Cupertino Facts

Author: Cupertino Facts

  • 2023-2031 Cupertino Housing Element Update

    2023-2031 Cupertino Housing Element Update

    On July 25, 2023, the Cupertino City Council received an update on the 6th Cycle Housing Element, 2023-2031. The Housing Element (HE) is one of 8 required elements of every California city or town’s General Plan. Whereas, the General Plan is a kind of long-term roadmap for all kinds of development in a jurisdiction, the Housing Element is  the roadmap strictly for housing development, and it is revised and updated multiple times within a single General Plan cycle.

    Possible Revisions to the Submitted Housing Element that Might Incline HCD to Approve It
    The California Department of Housing and Community Development (HCD) reviews the HE for compliance with current State laws and conducts its own analysis as to whether each jurisdiction has identified sufficient suitable new housing locations. As Cupertino learned from HCD’s comments to the HE Cupertino submitted in February 2023, certain revisions to the draft HE submission may increase the likelihood that HCD would view the HE favorably and grant approval. Hints included:
    • Rely less on pipeline (approved but not constructed) projects to satisfy to RHNA obligations
    • Choose sites that allow for maximum housing density due to the passage of recent State laws, for example 2022 AB 2011 “Affordable Housing and High Road Jobs Act of 2022” and recent revisions affecting 2006 AB 32/2008 SB 375 (both focused on reducing greenhouse gas emissions)
    • Lean into redevelopment of developed sites that are between 0.5 and 10 acres
    According to Cupertino Assistant Director of Community Development Luke Connolly, most of Cupertino is recognized by the State as an area of “Highest Resource with Access to Opportunity” because of its proximity to high paying jobs and high performing public schools. As a high opportunity community, the State assigns the City a greater share of the region’s housing development obligation than communities perceived to offer less economic and educational opportunity.

    For the 2023-2031 HE Cycle, Cupertino is required to identify 4,588 potential housing locations to accommodate its Regional Housing Need Allocation (RHNA) assignment. Additionally, 2017 SB 166 “No Net Loss” law mandates that jurisdictions must maintain adequate site inventory to accommodate their remaining unmet RHNA by each income category (very low, low, moderate, market rate) at all times. HCD recommends that each city allocate a “RHNA buffer” of an additional 25-30% of the total RHNA obligation, especially for homes for people with low or moderate incomes to ensure that the City would not be required to update its site inventory before the next HE cycle commences. 
    Cupertino, then, is expected to identify sites for the construction of 5,735 – 5,964 new homes (4,588 RHNA + 25-30% buffer). This equates to approximately 30% of its entire existing housing inventory, to be identified by 2024 and constructed within 8 years. 

    To note, the World Population Review reports Cupertino has a 2023 population of 55,326, a decline rate of -2.85% annually and -8.31% since the most recent census (60,343 in 2020). 

    Challenges with Cupertino’s Housing Requirements
    Like most high opportunity communities in the region, Cupertino is challenged to identify so many housing sites where most lots are already developed. What sites are vacant/available, close to transit (within 0.5 mile of a bus stop), and sized between 0.5 and 10 acres?

    HCD’s comments from the 7/25/2023 Council meeting point to opening up all eligible retail and commercial locations as sites for future housing. Cupertino’s current and dwindling retail and commercial corridors will most likely become candidate sites: Homestead Rd, Stevens Creek Blvd, De Anza Blvd, and to a lesser extent Foothill Blvd, Bubb Rd, Stelling Rd, and Bollinger Rd.


    Current retail & commercial along Stevens Creek Boulevard in Cupertino


    Cupertino must add 2,635 homes for individuals and families with very low, low, and moderate incomes. However, while the political pressure shifts to cities to approve more housing development, the State and federal government have removed themselves as providers and administrators for most affordable housing. Is it reasonable to expect that the private sector will build and maintain affordable housing, which is not lucrative, when current density bonus laws require developers set aside no more than 10-20% of new multi-family dwellings for people with incomes <50-120% of the area median?

    Under current development provisions, would Cupertino need to approve between 13,175 – 26,350 new homes to assure the construction of the 2,635 below market rate homes necessary for the community and to satisfy HCD’s requirements? What if a private property owner were to accept a housing entitlement, but then decide not to build? How does Cupertino satisfy its RHNA requirements when owners of entitled properties decide not to build, or decide to build later?

    There is Another Way

    Cities are often frustrated when they rely on the private sector and non-profit organizations to build and maintain a public good. Some cities are turning to land banks and community land trusts to meet the RHNA requirements to build the homes that people need today.

    The National Housing Policy Guide describes land banks and community land trusts:

    Land Banks
    “Land banks are created by local jurisdictions – usually as a public entity but occasionally as an independent nonprofit –to hold abandoned, vacant, and tax-delinquent properties for future development. Not only does this provide local jurisdictions with land for future development, it also reduces the number of “problem properties” in a community by creating a process for management and disposition. Land banks are a powerful tool for jurisdictions faced with problems from both the hot and cold ends of the housing market spectrum. In hot markets, land banks allow jurisdictions to make development decisions with less concern about the cost of land because they already have a portfolio of parcels ready for development. In cold markets, land banks reduce blight by acquiring abandoned and/or delinquent properties, clearing title, and then putting the properties back into productive use….”

