Please Click on the Questions to See the Answers
What is a Specific Plan and why is one required for Vallco?
A specific plan establishes the rules of development. The general plan requires that a specific plan be prepared for Vallco, not just for the mall property but the entire plan area. A specific plan is a regulatory document that establishes the desired vision for an area through a framework of objective standards and guidelines for land use, site layout, streetscape, open space, buildings, etc. The specific plan will provide what everyone wants – predictability. The community wants it and the developer wants it.
What is Sand Hill's involvement with the Vallco Specific Plan?
Sand Hill requested the initiation of a new specific plan process and exploration of other alternatives/options for their site. However, since the City must also include the entire plan area in the process, so along with the community, all owners of property in the plan area are involved.
Who's paying for the Vallco Specific Plan?
Sand Hill Property Company. As with all projects, for which the City charges for the estimated time and expense of planning and administrative services, the City charged Sand Hill Property Company for the preparation of the Vallco Specific Plan. The City of Cupertino does not subsidize development and all owners must pay their fair share according to the City’s fee schedule. The City, however, selects consultants independently, pays the consultants directly and the consultants work for the City.
What was different in 2018 from past efforts for the development of Vallco?
New state laws have been passed in 2017 that provide a fast track approval option for property owners who provide a certain amount of housing, as determined by the California Department of Housing and Community Development (HCD). If owners qualify and choose these fast track options, the community loses two important things:
(1) the ability to influence or comment on the design, mix of uses and land use patterns and
(2) the ability to negotiate a development agreement if the community desires certain public benefits exceeding those required through ordinances, fees and legal environmental mitigations, such as additional community facilities, funding for trails or bike paths, etc.
The City and consultant team has been committed to a robust community engagement process. Recognizing that everyone cannot all speak at once or be at every meeting (and that reasonable minds can disagree), there were a variety of formats to include as many as possible, throughout the year. Residents, community members, and the public had the ability to choose what worked for them throughout the 2018 Specific Plan process.
Why was the timeline for preparation of the Vallco Specific Plan so fast (or so slow)?
The City planning staff and consultant team worked hard to balance speed and efficiency with quality, transparency and inclusion. In acknowledgement of the legislative landscape in 2018, if the process went too slow, the City risked a failed process. If the City went too fast, it risked missing community voices and important details.
How do the City's Below Market Rate Requirements apply to the Vallco Town Center Specific Plan?
The City's existing Below Market Rate (BMR) Program requires that 15% of new rental housing be developed as BMR housing, with 60% of that reserved for very low income households and 40% reserved for low income households.
Projects developed pursuant to the Specific Plan would be consistent with, or exceed, the City's standard requirements. For example, Vallco Property Owner LLC could develop up to 1,779 units on their property at the maximum base density (35 du/acre) allowed under the proposed Specific Plan as a "Tier 1" project. This project would be required to reserve 267 units for BMR housing, including 161 units for very low income households (about 9% of the base density) and 106 units for low income households (about 6% of the base density). A Tier 1 project would satisfy the City's standard BMR requirements.
If the same applicant applied for a community development density bonus as a "Tier 2" project, 196 units would be required for very low income households, which equals 11% of the base density. Under the proposed Development Agreement, 205 units would be required for low income households (about 12% of the base density) and 133 additional units would be required for moderate income households. Therefore, a Tier 2 project would exceed the City's standard BMR requirements.
When did the Council provide authorization to do a GPA?
General Plan Policy LU-19.1 directed the City to prepare a specific plan to regulate future development on the Vallco site. This direction inherently included authority for the City to consider any General Plan amendments that would have been necessary to ensure the General Plan and the proposed Vallco Town Center Specific Plan were consistent, which is required by Government Code section 65454. With the Vallco Town Center Specific Plan, it was always contemplated that the development allocation and heights in the General Plan would be revised to reflect the adopted Specific Plan. Once public input was gathered through the charrette and outreach process and the direction for the Specific Plan became more clear, it was discussed at the June 4, 2018 study session that the General Plan might need to be amended in connection with adoption of the Specific Plan.
Was the City Council's Study Session June 4, 2018 properly noticed?
On June 4, 2018, the City Council held a study session to review the direction on the specific plan following the public charrette process facilitated by the City and its planning team. The agenda item for the study session said: "Conduct study session regarding Vallco Specific Plan and provide direction to staff," which provides sufficient notice to the general public about the subject matter that was discussed at the study session. No formal action was taken at the meeting, as is evidenced in the meeting minutes and in the recording of the meeting available online at www.cupertino.org/agenda. A presentation was made to the City Council on progress on preparation of the Draft specific plan and the public had the opportunity to comment on the presentation. In addition, comments and general direction were received by the City staff from the City Council after public testimony.
What is the City's process for amending the General Plan?
