly could vote ,and be the deciding vote, to move this forward. It is a betrayal to those who voted u in .
I also understand from the press that not all the legalities were followed. Can y explain this please? Can you also forward my email to the citizens who led the opposition to this project, or send us their email.
Finally, why spar with your colleague. U two were voted in together. The press report some petty retribution. Focus on the important issues.
When these things get built they are permanent. Your decision has long lasting bad implications for this neighborhood.
Look forward to hearing from you .
On Feb 9, 2026 12:55 PM, wrote:
Dear Ms Moore,
What happened on your vote on Mary Avenue? If you had voted with Wang the ridiculous locally unpopular project was dead (2-2-1). We elected u and Wang as a block to slow development and u ignored your voter block. Really? Would like an explanation why u didnt follow your promises to voters and voted contrary to Wang.
Thank you.
From: Cupertino ForAll
To: City Council
Cc: Cupertino City Manager"s Office; City Clerk
Subject: Support for Mary Avenue Villas
Date: Monday, March 2, 2026 6:07:13 PM
Attachments: image.png
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
March 02, 2026
Please include the following letter in the Written Communications for City Council Meeting on March 3, 2026.
______________________________________________________
Dear Mayor Moore, Vice Mayor, and Councilmembers,
Subject: Agenda Items 8 & 9,
City Council Meeting March 3, 2026, Mary Avenue
Villas Project
Cupertino For All (CFA) strongly advocates in favor of, and urges City Council to approve both Agenda Items 8 & 9, re-stated from Staff Reports below:
Agenda Item 8:
Consider Adopting a Resolution Vacating a Portion of Public Right- of-Way Located Along the Westerly boundary of Mary Avenue (APN 326-27-053) Recommended Actions: Find project exempt from CEQA
1. Find the project exempt from the California Environmental Quality Act (CEQA)
2. Adopt Resolution No. 26-XXX approving the vacation of a portion of public right-of- way located along the westerly boundary of Mary Ave (APN 326-27-053) Agenda Item 9:
Consider Adopting a Resolution Declaring the Mary Avenue property (APN 326-27-053) Exempt Surplus Land under the California Surplus Land Act.
Recommended Actions:
1. Find project exempt from CEQA
2. Adopt Resolution No. 26-XXX declaring the Mary Avenue property (APN 326-37- 053) to be exempt surplus land pursuant to the provision of the Surplus Land Act codified at
California Government Code subsection 54221(f)(1)(F)(i) Mary Avenue Villas fills a critical need. With this housing, Cupertino joins the region in building homes for our most vulnerable residents. This, also, fulfills another goal of the city: preventing people from becoming unhoused.
We honor the dedicated advocates for Extremely Low Income (ELI) Housing for those who are Intellectually Developmentally Disabled (IDD). These advocates have dreamed and worked for this housing for two decades. Many organizations and families have borne witness to the need.
Thank you to several City Councils for their attention and support over many years as this project worked its way through regulatory meetings and decisions required. In 2019, Mayor Scharf put the project for ELI/ IDD housing on the City Priorities which provided City leadership from that time to this important day.
Thank you to Cupertino’s knowledgeable, dedicated City Staff, and excellent Attorneys, who have worked diligently over the years to complete the long, detailed list of regulatory steps for this unique site and special-needs housing. As stated in the Staff Reports for both Agenda Items, many actions have been taken, meetings held, findings made, and affirmative decisions made, to move Mary Avenue Villas Project toward final approval.
Thank you to the Public who have spoken and written over the years in support of this critical housing for vulnerable residents. Your warmth and generosity have shone through your presence and words.
Cupertino For All strongly advocates in favor of, and urges City Council to approve, both Agenda Items 8 & 9.
We are here to advocate that this City Council join the several prior Councils that have moved this project forward with the necessary approvals, funding, and with these actions, the land needed to build a place for our most vulnerable neighbors. A place for them to become. A place for them to enjoy independent lives that allow them to continue to learn and grow, throughout their lives. A place for them to create a community. Those of us who enjoy the independence of our own homes can watch with joy as 40 new homes are added to Cupertino’s housing stock to provide such independence to others.
We urge you to vote “yes” without further delay.
