1 CALL TO ORDER AND ROLL CALL

MINUTES OF THE CITY COUNCIL

SAN JOSE, CALIFORNIA TUESDAY, DECEMBER 7, 1999

The Council of the City of San Jose convened in adjourned regular session at 7:25 p.m. in City Council Chambers at City Hall for the 1999 General Plan Annual Review.

Present: Council Members - Chavez, Dando, Diaz, Diquisto, Fiscalini, LeZotte, Matthews, Powers, Shirakawa, Jr., Woody; Gonzales.

Absent: Council Members - None.

Mayor Gonzales stated documents relating to the 1999 Annual Review of the General Plan are available for inspection at the Press Table in the Council Chambers, explained the process for the public to address the Council, and stated that Council actions taken are considered tentative pending final adoption of the 1999 General Plan Amendments at the conclusion of tonight’s meeting.

ITEMS FOR DISCUSSION

District 10

The Appeal of the Environmental Impact Report for GP98-10-1 and consideration of the General Plan Amendment requested for Item GP98-10-1 were heard together:

3C(1)(a)/GP98-10-1: Appeal of an Environmental Impact Report for a General Plan Amendment to change the Land Use/Transportation Diagram for property located on the east side of Harry Road, north of Arroyo Calero Creek from Private Open Space to Low Density Residential (5 DU/AC) on 36.5 acres. Staff recommends upholding Planning Commission certification of EIR.

3C(1)(b)/GP98-10-1: General Plan Amendment to change the Land Use/Transportation Diagram for property located on the east side of Harry Road, north of Arroyo Calero Creek from Private Open Space to Low Density Residential (5 DU/AC) on 36.5 acres. CEQA: Environmental Impact Report. Staff recommends No Change to the General Plan. Planning Commission recommends No Change to the General Plan.

Documents filed: (1) Memorandum from Council Member Dando, dated December 3, 1999, recommending Council: (a) Deny General Plan amendment 98-10-1 which would change 36.5 acres located at Harry Road and Arroyo Calero Creek from Private Open Space to Low Density Residential (5 DU/AC); (b) Direct Staff to work with IBM and open space organizations to pursue a legally binding agreement that will permanently protect the 540 acres of open space surrounding the Almaden Research Center, and (c) Direct Staff to develop a process for establishing open space easements or covenants, where appropriate, on lands that are understood to be permanent private open space. (2) Memorandum from Director of Planning, Building and Code Enforcement, James R. Derryberry, dated December 2, 1999, recommending Council uphold the certification by the Planning Commission of the Environmental Impact Report for the Harry Road Residential Development, finding it adequate and complete under the California Environmental Quality Act. (3) Memorandum from the Planning Commission, dated November 29, 1999, recommending No Change in the General Plan on the requested amendment on 36.5 acres located on the east side of Harry Road north of Arroyo Calero Creek from Private Open Space to Low Density Residential (5 DU/AC). (4) Petitions with approximately 1,250 signatures of San José residents opposed to the General Plan amendment, collected by The Almaden Preservation Committee. (5) Communications sent by E-mail from approximately sixty residents opposing the General Plan amendment.