In 2015, the City Council adopted Resolution 15-078 to establish local procedures for General Plan amendments. The policy adopted by Resolution 15-078 enables the City to initiate General Plan amendments at any time that it deems necessary, such as to ensure consistency between the General Plan and a specific plan. Although Resolution 15-078 establishes specific procedures for private applicants to initiate General Plan amendments, it does not require the same process for City-initiated General Plan amendments. Here, the City is required to amend the General Plan to authorize development contemplated under the Vallco Town Center Specific Plan. As required by Government Code section 65358, the Planning Commission will consider the proposed General Plan amendments at a duly-noticed hearing on September 4, 2018, and their recommendation will be considered by the City Council when it takes action on the project as a whole, including the General Plan amendments.
What is the state law process for amending the General Plan?
Government Code section 65358 authorizes the City Council to amend the General Plan if it finds that the amendments are in the public interest. State law further requires that: the Planning Commission must consider a General Plan amendment in noticed hearing and make written recommendation to the City Council; City Council must hold a noticed hearing to approve, disapprove or modify the Planning Commission recommendations regarding the General Plan amendment; and the City approve no more than four General Plan amendments per year (though multiple changes can be include in a single amendment). Aside from the minimum requirements imposed by the Government Code, state law defers to cities to determine process for initiating General Plan amendments. Once established, cities must follow their own General Plan amendment process.
How can the city grant the special city density bonus in the Vallco Specific Plan? Does the entire Vallco project have to be BMR?
The State Density Bonus Law permits the City to grant density bonuses greater than 35% for developments that qualify for a density bonus. Currently, the City’s Density Bonus Ordinance authorizes ONE way for the City to grant a density bonus larger than 35%: for housing development projects that are 100% affordable to lower income households. In connection with the Vallco Town Center Specific Plan, the City is approving a SECOND density bonus option; this new “community benefits density bonus” will authorize density bonuses greater than 35% for projects in the Vallco Town Center zone that are approved pursuant to the Specific Plan’s standards, including providing affordability beyond the standard 15% required of all projects and significant additional community benefits that are memorialized in a development agreement. Accordingly, should council approve the Ordinances introduced in connection with the Vallco Town Center Specific Plan, the Cupertino Municipal Code will include two options for projects seeking more than a 35% density bonus.
Why did City leadership negotiate a new City Hall as part of the Specific Plan? Are they allowed to do that?
The current City Hall, built in 1965, is beyond its useful life and is deficient in several aspects of modern seismic building code specifications. City Hall is designated as an Emergency Operations Center (EOC), meaning that it is supposed to function as the City’s central command and operations base during a disaster. It is likely that a significant earthquake would cause the building to be unsafe, which would impede the City’s efforts to provide critical public services, communications, and response from the facility. In addition, the current City Hall is at risk due to old electrical and mechanical systems that, if they were to fail, would hinder the City’s ability to provide day-to-day services to the public.
A new City Hall would be built to modern building code specifications, which would create a resilient building that would survive an earthquake and function as the City’s EOC. A new City Hall would also include additional parking for residents doing business at the facility, as well as adequate meeting space and flexible scheduling for evening and weekend use by the public.
The need for a new City Hall has been the subject of several major public dialogue over the past six years, beginning with the Civic Center Master Plan Framework conducted in 2012, followed up by a significant outreach to stakeholders and the community. The Civic Center Master Plan was adopted in 2015.
City leaders, at the time, were tasked with negotiating public benefits with long-term value, such as a City Hall that serves the entire community. Cities around the country have taken different paths to constructing a new city hall. That has included negotiations during development agreements, public-private partnerships, and bond measures.
I’ve heard that there is hazardous material buried at the Vallco Mall site and that it is listed on the State of California registry of hazardous material. Is this true?
No portion of the site is part of a hazardous waste site. The State of California requires that certain sites with environmental contamination be included on what is known as the “Cortese List.” California agencies [Department of Toxic Substance Control (DTSC) and the State Water Resources Control Board (SWRCB)] that are responsible for overseeing the investigation and clean-up of contaminated sites must include certain contaminated sites on the Cortese List. These listed sites are available online on the DTSC’s Envirostor and the SWRCB Geotracker databases. Both the databases include:
- Active cases that are on the Cortese List; and
- Closed cases, where all required investigation and clean-up have been completed. Sites are no longer considered “active” when the appropriate regulatory agency has determined that no further action is required. This is because actions were taken to adequately remediate the release or because the release was minor, presents no environmental risk, or because no remedial action is necessary. In these cases, the sites are listed as “closed” or deleted from the Cortese List. The DTSC also removes sites from the Cortese List where response actions have been completed and no operation or maintenance activities are required. See the list of closed DTSC sites and closed SWRCB sites here.
The SWRCB’s website contains information on two closed leaking underground storage tank (LUST) cases at the former Sears and JC Penney Automotive centers for which closure letters were issued by the Santa Clara Valley Water District.
The closure letters, issued in 1994 and 1999, respectively, indicate that there are no restrictions on changes to the land use at these sites and therefore are no longer considered hazardous waste sites. More information on the closed LUST sites, including the closure letters, is available here.
There are reportedly underground storage tanks that need to be removed at the Vallco site. If that’s true, then why has demolition been approved?