Sincerely,
Cupertino For All
Board of Directors
From: louise saadati
To: City Council; City Clerk
Subject: Agenda Items 8 & 9 of City Council Meeting March 3, 2026, Mary Avenue Villas Project Date: Monday, March 2, 2026 5:33:30 PM
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
March 02, 2026
Please include the following letter in the Written
Communications for City Council Meetings for
March 3, 2026 _________________.
Dear Mayor Moore, Vice Mayor Liang and
Councilmembers:
Please vote yes for both Agenda Items 8 and 9
in the 3/3/26 council meetings.
This yes vote is needed to allow the Mary
Avenue Villas to progress to final approval and
development. It has been a slow arduous 20
year process starting with grassroots Cupertino
community including
advocates for Extremely Low Income (ELI)
Housing for Intellectually and those who are Developmentally Disabled (IDD); then obtaining support from the Rotary for more than 10 years; and then Steve Scharf in 2019 to meet the need
in Cupertino for some affordable housing for
EDD and IDD.
This site is part of the required Housing Element
that HCD approved.
June 16, 2026 is the HCD deadline for
Cupertino to meet the Housing Element
requirement for below market housing. We
need this Mary Avenue Villa to be approved
before June 16, 2026 to KEEP CUPERTINO
FREE FROM BUILDERS’ REMEDIES.
Please approve Items 8 and 9 on 3/3/26 Council
Meeting and expedite its progress to
development and meeting Cupertino’s Housing
Element requirements.
Thank you to the City Councils, Commissions,
City Staff, advocates and community who have
worked hard over a 20 year period to make this
project be possible and come close to final
approval.
Thank you ,
Louise Saadati
From: Joshua Safran
To: Lauren Sapudar; City Clerk; City Council
Cc: Tina Kapoor; Cupertino City Manager"s Office; Kirsten Squarcia; Benjamin Fu; City of Cupertino Planning Dept.; Floy Andrews; City Attorney"s Office
Subject: Demand Letter to City Council of Cupertino re Mary Avenue Villas Project (March 3, 2026) Date: Tuesday, March 3, 2026 2:36:00 PM
Attachments: image001.png
Demand Letter to City Council of Cupertino re Mary Avenue Villas Project (March 3, 2026).pdf CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
Dear Mayor Moore and Members of the City Council,
Please find attached our Request for Compliance with Law and Objections to Agenda Items 8 & 9 of City Council Agenda of March 3, 2026: Proposed Right-of-Way Vacation (Res. 26-024) and Exempt Surplus Land Declaration (Res. 26-025) for Mary Avenue Villas Project (File #: 26-14737) for due Council consideration and inclusion in the public record.
All the best,
Joshua
Best Regards,
Joshua Safran
One Almaden Boulevard, Suite 700
San Jose, California 95113
Phone:
408.478.4100
Email: [email protected]
The information in this e-mail and any attachments is confidential, and may be subject to the attorney-client or work product privilege.
If you are not the intended recipient, any review, disclosure, distribution, or use of such information is strictly prohibited.
If you have received this e-mail in error, please destroy it and notify the sender immediately.
One Almaden Boulevard, Suite 700 San Jose, CA 95113
P: (408) 478-4100 F: (408) 295-4100 www.strategylaw.com
March 3, 2026 JOSHUA SAFRAN, ESQ.
[email protected]
Cupertino City Council
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
By Email ([email protected])
Request for Compliance with Law and Objections to Agenda Items 8 & 9 of City Council Agenda of March 3, 2026:
Proposed Right-of-Way Vacation (Res. 26-024) and
Exempt Surplus Land Declaration (Res. 26-025) for
Mary Avenue Villas Project (File #: 26-14737)
Dear Mayor Moore and Members of the City Council:
We represent the Garden Gate Coalition for Mary Avenue Safety (the “Coalition”), an unincorporated association of residents and comm unity members directly and adversely affected by the proposed Mary Avenue Villas Project (File #: 26-14737) (the “Project”), and the City’s related approvals and commitments affecting the Mary Avenue right-of-way and public parking resources. The Coalition respec tfully objects to the actions pr oposed for tonight under Agenda Items 8 and 9, including the City’s request that the Council (i) again find these actions CEQA- exempt, and (ii) adopt resolutions to vacate a portion of the Mary Avenue public right-of-way and to declare City-owned land “exempt surplus land” under the Surplus Land Act.
