CC 04-01-2026 Searchable Packet.pdf — Cupertino City Council, April 1, 2026 (part 6 of 9)

7.01 1.80

0.08 2.41

5.01 0.21

0.55 7.70

1.31 0.09

2.74 3.89

0.13 3.22

0.25 5.65

2.34 0.11

3.10 4.54

0.22 0.13

0.19 0.25

0.17 0.87

9.41 0.98

0.10 2.96

3.57 0.12

1.00 9.95

0.79 0.09

12.45 Luminaire Schedule - LED
Project: 10857 LINDA VISTA DR - CUPERTINO
Symbol Qty Label Arrangement LLF Luminaire
Lumens
Luminaire
Watts
Description Filename
4 AA Single 0.900 4992 34.091 LUMEC RPN-35W20LED-727-G1-R2M @ 32' + 8' ARM RPN-35W20LED-727-G1-R2M.ies 15 CC Single 0.810 965 10.6 GARDCO PBL-42-14L-200-WW-G2-3-UNV PBL-14L-200-NW-G2-3-UNV.ies 13 WP Single 0.900 2037 20.9 GARDCO PWS-196L-450-WW-G3-2-UNV @ 8' PWS-196L-450-WW-G2-2-UNV.ies Calculation Summary
Project: 10857 LINDA VISTA DR - CUPERTINO
Description CalcType Units Avg Max Min Avg/Min Max/Min
ALLEY DRIVES Illuminance Fc 0.58 3.81 0.08 7.25 47.63
EVULICH COURT Illuminance Fc 0.40 0.81 0.10 4.00 8.10
LINDA VISTA Illuminance Fc 0.42 0.77 0.08 5.25 9.63
PATHWAYS Illuminance Fc 2.69 12.45 0.08 33.63 155.63
AGI32 VERSION 21.2
AGI (C) 2024 LIGHTING ANALYSTS, INC.
10268 W. CENTENNIAL ROAD, SUITE 202
LITTLETON, CO 80127
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * SALES REPRESENTATIVE: ALR; KRISTIAN REYES
differences will occur between measured values and calculated values. lighting calculations. If the real environment conditions do not match the input data, dimensions, reflectances, furniture and architectural elements significantly affect the variations. Input data used to generate the attached calculations such as room measurement techniques and field conditions such as voltage and temperature tolerances in calculation methods, testing procedures, component performance, Some differences between measured values and calculated results may occur due to Calculations have been performed according to IES standards and good practice.

BY: APPLICATIONS ENGINEERING; RAMON ZAPATA
REPORT FOR: GIACALONE DESIGN SERVICES
PHONE: (510) 638-0158 - FAX (510) 638-2908
OAKLAND, CA 94621
P.O. BOX 2265
7777 PARDEE LANE

ASSOCIATED LIGHTING REPRESENTATIVES, INC

ALL VALUES SHOWN ARE MAINTAINED HORIZONTAL FOOTCANDLES AT GRADE LAMP, BALLAST, ELECTRICAL, AND SITE CHARACTERISTICS.

LAMP, RATINGS, FIELD PERFORMANCE WILL DEPEND ON ACTUAL

IS BASED ON ESTABLISHED IES PROCEDURES AND PUBLISHED

PHOTOMETRIC DATA USED AS INPUT FOR THESE CALCULATIONS
DATE
1" = 00' 1 OF 1 12.1 .202 1

SCALE SHEET REV

PROJECT DESCRIPTION
DRAWING NO. / INPUT FILE
10857 LINDA VISTA DR

CITY OF CUPERTINO
23530REY-R1.DWG / 23530REY-R1.A32
6 5
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WP
WP
WP
WP
WP
WP
WP
WP
WP
AA
AA
WP
WP
WP
WP
CC
CC
CC
CC
CC
CC
CC
CC
CC
CC
CC
CC
CC
CC
CC
AA AA

0.26 0.09 0.78 0.19 0.38 0.09

0.99 0.20 2.46 0.39 0.95 0.17

2.24 0.32 2.59 0.40 1.07 0.18

1.49 0.26 0.89 0.22 0.48 0.12

0.47 0.14 0.22 0.12 0.18 0.09

0.18 0.09 0.10 0.13 0.11 0.13

0.22 0.11 0.12 0.31 0.18 0.42

0.71 0.20 0.21 0.91 0.39 1.87

1.92 0.34 0.33 1.64 0.69 3.73

1.99 0.37 0.34 1.04 0.61 2.30

0.88 0.28 0.14

0.76 0.27 0.14 0.13

1.64 0.34 0.15 0.13

1.90 0.35 0.14 0.12

0.78 0.21 0.11 0.47 0.56 0.46 0.53

0.26 0.13 0.25 0.32 0.23 0.29

0.21 0.11 0.13 0.19 0.11 0.17

0.56 0.15 0.11 0.23 0.10 0.19

1.60 0.27 0.15 0.52 0.12 0.39

1.98 0.30 0.23 1.25 0.17 0.85

0.80 0.18 0.23 1.35 0.18 0.95

0.24 0.10 0.16 0.57 0.13 0.45

0.15 0.08 0.14 0.21 0.15 0.21

0.34 0.11 0.31 0.16 0.42 0.21

1.07 0.20 1.16 0.25 1.89 0.38

1.99 0.29 2.71 0.40 3.81 0.62

1.09 0.20 1.86 0.31 2.28 0.41

0.33 0.10 0.52 0.15 0.50 0.18

0.10 0.13

0.13 0.16 0.22 0.32 0.56 0.46 0.40 0.31 0.26 0.23 0.23 0.24 0.28 0.35 0.53 0.81 0.42 0.36

0.14 0.20 0.30 0.46 0.67 0.75 0.65 0.48 0.34 0.27 0.25 0.27 0.35 0.49 0.69 0.81 0.67 0.48 0.33 0.29 0.34

0.13 0.18 0.30 0.49 0.70 0.73 0.71 0.51 0.34 0.25 0.22 0.25 0.33 0.50 0.70 0.74 0.69 0.32

0.25 0.26 0.20

0.41 0.41 0.27

0.62 0.61 0.38

0.74 0.77 0.49

0.73 0.75 0.48

0.63 0.62 0.40

0.49 0.48 0.36

0.41 0.42 0.34

0.39 0.41 0.36

0.38 0.45 0.44

0.38 0.55 0.59

0.43 0.69 0.75

0.47 0.77 0.77

0.38 0.63 0.71

0.27 0.44 0.49

0.20 0.29 0.30

0.15 0.19 0.18

0.11 0.13 0.12

0.89 0.08 0.09 0.08

9.89 0.88

0.19 4.66

2.35 0.08

1.76 7.68

0.39 0.46

7.46 6.91

0.37 0.36

7.01 1.80

0.08 2.41

5.01 0.21

0.55 7.70

1.31 0.09

2.74 3.89

0.13 3.22

0.25 5.65

2.34 0.11

3.10 4.54

0.22 0.13

0.19 0.25

0.17 0.87

9.41 0.98

0.10 2.96

3.57 0.12

1.00 9.95

0.79 0.09

BY: APPLICATIONS ENGINEERING; RAMON ZAPATA
REPORT FOR: GIACALONE DESIGN SERVICES
PHONE: (510) 638-0158 - FAX (510) 638-2908
OAKLAND, CA 94621
P.O. BOX 2265
7777 PARDEE LANE

ASSOCIATED LIGHTING REPRESENTATIVES, INC

ALL VALUES SHOWN ARE MAINTAINED HORIZONTAL FOOTCANDLES AT GRADE LAMP, BALLAST, ELECTRICAL, AND SITE CHARACTERISTICS.

LAMP, RATINGS, FIELD PERFORMANCE WILL DEPEND ON ACTUAL

IS BASED ON ESTABLISHED IES PROCEDURES AND PUBLISHED

PHOTOMETRIC DATA USED AS INPUT FOR THESE CALCULATIONS
DATE
1" = 00' 1 OF 1 1

SCALE SHEET REV

PROJECT DESCRIPTION
DRAWING NO. / INPUT FILE
10857 LINDA VISTA DR

CITY OF CUPERTINO
23530REY-R1.DWG / 23530REY-R1.A32

12.1 .202 6 5
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CITY OF CUPERTINO
Agenda Item
26-14935 Agenda Date: 4/1/2026
Agenda #: 4.

Subject: Conduct public hearing pursuant to Cupertino Municipal Code section 2.08.096 to hear Petitions for Reconsideration filed on behalf of the Garden Gate Coalition for Mary Avenue Safety, including: (1) Petition for Reconsideration, dated February 27, 2026, pertaining to actions taken at the February 3, 2026 City Council meeting pursuant to the Mary Avenue Villas Project, including (i) CEQA Exemption Determination, (ii) Resolution No 26-016, regarding Architectural and Site Approval Permit, and (iii) Resolution No. 26-018, regarding the Disposition and Development Agreement; and (2) Petition for Reconsideration, dated March 13, 2026, pertaining to actions taken at the March 3, 2026 City Council meeting pursuant to the Mary Avenue Villas Project, including (i) Resolution No. 26-024, regarding the vacation of public right-of-way, and (ii) Resolution No. 26-025, regarding the surplus land act exemption.

1. Find that the Petition for Reconsideration, dated February 27, 2026, pertaining to actions taken at the February 3, 2026 City Council meeting, failed to satisfy any of the grounds for reconsideration pursuant to Cupertino Municipal Code section 2.08.096; and

2. Find that Petition for Reconsideration, dated March 13, 2026, pertaining to actions taken at the March 3, 2026 City Council meeting, failed to satisfy any of the grounds for reconsideration required pursuant to Cupertino Municipal Code section 2.08.096; and

3. Adopt Draft Resolution No. 26-032 (Attachment 3); and

4. Adopt Draft Resolution No. 26-033 (Attachment 4)
CITY OF CUPERTINO Page 1 of 1 Printed on 3/27/2026
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MEMORANDUM
01276.0036 2109611.3

FOR PUBLIC RELEASE
TO: Honorable Mayor and City Councilmembers
FROM: Floy Andrews, Interim City Attorney
William Mazzota, Special Counsel
Michelle Hernandez, Deputy City Attorney
DATE: March 27, 2026
RE: Response to Petition for Reconsideration – February 3, 2026 City Council Meeting – Mary Ave Villas Project
This Petition for Reconsideration was received by the City of Cupertino (“City”) on February 27, 2026 and was submitted by Joshua Safran, Esq. from Strategy Law, LLP, as council for the Garden Gate Coalition for Mary Avenue Safety (“Petitioner”), regarding the Mary Avenue Villas Project (APN 326-27-053) (“Project”), specifically (i) Architectural and Site Approval Permit Application No. ASA-2025-006 (“ASA Permit”), (ii) Preliminary CEQA Exemption Determination, and (iii) the Disposition and Development Agreement (“DDA”) as contemplated and approved by the City Council at a public meeting held on February 3, 2026. The City has determined that approval of the ASA Permit is an adjudicatory action subject to reconsideration. The preliminary CEQA Exemption Determination, and the approval of the DDA, however, are legislative actions and not subject to reconsideration. Nevertheless, for the sake of thoroughness, we will consider each item in the Petition for Reconsideration.

Petitioner brings the Petition for Reconsideration pursuant to Cupertino Municipal Code (“CMC”), section 2.08.096, which specifies that “[t]he grounds for reconsideration are limited to the following:

1. An offer of new relevant evidence which, in the exercise of reasonable diligence, could not have been produced at any earlier city hearing.

2. An offer of relevant evidence which was improperly excluded at any prior city hearing.

3. Proof of facts which demonstrate that the City Council proceeded without, or in excess of its, jurisdiction.

4. Proof of facts which demonstrate that the City Council failed to provide a fair hearing.

5. Proof of facts which demonstrate that the City Council abused its discretion by: (a) Not preceding in a manner required by law; and/or (b) Rendering a decision 1462
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which was not supported by findings of fact; and/or (c) Rendering a decision in which the findings of fact were not supported by the evidence.

The following italicized language constitutes the City’s response to the grounds raised in the Petition, each of which is found to be deficient and meritless.

Ground 1: Offer of new relevant evidence not previously obtainable with reasonable diligence.

1. External commentary provided by the sole proprietorship, Krupka Consulting.

As reflected in the Minutes of the Meeting on February 3, 2026 (“February 3 Minutes”) (attached as Exhibit A) and the YouTube and Zoom transcripts (“February 3 Transcript”) of that meeting (attached as Exhibit B), Paul Krupka from Krupka Consulting presented and discussed his findings for the City Council’s consideration at that time.

Accordingly, those findings were part of the record before the City Council and do not constitute “new evidence.”
Based on the foregoing, the external commentary presents no valid grounds for reconsideration pursuant to CMC, section 2.08.096 as it does not present any new evidence not otherwise available at the time of the original decision , evidence that was improperly excluded, or proof of facts that show that the City Council acted improperly.

2. Documentation submitted by the Petitioner on February 10, 2026 The Coalition’s February 10, 2026, Objection to the Proposed February 10, 2026, Planning Commission Action argues that (1) the Planning commission cannot make a posthoc consistency determination; (2) the proposed findings remain unsupported by substantial evidence; (3) the CEQA deficiencies cannot be cured through a belated Planning Commission action; and (4) the Planning Commission should decline to act on an incomplete and unlawful record.

However, the documentation provided does not relate to actions before the City Council on February 3, 2026 that is the subject of this Petition. Accordingly, such materials were not part of the record for the Council’s consideration of that action. Nevertheless, CEQA analysis and supporting documentation for the exemption are included as Exhibit D to the February 3 Staff Report and support the City’s determination. Also, see response to Ground 1, Section 1 and response to Ground 3, Section 1.

Based on the foregoing, the objection presents no valid grounds for reconsideration pursuant to CMC, section 2.08.096 as it does not present any new 1463
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evidence not otherwise available at the time of the original decision, evidence that was improperly excluded, or proof of facts that show that the City Council acted improperly.

3. The City’s Planning Commission agenda published on February 10, 2026.

The items listed on the Planning Commission agenda published on February 10, 2026 in connection with the Project, were not before the City Council at the February 3, 2026 meeting that is the subject of this Petition. Accordingly, such materials were not part of the record for the Council’s consideration of that action.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present any new evidence not otherwise available at the time of the original decision, evidence that was improperly excluded, or proof of facts that show that the City Council acted improperly.

Ground 2: Offer of relevant evidence improperly excluded at prior city hearing.

1. Impaired ability to present and have considered documentary/visual exhibits at the February 3, 2026 City Council Meeting.

The February 3 Minutes and February 3 Transcript reflect that members of the public who wished to address the Council were afforded their allotted time pursuant to Government Code, section 54954.3(a)(1).

2. Insufficient public access to the complete plan set and supporting technical materials prior to close of Public Hearing.

The plan set and supporting technical materials were made available at various stages of the process, including in the Staff Report for the City Council meeting on June 15, 2025 (attached as Exhibit C), and the updated plan set circulated as Exhibit F to the Staff Report for the City Council meeting on February 3, 2026 (See attached Exhibit D).

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present any relevant evidence which was improperly excluded at any prior City hearing..
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3. Failure to provide or circulate the final/amended versions of key approval documents.

The agenda for the City Council meeting of February 3, 2026 ( See attached Exhibit D) provided a brief general description as required pursuant to Government Code, section 54954.2(a)(1)(A). The revisions were described in the staff presentation prior to public comment (attached as Exhibit E), and were read into the record at the meeting (See February 3 Minutes and February 3 Transcript). Members of the public were afforded the opportunity to comment on the matter before Council action, consistent with Government Code, section 54954.3(a)(1).

Ground 3: Proof of facts demonstrating the City Council proceeded without, or in excess of, its jurisdiction

1. Government Code, section 65402 sequencing/jurisdictional defect.

An in-depth analysis of the legal requirements related to the sequencing of the relevant discretionary actions was provided in the Staff Report for the Study Session heard by City Council on December 2, 2025 (“December 2 Staff Report,” attached as Exhibit F).

Additional information related to sequencing was provided in the Supplemental Report submitted for the City Council meeting on February 3, 2026 (“February 3 Supplemental Report,” attached as Exhibit G).

2. Approval predicated on future right-of-way vacation and public property disposition without required findings and procedures.

The DDA (attached as Exhibit H) expressly conditions implementation on subsequent discretionary approvals. Also, see response to Ground 3, Section 1.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council proceeded without, or in excess of its, jurisdiction.. 1465
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3. Public Land Disposition and commitment via DDA without completion of prerequisite statutory compliance.

See response to Ground 3, Section 2.

Ground 4: Proof of facts demonstrating the City Council failed to provide a fair hearing.

1. Material amendments adopted without meaningful opportunity for public review/comment.

See response to Ground 2, Section 3.

2. Unstable/inconsistent legal and factual bases presented to the public and decisionmakers.

As reflected in the record, the City identified the applicable CEQA treatment for each relevant approval and ultimately made its CEQA determination for the project in connection with the later discretionary actions considered by the City Council on March 3, 2026. The City fully complied with CEQA in conjunction with this project.

3. Post hoc process to retrofit required findings. The City accelerated the approval process manifesting in procedural constraints and sought retroactive approvals from Planning Commission.

The February 3 Agenda sets forth the terms to participate and comment in accordance with Government Code, section 54954.3(b)(1). Also, see response to Ground 3, Section 1.
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Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council failed to provide a fair hearing.

4. Denial of a fair hearing: common-law conflict of interest/ bias/ lack of “Open Mind” and Procedural and substantive due process violations and attacks on counsel’s ethics and credibility.

The February 3 Minutes and February 3 Transcript reflect that the City Council received and considered correspondence submitted by the Petitioner’s counsel prior to taking action. Statements made by individual Councilmembers during deliberation reflect their evaluation of the arguments presented in the record.

5. Moral framing that costs opponents as bad actors, rather than evaluating legal compliance.

See response to Ground 4, Section 4.

6. Prejudgment by the key voting member of the majority which would not have occurred if Councilmember Fruen had recused himself.

Petitioner does not identify any specific facts or evidence demonstrating a disqualifying conflict of interest and this ground is therefore conclusory. The record does not reflect any such disqualifying conflict.

7. The Mayor’s voting posture reinforced an unlawful “Trust us” standard rather than adjudicatory neutrality.
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Petitioner does not identify any specific facts or evidence demonstrating bias, prejudgment, or a common-law disqualifying conflict and this ground is therefore conclusory and unsupported by the record. Also, see response to Ground 4, Section 4.

Ground 5: Proof of facts demonstrating the City Council abused its discretion.

Ground 5(a): Not Proceeding in a Manner Required by Law

1. Council did not proceed as required by law with respect to CEQA: invalid reliance on exemption and improper segmentation/”whole of action” defects.

See response to Ground 4, Section 2.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

2. Council did not proceed as required by law with respect to CEQA: failure to satisfy categorical exemption criteria and exceptions.

The record reflects that the City extensively considered parking, traffic, and other project-specific conditions in evaluating the project, including an informational memorandum dated August 28, 2025 (attached as Exhibit I), a traffic study dated November 13, 2025 submitted with the February 3 Supplemental Report. The CEQA analysis and supporting documentation for the exemption are included as Exhibit D to the February 3 Staff Report (See attached Exhibit D). See also response to Ground 4, Section

2. Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

3. General Plan/Government Code, section 65402: Mandatory sequencing violated 1468
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See response to Ground 3, Section 1.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

4. Right of Way vacation: Required findings and evidence not made See response to Ground 3, Section 2.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

5. Surplus Land Act & public disposition requirements.

See response to Ground 3, Section 2.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

6. Constitutional and Statutory Constraints on Public subsidies/Gifts of public funds.

The Petitioner does not identify any specific facts or evidence demonstrating a lack of support for the legal adequacy or proportional public benefit of the financial contributions provided by the City and is therefore conclusory and unsupported by the record. The record reflects discussions of the project’s financial impact in the Staff Report for the City Council meeting held on April 15, 2025 (attached as Exhibit J), the Supplemental Report for the City Council meeting held on September 4, 2025 (attached as Exhibit K), the December 2 Staff Report, and the February 3 Staff Report.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; 1469
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and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

7. Substantive due process/arbitrary-and-capricious decision making.

Petitioner does not identify any specific facts or evidence demonstrating violations of substantive due process, and this ground is therefore conclusory and unsupported by the record. Also, see responses to Ground 4, Section 4, and Ground 3, Section 1.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

Ground 5(b): Rendering a Decision Not Supported by Findings of Fact The Council’s findings are inadequate or conclusory in multiple respects, including:

1. Whether the project will be detrimental to public health, safety, or welfare in connection with severe peak parking overload, circulation conflicts, and safety impacts.

See response to Ground 5, Section 2.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

2. Mandatory prerequisites (including Section 65402 sequencing) were not satisfied at the time of Council action.

See response to Ground 3, Section 1.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence. 1470
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3. Presupposing lawful process, an impartial adjudication, and an improper basis for rejecting evidence and arguments.

See response to Ground 4, Section 4.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

Ground 5(c): Rendering Findings Not Supported by the Evidence.

1. Findings and conclusions supporting CEQA exemption are contradicted by record evidence and findings set forth by Krupka Consulting. Reference is made to the staff analysis related to an adjacent City project.

The CEQA analysis and supporting documentation for the exemption are included as Exhibit D to the February 3 Staff Report and support the City’s determination. Also, see response to Ground 1, Section 1.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

2. Assertions that later approvals (including the DDA) are merely “within the scope” of earlier environmental determinations are unsupported where the DDA independently commits the City to a fixed course of conduct and public land disposition.

The DDA expressly contemplates and is conditioned on subsequent discretionary approvals, including actions requiring findings of General Plan consistency and other entitlements. Accordingly, the City’s earlier environmental determinations and CEQA analysis were appropriately made in connection with the later discretionary actions.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; 1471
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and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

3. Staff and Council reliance on generalized Housing Element designation to justify right-of-way abandonment and disposition is not substantial evidence of General Plan conformity for the specific actions taken.

General Plan conformity was not under consideration during the February 3, 2026 meeting for which this petition is requesting consideration.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

4. The Council’s findings necessarily presuppose lawful process and an impartial adjudication. However, the record demonstrates an improper basis for rejecting evidence and arguments for making findings that purport to be grounded in the administration record.

See response to Ground 4, Section 4.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

Exhibits:

A – Minutes Dated February 3, 2026
B – Transcript Dated February 3, 2026
C – Agenda Dated July 15, 2025 (Including staff reports and attachments) D – Agenda Dated February 3, 2026 (Including staff reports and attachments) E – Staff PowerPoint Presentation Dated February 3, 2026 F – Staff Report Dated December 2, 2025
G – Supplemental Report Dated February 3, 2026
H – CC Resolution No. 26-018 Approving DDA
I – Informational Memo Dated August 28, 2025
J – Staff Report dated April 15, 2025
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K – Excerpt of Supplemental Report dated September 4, 2025 1473
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MEMORANDUM
01276.0036 2109619.3

FOR PUBLIC RELEASE
TO: Honorable Mayor and City Councilmembers
FROM: Floy Andrews, Interim City Attorney
William Mazzota, Special Counsel
Michelle Hernandez, Deputy City Attorney
DATE: March 27, 2026
RE: Response to Petition for Reconsideration – March 3, 2026 City Council Meeting – Mary Ave Villas Project
This Petition for Reconsideration was received by the City of Cupertino (“City”) on March 13, 2026 (“Petition”) and was submitted by Joshua Safran, Esq. from Strategy Law, LLP, as council for the Garden Gate Coalition for Mary Avenue Safety (“Petitioner”), regarding the Mary Avenue Villas Project (APN 326-27-053) (“Project”), including (i) Resolution No. 26-024 approving the vacation of a portion of the public right-of-way along Mary Avenue (“Vacation”), (ii) CEQA exemption determination, and (iii) Resolution No. 26-025 declaring the Project site to be exempt surplus land pursuant to the Surplus Land Act (California Government Code Section 54220 et seq.) (“SLA Declaration”), as contemplated and approved by the City Council at a public meeting held on March 3, 2026.

Petitioner incorporates by reference a prior Petition for Reconsideration dated February 27, 2026, relating to City Council actions taken on February 3, 2026. Those actions involved different matters that were not before the City Council on March 3, 2026. Because this Petition challenges a separate Council action, the incorporated arguments do not establish any basis for reconsideration of the decision at issue here. To the extent any such arguments are relevant, the City’s prior responses apply only as applicable to this action.

1. An offer of new relevant evidence which, in the exercise of reasonable diligence, could not have been produced at any earlier city hearing.

2. An offer of relevant evidence which was improperly excluded at any prior city hearing.

3. Proof of facts which demonstrate that the City Council proceeded without, or in excess of its, jurisdiction.
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4. Proof of facts which demonstrate that the City Council failed to provide a fair hearing.

5. Proof of facts which demonstrate that the City Council abused its discretion by: (a) Not preceding in a manner required by law; and/or (b) Rendering a decision which was not supported by findings of fact; and/or (c) Rendering a decision in which the findings of fact were not supported by the evidence.”
The following italicized language constitutes the City’s response to the grounds raised in the Petition, each of which is found to be deficient and meritless.

Ground 1: Offer of relevant evidence improperly excluded at prior city hearing. The March 3, 2026 agenda procedures materially constrained the Petitioner’s ability to present documentary and visual evidence because the agenda prohibited speakers from connecting personal devices at the podium and required documents be emailed to the City Clerk by 3:00 p.m. if the speaker wish staff to display them during oral comment.

The Agenda for the City Council’s meeting on March 3, 2026 (“March 3 Agenda,” attached as Exhibit L) sets forth the terms to participate and comment in accordance with Government Code, section 54954.3(b)(1).

Ground 2: Proof of facts demonstrating the City Council proceeded without, or in excess of, its jurisdiction.

