Ballot Language for Cupertino Citizens’ Sensible Growth Initiative Cupertino Citizens’ Sensible Growth Initiative states that ”The maximum heights and densities for the special areas shown in the Community Form Diagram (Figure LU-1) shall not be exceeded. Outside of the Special Areas Shown in Figure LU-1, building heights may not exceed 45 feet.” See comments titled “Facts Regarding General Plan” on page 4. Election Code Section 9203 requires the City Attorney to prepare “a true and impartial statement of the purpose of the proposed measure in such language that the ballot title shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure.” Ballot Title : “Initiative amending Cupertino’s General Plan to limit redevelopment of the Vallco Shopping District, limit building heights and lot coverages in areas throughout the City, establish new setbacks and building planes on major thoroughfares, and require voter approval for any changes to these provisions.” Election Code is silent on ballot language. “Impartial analysis are typically prepared for initiative measures. Accordingly, it is recommended that the City Council direct preparation of such an analysis here.” Source: Options for Placing Initiatives on a Ballot by Randolph Stevenson Hom, City Attorney City of Cupertino March 31, 2016

1

It is assumed that the City Attorney as well as the City Council would prepare and approve a true and impartial statement of the purpose of the proposed measure in such language that the ballot statement shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure.“ On March 31, 2016 the City Council of Cupertino adopted Resolution #16-029 directing the City Clerk to transmit the Initiative to the City Attorney for preparation of an Impartial Analysis and not authorize City Council members, or the Council as a whole, to submit ballot arguments against the Initiative. Ballot Language: “Shall an Initiative Ordinance be adopted amending Cupertino’s General Plan to limit redevelopment of the Vallco Shopping District, limit building heights along major mixed-use corridors, establish a 45 feet maximum building height in the Neighborhoods, limit lot coverages for large projects, establish new setbacks and building planes on major thoroughfares, and require voter approval for any changes to these provisions? The use of the phrase “establish a 45 feet maximum building height in the Neighborhoods” is neither accurate or impartial; it is also misleading. On March 31, 2016 the City Council of Cupertino adopted Resolution #16-030 authorizing rebuttal arguments for and against the Initiative. On April 5, 2016 the City Council of Cupertino adopted Resolution #16-032 amending Resolution #16-028 and #16-029. Ballot Language: “Shall an Initiative Ordinance be adopted amending Cupertino’s General Plan to limit redevelopment of the Vallco Shopping District, limit building heights along major mixed-use corridors, increase to 45 feet the maximum building height in the Neighborhoods,

2

limit lot coverages for large projects, establish new setbacks and building planes on major thoroughfares, and require voter approval for any changes to these provisions? The City Council asserts that the “change (of language) is accurate, impartial and not misleading.” Source: Resolution #16-032 City Council City of Cupertino April 5, 2016 The use of the phrase “increase to 45 feet the maximum building height in the Neighborhoods” is neither accurate or impartial; it is also misleading. Use of public funding to advocate a municipality position for or against a ballot measure as is done in the ballot language is illegal. Arguments in favor of and against ballot measures are provided by the proponents and opponents of the ballot measures.

3

Facts Regarding General Plan General Plan 2040 adopted December 2014 General Plan amendment adopted October 2015 Figure LU-1 adopted October 2015 9212 Report Appendix 2, page 7 3. Amendments regarding the General Plan’s Community Form Diagram and land Use Map (Pages 5-7 of the Initiative) “The maximum building heights and densities for the special areas shown in the Community Form Diagram (Figure LU-1) shall not be exceeded.” With two exceptions, this provision would essentially lock in place the existing building heights and densities for the eight “Special Areas” identified in the existing General Plan Community Form Diagram….Voter approval would be required to increase any of the heights or densities in these nine Special Areas. The authors of this 9212 Report seem to have difficulty whether there are eight or nine Special Areas Figure LU-1, adopted as a General Plan Amendment to Community Vision (General Plan) 2040 approved by Resolution #15-087 by the City Council of the City of Cupertino on October 20, 2015, shows that there are nine Special Areas. “Outside of the Special Areas shown in Figure LU-1 building heights may not exceed 45 feet.” The only areas of the City that are “outside of the Special Areas”

4

are parts of the City that the General Plan defines as Neighborhoods.5 5…Neighborhoods where future changes are expected to be minimal. The authors of this 9212 Report seem to consider their conclusion that a 50% increase in heights is minimal. Figure LU-1, adopted as a General Plan Amendment to Community Vision (General Plan) 2040 approved by Resolution #15-087 by the City Council of the City of Cupertino on October 20, 2015, shows that Neighborhoods are Special Areas. Figure LU-1, adopted as a General Plan Amendment to Community Vision (General Plan) 2040 approved by Resolution #15-087 by the City Council of the City of Cupertino on October 20, 2015, shows that Neighborhoods are one of nine Special Areas. The 9212 Report on the Cupertino Citizens’ Sensible Growth Initiative is flawed and any subsequent actions based upon it is, especially in this case, not accurate and not impartial.

5

Recommendation We recommend that the Ballot Language should be similar to the Ballot Title drafted by the Cupertino City Attorney: Ballot Title: Initiative amending Cupertino’s General Plan to limit redevelopment of the Vallco Shopping District, limit building heights and lot coverages in areas throughout the City, establish new setbacks and building planes on major thoroughfares, and require voter approval for any changes to these provisions. Or: Shall an initiative ordinance be adopted amending Cupertino’s General Plan to limit redevelopment of the Vallco Shopping District, limit building heights along major mixed-use corridors, maintain existing maximum heights and densities in all special areas, including the Neighborhoods, limit lot coverages for large projects, establish new setbacks and building planes on major thoroughfares, and require voter approval for any changes to these provisions?



6