Discussion/Action: Director of Planning, Building and Code Enforcement James Derryberry stated the Environmental Impact Report (EIR) found a number of significant adverse impacts that were not mitigated with the proposed change in land use, therefore, Staff believes the EIR fully discloses all of the environmental impacts if the project were to go forward and Staff recommends Council deny the appeal and uphold the Planning Commission’s certification of the EIR as complete and in compliance with the California Environmental Quality Act. Regarding the proposed amendment, he stated the request is to change the land use designation from Private Open Space to Low Density Residential (5 DU/AC) on approximately 36 acres which is a portion of the IBM Property that is within the City’s urban service area. He stated Staff believes the amendment goes against a decision made by a previous City Council to preserve the site and all of the remaining site in the IBM laboratory in permanent open space, which is consistent with the current zoning of Private Open space, and the Planning Commission and Planning Director strongly recommend No Change in the General Plan and retention of the site as open space. Charles Davidson, one of the developers of the property, stated the request to develop 17.4 acres of a 36 acre site, a flat parcel which would yield 49 lots, with 21 acres going to creek and riparian corridor, is consistent with the City’s policy of allowing development inside urban service areas where the slope is less than 15% percent. He stated the parcel is separate from the parcel in which the IBM facility is located and one, which IBM had to purchase in order to have an entry road to their property. He maintained the parcel’s General Plan designation of private open space is the same as other parcels, which Council has permitted to be developed. He stated the original EIR did not preclude the possibility of other options in the long term for the 540 acres designated as private open space. He disagreed that IBM had promised the site as permanent open space and questioned the use of the term “permanent open space” in reference to the General Plan. He stated IBM has agreed to grant over 500 acres in an easement to the City for private open space if the request is approved and the Planned Development rezoning could be conditioned in such a way that no subdivision map could be recorded until IBM has recorded an easement to the City of San José. He stated the confusion over the issue centers on the assumption that the hill portion, which is over 15% slope, would remain private open space based on the City’s 15% grade policy. However, he noted that assumption applies to the hill portion and is not applicable to the subject parcel, which is flat land. Based on the shortage of housing and available land in San José, he requested Council approve the amendment. The following individuals spoke in opposition to the proposed amendment: John Mariani; Robert Boydston, Almaden Valley Community Association Board Member; Mike Knefaty; Jillian Rebecca Bruhn; Courtney Ann Klosterman; Diane L. Smith, Almaden Valley Community Association and Almaden Preservation Committee; Hunt Turner, Almaden Preservation Committee; Craig K. Breon, Santa Clara Valley Audubon Society; Lynne Montalbo; Christopher Mossing; Brian Drygas; Rich Bernardi, Guadalupe-Coyote Resource Conservation District; Lee Demit; Glenn Mooty; Robert Hughes; Carl Raud; George Bettisworth, President, Almaden Valley Community Association; Dennis Mulvihill and Bahram Fatemi. The applicant, Charles Davidson, gave a rebuttal to comments made by the speakers. Council Member Dando stated the debate over this General Plan amendment does not revolve around the merits of the proposed project but whether or not it is appropriate to allow housing on the site in light of a clear expectation of the community, City staff, the Planning Commission, and the City Council of twenty years ago that the 36 acres in question would remain permanent open space. She stated former Mayor Janet Gray Hayes and Council Member Jerry Estruth have confirmed what the public records clearly show, i.e., that the preservation of 540 acres of “permanent” open space was a condition that the public and the City demanded in exchange for approval for IBM to build the Almaden Research Center. She stated IBM’s promise to the community and to the City is well documented and well remembered by everyone involved at the time and the public record repeatedly contains IBM’s intent to preserve the 540 acres as open space. She stated by denying the General Plan amendment Council will protect the integrity of the public process and maintain the public’s trust. Council Member Dando moved to uphold the Planning Commission’s certification of the EIR, finding it adequate and complete under the California Environmental Quality Act, and approval of the recommendations in her memorandum dated December 3,1999 to deny GP98-10-1 and direct Staff to pursue a legally binding agreement to permanently protect the 540 acres of open space surrounding the Almaden Research Center and to develop a process for establishing open space easements or covenants as permanent private open space. Council Member Matthews seconded the motion. Vice Mayor Fiscalini stated it is unfortunate Council finds itself in this situation and stressed the importance of finding ways to memorialize and document legally such agreements to avoid future Councils from having to resolve this type of issue. City Attorney Gallo stated she attempted in the past to find a legislative process to make such agreements into permanent commitments and that easements and covenants can be used when they can be legally imposed. She stated this issue is a good reminder that regardless of the intentions of an applicant, things can change over time, and an issue such as this is the result. She advised that Council has no obligation to change the City’s General Plan and is free to deny the amendment even in the absence of a legally binding agreement. Council Member Diaz stated he will support the motion although he shares Vice Mayor Fiscalini concerns and would like to see a process put into place that would avoid similar situations in the future. Council Member Matthews stated the developer, who has built affordable housing under great opposition to the betterment of San José, has the right to propose a General Plan change. However, she stated she supports the decision made by the City Council twenty years ago that the subject property is not appropriate for housing. Council Member LeZotte stated she did not blame Mr. Davidson for attempting to develop the land, but the fault lies with IBM for putting him and the Council in this position when IBM’s intent to commit the land to open space is clear and, regardless of the agreement, she would support preserving the land as open space. Council Member Diquisto expressed concerns about denying a request for low density housing on 36 acres, with 500 acres remaining as open space, stating development of the 36 acres at a higher density could conceivably be approved by future Councils. Director Derryberry stated Council does have the option at some future date to approve an amendment to the General Plan in the absence of some permanent instrument such as an easement as is being recommended by Council Member Dando. He noted, however, that under the Council’s current General Plan and hillside policies, the 500 acres, which are above the 15% slope line, would never be developed. Council Member Chavez stated she would support the motion because there was a definite intent by the Council twenty years ago to protect that community and it is this Council’s obligation to continue that commitment. Council Member Woody agreed that the developer and the merits of his proposal are not at issue, but rather, the issue is one of upholding the intent of the previous Council, and stated she will support the motion. Mayor Gonzales stated the two issues before the Council is whether to allow development within the Greenbelt and whether to hold a company to a promise made in the past. He stated this Council has repeatedly stood firm against development within the Greenbelt and it is important once again to go on record against development with the City’s Greenbelt. As relates to the agreement with IBM, he stated he is convinced given the documentation that a promise was made and Council should hold IBM to that promise by supporting the motion that certifies the EIR but denies the amendment. On a call for the question, the motion carried and Council denied the appeal, upheld the Planning Commission’s certification of the Environmental Impact Report as complete and in compliance with CEQA, and tentatively approved the recommendation of the Planning Commission and Planning Director for No Change in the General Plan on 36.5 acres. Vote: 10-1-0-0. Noes: Diquisto.