1. The March 3 actions cannot cure or retroactively validate jurisdictional defects because the City unlawfully approved and committed itself to the project through the February 3 approvals and DDA before completing the antecedent Planning Commission review, lawful CEQA analysis of the whole action, and the legally required findings for vacation and public land disposition.

With respect to the Vacation, the City has determined that this action by City Council was not adjudicatory and therefore is not subject to reconsideration. Nevertheless, even if the Vacation can be reconsidered, this point does not form a valid basis for reconsideration as laid out in CMC, section 2.08.096, because the Petition fails to identify any statutory authority or evidence demonstrating that the City proceeded without, or in excess of, its jurisdiction or that City’s actions were inconsistent with applicable law. 1475
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In connection with the CEQA exemption determination, the Petition does not provide any evidence to support a claim of a violation of CEQA.

With respect to the public land disposition, this item was not before City Council on March 3, 2026.

2. Under the City’s March 3 Staff Report, the City could not perfect the transfer of City-owned property unless the City first declared the property exempt surplus land and first vacated 0.79 acres of public right-of-way. Thus, the March 3 actions were not ministerial “follow-through,” they were substantive discretionary prerequisite approvals that the City was attempting to supply after having already committed itself through the DDA.

With respect to the Vacation, the City has determined that this action by City Council was not adjudicatory and therefore is not subject to reconsideration. Nevertheless, even if the Vacation can be reconsidered, this point does not form a valid basis for reconsideration as laid out in CMC, section 2.08.096, because the Petition fails to identify any statutory authority or evidence demonstrating that (1) the City proceeded without, or in excess of, its jurisdiction or that City’s actions were inconsistent with applicable law.

As to the City Council’s determination regarding the SLA Declaration, the Petition does not identify any statutory authority or evidence demonstrating that (1) the City proceeded without, or in excess of, its jurisdiction; (2) the City was required to undertake these actions in a particular sequence; or (3) the City’s actions were inconsistent with applicable law.

3. A belated Planning Commission action on February 10, 2026 could not retroactively legitimize an invalid CEQA process, cure improper segmentation, or supply by ratification the antecedent findings required by Government Code 65402.

The actions before the Planning Commission on February 10, 2026 were not before the City Council on March 3, 2026. The Council’s March 3 actions were limited to 1476
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consideration of the Vacation and the SLA Declaration, based on the record before it. The Petition does not demonstrate how the Planning Commission’s February 10, 2026 actions invalidate or otherwise affect the Council’s March 3 determinations.

4. Resolution No. 26-024 likewise confirms the continuing entrenchment of the prior unlawful commitment and treats the vacation as a DDA contingency to be carried out once the developer satisfies the agreement’s conditions.

Resolution No. 26-024 contemplates the Vacation. The City has determined that this action by City Council was not adjudicatory and therefore is not subject to reconsideration. Nevertheless, even if the Vacation can be reconsidered, this point does not form a valid basis for reconsideration as laid out in CMC, section 2.08.096, because the Petition fails to identify any statutory authority or evidence demonstrating that (1) the City proceeded without, or in excess of, its jurisdiction or that City’s actions were inconsistent with applicable law.

5. Resolution No. 26-025 treats the exempt surplus status as another contingency needed to carry out the already-approved transaction, and improperly declares as “exempt surplus” land that the record shows is functionally active public infrastructure, including an existing public right-of-way resource serving bicycle travel, public parking, circulation and access. Likewise it confirms the continuing entrenchment of the prior unlawful commitment and treats the vacation as a DDA contingency to be carried out once the developer satisfies the agreement’s conditions.

The Petition does not identify any statutory authority or evidence demonstrating that the City was required to undertake these actions in a particular sequence or that the City’s actions were inconsistent with applicable law.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council proceeded without, or in excess of its, jurisdiction. 1477
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Ground 3: Proof of facts demonstrating the City Council failed to provide a fair hearing

1. A fair quasi-judicial hearing requires decisionmakers to maintain an “open mind” to decide based on law and evidence, and not to proceed based on animus, moral condemnation, prejudgment, or demonstrated bias.

The Petition does not provide any evidence not otherwise available at the time of the original decision to support a claim of “animus, moral condemnation, prejudgment, or demonstrated bias” at the City Council meeting on March 3, 2026.

2. The City Council proceeded with consequential new adjudicatory actions without recusal of a Councilmember with a disqualifying conflict of interest, including prejudgment or bias inconsistent with an open mind.

The Petition does not provide any evidence to support a claim of “a disqualifying conflict of interest, including prejudgment or bias inconsistent with an open mind” at the City Council meeting on March 3, 2026.

3. The City continued to proceed in the same accelerated, deadline-driven manner because the City had already committed itself and now sought to fulfill the remaining contingencies necessary to keep pace with the Project’s financing schedule.

The Petition does not provide any evidence not otherwise available at the time of the original decision to support a claim of accelerated process at the City Council meeting on March 3, 2026.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council failed to provide a fair hearing.
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4. To the extent the City relied on agenda-imposed restrictions on live presentation of documentary material, those restrictions further impaired the Petitioner’s ability to present responsive evidence at the March 3 hearing.

The March 3 Agenda sets forth the terms to participate and comment in accordance with Government Code, section 54954.3(b)(1).

Ground 4: Proof of facts demonstrating the City Council abused its discretion.

Ground 4(a): Not proceeding in a Manner Required by Law.

1. Council did not proceed as required by law with respect to CEQA: invalid reliance on exemption and improper segmentation/”whole of action” defects.

The City’s earlier environmental determinations and CEQA analysis were appropriately made in connection with the discretionary actions taken on March 3, 2026.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

2. The March 3 staff report confirms that the City is now attempting to satisfy the contingencies needed to perfect the transfer. That is the very essence of unlawful predetermination and backward sequencing.

The Petition does not identify any evidence in the record or legal authority supporting its claim of unlawful predetermination or improper sequencing in connection with the City Council’s March 3, 2026 actions.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence. 1479
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3. The City failed to proceed in the manner required by Streets and Highways Code § 8324(b).

See response to Ground 2, Section 4.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

4. Surplus Land Act / public disposition requirements. Resolution No. 26-025, section 3 improperly bootstraps the “not necessary for the City’s use” determination from (i) the City’s prior decision to designate the site for affordable housing, (ii) the future roadway design after vacation, and (iii) the added statement that public parking is not “essential” to the agency’s operational needs.

The March 3 Staff Report, the staff’s oral and PowerPoint presentations (“March 3 Staff Presentations,” attached as Exhibit M and N, respectively), and the minutes of the City Council meeting on March 3, 2026 (“March 3 Minutes,” attached as Exhibit O) were included in the record before the City Council supporting its determination regarding the SLA Declaration.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

5. Mere citation to Airport Business Center v. Santa Rosa does not cure the defect and does not substitute for findings supported by record evidence.

See response to Ground 4(a), Section 4.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

Ground 4(b): Rendering decisions not supported by findings of fact. 1480
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1. Resolution No. 26-024 contains no finding addressing the public interest in the Vacation, notwithstanding that public-interest component of the governing law.

See response to Ground 2, Section 4.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

2. Resolution No. 26-024 does not identify findings addressing elimination of the functional public uses, including public parking, neighborhood circulation, event-related parking spillover, and the role of Mary Avenue as a Neighborhood Connector.

See response to Ground 2, Section 4.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

3. Resolution No. 26-025 does not identify findings explaining how an active public right-of-way and parking resource is suddenly unnecessary for present and foreseeable public use.

See response to Ground 4(a), Section 4.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

4. Both resolutions presuppose that the City lawfully could continue implementing the DDA and prior approvals without first curing defects.

The Petition does not identify any evidence in the record or legal authority supporting its claim of a violation of law in connection with the City Council’s March 3, 2026 actions. Accordingly, this ground does not establish any basis for reconsideration. 1481
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Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

Ground 4(c): Rendering findings not supported by the evidence.

1. The repeated CEQA finding that approval of the Project would not result in significant effects relating to traffic is contradicted by information provided by Krupka Consulting, and Westport related parking/circulation materials.

The record reflects that the City extensively considered parking, traffic, and other project-specific conditions in evaluating the project, including an informational memorandum dated August 28, 2025, a traffic study dated November 13, 2025 submitted with the February 3 Supplemental Report. The CEQA analysis and supporting documentation for the exemption are included as Exhibit D to the February 3 Staff Report.

Further, the City identified the applicable CEQA treatment for each relevant approval and ultimately made its CEQA determination for the project in connection with the later discretionary actions considered by the City Council on March 3, 2026. The City fully complied with CEQA in conjunction with this project.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

2. The finding in Resolution No. 26-024, Section 6 that the Vacation Area is unnecessary for present or prospective public use is not supported by substantial evidence.

See response to Ground 2, Section 4.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence. 1482
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3. The finding in Resolution No. 26-025, Section 3 that the Property is not necessary for the City’s use, including the amended recital that public parking is not essential for the City’s operational needs, is likewise unsupported by substantial evidence.

See response to Ground 4(a), Section 4.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

4. To the extent that Council purported to find that the March 3 actions were merely implementation actions within the scope of earlier approvals, that finding is contradicted by the staff report itself, which states that the transfer could not be perfected unless the City separately approved the Vacation and separately declared the Property exempt surplus land.

Based on the foregoing, this is not a valid ground for reconsideration pursuant to CMC, section 2.08.096 as it does not present proof of facts which demonstrate that the City Council abused its discretion by (a) not proceeding in a manner required by law; and/or (b) rendering a decision which was not supported by findings of fact; and/or (c) rendering a decision in which the findings of fact were not supported by the evidence.

Exhibits:

L – Agenda dated March 3, 2026 (Including staff reports and attachments) M – Staff Presentation regarding SLA Declaration dated March 3, 2026 N – Staff Presentation regarding Vacation dated March 3, 2026 O – Minutes dated March 3, 2026
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RECONSIDERATION PETITON
NOTICE: Reconsideration petitions are only accepted for adjudicatory matters that are quasi-judicial decisions by the City Council. The reconsideration petition is subject to the requirements of and must comply with section 2.08.096 of the Cupertino Municipal Code, available in the City Clerk’s office or online at http://www.amlegal.com/cupertino_ca/. Please review this form carefully and provide a detailed explanation for each item. Failure to meet the requirements of section

2.08.096 may result in rejection of the reconsideration petition.

1. Project for which you are requesting reconsideration:

Application No.: ________________________________________________ Applicant(s) Name: ________________________________________________

3. Contact information for party requesting reconsideration:

Name:

Address:

Phone:

Email: _____________________________________
___________________________________________
________________________________ Date of Council meeting considering the project for which you are requesting reconsideration:

Reconsideration petitions must be filed within ten (10) calendar days of the date of the Clerk’s notice.

Details of grounds for reconsideration (Cupertino Municipal Code Section

2.08.096). A petition for reconsideration must specify, in detail, each and every ground for reconsideration. Failure to specify the particular ground(s) for reconsideration will preclude any omitted ground(s) from being raised or litigated in a subsequent judicial proceeding.

In addition, the grounds for reconsideration are limited to the criteria listed below. Failure to meet these grounds may result in rejection of the petition for reconsideration. Check all grounds that apply and provide detailed explanations 1484
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2 of the facts supporting each ground for reconsideration (provide supporting documentation and attach additional sheets if necessary):

An offer of new relevant evidence which, in the exercise of reasonable diligence, could not have been produced at any earlier city hearing.

Explanation of new evidence and why it could not have been produced earlier:

An offer of relevant evidence which was improperly excluded at any prior city hearing.

Explain relevant evidence and how, when it was excluded at a prior hearing:

Proof of facts which demonstrate that the City Council proceeded without, or in excess of its, jurisdiction.

Explain facts and how those facts show that the Council operated outside its jurisdiction:

Proof of facts which demonstrate that the City Council failed to provide a fair hearing.

Explain facts and how those facts demonstrate failure to provide a fair hearing:
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3 Proof of facts which demonstrate that the City Council abused its discretion by:
o (a) Not preceding in a manner required by law; and/or o (b) Rendering a decision which was not supported by findings of fact; and/or
o (c) Rendering a decision in which the findings of fact were not supported by the evidence.

Explain facts and how those facts demonstrate abuse of discretion related to items (a)-(c):

6. Signature(s) _____________________________________________________________ Please complete form, include reconsideration fee of $376.05 pursuant to Resolution No. 24-040 payable to City of Cupertino and return to the attention of the City Clerk, 10300 Torre Avenue, Cupertino, California (408) 777-3223.

Acceptance of a petition by the City Clerk is for timeliness purposes only and does not constitute a determination that the petition meets the requirements for reconsideration under section

2.08.096 of the Municipal Code. The City reserves the right to review petitions after submission and reject those that do not meet the criteria set forth in Cupertino Municipal Code Section

2.08.096.
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One Almaden Boulevard, Suite 700 San Jose, CA 95113
P: (408) 478-4100 F: (408) 295-4100 www.strategylaw.com February 27, 2026 JOSHUA SAFRAN, ESQ. [email protected] Acting City Clerk Lauren Sapudar
Office of the City Clerk Office
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
By Hand Delivery & Email ([email protected]; [email protected]) Petition for Reconsideration per Cupertino Municipal Code § 2.08.096 of City Council Actions of February 3, 2026 (Agenda Item 8), Including:
(i) CEQA Exemption Determination; (ii) Resolution No. 26-016 (ASA-2025-006); and (iii) Resolution No. 26-018 (Disposition and Development Agreement) re Mary Avenue Villas Project (the “Project”) (File #: 26-14737) Dear Acting City Clerk Sapudar:

We represent the Garden Gate Coalition for Mary Avenue Safety (the “Coalition”), an unincorporated association of residents and community members directly and adversely affected by the Project and the City’s related approvals and commitments affecting the Mary Avenue rightof-way and public parking resources.

Pursuant to Cupertino Municipal Code § 2.08.096, the Coalition hereby submits this formal Petition for Reconsideration of the City Council’s February 3, 2026 adjudicatory approvals and determinations for the Project (the “Decision”). This Petition is timely because it is filed within ten (10) calendar days of the City Clerk’s mailing of notice of the Decision (dated February 18, 2026).

This Petition diligently specifies the grounds for reconsideration under CMC § 2.08.096, and is intended to fully preserve all issues for any subsequent judicial proceeding. The Coalition requests that the City Council grant reconsideration, vacate the Decision, reopen the record, and proceed only after full compliance with all applicable procedural and substantive requirements, including CEQA, General Plan law, right-of-way vacation statutes, disqualifications due to conflicts of interest, and public land disposition requirements.

I. Decision for Which Reconsideration Is Requested
The Coalition seeks reconsideration of the City Council’s February 3, 2026 actions for Agenda Item 8, including (without limitation):

A. The Council’s determination that the Project is exempt from CEQA; 1487
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Petition for Reconsideration re Mary Avenue Villas Project (File #: 26-14737)

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B. Adoption of Resolution No. 26-016 approving the Architectural and Site Approval Permit (ASA-2025-006) (including the amendment reflecting 19 IDD units); and C. Adoption of Resolution No. 26-018 approving the Disposition and Development Agreement (“DDA”) (including amendments increasing affordability restrictions to 99 years and revising the City’s repurchase timing accordingly); D. Any related findings, determinations, directives, and commitments that enable, facilitate, or commit the City to the Project, including contemplated future actions to vacate portions of the Mary Avenue right-of-way and to complete disposition of public property.

II. Record and Incorporation of Prior Objections
The Coalition has raised detailed objections and legal arguments in writing and in public comment, including in the Coalition’s February 1, 2026 demand letter to the City Council and subsequent submissions regarding General Plan consistency, right-of-way vacation and public land disposition sequencing, CEQA compliance, and the DDA’s legal defects. All such objections are reaffirmed and restated here, and are intended to be fully preserved.

III. Grounds for Reconsideration (CMC § 2.08.096)
Ground 1: Offer of New Relevant Evidence Not Previously Obtainable With Reasonable Diligence
The Coalition offers the following new relevant evidence, which (a) is material to the Decision, (b) could not reasonably have been produced earlier for the February 3, 2026 Council hearing in the exercise of reasonable diligence, and (c) warrants reconsideration:

1. Krupka Consulting (Feb. 10, 2026) updated quantitative analysis of Mary Avenue parking occupancy under peak Memorial Park event conditions, including estimates showing event conditions reaching 140–229 parked vehicles and demonstrating that, with the Project’s public parking removal, demand would meet or exceed supply (including quantified occupancy rates reaching and exceeding 100%) and cause cumulatively considerable significant impacts. This evidence also documents safety conflicts involving large/wide service vehicles and door-swing encroachments that were not studied in the Transportation Study and that are exacerbated by the Project’s proposed lane geometry.

Krupka further explains that Mary Avenue is not “underutilized right-of-way” and is designated a Neighborhood Connector in the City’s Mobility Element, providing parking, access, and circulation for the neighborhood and serving as a crucial linkage to Memorial Park, consistent with Mobility Element goals including M-2, M-3, M-5, and M-6. Krupka therefore concludes that vacation of the Mary Avenue right-of-way is inconsistent with the General Plan, and that the location, purpose, and extent of the disposition are likewise not consistent with the General Plan.
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Krupka also documents that the Transportation Study’s “typical conditions” parking evaluation fails to address major Memorial Park events and that the Project would result in a net loss of 89 public on-street spaces plus six additional spaces recommended for sightdistance concerns—95 spaces total, representing a 39% reduction in on-street supply.

Krupka provides estimates for major festival conditions showing 140 to 229 vehicles parked on Mary Avenue, and demonstrates that under festival conditions the Project would push occupancy to approximately 96% (Fall Festival) and approximately 157% (Kids ’N Fun / Summer Concert Series), reflecting functional failure and displaced demand.

In addition, Krupka identifies unaddressed operational safety conflicts omitted from the Transportation Study—large/wide service vehicles that encroach into adjacent lanes and door-swing encroachments from parked vehicles—and explains that the Project’s proposed two 11-foot travel lanes would exacerbate these conflicts (including in the existing northbound lane context).

Finally, Krupka identifies cumulative demand drivers (including Memorial Park enhancements, Park event conditions where only a small fraction of off-street spaces remain available to visitors, permit-only restrictions on adjacent streets, Westport MixedUse Project effects, and the planned Flint Center replacement increasing reliance on offsite parking), each of which further supports the need for full analysis of parking/circulation effects.

2. Coalition’s Feb. 10, 2026 evidence summary and exhibits documenting specific inconsistencies with General Plan mobility and neighborhood-protection policies, including (a) functional failure during peak conditions, (b) closure of Memorial Park lots during events forcing reliance on Mary Avenue, and (c) documentary and photographic evidence supporting these conditions.

3. The City’s post-February 3 effort to obtain post-hoc Planning Commission findings (as reflected in the February 10, 2026 Planning Commission agenda materials and staff proposal) is itself new information not fully available and developed at the February 3 Council hearing, and directly bears on whether the Council proceeded without or in excess of jurisdiction and whether the approval process was lawful.

This new evidence is directly material to CEQA (including categorical exemption criteria and exceptions), General Plan consistency, right-of-way vacation findings, public safety, and whether the Decision is supported by substantial evidence.

Ground 2: Offer of Relevant Evidence Improperly Excluded at a Prior City Hearing The Coalition offers the following grounds under “improperly excluded evidence,” which independently warrant reconsideration:
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1. Impaired ability to present and have considered documentary/visual exhibits at the February 3, 2026 hearing due to procedural constraints on presenting materials during oral comment and limitations on access/distribution of project plans and related technical documents prior to and during the hearing (including restrictions that functionally limited timely display and consideration of technical exhibits).

2. Insufficient public access to the complete plan set and supporting technical materials prior to close of the public hearing, including where the City limited plan distribution and directed the public to appointment-based viewing, thereby constraining the Coalition’s and the public’s ability to present complete, record-based evidence regarding parking removal, circulation geometry, and right-of-way impacts at the time of the Council vote.

3. Failure to provide or circulate the final/amended versions of key approval documents (including the DDA and ancillary terms) reflecting material amendments considered and adopted by the Council on February 3, 2026, depriving the Coalition and the public of the ability to submit relevant responsive evidence and analysis tied to the actual approved terms.

Ground 3: Proof of Facts Demonstrating the City Council Proceeded Without, or in Excess of, Its Jurisdiction
Reconsideration is warranted because the Council proceeded without or in excess of jurisdiction, including but not limited to the following:

1. Government Code § 65402 sequencing/jurisdictional defect: The Council proceeded to approve actions that depend on disposition of public property and vacation of public rightof-way without the antecedent Planning Commission General Plan conformity report/determination required by Government Code § 65402. Post-hoc Planning Commission “ratification” cannot cure the defect.

2. Approval predicated on future right-of-way vacation and public property disposition without required findings and procedures: The City’s own staff report acknowledges that a future City Council meeting would be scheduled to vacate the right-of-way portion necessary to facilitate the Project, confirming that the February 3 approvals were granted before the legally required vacation hearing and findings were made. This sequencing defect is prejudicial because the Krupka report, discussed above, demonstrates that Mary Avenue is an actively used Neighborhood Connector and that the proposed vacation is inconsistent with the General Plan and would remove essential public parking and circulation capacity relied upon during Memorial Park events.

3. Public land disposition and commitment via DDA without completion of prerequisite statutory compliance: By approving a binding DDA committing the City to convey public land and provide substantial financial assistance, while critical prerequisite determinations 1490
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(CEQA validity, § 65402 consistency review, and other public disposition requirements) were unresolved or unlawfully sequenced, the Council exceeded its lawful authority.

These defects go to the Council’s fundamental authority to proceed as it did and require reconsideration and vacation of the Decision.

Ground 4: Proof of Facts Demonstrating the City Council Failed to Provide a Fair Hearing
The Coalition requests reconsideration because the Council failed to provide a fair hearing, including but not limited to:

1. Material amendments adopted without meaningful opportunity for public review/comment: The Council adopted material amendments at the February 3 hearing, including changes to the DDA affordability term (55 to 99 years) and related repurchase timing, and an amendment regarding IDD unit counts, without providing the public a meaningful opportunity to review the revised operative documents and respond to the final terms actually approved.

2. Unstable/inconsistent legal and factual bases presented to the public and decisionmakers: The City’s approvals relied on inconsistent CEQA characterizations (including treating certain entitlements as “not a CEQA project” while also invoking categorical exemption theories), undermining clarity of the “whole of the action” and impairing meaningful public participation.

3. Post-hoc process to retrofit required findings: The City’s attempt to obtain retroactive Planning Commission findings after Council approval (rather than before) demonstrates an approval process that deprived the Coalition of a fair, legally sequenced review in which required findings precede commitment and final action.

In addition, the record confirms that the City intentionally compressed and accelerated the approval process solely to accommodate the Developer’s tax-credit schedule, rather than adhering to the normal, legally required sequencing of findings and approvals. During Council deliberations, the Mayor expressly raised the concern “why are we rushing” to approve aspects of the Project that could be returned on another day, and the City Attorney’s office responded that “there’s some urgency” because the DDA is “essential” to the tax credit process; staff stated on the record that the tax credit application timeline was “late March” (and the staff report likewise reflects that the Developer anticipated submitting an application for 9% tax credits on or before April 15, 2026), that the tax credits are “key” to moving the Project forward, and that, “unless we have a DDA signed,” the applicant would not have sufficient investment in the property to obtain an award of tax credits “which is why we have it here today.”
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The City Attorney’s office further acknowledged that this highly consequential and legally complex suite of approvals and documents had effectively been crammed into a matter of weeks: staff stated the City “turned to the drafting of all the documents only about… 4 weeks ago,” and that staff and the City Attorney’s office worked “very diligently… to pull all of the documents together” on that accelerated schedule. The same exchange highlights the “on-the-fly” character of the process, with material deal terms presented as being turned around essentially overnight, i.e., extending the affordability period from 55 to 99 years was described as “an idea that I brought up Monday morning,” which staff and the developer were able to “turn… around within almost 24 hours, to change the agreement to allow that.”
Consistent with these admissions, Councilmember Wong characterized the approval process as “a rushed job,” stated the City was “cutting corners,” and “making exceptions that we wouldn’t make for any other group, so that this group can prepare for tax credits,” describing the process as “cart before the horse” and “not how it’s supposed to work,” and stating “we’re doing it because they have a deadline,” while “continu[ing] to rush this project and change things on the fly.”
The compressed, deadline-driven approach also manifested in procedural constraints bearing directly on the fairness and integrity of the hearing itself, including limiting individual public comment to “90 seconds per individual,” restricting group comment to “1 minute a person” (up to 5 minutes), and cutting off the speaker queue by requiring requests within “the first 9 minutes of the start of public comment.” The Mayor likewise directed Council to “keep [comments] brief” because the meeting was “a bit over time already.”
These record facts corroborate the Coalition’s core contention that, to meet an external financing deadline, the City proceeded in a rushed, unstable, and legally backward manner – approving and committing first, and attempting to supply legally required findings and sequencing later – thereby depriving the Coalition and the public of the fair, legally sequenced adjudicatory process required by law.

4. Denial of a Fair Hearing: Common-Law Conflict of Interest / Bias / Lack of “Open Mind” and Procedural and Substantive Due Process Violations: A fair quasi-judicial hearing requires decisionmakers to maintain an “open mind” and decide based on the law and the evidence, not animus toward parties or counsel, moral condemnation, or prejudgment. Here, Councilmember J.R. Fruen made extensive remarks on the record demonstrating that he had prejudged the Coalition’s position, impugned its counsel’s ethics, and framed the matter in a way incompatible with impartial adjudication. a. Attacks on Counsel’s Ethics and Credibility
On the record, prior to voting for the Project, Councilmember Fruen dramatically declared that he had conducted an investigation and had concluded that the Coalition’s counsel had 1492
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made “readily verifiable legal errors” which, the Councilmember stated, caused him to “question the validity of the whole entire advocacy letter” and “every analysis point and contention” within it, indicating he had discounted the Coalition’s legal and factual presentation wholesale rather than evaluating it on the merits.

