Amidst controversy over lead in the soil, Cupertino approves first off-leash dog park

Cupertino residents attended the Feb. 5 council meeting to oppose the proposed off-leash dog park on Mary Avenue. (Photo: Anna Li/ Peninsula Press)

For more than 20 years, many Cupertino residents have been asking for a park where their dogs are free to run off leash. The Cupertino City Council has considered several proposals only to vote against most because nearby residents voiced their “not in my backyard” objections.

Thyagarajan Radhakrishnan is one of many residents who disagreed with the proposed dog park. It would be built approximately 30 feet from his house on Mary Avenue.

“It’s not benefitting anybody, so why is the city forcing it on us?” Radhakrishnan asked.

On Feb. 5, the City Council finally voted 4-1 to approve Cupertino’s first off-leash dog park. That required rezoning and an amendment to the city’s general plan at the corner of Villa Real and Mary Avenue.

Dog parks have been a controversial issue in Cupertino since the 1990s. Because the city didn’t have a park where dogs were allowed off leash, four years ago the City Council tried to remedy that by asking if residents wanted more freedom for their dogs.

Bitter arguments ensued. Dog owners who fought for canine freedom butted heads with residents who were concerned about aggressive dogs attacking children. They voiced concerns about potential traffic congestion from increased park use, the smell from dog feces and urine and noise – even too much barking. Some residents said they feared that pathogens and canine diseases, such as tape worm, roundworms, skin parasites and hookworms, may infect humans who come in contact with dog wastes.

Nevertheless, in June 2010, the Council voted to move forward with building a dog park on the Mary Avenue site.

“This is an easy location because there’s so much parking,” said Priya Sumal, a dog owner and Cupertino resident who told the Council she favored a dog park. “There’s the farmers’ market on Sunday, so you could take your dog to the dog park and go to the farmer’s market. It would be a really nice outing.”

Nearby cities such as Sunnyvale, Mountain View, and Campbell each have one off-leash dog park. San Jose leads by far with 10 off-leash dog parks. Residents like Sumal complain they have to drive fairly long distances to reach the closest off-leash parks whereas they would prefer to walk their dogs to the proposed Mary Avenue park, which is in the center of the city.

Mark Linder, the director of Parks and Recreation, estimated at the Council meeting that approximately 12,000 households owned at least one dog, representing 40 to 50 percent of Cupertino’s total number of households.

Despite Council support in 2010, the Mary Avenue dog park project was put on hold in October 2010 when the city staff discovered lead contamination as far as six to twelve inches deep into the soil. The city published an initial study, which noted that “the maximum soil removal depth could be two feet over 16,000 square feet.” The study also noted that the city may need to remove 14 trees that would be harmed by the digging and clean up. Because soil erosion occurs over time from rain and use of the park, city officials said they were concerned the lead contamination would affect people particularly children, who play on the park.

In June 2012, the Council charged on with their plans to construct a dog park, adopting a five-year capital improvement program that included funding for the planning, design and construction as part of the fiscal 2012-2013 budget. Only after approving the project did the city staff discover they had to address legal issues, such as rezoning to change the land from residential use to park and open space.

For the dog park, the city is planning to build a granite path, a paved concrete area, an asphalt-concrete walkway, a new sidewalk area next to street parking, a water fountain, fencing around the park and potentially renovating the parking area to accommodate more vehicles.

The Feb. 5 Council meeting wasn’t to discuss the merits of the dog park; it was supposed to be a discussion about rezoning: would residents prefer a dog park or more housing?

The Council’s attempt to focus the meeting didn’t help. The residents of Casa De Anza condominiums who live within 100 feet of the proposed park came out in hoards to voice their arguments against the park. A short two-lane driveway separates their complex from the open space that will become the park. The vacant parcel is a triangular half-acre of dried grass and sparsely planted trees that create a thin veil between Highway 85, Mary Avenue and Casa De Anza. An asphalt walkway connects one end of the park to the Casa De Anza complex.

Radhakrishnan’s main objection wasn’t the perennial arguments about safety, dog waste and noise. Rather, he believed that the soil in the unused city-owned land contains elevated levels of lead that would harm the residents’ health during the construction process.

“The property of lead,” Radhakrishnan said, if “you leave it alone, untouched, it’s going to stay there. It’s not going to affect the residents. But once you start digging up, it’s airborne.”

Radhakrishnan said his house is one of the closest to the park, and he said he worries about lead poisoning during the entire 41-day construction period.

The parcel of land on Mary Avenue is left over from the construction of the adjacent Highway 85. California’s Department of Transportation originally owned the land and eventually gave it to the city.