CONSENT CALENDAR

District 8

2A(1) GP99-T-14: Text Amendment to modify the text of the Evergreen Planned Residential Community to reflect changes in the location of the Multi-Family Residential proximate to the Commercial Village Center. (Staff). CEQA: Resolution No. 65459. Staff recommends approval. Planning Commission recommends approval.

Discussion/Action: Upon motion by Council Member Powers, seconded by Council Member Dando, and unanimously carried, the recommendation of the Planning Commission and the Planning Director for approval of proposed amendment to modify the text of the Evergreen Planned Residential Community was tentatively approved. Vote: 11-0-0-0.

END OF CONSENT CALENDAR

ITEMS TO BE DEFERRED

Citywide

3B(1)(a)/GP96-UGB: General Plan Amendment to change the Land Use/Transportation Diagram to create a long term Greenline/Urban Growth Boundary delineating the extent of urban development. CEQA: Supplemental Environmental Impact Report pending. Staff recommends deferral for completion of the environmental review.

Discussion/Action: Upon motion by Council Member Powers, seconded by Council Member Dando, and unanimously carried, the recommendation of the Planning Commission and the Planning Director for deferral for completion of the environmental review was tentatively approved. Vote: 11-0-0-0.

3B(1)(b)/GP96-T-03: General Plan Text Amendment to describe and support the Greenline/Urban Growth Boundary. CEQA: Supplemental Environmental Impact Report pending. Staff recommends deferral for completion of the environmental review.

Discussion/Action: Upon motion by Council Member Powers, seconded by Council Member Dando, and unanimously carried, the recommendation of the Planning Commission and the Planning Director for deferral for completion of the environmental review was tentatively approved. Vote: 11-0-0-0.

District 8

3B(2)(a)/GP99-8-2: General Plan Amendment to change the Land Use/Transportation Diagram for property located at the northeasterly side of Murillo Avenue, opposite Groesbeck Hill Drive, from Non-Urban Hillside, outside the Urban Service Area and outside the Greenline/Urban Growth Boundary to Public/Quasi-Public, inclusion in the Urban Service Area, and minor modification to the Greenline/Urban Growth Boundary on 7.95 acres. (MacKay & Somps). CEQA: Negative Declaration. Staff recommends deferral until after consideration of GP96-UGB and GP96-T-03.

Discussion/Action: Upon motion by Council Member Powers, seconded by Council Member Dando, and unanimously carried, the recommendation of the Planning Commission and the Planning Director for deferral until after consideration of GP96-UGB and GP96-T-03, was tentatively approved. Vote: 11-0-0-0.

ITEMS FOR DISCUSSION

3C(2) Reconsiderations – None were requested.

3C(3) Adoption of a resolution finalizing the tentative actions made by the Council on the 1999 Annual Review of the General Plan and amending the General Plan in conformance therewith.

Discussion/Action: Planning Director Derryberry read a correction to Text Amendment GP99-T-1 which was adopted on the Consent Calendar on November 8, 1999, and recommended adoption of a resolution finalizing the tentative actions made by the Council on the 1999 Annual Review of the General Plan and amending the General Plan in conformance therewith. Upon motion by Council Member Diaz, seconded by Vice Mayor Fiscalini, and unanimously carried, Item GP99-T-1 as described on Page T-10, Item 11, was amended to read: “Non-residential building height, including all elements of a building whether occupied space or decorative feature, but not including roof equipment or screening, …”; and Resolution No. 69261, entitled: “A Resolution of the Council of the City of San José Adopting, Pursuant to Title 18 of the San José Municipal Code, Amendments to the San José 2020 General Plan, San José, California”, was adopted. Vote: 10-0-1-0. Absent: Dando.

3C(4) Review and approval of the Annual Report on the Status of the General Plan.

Documents filed: Memorandum from Director of Planning, Building and Code Enforcement, James R. Derryberry, dated November 23, 1999, recommending acceptance of the Annual Report on the Status of the General Plan required pursuant to Assembly Bill 1678.

Discussion/Action: Upon motion by Council Member Diaz, seconded by Vice Mayor Fiscalini, and unanimously carried, the Annual Report on the Status of the General Plan was accepted. Vote: 10-0-1-0. Absent: Dando.

ADJOURNMENT

The Council of the City of San José adjourned the meeting at 8:48 p.m.

RON GONZALES, MAYOR

ATTEST:

PATRICIA L. O’HEARN, CITY CLERK