Councilmember Fruen went further and accused the Coalition’s counsel of unethical conduct, asserting that when attorneys bring pleadings in court they have a “duty to the court of candor,” that counsel is “not allowed to simply misstate the law,” and that he had to “question the ethics underpinning this sort of advocacy,” as well as alleging counsel “wholesale ignore[d] controlling contrary authority.”
Critically, he then declared he had “no reason to believe any of the assertions” made in the Coalition’s submission or “any of the legal claims that have come before us,” which is classic prejudgment and inconsistent with an impartial decisionmaker keeping an “open mind.”
b. Moral Framing That Casts Opponents as Bad Actors, Rather Than Evaluating Legal Compliance
Councilmember Fruen repeatedly framed approval of the Project as a moral issue, characterizing the Project as converting “housing for cars” into “sheltered housing for people,” impliedly characterizing Project opponents as prejudiced against persons with special needs, and urging those who opposed the Project to just “go and meet” such persons and suggesting opponents might be surprised to find they have made “your new best friend.”
He also framed the public discourse as troubling “commentary about who gets to live here” and “whether people are worthy to live in Cupertino,” stating “everybody’s worthy to live in Cupertino,” and then pivoted to criticize the Coalition’s counsel’s legal advocacy rather than addressing the Coalition’s core point: follow the law before committing to an irreversible course of action.
c. Prejudgment by the Key Voting Member of the Majority Councilmember Fruen was not a peripheral participant. He seconded the principal motion approving the staff recommendation as amended. And, he was the deciding majority vote.

Had Councilmember Fruen recused himself for a disqualifying conflict of interest, the Decision would not have been made.
d. The Mayor’s Voting Posture Reinforced an Unlawful “Trust Us” Standard Rather Than Adjudicatory Neutrality
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voting for approval. While consultation with counsel is not improper per se, the Coalition preserves the point that, when combined with the prejudgment and moral framing described above, the hearing devolved into an adjudication where legal compliance objections were treated as ethically suspect and not as issues requiring findings supported by evidence.

Because these statements demonstrate bias, prejudgment, and a common-law disqualifying conflict (in the form of demonstrated partiality and closed mind) by members of the voting majority, the Council failed to provide the fair hearing required by law. Reconsideration must be granted, the approvals vacated, and any rehearing must be conducted before an impartial decisionmaking body, with any disqualified decisionmakers recused and the matter reconsidered on the law and the evidence.

Further, the cumulative effect of all of these circumstances deprived the Coalition and the public of the fair hearing required for quasi-judicial decisionmaking.

Ground 5: Proof of Facts Demonstrating the City Council Abused Its Discretion Reconsideration is warranted because the Council abused its discretion by (a) not proceeding in a manner required by law; (b) rendering a decision not supported by findings of fact; and/or (c) rendering findings not supported by the evidence.

Ground 5(a): Not Proceeding in a Manner Required by Law Without limitation, the Council failed to proceed as required by law in the following ways:

1. CEQA: Invalid reliance on exemption and improper segmentation/“whole of action” defects. The approvals and record present inconsistent and legally erroneous CEQA theories (including “not a project” characterization and categorical exemption assertions), while the Project and related actions (DDA approval, public land conveyance, right-of-way vacation enabling development) constitute a single integrated undertaking that must be evaluated as the “whole of the action.”

2. CEQA: Failure to satisfy categorical exemption criteria and exceptions.

Substantial evidence in the record (and now supplemented by new expert analysis) supports a fair argument that the Project may cause significant impacts relating to traffic/parking/circulation and public safety, and therefore cannot lawfully proceed under the claimed categorical exemption. The Krupka report specifically quantifies festival parking conditions (140–229 parked vehicles) and demonstrates that, when combined with the Project’s net loss of 95 on-street spaces, event conditions would result in demand meeting and exceeding supply, including estimated occupancy reaching 157% under festival conditions. Krupka further identifies cumulative demand drivers that will exacerbate the deficiency (Memorial Park enhancements, restricted access to other Parkadjacent streets due to permits, Westport project effects, and the Flint Center replacement increasing reliance on off-site parking), directly supporting CEQA exception arguments 1494
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and undermining the City’s claim that no exceptions apply. These facts directly contradict the City’s conclusion that the Project “would not result in significant impacts pertaining to traffic” and that no cumulative impacts exception applies.

Additional evidence of cumulative parking and circulation impacts undermines the City’s exemption theory. The adjacent Westport development is bounded by Mary Avenue and is therefore directly tied to Mary Avenue’s curbside parking and circulation conditions.

Westport’s own City staff analysis acknowledged a parking deficit (see attached Exhibit 8, Table 3 reflecting an approximately 19-space gap between reasonably expected demand and proposed supply) and required that applicant, as a condition of approval, to revise the site plan to add additional onsite parking prior to building permits. The Applicant Parking Exhibit (attached Exhibit 9) also reflects that Westport’s parking assumptions depend in part on discouraging resident vehicle ownership and relying on “overflow” strategies, including off-site parking options. These City-acknowledged shortfalls and overflow assumptions are relevant to the cumulative parking/circulation conditions on Mary Avenue and further support the Coalition’s contention that the City could not lawfully proceed on an exemption theory that assumes no significant traffic/parking effects and no cumulatively considerable impacts.

This is consistent with prior Westport transportation documentation stating that the Parkand-Ride on-street parking along Mary Avenue “was not included in the parking analysis,” that the Mary Avenue on-street parking is public and “not anticipated to be impacted,” and that the project has “no jurisdiction” over public parking usage along Mary Avenue. The record now demonstrates the opposite, i.e., foreseeable cumulative conditions and spillover effects on Mary Avenue, further undermining the City’s exemption theory and “no significant traffic/parking effects” findings.

3. General Plan/Government Code § 65402: Mandatory sequencing violated. The Council proceeded without the Planning Commission’s antecedent General Plan conformity determination for disposition/vacation actions, a mandatory prerequisite.

4. Right-of-Way Vacation: Required findings and evidence not made. The Project is predicated on eliminating functional public right-of-way and public parking resources; approval prior to vacation findings, and without substantial evidence that the right-of-way is unnecessary for present or prospective public use, is unlawful. This is especially true given the City’s own recognition that the adjacent Westport development (bounded by Mary Avenue) has an onsite parking deficit requiring correction before building permits, underscoring that Mary Avenue’s parking and circulation capacity remains necessary for present and prospective public use.

5. Surplus Land Act & Public Disposition Requirements. The City’s approach to declaring exempt surplus land and to conveying public property (including through a sole-source process) fails to demonstrate compliance with statutory prerequisites and required findings. 1495
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6. Constitutional and Statutory Constraints on Public subsidies/Gifts of Public Funds.

The DDA and related commitments involve conveyance of public land for nominal consideration and substantial financial assistance and fee waivers, without the findings and evidentiary support required to demonstrate legal adequacy and proportional public benefit.

7. Substantive Due Process/Arbitrary-and-Capricious Decisionmaking. The Decision violates substantive due process principles because, as reflected in the on-the-record remarks above, voting majority Councilmembers treated the Coalition’s legal objections as illegitimate, untrustworthy, and ethically tainted, and reframed the decision as a moral referendum rather than a lawful adjudication requiring compliance with mandatory procedures and findings. This arbitrary-and-capricious deprivation is further reflected in the record evidence that the City intentionally compressed and accelerated legally required sequencing and the public process to satisfy the Developer’s tax-credit schedule, rather than ensuring compliance with mandatory procedures and findings.

Ground 5(b): Rendering a Decision Not Supported by Findings of Fact The Council’s findings are inadequate and/or conclusory in multiple respects, including:

1. Findings that the Project will not be detrimental to public health, safety, or welfare are inconsistent with record evidence and new expert analysis demonstrating severe peak parking overload, circulation conflicts, and safety impacts.

2. Findings that all legal prerequisites to adoption of approvals “have occurred” are incorrect where mandatory prerequisites (including § 65402 sequencing) were not satisfied at the time of Council action.

3. The Council’s findings necessarily presuppose lawful process and an impartial adjudication. However, the record demonstrates otherwise. A deciding voter of the voting majority announced he had “no reason to believe any of the assertions” advanced by the Coalition. This is an improper basis for rejecting evidence and arguments and for making findings that purport to be grounded in the administrative record.

Ground 5(c): Rendering Findings Not Supported by the Evidence Even where findings are stated, they are not supported by substantial evidence, including:

1. Findings and conclusions supporting CEQA exemption (including “no significant effects relating to traffic”) are contradicted by record evidence and new expert calculations regarding event parking demand, lane conflicts, and safety impacts. Specifically, the Krupka report identifies that the Transportation Study did not consider (a) large/wide service vehicles encroaching into travel and parking lanes and (b) door-swing encroachments from parked vehicles, and explains that the Project’s proposed 11-foot lane 1496
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configuration would exacerbate these conflicts and reduce safety. Further, the City’s own staff analysis for the adjacent Westport project (bounded by Mary Avenue) identifies an onsite parking gap and contemplates reliance on alternative/overflow parking strategies, confirming that the surrounding area, including Mary Avenue, faces parking constraints that must be accounted for. This additional evidence further contradicts any finding that the Project’s elimination of public parking and related circulation changes would have no significant traffic/parking effects.

3. Staff and Council reliance on generalized Housing Element designation to justify right-ofway abandonment and disposition is not substantial evidence of General Plan conformity for the specific actions taken.

4. The Council’s findings necessarily presuppose lawful process and an impartial adjudication. However, the record demonstrates otherwise. A deciding voter of the voting majority announced he had “no reason to believe any of the assertions” advanced by the Coalition. This is an improper basis for rejecting evidence and arguments and for making findings that purport to be grounded in the administrative record.

IV. Relief Requested
For the foregoing reasons, the Coalition respectfully requests that the City Council:

1. Grant reconsideration of the February 3, 2026 Decision;

2. Vacate the CEQA exemption determination, Resolution No. 26-016, and Resolution No. 26-018 (and any related directives/commitments);

3. Reopen the record and continue the matter to a properly noticed hearing after providing full access to operative documents and stable project description;

4. Direct staff to proceed only after full compliance with applicable law, including:
a. Lawful CEQA compliance addressing the whole of the action; b. Antecedent Planning Commission review and determinations required by Government Code § 65402;
c. Legally required findings and procedures for any right-of-way vacation; and d. Lawful public land disposition findings and compliance (including Surplus Land Act requirements and any other applicable statutory/constitutional constraints). 1497
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5. Provide the Coalition with written notice of the Council’s action on this Petition and include this Petition and attachments in the administrative record; and,

6. Vacate the Decision and rehear the matter only after ensuring a fair and impartial hearing panel, including recusal of any Councilmember who has demonstrated prejudgment or bias inconsistent with an “open mind,” and ensuring the Coalition’s legal objections are evaluated on the merits and not treated as morally or ethically disqualifying advocacy.

This Petition is submitted without waiver of any rights, claims, objections, arguments, or remedies available to the Coalition. The Coalition expressly reserves all such rights.

Very truly yours,

Exhibit 1 Krupka Consulting Report of February 10, 2026 Exhibit 2 Objection to Proposed February 10, 2026 Planning Commission Action Mary Avenue Right-of-Way Vacation and Property Disposition
Exhibit 3 Request for Compliance with Law and Objections to Unlawful Proposed Approvals for Mary Avenue Villas Project (File #: 26-14737) Item #8 of City Council Agenda of February 3, 2026
Exhibit 4 Request for Denial of Proposed Resolution Finding General Plan Consistency for Mary Avenue Right-of-Way Vacation
Exhibit 5 Krupka Consulting Report of December 11, 2026 Exhibit 6 Objection to Mary Avenue Villas Project, Action Item 12 Special Meeting on December 2, 2025 at 2:00 p.m.

Exhibit 7 Request of Garden Gate Neighborhood to Analyze Traffic Circulation and Parking for Consideration of Mary Avenue Villas of September 22, 2025 Exhibit 8 City Council Staff Report, Meeting: May 20, 2025 Exhibit 9 Applicant Parking Exhibit (May 2025)
Exhibit 10 Kimley Horn’s Westport Cupertino Transportation Analysis, November 27, 2018 1498
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One Almaden Boulevard, Suite 700 San Jose, CA 95113
P: (408) 478-4100 F: (408) 295-4100 www.strategylaw.com February 10, 2026 JOSHUA SAFRAN, ESQ. [email protected] City of Cupertino
Planning Commission
c/o Community Development Department
10300 Torre Avenue
Cupertino, CA 95014
By Email ([email protected]; [email protected]) Objection to Proposed February 10, 2026 Planning Commission Action Mary Avenue Right-of-Way Vacation and Property Disposition (APN 326-27-053)
Dear Chair Rao and Members of the Planning Commission:

Our firm represents the Garden Gate Coalition for Mary Avenue Safety. This letter supplements and modifies our January 27, 2026 correspondence submitted in advance of the Planning Commission’s then-scheduled hearing on the proposed Mary Avenue right-of-way vacation and related General Plan consistency determinations.

As the Commission is aware, the January 27 meeting was cancelled, and on February 3, 2026, the City Council proceeded to approve the Mary Avenue project notwithstanding the absence of the Planning Commission findings required under Government Code section 65402. Our firm submitted a letter in advance of, and I delivered remarks at, the February 3 Council meeting explaining why that sequencing was unlawful and how the necessary findings had not been made.

The Staff Report now before the Commission for February 10, 2026, proposes that the Planning Commission retroactively adopt General Plan consistency determinations for actions that the City Council has already approved. That approach is legally defective and compounds, rather than cures, the procedural and substantive deficiencies previously identified.

For the reasons summarized below, the Planning Commission should decline to take the proposed actions.

I. The Planning Commission Cannot Lawfully Make Post-Hoc Consistency Determinations After City Council Approval
Government Code section 65402 establishes a mandatory sequencing requirement: the Planning Commission must determine General Plan consistency before the legislative body may approve the disposition of public property or vacation of public right-of-way. 1508
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Here, the City Council approved the project on February 3, 2026, without the required Planning Commission determinations. The Commission is now being asked to ratify that approval after the fact.

Nothing in section 65402 authorizes retroactive findings. Allowing post-hoc determinations would nullify the statute’s purpose, which is to ensure that General Plan consistency is evaluated independently and prior to final approval. Once the Council has acted, the Commission’s role is no longer advisory or preliminary, rather, it is being reduced to an impermissible after-the-fact validation exercise.

The Commission should not participate in a process that attempts to cure a jurisdictional defect by reversing the order mandated by state law.

II. The Proposed Findings Remain Unsupported by Substantial Evidence Even setting aside the fatal sequencing problem, the proposed resolutions continue to assume, rather than demonstrate, that vacating an active public right-of-way and disposing of public land is consistent with the General Plan merely because the site appears in the Housing Element.

As explained in our January 27 letter, General Plan consistency requires an analysis of the specific action under review, not a generalized appeal to housing policy goals. The record still lacks substantial evidence addressing, among other things:

1. Whether the Mary Avenue right-of-way is unnecessary for present or future public use;

2. The impacts of eliminating on-street parking and circulation capacity adjacent to Memorial Park and freeway infrastructure;

3. Consistency with General Plan transportation, access, safety, and mobility policies independent of housing supply objectives; and

4. Whether the vacation forecloses reasonable alternative public uses of the right-of-way.

The Staff Report’s reliance on Housing Element designation alone is legally insufficient to support a finding that abandonment of public infrastructure is consistent with the General Plan.

III. CEQA Deficiencies Cannot Be Cured Through a Belated Planning Commission Action
The Staff Report again asserts that the right-of-way vacation is not a separate project under CEQA and is exempt as part of the broader housing development. That conclusion remains flawed.
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The vacation of public right-of-way is a discretionary governmental act that permanently alters the physical environment and enables private development. It is an integral component of a larger project and cannot be segmented to avoid environmental review.

Moreover, the City Council has already relied on a Notice of Exemption that fails to accurately describe the full scope of the City’s actions, including the street vacation and disposition of public land. A belated Planning Commission consistency determination cannot retroactively legitimize an invalid CEQA process or cure improper project segmentation.

IV. The Commission Should Decline to Act on an Incomplete and Unlawful Record Fundamentally, the Planning Commission is being asked to make findings that should have preceded City Council approval, based on a record that remains legally and evidentially deficient.

The Commission is not obligated and, indeed, is not authorized to rescue an approval that was granted prematurely. The appropriate course is to decline to adopt the proposed resolutions and to require that the City reset the process, complete the necessary analysis, and comply with the sequencing and findings requirements imposed by state law.

For all of these reasons, the Planning Commission should decline to take the proposed actions on February 10, 2026.

This letter is submitted without prejudice to, and shall not be deemed to waive, any claims, objections, arguments, or remedies available to the Garden Gate Coalition for Mary Avenue Safety under CEQA, state law, local ordinance, or common law. All such rights and remedies are expressly reserved.

Thank you for your consideration.

Very truly yours,

STRATEGY LAW, LLP
Joshua Safran, Esq.
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cc: Tina Kapoor, City Manager ([email protected]; [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])
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One Almaden Boulevard, Suite 700 San Jose, CA 95113
P: (408) 478-4100 F: (408) 295-4100 www.strategylaw.com February 1, 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 Unlawful Proposed Approvals for Mary Avenue Villas Project (File #: 26-14737)
Item #8 of City Council Agenda of February 3, 2026
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 community members directly and adversely affected by the proposed Mary Avenue Villas Project (File #: 26-14737) (the “Project”), scheduled for consideration as Agenda Item No. 8 at the February 3, 2026 City Council meeting.

On behalf of themselves and on behalf of the broader Cupertino community and the public at large in furtherance of the California Environmental Quality Act’s (“CEQA”) core purposes of informed public decision-making, meaningful participation, and protection of public safety and environmental resources, we submit this request that the City comply with law and our legal objections to the City’s proposed approvals for the Project and related actions, including but not limited to the City’s determination that the Project is exempt from CEQA, the proposed vacation of public rights-of-way, the declaration of exempt surplus land, and approval of the Disposition and Development Agreement (“DDA”).

As detailed below, the City of Cupertino’s (“City”) current proposed course of action exposes it to multiple, independent violations of state law, any one of which is sufficient to invalidate the Project approvals. If the City proceeds as currently proposed, it will do so with actual notice of these defects, and its actions will be subject to prompt judicial challenge.

I. Approval of the Project Will Violate CEQA
A. The City Has Failed to Carry Its Burden to Establish a Valid CEQA Exemption
The core mandate of CEQA is that California public agencies, such as the City, fully consider and evaluate the environmental consequences of their decisions before those decisions are made, not discovered after the damage is already done. It is for this reason that CEQA exemptions are narrowly construed, and that the City bears the burden of demonstrating that an exemption applies 1513
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and that no exception forecloses its use. See CEQA Guidelines, §15300; Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249.

Here, the City relies primarily on CEQA Guidelines section 15332 (Class 32 - Infill Development), while also asserting (incorrectly and interchangeably) that certain approvals are “not a CEQA project,” are exempt under statutory housing provisions, or are “within the scope” of prior determinations.

None of these assertions withstand basic scrutiny.

Class 32 applies only where all five criteria are satisfied, including the requirement that the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. See CEQA Guidelines, § 15332(c). The City’s CEQA Exemption Memorandum asserts this criterion is met based largely on a parking demand assumption divorced from actual observed conditions, and by treating the loss of public parking as legally irrelevant. That position is unsupported by substantial evidence and contradicted by expert analysis already in the record. See Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1192 (holding that where the record contains evidence supporting a fair argument of environmental impact, an agency may not rely on a categorical exemption by dismissing or disputing that evidence).

B. Substantial Evidence Supports a Fair Argument of Significant Environmental Impacts
Under CEQA’s “fair argument” standard, environmental review is required whenever there is substantial evidence, in light of the whole record, that a project may have a significant environmental effect. See Pub. Resources Code, §21080(d); CEQA Guidelines, § 15064(f)(1); No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75.

That standard is easily met here.

1. Traffic, Parking, and Circulation Impacts
It is undisputed that the Project will permanently eliminate at least 89 publicly available on-street parking spaces on Mary Avenue, with the City’s own transportation consultant acknowledging that recommended line-of-sight modifications could increase that loss to 95 spaces. The City’s CEQA Exemption Memorandum nevertheless concludes that the Project will not result in significant traffic or parking impacts by relying on an “anticipated parking demand” of only 37 spaces, an estimate that expressly excludes Memorial Park event conditions and peak-use scenarios.

Paul Krupka, P.E. of Krupka Consulting, a licensed civil and traffic engineer with more than 40 years of experience, submitted an expert opinion which is in the record before the Council documenting that:
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Peak parking demand on Mary Avenue during Memorial Park events reaches approximately 140 vehicles, representing 58% occupancy of the existing supply; With the Project in place, that same level of demand would consume approximately 96% of the remaining parking supply, resulting in near-total functional failure; and, Displaced demand will necessarily spill into surrounding residential neighborhoods, impairing access, safety, and circulation.

This expert opinion is based on site visits, parking occupancy surveys, photographic evidence, and review of City-adopted planning documents, including the Memorial Park Parking Study, the Westport Mixed-Use Project environmental analysis, and planned development at De Anza College. It directly rebuts the City’s unsupported assumption that non-event conditions control the significance analysis.

Further, the City’s attempt to minimize the right-of-way vacation is contradicted by the record itself: multiple written submissions to the Council quantify the Project as effecting a net loss of approximately 19.5 feet (roughly 26%) of the existing Mary Avenue public right-of-way, a physical change that materially alters circulation geometry, parking configuration Parking displacement and circulation impacts are cognizable CEQA impacts where, as here, they have secondary effects on neighborhood safety, emergency access, and livability. See San Franciscans Upholding the Downtown Plan v. City & County of San Francisco (2002) 102 Cal.App.4th 656, 697–698. The City may not dismiss contrary expert evidence simply because it conflicts with staff’s preferred outcome. See Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1112.

2. Construction Impacts and Unusual Site Conditions
The City’s CEQA Exemption Memorandum repeatedly characterizes the Project as routine “urban infill,” while simultaneously acknowledging that it is located within a narrow former (or not so former) public right-of-way, immediately adjacent to an arterial roadway, a freeway on-ramp, a public park, and existing residential uses.

Construction will require reconfiguration of Mary Avenue itself, use of the public right-of-way for staging, and prolonged activity adjacent to sensitive receptors. These conditions are not typical of ordinary infill housing, and they materially undermine the City’s conclusory finding that construction impacts will be insignificant.

3. Known Soil Contamination and Ongoing Monitoring
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That approach violates CEQA. A project dependent on unresolved contamination clearance, and potentially ongoing mitigation, cannot be deemed exempt where remediation activities themselves may cause environmental impacts. See Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 114.

C. Multiple CEQA Exceptions Independently Bar Reliance on Any Categorical Exemption
Even assuming arguendo that the Project could otherwise qualify for a categorical exemption, multiple exceptions under CEQA Guidelines section 15300.2 apply, notwithstanding the City’s conclusory assertions to the contrary.

1. Unusual Circumstances Exception (Guidelines, §15300.2(c)) The City’s CEQA Exemption Memorandum lazily asserts, without analysis, that no unusual circumstances exist. That assertion ignores the Project’s defining characteristics: placement of a 40-unit residential development within an active roadway corridor, elimination of a substantial portion of public parking, reliance on density bonus waivers eliminating all private open space, and adjacency to a freeway and public park.

The record also raises a site-specific air quality and health-risk issue that the City does not address.

It is not disputed that the Project is immediately adjacent to Highway 280 and inconsistent with California Air Resources Board’s Air Quality and Land Use Handbook and related technical advisories recommending a 500-foot buffer between freeways and sensitive residential uses. The Project is specifically intended to house developmentally disabled residents, a population for whom exposure risks may be heightened.1
The City’s exemption determination offers no Health
Risk Assessment or reasoned analysis demonstrating why freeway-adjacent pollutant exposure is insignificant here. That is exactly the kind of site-specific condition that triggers the unusual circumstances exception and defeats the City’s attempt to treat this as routine infill.

Where unusual circumstances are present and there is a reasonable possibility of significant environmental effects, as demonstrated by expert evidence here, the exemption is unavailable.

Berkeley Hillside Preservation, supra, 60 Cal.4th at 1105. 1 To the extent that the City resorts to the trite and bad faith retort that “CEQA evaluates how the project affects the environment, not how the environment affects the project,” we would advise the City that this formulation is incomplete and legally misleading in the air quality context. While it is true that CEQA generally assesses a project’s effects on the environment, Courts have also made clear that agencies must consider whether existing environmental conditions cause or exacerbate significant impacts of the project itself (e.g., exposure of future residents to existing pollution), particularly where those conditions are inherently tied to the project’s design, location, and population of future users. The proximity of residential land uses to high-volume roadways is exactly the kind of site-specific circumstance that must be evaluated in the environmental review, not ignored under an exemption. 1516
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2. Cumulative Impacts Exception (Guidelines, §15300.2(b)) The City’s CEQA Exemption Memorandum dismisses cumulative impacts by isolating the Project from surrounding development. That approach is legally impermissible.

The administrative record identifies multiple nearby projects and planned improvements, including Memorial Park enhancements, the Westport Mixed-Use Project, and future redevelopment at De Anza College, that will increase parking demand and traffic pressure on Mary Avenue. CEQA prohibits reliance on a categorical exemption where cumulative impacts may be significant, even if each project is individually modest. See Concerned Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4th 1301, 1318.

