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PC Reso 2024-12 - for U-2024-001CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 RESOLUTION NO. 2024-12 OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO APPROVING A CONDITIONAL USE PERMIT TO ALLOW AN ARCADE USE IN A 1,955 SQUARE FOOT UNIT WITHIN THE MARKETPLACE SHOPPING CENTER LOCATED AT 19720 STEVENS CREEK BOULEVARD SECTION I: PROTECT DESCRIPTION Application No.: U-2024-001 Applicant: Kiddleton, Inc. Location: 19720 Stevens Creek Boulevard; APN(s): 369-06-012 SECTION II: FINDINGS FOR A USE PERMIT: WHEREAS, the Planning Commission of the City of Cupertino received an application for a Conditional Use Permit (U-2024-001) to allow an arcade use in a 1,955 square foot unit within the Marketplace Shopping Center.; WHEREAS, the necessary public notices have been given as required by the Procedural Ordinance of the City of Cupertino, and the Planning Commission has held at least one public hearing in regard to the application; and WHEREAS, pursuant to the provisions of the California Environmental Quality Act of 1970 (Public Resources Code section 21000 et seq.) ("CEQA"), together with the State CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.) (hereinafter, "CEQA Guidelines"), the City staff has independently studied the proposed Project and has determined that the Project is exempt from environmental review pursuant to the categorical exemption in CEQA Guidelines section 15301: Existing Facilities for the reasons set forth in the staff report dated September 10, 2024 and incorporated herein; and WHEREAS, the applicant has met the burden of proof required to support said application, as detailed in the staff report and as discussed at the September 10, 2024 Planning Commission hearing; and Resolution No. 2024-12 U-2024-001 September 10, 2024 Page-2- a) The proposed development and/or use, at the proposed location, will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience; The proposed business will operate within the existing Marketplace Shopping Center. Parking impacts are within the General Commercial standards of CMC19.124.040. Further, the business will operate within the municipal codes permitted hours of operation and will be conditioned to not serve food that requires on -site cooking or warming of food products by the application of heat, in compliance with existing conditions of approval for the Marketplace Shopping Center. Therefore, the development will not be injurious to property or improvements in the area nor be detrimental to the public health and safety. b) The proposed development and/or use will be located and conducted in a manner in accord with the Cupertino General Plan, any applicable specific plans, underlying zoning regulations, and the purpose of this title and complies with the California Environmental Quality Act (CEQA) The project, subject to the conditions of approval, is operating within the standards of the applicable zoning code, General Plan, and Specific Plan. The proposed arcade will be conducted within the existing square footage of the shopping center and is exempt from CEQA under Section 15301 (Existing Facilities). WHEREAS, the Planning Commission is the approval authority for this project and is granted the authority by the Municipal Code to exercise its independent judgment, based on the record before it, for purposes of the California Environmental Quality Act; and NOW, THEREFORE, BE IT RESOLVED that the Planning Commission takes the following actions: 1. Exercises its independent judgment and determines that the Project is exempt from CEQA pursuant to CEQA Guidelines section 15301. The Class 1 exemption applies to existing facilities that involve negligible or no expansion of existing or former use. Therefore, the proposed project would not involve the expansion of the former use (Section 15301, Class 1), will not significantly expand the use beyond the current use that already exists or previously existed, and will not have a significant effect on the environment. 2. Approves the application for a Conditional Use Permit, Application no. U-2024-001 subject to the conditions which are enumerated in this Resolution beginning on PAGE 3 thereof. The conclusions and sub conclusions upon which the findings and conditions specified in this resolution are based, including those contained in the Resolution No. 2024-12 U-2024-001 September 10, 2024 Page - 3 - Public Hearing record concerning Application no. U-2024-001 as set forth in the Minutes of Planning Commission Meeting of September 10, 2024, are hereby incorporated by reference as though fully set forth herein. SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. APPROVED EXHIBITS Approval is based on the business operation plan as submitted by the applicant entitled "Business Summary for Family -Style Arcade Games" consisting of fifteen (15) pages; except as may be amended by conditions in this resolution. 2. ACCURACY OF PROTECT PLANS The applicant/property owner is responsible to verify all pertinent property data including but not limited to property boundary locations, building setbacks, property size, building square footage, any relevant easements and/or construction records. Any misrepresentation of any property data may invalidate this approval and may require additional review. 3. BUILDING PERMITS REQUIRED The applicant shall consult with the City's Building Division to obtain the necessary sign permits for this project. 4. ANNOTATION OF THE CONDITIONS OF APPROVAL The conditions of approval set forth shall be incorporated into and annotated on the first page of the building plans. 