Medical emergency cuts short anticipated Vallco hearing
Lawyer had to be carried out on a stretcher
In an unexpected twist Friday, the courtroom fight over the planned Vallco Shopping Mall redevelopment in Cupertino was postponed after a medical emergency cut short a key hearing in the case.
Bern Steves, attorney for Friends of Better Cupertino — the community group attempting to block the Vallco redevelopment plan — suffered a health episode while presenting his argument to the judge in a downtown San Jose courtroom. He later left the courtroom on a stretcher accompanied by paramedics, by which point he appeared alert and in good spirits.
Santa Clara County Superior Court Judge Helen Williams ended the hearing and advised that it would be rescheduled, likely for December — dragging out the showdown that will have major ramifications for Cupertino’s housing supply and will serve as a test case for a controversial state law.
Williams had been set to consider whether the city of Cupertino erred in approving plans to turn the defunct Vallco mall into 2,402 apartments, 400,000 square feet of retail and 1.8 million square feet of office space. On one side of the fight is Friends of Better Cupertino, arguing that the proposal does not comply with state law. On the other is the property owner, arguing this lawsuit is exactly the type of delay a new pro-housing state law seeks to prevent.
The stakes are high as the state warned Cupertino earlier this year that it could fall out of compliance with its housing mandate if the court overturns the Vallco project and the city fails to take additional steps to authorize such housing units. At the same time, this case is one of a handful testing the strength of SB35 — a new state law intended to spur housing development by requiring cities to approve residential and mixed-use projects if they meet certain requirements
The nascent, untested nature of SB35, which went into effect last year, was not lost on Williams.
“I think we’re all a little bit out in the Wild West with this statute,” she said during brief opening remarks before the hearing abruptly ended.
She also chastised Friends of Better Cupertino for the group’s unwieldy legal briefs. And Williams said she does not believe SB35 eliminates a city’s discretion — getting at the key question of how much room city officials have to approve or reject a proposal that qualifies for SB35 status.
Sand Hill proposed its Vallco project last year under SB35, and city officials granted approval.
Friends of Better Cupertino quickly sued the city, claiming the project does not qualify for SB35 status. The lawsuit has been closely watched around the state.
“Ultimately, SB35’s effectiveness — and its ability to function as intended by the Legislature — will largely depend on its treatment by the courts of this state,” a group of local organizations, including the Bay Area Council and Housing Trust Silicon Valley, wrote in an amicus curiae brief for the Vallco case.
SB35 requires an eligible project’s square footage be at least two-thirds residential, which Friends of Better Cupertino says the Vallco plan is not. Sand Hill misleadingly counted residential parking to hit the two-third mark, the group argues, but not commercial parking. Furthermore, the Vallco property has been designated a hazardous waste site by the Department of Toxic Substance Control, making it ineligible for SB35 status, the group argues.
“The Project was never eligible for the privileged ‘streamlined, ministerial approval process’ provided by SB35,” the group’s lawyers wrote.
Vallco Property Owner LLC, a subsidiary of Sand Hill, argues those claims are baseless attempts to block development. The developers followed Cupertino’s zoning ordinance — which specifies residential parking but not commercial parking should be counted — when tallying the project’s residential space, they argue. And the site is not hazardous — it was cleaned and made safe two decades ago, the property owner’s lawyers wrote in a recent legal filing.
“This is exactly the type of litigation that SB35 was designed to foreclose,” the lawyers wrote.
For its part, the city of Cupertino has remained officially neutral in the litigation — but that hasn’t stopped city officials from pointing out what they see as flaws in the Vallco proposal. Instead of helping to solve Cupertino’s housing crisis, the project would make the problem worse, the city wrote in a filing with the court. The office space proposed would bring 8,719 new jobs to the city, creating a demand for 5,812 housing units. That results in a need for 3,410 more housing units than the development would provide, the city wrote.
If the judge ultimately sides with Friends of Better Cupertino and orders the city to reverse the Vallco approval, Sand Hill could wind up back at square one. To complicate matters for the developer, any future plans it proposes for the site are allowed to have just 459 units of housing, 600,000 square feet of retail space and no office space — changes Cupertino City Council agreed on in August.
Sand Hill sued Cupertino over that change in September, arguing that by removing office space from the equation, the city has made it impossible to build financially viable housing there. The city disagrees with that calculation.
Meanwhile, developer and site owner Sand Hill Property Co. is continuing its demolition of the old Vallco mall in preparation for redevelopment.