3. Scenic and Aesthetic Impacts
While the City blithely asserts that aesthetic impacts are inherently insignificant, courts have repeatedly held otherwise. Mary Avenue functions as a visual corridor and neighborhood edge, and the Project’s linear massing, fencing, lighting, and elimination of open space raise legitimate aesthetic concerns. Whether the City chooses to recognize it or not, aesthetic impacts are environmental impacts under CEQA. See, e.g., Ocean View Estates Homeowners Assn., Inc. v.

Montecito Water Dist. (2004) 116 Cal.App.4th 396, 401.

D. The Notice of Exemption Is Independently Legally Deficient Even apart from the substantive flaws in the City’s reliance on a categorical exemption, the Notice of Exemption (“NOE”) and the City’s related findings are independently unlawful because they fail to comply with CEQA’s most basic procedural and informational requirements.

1. The NOE Fails to Accurately Describe the “Whole of the Action” CEQA requires the City to evaluate the entire project, defined as the “whole of the action” that may result in a physical change to the environment. CEQA Guidelines, §15378; Tuolumne County Citizens for Responsible Growth v. City of Sonora (2007) 155 Cal.App.4th 1214, 1225. The City may not segment interdependent approvals or obscure the scope of its action through artful labeling.2
Here, the NOE and supporting resolutions fail to accurately describe the Project. They treat the Project primarily as an architectural site approval, while characterizing the following actions as either outside CEQA or “within the scope” of prior determinations: 2 We also note that the project description literally fails to describe the Project. I.e., it does not meaningfully explain to the public the full range of physical changes to the environment that will be integral to development of the Project.

For example, the public is not adequately informed what the impacts on street parking will be. Will public parking be eliminated from the east side of Mary Avenue? Or will public parking be eliminated across from the dog park? We do not know. This underscores our conclusion that the City has not presented a stable, intelligible Project description sufficient to support an exemption determination.
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Vacation of an active public right-of-way;
Declaration of exempt surplus land;
Conveyance of public property at nominal value; and,
Approval of a binding Disposition and Development Agreement committing the City to a fixed course of conduct.

These actions are not ministerial, nor are they legally or practically severable. Each is a discretionary approval that enables, facilitates, and commits the City to the Project. By omitting or minimizing these actions in the NOE, the City has failed to describe the Project accurately, rendering the NOE invalid. See County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 963 (NOE defective where it failed to encompass full scope of project approvals).

2. The City’s “Within the Scope” Findings Are Conclusory and Unsupported Both the surplus land resolution and the DDA resolution state, without analysis, that their approvals are “within the scope” of the environmental determination adopted for the architectural approval.

CEQA does not permit such conclusory incorporation by reference. Where an agency relies on a prior exemption or determination, it must demonstrate, based on evidence, that the later approval does not introduce new discretionary commitments, new impacts, or new legal consequences. See Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 952.

Here, the City has made no findings explaining how irrevocable commitments of public land, public funds, and public infrastructure can plausibly be treated as mere implementation details of an architectural permit. Nor has it explained why these actions do not foreclose meaningful consideration of alternatives or mitigation.

Absent such findings, the City’s “within the scope” assertions are legally meaningless.

3. The City Improperly Conflates “Not a CEQA Project” With “Categorically Exempt”
The City’s agenda materials inconsistently assert that certain approvals are either “not a CEQA project” or categorically exempt. That internal inconsistency is not a harmless drafting error; it reflects a fundamental misapplication of CEQA.

An action that is “not a project” under CEQA is one that has no potential for physical environmental change. See CEQA Guidelines, §15378(a). By contrast, a categorical exemption applies only to actions that are projects but are deemed exempt under defined criteria. 1518
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Approvals that convey land, vacate rights-of-way, and bind the City through a long-term development agreement plainly constitute “projects” under CEQA. The City cannot avoid CEQA review by oscillating between mutually exclusive legal theories. See Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380.

4. The NOE Lacks the Evidentiary Support Required by CEQA CEQA requires that a NOE be supported by substantial evidence demonstrating the applicability of the claimed exemption. See CEQA Guidelines, §15061(d). Boilerplate recitations of exemption classes do not suffice.

Here, the NOE and CEQA Exemption Memorandum rely on generalized conclusions regarding traffic, parking, construction, and site conditions, while ignoring or discounting contrary evidence, including expert analysis, already in the administrative record. That is precisely what CEQA forbids. See Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1112.

An NOE issued in the face of unresolved factual disputes regarding environmental impacts is legally defective and must be set aside.

5. These Defects Independently Require Invalidation of the NOE Courts have repeatedly held that a NOE must be vacated where it misdescribes the project, relies on improper segmentation, or lacks evidentiary support, regardless of whether the agency might ultimately prevail on the merits after proper review. See Communities for a Better Environment v.

California Resources Agency (2002) 103 Cal.App.4th 98, 110.

Accordingly, even if the City could substantively justify a CEQA exemption, which it cannot, the NOE and related approvals would still fail as a matter of law.

II. The Proposed Vacation of the Mary Avenue Right-of-Way Is Unlawful The Project is expressly predicated on the partial or complete vacation of an active public rightof-way along Mary Avenue, yet the City has failed to comply with the substantive and procedural requirements governing such an action under state law and General Plan law. These failures are not technical or curable after the fact; they go to the City’s fundamental authority to approve the vacation at all.

A. The City Has Failed to Make the Findings Required by the Streets and Highways Code
Under Streets and Highways Code sections 8300-8325, a city may vacate a public right-of-way only upon making express findings, supported by substantial evidence, that the right-of-way is unnecessary for present or prospective public use. This statutory requirement is mandatory and strictly construed. See Beals v. City of Los Angeles (1943) 23 Cal.2d 381; Bacich v. Board of Control (1943) 23 Cal.2d 343.
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Here, the City has not merely failed to support such findings, the administrative record affirmatively contradicts and precludes such findings.

The record indisputably establishes that the Mary Avenue right-of-way currently serves multiple ongoing public functions, including:

Extensive public on-street parking relied upon by Memorial Park patrons and nearby residents;
Vehicular circulation and queuing adjacent to a freeway on-ramp; and A functional buffer between established residential neighborhoods and regional infrastructure.

Neither the staff report nor the draft resolutions meaningfully analyze these existing public uses.

They do not explain why these uses are no longer necessary, how their elimination serves the public interest, or why the foreseeable displacement of their impacts into surrounding neighborhoods is legally permissible. Instead, the City appears to assume that elimination of these public uses is justified simply because the Project requires it. That is not the legal standard.

Courts have long held that a street may not be vacated where it continues to serve public convenience or necessity, even if the agency believes a private redevelopment would be beneficial.

See Beals v. City of Los Angeles (1943) 23 Cal.2d 381, 386. Nor may a vacation proceed where it materially impairs access or circulation for adjacent properties without careful, evidence-based justification. Bacich v. Board of Control (1943) 23 Cal.2d 343, 349-350.

Because the City has failed to make, and cannot support, the findings required by the Streets and Highways Code, the proposed vacation is unlawful.

B. The City Failed to Comply with Government Code Section 65402(a) Independently, the proposed vacation is procedurally invalid because the City failed to comply with Government Code section 65402(a).

That statute provides that no real property may be disposed of by a public agency unless the disposition has first been submitted to and reported upon by the planning agency as to conformity with the adopted General Plan. A vacation of a public right-of-way constitutes a disposition of real property for purposes of section 65402(a), because it permanently removes land from public use and control.

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Plan, including its Circulation Element. No Planning Commission resolution, report, or finding addressing the vacation exists in the administrative record.3 This omission is fatal. Section 65402(a) assigns the Planning Commission an independent, antecedent role in determining General Plan conformity. That statutory requirement cannot be satisfied by staff analysis embedded in a City Council report, nor can it be cured by a conclusory conformity statement adopted by the Council itself. Where a city fails to follow mandatory procedural prerequisites imposed by statute, its approval exceeds its jurisdiction and must be set aside. Code Civ. Proc. §1094.5(b); Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506.

C. The City Has Failed to Identify Any Local Authority Excusing Compliance Notably, neither the staff report nor the draft resolutions cite any provision of the Cupertino Municipal Code purporting to authorize the City Council to approve a right-of-way vacation without prior Planning Commission review or a General Plan conformity report. Nor do they cite any local ordinance reallocating or waiving the Planning Commission’s role under Government Code section 65402(a).

That silence is dispositive. The City bears the burden of demonstrating compliance with the procedural prerequisites for its actions, including identifying the legal authority under which it proceeds. Where, as here, the administrative record contains no citation to local law excusing or modifying statutory requirements, the City cannot retroactively supply that authority through post hoc argument.

D. The Vacation Cannot Be Treated as Ancillary or Ministerial The City’s agenda materials improperly attempt to characterize the right-of-way vacation as an ancillary or implementation detail “within the scope” of other Project approvals. That framing is legally incorrect.

A right-of-way vacation is a discretionary land use decision with independent legal consequences, including permanent loss of public access, parking, and circulation capacity. It cannot lawfully be treated as ministerial, nor can it be subsumed into an architectural or site approval without separate findings and procedures.

E. The Proposed Vacation Is, Therefore, Void
Because the City has failed to:
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1. Make and support findings that the right-of-way is unnecessary for present or prospective public use;

2. Obtain a Planning Commission determination of General Plan conformity as required by Government Code section 65402(a); and,

3. Identify any local authority excusing compliance with those requirements, the proposed vacation of the Mary Avenue right-of-way is unlawful and void. Approval of the Project predicated on that vacation would likewise be invalid and subject to writ relief.

III. The City’s Actions Violate the Surplus Land Act
The City’s attempt to declare the Project site “exempt surplus land” under the Surplus Land Act (Gov. Code, § 54220 et seq.) (“SLA”) suffers from the same foundational defect: the absence of required findings supported by evidence.

The SLA requires a public agency to determine, in good faith, that property is not necessary for its present or foreseeable public use before it may be declared surplus or exempt surplus land. That determination must be grounded in the actual, functional use of the property, not in aspirational redevelopment goals. Gov. Code, § 54220–54221; California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 584.

Here, the City’s draft resolution recites the statutory language but does not engage in the required analysis. It does not explain how land currently functioning as an active public right-of-way and public parking resource is suddenly unnecessary for public purposes. Nor does it reconcile that conclusion with the City’s own acknowledgment of substantial ongoing public use. This kind of conclusory surplus declaration must be rejected, and the City must recognize that statutory land disposition requirements exist to protect public assets from expedient disposal without genuine necessity.

Moreover, the City’s approach improperly bootstraps the surplus determination to the Project itself, treating the decision to redevelop as proof that the land is surplus. The SLA does not permit agencies to manufacture surplus status by first deciding to eliminate public use and then declaring it unnecessary.

Because compliance with the SLA is a condition precedent to lawful conveyance, the City’s failure to make and support the required findings renders the proposed disposition invalid.

IV. The Disposition and Development Agreement Is Invalid The DDA is not merely an implementation document; it is a substantive, discretionary approval that independently commits the City to convey public land, forego public value, and bind itself to 1522
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a fixed course of conduct. As such, it is subject to multiple, independent legal constraints that the City has failed to satisfy.

A. The DDA Constitutes an Unlawful Predetermination of Project Approvals Through the DDA, the City agrees to convey City-owned real property, vacate public rights-ofway, provide substantial financial assistance, waive or defer fees, and limit its future regulatory discretion, all in service of a single private development proposal. These commitments are made before lawful completion of CEQA compliance, surplus land determinations, and right-of-way vacation findings, and are expressly contingent on approvals that the City purports to still be considering.

Courts have repeatedly held that such agreements constitute impermissible predetermination where they materially constrain an agency’s discretion or commit it to a project outcome before completing required review. Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 138; Santa Margarita Area Residents Together v. San Luis Obispo County Bd. of Supervisors (2000) 84 Cal.App.4th 221, 233.

Because the DDA presupposes the legality of underlying approvals that are themselves defective, it cannot stand independently and must be set aside.

B. The City Has Failed to Demonstrate Compliance With Public Disposition and Bidding Requirements
The DDA provides for the conveyance of City-owned real property to a single, preselected developer without any competitive process, public solicitation, or findings explaining why such procedures are unnecessary or inapplicable.

While cities may, in limited circumstances, dispose of property without competitive bidding, such dispositions are lawful only where the agency identifies and complies with a statutory exception, and makes findings demonstrating that the disposition serves a valid public purpose and complies with applicable law.

Here, neither the staff report nor the DDA identifies any authority exempting the City from otherwise applicable public disposition or bidding requirements, nor do they explain why a solesource conveyance is legally permissible. The City’s silence on this point is especially problematic where the disposition involves public land formerly devoted to public use and is being transferred to facilitate a private development.

Absent clear statutory authority and supporting findings, the City’s sole-source disposition of public property is unlawful.
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C. The DDA Raises Serious Concerns Under the Constitutional Prohibition Against Gifts of Public Funds
Article XVI, section 6 of the California Constitution prohibits the City from making a gift of public funds or assets to a private party. While expenditures or conveyances serving a valid public purpose may be permissible in certain circumstances, the City must demonstrate, through findings supported by substantial evidence, that the public benefit received is commensurate with the value of the public assets conveyed.

The DDA commits the City to convey public land at a nominal price, provide substantial subsidies and financial assistance, and waive or defer fees, yet the record contains no analysis of fair market value, no appraisal, and no findings explaining how the consideration received by the City is reasonably proportional to what it gives up.

Courts have made clear that the absence of such analysis raises serious constitutional concerns.

County of Alameda v. Carleson (1971) 5 Cal.3d 730, 745 (public expenditures must serve a public purpose and not constitute a gift); California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 585–586.

While affordable housing may in certain circumstances serve a public purpose, that purpose does not relieve the City of its obligation to demonstrate that the terms of the transaction are fair, reasonable, and supported by evidence. The City has not done so here.

D. The City Has Failed to Make Required Findings Regarding Fair Market Value and Public Benefit
Relatedly, the City has failed to make findings, or even acknowledge the necessity of findings, regarding:

The fair market value of the property being conveyed;
The value of the public rights being relinquished through the right-of-way vacation; The cumulative value of subsidies, fee waivers, and other financial assistance; and Whether the public benefits cited justify the totality of public concessions made.

This failure is not academic. Without such findings, there is no basis for the City Council, or a reviewing Court, to conclude that the DDA complies with statutory and constitutional constraints on the disposition of public assets.

Courts have regularly invalidated public land transactions where agencies failed to make or support findings demonstrating adequate consideration and public benefit. See, e.g., Orange County Foundation for Preservation of Public Property v. Irvine Co. (1983) 139 Cal.App.3d 195, 200- 201; County of Alameda v. Janssen (1940) 16 Cal.2d 276, 281. 1524
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E. The DDA Is, Therefore, Invalid and Cannot Be Approved Because the City has failed to:

1. Avoid impermissible predetermination of Project approvals;

2. Identify lawful authority excusing competitive disposition procedures;

3. Demonstrate that the conveyance and subsidies do not constitute a gift of public assets; and

4. Make findings regarding fair market value and proportional public benefit, the Disposition and Development Agreement is invalid as a matter of law. The City must withdraw the DDA and refrain from approving or implementing it unless and until it complies with these independent legal requirements.

V. The City Misapplies the Density Bonus Law and Housing Accountability Act The City’s approvals repeatedly invoke the Density Bonus Law (Gov. Code, §65915) and the Housing Accountability Act (“HAA”) (Gov. Code, §65589.5) as justification for waivers, concessions, and completely ignoring adverse impacts. That reliance is misplaced and legally inappropriate.

Neither statute authorizes approval by incantation. The Density Bonus Law requires specific findings demonstrating that each waiver or concession is necessary to make the subject project economically feasible and that it does not result in a specific adverse impact upon public health or safety. The City has not made those findings in any meaningful way.

Similarly, the HAA limits a local agency’s ability to deny or reduce housing density, but it does not exempt a project from compliance with other state laws or relieve the agency of its obligation to make a complete and accurate administrative record.

By treating these housing statutes as a substitute for CEQA review, surplus land compliance, and public infrastructure protections, the City has inverted their purpose. As Courts have made clear, housing laws do not authorize agencies to bypass independent statutory mandates or to approve projects without required findings. Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 138.

In sum, the City has treated the Density Bonus Law and HAA as a license to dispense with required findings and independent statutory obligations. No such license exists. Those statutes facilitate housing production; they do not authorize approval by fiat or excuse noncompliance with CEQA, General Plan law, surplus land requirements, or public infrastructure protections. The City’s misapplication of these laws provides an additional, independent basis to set aside the Project approvals.
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VI. Approval of the Project Will Inversely Condemn Private Property Approval of the Project as currently formulated will necessarily give rise to non-speculative, legally cognizable, and meritorious inverse condemnation claims against the City.

While not every public action affecting access or parking is compensable, California law is clear that a public improvement may give rise to inverse condemnation liability where it substantially impairs access to private property or imposes a special and peculiar burden on a discrete group of property owners. Bacich v. Board of Control (1943) 23 Cal.2d 343, 349; People ex rel. Dept. of Pub. Wks. v. Ayon (1960) 54 Cal.2d 217, 223.

Here, the City proposes to permanently eliminate long-established on-street parking and reconfigure circulation along Mary Avenue as an integral component of the Project. For certain adjacent and nearby properties, that parking and circulation are not merely a convenience; they are a functional component of access, usability, and economic viability, particularly given the proximity to Memorial Park, freeway infrastructure, and the absence of reasonable alternatives.

Unlike the other generalized neighborhood impacts borne by the public at large, these effects will fall disproportionately and uniquely on a limited number of properties that have historically relied on the existing right-of-way configuration. Where a public action results in such a special and peculiar burden, compensation is required even in the absence of a physical appropriation. Holtz v. Superior Court (1970) 3 Cal.3d 296, 303.

Importantly, these impacts are not temporary construction inconveniences. They are the direct and permanent consequence of a deliberate public decision to vacate and redesign a functioning public right-of-way for the sole benefit of a new, specific development. Courts have recognized that permanent impairment of access and use presents a fundamentally different legal question than short-term disruption. Ayon, supra, 54 Cal.2d at 223.

At a minimum, the City was obligated to consider whether its actions give rise to compensable impacts and to make findings addressing that risk before committing to the Project and related agreements. The City has not done so. Its failure to analyze or acknowledge these inverse condemnation concerns further underscores the legally premature and procedurally defective nature of the proposed approvals.

VII. Demand for Immediate Compliance with Law and Suspension of Project Approvals For all of the foregoing reasons the City cannot lawfully rely on the proposed Notice of Exemption or approve or implement the Mary Avenue Villas Project as currently proposed.

Accordingly, the Coalition hereby demands that the City:

1. Set aside the Notice of Exemption and suspend all Project approvals;

2. Refrain from vacating any portion of the Mary Avenue public right-of-way; 1526
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3. Set aside the proposed surplus land declaration and DDA; and

4. Conduct all required statutory analyses and make legally adequate findings before reconsidering any aspect of the Project.

If the City proceeds with approval of the Project at this time, notwithstanding these defects, the Coalition will have no choice but to pursue all available legal and equitable remedies on behalf of its members and the public generally as private attorneys general.

This letter is submitted without waiver of any rights or remedies, all of which are expressly reserved. The Coalition further reserves the right to challenge the adequacy of the agenda notice for this item under the Brown Act, as the agenda does not fairly describe the full scope of the actions proposed, including the disposition of City-owned land and vacation of a public right-ofway.

Thank you for your attention to this important matter.

Very truly yours,

STRATEGY LAW, LLP
Joshua Safran, Esq.
cc: Tina Kapoor, City Manager ([email protected]; [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])
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One Almaden Boulevard, Suite 700 San Jose, CA 95113
P: (408) 478-4100 F: (408) 295-4100 www.strategylaw.com January 27, 2026 JOSHUA SAFRAN, ESQ. [email protected] City of Cupertino
Planning Commission
c/o Community Development Department
10300 Torre Avenue
Cupertino, CA 95014
By Email ([email protected]; [email protected]) Request for Denial of Proposed Resolution Finding General Plan Consistency for Mary Avenue Right-of-Way Vacation (APN 326-27-053)
Dear Chair Rao and Members of the Planning Commission:

Please be advised that our firm has been retained as counsel for the Garden Gate Coalition for Mary Avenue Safety, an unincorporated association of residents and community members directly adversely affected by the proposed Mary Avenue development. This letter is submitted in connection with the Planning Commission’s January 27, 2026 consideration of a proposed resolution finding that the vacation of a portion of the public right-of-way within APN 326-27-053 is consistent with the City of Cupertino General Plan.

Our request is intentionally limited at this time to the scope of the Commission’s action under Government Code section 65402(a): whether the proposed public right-of-way vacation is consistent with the General Plan and whether the action may properly be approved without environmental review.

For the reasons set forth below, the Commission should decline to adopt the proposed resolution.

I. The Proposed Resolution Lacks the Findings and Substantial Evidence Required to Support a Right-of-Way Vacation Consistency Determination The staff report and draft resolution assume, rather than demonstrate, that vacating an existing public right-of-way is consistent with the General Plan simply because the Housing Element identifies the site as a “priority housing site.” That is not the legal standard.

A right-of-way vacation is a permanent abandonment of a public asset. Even where housing is contemplated, the City must demonstrate, with substantial evidence, that the vacation itself furthers General Plan policies governing transportation, circulation, access, and public infrastructure, not merely housing supply in the abstract.

Here, the record contains, for example, no analysis of:

1. Whether the right-of-way is no longer necessary for present or future public use; 1529
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2. How the vacation affects circulation, multimodal access, emergency access, or public parking;

3. Whether the General Plan’s transportation and mobility policies are satisfied by permanently relinquishing the right-of-way; or,

4. Whether the vacation forecloses reasonable alternative public uses of the right-ofway independent of the proposed development.

The proposed resolution recites conclusions without findings and incorporates no evidence demonstrating that the abandonment of the right-of-way itself is consistent with the General Plan.

A conclusory statement of consistency is insufficient as a matter of law.

II. Procedural Deficiencies Preclude a Lawful Consistency Determination at This Time The Planning Commission’s authority under Government Code section 65402(a) presupposes that the action under review is sufficiently defined to permit a meaningful consistency determination.

That is not the case here.

The proposed vacation is being advanced in isolation from the specific design, circulation configuration, and operational consequences that necessarily flow from it. Without a defined vacation configuration tied to an approved circulation plan, the Commission cannot meaningfully assess General Plan consistency.

In addition, the City has failed to meaningfully solicit or incorporate community review, input, or involvement specifically regarding the proposed abandonment of public right-of-way. The absence of targeted outreach or engagement on the vacation decision further undermines the adequacy of the record and deprives the Commission of information necessary to exercise its independent judgment on General Plan consistency.

Put differently, the Commission is being asked to bless the abandonment of public right-of-way before the City has established what public functions will be eliminated, modified, or displaced as a result. That sequencing deprives the Commission, and the public, of the ability to evaluate consistency with adopted transportation and public access policies.

More broadly, state law governing the vacation of public rights-of-way contemplates a defined public process, including notice, community participation, and express findings that the right-ofway is unnecessary for present or prospective public use before it may be abandoned. See, e.g., Streets and Highways Code sections 8312 and 8320–8324. Those determinations and procedures have not yet occurred here. In the absence of a completed vacation process and the associated findings, the Commission is being asked to assess General Plan consistency based on assumptions about future conditions that have not been lawfully established, further underscoring that the requested determination is premature on the current record. 1530
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III. The Claimed CEQA Exemption Is Improper Because the Vacation Is an Integral Part of a Larger Project and Cannot Be Segmented
The staff report asserts that the Commission’s action is either not a “project” or is exempt under CEQA Guidelines section 15061(b)(3). That conclusion is legally flawed.

The proposed right-of-way vacation is not a standalone administrative action. It is a necessary predicate to the development project and would permanently alter the physical environment by eliminating public right-of-way and enabling private development in its place. As such, it is an integral component of a larger discretionary project.

CEQA prohibits piecemealing or segmenting a project into smaller actions to avoid environmental review. Approving a General Plan consistency finding and right-of-way vacation now—while deferring environmental review to later project approvals—constitutes improper segmentation.

At a minimum, the Commission must acknowledge that the vacation is part of a single, unified project and that environmental review must consider the whole of the action. The record does not support a finding that “it can be seen with certainty” that the vacation has no possibility of causing a physical change in the environment.

IV. Conclusion
The Planning Commission is not being asked today to approve or deny housing. It is being asked to make a legally defensible determination regarding the abandonment of public right-of-way and its consistency with the General Plan.

Because the current record lacks required findings, substantial evidence, and a lawful CEQA basis, and because the action is improperly segmented from the broader project, the Commission should decline to adopt the proposed resolution.

Thank you for your attention to this important matter.

Very truly yours,

STRATEGY LAW, LLP
Joshua Safran, Esq.
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cc: Santosh Rao, Planning Commission Chair ([email protected]) Tracy Kosolcharoen, Planning Commission Vice-Chair ([email protected]) David Fung, Planning Commissioner ([email protected]) Seema Lindskog, Planning Commissioner ([email protected]) Steven Scharf, Planning Commissioner ([email protected]) Kirsten Squarcia, City Clerk ([email protected]; [email protected]) Pamela Wu, City Manager ([email protected])
Benjamin Fu, Director of Community Development ([email protected]) Floy Andrews Interim City Attorney ([email protected]; [email protected])
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December 11, 2025
City Council Members by email only > [email protected] City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
RE: Public Comment – Special Meeting on December 12, 2025 – Study Session on the Mary Avenue Project (“Project”)
Dear City Council Members:

I am supporting Brian Avery, owner of the Glenbrook Apartments, and Lina Meng, a neighbor, both of whom represent the Garden Gate Neighborhood Group, in providing transportation advisory services and a professional opinion on the Mary Avenue Villas Project. I offer the following information and comments for your consideration.