    Community Land Trusts
    “Community land trusts (CLTs) are organizations that own land and develop it through an inclusive, community-based process. CLTs develop land according to the community’s needs, which can include anything from open space to a multifamily rental project. Most often, however, CLTs are created to provide affordable homeownership opportunities to low- and moderate-income households. The United States has around 200 community land trusts, and the model has become popular in the UK, as well.

    The CLT model is structured around a ground lease. The CLT owns land which is leased to households who purchase the homes that sit on CLT land. Removing the cost of land from the cost of purchasing the home provides a significant subsidy to the households. The ground lease limits the price at which the home can be resold, passing the subsidy on from one homeowner to the next. CLTs also often retain the right to repurchase the home in the case of foreclosure. CLTs are one form of shared equity homeownership.”

    Should Cupertino wait on for-profit developers, property owners, and investors to decide what and when to build, when the community needs safe, sustainable, and affordable housing today? Why not support local funding for the development of a Cupertino land bank for the specific purpose of public investment and retention of residential land for the sole purpose of providing long-term affordable for rent and for sale homes for people who need them?

    What’s Next
    Next steps for Cupertino’s HE include the publication of a revised Draft HE and public outreach for possible zoning changes. Sign-up to receive Housing Element updates from the City of Cupertino here: https://www.cupertino.org/our-city/departments/community-development/housing/housing-element



    Note*: The 5 Santa Clara County cities with higher RHNA numbers than Cupertino also report declining populations since 2020:

    Milpitas, 2023-2031 RHNA 6,713 new homes, has a 2023 population of 76,535, a decline rate of -1.61% annually and -4.76% since the most recent census (80,363 in 2020).

    Mountain View, 2023-2031 RHNA 11,135 new homes, has a 2023 population of 79,670, a decline rate of -1.14% annually and -3.38% since the most recent census (82,455 in 2020).

    Palo Alto, 2023-2031 RHNA 6,086 new homes, has a 2023 population of 63,210, a decline rate of -2.64% annually and -7.7% since the most recent census (68,486 in 2020).

    San Jose, 2023-2031 RHNA 62,200 new homes, has a 2023 population of 930,862, a decline rate of -2.71% annually and -7.92% since the most recent census (1,010,908 in 2020).

    Sunnyvale, 2023-2031 RHNA 11,966 new homes, has a 2023 population of 145,302, a decline rate of -2.31% annually and -6.77% since the most recent census (155,860 in 2020).


    References
    City of Cupertino. Video Recording of the 7/25/2023 Special Meeting of Council, Agenda Item 1: Study Session and Staff Presentation on the 6th Cycle Housing Element Update: https://cupertino.granicus.com/MediaPlayer.php?view_id=18&clip_id=3271. Accessed August 25, 2023.

    City of Cupertino. Slides, Staff Presentation on the 6th Cycle Housing Element Update, 7/25/2023: https://cupertino.legistar.com/gateway.aspx?M=F&ID=ca20968a-4c57-4836-8958-19d88309d090.pdf. Accessed August 25, 2023.

    City of Cupertino. Cupertino General Plan: Community Vision 2015-2040: https://www.cupertino.org/our-city/departments/community-development/planning/general-plan. Accessed August 25, 2023.

    World Population Review, Cupertino, CA: https://worldpopulationreview.com/us-cities/cupertino-ca-population. Accessed August 25, 2023.

    California Legislative Information. 2017 SB 166, “Residential density and affordability”: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB166. Accessed August 25, 2023.

    California Legislative Information. 2022 AB 2011, “Affordable Housing and High Road Jobs Act of 2022”: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2011. Accessed August 25, 2023.

    Institute for Local Government. 2022 AB 32/SB 375, “Understanding AB 32 and SB 375: A Legal Analysis for Local Government Officials”: https://www.ca-ilg.org/sites/main/files/file-attachments/resources__Sept_8_AB32-SB375_Webinar_Slides.pdf?1442270849. Accessed August 25, 2023.

    California Legislative Information. 2006 AB 32, Amended 2022, “Energy: general plan: building decarbonization requirements”: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB32. Accessed August 25, 2023.

    California Legislative Information. 2008 SB 375, “Transportation planning: travel demand models: sustainable communities strategy: environmental review”: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=200720080SB375. Accessed August 25, 2023.

    United States Census. “Urban vs Rural”: https://www.census.gov/programs-surveys/geography/guidance/geo-areas/urban-rural.html. Accessed August 25, 2023.

    National Housing Conference. Land Banks and Community Land Trusts: https://nhc.org/policy-guide/land-based-solutions/land-banks-and-community-land-trusts/. Accessed August 25, 2023.

  • Cupertino Council Majority Moves to Reduce Transparency into Lobbyist Activity

    At the July 6, 2023 City Council meeting, three Councilmembers (Wei, Fruen, and Mohan) approved first round changes weakening Cupertino’s lobbyist registration ordinance. The changes include a provision that allows lobbyists who are paid less than $5,000/quarter to avoid publicly disclosing their activity. Councilmembers Moore and Chao opposed the changes.