At a minimum, Items 8 and 9 should be continued. The record demonstrates that the City has been proceeding in a rushed, backward, and legally indefensible manner – approving and committing first, and attempting to supply required findings and lawful sequencing later – driven by an external financing timeline. Proceeding tonight would compound those defects and further prejudice affected residents.
I. Tonight’s Actions Are Not “Mere Implementation” and Cannot Lawfully Proceed on a Categorical Exemption
Item 8’s staff report asks the Council to “[f]ind the project exempt from…CEQA” and adopt the street vacation resolution. Item 9 likewise as ks the Council to “[f]ind the project exempt from…CEQA” and adopt the exempt surplus land declaration. The draft exempt-surplus resolution goes further, asserting that “none of the exceptions” apply and that the action is “not…a separate project under CEQA” but “an implementati on action within the scope” of the housing development.
Demand Letter to Cupertino City Council re Mary Avenue Villas Project (File #: 26-14737)
The Coalition has alread y shown, supported by eviden ce in the record a nd supplemental expert analysis, that CEQA’s categorical exemption criteria and exceptions are not satisfied and that the City’s CEQA approach reflects improper segmentation of an integrated undertaking. As explained in the Coalition’s Petition for Reconsideration (the “Petition”) filed on February 27, 2026, the DDA approval, public land conveyance, and ri ght-of-way vacation enabling development constitute a single integrated undertaking that must be evaluated as the “whole of the action.” II. The City Is Inappropriately Attempti ng to “Cure” Required Findings After Committing Itself through the DDA
A. The City’s Own Staff Report Co nfirms these Actions Are Conditions Precedent to Perfecting the Transfer under the DDA
The staff report for Item 9 acknowledges that on February 3, 2026 the Council voted to enter into a contingent DDA, and that the City cannot transfer the City-owned property unless contingencies are satisfied, including (1) declaring the property “exempt surplus land,” and (2) vacating 0.79 acres of public right-of-way. It further states that only after those contingencies are satisfied “may a transfer of property be perfected.”
In other words, tonight’s items are not ministerial follo w-through; they are th e City’s effort to fulfill legal prerequisites that should have been lawfully analyzed and sequenced before the City committed itself through the DDA and related approvals.
B. The Record Demonstrates “Cart Before the Horse” Sequencing Driven by Applicant Financing Deadlines
As the Coalition already documented in the Peti tion, the City’s process for this Project has proceeded as a deadline-driven rush where the City approves and commits first, and attempts to supply legally required findings and sequencing later.
That is precisely what is happening again toni ght: staff explicitly links the exempt surplus declaration to “the Project’s financing timeline and regulatory commitments.” Deadline pressure is not a lawful substitute for sequencing required by CEQA, the Surplus Land Act, and right-of- way vacation law.
C. Belated Planning Commission Action s Cannot Retroactively Legitimize an Invalid Process
In the Petition, the Coalition has already ex plained that a belated Planning Commission consistency determination cannot retroactively legitimize an i nvalid CEQA process or cure improper project segmentation, and that the appropriate course is to reset the process and comply with the sequencing and findings requirements imposed by state law.
Demand Letter to Cupertino City Council re Mary Avenue Villas Project (File #: 26-14737)
Separately, the Coalition has s hown that the Planning Commission was inappropriately asked to bless the abandonment of public right-of-way before the City had established what public functions will be eliminated, modified, or displaced, and that this sequencing deprived the Commission and public of a meaningful ability to evaluate General Plan consistency.
D. The DDA Reflects Impermissible Predetermination of Approvals.
As set forth in the Coalition’s prior subm issions, the DDA is not “implementation”; it independently commits the City to convey public land and vaca te public rights-of-way and constitutes unlawful predetermination whereby commitments are made before lawful completion of CEQA compliance, surplus land determinations, and right-of-way vacation findings.
III. The City Cannot Declare “Exempt Surplus Land” on Conclusory Findings that Ignore the Property’s Functional Public Use and Rely on Bootstrapping.
