APPROVED Minutes

SUNNYVALE CITY COUNCIL

TUESDAY, JULY 24, 2007

5:30 P.M. SPECIAL COUNCIL MEETING (Study Session) - Update of the Community Participation Sub-Element of the General Plan

6:30 P.M. SPECIAL COUNCIL MEETING (Closed Session) - Conference with Real Property Negotiator Pursuant to Government Code  Section 54956.8 Property: 11th Avenue, Lot 1 and Moffett Park Drive, LLC. Negotiating Parties: Jay Paul Company and Amy Chan, City Manager Under Negotiation: Price of Property

7 P.M. REGULAR MEETING

SALUTE TO THE FLAG

Mayor Lee led the salute to the flag.

ROLL CALL

CLOSED SESSION REPORT

Vice Mayor Spitaleri reported Council met in Closed Session earlier this evening pertaining to: Conference with Real Property Negotiator Pursuant to Government Code Section 54956.8 Property: 11th Avenue, Lot 1 and Moffett Park Drive, LLC. Negotiating Parties: Jay Paul Company and Amy Chan, City Manager Under Negotiation: Price of Property

Vice Mayor Spitaleri reported that direction was given, but no action taken.

PUBLIC ANNOUNCEMENTS

Laura Babcock, representing the Heritage Park Museum Team and the Sunnyvale Historical Society, announced that the new museum construction is well underway. Ms. Babcock also invited the community to visit the site.

Dave Whittum announced that individuals interested in running for City Council may obtain nomination papers from the Sunnyvale City Clerk’s office at 603 All America Way. The nomination period closes at 5 p.m. Friday, August 10.

Whittum announced that the next meeting of the Heritage District Neighborhood Association will be held on August 3 at 7 p.m. at Murphy Park.

Councilmember Swegles announced current vacancies on the City’s boards and commissions.

CONSENT CALENDAR

Councilmember Howe removed Item 1.I from the consent calendar.

MOTION: Vice Mayor Spitaleri moved and Councilmember Howe seconded to approve the consent calendar with the exception of Item 1.I.

VOTE: 7-0

Fiscal Items

Contracts

Other Items

STAFF RESPONSES TO PRIOR PUBLIC COMMENTS

None.

PUBLIC COMMENTS

Susan Hynnes stated concerns over the approved remodel for 816 Tamarack Lane. Hynne’s first encounter with her neighbors was in 2004 when they purchased the house. Hynnes stated the owners put up a cyclone fence, tore down an existing fence between the yards and replaced it with a six-foot wooden fence encompassing the corner. Frustrated, Hynnes sent an e-mail to the City Preservation Department, which resulted in the cyclone fence being torn down. The neighbors then sent a letter to the Planning Commission blaming Hynnes for having to remove the cyclone fence. Hynnes stated that the Planning Department at that time told her they could not do anything about the fence, but today at the Planning Commission she learned that the fence is in code violation and must be removed.

Hynnes stated that she had a number of questions that she presented to the Planning Commission last night and a number of those questions have been answered. Hynnes stated that she would like to state her objections to this project and asked Council to consider whether this project (as it stands) is in the best interest of Sunnyvale. The addition of six exterior doors makes this property look like a cheap motel and the visual impact to the neighborhood is devastating.

Hynnes stated that she does not believe that this type of remodel would have been allowed for any other single-family dwelling without the Residential Care Facilities for the Elderly (RCFE) designation. Hynnes stated that two new doors and the front door face her patio, which previously was a relatively unused side yard of her neighbor’s house. Hynnes continued stating that she now has two new apartments bordering her home. Hynnes explained that she moved into a low-density residential neighborhood from a much higher-density neighborhood with the expectation of having quiet enjoyment in her home. Hynnes stated she is now considering whether to stay or move, and is also concerned over what the RCFE will do to the value of her property. Hynnes questioned that if this type of construction is allowed to set a precedent, what will prevent other homeowners from making an eyesore out of their property. Hynnes asked Council to consider how they would feel if they found out these permanent changes were allowed next to their home, and the impact it would have on their family. Hynnes asked Council to have this construction stopped, so that the project can be properly reviewed.