Qualifications
I am a registered Civil Engineer and Traffic Engineer in California and have over 40 years of diverse experience across all phases of project delivery, including preliminary assessment, conceptual planning, feasibility analysis, design, and construction. I have demonstrated expertise in transportation, traffic, and transit planning, engineering, and design related to transit-oriented development, transit facilities, parking facilities, roadway and highway improvements, large and small development projects, neighborhood, community, downtown, city, subarea, county, and sub-regional plans, and transit and highway corridors.

Comments
I have visited the Project site and surroundings, observed traffic and parking activities, surveyed peak parking occupancy on Mary Avenue and at Memorial Park, and reviewed recent photographic evidence of related parking conditions during Memorial Park events. I have reviewed the Transportation Study for Proposed Affordable Housing Project on Mary Avenue (Hexagon Transportation Consultants, Inc., November 13, 2025, the Memorial Park Specific Plan (City of Cupertino, February 2024), including the Memorial Park Parking Study (City of Cupertino, January 2024), the Westport Mixed-Use Project Environmental Impact Report Addendum No. 1 (PlaceWorks, December 2024), and information on current and planned development at De Anza College.

The Project will have a significant impact by removing 89 spaces of public on-street parking on Mary Avenue (95 spaces with recommended Project changes in the aforementioned Transportation Study), amid heavy observed demand for this parking (upwards of 60 percent occupied) during many major events at Memorial Park. This 37+% reduction in on-street parking supply will affect residents who rely on it, spreading parking demand further into residential neighborhoods. This impact was documented in the formal Project application in April 2025. It was acknowledged in the aforementioned Transportation Study. Still, it was seemingly dismissed with this simple conclusion – “With the Project, there would be 152 on-street 1534
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parking spaces…, which would still provide enough spaces to meet the anticipated parking demand…along the project frontage.” The anticipated parking demand noted was only 37 spaces, which reflects a non-Memorial Park event condition.

My peak parking occupancy survey on Saturday, November 1, 2025, found a demand of 42 spaces (17% occupied (42/241)) on Mary Avenue (total parking supply of 241 spaces). The photographic evidence I cited above indicated a demand of approximately 140 spaces (58% occupied) during Memorial Park events. With the Project, this level of demand would equal 96% of the total parking supply (146 spaces).

Other approved and planned developments will exacerbate this significant impact.

Memorial Park enhancements, intended to serve existing and new patrons, will increase parking demand in the neighborhood and on Mary Avenue. While the aforementioned parking study did not include Mary Avenue, it cited “Maintain Current Parking Configuration along Mary Avenue” as a recommended management strategy.

Completion of the Westport Mixed-Use Project will reduce residential and retail areas, associated vehicle trips, and the total parking supply, but will require accommodating the resulting parking demand off-site along Mary Avenue. The replacement of the Flint Center at De Anza College will enhance opportunities for public and on-campus entertainment and increase public reliance on off-site parking on Mary Avenue. Conclusion The project's significant impact has not been adequately studied to determine appropriate mitigations.

It is in your community's best interests that you strongly consider doing so. 1535
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December 2, 2025
VIA EMAIL ([email protected])
Mayor Chao, Vice Mayor Moore and Councilmembers
City Council of Cupertino

CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014-3202
Re: Objection to Mary Avenue Villas Project, Action Item 12 Special Meeting on December 2, 2025 at 2:00 p.m.

APN: 326-27-053 (the “Property”)
Dear Mayor Chao, Vice Mayor Moore, and Councilmembers:

I represent Garden Gate Community Neighbors (my “Clients”) and file this objection on their behalf to the proposed Mary Avenue Villas project (the “Project”), located in the Mary Avenue Right-of-Way, APN:
326-27-053 (the “Property”). While my Clients support the idea of the Project (which is to provide affordable housing for the disabled), my Clients oppose this Project at this site, for the reasons set forth below, and hereby request that the City vote no on this Project.

The Project application was formerly submitted on April 3, 2025 by Charities Housing (the “Applicant”) for a 40-unit, affordable housing community, with 19 units reserved for individuals with intellectual and developmental disabilities, developed by Applicant in partnership with the Cupertino Rotary and Housing Choices Coalition. The proposed Project is situated on a 0.79-acre site abutting Highway 85 and 280, across from De Anza College, and adjacent to the Mary Avenue Dog Park, and currently is proposed to take over the public land and right of way on this street.

While my Clients support affordable housing and the reservation of units specifically for disabled, this site is not the right location for this Project. This is an unsuitable location due to the particular layout, location, and environmental issues on this site that put disabled persons and the community at risk and the traffic impact. Further, in its haste to fast track the Project, the City has failed to follow the procedural steps required by law, including but not limited to failing to follow the process required for vacation of public land, failing to follow Street and Highway codes related to abandoning a public right of way, failing to follow Government Code §65402 along with Brown Act requirements.

1. There are environmental risks to the disabled and the Community at this site which have not been addressed by the City or the Applicant.

The contamination at this site makes this an unsuitable location and puts the disabled and community at risk. Three reports have stated that the land is contaminated with unsafe levels of lead and that there are lower concentrations of arsenic and have pesticides 4,4-DDE and 4,4-DDT present. The Subsurface Investigation Report, dated April 4, 2025, and the subsequent report dated April 24, 2025 prepared by Intertek PSI (collectively “Subsurface Investigation Report”) indicated unsafe levels of lead (which are a cause for concern) and arsenic levels above the Construction Workers ESL levels along with detectable levels of pesticides 4,4-DDE and 4,4-DDT on the site. Attached as Exhibit A is a copy of the Subsurface Investigation Report. The Subsurface Investigation Report stated at page 8 “the soil represented by these samples would be classified as hazardous by the State of California.” A Memorandum for Peer Review of Subsurface Investigation Report, Undeveloped Land West of Mary and Parkwood Drive, Cupertino, California, drafted by Baseline Environmental Consulting (“Memorandum”) on May 16, 2025, confirmed 1537
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the same results and also concluded that the soil would be classified as California hazardous waste, for disposal purposes. Attached as Exhibit B is a copy of the Memorandum. At page 2, the Memorandum clearly states that the lead exceeds Residential ESL and Construction Workers ESL levels.

The Memorandum recommends that further testing be completed and that at minimum remedial actions be taken to prevent risks to residents and the community, like minimizing the volume of soil removed and capping of the lead. However, the report at page 3 states that these “would reduce the likelihood of exposure for future site occupants, this remedial approach is not adequate without appropriate engineering controls, institutional controls, and regulatory oversight to ensure lead impacted soil would not create an exposure concern for future site occupants.” The Memorandum recommends that 1) a Soil Management Plan (“SMP”) and Site-Specific Health and Safety Plan (“SSHSP”) be prepared, the Project applicant enter into a Remedial Action Agreement with the Santa Clara County Department of Environmental Health to oversee soil remediation at the site. The Subsurface Investigation Report also states that “A SMP and a SSHSP should be prepared prior to site redevelopment to mitigate exposure of construction workers to the lead and arsenic in the soil.” None of these recommendations have been followed and this poses a risk to the community during construction, the neighbors currently living around this site, and to the future site residents.

Given the focus on housing for individuals with disabilities, the City should proceed with an abundance of caution and follow the recommendations of the experts as stated in the above referenced reports and memorandums. The City must require the Applicant to engage the Department of Environmental Health to assess whether the site can be effectively remediated adequately for such future residential use. Individuals with disabilities often have compromised immune systems, making them particularly vulnerable to even low levels of environmental hazards. Without entering into a Remedial Action Agreement with the Santa Clara County Department of Environmental Health as the recommended action, the Project will fail to effectively address the hazardous lead levels found and put the community and its future inhabitants at risk.

Additionally, an environmental action plan is further necessary to consider how the site’s proximity to Highway 85 and Highway 280 will further cause the accumulation of pollutants at this site. Since the Department of Environmental Health must be engaged to specifically address these concerns and since this has not been done by the Applicant, my Clients urge the City to not approve the lease and disposition agreement with the Applicant. At minimum, the decision should be postponed and the recommendation at the end of this meeting should be for the Applicant to enter into the required Remedial Action Agreement with the Department of Environmental Health.

2. There is a significant impact to traffic in the community which can lead to safety issues and a reduced quality of life for its existing residents.

The impact to traffic will be significant since the Project proposes narrowing the street, the bike path, and the available parking, and there are changes with parking at De Anza College, all of which impacts the quality of life of the existing residents and can lead to accidents as a result of the increased traffic. The transportation assessment, prepared by Hexagon Transport Consultants (the “Transportation Assessment”) and submitted on November 13, 2025, does not account for critical changes that will affect parking in the neighborhood in 2026. Attached as Exhibit C is the Transportation Assessment. Starting January 6, 2026, De Anza College will no longer offer free parking to visitors and will require payment to park (see https://www.deanza.edu/parking/#oneday and https://www.instagram.com/p/DPsXkeTERd-/). This change significantly impacts local parking and traffic on Mary Avenue, as this street has been historically used as overflow parking from De Anza College. Since parking will no longer be free at De Anza College for visitors, there will be an increase of traffic and cars attempting to park on this street all the while the Project will reduce the size of the street, the bike lane, and available parking. While the transportation assessment discusses the impact on festival days at De Anza College it fails to consider these coming changes. The impact on traffic and parking will affect this community negatively and for this reason the 1538
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City should vote no on approving the lease and disposition agreement with the Applicant. At minimum, the decision should be postponed and the recommendation at the end of this meeting should be for further study to be done to determine how the change in parking at De Anza College will impact this street and community.

Further, there is a potential fire and safety issues that must be assessed. The City has waived the normal setback requirements for this Project to maximize land use on this narrow strip. However, the Project's unique design, intended use, and the site itself poses a fire safety issue. The site causes a reduction in the street size, increases parking, and it borders a sound wall adjacent to Highway 85- all of this may impact emergency response and fire crews in the event of a building fire. Therefore, a special assessment should be conducted under the supervision of the Santa Clara County Fire Department to determine if they can effectively combat a structure fire so close to the sound wall, with the smaller street, and increased traffic and parking. This assessment is critical as a large percentage of these units will be for those who are intellectually and developmentally disabled and the fire department should be engaged to determine if they can safely handle a potential fire at this site and evacuate individuals with disabilities during a fire all while managing the uniqueness of this site against the soundwall, the smaller street, and increased traffic and parking. The traffic and street changes pose a safety issue to all the community that lives on this street and to ensure the safety of future residents, it is crucial that the City and the Applicant do it’s due diligence before the City approves the lease and disposition agreement with the Applicant. Therefore, my Clients urge the City to vote No or to postpone a full vote and require further traffic and fire assessment to address these issues.

3. The City has failed to adhere to the procedural requirements under its municipal code and applicable law.

The Project requires changes to the lot and street which include public land and a right of way and the sale of public land and therefore the City must adhere to its own procedures and municipal codes when making these changes. While there is no timing requirement in some of these codes, approving the Project before completing these procedures is putting the cart before the horse. By delaying initiating the procedural requirements, the City is As these procedural requirements have not been met, my Clients urge the City to vote no at this time so that the procedural requirements for disposing of public land and right of ways can be met.

This Project should not warrant the City abandoning its procedural requirements under the municipal code and applicable law. The City must follow its own code as it relates to vacationing public land (Surplus Land Act Gov’t Code §§54220-54234), changing rights of ways (Streets and Highway Code §8300 et seq), and disposing of public land (Brown Act). The Project requires changes to the lot and street which include public land and a right of way and the sale of public land and therefore the City must adhere to its own procedures and municipal codes when making these changes. While there is no timing requirement in some of these codes, approving the Project before completing these procedures is putting the cart before the horse.

As these procedural requirements have not been met, my Clients urge the City to vote no at this time so that the procedural requirements for disposing of public land and right of ways can be met.

Finally, out of an abundance of caution and to avoid the appearance of impropriety and self-dealing, council members who are part of the Rotary Association, which is associating or promoting this Project, should recuse themselves from voting on this Project. All laws related to conflicts of interest should be adhered to and any city council member who has a conflict of interest must recuse themselves from voting on this Project.

4. Council member should vote No on this Project
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While affordable housing with reserved spaces for the disabled is a celebrated project for the City, this Project at this site is not the right place for this neighborhood. The City must vote no on approving the lease and disposition agreement with the Applicant. The City and the Applicant should find a better site with less impact to the health and safety of neighbors, construction workers, and its future residences and a site that improves not hurts the quality of life of its surrounding neighborhood.

If the City is not willing to vote no at this time, then the City must delay the vote at this meeting and set a future meeting and require in the interim that the Applicant:
a. enter into a Remedial Action Agreement with the Department of Environmental Health; b. conduct a further traffic assessment to determine the impact to traffic and parking on this street due to incoming parking changes at De Anza College c. engage the fire department to assess the impact of fire safety services as a result of the site restrictions, the narrower road, and increased traffic/parking on this street Additionally, in the interim, the City must initiate the procedural requirements for vacationing the right of way and public land, and disposition of public land so that these requirements are met and open for public comment before the Project is approved.

Sincerely,
Jordan Behmke, Esq.

Principal Attorney
Enc.

Exhibit A Subsurface Investigation Report
Exhibit B- Memorandum
Exhibit C- Transportation Assessment
cc. Clients
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Subsurface Investigation Report
Proposed Multi-Family Residential Development
Mary Avenue
Cupertino, California
Prepared for
Charities Housing
1400 Parkmoor Avenue, Suite 190
San Jose, California 95116
Prepared by
Professional Service Industries, Inc.
4703 Tidewater Avenue, Suite B
Oakland, California 94601
April 24, 2025
PSI Project Number: 0575-2869
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0575-2869 – Subsurface Investigation
Charities Housing, Cupertino, California
April 24, 2025
June
www.intertek.com/building/environmental

TABLE OF CONTENTS
STATEMENT OF LIMITATIONS AND PROFESSIONAL CERTIFICATION.............................................. i

1.0 INTRODUCTION ...................................................................................................................... 1

1.1 SITE LOCATION AND DESCRIPTION ............................................................................. 1

1.2 PROPOSED DEVELOPMENT......................................................................................... 1

1.3 PROJECT UNDERSTANDING......................................................................................... 1

2.0 SOIL INVESTIGATION............................................................................................................... 2

2.1 PURPOSE AND SCOPE OF WORK................................................................................. 2

2.2 PRE-FIELD ACTIVITIES................................................................................................... 2

2.3 SUBSURFACE EXPLORATION.......................................................................................... 2

3.0 ANALYTICAL RESULTS AND DISCUSSION................................................................................ 4

3.1 SOIL ANALYICIAL RESULTS AND DISCUSSION............................................................... 4

4.0 CONCLUSIONS AND RECOMMENDATIONS ............................................................................ 5

FIGURES
FIGURE 1: SITE LOCATION MAP
FIGURE 2: SITE PLAN AND BORING LOCATION MAP
FIGURE
TABLE 1: SOIL ANALYTICAL DATA SUMMARY

APPENDICES
APPENDIX A: CITY OF CUPERTINO ENCROACHMENT PERMIT
APPENDIX B: LABORATORY REPORT
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1.0 INTRODUCTION
Professional Service Industries, Inc. (PSI) was retained by Charities Housing to evaluate the possible impact to the near surface soils at the subject property associated with the former agricultural use of the subject property and the proximity to a highway.

1.1 SITE LOCATION AND DESCRIPTION
The subject property is located on the west side of Mary Avenue, at its intersection with Parkwood Drive in Cupertino California (see Figure 1 - Site Location Map). The subject property does not currently have an address but can be identified as a portion of Santa Clara County Assessor Parcel Number 326-27-030.

The site is a relatively level, roughly rectangular-shaped property that measures about 0.79 acres in plan area and is bounded by Mary Avenue to the east and Highway 85 to the west. At the time of our study, the subject property existed as undeveloped land, landscaping, and asphalt-paved parking (see Figure 2 - Site Plan and Vicinity Map).

1.2 PROPOSED DEVELOPMENT
Redevelopment of the subject property will include grading of the berm in front of the Caltrans Highway 85 soundwall along with removal of trees and vegetation. The subject property will include two buildings, each consisting of two stories and twenty (20) units, as well as a parking lot with approximately twenty-two (22) spaces including accessible and EV charging spaces.

1.3 PROJECT UNDERSTANDING
A Phase I Environmental Site Assessment (ESA) prepared for the subject property (PSI, June 11, 2024), indicates that the property was historically used for agricultural purposes from at least 1939 through the late 1960s. Additionally, the subject property is adjacent to a freeway that may have impacted the subject property with aerially deposited lead (ADL). The ESA did not identify any recognized environmental conditions (RECs), historical RECs, or controlled RECS on the subject property and PSI recommended no further investigation for the subject property.

However, PSI did identify the historical agricultural use and the ADL as environmental concerns for possible redevelopment of the subject property. Based on the proposed redevelopment of the property, Charities Housing determined that a subsurface investigation was prudent and contracted PSI to complete this investigation.
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2.0 SOIL INVESTIGATION

2.1 PURPOSE AND SCOPE OF WORK
The soil investigation at the site was performed to evaluate the nature and extent of potential lead and/or pesticide impact in the surface and near-surface soil that may have resulted from aerially deposited lead and from historical agricultural site use and the potential threat to human health associated with the intrusive, groundbreaking work that is proposed as part of the site development.

Our scope of work included advancing six soil borings, sampling of soil from each boring at 0.5 and 2 feet below the ground surface (bgs), analysis of samples, and preparation of this report.

All field work was performed under the supervision of a State of California Professional Geologist. A detailed description of the scope of work and methodology used is presented in the sections below. The scope of work, including the number and location of samples and the analyses performed, was in general accordance with the DTSC 2008 Interim Guidance for Sampling Agricultural Properties.

2.2 PRE-FIELD ACTIVITIES
At least 2 days prior to the commencement of drilling activities, PSI staked the proposed boring locations, marked the site with white paint and contacted Underground Service Alert (USA), a public utility locating service, to locate public utilities on or adjacent to the subject site. The USA inquiry identification number (or Ticket Number) for the utility locate request is #2025031202827.

Additionally, PSI obtained an encroachment permit from the City of Cupertino to complete the borings within the public right-of-way (Permit Number PW-2025-0143). A copy of the permit is presented in Appendix A.

2.3 SUBSURFACE EXPLORATION
Soil Borings
On March 18, 2025, six soil borings were advanced to a depth of 2 feet bgs by PSI personnel using a 3-inch diameter hand auger mounted on a T-bar handle. Three borings (B1 through B3) were advanced within soil-surfaced landscaped areas, and three (B4 through B6) were advanced in paved areas of the existing parking lot. Where required (in the 3 paved areas), Safe2Core Inc., a paving and coring contractor, was utilized to remove the asphalt pavement section to allow access for our hand-auger and sampling equipment. The locations of the soil boring are presented in Figure 2.
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Due to elevated lead concentrations detected in the soil sample from B2 at 2 feet, PSI returned to the subject property on April 11, 2025 to determine if those elevated concentrations are a localized condition. Two additional soil borings, B7 and B8, were advanced to a depth of 2 feet bgs within the soil-surfaced landscaped area approximately 10 feet north and south of B2, respectively. The borings were advanced by PSI personnel using a 3-inch diameter hand auger mounted on a T-bar handle. A description of the soil sampling, equipment decontamination, and backfill of the eight borings is presented in the following sections.

Soil Sampling
Soil samples were collected from the surface and subsurface at each boring, at depths of 0.5 and 2 feet bgs, respectively. Once a boring was advanced to the desired sample depth, a grab sample was collected from the auger bucket into a new 2-inch diameter, 6-inch-long stainless-steel soil tube. Once the sample tube was filled, the ends of the tube were sealed with Teflon sheets and capped with polyethylene end caps. PSI personnel wore nitrile gloves during sample collection, changing to a new pair for each sample collected. The samples were immediately labeled and then placed in a chilled cooler, pending delivery to the laboratory for analysis.

Groundwater was not encountered in any of the borings, with the Phase I ESA report for the property indicating that the depth to groundwater is approximately 60 to 100 feet bgs.

Equipment Decontamination
Decontamination procedures were implemented to maintain sample integrity and to prevent cross-contamination between sampling locations. The hand-auger bucket and T-bar were decontaminated before sampling, between samples and between boring locations by washing with a non-phosphate detergent and rinsing with de-ionized water.

Backfill of Borings
At the completion of sampling at each hand-auger boring, PSI backfilled the five holes located in the landscaped areas with hand-compacted soil cuttings to match the adjacent surface grades.

Safe2Core Inc. backfilled the three holes in the paved areas and restored the pavement surfaces in accordance with the City of Cupertino encroachment permit requirements. To avoid leaving any holes open that could cause damage or injury to vehicles, pedestrians or animals, the cores and borings were backfilled within a day of drilling. On April 21, 2025, PSI received email notification from the City of Cupertino Public Works Department that their inspector signed off on the pavement restoration.
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3.0 ANALYTICAL RESULTS AND DISCUSSION
The soil samples were submitted to SunStar Laboratories, Inc. of Lake Forest, California, a California certified environmental laboratory, under strict chain-of-custody protocol. Soil samples were delivered to the laboratory within two days of sample collection.

3.1 SOIL ANALYTICAL RESULTS AND DISCUSSION
The soil samples collected from each boring (a total of 12 soil samples) were submitted for analyses for the following:

Organochlorine pesticides according to EPA Method 8081
Lead and arsenic according to EPA Method 6010
Four additional soil samples were analyzed only for lead according to EPA Method 6010.

A summary of the soil analytical results are as follows:

Arsenic was detected in three soil samples with concentrations ranging from 3.51 to 7.25 milligrams per kilogram (mg/kg).

Lead was detected in eleven of the soil samples with concentrations ranging from 5.07 to 680 mg/kg. The lead concentrations are typical of background conditions with the exception of the soil sample collected from B2 at 2 feet. 4,4-DDE was detected in two soil samples (B3-0.5 and B3-2) at concentrations of 0.047 and 0.061 mg/kg, respectively.
4,4-DDT was detected in two soil samples (B3-0.5 and B3-2) at concentrations of 0.0089 and 0.020 mg/kg, respectively.

A copy of the laboratory analytical reports are included in Appendix B and the analysis results are summarized in Table 1.

The soil sample results were compared to the San Francisco Bay Regional Water Quality Board Environmental Screening Levels for Residential – Shallow Soil Exposure (ESL-R) and to the RWQCBESL for Construction Workers (ESL-CW). None of the concentrations of the tested constituents were detected at greater than their respective ESL-R or ESL-CW with the exception of the following.

The arsenic concentrations detected were below established background arsenic concentration for Santa Clara Valley of up to 20 mg/kg (“Establishing Background Arsenic in 1548
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www.intertek.com/building/environmental
Soil of the Urbanized San Francisco Bay Region,” by Dylan Duverge, December 2011).

Based on this information, Arsenic is not considered a contaminant of concern at the subject property. The detected arsenic concentrations were above the ESL-CW, so a Soil Management Plan (SMP) and a Site Specific Health and Safety Plan (SSHSP) should be prepared prior to conducting any soil excavation as part of redevelopment of the subject property.

Only one of the lead concentrations was above the ESL-R (B2-2). The results from the soil samples collected from borings B7 and B8, which show background concentrations of lead, effectively bound the elevated detections at B2, indicating that the B2 result as a localized condition. If not below a proposed building, as the new building will create a cap to eliminate contact with lead impacted soil, the soil represented by this sample should be excavated and removed from the property. For the proposed redevelopment, a SMP and SSHSP should be prepared that have appropriate stipulations associated with the lead impacted soil.

To evaluate soil disposal, should the soil be defined as a waste, the results of the soil analyses were compared to California Code of Regulations Title 22 List of Inorganic, Persistent, and Bioaccumulative Toxic Substances and their soluble threshold limit concentrations (STLC) and total threshold limit concentrations (TTLC) values. None of these samples had a concentration greater than their respective TTLC. However, the total lead concentration in soil sample B2-2 (680 mg/kg) was greater than the screening criteria of ten times the STLC of 5 milligrams per liter (mg/l).

Therefore, a waste extraction test (WET) and Toxicity Characteristic Leaching Potential (TCLP) were performed on this sample to determine its soluble lead concentration. The results of the analyses indicated that the soluble lead concentration was greater than the STLC after a WET, but below the soluble lead concentration after a TCLP. The soil represented by these samples would be classified as hazardous by the State of California upon excavation and classification as a waste material.
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www.intertek.com/building/environmental

4.0 CONCLUSIONS AND RECOMMENDATIONS
The results of the subsurface investigation are summarized below.

Low concentrations of lead, arsenic, and organochlorine pesticides were found across the subject property with one soil sample having elevated lead concentrations. Based on the concentrations detected, arsenic and organochlorine pesticides are not contaminants of concern, while lead is considered to be a contaminant of concern.

Only one soil sample had a total lead concentration above the ESL-R (B2-2). If not below a proposed building, as the new building will create a cap to eliminate contact with lead impacted soil, the soil represented by this sample should be excavated and removed from the property. Lead in one soil sample and arsenic in three soil samples were above the ESL-CW. A SMP and a SSHSP should be prepared prior to site redevelopment to mitigate exposure of construction workers to the lead and arsenic in soil.

To evaluate whether the soil represented by soil sample B2-2 would be a hazardous waste, when excavated, the soil sample was analyzed for soluble lead by the WET and TCLP methods. The results of the analyses indicated that the soluble lead concentration was greater than the STLC after a WET, but below the soluble lead concentration after a TCLP.