There is a difference between what is required for above-ground demolition versus removal of foundation, slab at-grade, and other work that involve excavation. The demolition permit issued in October 2018 was limited to two parking structures near the former AMC Theater in an area where no underground storage tanks have historically been reported and/or installed. The intent of all the requirements the City is imposing on the applicant is to ensure that if, and when, earth disturbing activities occur, there is a plan in place to ensure proper handling and disposal of any contaminated soil. Therefore, demolition activity may occur in phases in a manner that would comply with all of the City’s, states and federal requirements.
For excavation, which has not happened yet, the preparation, review and approval of appropriate plans for the review and approval of the Santa Clara County Fire District or other regulatory agency (if required) is required; the demolition and removal of equipment and facilities related to the Sears and JC Penney Automotive Centers, including remnant piping, below ground oil-water separators, a potential Underground Storage Tank, lift casings and associated piping; and other requirements related to lead and asbestos removal and potential pesticide contamination. All demolition work will have to be completed in compliance with local, state and federal requirements.
I understand that the Specific Plan would include environmental review and mitigations would be required. Where can I get a list of all of these mitigations?
Environmental documents related the former Vallco Town Center Specific Plan are available online here (scroll down to “Environmental Documents”).
A complete list of all the mitigations are available online by clicking here.
What was included in the Notice of Preparation for the Vallco Town Center Specific Plan EIR?
The Notice of Preparation provided both public agencies and members of the public with notice that the City intended to prepare an EIR to analyze the environmental effects of the project as proposed at the time (as discussed in more detail in Master Response 4, Section 5.1 of the Final EIR). CEQA does not require the City to adopt a project precisely as it was conceived when it was first proposed. The CEQA process contemplates that a project will evolve over time to reduce impacts or better meet project objectives, so long as the actions the City approves are covered by the analysis in the EIR. The proposed Specific Plan's environmental effects, including any environmental effects associated with amending the development allocation in the General Plan to authorize the program proposed in the Specific Plan, were fully disclosed in the EIR's analysis of the project and the reasonable range of alternatives included in the EIR. A full discussion of the Revised Project, including necessary General Plan Amendments, is included in Section 2.1 of the Final EIR. Therefore, the Notice of Preparation is adequate for disclosing potential environmental effects associated with the Vallco Town Center Specific Plan as currently proposed.
Why does the EIR include a "Revised Project"?
The City's economics consultant reviewed the potential for feasible mixed use development at the site, and recommended a much lower maximum for non-office commercial uses be included as a feasible development alternative in connection with other community benefits, such as increased affordable housing, development of a City Hall, development of a Performing Arts Center and increased contributions toward transportation choices (e.g. a fixed route community shuttle). This concept is reflected in the draft Vallco Town Center Specific Plan and the Development Agreement. Accordingly, the EIR analyzes a "revised project" alternative with reduced commercial allocations and increased housing and office allocations to ensure that the City studied the potential environmental effects of the range of program alternatives that could feasibly be developed while meeting the project objectives and maximizing community benefits.
Why was the EIR recirculated with the Housing Rich Alternative?
The Housing Rich Alternative was identified based on input received from the City Council at its June 4, 2018 session in order to expand the development program to meet all of the objectives identified by the Council, including additional housing opportunities with substantial community benefits. The analysis indicated additional impacts above those identified in the draft EIR circulated in May 2018. To ensure adequate public input and compliance with CEQA, the EIR amendment was prepared and circulated for a 45-day public review period.
Why did the mixed-use alternatives not include 1.2M sf of retail?
The General Plan EIR studied a maximum development program of 625,335 s.f. of commercial, 800 housing units, 2,000,000 s.f. of office and 489 hotel rooms for the Vallco Special Area. The City Council adopted a General Plan Amendment to allow 2,000,000 s.f. of office space and 339 residential units in conjunction with the existing hotel allocation of 339 rooms and a reduced commercial allocation at the Vallco Special Area while allowing the existing mall as an existing use at 1,207,774 s.f. The purpose of indicating the commercial allocation in Table LU-1 was to ensure that the existing mall did not become a legal non-conforming use if the commercial allocation was reduced to below the existing conditions at the site. However, the City Council did not allow the commercial allocation of the mall in addition to the 2,000,000 s.f. of office, 339 hotel rooms and 389 residential units. Therefore, the maximum commercial allocation on the site as a standalone use is 1,207,774 s.f. which was studied in the Occupied/Re-Tenanted mall Alternative in the Vallco Specific Plan EIR. The city’s initial market study indicated that the site could accommodate between 400,000 -600,000 square feet of commercial/retail under current market conditions. Therefore, when developed as a mixed-use site, the alternatives studied in the EIR were developed with a maximum of 600,000 s.f. commercial allocation. The revised project was based on 460,000 s.f. of commercial allocation based on the lower end of the spectrum of economic feasibility, that in order to be able to afford all the community benefits indicated by the City Council including, increased affordable housing, development of a City Hall, development of a Performing Arts Center and increased contributions toward transportation choices (e.g. a fixed route community shuttle.)