Councilmember Swegles stated that there is a bill pending in legislature that will restrict homes of this type in residential areas. Councilmember Swegles stated this pending legislation would not allow another home next to a six-person home. Councilmember Swegles stated he believes one of Hynnes concerns is the fact that this type of facility can be expanded into another area near her home.

Hynnes indicated that there is another type of facility less than a block away on Lily. Hynnes stated the owners of the Tamarack property bought the house next to it, and it is conceivable that they could turn that house into the same type of property. Councilmember Swegles stated that the bill he mentioned would prevent that from happening.

Councilmember Hamilton asked Hynnes what she understand the current zoning to be and what does she believe the house is going to be used for. Hynnes stated that she assumed that zoning had to change for this type of house but in fact, it does not. Hynnes stated it is currently zoned R-0, which is residential.

Councilmember Hamilton again asked what the house is being used for. Hynnes indicated that right now the owners are not living there, and they have gutted the house. They have put a new roof on it, put in new windows, and within the last month, the plans were approved. Hynnes stated she noticed there were six additional doors, a total of seven doors on the house. Hynnes stated it looks rather odd, and that is when she questioned what the property would be used for and found out the property was going to be a care facility. Hynnes stated she finds it hard to imagine six people needing care living in a 1,500 (or less) square foot house as that is a very small amount of space.

Amy Keefe stated that she and her fellow neighbors wish to inform Council of an urgent building project in Sunnyvale, Ponderosa Park, which is off Lawrence and Reed Avenue. Keefe stated this past Sunday, she brought a picture to church to show people and they could not believe that a 1,500 square foot single-family house could have seven exterior doors. Keefe asked Council if they can honestly and truthfully say (without hesitation) that this project is a single-family house or would they agree that it is more like an apartment or a Motel 6 instead. Keefe asked Council if it would be a good idea to put this kind of house in their neighborhood.

Keefe stated according to her investigation, this house is intended to be elderly care housing. Keefe stated she is a firm believer of taking care of the elderly, to respect them and let them enjoy residential living; however, she does not believe that RCFE’s should retain the same residential nature as other houses in the same neighborhood. Keefe asked Council if the City would allow her to have seven exterior doors in her house. Keefe stated recently her neighbor told her he had a hard time changing the color of his house, so she doubts this would be allowed. Keefe stated that it is unethical and inhumane to cram six elderly people into this small single-family house with a maze of ramps and pathways looping the front and the back. Keefe stated her further investigation shows that the operator of this building owns three other RCFE’s in Mountain View, which are beautiful, gorgeous houses, and one looks newly built. Keefe stated she urges Council to accept her invitation to see the house for themselves, and more importantly to boldly stop the building process immediately and reevaluate the design thoughtfully. Keefe requested Council make this property look like the owner’s other properties in Mountain View. Keefe stated she believes in Council’s ability to make Sunnyvale a better community with a higher standard as Mountain View. Keefe urged Council to not let this building undermine Council’s reputation or destroy people’s confidence in Council. Keefe stated she wants to be proud of being a Sunnyvale resident and urged Council to act immediately.

Luis Galleguillos asked Council to direct the Planning Department to revoke the remodeling permit for 816 Tamarack Lane, and to direct staff to stop the current remodeling activity. In dealing with the Planning Department, Galleguillos stated that planning staff told him that this is a done deal because state law requires it. However, Galleguillos believes that City planning is misinterpreting the law and that the City Attorney together with City Council should advise staff on the law. The Planning Department needs to understand and interpret the law correctly. Galleguillos stated he understands that the law says that this type of facility has to be treated equally as a single-family home, equal in all respects. Galleguillos stated modification of this property is clearly in violation of the law, and sets a clear and dangerous precedence allowing any neighborhood to do whatever they wish. Galleguillos stated he would like to know how to stop the building; how to revoke the license; and whether there’s an appeals process. Galleguillos stated the neighbors were never notified of this modification, so they are not aware of their options.

Mayor Lee asked staff what the process is for an appeal.