The soil represented by this sample would be classified as hazardous by the State of California upon excavation and classification as a waste material. 1550
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FIGURES
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TABLE
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APPENDIX A

CITY OF CUPERTINO ENCROACHMENT PERMIT
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APPENDIX B

LABORATORY REPORT
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388 17th Street, Suite 230, Oakland, CA 94612 | (510) 420-8686 | www.baseline-env.com Mailing Address: PO Box 18586, Oakland, CA 94619

MEMORANDUM
Date: 16 May 2025 Job No.: 23308 04
To: Gian Martire, Senior Planner, City of Cupertino
From: Cem Atabek, Baseline Environmental Consulting
Subject: Peer Review of Subsurface Investigation Reports, Undeveloped Land West of Mary Avenue and Parkwood Drive, Cupertino, California
Baseline Environmental Consulting (Baseline) has performed a peer review on behalf of the City of Cupertino (City) for the Draft Subsurface Investigation Report dated 4 April 2025 and the Subsurface Investigation Report dated 24 April 2025, both prepared by Intertek PSI, for the undeveloped land west of Mary Avenue and Parkwood Drive identified as Santa Clara County Assessors Parcel Number 326 27 030 in Cupertino, California (Site). Baselines peer review presented below was performed to evaluate the adequacy of the Additional Phase II to ensure compliance with the requirements of Section 17.04.040(B) of the Citys Municipal Code. The Site is currently developed with a landscaped area and paved parking area and is proposed to be redeveloped for residential land use (the project).

DRAFT SUBSURFACE INVESTIGATION REPORT
The Draft Subsurface Investigation Report describes sampling and analysis of soil that was performed at the Site to evaluate potential contamination from aerially deposited lead (ADL) and past agricultural use of the Site. Soil samples were collected from three borings (B1 to B3) located within the landscaped area and three borings (B4 to B6) located within the paved parking area of the Site. Soil samples were collected from depths of 0.5 and 2 feet below the ground surface (bgs), and the samples were analyzed for organochlorine pesticides (OCPs), arsenic, and lead. Soluble lead was also analyzed in one sample based on the elevated concentration of total lead detected in the sample, as discussed further below. Based on our review of the Draft Subsurface Investigation Report, it appears that appropriate soil sampling and laboratory analytical methods were performed.

The soil sample results were compared to the San Francisco Bay Regional Water Quality Board Environmental Screening Levels (ESLs) for Residential Exposure (Residential ESLs) and Construction Workers Exposure (Construction Worker ESLs) and hazardous waste thresholds.

Baseline notes that the Construction Worker ESL for arsenic presented in Table 1 of the Draft Subsurface Investigation Report is 2.0 milligrams per kilogram (mg/kg); however, this ESL is based on cancer risk and there is a lower Construction Worker ESL for arsenic (0.98 mg/kg) 1605
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23308 04 Mary Ave Phase II Peer Rev
which is based on the non cancer hazard. Typically, the lower of the ESLs for cancer risk and non cancer hazard is referenced as the appropriate ESL.

The Draft Subsurface Investigation Report indicates that arsenic concentrations detected at the Site were below established background arsenic concentrations for Santa Clara Valley of up to 20 mg/kg and references the December 2011 background arsenic study titled Establishing Background Arsenic in Soil of the Urbanized San Francisco Bay Region by Dylan Duverge.

Baseline notes that this 2011 background arsenic study lists a range of arsenic concentrations detected in the northern Santa Clara Valley as being up to 20 mg/kg; however, it concludes that 11 mg/kg is an appropriate upper estimate (99th percentile) of regional background concentrations of arsenic, and 11 mg/kg is typically referred to as a screening level for naturally occurring background arsenic in the Bay Area. The concentration of arsenic detected at the Site range from 3.51 to 7.25 mg/kg, and therefore these arsenic concentrations appear to be naturally occurring background concentrations.

The Draft Subsurface Investigation Report indicates that based on the concentrations detected, arsenic and OCPs are not contaminants of concern, while lead is considered to be a contaminant of concern. Lead was detected in seven of the soil samples with concentrations that are typical of background conditions with the exception of the soil sample collected from boring B2 (near the center of the landscaped area on the Site) at 2 feet (sample ID B2 2), which was reported to contain 680 mg/kg of lead, exceeding the Residential ESL (80 mg/kg) and Construction Worker ESL (160 mg/kg). To evaluate whether the soil represented by sample B2 2 would be a hazardous waste, when excavated, the sample was analyzed for soluble lead by the Waste Extraction Test (WET) and Toxicity Characteristic Leaching Potential (TCLP) methods.

Soluble lead analyzed by the WET method was detected at a concentration of 18 milligrams per liter (mg/L), which exceeds the Soluble Threshold Limit Concentration (STLC) of 5 mg/L. Soluble lead analyzed by the TCLP method was detected at a concentration of 1.1 mg/L, which is below the TCLP threshold of 5 mg/L. Based on the total and soluble lead results, the soil represented by sample B2 2 would be classified as non Resource Conservation and Recovery Act (non RCRA) hazardous waste (or California hazardous waste) for waste disposal purposes.

The Draft Subsurface Investigation Report recommended additional soil sampling in the area of boring B2 prior to Site redevelopment to further define the extent of lead impacted soil and minimize the volume of soil being removed from the property as a California hazardous waste.

The Draft Subsurface Investigation Report recommended that if soil represented by sample B2 2 would not be below a proposed building, as the new building would create a cap to eliminate contact with lead impacted soil, the soil represented by this sample should be excavated and removed from the property.
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Baseline notes that while capping of lead impacted soil beneath buildings would reduce the likelihood of exposure for future Site occupants, this remedial approach is not adequate without appropriate engineering controls, institutional controls, and regulatory oversight to ensure that the lead impacted soil would not create an exposure concern for future Site occupants or construction/maintenance workers. For situations where contaminated soil is capped, regulatory agencies typically require the establishment of a deed restriction and implementation of operation and maintenance activities to ensure that future Site occupants and construction/maintenance workers are aware of the remedial cap and contaminated soil conditions, and to ensure that the contaminated soil would remain capped and not be disturbed without appropriate precautions.

The Draft Subsurface Investigation Report also recommends that a Soil Management Plan (SMP) and a Site Specific Health and Safety Plan (SSHSP) be prepared prior to conducting any soil excavation as part of redevelopment of the subject property due to the detected concentrations of arsenic and lead. Baseline generally agrees with these recommendations; however, Baseline notes that response actions such as preparation and implementation of an SMP are typically not performed (or required by regulatory agencies) to address naturally occurring background concentrations of metals. The health and safety of construction workers is ultimately the responsibility of the contractor. The project applicant should provide the project contractor with the results of all soil sampling performed at the Site, and the contractor must prepare and implement an appropriate SSHSP that addresses potential exposure to soil as required by California Code of Regulations Title 8.

Subsurface Investigation Report
The Subsurface Investigation Report describes sampling and analysis of soil that was performed at the Site including the sampling and analytical results discussed in the Draft Subsurface Investigation Report, and additional sampling performed to evaluate the extent of lead impacted soil identified by sample B2 2. Two borings, B7 and B8, were advanced approximately 10 feet north and south of boring B2, respectively. Soil samples were collected from depths of

0.5 and 2 feet bgs, and the samples were analyzed for lead. Based on our review of the Subsurface Investigation Report, it appears that appropriate soil sampling and laboratory analytical methods were performed.

The analytical results from the soil samples collected from borings B7 and B8 revealed background concentrations of lead, indicating that the elevated lead is a localized condition in the area of boring B 2. The Subsurface Investigation Report also recommended that if soil represented by sample B2 2 would not be below a proposed building, the soil represented by this sample should be excavated and removed from the property. The Subsurface Investigation Report recommended that an SMP and SSHSP should be prepared for the proposed project that have appropriate stipulations associated with the lead impacted soil. 1607
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Baseline notes that the lateral extent of lead impacted soil appears to have been defined to the north and south of boring B 2, however the vertical extent of lead impacted soil in the area of boring B2 has not been defined. Lead contamination from ADL is typically confined to the upper few feet of soil, and excavation of lead impacted soil at the Mary Avenue Dog Park (located adjacent to the north of the Site) extended to a maximum depth of below 2 feet bgs,1 which suggests that the impacts from lead at the Site may also be limited to the upper few feet of soil.

The lateral extent of lead impacted soil was also not defined to the east or west of boring B 2, however boring B 2 was located very close to the western Site boundary, and the east west dimension of the Site is relatively narrow (approximately 50 to 60 feet).

Baseline considers the detection of lead at a concentration exceeding the Residential ESL and Construction Worker ESL in sample B2 2 to be a potentially unacceptable health risk for construction workers and future residential occupants of the Site. Section 17.04.050(B) of the Citys Municipal Code indicates:

If a Focused or other Phase II ESA, as required pursuant to Section 17.04.040(B)(1), identifies an unacceptable or a potentially unacceptable health risk, the project applicant shall, depending on the contaminant, contact either the Environmental Protection Agency (EPA), Department of Toxic Substances Control (DTSC), Regional Water Quality Control Board (RWQCB) or local Certified Unified Program Agency (CUPA). The project applicant shall enter into a regulatory agency oversight program with an appropriate regulatory agency, or an established voluntary oversight program alternative with an appropriate regulatory agency, as determined by the City, and follow the regulatory agencys recommended response actions until the agency reaches a no further action determination, prior to issuance of any permit for a project that allows ground disturbing activity.

Based on the requirements of the Citys Municipal Code, Baseline recommends that the project applicant enter into a Remedial Action Agreement with the Santa Clara County Department of Environmental Health as an appropriate regulatory agency to oversee soil remediation at the Site.

Baseline recommends approval of the permit application for the project from a hazardous materials contamination standpoint, with the following conditions:

Remediation of lead impacted soil at the Site should be performed in accordance with an SMP prepared and implemented under regulatory agency oversight. The SMP should be prepared and certified by a qualified Environmental Professional, and should be submitted to the City 1 TRC, 2013. Environmental Services, Soil Removal Completion Report, Cupertino Dog Park, Cupertino, California, December 18.
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and the regulatory oversight agency for review and approval. The SMP should include the following:

A description of the precise extent of proposed contaminated soil removal, proposed remediation goals, and detailed procedures for soil handling, soil characterization for off Site disposal or on Site re use, confirmation sampling and analysis, and importing of clean fill material.

Measures to prevent potential exposure of the surrounding public to contaminants that could be released in fugitive dust (e.g., dust control procedures, air monitoring protocols, and air monitoring action levels) during the removal of contaminated soil and other construction activities, in addition to preventing potential exposure of future Site occupants to contaminated soil.

Notification procedures and response actions that would be taken if previously unidentified soil contamination or underground features of environmental concern (e.g., sumps, underground storage tanks) are identified during project construction activities.

A requirement that all remedial excavation and contaminated soil handling and disposal activities be overseen by a qualified Environmental Professional, and that all confirmation and waste characterization soil sampling be performed by a qualified Environmental Professional.

The excavation and off Site disposal of contaminated soil and confirmation sampling results should be documented in a Completion Report prepared and certified by a qualified Environmental Professional which should be submitted to the regulatory oversight agency for review and approval, and the project applicant should provide the City with written evidence that the regulatory oversight agency has issued a no further action determination for the Site prior to the City issuing any permits that would allow other ground disturbing activity (beyond soil remediation) at the Site.
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November 13, 2025
Mr. Andy Lief, Charities Housing
Kai-Ling Kuo, Andrea Lin
Transportation Study for Proposed Affordable Housing Project on Mary Avenue in Cupertino, California
Hexagon Transportation Consultants, Inc. has completed a transportation study for the proposed affordable housing project on Mary Avenue in Cupertino, California. The project proposes affordable housing between the SR 85 soundwall and Mary Avenue. The project proposes constructing 2 twostory buildings with a total of 40 dwelling units (19 affordable disabled housing units and 21 affordable housing units) and 20 on-site parking spaces (18 regular spaces and 2 accessible spaces) on a 0.8- acre site. Access to the buildings would be provided via 2 two-way driveways on Mary Avenue. The project site location and site plan are shown in Figure 1 and Figure 2, respectively.

This study was conducted for the purpose of identifying the potential transportation impacts and operational issues related to the proposed development. The transportation impacts of the project Transportation Study (TS) Guidelines (January 2025). This study consists of a California Environmental Quality Act (CEQA) vehicle miles traveled (VMT) analysis and a transportation analysis per the TS Guidelines.

As discussed below, the project would result in an increase in net vehicle trip generation of 163 daily trips, which is within the definition of a Tier 2 project (projects with trip generation between 110 and 1,000 daily vehicle trips and less than 100 peak hour trips) 2 transportation analysis requires an off-site intersection operations analysis, review of General Plan consistency, a parking supply evaluation, a site access and circulation assessment, and a safety assessment. The intersection operations analysis includes an analysis of weekday AM and PM peakhour traffic conditions at the intersection of Mary Avenue and Stevens Creek Boulevard.

Transportation impacts under CEQA are measured using VMT. The City of Cupertino TS Guidelines provide VMT
screening criteria, the project is expected to result in a less-than-significant VMT impact and a detailed CEQA VMT analysis is not required.
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Cupertino
Sports Center
Cupertino Morro Bay Ter
Campus Dr
Lubec St
AnsonAve Milford Dr Castine Ave S Stelling Rd
mI per ai lAveBub
Rd
Greenleaf Dr N Stelling Rd
Stevens Creek Blvd
MaryAve
Glen PlGlen Pl
Parkwood Dr
Parkwood Dr Peninsula
Blvd
Peninsula
Blvd
Garden Gate Elementary School
Cupertino
Memorial Park
De Anza College
= Study Intersection
= Site Location
Mary Ave
Dog Park
Mary Avenue A ordable Housing Project TA
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Mary Avenue Affordable Housing Project TA November 13, 2025 P a g e | 4
Per the TS Guidelines, a project may be screened out if it meets one or more of the following criteria:
(1) a project located within one-quarter mile of a High-Quality Transit Corridor or transit stop as defined by CEQA; (2) local-serving retail of 50,000 square feet or less; or (3) land-use projects consisting of 100% affordable housing. The project would provide 100% affordable housing; thus, it is expected to result in a less-than-significant VMT impact and would not require detailed VMT analysis.

The existing transportation system in the project study area is described below. Included are descriptions of the existing roadway network, pedestrian and bicycle facilities, and transit services.

Regional access to the project site is provided via SR 85. Local access to the site is provided via Stevens Creek Boulevard, Stelling Road, and Mary Avenue. These facilities are described below. is a six-lane freeway with two mixed-flow lanes and one high-occupancy vehicle (HOV) lane in each direction in the vicinity of the project site. SR 85 extends north through Mountain View, connecting with US 101, and south through San Jose, connecting again with US 101. Access to the project site is provided via its interchange with Stevens Creek Boulevard. is an eastGeneral Plan. It extends from Ridgeway Drive in the west to Bascom Avenue in the east. In the vicinity of the project site, Stevens Creek Boulevard has 6 lanes with left turn/U-turn pockets at intersections, a landscaped median, buffered bike lanes in each direction, and sidewalks along both sides of the roadway. On-street parking is prohibited on both sides of the roadway, and the posted speed limit is 35 miles per hour (mph). Access to the project site is provided via its intersection with Mary Avenue/Campus Drive.
is a north-south roadway classified as an avenue (major collector) in the General Plan. It extends past Homestead Road in the north and past Prospect Road to the south. In the vicinity of the project site, Stelling Road has 4 lanes with left turn/U-turn pockets at intersections, a landscaped median, sidewalks along both sides of the roadway, and striped bike lanes in each direction. On-street parking is prohibited on both sides of the street. The posted speed limit is 35 mph. Access to the project site is provided via its intersection with Stevens Creek Boulevard. is a two-lane north-south local street classified as a neighborhood connector in the extends from Meteor Drive in the north to Campus Drive in the south. Mary Avenue has sidewalks on the east side of the street and on the west side of the street for the most part, except along the project frontage. It has buffered and protected (Class IV) bike lanes on both sides of the roadway. On-street parking is allowed on both sides of the street north of Morro Bay Terrace. The parking is diagonal on the west side and parallel on the east side. The project would remove parking on the east side and change the west side to parallel parking. The posted speed limit is 30 mph. Mary Avenue provides direct access to the project site.

Existing transit service to the City of Cupertino is provided by the Santa Clara Valley Transportation Authority (VTA). The VTA bus routes in the project vicinity and the bus stops near the project site are summarized in Table 1 and shown in Figure 3.

The closest bus stop is located about 2,100 feet away near the intersection of Mary Avenue and Stevens Creek Boulevard. The nearby bus stop located at De Anza College is about 2,600 feet from the project site. The bus stops on Stevens Creek Boulevard at Stelling Road are more than a half mile from the project site.
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Mary Avenue Affordable Housing Project TA November 13, 2025 P a g e | 5
The bicycle facilities that exist in the project vicinity (see Figure 4) include bike lanes and bike routes.

Bike lanes are lanes on roadways designated for use by bicycles with special lane markings, pavement legends, and signage. Bike routes are signed bike routes where bicyclists share a travel lane with motorists.

Bike lanes are present on Mary Avenue (Class IV parking-protected on a portion of the west side between Lubec Street and Morro Bay Terrace and on a portion of the east side between the north end of Mary Avenue Dog Park and the Cupertino Memorial Park parking lot entrance, and Class IIB buffered lanes on the rest of the street), Stevens Creek Boulevard (Class II), Bubb Road (Class IV), and Stelling Road (Class II). A bike route in the area connects the project to local schools like Garden Gate Elementary school. In the project vicinity, the route is present along Lubec Street (east of Mary Avenue), Anson Avenue (north of Lubec Street) Milford Drive, Castine Avenue (north of Milford Drive) and Greenleaf Drive.

Pedestrian facilities consist of sidewalks, ADA compliant curb ramps, and crosswalks at many of the nearby intersections. In the vicinity of the project site, continuous sidewalks exist along the east side of Mary Avenue and both sides of Stevens Creek Boulevard, Campus Drive, and Stelling Road.

There is no sidewalk on the west side of Mary Avenue along the project frontage and the Dog Park.

There are two high-visibility crosswalks across Mary Avenue at unsignalized intersections along the street: one at Lubec Street north of the site and the other at the driveway for the Cupertino Memorial Park parking lot, south of the site, with rapid rectangular flashing beacons (RRFB). At the signalized intersection of Mary Avenue and Stevens Creek Boulevard, high-visibility crosswalks are provided across the north, south, east and west legs of the intersection. 1615
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Campus Dr
Lubec St
AnsonAve Milford Dr Castine Ave S Stelling Rd
mI per ai lAve Bub
Rd
Greenleaf Dr
N
Stell ni g Rd
MaryAve
Glen PlGlen Pl
Parkwood Dr
Parkwood Dr Peninsula
Blvd
Peninsula
Blvd Morro Bay Ter Stevens Creek Blvd
= Site Location
= Local Bus Route
= Frequent Bus Route
= Rapid Bus 523
= Nearby Bus Route
Mary Avenue A ordable Housing Project TA
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Campus Dr
Lubec St
AnsonAve Milford Dr Cast ni eAve S Stelling Rd
mI per ai lAve Bub
Rd
Greenleaf Dr N Stelling Rd
MaryAve
Glen PlGlen Pl
Parkwood Dr
Parkwood Dr Peninsula
Blvd
Peninsula
Blvd Morro Bay TerStevens Creek Blvd
= Existing Bike Routes (Class III Bikeway)
= Existing Bike Lanes (Class II Bikeway)
= Existing Buffered Bike Lanes (Class IIB Bikeway)
= Existing Protected Bike Lanes (Class IV Bikeway)
= Site Location
Mary Avenue A ordable Housing Project TA
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Mary Avenue Affordable Housing Project TA November 13, 2025 P a g e | 8
The magnitude of traffic produced by a new development and the locations where that traffic would appear were estimated using a three-step process: (1) trip generation, (2) trip distribution, and (3) trip assignment. In determining project trip generation, the magnitude of traffic traveling to and from the proposed residential development was estimated for the AM and PM peak hours. As part of the project trip distribution and assignment, directions to and from which the project trips would travel were estimated and project trips generated were assigned to specific streets and intersections. These procedures are described below:

Through empirical research, data have been collected that show trip generation rates for many types Trip
Generation Manual, 12th Edition. ITE does not have a category for developmentally disabled would generate most of the trips. Using this category to represent the developmentally disabled housing units is likely a slight over-estimate of generated traffic because residents would not have cars.

Thus, trips that would be generated by the project were estimated using the ITE average trip rates for Senior Adult Housing - Multifamily 52) for the developmentally disabled units and The proposed project is estimated to generate 163 daily vehicle trips, with 12 trips (3 inbound and 9 outbound) during the AM peak hour and 15 trips (9 inbound and 6 outbound) during the PM peak hour (see Table 2).

The trip distribution pattern for the project was estimated based on the existing travel patterns on the surrounding roadway network and the locations of complementary land uses. The peak-hour trips generated by the project were assigned to the roadway system based on the trip distribution pattern, directions of approach and departure, and the roadway network connections. Project trip distribution and trip assignment are shown in Figure 5. For a conservative analysis, it is assumed that all trips from the project site would pass through the study intersection at Mary Avenue and Stevens Creek Boulevard.
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Campus Dr
Lubec St
AnsonAve Milford Dr Castine Ave S Stelling Rd mI per ai lAve Bub Rd
Greenleaf Dr N Stelling Rd
MaryAve
Glen PlGlen Pl
Parkwood Dr
Parkwood Dr Peninsula
Blvd
Peninsula
Blvd Morro Bay Ter Stevens Creek Blvd
60% 40%
= Trip Distribution
= Study Intersection
= Site Location
XX%
XX(XX) = AM(PM) Peak-Hour Trips
Mary Avenue A ordable Housing Project TA
1 Campus Dr Ave Mary
Blvd
Creek
Stevens
1(4)
2(5)
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Mary Avenue Affordable Housing Project TA November 13, 2025 P a g e | 1 0
This section presents the methods used to determine traffic conditions at the study intersection and the traffic effects of the project.

This study analyzes the traffic effects of the project at the Mary Avenue/Campus Drive and Stevens Creek Boulevard intersection during the weekday AM and PM peak hours of commute traffic. Traffic conditions at the study location were analyzed for the weekday AM (7:00 AM to 9:00 AM) and PM (4:00 PM to 6:00 PM) peak hours of commute traffic. These periods represent the most congested traffic conditions on the surrounding street network during a typical weekday.

Intersection traffic conditions were evaluated for the following scenarios:

Existing Conditions. Existing AM and PM peak-hour traffic volumes were obtained from new turning movement counts conducted on a typical weekday, October 7, 2025 (see Appendix A).

Existing Plus Project Conditions. Existing plus project traffic volumes were estimated by adding to the existing traffic volumes the additional traffic generated by the project (see Figure 5). Existing plus project conditions were evaluated relative to existing conditions to determine potential project adverse effects.

Traffic conditions at the study intersection were evaluated using level of service (LOS). Level of service is a qualitative description of operating conditions ranging from LOS A, or free-flow conditions with little or no delay, to LOS F, or jammed conditions with excessive delays.

The City of Cupertino evaluates level of service at signalized intersections based on the latest Highway Capacity Manual (HCM) level of service methodology. For the study, the intersection levels of service were analyzed using Synchro software in accordance with the HCM 7th Edition methodology. The HCM method evaluates signalized intersection operations based on average control delay time for all vehicles at an intersection. The correlation between average control delay and level of service is shown in Table 3.
standards for signalized
intersections. For this study, an LOS D standard was applied to the study intersection based on the 2021 TS Guidelines.

For most major intersections, a development is said to create an adverse effect on traffic conditions at a study intersection if for either hour, any of the following conditions occur:

1. The level of service at signalized intersections degrades from an acceptable level (LOS D or better) under no-project conditions to an unacceptable LOS E or F under project conditions.

2. The project would deteriorate already unacceptable operations at a signalized intersection by increasing the average critical delay by four or more seconds and increasing the critical volume-to-capacity (v/c) ratio by 0.01 or more; increase the v/c ratio by 0.01 or more at an intersection with unacceptable operations when the change in critical delay is negative (i.e. decreases). This can occur if the critical movements change. 1620
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Mary Avenue Affordable Housing Project TA November 13, 2025 P a g e | 1 1
The 2025 TS Guidelines also provide a deficiency criterion for intersection vehicle queuing as part of operations would occur if for either peak hour:

1. The project traffic would cause 95th percentile vehicle queues to exceed the existing or planned length of a turn pocket, or

2. Where a queue exceeds the available storage without the project, project traffic would increase the queue by more than 50 feet.

The existing lane configurations at the study intersections are shown on Figure 6.

The traffic volumes for the existing conditions and existing plus project conditions are shown in Figure 6 and described above for the analysis scenarios.
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Campus Dr
Lubec St
AnsonAve Milford Dr S Stelling Rd mI per ai lAve Bub
Rd N Stelling Rd
MaryAve
Glen PlGlen Pl
Parkwood Dr
Parkwood Dr Peninsula
Blvd
Peninsula
Blvd Morro Bay Ter Stevens Creek Blvd
= Study Intersection
= Site Location
XX(XX) = AM(PM) Peak-Hour Traffic Volumes
= Signalized Intersection
Mary Avenue A ordable Housing Project TA
1 Campus Dr Ave Mary
Blvd
Creek
Stevens
1 1
Existing Volumes Existing + Project Volumes Blvd
Creek Campus Dr
Stevens Blvd
Creek Campus Dr
Stevens Mary Ave Mary Ave
88(43)
722(863)
94(101)
98(136)
732(1377)
107(33)
88(43)
722(863)
95(105)
100(141)
732(1377)
107(33)
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Mary Avenue Affordable Housing Project TA November 13, 2025 P a g e | 1 3
The results of the intersection level of service analysis (see Table 4) show that the study intersection would operate at an acceptable level of service under existing and existing plus project conditions.