Why didn't the EIR analyze every alternative identified by the public?
CEQA requires the EIR to analyze a "reasonable" range of alternatives to a proposed project. Here, the EIR tried to accommodate alternatives suggested by various parties, including buildout under the existing General Plan, increased residential capacity, retail and residential mixed use, and re-tenanting the mall, but it is not feasible to analyze every alternative suggested by the public. The General Plan allowed 2,000,000 s.f. of office space and 339 residential units in conjunction with the existing hotel allocation of 339 rooms and a reduced commercial allocation at the Vallco Special Area for future development, while permitting existing commercial uses as legal, conforming uses. The "GP Buildout with Maximum Residential Alternative" in the EIR analyzes this development allocation, plus housing at 35 dwelling units/acre without a development allocation limit. The EIR also studied the maximum commercial allocation currently permitted in the Vallco Town Center area in the Specific Plan EIR as the Occupied/Re-Tenanted Mall Alternative, plus other alternatives identified by the public and public officials.
What income levels are required to meet various levels of BMR housing?
Under the Specific Plan’s development agreement, there will be extremely low income units (households that make less than 30% of the Area Median Income), very low income units (Households that make between 30% and 50% of the Area Median Income), low income units (households that make between 50% and 80% of the Area Median Income) and moderate income units (households that make between 80% and 100% of the Area Median Income). The income levels are updated on the City’s website annually.
For information on the Cupertino BMR Rental Program, visit the City's BMR Rental Program web page.
How many units of in each income category were included in the 2018 Specific Plan?
The 2018 Vallco Specific Plan included 534 BMR units in total. Sand Hill had agreed that 20% of the residential units would be provided as affordable housing at the following percentages:
|Income Level||Number of units||Percentage of total|
I’ve heard that the City will be giving preference to teachers who work in Cupertino. How is something like this accomplished?
While the City cannot give preference to one profession over another, there is a point system in place which places a preference to all to qualify individuals who that already work in Cupertino.
For information on the BMR Rental Program, visit City's BMR Rental Program web page by clicking here.
Main Street Cupertino
I was told that the developer cannot be trusted because they violated their agreement at Main Street Cupertino to build senior housing and a new fitness center. Did the City allow them to break their development agreement?
There was no development agreement between the City and the Cupertino Main Street owner, and, therefore, no violation of agreements.
The City follows established procedure to review development proposals and responds in a manner compliant with the law and prevailing protocol. The owner made an application for a mixed-use development at the Main Street Cupertino site (Application No. U-2008-01) which was approved in 2009. This approval included office, commercial uses including a fitness center and senior age-restricted housing.
In 2012, the owner made applications to make modifications to the approved project (Application numbers M-2011-09 and M-2012-03). The applicant proposed an increase in the office development, a change to the senior age-restriction, and removal of the fitness center from the project. Upon review of the proposed changes, the City Council approved the application at a public hearing upon receiving public input in 2012. Among the other reasons for which the owner applied to modify the project, the owner stated that due to the recession, no financier could be found to build or support the development of the senior age-restricted apartments. This is part of the public record that can be viewed here online at (search by entering application number into digital archives link): https://www.cupertino.org/our-city/departments/city-clerk/city-records.
Why is there office space as part of the Specific Plan?
Office is one of those uses that are needed but are not necessarily at the forefront of one’s mind. Offices serve as places of employment, places of business, places of services, including medical and finance. Many working professionals in the Cupertino community work in an office. One of the goals of the specific plan is the creation of a vibrant, mixed-use district. Allowing the Vallco Mall site to transform into something other than a single-use site facilitates future flexibility and success.
How does office facilitate “flexibility and success”?
Office has different clients and faster leasing or sale than retail/commercial or residential. This allows the plan area to multi-task, in terms of getting the space successfully leased or sold. It also adds to the diversity of uses. If or when the market is slow on one use, it can be potentially off set by the variety of businesses that can use office space rather than remaining vacant or going through a bureaucratic process to adapt. Properties that are vacant may have a negative impact on property values. The diversity of land uses benefits the community because the variety of uses generates different traffic patterns. For example, resident-serving offices, such as medical and dental, will have patients visiting in dispersed times throughout the business day, rather than at peak commute hours or weekends.
Parks and Open Space
I received a flyer that said Vallco would have no parks, will be concrete plazas, and only .25 acres of parks. True or false?
This is false. The 2018 Vallco Town Center Specific Plan had more parks at ground level than any other current or previous proposal at Vallco. The Specific Plan required six acres of public accessible parks and open space (not including setbacks) at ground level, a $60 million value that was balanced to keep heights in the Special Area in check. Sixty percent was required to be landscaped planting area in order to qualify as parks and open space, or else additional parks and open space would have to be included in the proposal to meet this requirement.
