Here is the latest news on Mercury News:
More Vallco SB35 project update:
SB 35 is a law which came into effect January, 2018 and allows projects which meet certain
qualifications, such as not being listed pursuant to Ca. Gov. Code 65962.5, and having 2/3
residential, to receive ministerial approval, and bypass the California Environmental Quality Act
(CEQA) process which is the public disclosure and engagement process, and receive fast-track
approval. Vallco Town Center SB 35 was issued a 90-day initial approval letter by former City
Manager David Brandt and the final 180-day approval letter by former Interim City Manager
Amy Chan September 21, 2018. The approval by the city staff (not City Council) was challenged
in the Santa Clara County Superior Court and failed to persuade Judge Helen Williams to set
aside the City’s approval in her May, 2020 decision.
Recall that in April, 2019, the Vallco Property Owner (VPO) shared the following with the public:
“In April we received an exhaustive, 1,234-page report on the environmental condition
of the Vallco site from WSP USA, a leading environmental construction and engineering
firm. The report gave the Vallco site a clean bill of health, confirms that the site is
appropriate for residential use, and concludes that no further investigation or clean-up
is necessary. To eliminate any remaining doubt, we asked the environmental consultant
for the Apple Park project to conduct a peer review of these conclusions and they
concurred with WSP’s findings.”
This statement remained on the VPO revitalizevallco.com/demolition/ site until late 2021.
Additionally, subscribers to VPO’s website received the following update May 3, 2019:
“During a recent Planning Commission meeting, members of the community expressed
some concern about not being notified of the demolition activity at the Vallco site to
date. They generally cited our Demolition Day event that took place on October 11 of
last year and the two days of demolition of the parking garage near the former Sears
While the demolition work was limited and routine, and it posed no health risks to the
neighborhood, we understand that the lack of advance notice and explanation of our
work caused concern.
At the same time, there have been some unfounded and unsupported claims made by
some about risks to public health as a result of our activity, which have served to elevate
the general level of concern.
Of course we knew that there were no such risks, as well as that the site had been given
a clean bill of health by two leading environmental construction and engineering
management firms, WSP USA Inc. and EKI Inc., but we didn’t make that clear to you.”
The City of Cupertino, on their Vallco SB 35 FAQ’s page posted the above-referenced
documents in early 2019, here is Part 1 and Part 2 of the WSP report. And the EKI peer review is here.
Until Spring of 2021, the City, County Department of Environmental Health, VPO, or the State
Water Resources Control Board (Geotracker) did not share any information about the condition
of the site, this was despite there being a multitude of documents and studies (click on “Site Maps/Documents” tab) being conducted on the subject property:
VPO soils investigations, as far back as 2016, indicated that the site had contamination on both
the east and west properties. While the report VPO had stated the locations and contamination
studied, the report and peer review they provided to the City and public, stated the contrary as
shown above. It was not until April, 2021 that the developer entered into a Regulatory
Oversight Agreement with the Santa Clara County Department of Environmental Health
(SCCDEH) for clean up oversight – but only on the west property, ignoring the entire east side.
Check the application here.
Here we are into 2022, and VPO still has issues being able to provide documentation and
studies for SCCDEH. VPO has attempted to blame their slow progress on City Staff turnover,
when they took years to acknowledge the hazardous materials clean-up issue for a project
which, according to a. Gov. Code Section 65913.4 (a)(5)(E), ‘SB 35’ law, the project is not
qualified for if it is:
“A hazardous waste site that is listed pursuant to Section 65962.5 or a hazardous waste
site designated by the Department of Toxic Substances Control pursuant to Section
25356 of the Health and Safety Code, unless the Department of Toxic Substances
Control has cleared the site for residential use or residential mixed uses.”
The City of Cupertino was the Lead Agency for the Vallco Specific Plan and in their
Environmental Impact Report for the site, they indicated that the site was listed pursuant to
Section 65962.5, yet the former managers still signed off on the project. The former City
Manager and Staff had signed off on peer review contracts and received reports on the Vallco
site after April 2019, yet did not inform the public that they knew there was further
contamination until 2021 under new legal counsel. See page 143 of the City of Cupertino’s
The Vallco site does not have a ‘clean bill of health’ and is not clear for residential uses. The
clean-up is under the direction of SCCDEH and contaminants include PCEs, PCBs,
petrochemicals, etc. and the complete extent of the contamination is still unknown.
Additionally, the prior reports did not fully disclose the potential for contamination from three
offsite dry cleaners and a gas station which had previously contaminated the southeast corner
of the Sears Parking lot requiring a monitoring well. Two of the closed dry cleaners do not thus
far have public records available of any soils testing. This is along with known sources of
contamination, such as the Sears Automotive Center and former onsite gas station, however,
the widespread indication of onsite PCEs has yet to be explained as to the source.
Over three years after beginning demolition, the west side property sits empty and covered
with weeds, which incidentally has also subjected the property to needing weed abatement
under the County’s direction as presented to City Council last week.
For this 10 million square foot project, with at least a 3,410 residential shortfall due to the
massive 1.8 million square foot office component, VPO has used a relatively new housing law,
on a widely contaminated site, to actually worsen the housing shortage. Stalling off public
disclosure served the developer well in court, but at what cost to public trust?
To read the most recent SCCDEH correspondence and requests of VPO regarding the further
information SCCDEH requires about hazardous materials contamination see this page.
You can view all of the documentation provided to Geotracker (click on “Site Maps/Documents” tab).
To sign up for Vallco Hazardous Materials Cleanup Updates to the Geotracker website, click here.