Cupertino planning panel finds Mary Avenue right-of-way vacation and disposition consistent with general plan after heated debate
Loading...
Summary
The Planning Commission voted 3–2 on Feb. 10 to recommend that city council find the Mary Avenue right‑of‑way vacation and the proposed disposition for a 40‑unit affordable housing site consistent with the general plan after extended questions about evidence, RFP documentation and the commission's advisory role.
The Cupertino Planning Commission on Feb. 10 adopted two resolutions recommending that city council find a Mary Avenue public right‑of‑way vacation and the subsequent disposition of the parcel consistent with the city's general plan, approving each recommendation by 3–2 votes.
The agenda item concerned a parcel identified in the housing element as Priority Site 10 and described in staff materials as a proposed 40‑unit, 100% affordable housing development with a set‑aside of units for people with intellectual and developmental disabilities (staff referenced 19 IDD set‑aside units and another tranche of very‑low‑income units). Staff and the city attorney told commissioners the commission's role was narrow: to determine whether vacating the right‑of‑way and disposing of the resulting parcel was "consistent with the general plan," not to approve the project, parking or traffic impacts (City Attorney: "That isn't set forth in the report," "perfectly consistent with the law").
Why it matters: the site is the only city‑owned housing element parcel of its type in Cupertino, and staff said it was rezoned and that council last week approved the development permit and a disposition and development agreement. Commissioners and members of the public described the item as the final regulatory steps needed to enable the housing proposal to proceed toward construction.
What the meeting recorded: public commenters who spoke in person urged the commission to move the item forward. Janet Van Zoren said the project had "taken many, many years" and urged commissioners to "move forward and pass both of these resolutions." Connie Cunningham, identified as a 38‑year resident and chair of the Housing Commission speaking for herself, said she supported both recommended actions. Jia Pham, communications coordinator at Housing Choices (the proposed on‑site service provider), said the vacation is "consistent with the housing element and the general plan, because of the end result of getting deeply affordable housing that's needed for the community." (Public comment took place during SEG 1131–1290.)
Commissioner concerns and exchange with staff: several commissioners, led by Commissioner Rao, pressed staff for documentary evidence that the staff findings could rely on — for example, the record of the 2022 RFP and the RFP responses (Commissioner Rao: "I question whether commissioners had the evidence to ascertain that finding b2 could be found to be true"). Staff replied that an RFP was issued in 2022 and Charities Housing was the only respondent, and that the council had already addressed CEQA and permitting issues. The assistant director and city attorney repeatedly framed the commission's work as a narrow legal consistency review under Government Code §65402 and the applicable CEQA findings (staff cited CEQA Guideline §15332, the Class 32 categorical exemption) rather than a re‑weighing of project design or alternative sites.
Motions and votes: Commissioner Scharf moved the staff recommendation to find the Mary Avenue vacation consistent with the general plan; after debate a substitute motion to reject the staff recommendation failed and the primary motion carried 3–2 (Commissioners Fung, Lindscoff and Scharf voted yes; Commissioners Rau and Chair Kassel Schurren voted no). Commissioner Scharf then moved and won a second resolution finding the "location, purpose and extent" of the disposition consistent with the general plan by the same 3–2 margin. Commissioners requesting more documentary evidence were not able to extract an RFP packet or other supporting documentation on the floor; staff said the RFP and the council actions are part of the administrative record.
What commissioners said: Commissioner Rao asked whether the commission had sufficient evidence to adopt certain recital findings in the resolution and argued a finding of nonconformance could be made in the absence of evidence; Rao moved a substitute motion to find the staff recommendations not in conformance on grounds of lack of evidence, but that motion failed. The city attorney reiterated that "the item before you today is whether the vacation or the right of way on Mary Avenue is consistent with the general plan," and that many other legal and project‑level steps remain for council and staff to implement.
What happens next: the Planning Commission made advisory findings for city council; the council will need to take the formal action to vacate the right‑of‑way and to complete any required property disposition. Staff noted the applicable CEQA exemption has been filed and that council has already made environmental findings tied to the permit and disposition and development agreement. If council adopts the same findings, the vacation and disposition can move forward as described in the staff materials.
Reporting note: the commission's determinations here were advisory; the staff repeatedly told the commission that project approvals, traffic, parking, design and permit details were not before the Planning Commission in this proceeding.