The intersection level of service calculation report is included in Appendix B.

Typically, vehicle queuing analysis is done for high-demand movements at intersections where the project would add a substantial number of trips to the left-turn movements (10 or more peak hour vehicle trips per lane). The project would not be adding 10 or more peak hour vehicle trips per lane to any turning movement (see Figure 5). Thus, it is not expected that the addition of the project would negatively affect the existing queuing conditions.

The project is located on Mary Avenue, which is a local street. This street is not identified on the The project would not conflict with the General Plan policies because the project would not affect access to roadways, transit, bicycle, or pedestrian facilities.

The existing pedestrian facilities in the project vicinity provide good connectivity with continuous sidewalks from the project site to nearby points of interest, including bus stops, schools, and parks.

High-visibility crosswalks across Mary Avenue are provided at the unsignalized intersections at Lubec Street to the north and at Cupertino Memorial Park driveway to the south.

There is currently no sidewalk along the project frontage. The project would construct a new 4.5-footwide sidewalk along its frontage on Mary Avenue to connect to the existing sidewalk to the south and the dog park to the north. The new sidewalk is consistent with the existing sidewalk configuration within the adjacent neighborhood. The sidewalk would be buffered from traffic by a 5-foot-wide bike lane, 2.5-foot buffer, and parallel street parking. Walkways from the street frontage would provide direct access to the buildings.

The project would not affect the existing pedestrian access in the area. The project would provide facilities.

The project proposes re-aligning the existing bike lane along the project frontage and converting the angled street-parking spaces to parallel street-parking spaces. The proposed bike lane would be 5 feet wide, which meets the minimum recommendation of 5 feet for lateral clearance of bike lanes listed in the VTA bicycle technical guidelines. The bike lane would be protected from vehicular traffic by 8-foot-wide parallel parking spaces and a 2.5 foot striped buffer between the bike lane and the 1623
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Mary Avenue Affordable Housing Project TA November 13, 2025 P a g e | 1 4
parking spaces. The project would introduce two driveways along the west side of Mary Avenue that would cross the bike lane. The project proposes using a different paving material to signal to drivers to slow down and look out for cyclists and pedestrians. The landscaping planters and curb islands next to the driveways would also provide adequate line of sights for cyclists and pedestrians.

The project proposes two pairs of reverse curves to create a lateral shift of the bike lane at the north and south ends of the project site to connect the proposed bike lane to the existing bike lane. The National Association of City Transportation Officials (NACTO) design guidelines for Bike Transitions, which are adapted from the was used to evaluate the
proposed reverse curves. For an urban street, a design speed of 10 mph could be assumed for protected bike lanes. For an approach speed of 10 mph, NACTO recommends a minimum edge radius of 18 feet. At the north end of the site, the curve radii are less than 18 feet, which cannot accommodate a travel speed of 10 mph. At the south end of the site, the curve radii are greater than 18 feet.

To accommodate a design speed of 10 mph for the bike lane guidelines, the turn radii of the reserve curves on the north end of the project site should be a minimum of 18 feet and signage should be added ahead of the curves to inform cyclists to slow down to 10 mph.

The proposed bicycle lane would connect to the existing bicycle lane on Mary Avenue; thus the proposed project would not conflict with any planned facilities identified in the City of Cupertino 2016 Bicycle Transportation Plan.

As previously stated, the closest bus stop serves Local Route 51 and is located about 2,100 feet away at the intersection of Mary Avenue and Stevens Creek Boulevard. The nearby bus stop for Frequent Route 23 is located at De Anza College and is about 2,600 feet from the project site. The bus stops in both directions can be accessed via the existing pedestrian network. Any small increase in transit trips is expected to be accommodated by the existing transit capacity.

The City of Cupertino minimum parking requirement for medium density multi-family housing per the s per dwelling unit. Because the
project would provide 100% affordable housing, the project can qualify for the State Density Bonus Law. Per public Resources Code Section 65915(p)(2), the City may not impose minimum vehicular parking ratios for developments that include at least 20% low-income units that exceed 0.5 spaces per unit.

Therefore, for the proposed 40 dwelling units, the project would be required to provide 20 parking spaces per the State Density Bonus Law. Additionally, approximately half of the dwelling units provided by the project would be for developmentally disabled residents that would not own cars or drive. The project proposes a total of 20 parking spaces in an on-site parking lot. Thus, the project meets the State Density Bonus Law parking requirements. -family developments to provide one long-term
(Class I Facility) bicycle parking space per 2 residential units and one short-term (Class II Facility) bicycle parking space per 10 residential units. For the proposed 40 units, the project would be required to provide 20 long-term and 4 short-term bicycle parking spaces. The project proposes 16 inverted-U bike racks (which provide 2 bicycle parking spaces per inverted-U bike rack): 4 bike racks 1624
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Mary Avenue Affordable Housing Project TA November 13, 2025 P a g e | 1 5
in front of Building 1 near the community room, 3 bike racks north of Building 1, 1 rack in front of 4 bike racks behind Building 1 near the elevators, and 4 bike racks behind Building 2 near the elevators. The 8 proposed bike racks in front of buildings would provide 16 short-term parking spaces for public use, which would meet the short-term bicycle parking requirement. The 8 bike racks behind the buildings near the elevators could provide 16 parking spaces for residents. However, these spaces are not protected. Thus, the project does not meet the minimum requirements for long-term bicycle parking spaces. the project should provide 20 long-term bicycle
parking spaces. These long-term bicycle parking spaces should be provided in bicycle lockers (fully enclosed space accessible only by the owner of the bicycle), restricted access rooms (locked room or enclosure accessible only to the owners), or enclosed cages (chain link enclosures with a lock).

The project would convert the angled street-parking spaces to parallel street-parking spaces on its frontage along Mary Avenue and remove the parallel street-parking spaces on the east side of the street across from the project frontage. This would remove 84 angled street-parking spaces on the west side and 38 parallel street-parking spaces on the east side (approximately 950 feet) and add 33 parallel parking spaces to the west side of Mary Avenue, which would result in a net loss of 89 streetparking spaces.

Hexagon previously conducted a parking study (see Appendix C) to identify the current parking supply and demand of the on-street parking on Mary Avenue between Lubec Street and Stevens Creek Boulevard. There are currently 171 diagonal parking spaces provided along the west side and 70 parallel parking spaces provided on the east side, for a total of 241 on-street parking spaces. The parking study found the existing peak parking demand was 37 parking spaces (26 spaces on the west side of Mary Avenue and 11 spaces on the east side of Mary Avenue) with 7 occupied spaces along the project frontage.

As stated previously, the project meets the vehicular parking requirements per the State Density Bonus Law with the proposed parking on site. Additionally, approximately half of the dwelling units provided by the project would be for developmentally disabled residents that would not own cars or drive. Therefore, the project is not expected to increase parking demand for on street parking.

With the project, there would be 152 on-street parking spaces (with 33 parallel parking spaces along the project frontage), which would still provide enough spaces to meet the anticipated parking demand (37 total spaces and 7 spaces along the project frontage).

A review of the project site plan was performed to identify the adequacy of site access and on-site circulation. This review is based on the site plan dated May 9, 2025 (see Figure 2 and Figure 7).

Vehicle access to the site would be provided via two driveways along Mary Avenue.

The project proposes two driveways on Mary Avenue: one located opposite Parkwood Drive and the other about 180 feet south of that driveway. Two driveways are necessary because the project proposes angled on-site parking. The site is not wide enough to provide 90-degree parking. -20, driveway width for commercial/high density residential should be between 24 and 32 feet. The driveway to the north (near Building 2) would be 24 feet wide and the driveway to the south (near Building 1) would be 26 feet wide for driveway width.
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Mary Avenue Affordable Housing Project TA November 13, 2025 P a g e | 1 6
The project-generated trips that are estimated to access both driveways are 12 trips during the AM peak hour (3 inbound and 9 outbound) and 15 trips during the PM peak hour (9 inbound and 6 outbound). Due to the low number of AM and PM peak hour project-generated trips, operational issues related to vehicle queuing or delays, or with potential pedestrian or bicycle traffic would be minimal at the project driveways.

The distance between the first 90-degree parking stall and the street edge for both of the driveways is 24 feet. Thus, there is enough room for one inbound vehicle to queue in the driveway without blocking the traffic on Mary Avenue. The maximum number of vehicles that would enter a driveway is 9 inbound vehicles during the PM peak hour, which is equivalent to approximately one vehicle every 6 minutes. Thus, no inbound queuing issues are expected at the project driveways.

The project driveways should be free and clear of any obstructions to provide adequate sight distance, thereby ensuring that exiting vehicles can see pedestrians on the sidewalk and vehicles and bicycles traveling along Mary Avenue. Any landscaping and signage should be located in such a way to ensure an unobstructed view for drivers exiting the site and turning onto Mary Avenue. Providing the appropriate sight distance reduces the likelihood of a collision at a driveway and provides drivers with the ability to locate sufficient gaps in traffic.

The project proposes trees that would be planted along the Mary Avenue frontage near the driveways. -2, the canopies of the trees should be at least 8.5 feet in height so that they do not impede the view of exiting drivers. If additional frontage improvements, such as signage or additional landscaping, are proposed, they should be located so that the view of exiting drivers is not impeded -2.

The minimum acceptable sight distance is considered the Caltrans stopping sight distance. Sight distance requirements vary depending on roadway speeds. Mary Avenue has a speed limit of 30 mph, so the Caltrans stopping sight distance is 250 feet (based on a design speed of 35 mph).

Accordingly, a driver must be able to see 250 feet along Mary Avenue to stop and avoid a collision.

Based on the site plan and narrow travel lanes on Mary Avenue, on-street parking next to the project driveways would potentially block the line of sight of exiting drivers (see Figure 8).

To ensure drivers exiting the project driveways have adequate lines of sight, it is recommended that two parallel parking spaces on the north side of each driveway and one parking space on the south side of the project driveways be removed. If the driveways are changed to oneway as recommended below, only the parking spaces next to the outbound driveway (south driveway) need to be removed. The on-street parking supply would still be adequate with the reduction of these six parallel parking spaces.
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Mary Avenue A ordable Housing Project TA
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Mary Avenue Affordable Housing Project TA November 13, 2025 P a g e | 1 9
On-site vehicular circulation was reviewed in accordance with generally accepted traffic engineering standards. The project would provide an on-site surface parking lot (20 parking spaces) with a oneway aisle. In the parking lot, there would be two 90-degree parking spaces on the north end, two 90- degree parking spaces on the south end, and 16 angled parking spaces (60 degrees) along the west side of the parking lot (see Figure 7).

The driveways to access the parking lot would be two-way driveways that are 24 feet wide and 26 feet wide with a 26-foot-wide drive aisle to access the 90-degree parking spaces. The drive aisle to access the 60-degree angled parking spaces would be a one-way aisle that is 14 feet wide.

For improved circulation, it is recommended that the driveways are one-way, with the north driveway for inbound only and the south driveway for outbound only.

B), the minimum parking stall dimensions
should be 8.5 feet wide and 18 feet long. Two-way drive aisles to access 90-degree parking spaces should be a minimum of 22 feet wide. The 90-degree parking spaces on the north and south ends of the parking lot would be a minimum of 8.5 feet wide and 16 feet long and would be accessed by a drive aisle that is 26 feet wide. The parking spaces include a 2-foot overhang into the walkway in front of the spaces, which effectively would provide a 6-foot walkway (sufficient for pedestrians to travel through). Based on the site plan, the proposed 90-degree parking spaces would minimum stall dimensions.

Per Table 19.124.040(B), a one-way aisle to access 60-degree angle parking spaces should be a minimum of 13 feet wide. Based on the proposed parking lot plan, the 60-degree angle parking spaces would be 8.5 feet wide, 18 feet long, and have a one-way aisle that is 14 feet wide. Thus, the would
The City of Cupertino Fire Department requires a minimum driveway width of 20 feet, requires turnarounds for driveways more than 150 feet in length, and requires a minimum of 13.5 feet of vertical clearance. The project site has a maximum depth of 42 feet from Mary Avenue. Therefore, . Concrete trash pads/enclosures are shown in the parking lot. All garbage collection activities would occur on-site. Garbage trucks would need to pull into one of the driveways, perform garbage collection activities, back out onto Mary Avenue, and pull into the other driveway to perform the rest of the garbage collection activities. The truck would encroach onto the opposite travel lane when turning into and out of the driveways. However, because of the relatively low volumes on Mary Avenue, it is not expected that this would cause any operational issues. Figure 7 shows site access and circulation for garbage trucks.

The project would not alter any streets in the area. The project driveways and the internal aisles on site are designed in accordance with city standards. The project would generate mostly passenger vehicles, and the surrounding roadway system is designed to accommodate these vehicles.

Therefore, the project would not worsen existing geometric hazards or create new geometric hazards. 1629
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Mary Avenue Affordable Housing Project TA November 13, 2025 P a g e | 2 0
The transportation analysis for the Mary Avenue Affordable Housing Project resulted in the following conclusions:

The proposed project is estimated to generate 163 new daily vehicle trips, with 12 trips (3 inbound and 9 outbound) during the AM peak hour and 15 trips (9 inbound and 6 outbound) during the PM peak hour.

The Mary Avenue and Stevens Creek Boulevard intersection would operate at an acceptable level of service under existing and existing plus project conditions.

The site access and circulation review resulted in the following recommendations:
o Long-term Bicycle Parking. the project should provide 20 long-term bicycle parking spaces. These long-term bicycle parking spaces should be provided in bicycle lockers (fully enclosed space accessible only by the owner of the bicycle), restricted access rooms (locked room or enclosure accessible only to the owners, or enclosed cages (chain link enclosures with a lock).
o Sight Distance. To ensure drivers exiting the project driveways have adequate lines of sight, it is recommended that two parallel parking spaces on the north side of each driveway and one parking space on the south side of the project driveways be removed. If the driveways are changed to one-way as recommended below, only parking spaces next to the outbound driveway need to be removed.
o Site Circulation. It is recommended that the driveways be one-way access, with the north driveway for inbound only and the south driveway for outbound only. o Bike Lane. To accommodate a design speed of 10 mph for the bike lane, the turn radii of the reserve curves on the north end of the project site should be a minimum of 18 feet and signage should be added ahead of the curves to inform cyclists to slow down to 10 mph.

Appendix A Traffic Counts
Appendix B Intersection Level of Service Calculations
Appendix C Parking Study
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September 8, 2025
Mr. Andy Lief, Charities Housing
Gary K. Black
Nivedha Baskarapandian
Parking Study and Trip Generation Estimate for the Proposed Affordable Housing Project on Mary Avenue in Cupertino, California
Hexagon Transportation Consultants, Inc. has completed a parking study and trip generation estimate for the proposed affordable housing project on Mary Avenue in Cupertino, California. The project proposes affordable housing between the CA-85 soundwall and Mary Avenue and would provide 19 units for the developmentally disabled and 21 affordable units. Between Lubec Street and Stevens Creek Boulevard, 171 diagonal parking spaces are provided along the west side, and 70 parallel parking spaces are provided on the east side of Mary Avenue.

Parking counts were completed to determine the current maximum occupied parking spaces on Mary Avenue between Lubec Street and Stevens Creek Boulevard Vehicle parking counts were conducted along Mary Avenue on the following dates and times to determine the parking demand of the existing parking spaces (see Attachment 1). These times were chosen based on predicted usage of the existing parking spaces from the neighboring park and other surrounding uses.

Saturday April 12, 2025, from 12:00-1:00 PM
Tuesday April 15, 2025, from 12:00-1:00 AM, 2:00-3:00 PM, and 7:00-8:00 PM Thursday April 17, 2025, from 12:00-1:00 AM, 2:00-3:00 PM, and 7:00-8:00 PM The peak parking demand was found to be 24 spaces on the west side of Mary Avenue and six spaces on the east side of Mary Avenue between 2:00-3:00 PM on Thursday April 17, for a total of 30 occupied spaces.

The first set of parking counts did not denote where the cars were parked along the street.

Therefore, additional counts were conducted. Counts were counted along Mary Avenue from Lubec Street and Stevens Creek Boulevard on Thursday April 24, 2025, from 2:00-3:00 PM which was determined to be the time most parking spaces were occupied (see Attachment 1). Figure 1 shows the summary of the additional parking counts.
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Lubec St
5 17
Stevens Creek Blvd
8 = Additional Observed Area
= Occupied Parking
XX = Number of Occupied Parking Spaces
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Mary Avenue Affordable Housing Parking Study and Trip Generation Estimate September 8, 2025 P a g e | 3
The peak parking demand based on the additional count was found to be 26 spaces on the west side of Mary Avenue and 11 spaces on the east side of Mary Avenue, for a total of 37 spaces occupied on Mary Avenue between Lubec Street and Stevens Creek Boulevard.

Hexagon prepared trip estimates for the proposed project using trip generation rates from the Institute of Transportation Engineers' (ITE) Trip Generation Manual, 12th Edition, 2025 (see Table 1), Senior Adult Housing - Multifamily (Land Use 252) and Affordable Housing (Land Use 223).

Developmentally disabled housing is not a category in the ITE manual. Senior Housing will perhaps over-estimate the number of trips, but best represents housing for people that are not going to work or school on a daily basis. Affordable Housing includes multifamily housing that is rented at below market rate. Eligibility to live in affordable housing can be a function of limited household income, resident age, or special needs. These ITE land use categories best represent the units proposed.

The developmentally disabled units would be for residents who are unable to operate vehicles, and the affordable housing units would be for low-income residents.

Based on the trip generation rates, the project would generate 164 new daily trips, with 12 new trips (three inbound and nine outbound) during both the AM peak hour and 15 new trips (nine inbound and six outbound) during the PM peak hour. This small number of trips would not cause any noticeable change to traffic operations on Mary Avenue or other streets in the area.

The results of the parking study and trip generation estimates are summarized below.

On Mary Avenue between Lubec Street and Stevens Creek Boulevard, at most 37 vehicles were parked which occurred during a weekday from 2:00 -3:00 PM.

The project would generate 164 new daily trips with 12 new trips during the AM peak hour and 15 new trips during the PM peak hour. This small number of trips would not cause any noticeable change to traffic operations on Mary Avenue or other streets in the area. 1642
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Request of Garden Gate Neighborhood to Analyze Traffic Circulation and Parking for Consideration of Mary Avenue Villas
Current conditions:

A. Multiple sports facilities, Amphitheatre, two playgrounds, picnic tables (that the City will expand), softball field (minimum 20 players per game), and acres of lawn used this last weekend for a massive volleyball tournament (12 players per court x multiple courts).

B. Memorial Park’s two Playgrounds. The cars parking for use of the relatively new playground has doubled in recent years. At the adjacent Glenbrook Apartments parents from the far side of the complex drive to the park if they have picnic items or a playpen or a pet or another reason why the family wants the car nearby.

C. MEMORIAL PARK EVENTS:
a. City and many organizations utilize the park to host large community and regional events, such as Bay Area Diwali Festival, the Cupertino Cherry Blossom Festival, and Shakespeare in the Park shows. Throughout the year, over a dozen events are held at the Park. Organizations such as the local Rotary Club chapter, Sister City organizations, Cupertino Chamber of Commerce, as well as the City, host events at the site. Large events can attract thousands across the Bay Area to the Park. Reference: Memorial Park Specific Plan 2024
b. Published media reports identify 5 events as “large” i.e. > 5,000 attendees. These result in significant traffic and parking issues between 10 a.m. and 6 p.m. on Mary Avenue. For the remaining 12, do these events draw attendees from outside the walkable area? How is each event’s circulation and parking managed by the city? D.

E. Mary Ave is adjacent to Memorial Park, De Anza College, Westport Apartments. It currently sees overflow parking and traffic as a result of activity in those areas. Over 136 on-site Park stalls are blocked off from the public during major park events/festivals for city vehicle parking only, senior parking permits, or areas reserved for VIPs, vendor loading, food trucks, temporary bathrooms and handwashing stations. Other unavailable stalls include off-site residential street parking that have permit restrictions daily (i.e. on Christensen, Ann Arbor, Lauretta Dr), and ~6- 1647
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12 stalls on Mary Ave between Arroyo Village and Glenbrook that are occupied by the RecycleTek truck every Saturday.

Here is an example Memorial Park map for a festival where the parking lots are used for vendors.

Reference: https://cupertino-chamber.org/bay-areadiwali/#:~:text=The%2023rd%20Annual%20Bay%20Area,understanding%20that%20promotes%20economic%20prosperity. Additive Changes in Use

1. Buildout of remaining 55% of Westport development on Mary Avenue 1648
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2. Buildout of retail space at base of EXISTING Westport Apartments. There are no spare guest parking stalls during much of the day, yet the retail space is 100% vacant.

3. De Anza College’s replacement of Flint Event Center with buildings that charge for parking. Parking passes are quarterly/annual and Event parking is either $5 or $10:

4. $39.7 million “Creative Arts” Building across the street from Mary Avenue.

5. $60 million “Services for Students” Building across the street from Mary Avenue.

6. Events Center across the street from Mary Avenue (cost unknown) but surveys and feasibility studies are done. EVENTS will “help meet community needs for a cultural venue and civic meeting space.” NOTE: Flint Center has been closed since 2019 and the Center only had six or seven annual events drew crowds of more than 2,000 people to the 2,400-seat theater. Based on our neighborhood experience of De Anza’s Flint Center which is now being replaced with a new Event Center, we are concerned that this might push hundreds to park on Mary Avenue private properties to avoid campus parking charges.

7. City of Cupertino’s future $83 million series of investments to increase usage of Memorial Park:

F. Does the TRAFFIC REPORT indicate that when you subtract SENIOR LIVING PERMIT PARKING STALLS, there are 34 parking stalls on the Mary Ave entrance for the entire 22- 1649
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ACRE park, and only 30 parking stalls if the three dumpsters are placed in the parking stalls. https://www.cupertino.gov/files/assets/city/v/1/departments/documents/public-works/capitalimprovement-program/b-mpsp-report-appendices-2024.pdf G. Eight pickleball courts: (NOTE: Doubles play, or foursomes, is significantly more popular in pickleball than singles play)
Questions and Requests for Study

1. Has the traffic study considered the traffic circulation and parking requirements on the residential neighborhoods around De Anza College? Given that overflow parking from De Anza College often results on Mary Ave?

2. Will expansion of park amenities require more parking and is the study analyzing the additional load on local traffic circulation?

3. Does the addition of 8 pickleball courts increase the need for more parking over the existing conditions?

4. Can it comment on the frequency of wide vehicles using this road? There is a Service Center at the end of Mary Ave. Wide service vehicles travel daily on Mary Ave to get between Stevens Creek Blvd (a City designated R14-1 truck route) and the City Public Works service center lot which is located at the end of Mary Ave by the Bike Bridge.
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https://www.cupertino.gov/files/assets/city/v/1/departments/documents/publicworks/engineering/truck-traffic-restrictions.pdf

5. For a better capture of typical school day traffic, observe a weekday where Garden Gate school is not closed, i.e. avoid 8/14-8/15, 9/26, 10/2-10, 10/23-24, 11/7. Lots of traffic, including numerous families from Glenbrook, flood Mary Ave in the morning and early afternoon with the bell schedule.

This school calendar can assist in your date selection. https://gardengate.cusdk8.org/about-us/publicschool-calendar

6. For the weekday traffic and parking assessment, consider observing on a Friday where the neighborhood might receive more overnight or dinner guests.

7. Can the observation dates include multiple scenarios that lead to spillover parking on Mary Ave: the first Saturday of the month (flea market at Dr. Anza College), during a Memorial Park event/festival (usually on a Saturday) where De Anza Parking is free (Oct 11 Diwali), and one where parking fees are charged.

8. When considering the potential impact of displaced parking from Memorial Park onto Mary Ave, numerous on-site stalls and Alves Street stalls are often not available for public parking (as described above under Current Conditions: Memorial Park). Does the traffic study account for the unavailability of these spaces?

9. During major city events/festivals, parking is near capacity on Mary Ave as it is 1 of 2 residential streets adjacent to Memorial Park with free public street (off-site) parking. The other area consists of the east side of Memorial Park: Christensen Dr, Ann Arbor, and Lauretta Dr. These streets have “permits required” daily restrictions between 7 am-10 pm -- do these cause parking demand to be displaced onto Mary Ave?

10. In the traffic study, quantify or assess the circulation at the ingress and egress of Casa de Anza, Glenbrook. The circulation pattern is important and can help position the Villas driveways properly, and optimize traffic and safety on Mary Ave.
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11. Analyze the effectiveness of the listed mitigation suggestions.

A. Can downsizing the project or modifying the configuration of the project improve (or not make worse) existing traffic circulation or parking?
B. Can we limit non-resident parking around us and force parking across the street at De Anza College. Allow priority for residents of Westport, Arroyo, Glenbrook, Casa De Anza, the Dog Park, and the Villas. We anticipate greater traffic after future developments at Westport and after Memorial Park renovation/improvements (e.g. adding 8 new pickleball courts, all abilities playground) at Memorial Park– reassess the parking impact. a. Introduce residential parking permits during weekends from 10am-6pm on Mary Ave (in front of housing complexes Glenbrook, Arroyo, Casa De Anza). Strongly consider including Anson Avenue & Millard Lane as we anticipate overflow parking here if Mary Ave parking is restricted. These 2 streets are right off Mary Ave. b. Make Special Event permit requirements more robust. Require a shuttle service, and contracting with De Anza College for formal overflow parking for non City sponsored community events. Can they put up road signs saying “No Event Parking” around Mary Ave, Lubec St, outside Casa De Anza, Arroyo, Glenbrook? c. Heavily enforce parking permits and/or restrictions
C. Add a safe, lit crosswalk +/- speed bump on Mary Avenue. Residents need safe access to the parking spots which is only 1 side of the street between 2 housing complexes. Otherwise people will jaywalk. Lots of families in this area so it's extra important for cars to see the crosswalk and go slow here.