The Item 9 staff report confirms the “Property” includes 0.79 acres of right-of-way and “some on- street parking.” The Coalition has already demonstrated that the Surplus Land Act requires a good- faith determination that property is not necessary for present or foreseeable public use, grounded in the property’s actual functional use, and that the City’s approach improperly bootstraps surplus status to the redevelopment decision.
This is not a technicality. Staff expressly states that adoption of the ex empt surplus declaration “authorizes the City to proceed toward disposition…in accordance with the Project’s financing timeline.” The City should not dispose of public assets on conclusory “not necessary” recitals where the record contains substantial evidence of ongoing public use and displaced impacts.
IV. The Right-Of-Way Vacation Is Not Supported by Substantial Evidence and Cannot Be Treated as “Without Adverse Effect.”
Item 8’s staff report repeatedly asserts that the City “must vacate” the right-of-way “[t]o facilitate the project’s construction,” and that if the Co uncil does not adopt the vacation “the approved development project would not be able to move forward.” That is not the legal standard. A right- of-way vacation is a permanent abandonment of a public asset, requiring findings supported by evidence that the area is unnecessary for present or prospective public use.
The Coalition’s Petition and supporting submissions also explain that the record contains substantial evidence of adverse traffic/parking/circulation and safety impacts, which further undermines any finding that the vacation (and re lated actions) can proceed under a categorical exemption.
Demand Letter to Cupertino City Council re Mary Avenue Villas Project (File #: 26-14737)
V. Councilmembers With Demonstrated P rejudgment/Bias (and Other Disqualifying Relationships) Must Recuse Themselves for Disqualifying Conflicts of Interest The Coalition has separately requested that the Council proceed only after compliance with disqualifications due to conflicts of interest. This issue is not abstract; it goes to the validity of any action taken tonight if the voting body is not impartial.
A. The Petition Documents Record Evid ence of Prejudgment and Lack of the Requisite “Open Mind.”
The Petition explains that a fair quasi-judicial hearing requires decisionmakers to maintain an “open mind,” decide based on law and eviden ce, and not proceed based on animus, moral condemnation, or prejudgment; it identifies extensive remarks by Councilmember J.R. Fruen that the Coalition contends demonstrate prejudgment a nd partiality. The Petition further notes that Councilmember Fruen was the “deciding majority vo te,” that he seconded the principal motion, and that if he had recused himself “the Decision would not have been made.” The Petition therefore requests that any rehear ing be conducted only after “recusal of any Councilmember who has demonstrated prejudgment or bias inconsistent with an ‘open mind.’” Those same principles apply to tonight’s continued, consequential actions that further implement and entrench the challenged approvals.
B. Participation Tied to Organizations Promoting the Project Raises Additional Conflict Concerns
The record also includes a specific request, out of an abundance of caution and to avoid the appearance of impropriety and self-dealing, that Councilmembers who are part of the Rotary Association (associated with and/or promoting the Project) should recuse themselves, and that any city council member who has a conflict of interest must recuse themselves from voting on this Project.
VI. Requested Relief for Tonight’s Meeting
For the reasons above, the Coalition respectfully requests that the City Council:
1. Continue Agenda Items 8 and 9 (Res. 26-024 and 26-025).
2. Direct staff to proceed only after full compliance with applicable law, including lawful CEQA review of the whole action, antecedent Government Code § 65402 determinations, right-of-way vacation findings/procedures, and Surplus Land Act compliance.
3. Ensure a lawful and impartial decisionmaking body by requiring recusal of any Councilmember with a disqualifying conflicts of interest, including prejudgment/bias
Demand Letter to Cupertino City Council re Mary Avenue Villas Project (File #: 26-14737)
inconsistent with an “open mind,” and addressing the additional conflict concerns described above.
4. Decline to make or reaffirm categorical exemption findings for these actions where the record shows substantial evidence of impacts and legally defective segmentation/sequencing.
This letter is submitted without prejudice to, and shall not be deemed to waive, any claims, objections, arguments, or remedies available to the Coalition under CEQA, state law, local ordinance, or common law. All such rights and remedies are expressly reserved.
Thank you for your attention to this important matter.