The city staff conducted an environmental impact report, concluding that the site contains unusually elevated levels of lead and traces of arsenic, nitrogen oxide, pesticides and exhaust particulate matter.

The lead and other harmful chemicals most likely came from vehicle emissions, dating back before leaded fuel was banned in 1986. The Environmental Protection Agency noted in a report that lead dust from vehicle exhausts likely seeped into the soil, building a greater concentration over time.

According to the EPA, lead poisoning in children can result in stunted growth, learning disabilities, lower IQ scores, hearing impairment and behavioral problems. It could also damage the nervous system, kidneys and reproductive systems.

To address lead contamination, the city is planning a remediation process that includes excavating six inches to two feet of soil; the final amount depends on the extent of lead contamination. At this moment, the city staff doesn’t know how much lead is sitting in the soil.

In fact, Timm Borden, director of Public Works, requested an additional $100,000 for contingency funds in case the lead contamination is more extensive than his staff realizes. The money would go towards clean up so he wouldn’t have to cut spending in park amenities like the water fountain and benches to cover the additional costs. The project is anticipated to cost $450,000 including the lead clean up and the construction activities of the proposed walkway, fencing and benches.

The city plans to contract with TRC Solutions, an engineering and consulting firm, which has already started testing the soil and will continue tests during the remediation process. TRC found that the highest concentration of lead was 1,250 mg/kg whereas acceptable levels based on standards from the Department of Toxic Substance Control, is 350 mg/kg. In its initial study of the site, TRC anticipated that lead levels will fall to 80 mg/kg after the clean up, significantly below the current levels.

The environmental review noted that the chemicals are not volatile, and residents would not inhale them. However, dust from the construction does warrant concern.

To avoid negative health effects from construction, the Council adopted a plan to tackle the potentially harmful effects. The plan includes watering all areas of construction twice a day to control dust. It plans to cover trucks hauling soil, sand and other loose materials to and from the site when possible. The city will clean the streets daily with water sweepers and in case of rain, sandbags will be piled around the site to avoid run off.

The city staff tried to reassure Casa De Anza residents that levels of air toxics and particulate matter from the construction would be well within the Bay Area Air Quality Management District’s safety guidelines.

Radhakrishnan was unsatisfied. He said he believed the city was not taking his concerns seriously. “We come here, put all of our life savings on this house to raise our kids,” Radhakrishnan said. “We can’t run away from our duties just because we have a dog park” and “the city is not responsible” enough to ask for our consent. “So we have to make the big sacrifice.”

The reality is, the city will have to clean up the lead-contaminated land regardless of whether they build a dog park. This became clear when many of the residents mentioned that they did not want a dog park because their children currently play on the unused land. This meant the children were consistently exposed to the lead contamination because leaching occurs from land erosion.

Furthermore, the Council has received offers in the past to construct residential complexes including senior homes near the Mary Avenue parcel. The general plan before rezoning could have allowed approximately 12 units on the site. One proposed project, just south of Mary Avenue next to the Cupertino Oaks retail center, had plans to develop the vacant parcel into a park.

However, the city rejected those offers in favor of building a dog park. Several Council members said they believed it would be in the public’s interest for the city to build a dog park rather than sell the land to developers for new housing because developers may be less careful in remediating the soil to remove lead contamination. That could mean people would be living on top of the lead contamination.

Nonetheless, Council member Gilbert Wong was sympathetic to the Casa De Anza residents. He suggested spending an additional $50,000 to alleviate concerns from Casa De Anza residents by building a wall to separate the park from the complex, for example. The Council approved that spending.

Mayor Orrin Mahoney said, “It was the classic case of an overall public good. Personally I think the lead issue, like many issues, is overblown” but “we are going to deal with and probably it will be better for the neighbors when we are done.”

The dog park would encompass nearly 19,000 square feet with a 4-foot high chain-link fence containing two off-leash dog run areas – one for smaller dogs and the other for larger dogs. The city plans to build a double gate system so dogs cannot escape when the gate opens. The amenities may include a water fountain, a wheelchair ramp, trash receptacles, benches and parking stalls – assuming the budget permits. The city staff estimates the operating and maintenance costs of the new park and its amenities will be $10,000 per year.

Although Radhakrishnan and his neighbors in Casa De Anza are disappointed, many residents, including non-dog owners, said they thought the new dog park would be a positive addition to the city.

“It’s a place for them all to socialize. I think it’s a wonderful idea,” Rajeer Malireddy said. “It’s time that Cupertino get something like that. Since there are a lot of dog owners,” he thinks it is “appropriate” for the city to do build the off-leash park for dogs.

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