D. Preserve more of the street's width and public right-of-way. a. Is 11 feet appropriate? Should it be wider given the heavy use for service center dump trucks, utility/service trucks, pickups, street sweepers? b. Can the parking lane be widened to accommodate SUVs, minivans, and room for doorswings? Cars currently park outside the lane, and families have trouble safely exiting the car on the flanking traffic lane.
c. Reconfigure/narrow/downsize the building to help with mitigation? d. Lower priority than the above. Can they widen the sidewalks?– heavy community use by joggers, track team, families, strollers, wagons, etc.

E. Can they add dedicated short-term parking on the Villas site for visitors and service vehicles? To prevent vehicles from illegally parking and clogging the narrowed traffic lanes? F. Retain the existing east parking lane on the Glenbrook side so that traffic and noise is not brought right up to their apartment bedrooms. ~40+ bedrooms would be impacted. The other advantage of this would be the preservation of 10 parking spots. (they are removing 43 stalls on the Glenbrook side and replacing with only 33 on the Villas side).

G. Ensure adequate access, space, and flow for garbage service trucks. Minimize risk of spilling waste onto streets as we have a severe crow and seagull problem in this area.

H. Examine the safety of soundwall proximity in setting of minimal setbacks, e.g. earthquake:
construction issues
I. Re-examine the # of IDD units relative to parking needs. What if swap out with more IDD mix- would that help reduce parking strain? Or will the increased weekend visitor traffic and parking be worse for the neighborhood?
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J. Does the traffic engineer think addition of no U-turns and/or 2 sets of double yellow would improve safety on sensitive areas of Mary Ave e.g within 20 feet of Glenbrook and Villas driveways, and at Memorial Park (there have been pedestrian-car accidents)? Cars often stop traffic to turn (often aggressively) into a parking spot on the opposite street side during crowded Memorial Park events and festivals that draw over 10,000 visitors.

K. Is the driveway location ok positioned directly across the Glenbrook driveway? Traffic engineer question. Can they look at circulation here? More cars exit this rear Glenbrook driveway than the main driveway.
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CITY COUNCIL STAFF REPORT
Meeting: May 20, 2025
Subject
Modification to a previously approved Development Permit and Architectural & Site Approval for the Westport Development including, but not limited to, dwelling count and ground floor retail, Park Land Dedication Fees and minor changes to Building 1. (Application No(s): M-2024-003, ASA-2024-003; Applicant(s): Related California (Cascade Zak); Location: 21267 Stevens Creek Boulevard; APN #326-27-048) Recommended Action
That the City Council adopt the proposed draft resolutions (Attachment 1 & 2) to:

1. Adopt the First Addendum to an EIR and approve the Development Permit Amendment (M-2024-003); and

2. Approve the Architectural and Site Approval Permit (ASA-2024-003).

Background
General Plan Land Use
Designation
Commercial/Residential with a maximum
residential density of 30 dwelling units per acre
Special Planning Area Heart of the City Specific Plan (West Stevens Creek subarea)
Zoning Designation P(CG, Res) (Planned Development zoning with General Commercial and Residential uses)
Net/gross lot area 7.9 acres/8.1 acres1
Approved Project Current Proposal
Units within Building 1 123 136
Total number of units within
the Westport Development 259 272
Residential Density 32.78 du/acre 34.4 du/acre
Density Bonus Requested 8.4% 12.8%
Height of Building 1 79.5 feet 78.6 feet
Memory Care Rooms 35 No change
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Approved Project Current Proposal
Building 1 Retail
Stevens Creek Blvd frontage 60% 10%
Rear of building 26% 5%
Retail Square Footage 17,600 4,000
Building 1 Parking
Residential 81 32
Residential Care 27 18
Retail 103 23
Total Building 1 211 73
Site and Location Description
the Oaks Shopping Center, which was a regional, multi-tenant outdoor shopping facility built in the 1970s that included restaurants and a movie theater. The site is in the Heart of the City Specific Plan Special Area within the Oaks Gateway of the West Stevens Creek subarea.

The approximately 8.1
gross-acre site is bounded
by Stevens Creek
Boulevard to the south,
Mary Avenue to the east
and north, and Highway
85 to the west. The
surrounding uses are the
Glenbrook Apartments to
the north, De Anza
College to the south
(across Stevens Creek
Boulevard), and the
Cupertino Senior Center
to the east (See Figure 1).

Previous Entitlements
On August 18, 2020, the City Council approved permits to allow construction of a mixeduse development on the site that was occupied by the Oaks Shopping Center. The primary components of that project were:

Two residential/commercial buildings:

Building
2 Building
1 Townhomes/Rowhome
Figure 1 Approved Westport site plan.
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o Building 1 was a six-story building with 131 senior, licensed assisted living units, 27 memory care residences, and 17,600 square-feet of ground-floor retail/commercial space.
o Building 2 was a six-story building with 48 BMR senior independent living units1 and 2,400 square feet of ground-floor retail/commercial. 70 single-family residential townhouses and 18 single-family residential rowhouse condominiums.

A one-level, below-ground parking garage with 191 parking spaces. 44,945 square feet of Residential Common Open Space
2,915 square feet of Commercial Common Open Space
386 onsite and offsite trees, replacing the 73 protected development trees proposed to be either removed or relocated.

Height waivers of the 45 foot height limit in the General Plan to allow:
o Building 1 to be to the eave line, and to the roof ridge. o Building 2 to be to the eave line, and to the roof ridge.

Slope line setback waivers of the 1:1 slope line setback from the curb line in the General Plan to allow
o a slope line setback of 1:1.70 for Building 1 and
o a slope line setback of 1:1.48 for Building 2.

Incentive/concession allowing all BMR units to be consolidated in one of the two senior housing buildings (Building 2) rather than dispersed between the two senior housing buildings and townhouses/rowhouses.

The approval also included a vesting tentative map (VTM) (TM-2018-03) subdividing the property into two separate parcels (one 4.7 acre and one 3.1-acre parcel). Subsequently, a revised VTM (TM-2021-002) subdividing the property into three parcels, with the BMR building (Building 2) on its own parcel, was approved by City Council on September 7, 2021.

On December 21, 2021, the Cupertino City Council approved a Modification to a Development Permit (M-2021-003), an Architectural & Site Approval (ASA-2021-007), and Heart of the City Exception (EXC-2021-003) to allow the following modifications to Building 1 of the Westport Development project:

Limited the 8,000-square-foot ground floor dining facility to residents of Building 1 and their guests only, rather than being open to the public.2 1 Since early 2024, Building 2 has been occupied and functioning in its capacity as an age restricted BMR building. As of the date of this staff report, approximately 80 of the 88 townhomes/rowhouses have a certificate of occupancy. 2
The Department of Social Services prohibits dining areas for licensed Residential Care Facilities for the Elderly from being open to the public.
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Adjusted the unit mix, adding more two-bedroom units while reducing studio units in Building 1, and adding eight memory care rooms (for a total of 35 memory care rooms), but decreasing the total residential unit count by that same number (131 to 123).

A density bonus parking alternative standard that reduced the underground parking garage to a single floor limited to the areas under Building 1, while utilizing parking lifts and valet service to maintain the original stall count.

Reduced massing on the top floor to accommodate a sixth-floor aqua therapy pool.

Allowed 40% of the building frontage along Stevens Creek Boulevard and 75% of the rear of the building to be occupied by non-retail uses, with no change in retail square footage from the original permit.

Current Development Permit Modification Request
Cascade Zak, representing the applicant, Related, is now requesting a modification to the Development Permit (M-2024-003) and an Architectural and Site Approval Permit (ASA2024-003) to Building 1:

Utilize their remaining density bonus Incentive/Concession to reduce the amount of retail from 17,600 square feet to 4,000 square feet.

Request a density bonus to increase the senior assisted living dwelling count by 13 units, from 123 to 136, and to modify the unit mix. The number of memory care rooms remains unchanged at 35.

Utilize provisions of state law (Assembly Bill 2097) to remove the underground parking facility (a decrease of 146 parking stalls for the development).

Make minor adjustments to the proposed structure, including reducing the building height, moving sixth floor amenities to the ground floor, and decreasing the overall square footage of the proposed building from 199,800 square feet to 195,253 square feet.

Waive the application of the Park Land Dedication In-Lieu Fee.

The applicant is proposing to utilize the provisions of State Density Bonus law and the newly enacted Assembly Bill 2097 (AB2097) to achieve these changes. However, while the applicant is entitled to utilize provisions of the State Density Bonus law to reduce the retail footage if the applicant demonstrates that such reduction results in identifiable and actual cost savings, the provisions of AB2097 that prohibit cities from requiring minimum parking requirements do not apply to this project since the project was approved and entitled prior to the enactment of AB2097. Therefore, the applicant cannot apply AB2097 retroactively to an already entitled project.

Planning Commission Recommendation
The Planning Commission considered the proposed project at its March 22, 2025 meeting.

After much deliberation regarding the loss of retail and the loss of parking, the Planning 1658
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Commission recommended (5-0) that City Council adopt the first amendment to the EIR and adopt resolutions (Attachments C&D) approving the application with added conditions of approval to the Modified Development Permit resolution as follows:

TRANSPORTATION DEMAND MANAGEMENT (TDM) PROGRAM

REQUIRED
The applicant shall submit a Traffic Demand Management (TDM) program for the assisted living employees prior to Building Permit issuance.

RETAIL/PARKLAND IN-LIEU OF DEDICATION FEE
Applicant to consider increasing the proposed retail square footage to 8,000 square feet, with no increased parking requirement for the additional 4,000 square feet retail component, in exchange for a refund of park in-lieu fees already paid in the approximate amount of $3.69MM, with no further payment of such fees required for the additional thirteen (13) assisted living units proposed (i.e. forego payment of approximately $300,000).

The City Council should consider the Planning Commission recommendation as recorded in the draft resolutions.

Proposed Project Modification Analysis:

1. Reduction in Retail
The Heart of the City Specific Plan limits the area of uses that do not involve the direct retailing of goods or services to the public to no more than 25% of the building frontage along Stevens Creek Boulevard, and no more than 50% of the rear of the building. On December 21, 2021, the City Council approved a Heart of the City Exception allowing 40% of the building frontage along Stevens Creek Boulevard and 75% of the rear of the building to be occupied by non-retail uses. There was no change approved in 2021 to the total retail square footage in Building 1 (17,600 sq. ft.) from that approved through the original 2020 permit.
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Approved Building 1 Ground Floor Proposed Building 1 Ground Floor Figure 2 Comparison between the approved and proposed retail portions of Building 1. Retail is filled in with red, resident amenities in orange, and Back-ofHouse/Support in blue. Proposed Modification In the submitted proposed modification, June 18, 2024, letter submitted by the applicant (Attachment E), states that since their application is a modification to the overall Westport Development project, the developer of Building 1 remains eligible for the second of two allowable State density bonus law incentives and concessions allowed for the 8.1-acre Westport Development. Therefore, the developer requests to use the second available incentive and concession to reduce the required ground floor retail in Building 13 . As
illustrated in Figure 3, the proposed retail locations are on the corner of Building 1 adjacent
Creek Boulevard. The other uses along Stevens Creek are active and administrative uses limited to resident access, including the front office and wellness center for the senior assisted living facility.

Staff Analysis:

The applicant suggests that the spaces currently entitled as a retail area in Building 1 occupy ground floor building space that could otherwise be used for mechanical systems 3 The Westport Development includes 29 units of a base density of 237 units that are designated very low income. State density bonus law allows the development two incentives/concessions. 1660
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and back-of-house spaces for the senior assisted living facility. The currently proposed locations for these uses are in more expensive-to-build basements or upper-level building locations. Under State Density Bonus law, a developer is entitled to such incentives and concessions if there are identifiable and actual cost savings.4 Further, should Building 1 be constructed, an agreement requires the users of Building 1 to pay for a portion of shared infrastructure with Building 2 as on-going site maintenance costs. This allows the operator of the BMR building (Building 2) better to finance the longterm operating costs of affordable units.

As identified earlier in the staff report, the Planning Commission recommended a waiver of parkland in lieu of dedication fees (including those already paid) if the applicant were able to increase the amount of retail space in the development to a total of 8,000 square feet, without any additional parking provided. The City Council should consider the Planning Commission recommendation as recorded in the draft resolutions.

2. Assisted Living Unit Count
The Westport Development provides 12% of its base density as affordable to very lowincome households, which entitles the development to a 38.75% density bonus, or a total count of 329 units for the entire development pursuant to State density bonus law. As proposed, the total number of units in the development would increase from 259 to 272 units due to the addition of 13 assisted living units in Building 1 (12.8% Density Bonus).

This amounts to an increase from 123 assisted living units to 136 assisted living units in Building 1. The number of memory care rooms in Building 1 would remain unchanged at 35 units under the current proposal.

Staff Analysis
The original development approved in 2020, which included 48 BMR units and 219 market rate units (88 Townhome/Rowhomes, 131 Assisted Living units) was found consistent with the BMR Manual requiring that the BMR Units in Building 2 and Building 1:

Be comparable to market rate units in terms of unit type, number of bedrooms per unit, quality of exterior appearance and overall quality of construction.

Unit size should be generally representative of the unit sizes within the market- rate portion of residential projects.

Interior features and finishes in affordable units shall be durable, of good quality and consistent with contemporary standards for new housing. 4 Government Code Section 65915(d),
concession, requiring very specific findings supported with substantial evidence that the incentive or concession does not result in identifiable and actual cost savings or the incentive or concession would have a specific and adverse impact upon public health or safety, with the burden of proof upon the city. 1661
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The number of units proposed was within the limits of State Density Bonus Law, and the BMR Manual to certain standards
of comparability as mandated in the Manual 2.3.4 (listed above).

Table 1 (below) shows the proposed unit mix within BMR Building 2 and the market-rate Building 1. The City Council had found that the original 2020 and 2021 approvals met the 1 demonstrates that the comparability
of the unit mix between Buildings 1 & 2, as proposed, is even more consistent with the Table 1: Unit Comparability Between Buildings 1 & 2
Approved Building 1 (123 Units) Studio One Bedroom Two Bedroom Average Unit Size 530 s.f. 710 s.f. 1,110 s.f.

Unit Count 12 75 36
Mix Percentage 10% 61% 29%
Proposed Building 1 (136 Units) Studio One Bedroom Two Bedroom Average Unit Size 530 s.f. 710 s.f. 1,110 s.f.

Unit Count 27 79 30
Mix Percentage 20% 58% 22%
Building 2 (48 Units) Studio One Bedroom Two Bedroom
Average Unit Size 518.6 s.f. 615.7 s.f. 843 s.f.

Unit Count 9 28 11
Mix Percentage 19% 58% 23%
Staff believes that the City Council should support the added units as they are within the allowed density of the development as approved, as well as continuing and improving the comparability between the units of Buildings 1 & 2.

3. Parking Reduction
Due to the amount of affordable housing and location of the site, the project had been previously approved with a Density Bonus reduced parking standard. The below-grade parking garage level in Building 1 was included to address the parking needs for Building 1 users (residents, visitors, staff and retail uses) and 23 spaces for Building 2 residents.

Through the current modification, the applicant is proposing to eliminate the underground parking and provide all necessary parking at the surface level. However, the applicant will continue meeting existing obligations to provide parking for the other portions of Westport Development (Building 2 residents and the town homes) and will adjust the parking provided for the users of Building 1 to be more reflective of the parking required to serve their needs, as further described below. 1662
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Staff Analysis
Parking for Building 2 users and Townhomes
The Westport Development utilizes the provisions of State density bonus law to provide

0.5 space per bedroom and the City may not impose a different, higher parking requirement for the development. Under State density bonus law, the project needed to provide a total of 30 spaces for Building 2. Seven of these spaces were provided at the surface level on the parcel on which Building 2 is located, while the remaining 23 spaces were to be provided in the underground parking garage. The applicant is now proposing to provide these 23 spaces, previously located below grade under Building 1, at-grade on the parcel that Building 1 will be located on. In addition, the applicant will continue to provide seven surface parking spaces for retail use in Building 2 on the Building 1 parcel.

The existing townhomes each have two car garages, with an additional 21 surface spaces available for guests on the parcel on which the townhomes are located. The applicant is proposing to continue to provide six parking spaces as guest parking for the townhome portion of the development at surface level on the Building 1 parcel. As a condition of approval, the applicant must mark all the spaces with signage to identify the intended parking space user prior to issuance of final occupancy.

Parking for Building 1 users
Changes to parking provided for Building 1 users include eliminating all parking spaces for the assisted living or memory care residents, providing 3 surface parking spaces for residents, 10 surface spaces for employees, 5 spaces for guests and 16 surface parking spaces for the reduced retail space, as indicated in Table 2 below. The applicant intended to rely upon the provisions of AB2097 to eliminate the underground parking but provide as much parking as they believe will be needed to serve Building 1 users and that the City may not impose any minimum parking requirements on their project. While the project roject
itself was approved prior to enactment of these provisions, and thus AB2097 cannot apply retroactively to this previously entitled project.

Table 2: Comparison of Approved and Proposed Parking
Previously Approved Proposed
Residential (Building 1)5 80 (below grade) 8
Residential (Building 2)626 (below grade) 26
Residential (Townhomes) 6 (surface) 6
Bldg. 1 Facility Employees 28 (below grade) 10
5 The Westport Development was approved with a parking ratio of 0.5 parking spaces per bedroom in conformance with CA state density bonus law. Required parking for Building 1 residents would be 83. 6 See footnote 4. Required parking for Building 2 residents would be 30 spaces, seven spaces on the lot Building 2 is on, and the remaining on the lot that Building 1 is on. 1663
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Retail (Building 1) 71 (10 below grade, 61 surface) 16
Retail (Building 2) 7 (surface) 7
Total Building 1 218 (144 below grade and
74 surface) 73 (all surface)
However, since the property is in the Planned Development with General Commercial and Residential uses (P (CG/Res)) zoning district7
, staff have prepared a parking analysis
for the Building 1 user as seen in Table 3 below, based on the following information provided by the applicant (Attachment I):

The median age of the tenants in the Senior assisted living units is anticipated to be approximately 84, based on the experience at similar facilities.

Therefore, a very small percentage (8%) of the tenants will drive or own a vehicle.

According to the applicant many residents dispose of, or donate, their vehicles prior to downsizing into one of their facilities, preferring to use the concierge vehicles operated by the facility.

Almost 75% of the employees of their other facilities are incentivized to use alternative means of transportation or park elsewhere (here, De Anza College facilities are located close by, and the operator is in talks with them regarding parking arrangements).

Guests are usually only at the facility for a maximum of 90 minutes per visit and can use public parking or park at De Anza College, if necessary.

Retail reduced to 4,000 square feet, significantly reducing parking demand based on Table 3: Anticipated Parking Demand vs. Proposed Supply For Building 1 Previously Approved Proposed Expected Gap
Residents 80 3 14 11
Employees (40 max per shift) 28 10 13 3
Guests (included in resident count) 5 10 5
Retail 71 16 16 0
Total 179 34 53 19
Based on the parking analysis, there appears to be a gap of approximately 19 spaces between the reasonably expected parking demand and the currently proposed parking space. Discussions with the applicant have indicated that they are voluntarily open to 7 CMC 19.80: Planned Development Zones is intended to provide a means of guiding land development or redevelopment of the City that is uniquely suited for planned coordination of land uses and to provide for greater flexibility of land use intensity and design because of accessibility, ownership patterns, topographical considerations, and community design objectives. 1664
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adding surface parking spaces, where possible, to allow the parking supply to get closer to the expected parking demand. Upon an analysis of the site, it appears that there is room to add additional surface parking spaces within the site. However, the specific number of additional spaces that could be added has yet to be determined. Therefore, as a condition of approval, the applicant is required to update the site plan to add a minimum of 20 onsite parking spaces, prior to issuance of building permits.

In the alternative, the applicant has suggested that they could eliminate the 4,000 square feet of retail space being provided in Building 1, by modifying their remaining Density Bonus Incentive/Concession request, which would allow the use of 16 spaces, currently earmarked for retail uses, for the residential portion of Building 1.

Staff recommends that the parking count as conditioned with the project, consistent with similarly programmed assisted living communities in the area, will provide enough parking on-site.

If the City Council disagrees with the above analysis, it could either recommend a different parking count that the developer must provide based on a different justification or deny the modification to the proposed parking arrangement on the basis that AB2097 does not apply to this project.

4. Architectural & Site Approval
As described previously, the developer proposes modifying Building 1 as follows:

Increasing the footprint of the curved (sickle) portion of the building along Mary Avenue by 8 feet.

Relocating the memory care terrace to the interior of the project to overlook the central green.

Reducing ground floor height from 20 feet to 18 feet, with incremental height increases to the upper floors. The overall building height would be reduced to 78.6 feet due to this change.

Moving the therapy pool terrace and wellness gym to the ground floor from the sixth floor. This reduces mass along Stevens Creek Boulevard on the sixth floor.

Staff Analysis
None of the changes listed above, have any effect on the programming of the site, except as previously described in the discussions related to the reduction of retail use and elimination of underground parking. The overall architectural theme of the project is not proposed to be modified with this application and the project proposes to continue to be very similar to the architectural style (Mediterranean) that was previously approved.

Therefore, Staff feels that City Council should support the modifications as proposed. 1665
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5. Park Land Dedication In-Lieu Fee
At the revised 136-unit count, Building 1 would be required to pay approximately $4,080,000 ($30,000 per senior citizen housing development unit) as Park Land Dedication In-Lieu of Fees. The applicant has identified the following as reasons for the City waving the fee:
pedestrian walkways connecting Stevens Creek Boulevard and Mary Avenue through the project. The construction of the walkways is not strictly required by the Zoning Code; however, they could improve pedestrian circulation in the area, including Creation of a connection between Stevens Creek Boulevard and Cupertino Memorial Park.

Residents of the senior housing units in Building 1 cannot reasonably be anticipated to generate a material demand on City park lands and instead are more reasonably anticipated to use the open space amenities included in Building 1 and its publicly accessible, privately maintained Central Green.

Strategy HE-2.3.9 of the Housing Element requires the City to explore revising its Park Land Dedication Fee, including a specific reference to allowing credits for privately owned and maintained public open spaces and other pedestrian Staff analysis
In accordance with the Municipal Code (CMC 13.08.100), park land shall be dedicated to the City or the fee in lieu thereof shall be paid, as determined by the City, at the time of building permit issuance or recordation of a final subdivision map, whichever occurs earliest. The City has consistently determined that the open space provided on site does not conform to the private open space (for which credit may be provided) nor the park land dedication requirement consistent with the requirements of CMC Chapter 13.08.050 (F). Therefore, the determination has been that the project must pay a Park Land Dedication In-Lieu of Fee subject to CMC Chapter 13.08.060 Fees in Lieu of Park Land Dedication. To date, the developer has already paid $3.69MM for 123 units8 . With the
change to the programming, that is, providing 13 more assisted living units, the applicant would owe park land in lieu of dedication fees for these additional units in the approximate amount of $300,000.

The walkway referenced by the applicant as the justification for requesting a fee waiver is an existing vehicular path between Building 1 and the remainder of the Westport development, which has long been a part of the site design. It is not a new design feature, 8 $3.93M in park fees on 12/21/21 (131 units x $30,000). However, when the project scope was modified to reduce units from 131 to 123, the City issued the developer a refund of $240,000 (8 units x $30,000). 1666
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nor does it have separated/designated bike lanes or public access easements. As a result, the project should not receive credit for any connection afforded by this primarily vehicular connection. Additionally, since the project will be occupied by seniors, the park land dedication in lieu of fee is already discounted to allow for the estimated reduction in use of public open spaces by seniors as allowed by Chapter 13.08.

Further, although the Housing Element Strategy HE-2.3.9 may require the City to explore reduction in development fees, a policy to implement this strategy is not expected to be adopted until sometime in mid-2026. Accordingly, staff recommend that the City require the applicant to pay the Park Land Dedication In-Lieu of Fee for the additional 13 units and does not recommend a refund/waiver of the fees that have already been paid.

However, the City could waive the fee if it wishes to assist this developer in the development of this market-rate project.

Approval of t an
additional 4,000 square feet of retail (for a total of up to 8,000 square feet of retail) would require the City to refund $3.69MM in fees already paid and agree that applicants need not pay the additional unpaid fees associated with the additional 13 units.

Staff recommends that the City Council should consider the Planning Commission recommendation as recorded in the draft resolutions.

Other Department/Agency Review
tino Sanitary District and the Santa Clara County
Fire Department have reviewed and conditioned the project.

Reasons for Recommendation
Staff recommends approval of the project modifications, with the conditions of the approval proposed, because the changes to the project will not create adverse traffic, noise, or safety impacts to the surrounding area and each finding for approval of the proposed project, consistent with Chapters 19.56, 19.156, and 19.168 of the Cupertino Municipal Code, may be made as reflected in the findings of the draft resolutions attached. The Planning Commission recommendation as recorded in the draft resolutions as it relates
Sustainability Impact
No sustainability impact.
1667
CC 04-01-2026 Searchable Packet
1667 of 2331
M-2024-003,
ASA-2024-003
Westport Cupertino
21267 Stevens Creek Boulevard
May 20, 2025

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Cupertino City CouncilApril 1, 2026

Cupertino City Council
April 1, 2026