Performing Arts Center
Where did the idea for Performing Arts Center come from? How much would it cost to finish the interior and outfit it, then operate it as a City facility? Does the City have the money to afford it or would it have to float a bond measure to raise the funding for it?
Members of the Fine Arts Commission, Parks and Recreation Commission, and City Council requested consideration of a Performing Arts Center. A feasibility study would have been required before answers regarding cost could be determined. The study would have been reviewed with public input in 2019 had the Development Agreement not been referended. The Development Agreement included a cash out value of $22.8 million toward other public facilities if the Performing Arts Center was found to be infeasible or lacked public support.
Removing Development Rights
Why didn’t the City remove the office allocation and reduce or remove the housing density during October/November 2017, before SB 35 was in effect?
There are several reasons: legal requirements, due process, and good-faith conversations with the Vallco property owner and community members.
Among many requirements, cities must notify owners and hold public hearings before removing development rights allocated to private property. Additionally, the City would have to comply with the California Environmental Quality Act, which requires additional environmental review before changing the land uses or densities for the Vallco Special Area. Given that SB 35 was signed into law on September 29, 2017, there wasn't enough time to complete these legal requirements and due process before SB 35 took effect within 90 days.
There is much more beyond the legal requirements and due process. On October 4, 2017, the City received notice from the Vallco Mall property owner, announcing its intention to reactivate its effort for the redevelopment of the Vallco Mall site and interest in exploring a more housing-centric plan in a collaborative process. The City subsequently responded by bringing a proposed City-led scope for a specific plan to City Council. Starting a specific plan process involved vetting a variety of ideas from the community at-large, rather than unilateral removal of development rights. A “shopping mall only” and “no office” alternative was explored and studied, but it did not pass the economic feasibility test.
Referendum Petition Outcome
True or false: “Signing the petition to invalidate the Vallco Specific Plan would allow us to force the developer and the City to renegotiate a new development project.”
False. Development agreements that contain community benefits are the outcome of positive, constructive, and good-faith negotiations between the City and property owners. The City worked to include as many requests as possible. So, further delays would not force a better agreement.
True or false: “If the referendum is successful, the SB 35 project is an option for the developer that has no local control, no community benefits, and no environmental mitigations.”
True. While the Vallco property owner has publicly stated that it is their preference to proceed with a project under the Specific Plan, should the referendum be successful, the property owner may proceed to construct the approved SB 35 plan or propose a new SB 35 plan with fewer affordable units.
This flowchart helps demonstrate the outcomes based on possible decisions and actions.
True or false: “If the referendum is successful, the developer could propose a new SB 35 plan with fewer affordable units with no local control, no community benefits, and no environmental mitigations.”
True. The new HCD draft guidelines on the implementation of SB 35 regulations make it clear that the number of affordable units that a project must include to qualify for the streamlining and ministerial approval process, is exclusive of any density bonus units (Section 402(c) of the draft guidelines). Therefore, the developer could propose a project with only 890 affordable units (where the currently approved SB 35 plan has 1,201 affordable units). The HCD draft guidelines are available online at http://www.hcd.ca.gov/policy-research/docs/SB-35-Guidelines-final.pdf.
What is the impact on CUSD and FUHSD enrollment and funding? What is the outlook for Cupertino High School in light of what is going to happen at Vallco?
CUSD and FUHSD demographer, Tom Williams, concluded that Vallco development will not create negative impacts to the school districts in terms of enrollment numbers for many reasons, including projected declining enrollment trend throughout the district due to housing costs. The units to be provided by this development will also be beneficial to school district staff, many of whom cannot afford to purchase a single family home and prefer other housing choices in Cupertino if available, such as condominiums, rentals, or units reserved for moderate income community members.
Mr. Williams’ presentation can be found here with findings summarized at 18:35: www.youtube.com/watch?v=kAL_nICwBW8.
What about funding for schools?
The school districts had negotiated school benefits from Vallco Property Owner as follows:
- FUHSD - Vallco would commit to either (i) build and lease to FUHSD a 25,000 square foot “warm shell” space within the project, or (ii) pay FUHSD a $9,500,000 in lieu payment, with terms to be set forth in a separate agreement to be entered into between Developer and FUHSD.
- CUSD – Vallco would make a payment to CUSD in the amount of $14,250,000 pursuant to a separate agreement, which would decrease to $9,500,000 if there were to be a legal challenge to the Project.
These benefits were in addition to applicable school impact fees that any development would ordinarily have to pay.
Shopping Mall Option
Do the majority of the people of Cupertino want Vallco to remain a shopping mall?
Based on the City’s outreach, many residents of Cupertino want a shopping mall at Vallco. However, residents as a majority did not want only a shopping mall. There was broad support for other uses here, along with shopping, to assure the long-term success of the 50-plus acre plan area.
It would be nice to have a shopping mall in town, and wouldn’t it be nice to have our City benefit from all the sales taxes? Why wouldn’t the developer agree to build what we want as a community?