Very truly yours,
STRATEGY LAW, LLP
Joshua Safran, Esq.
cc: Tina Kapoor, City Manager (Tinak@c upertino.gov; [email protected]) Kirsten Squarcia, Interim Deputy City Manager ([email protected]; ) Lauren Sapudar, Acting City Clerk ([email protected]; [email protected]) Benjamin Fu, Director of Community Development ([email protected]; [email protected])
Floy Andrews, Interim City Attorney ([email protected]; [email protected])
From: Connie-Comcast Swim5am
To: City Clerk; City Council
Subject: Written Communications City Council 2026-3-3 Agenda Item 9 Date: Tuesday, March 3, 2026 9:29:37 PM
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
Dear City Clerk,
Please add my comments to the written record.
Sincerely,
Connie Cunningham
2026-03-03 CC Written Communications; Mary Avenue Villa Project Agenda Item 9 Good Evening, Mayor Moore, Vice Mayor Chao, Councilmembers, City Manager, and City Attorney:
Thank you again to the City Staff for their excellent work and to the City Attorney for opinions we can rely upon that the project meets legal requirements.
I urge Council to approve the recommendations for Agenda Item 9:
Find the
project exempt from CEQA, and Declare the Mary Avenue property to be exempt surplus land pursuant to the provision of the Surplus Land Act codified in the California Government Code.
This project strikes a good balance among City needs:
housing, roadway, parking,
pedestrians and bicycling.
Sincerely,
Connie L. Cunningham
38 year resident and, currently, Chair, Housing Commission, speaking for myself only.
From Connie's iPhone
From: Lina
To: Public Comments; City Clerk; City Council
Subject: Public Comment March 3 2026 City Council Meeting Items 8 and 9 Mary Ave Project Date: Tuesday, March 3, 2026 4:18:50 PM
Attachments: Kids N Fun festival occupancy projection.png MPSP appendix A-41 Recs Maintain Mary Ave parking configuration.png Hexagon parking counts April 2025.png
MSPS vendor parking quote.png
I - Applicant Parking Exhibit.pdf
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
Dear Mayor Moore, Vice-Mayor Chao, and Councilmembers:
The Garden Gate Coalition for Mary Avenue Safety submits this formal correspondence to highlight critical factual inconsistencies and legal risks associated with tonight’s Agenda Items 8 and 9. While the Council has expressed a strong desire to support housing goals, proceeding with the street vacation and surplus land declaration on the current administrative record constitutes a documented Abuse of Discretion that jeopardizes the City’s legal standing.
1. "Surplus" Inaccuracy: The City’s Own Records Prove Necessity To declare land "Surplus" or "Unnecessary for Public Use" (Streets & Highways Code § 8324), the City must prove the land is not needed. The City’s own concurrent records prove the opposite:
The Westport Admission: On May 20, 2025, this Council reviewed the neighboring Westport Project (Building 1), which has a 19-space on-site parking deficit. In that record, the City’s "mitigation" was to suggest residents park 8 miles away in San Jose (Oakmont Properties).
The Contradiction: It is legally indefensible to declare Mary Avenue "surplus" land for the Villas project while simultaneously acknowledging that the project next door is so starved for infrastructure that its residents must be sent to another city.
2. Violation of the Adopted 2024 Memorial Park Specific Plan (MPSP) Approval of Item 8 directly contradicts the City’s newly adopted planning documents. The 2024 MPSP Parking Study (Recommendation #6) explicitly mandates: "Maintain current parking configuration along Mary Avenue." * A "Yes" vote tonight ignores the City’s own expert study which signals Mary Avenue as the sole unrestricted relief valve for a regional park where 87% of internal lots are closed during peak events.
Ignoring an adopted Specific Plan recommendation to facilitate a land disposition is a violation of General Plan consistency requirements.
3. Engineering a "Functional Failure" on Mary Avenue .The City’s reliance on the Hexagon Study—conducted during Spring Break (April 14–18, 2025)—is a failure of due diligence.
Baseline Error: By counting cars when Garden Gate Elementary was closed, the City ignored the primary daily users of this artery. It also excluded study during festival conditions.