    Cupertino’s Lobbyist Ordinance: A Brief History

    In February 2021, the Cupertino Council enacted an ordinance that requires lobbyists to publicly disclose their activities. The term “lobbyist” included individuals, media, businesses, and select organizations that attempt to influence the government in exchange for paid compensation. This ordinance provides transparency to Cupertino residents around lobbying activity, and helps ensure that our city’s democratic processes are not unduly influenced by conflicts of interest. 

    In July 2022, the League of Women Voters Cupertino Sunnyvale (LWVCS) filed a lawsuit challenging Cupertino’s Lobbyist Registration Ordinance. “When this ordinance was passed, there was no dispute from the League of Women Voters regarding this,” stated Councilmember Kitty Moore during the July 6th, 2023 City Council meeting. “Instead, a lawsuit was filed sometime around July 2022. We’ve now spent over $47K on outside attorney fees, and that is not including the work in the city attorney’s office. In the future, when we have an ordinance, and it’s approved… it would be my preference that an organization/individuals come to the city attorney and council and make the case for why the ordinance needs to be changed.”

    In May 2023, the United States District Court – Northern District of California granted the City’s motion to dismiss the lawsuit. However, by 2023, two new council members that oppose the lobbyist ordinance (Sheila Mohan and JR Fruen) had replaced the former Councilmembers who helped create it (Darcy Paul and Jon Willey). Mayor Wei, a LWVCS officer until just before the League filed its lawsuit against the City, also pivoted her position to oppose the lobbyist ordinance.

    New Council Moves to Limit Lobbyist Ordinance

    The new Council approved first round changes that reduce transparency around lobbyist activity. (Wei, Mohan, and Fruen voted YES; Chao and Moore voted NO) This means:

    • Expenditure Lobbyists will no longer be required to publicly disclose their activity (Expenditure lobbyists are defined as entities who pay others to lobby the City or elected officials on behalf of a position).

    • Media will no longer be required to disclose lobbying activity, regardless of who funds the media activity (Media includes newspapers, newsletters, a radio or television, and Internet publications)

    • Nonprofit and member benefit organizations will no longer be required to disclose their lobbying activity, regardless of who funds the nonprofit organizations.

    • Any lobbyist paid less than $5,000 per calendar quarter will not be required to register as such with the City of Cupertino.

    A Comparison of Local Lobbyist Ordinances

    One justification that staff made for the changes was to bring Cupertino’s lobbying ordinance in line with other local cities, counties, or the state. However, the lobbying ordinances in cities and counties closest to us are actually consistent with Cupertino’s current ordinance. For example, both Santa Clara County’s and San Jose’s lobbyist payment thresholds are $1,000 per consecutive three month period or $5,000 per year for expenditure lobbyists. In-house lobbyists who lobby for 10 hours or more in a consecutive 12-month period must also register.

    During the July 6th meeting, Councilmember Chao disagreed with the usage of the State of California, with its population of 39 million people (via 2022 U.S. Census Bureau estimates), as a benchmark for the City of Cupertino. “For the entire state of California, the limit is $5,000 per quarter. For a tiny city of Cupertino, if the limit is $5,000 per period, I don’t think anyone would ever qualify,” stated Chao. 

    A Loss of Transparency in Cupertino

    The U.S. District Court upholds the 2021 lobbyist registration ordinance, dismissing a lawsuit filed against it by the League of Women Voters Cupertino Sunnyvale. However, the City chooses to disregard the Court’s ruling, and dismantle the ordinance by adding exemptions and raising threshold reporting amounts. 

    From 2021 to 2023, the Cupertino City Council has shifted in sentiment from favoring transparency to shielding lobbyists more than the rest of the county. Failure to provide real accountability, and instead focusing only on partisan political mediocrity, further sacrifices quality governance at the expense of undisclosed pandering.

    To note, Cupertino Facts does not pay any writers, and is driven 100% by the volunteer efforts of Cupertino residents.

    The lobbyist registration ordinance will be discussed by Council again in September 2023.


  • Memorial Park Updates: Renovation, Timeline, and What to Expect Next

    Memorial Park Updates: Renovation, Timeline, and What to Expect Next

    After a year of research and community outreach, plans for a revitalized Memorial Park are moving closer to completion. The new design will provide recreational opportunities for all ages and abilities, improve upon dated facilities, and increase connectivity with more bikeways and walkways.

    What’s Changing

    Many of the park’s new features will occupy space that is currently not in use. The plan would turn many areas of empty lawn or plants into a multi-age playground and nature play area, additional picnic areas, upgraded bathrooms, a passive garden walk, and a bocce court. It would also include more bike paths and walkways throughout the park.

    What’s Staying the Same

    Some of the park’s most prominent features will remain unchanged. These include the Veteran’s Memorial, tennis courts, main event lawn, amphitheater and stage (with upgrades), gazebo picnic area, and Quinlan Community Center & Senior Center.