The City agrees with these statements and so does the developer. In the 2018 Vallco Specific Plan, 400,000 square feet of retail/entertainment would have been located in this plan area. The City’s team had completed an economic analysis which confirmed that this size as the “right sizing” of a shopping mall to meet current and future retail demand.
State Law (SB 35)
What is SB 35?
Governor Brown signed 15 bills addressing new housing legislation, including Senate Bill 35 (SB 35), on September 29, 2017. Together this is called the 2017 Housing Package. SB 35 changed the local review process for certain development projects by establishing a streamlined, ministerial review and approval process if they meet objective planning standards. More information on SB 35 may be found online at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB35.
Why would the State Legislature and the Governor sign into law something that would remove all local control from development project like Vallco? What is their justification for this legislation?
Local control on any issue is a delegated power. Communities maintain local control more strongly when the power is handled effectively and not at odds with statewide concerns.
There were 15 new bills signed into law in 2017 as the Housing Package, including SB 35. The 2017 Housing Package tried to address housing production in multiple ways including by providing critical funding sources for affordable housing, accelerating development to increase housing supply, holding agencies accountable for addressing housing needs in their communities and creating opportunities for new affordable homes and preserves existing affordable homes.
Additional information about the 2017 Housing Package is available at www.hcd.ca.gov/policy-research/lhp.shtml. Elected officials at the State level found that local municipalities were not able to produce enough housing, including affordable housing due to a variety of reasons, including local opposition to housing projects and the use of California Environmental Quality Act (CEQA) as a delay tactic, even for projects on properties where residential uses are allowed. In adopting SB 35, the State Legislature found and declared that ensuring access to affordable housing is a matter of statewide concern, and not a municipal (local) affair.
What exactly is streamlining?
SB 35 requires cities and counties to streamline review and approval of affordable housing projects that meet the criteria established in SB 35, by providing a ministerial approval process. This process exempts eligible projects from environmental review under the California Environmental Quality Act (CEQA). The process does not allow public hearings; only design review or public oversight is allowed, which must be objective and strictly focused on assessing compliance with criteria required for streamlined projects, as well as objective design review of the project.
Depending on the number of housing units proposed in the project, the city has a short time frame to review the application to determine if it is eligible for processing under SB 35. A city must determine whether the project is eligible for streamlining within 60 days of application submittal for projects with 150 or fewer units, and 90 days for projects with more than 150 units.
If it is determined that the project is eligible, SB 35 specifies the time frames within which the city has to make a final decision on the application. Project design review and consideration of any information requested of the applicant must be completed in 90 days from project application submittal for projects with 150 or fewer units and 180 days from project submittal for projects with more than 150 units.
Realistically what would have to happen to do away with a Senate Bill that has been signed into law like this?
In order to repeal a bill that has been signed into law, either a new bill has to pass through the state legislature or a ballot proposition may be submitted to the electorate for a statewide direct vote. Legislative Information for the State of California is available at http://leginfo.legislature.ca.gov/faces/home.xhtml.
What are the conditions of a development project that would allow that project to qualify for streamlining under SB 35?
State housing law requires cities and counties to report their housing production annually according to the number of building permits issued within the jurisdiction by income level. SB 35 applies to cities that are unable to issue sufficient number of building permits to meet their regional housing needs allocation (“RHNA”) goals for both above income and lower income units. At this time, Cupertino has issued enough building permits to meet its RHNA goal for construction of above-moderate income housing. However, there has not been enough construction activity leading to the issuance of building permits for lower income units. Therefore, projects proposed in Cupertino under SB 35 have to provide at least 50% of the units at the base density (not including density bonus units) as affordable to low income levels.
Projects providing affordable housing for low income levels are eligible for the streamlined, ministerial approval process if they meet all of the following criteria:
Urban Infill. Be located in an urban area, with 75% of the site's perimeter already developed.
Number of Units. Propose at least two residential units.
Designated for Residential Uses. Have a general plan and/or zoning designation that allows residential or mixed-use with at least two-thirds of the square footage as residential use.
Location. Cannot be located on property within any of the following areas: a coastal zone, prime farmland, wetlands, very high fire hazard severity zone, hazardous waste site, delineated earthquake fault zone, flood plain, floodway, community conservation plan area, habitat for protected species, under a conservation easement, or located on a qualifying mobile home site.
Demolition of Residential Units. The development would not demolish any housing units that have been occupied by tenants in the last 10 years; are subject to any form of rent or price control, or are subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low incomes.
Historic Buildings. The development would not demolish a historic structure that is on a national, state, or local historic register.
Consistent with Objective Planning Standards. Must meet all objective general plan, zoning and design review standards in effect at the time the application is submitted. Note: SB 35 defines objective standards as those standards that involve no personal or subjective judgment by a public official, and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal.
Prevailing Wages. If the development is not in its entirety a public work, as defined in Government Code Section 65913.4(a)(8)(A), all construction workers employed in the execution of the development must be paid at least the general prevailing rate of per diem wages for the type of work and geographic area.