Community Development Director Hanson Hom indicated staff is investigating the situation based on information they have recently received. Director of Community Development Hom’s understanding is that state law does preempt cities from approving congregate care facilities of six or fewer, and there has been a lot of legislation dealing with that issue recently. Director of Community Development Hom stated staff is trying to verify for sure, that this facility will qualify under the state definition of a precluded facility under local jurisdiction. Director of Community Development Hom stated the second issue is really the design improvements that were issued via the building permit process of the multiple doors on this single-family unit. Staff is looking at the design guidelines to verify whether there may have been some oversight in issuing a building permit with these multiple doors. Director of Community Development Hom stated the design issue is something the City does have local jurisdiction over in addition to whether there are applicable design standards. Should this home qualify as a congregate care facility of six or fewer, then it is preempted by state law and there may be limitations on what the City can actually do to preclude this facility from occurring. Director of Community Development Hom stated staff is investigating the details of the situation and contacting the state to verify what category this facility will fall under.

Mayor Lee asked staff to bring a subsequent report back to Council.

City Manager Amy Chan indicated that the City Attorney’s office is working closely with the Community Development Department to look into this matter. City Manager Chan stated that once she obtains a report from the joint departments, she will then present it to Council.

Councilmember Chu asked about a comment made by an earlier speaker referencing that this issue was previously at the Planning Commission and inquired as to what activity occurred at the Planning Commission.

Director of Community Development Hom indicated that at last night’s Planning Commission meeting, many of the speakers spoke during public comments about their concern over this facility, but the facility did not require Planning Commission action. Director of Community Development Hom stated this was a building permit application that was handled administratively, so the speakers came to the Planning Commission meeting asking the City to look into the situation.

Brian Keefe indicated that he sent in PowerPoint presentations to the City by 3 p.m. (as per the City’s web site) and he also called to confirm; however, the presentations were not received by the City. Keefe stated he works for a technical company and receives a page when something goes wrong. Keefe stated he thinks the City should set up a similar system. Keefe stated he spent a lot of time on these presentations and now does not have them available. Keefe stated his PowerPoint visuals would make his presentation a lot more informative and effective, and it would have been nice to page these people to have them do their job and get the PowerPoint here.

Keefe stated Council involvement is needed in the situation with the home at 816 Tamarack Lane, because if this is considered a normal situation, the City is in deep trouble if this can be done anywhere, in any place, in any neighborhood. To believe this is allowed by state law is shocking. Keefe stated there is discrimination in fire code laws within the section regarding RCFE’s which states:  “RCFE’s shall not be construed to forbid the application to a residential care facility of any local ordinances which deals with health and safety, building standards, environmental impact standards, or any other merit within the jurisdiction of a local public entity, if the ordinance does not distinguish residential care facilities which serve six or fewer persons, from other family dwellings of the same type in the same zone, and if the ordinance does not distinguish residents of the residential care facilities from persons who reside in other family dwellings of the same type in the same zone.” Keefe stated that this constitutes reverse discrimination against the homeowners, and that is where Council’s help is desperately needed to correct what obviously appears to be something going on with the Planning department staff who fail to see the issue that homeowners have the same rights as the operator. Keefe stated these operators are business people. They have three of these homes in Mountain View, they have two homes in this area, and they own a fast-food restaurant in Mountain View. Keefe stated he does not believe the law intended someone to create nursing homes by buying a bunch of homes and distributing their patients around to avoid scrutiny of the law. Keefe requested Council respond to the neighbor’s calls and emails, meet with the group, and visit the property.

Mayor Lee stated that staff is still doing research regarding the law on these issues, and staff will come back to Council with the research results regarding jurisdiction.

Keefe responded that he called the state today and there is no license for this facility to be an RCFE. Keefe indicated this issue has fallen through the cracks for over a month.

Mayor Lee stated that he will make sure the information Keefe provided gets to the city attorney. Any additional information Keefe may have will be forwarded to the Office of the City Attorney.

Keefe stated his only other concern was about fire codes, and that exterior doors are one of five options that California Fire Marshal has stipulated.

Councilmember Moylan asked Director of Community Development Hom if the City issued a permit for the work that was going on. Director of Community Development Hom responded that based on the research, a permit was issued a little over a month ago.