    Source: Memorial Park Preferred Draft Concept, Presented 6/21/23

    Next Steps

    In order to move forward, the Cupertino City Council must approve the final Memorial Park plan. While most of the park plan put forth by city staff appears to have council support, one controversial feature generated much debate during the June 21st City Council meeting: the proposed elimination of the softball field. 

    Reasons for keeping the softball field:

    1. High usage from at least 16 teams per week, including the Cupertino Girls Softball League and senior groups

    2. Desirability of Memorial Park softball facilities versus neighboring fields (has lighting for nighttime games, a larger size appropriate for adult slow-pitch softball, and home run fencing)

    3. Positive revenue impact for Cupertino from players who frequent its businesses before and after games, and pay fees to the City

    4. Cost savings for Cupertino due to reduced scope of construction

    Source: EngageCupertino.org

    Reasons for eliminating the softball field: 

    1. Community feedback. In the initial survey, respondents ranked the softball field as their least favorite feature of the park. However, via public comments during the June 21st council meeting, residents argued that not enough people had taken the survey to make it representative, and that the nature of the survey questions was flawed.

    2. Freeing up space for other features, such as basketball and pickleball courts

    After hearing public comments, the Council voted to have staff present a schematic plan including the softball field. Councilmember Kitty Moore suggested piloting a DOLA in the current softball field, since it is already unofficially frequented by many dog owners. This would help address the need for a DOLA in Memorial Park, and ensure it is kept in the final park plan even if the softball field is kept. Others suggested having fewer new parking spaces or decreasing event lawn space (formerly the drained ponds) in order to make way for the basketball and pickleball courts.

    When can we expect Memorial Park renovations to begin?

    During the June 21st meeting, City Manager Pamela Wu stated that we can expect construction to begin “as early as two years from today”. This would mean mid- to late 2025. However, significant changes to the plan would result in delays. The revised schematic plan is expected to be presented in a December 2023 or January 2024 City Council meeting. 

    How much will the Memorial Park renovations cost?

    While cost estimates have not been provided, one should expect such a large-scale renovation to cost significantly more than the Jollyman Park playground renovation, which will cost about $5M for a much smaller footprint. The only portion of the project that has been funded is the design phase, with a $650,000 budget. Given that Cupertino is currently in a budget deficit and is cutting events and services, it remains to be seen how the city will fund such a large-scale park reconstruction. 

    “The City is facing a very tight budget now, so I hope that staff can come back with a more economical version of the plan,” stated Council Member Liang Chao during the June 21st meeting. “This has been done before. Usually in the first round, people propose a lot of ideas, and it’s very costly. Then usually we will come back with a more realistic and economical plan. That has happened for the Stevens Creek Corridor before, that has happened with the City Hall.”

    Chao also questioned whether such a large-scale reconstruction was necessary. “We tried to pack in a lot of stuff in the proposed plan, but we don’t have just one park, we have many parks. Many of these nice features, even if they don’t get implemented in Memorial Park, they can get implemented in other parks in the city,” said Chao. For example, instead of replacing the highly-demanded softball field with basketball courts, residents could use the brand new basketball courts at Wilson Park.

    “We spent $1.7M filling in the ponds and replacing them with grass,” said Chao during the meeting. “We should be in no rush to make a decision.”

    Learn more about the Memorial Park specific plan here.

  • Simple Explanation of RHNA and Housing Mandates

    By Amy Kalish
    Marin Post & Citizen Marin

    https://marinpost.org/blog/2023/6/10/rhna-and-housing-mandates-made-easy

    WHAT IS RHNA?

    RHNA is the Regional Housing Needs Assessment — the number of housing units (a place for at least one person to live) assigned to an area by the state. This happens in eight-year housing cycles, and the allocation numbers are determined by the California Department of Housing and Community Development (HCD).

    WHERE DOES IT COME FROM?

    The total number is supposed to represent California’s current and projected housing needs over the next eight years. This is the 6th RHNA cycle, covering 2023-2031. The HCD says California is short 2.5 million housing units. (Walked back from Governor Newsom’s unsubstantiated campaign assertion of 3.5 million). The numbers have been questioned. 

    Note from Cupertino Facts: In the 6th Cycle Housing Element update (2023-2031), Cupertino must plan for 4,588 new housing units.

    DID RHNA FAIL AN AUDIT?

    Yes. The 2.5-million-unit requirement was not in line with projected population growth even before the pandemic. An emergency state audit was requested. The result of the audit: The California State Auditor found that the numbers were not reliable or reproducible, and the methodology was opaque. All documentation is available at citizenmarin.org on the AUDIT page. The audit result was ignored by HCD, and the 2.5 million wasn’t adjusted. It was chunked out into regions. Ours — the Bay Area — was assigned 441,000 new units to be distributed over each city and the unincorporated area.

    IS THIS HOUSING CYCLE DIFFERENT?

    Yes. The 6th cycle is NOT like other cycles. The numbers are huge. For example, Marin County’s total RHNA went from 2,298 (5th Cycle) to 14,405 (6th Cycle). 

    DID CITIES APPEAL?