Krupka Consulting - new report: New data shows that removing these 95 spaces will push parking occupancy to 157% during regional events. Under General Plan Mobility Policy M-1.2, this is a "functional failure." You cannot find a project consistent with the General Plan if it intentionally breaks the circulation network.
Recall that the only other park-adjacent residential parking (Ann Arbor, Christensen, Lauretta Dr.) is permit-only. Vacating Mary Ave is a direct loss of essential civic infrastructure.
4. The "De Anza" Myth Relying on De Anza College parking to mitigate the loss of Mary Avenue is legally speculative:
De Anza is moving to a paid model ($5–$10), which drives visitors onto free neighborhood streets.
Measure G expansion (the 1,000-seat Events Center) will consume De Anza's internal capacity.
The City cannot legally vacate a public asset based on the hope that a third-party private entity will provide a low-cost or free alternative.
5. Correcting the Legal Sequence The "backward" procedure employed here—where the Planning Commission was asked to ratify Council’s pre-determined decision—violates Government Code § 65402. Legal findings of consistency must precede the commitment to dispose of public land. This procedural error, combined with the unaddressed lead and arsenic soil contamination, makes the current CEQA exemption invalid.
Conclusion: A "moral" vote does not provide immunity from state law. We urge the Council to protect the City from the liability of an indefensible record. Do not declare this land "surplus" when your own Westport and Memorial Park records prove it is essential.
We request that you vote NO on Items 8 and 9 and direct staff to perform a full EIR that addresses the whole of the action.
Sincerely,
Lina
Garden Gate Coalition for Mary Avenue Safety
Attachments:
Memorial Park Specific Plan Parking Study 2024
Hexagon Parking Study Report November 2025
Krupka consulting Feb 25, 2026
Attached PDF is from the May 20, 2025 CC meeting on Westport Project Cupertino Assisted Living - Project Modification Back Up Building 1 (Senior Assisted Living) Parking Needs:
Use Expected Count Typical Parking Need Onsite
Stalls
Potential
Surplus Reasoning for Delta Alternative for Potential Overflow Residents 171 Units 14 Stalls
= 8% Utilization Rate
(# of Cars / # of Units)
3 11 Residents will be encouraged against
bringing cars. Onsite stalls will be
dedicated to concierge vehicles.
Concierge vehicles take Residents w/in 25 min
radius, nearby Oakmont Properties have surplus
parking (6.5-8.0 miles away in SJ)
Staff 110 Staff / 3 Shifts
= 37 Staff per Shift
10-13 Stalls
= 25-35% of Max
40 Shift Staff
10 3 75% of staff at nearby Oakmont
Properties take alt transit, staff will be
incentivized through vouchers, etc.
Bus, Bike, Hopper, Carpool, De Anza, Use of Retail
Space when not open (i.e. night shift)
Visitor 30 Daily throughout Day
= 5-10 at given time
5-10 Stalls
= 17-33% of
Daily Visitors
5 5 Guest count is variable on day/time,
estimated 30 guests per day spread
across 3-6 visit times
Uber/Carshare, De Anza
Public Parking
Subtotal - Senior Assisted Living 37 Stalls 18 Stalls 19 Stalls Retail 4 Stalls per 1,000 GSF
on 4,000 GSF
16 Stalls 16 0 N/A
Total 53 Stalls 34 Stalls 19 Stalls
ALTERTNATIVE: REMOVE RETAIL SF Reallocate 16 Retail Stalls Reallocate 16 Retail Stalls to Resident/Staff Parking 16 Stalls to Residential/Staff Parking Total - Senior Assisted Living 53 Stalls 34 Stalls
Impacts to Building 2 (Senior Independent) if Building 1 (Senior Assisted Living) doesn’t get built:
1. Added Annual Maintenance Costs per REA Budget:
Year 1 REA Budget $97,945
Building 1 Share $50,931
2. Loss of 7 Parking Stalls to be provided following construction of Building 1 7 Parking Stalls Cost PSF SF per Stall Total Cost
Underground $ value $300.00 325 $682,500
Surface $ value $60.00 325 $136,500
3. Loss of Common Open Space (Building 2 Open Space included in Building 1’s Central Green) Park SF Cost PSF Total Cost
Estimated Cost of Park 12,250 $170 $2,082,500 includes Hard + Soft Costs