Councilmember Moylan clarified with City Attorney Kahn that it is not possible to revoke a permit once it has been issued and once construction has begun. City Attorney Kahn indicated that it is generally difficult to revoke a permit once it has been issued, but depending on the exact circumstances, it is not impossible. City Attorney Kahn stated that generally, once a permit has been issued, if it has been issued in accord with applicable local ordinances and state law, then unless there is some separate ground for revoking that, the permit generally cannot be revoked for a number of reasons.

Councilmember Moylan stated that this sounds like the Wright Avenue monster house all over again; once the permit went out, it was a done deal.

Keefe stated it is their contention that the permit was not issued according to the law; it violated the laws of the homeowners.

Councilmember Moylan indicated he was sympathetic and that Keefe should not hold his breath, but should keep doing what he is doing.

Councilmember Howe asked Director of Community Development Hom and City Attorney Kahn what an approximate time frame would be for the investigation.

Director of Community Development Hom stated that staff will contact the state to verify what type of license they are applying for and how the facility is classified. Director of Community Development Hom stated that the owners have not actually gotten approval of a license to operate the facility; what they represented is that they are proposing to operate a residential care facility.

Councilmember Howe asked if Director of Community Development Hom felt that their portion would be done in a week. Director of Community Development Hom stated that assuming they can get a hold of the state, staff should have a determination and clarification by the end of the week.

Councilmember Howe asked City Attorney Kahn if he had been personally involved in this situation to date. City Attorney Kahn indicated he had received copies of the e-mail from citizens and they are in the process of reviewing it. City Attorney Kahn also stated the issue is a complex one that involves state and federal statutes. City Attorney Kahn also stated he anticipated having something back to Council by the next Council meeting.

Mr. Keefe asked if a permit can be appealed.

Mayor Lee asked Director of Community Development Hom about the appeal process.

Director of Community Development Hom stated as previously mentioned since the building permit has been issued and the property is under construction, there is limited or no appeal abilities for building permit applications.

Councilmember Howe stated that Council will ask that the information they receive in one week be disseminated to the individuals who turned in speaker cards that night, unless the City Attorney indicates it is confidential.

Keefe asked if information can be included as to whether it is possible for the neighbors to go to the courts and have the court overturn this decision if it was based on an illegal act.

Councilmember Howe stated that in his opinion, the City Attorney is supposed to represent the Council and the City, and not necessarily the individual citizens. Councilmember Howe indicated he believed they would need to retain their own Council.

Keefe asked if this were an illegal act, who judges them for that.

Councilmember Howe indicated he did not know, but that he would suggest he ask that of his own attorney.

Dave Whittum stated that he went to the Mary Avenue over-crossing briefing given by Transportation and Traffic Manager Jack Witthaus. Whittum stated he thinks the public would like to know what alternatives are being considered for that project.

Whittum mentioned that a couple of his neighbors got tickets for parking near West Hendy, and he recently wrote Council a letter about it. Whittum had suggested Council consider a permit administered through the online permit system, which would provide an exemption to the seven-hour sign. Whittum thanked Council for any consideration they may give to this matter.

Whittum urged Council to find and allocate funds for a play area in Murphy Park. Whittum distributed a petition with 57 names to Council and explained that three people were opposed to the play set out of 57. Whittum stated he has obtained volunteer labor and has a good lead on a Class A contractor who may be willing to donate their time. Whittum explained that fundraising is a challenge and urged Council to allocate the funds to cover the capital cost of this small project, and allow community interest involvement in the real plan, the more challenging plan, which is the Murphy Park Master Plan.

Councilmember Swegles asked what can be done for $35,000.

Whittum indicated that for $35,000, there can be a tot’s play area with spring riders, something to climb on, a play structure, and a four-foot fence. Whittum stated volunteer labor could be used.

Councilmember Swegles stated that the next item on the agenda is to explore opportunities for contributions and sponsorships, and this may be a very good example of possibilities for the neighborhood.

Whittum stated that only half the people who signed the petition are an actually registered voter; that does not mean they do not care, it just means they are not citizens, but their kids will still enjoy the tot’s playground.

PUBLIC HEARINGS/GENERAL BUSINESS