    Yes. Cities were shocked by the huge rise in their RHNA, and many across the state appealed based on “changed conditions” including drought, fire, lack of evacuation access, flood zones and other hazards, infrastructure issues, lack of buildable land, environmental concerns, etc. All appeals were denied without comment. 

    WHAT IS A HOUSING ELEMENT?

    Each locality, by law, must create a Housing Element plan and document showing where the RHNA units can be accommodated and submit it to the state for approval. In the past, these reports were not too difficult to create and were done by in-house staff. This cycle, the numbers were so overwhelming, and the Housing Element added so many new required reports, that cities had to hire consultants to write them. This has been taking time and energy away from our city governments for a couple of years now.

    WHO BUILDS THE HOUSING?

    Except for a few affordable projects that are built on donated city/county land with a small amount of grant money made available, the state expects private, for-profit developers to build the housing. Market-rate (luxury) housing has greater profit margins, so developers’ interests are focused there, and not on affordable housing. They add the fewest number of below market rate units as possible to each project. This creates an explosion in expensive units, not the affordable housing that is actually needed.

    WHY SO MANY NEW HOUSING LAWS?

    The state declared a housing crisis in 2018. Cities were blamed for lack of affordable housing and for not producing enough housing, even though cities do not build. The state ended its redevelopment agency programs in 2012. So, the legislature passed new laws to speed up approvals for multi-family developments by forcing local authorities to rezone for greater density, and approve projects swiftly, often without public input or environmental review.

    The three things that are literally demonized by the state as holding up construction are zoning, CEQA, and public input. (Those are also called city planning, the environment, and local voice/democracy.) Some of these have sometimes slowed the process, but more often produce community/developer/city compromise.

    ARE THERE PENALTIES FOR CITIES?

    New laws speed up approvals for multi-family developments by forcing local authorities to rezone for density, and approve projects swiftly, without CEQA or public input. Attorney General Bonta’s office has a special housing Strike Force to strictly enforce new laws and policies. Besides fines, most punishments are designed to give developers more power, and cities less. Fines can bankrupt cities, put them into receivership, and require cities to cede all zoning control to the state.

    The state can then decide which public lands will be donated or sold for housing projects. Private lawsuits have been brought against cities “not complying fast enough.” the Housing Accountability Act, Builder’s Remedy, and by-right development are all looming punishments based on annual HCD reviews.

    DOES THIS CREATE LOW INCOME HOUSING?

    The laws are sold that way, but what they mostly do is create luxury and market-rate housing along with a very few less expensive units for low-income households. Since developers typically lose money on the low-income units, many of these new laws offer density bonuses and other incentives to developers to add 10-20% of “affordable” units in their projects. This is supposed to “trickle down” and result in lower rents and housing costs.

    DOESN’T THAT JUST RESULT IN MORE EXPENSIVE HOMES?

    Yes. RHNA is broken into categories, each of which needs to be fulfilled exactly, or the locality is declared out of compliance and is subject to streamlining and ministerially approved projects, which further restricts any ability to regulate development.

    IS THE CITY DONE WHEN THE RHNA NUMBER IS BUILT?

    No. In a better system it might be, but RHNA is divided into four major income categories, and each must be met exactly. The laws make it advantageous to developers to add the minimum (10-20%) affordable units, no matter how large the project is. Making RHNA requires many more units.

    DOES THE CITY GET CREDIT ONCE THEY APPROVE THE UNITS?

    No. The state doesn’t measure success by entitlement (approval) of projects, but by the numbers of permits pulled and housing units completed. Once they’ve entitled a project, the city has done its job and rest is out of their control. They cannot compel development. Cities do not build, developers build, but the penalties to cities are based on developer performance.

    There are many reasons approved projects never begin — or start and stall: High costs and scarcity of labor and supplies, high interest rates, and inability to get fire insurance are among them. The state has not let these or any other factors reduce or excuse the RHNA. California’s largest property insurers have halted new home policies due to wildfire risk, rising costs. There has been no acknowledgement that this will affect RHNA.

    IN SUMMARY:

    The state has shifted power away from local governments and given it to for-profit developers who are incentivized to prioritize multi-family developments that are 80-90% market rate, regardless of the effects on communities. Because state laws encourage a low percentage of affordable units per project, not in line with RHNA percentages, much more market-rate housing is built than moderate, low, or extra-low units.

    Working from an incorrect assumption about need and growth creates problems. There are shortages of “affordable” housing throughout the state, but there is no crisis regarding luxury homes, and until the state decouples housing mandates from private, for-profit development, we’re going to see a surge in production in the wrong direction.

    Note: This is an excerpt from the full article published to Marin Post. Please visit their site for additional resources and information regarding RHNA.


  • Santa Clara District Attorney Finds No Evidence of Council Member Interference with Staffing Decisions

    Santa Clara District Attorney Finds No Evidence of Council Member Interference with Staffing Decisions

    The Santa Clara Office of the District Attorney has found no evidence for a referral accusing current and former Cupertino City Council Members of interfering with staff hiring and firing decisions. 