Skilled and Trained Workforce Provisions. A skilled and trained workforce, as defined in Government Code Section 65913.4(a)(8)(B)iii, must complete the development if the project consists of 75 or more units that are not 100 percent subsidized affordable housing.
Subdivisions. Does not involve a subdivision subject to the California Subdivision Map Act, unless the development either (i) receives a low-income housing tax credit and is subject to the requirement that prevailing wages be paid, or (ii) is subject to the requirements to pay prevailing wages and to use a skilled and trained workforce.
Parking. The project must provide at least one parking space per unit; however, no parking may be required if 1) the project is located within a) one half mile of a public transit stop, b) an architecturally and historically significant historic district, c) one block of a car share vehicle station, or 2) on-street parking permits are required but not offered to the development occupants.
Why worry whether the Vallco Town Center Specific Plan gets repealed? Sand Hill already has an SB 35 project approved with 1,201 affordable units. What’s the worst that could happen?
If the City Council adoption of Vallco Town Center Specific Plan is repealed, the site will not have objective zoning standards such as height, and setbacks, among other things. SB 35 requires that an eligible project that meets objective zoning standards be streamlined. Without an objective zoning standard, the applicant can propose any standard they wish (for example, the approved SB 35 project includes seven buildings that are 240 feet in height.) The project is also not subject to the environmental mitigation measures that have been tailored with the Vallco Specific Plan EIR to the development program at the site.
In addition, it should be noted that the State Department of Housing and Community Development adopted final guidelines for the implementation of the provisions of SB 35 and recently passed legislation on September 28, 2018. The guidelines state that for purposes of SB 35, the percentage of affordable housing units in a project is calculated based on the total number of units in the development exclusive of any density bonus units (Section 402(c)). The final guidelines are available at http://www.hcd.ca.gov/policy-research/docs/SB-35-Guidelines-final.pdf.
Therefore, Sand Hill could submit a new SB 35 plan with fewer affordable units but retain the same number of total housing units, office space, and retail space. Sand Hill would be obligated to only provide 890 units (50% of 1,779 units) as affordable, since their application includes a 35% density bonus (which grants them an addition 623 market rate units.) The following table explains the difference between the approved SB 35 project and future possible SB 35 project.
|Approved SB 35 Project||Potential SB 35 Project(if Specific Plan repealed)|
|Base Residential Yield (50.82 acres at 35 du/acre General Plan density)||30 du/acre * 50.82 acres||1,779 units||1,779 units|
|Density Bonus (35%)||1,779 units * 35%||623 units||623 units|
|Total Units||(1,779 + 623) units||2,402 units||2,402 units|
|Affordable Units Required||1,779 units * 50%||890 units||890 units|
|Affordable Units Provided||1,201 units||≥ 890 units|
|Market Rate Units Provided||1,201 units||≥ 1,512 units|
What is Density Bonus Law and how does it relate to the Vallco SB 35 project?
SB 35 projects can utilize benefits under the density bonus laws. State Density Bonus Law, which can be found at California Government Code section 65915 et.seq., requires all cities and counties to offer a density bonus, allow concessions, incentives and waivers of development standards to housing developments that include either a certain percentage of affordable housing or housing for qualified individuals. The City has a density bonus ordinance, which can be found at Cupertino Municipal Code Chapter 19.56. The State Density Bonus Law has been amended after the adoption of the City’s density bonus ordinance. Therefore, State Density Bonus Law prevails in the event of any inconsistencies between the state law and local ordinance.
A density bonus is an increase in the number of housing units allowed under a general plan and/or zoning (“base density,”) to encourage the production of affordable housing. Depending on the amount and affordability of the proposed affordable housing, a project may be allowed a density bonus between 5% and 35% above the base density. In addition to a density bonus, concessions and incentives can be requested by an applicant to help the project provide affordable units. Depending on the percentage of affordable housing provided, a project may be eligible to receive to receive up to three concessions and incentives. A concession or incentive is a reduction in a site development standard or modification of zoning or architectural requirements, or any other regulatory incentives or concessions that would result in identifiable and actual cost reductions to provide affordable housing.
The Vallco SB 35 project received a 35% density bonus since they provided 15% of the affordable units as affordable to very low income households (deeper affordability than required by SB 35). In addition, since they provided 15% of the units as affordable to very low income households, the project was also entitled to three concessions and incentives. These incentives included a concession to allow the affordable units to be studio or one-bedroom units instead of a mix of units comparable to the other units in the project, a concession to allow the studio and one-bedroom BMR units to be smaller than the market rate units, and a concession to allow 400,000 sq. ft. of retail space (a reduction of 200,000 sq. ft. where 600,000 sq. ft. is required by the General Plan).
How does the Vallco Town Center Specific Plan (the community's plan) compare to the SB 35 (State Law) project?
Download Vallco Fast Facts to compare the concepts from the Specific Plan to the SB 35 proposal, two different options for Vallco's future or scroll down this page to view the comparisons.
What happened in 2018 and the first half of 2019 that I should be aware of?