    Council Members Kitty Moore and Liang Chao prepare for council meetings by reading the materials and asking questions. They have been accused by the new Council majority of exercising improper conduct in their interactions with current and previous Cupertino City Managers. The DA’s letter confirms that the accusations of criminal conduct are baseless, and it similarly affirms that the insinuations against former Mayor Darcy Paul have “no evidence, documentary or otherwise” to support them.

    The District Attorney refutes Hung Wei’s accusations against her fellow Council Members Kitty Moore and Liang Chao, sent via email to the public on May 21st, 2023.

    “There is no evidence, documentary or otherwise, that any former or current Council Member attempted to influence any of the City Managers in their hiring or firing decisions,” states Deputy District Attorney John Chase in a letter to Cupertino City Attorney Chris Jensen.


    Below is the full letter:


  • What is Art? Jollyman Park Playground Remodel Ignites Debate

    What is Art? Jollyman Park Playground Remodel Ignites Debate

    Background: The Jollyman Park All-Inclusive Playground (AIPG) project is expected to be completed by June 2024, and is fully funded. Via the city’s website, residents can expect to enjoy “supportive play theories and practices to appeal to people of all ages and abilities.” 

    Jollyman Park
    Jollyman Park Playground 2023, Pre-Renovation

    The playground is designed by MIG, a local firm specializing in inclusive play that has also designed imaginative new playgrounds in San Jose’s Children’s Discovery Museum and Emma Prusch Farm Park. The budget for Jollyman Park’s new playground was $4.5M.

    Council Decision Sparks Debate
    During the May 2    nd City Council meeting, Item 8, the City Council approved moving all $338,146.86 in the Art In-Lieu Fee fund into the Jollyman Park AIPG project fund. This would bring the park’s total budget to $4.9M.

    The decision fueled questions over both the cost and definition of “artwork” under our Municipal Code 19.148.030 and .040. The proposal would have designated playground elements like viewing binoculars, a scavenger hunt, or multilingual tactile signs as art. Several residents raised doubts over whether these elements are unique, original, and promote artists.


    City Responds With Reduced Art Proposal
    The staff presented a modified proposal for Jollyman Park artwork to the Arts and Culture Commission on May 22nd. It consisted of 3 pieces, eliminating some of the more controversial items previously proposed at the City Council meeting. The commission gave guidance to staff to design the items to allow more simultaneous users, and include artists from the Bay Area if possible.

    The staff will return for commission approval when designs are completed and they hope to have remaining funds which could be returned to the Art In-Lieu Fund. In addition, the commission requested that a policy procedure be developed to address the use of these funds as soon as possible.


    What is the Art-in-Lieu Fund?

    In 2009, the city passed an ordinance that required any large (10,000 sq. ft. or larger) new public or private development or remodel to include artwork on their property.  The intent was to “enhance community character and identity,” provide the public with attractive art and “stimulate opportunities for the arts through cooperative relations between local business and the City.”  If a project, for some reason, cannot provide the artwork, they are required to pay 1.25% of the construction value into the Art In-Lieu Fund. However, this option has been strongly discouraged.  If they do provide the artwork, the minimum artwork value is reduced to 0.9-1.0% of the construction valuation.


    Since 2009, there have been many projects required to provide artwork on their properties.  Some of these projects you may be familiar with such as the Apple 2 Headquarters, Main Street, Westport Union, Marina Plaza and Public Storage.  Usually, the artwork appears close to or after project completion.  In fact, the Apple 2 artwork, a sculpture entitled “Mirage” is being installed now in the olive orchard of the Apple 2 Visitors Center (see plans here).  The Target Remodel has yet to install their artwork (see plans here).  


    Public Storage is the only project since 2009 to pay the art in-lieu fee rather than provide artwork.  They made their required payment of $338,146.86 about 1.5 years ago.  

    The Jollyman Park AIPG artwork proposal originally intended to use the entire $338,146.38 for the following interactive elements:

    • Decorative sun kaleidoscope feature

    • Interactive Musical Bench

    • Nature-related art, such as a bird-watching scavenger hunt, viewing binoculars, ad colorful peeking windows

    • Multilingual Tactile Sign

    • Stair Mural

    Now, the funding will be limited to three pieces of art. Examples of these proposed elements can be seen here.

    Issues brought up during the discussion were:

    • All these items must be considered “artwork” under our Municipal Code 19.148.030 and .040. Artwork is supposed to promote artists, be unique and original

    • Distributing the funds across multiple parks or locations was not considered

    • The playground’s total budget will now be nearly $5M

    References

    May 2, 2023 City Council Meeting Agenda Item 8:  Staff Report and Attachments

    https://cupertino.legistar.com/LegislationDetail.aspx?ID=6180931&GUID=F55E1791-D0F4-4E9E-AB6C-E401784EE15C

    Cupertino Municipal Code Section 19.148:  Required Artwork in Public and Private Developments

    https://codelibrary.amlegal.com/codes/cupertino/latest/cupertino_ca/0-0-0-95948

    This muni code contains the following aspects of the artwork required:

    Section 19.148.010  Purpose and Intent

    Section 19.148.020  Applicability of Regulations

    Section 19.148.030  Permitted Artwork

    Section 19.148.040  Ineligible Artwork

    Section 19.148.050  Application Procedures for Public Artwork

    Section 19.148.060  Design Criteria and Artist Qualifications

    Section 19.148.070  Minimum Artwork Value

    Section 19.148.080  Maintenance Requirements

    Section 19.148.090  In Lieu Payment for Artwork is Discouraged

    Apple 2 Headquarts Artwork

    Explanation of what the artwork represents

    https://www.cupertino.org/our-city/departments/community-development/planning/major-projects/apple-park/mirage/-fsiteid-1)


  • May 13th Newsletter: Cupertino’s Resources Spent Scrutinizing a Prior Council’s Actions, and the Latest Budget Updates

     

    This month, we continue the ongoing coverage of Cupertino’s budget shortfall. This is a critical time as the City evaluates where to cut expenses, from community services to road maintenance. Your input is key – details below.


    But as Cupertino’s financial situation worsens, several Council Members have instead chosen to prioritize their time (and public resources) scrutinizing the actions of a former City Council. 

     

    While the role of a Council Member varies by city, according to the National League of Cities, “Councilmembers are responsible for and responsive to the citizens who elected them.” 

     

    And so, we ask: What are our needs, as Cupertino citizens? Are the priorities of each Council Member aligned with them?
     

    Cupertino Budget Shortfall News and Upcoming Meetings

    Once again, Bloomberg news had the scoop on Cupertino’s budget woes prior to announcements by the City. Their first article explains how Cupertino is at risk of losing its share of tax revenue from online sales of Apple products in California. Their latest article announces that Cupertino plans to appeal the change, and that Apple must fund the cost of the appeal. 
    Cupertino Apple Store

    The State audit can go as far back as the second quarter of 2021, which implies that Cupertino could owe the State up to approximately $40M in sales tax revenue. This is far above the anticipated 30% drop in overall City revenue. 


    In spite of City Staff’s knowledge of this audit and its consequences since December 2021, there were no proposals to reduce or eliminate expenditures until 2023. For example, although our City’s cost for the Jollyman playground has nearly doubled, on May 2, 2023, its budget was again increased by 16%. Including grants, the new playground is pegged at nearly $5M. The new City budget, published on May 5, includes expensive studies for new projects that are unlikely to come to fruition given our budget outlook.
     
    Here’s how you can participate in the budget decisions, and share input on which Cupertino services to keep or cut:

     

    1. Take the 2023 Community Budget Survey by May 16. Although the survey is open until May 31, survey results will be presented on May 17th.

    • The survey includes a question about selling assets. These are assets purchased through prior ballot tax measures:
    • Water rights, which were purchased through a bond measure in 1960, to San Jose Water, a subsidiary of a publicly-traded company
    • Blackberry Farm Golf Course, which was purchased to preserve as open space through a bond measure funded by the Utility Users Tax (UUT) in 1990
    • At the end of the survey, you can provide written comments. Draft your own response to express budget concerns or priorities that are not addressed elsewhere in the survey.

    2. Write to City Council as follows:
        TO: citycouncil@cupertino.org, cityclerk@cupertino.org
        SUBJECT: City Council 5/17/2023, Written Communication, City Budget, Agenda Item 1

    3. Meet with your City Council members

    4. Attend the May 17 City Budget Meeting in-person or via zoom at 5PM. 

    5. Attend the May 18 Budget Town Hall Meeting in-person or via zoom at 6:30PM 

    6. Sign up to receive meeting reminders at the City website 
     

    Civil Grand Jury Case Consumes Public Resources Scrutinizing Prior Council’s Actions

    BACKGROUND: From 2018-2022, resident-focused Council Members held a 4-1 majority in Cupertino, ensuring that our local government served the needs and interests of residents first. These Council Members pushed back against those who came to Cupertino intent on maximizing profit with little regard for how their actions impact the people who live here.


    During 2018-2022, the Council worked with City staff to accomplish significant achievements for the benefit of Cupertino residents, including:

    Despite efforts to elect 3 resident-focused Council Members in 2022, campaigns backing financial interest candidates were significantly better-funded. Council Member Liang Chao was re-elected, but financial interest candidates prevailed in 2022 and, for now, hold a 3-2 Council majority in Cupertino.


    Resident-focused Council Members Liang Chao and Kitty Moore continue to work hard to advocate for fiscal accountability, transparency, environmental protection, sensible development, and improved transit and City services for residents. They continue these efforts in spite of a work environment made hostile by a Council majority that resents sharing the dais with Council members whose legislative priorities and support base differs from their own. Unlike today’s Council majority, Council Members Chao and Moore neither sought nor received campaign support from financial interests: not from real estate interests, corporations, nor labor unions.


    CIVIL GRAND JURY REPORT: In 2022, an anonymous individual submitted a complaint to the Civil Grand Jury, Santa Clara County alleging that resident-focused Council Members asked too many questions, wrote too many email messages to staff, made certain staff members “feel threatened”–not to be confused with  threatening staff, which they did not do–, and filed public records requests (a right protected by State Law for all persons, including elected officials, under Code § 7921).


    MAY 9TH CITY COUNCIL RESPONSE: Council Member Chao questioned which specific Cupertino Municipal Codes she allegedly violated. None were cited by number in either the Civil Grand Jury Report or the City-funded investigation summary. She also cited specific Municipal Code sections which did appear to codify the right of Council Members to ask questions of staff. The City Attorney did not answer Chao’s question. Instead, he asserted that the problem rested with her perceived “volume and tone of voice,” presumably when engaging with staff.


    Then, Council Member Fruen initiated a motion to remove Council Members Moore and Chao from their committee assignments. The motion was approved by Mayor Wei and Vice Mayor Mohan.


    It is questionable whether 3 Council Members will adequately represent Cupertino residents on the many City, district, County, and regional boards and committees without Council Members Moore and Chao. 


    In 4-5 months, Council will revisit the Civil Grand Jury report and reconsider the political consequences the Council majority has imposed on their colleagues. What will have changed?

    For further detail:

  • Civil Grand Jury Case Consumes Public Resources Scrutinizing Prior Council’s Actions

    From 2018-2022, resident-focused Council Members held a 4-1 majority in Cupertino, ensuring that our local government served the needs and interests of residents first. These Council Members pushed back against those who came to Cupertino intent on maximizing profit with little regard for how their actions impact the people who live here.

    During 2018-2022, the Council worked with City staff to accomplish significant achievements for the benefit of Cupertino residents, including:

    Despite efforts to elect 3 resident-focused Council Members in 2022, campaigns backing financial interest candidates were significantly better funded. Council Member Liang Chao was re-elected, but financial interest candidates prevailed in 2022 and, for now, hold a 3-2 Council majority in Cupertino.

    Resident-focused Council Members Liang Chao and Kitty Moore continue to work hard to advocate for fiscal accountability, transparency, environmental protection, sensible development, and improved transit and City services for residents. They continue these efforts in spite of a work environment made hostile by a Mayor and majority Council who resent sharing the dais with Council members whose legislative priorities and base of support differ from their own. Unlike today’s Council majority, Council Members Chao and Moore neither sought nor received campaign support from financial interests: not from real estate interests, corporations, nor labor unions.

    In 2022, an anonymous individual submitted a complaint to the Civil Grand Jury, Santa Clara County alleging that resident-focused Council Members asked too many questions, wrote too many email messages to staff, made certain staff members “feel threatened”–not to be confused with  threatening staff, which they did not do–, and filed public records requests (a right that is protected by State Law for all persons, including elected officials, under Government Code § 7921).

    Here is the timeline of events that have followed since the complaint was filed, as summarized in the City Attorney’s presentation delivered to Council on 5/9/2023:

    Dec. 19 – Santa Clara County Civil Grand Jury Report released

    Feb. 21 – City Council approves response to Grand Jury Report and directs [the Office of the City Attorney] to conduct investigation

    May 2 – City Council votes to waive privilege over independent investigation report

    May 9 – Public discussion of investigation report

    On 5/9/2023, Council Members Moore and Chao read statements and recused themselves before Council deliberations began, identifying in their comments why they would not participate in a process that exposed them to possible financial and legal consequences. Under the Civil Grand Jury procedure, those accused can neither face their accusers nor review the evidence that the Civil Grand Jury considered to render its decision.

    Council Member Chao also questioned the attorneys present about which Cupertino Municipal Codes specifically that she allegedly violated, as none were cited by section number in either the Civil Grand Jury Report nor in the City-funded investigation summary, the Fact Finding Report. The City Attorney either could not or chose not to answer Council Member Chao’s question directly. Instead, he asserted that the problem rested with the accused Council Members’ perceived “volume and tone of voice,” presumably when asking questions or engaging with staff.

    Council Member Chao cited specific Municipal Code sections which did appear to codify the right of Council Members to ask questions of staff. The Municipal Code also appears to protect staff from overtly burdensome requests from individual Council Members, directing staff to refer the Council Member to the City Manager if questions were to require significant research or communication time. Regrettably, the exchange with the City Attorney resolved with the City Attorney accusing Council Member Chao of “distorting the Municipal Code,” and Council Member Chao asserting that she still does not know which sections of the Municipal Code she is alleged to have violated as none are cited by number in the reports.

    Then, the special interest council majority led by Council Member Fruen voted to remove Council Members Moore and Chao from their committee assignments. 

    It is questionable whether 3 Council Members will adequately represent Cupertino residents on the many City, district, County, and regional boards and committees without assistance from Council Members Moore and Chao. 

    In 4 or 5 months, Council will again revisit the Civil Grand Jury report and reconsider the political consequences the Council majority has imposed on their colleagues. What will have changed?

    For further detail:

  • Public comment, 5/9 meeting: former Cupertino Mayor Darcy Paul

    Public comment, 5/9 meeting: former Cupertino Mayor Darcy Paul

     

  • Statement of recusal, 5/9/23 meeting: Council Member Moore

    Statement of recusal, 5/9/23 meeting: Council Member Moore