A kick off meeting where the project was launched occurred in early February 2018. The project documents, including video where attendees’ comments can be seen live, can be viewed here: https://www.cupertino.org/our-city/departments/community-development/planning/major-projects/vallco-specific-plan/vallco-specific-plan-archive.
There were a variety of venues in which to receive information or have a conversation: by email, online, by US mail, in-person, formal presentations, informal presentations, staff access, consultant access, open house style, sign-in optional (charrettes), sign-in required (online), weekdays during business hours, evenings after business hours, weekend, small group, large group and individual correspondence. The website launch and city-wide postcard notice were followed by a series of public events and a variety of speaking engagements including:
- 14 small group interviews
- 2 week-long charrettes featuring a total of 8 presentations, 5 open studio, 3 brown bags & 3 open houses
- 3 EIR scoping and comment meetings
- 2 student/youth on-campus events
- 2 public hearings (final PC & CC)
- 1 Environmental Review Committee meeting
- 1 City Council study session
- 1 online civic comment opportunity
- 1 Fine Arts Commission check-in/ update
- 1 Housing Commission check-in /update
- 1 Parks & Recreation Commission check-in/update
- 1 Teen Commission check-in/update
- 1 Economic Development Committee check-in/update
- 1 Block Leaders check-in/update
- 1 League of Women Voters forum
- 1 Better Cupertino forum
- Project website with urban design information, online engagement, updated documents, presentation videos, time lapse 3-D models
- Multiple individual email correspondence
- Multiple press releases
- Multiple social media postings
- 2 city-wide post card notices
- Updates in Cupertino Scene
Throughout the specific plan process, the team achieved the following community touch points:
- 3,219 public comments
- 928 in-person participants (interviews, charrettes, public meetings)
- 152 hours of public access
- 4,175 unique visits to the project website
- 440 registered users
- 545 online comments
- 7,446 online page views
A SB 35 project was submitted by the applicant in March 2018. A draft Specific Plan and Development Agreement was prepared after receipt of the input from the various public input meetings, from the property owner, and from technical consultants. This was present to the Planning Commission and City Council for review in August and September 2018. The Council adopted the Vallco Specific Plan and the proposed Development Agreement after receiving public input on September 19, 2019 on a 3-2 (Scharf, Paul - NO) vote. Shortly thereafter referenda were submitted for the General Plan Amendments, Specific Plan and Development Agreement related to the Vallco Special Area.
The referenda were adopted by the City Council on a 4-1 (Sinks - NO) vote in May 2019 and further direction was provided to bring back amendments to the Vallco Special Area to remove the office allocation, consider the residential development and adopt objectives standards in June 2019.
With the two plans that were approved in 2018, which one would the developer have gone with? How would have made this decision?
The owners had publicly stated that they preferred to work with the community under the Council-approved specific plan. If not overturned by the referendum, the owners intended to file an application for a master site development permit that would also be reviewed by the community, Planning Commission and City Council as early as 2019. The approved or a new SB 35 project is currently an alternative option for the owners.
I understand that a number of transportation improvements are planned with the specific plan. What are they? What will be done with traffic signals, intersections, highway interchanges, parking, transit routes, carpooling, automated shuttles, employer-employee incentives etc.?
In the development agreement, the owner would have provided $11M for Wolfe Road/I-280/Junipero Serra Trail improvements – this would have covered traffic signals, intersections, and other amenities that would manage how and what types of traffic would move through the area, plus $1M for a Community Shuttle pilot and, if successful, $750K annually for 9 subsequent years.
The specific plan also included improved streetscapes, a frontage road along Wolfe, improved bike and multi-user path ways, parking and curb space management for pedestrian safety and driver convenience. The master site development permit process would have allowed the community review of these facilities once proposed.
What are you doing with Apple employees to encourage them to buy or rent at Vallco so they can walk and bike to work?
The city does not market private properties, but does recognize there is an opportunity for the property owners and any local employer including Apple to work together. Apple provides bikes to their employees and has been known to work with local apartment community owners to provide access points to their campus.
You will never get people out of their cars. Why didn’t the specific plan acknowledge this?
The specific plan aimed to create safe and viable choices, rather than forcing anyone out of their cars. Some people will always prefer to drive and cars are part of our suburban landscape. If environments are created in terms of proximity and safe paths of travel (bike lanes, trails, buffers), the choices increase.
Think of it this way: for those who prefer to drive, one might have more space to drive if some percentage of the community, particularly those who live and work nearby, are able to choose alternative modes of safe travel. Every bicyclist and pedestrian ones sees is one less person creating traffic or impacting air quality. The specific plan attempted to create space for all.
What are the estimated “Vehicle Miles Traveled” forecast in the EIR(s) for both the SB 35 and Vallco Specific Plans?
For the Vallco Specific Plan "Tier 2" program, the VMT per service population is projected to be 29.7. The Vehicle Miles Traveled data is discussed in the Environmental Impact Report available online here.
Data is unavailable for the SB 35 project since no CEQA review was allowed for that project under SB 35’s streamlined, ministerial review.