5. PREVIOUS CONDITIONS OF APPROVAL All previous conditions of approval including, but not limited to, M-2007-02, shall remain in effect except as may be amended by conditions contained in this resolution 6. MODIFICATION OF PLANS Prior to application for Building Permits, the applicant shall update plans to reflect the removal of any illumination on the proposed canopy wall signs. 7. CONDITIONAL USE PERMIT APPROVAL A Conditional Use Permit for a commercial entertainment use (arcade) within a 1,995 square -foot unit of an existing shopping center is approved. Standard hours of operation are limited to those between lam and 11pm. In accordance with M-2007- Resolution No. 2024-12 U-2024-001 September 10, 2024 Page -4- 002, the operation of this business shall not include on -site cooking or warming of food products by the application of heat. 8. BICYCLE PARKING In accordance with Chapter 19.124: Parking Regulations, one (1) Class II bicycle parking stations shall be added in the vicinity of the business location. Design of the bicycle parking facility shall be approved by Director of Community Development prior to building permit issuance. 9. MODIFICATION OF BUSINESS OPERATIONS Changes to the operations determined to be minor shall be reviewed and approved by the Director of Community Development. Further, the Director of Community Development is empowered to adjust the operation of the restaurant to address any documented problem or nuisance situation that may occur. 10. REVOCATION OF USE PERMIT The Director may initiate proceedings for revocation of the Use Permit in any case where, in the judgment of the Director, substantial evidence indicates that the conditions of the conditional use permit have not been implemented, or where the permit is being conducted in a manner detrimental to the public health, safety, and welfare, in accord with the requirements of the municipal code. 11. CONSULTATION WITH OTHER DEPARTMENTS The applicant is responsible to consult with other departments and/or agencies with regard to the proposed project for additional conditions and requirements. Any misrepresentation of any submitted data may invalidate an approval by the Community Development Department. 12. GRADING AND CONSTRUCTION HOURS AND NOISE LIMITS a. All grading activities shall be limited to the dry season (April 15 to October 1), unless permitted otherwise by the Director of Public works. b. Construction hours and noise limits shall be compliant with all requirements of Chapter 10.48 of the Cupertino Municipal Code. c. Grading, street construction, underground utility and demolition hours for work done more than 750 feet away from residential areas shall be limited to Monday through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to 6 p.m. Grading, street construction, demolition or underground utility work within 750 feet of residential areas shall not occur on Saturdays, Sundays, holidays, and during the nighttime period as defined in Section 10.48.053(b) of the Municipal Code. Resolution No. 2024-12 U-2024-001 September 10, 2024 Page - 5 - d. Construction activities shall be limited to Monday through Friday, 7 a.m. to 8 p.m. and Saturday and Sunday, 9 a.m. to 6 p.m. Construction activities are not allowed on holidays as defined in Chapter 10.48 of the Municipal Code. Night time construction is allowed if compliant with nighttime standards of Section 10.48 of the Cupertino Municipal Code. e. Rules and regulations pertaining to all construction activities and limitations identified in this permit, along with the name and telephone number of an applicant appointed disturbance coordinator, shall be posted in a prominent location at the entrance to the job site. f. The applicant shall be responsible for educating all contractors and subcontractors of said construction restrictions. The applicant shall comply with the above grading and construction hours and noise limit requirements unless otherwise indicated. 13. NOISE AND VIBRATION NOTICE At least 10 days prior to the start of any demolition, ground disturbing, or construction activities, the project applicant/contractor shall send notices of the planned activity by first class mail to off -site businesses and residents within 500 feet of the project site. The City will provide a template notice and mailing addresses for the Applicant's use. The notice must be approved by City staff prior to sending. The project applicant shall provide the City with evidence of mailing of the notice, upon request. Please note that, if pile driving, the requirements for noticing and monitoring outlined in City Code Section 17.04.050 G (3) shall apply. 14. NOISE AND VIBRATION SIGNAGE At least 10 days prior to the start of any demolition, ground disturbing, or construction activities, the project applicant/contractor shall ensure that a sign measuring at least four feet by six feet shall be posted on construction fencing at the entrance(s) to the job site, clearly visible to the public, and include the following: a. Permitted construction days and hours; b. A description of proposed construction activities; c. Telephone numbers of the City's and contractor's authorized representatives that are assigned to respond in the event of a noise or vibration complaint; and d. Contact information for City's and contractor's authorized representatives that are assigned to respond in the event of a complaint related to fugitive Resolution No. 2024-12 U-2024-001 September 10, 2024 Page - 6 - dust, pursuant to the requirements for compliance with BAAQMD's CEQA Air Quality Guidelines. If the authorized contractor's representative receives a complaint, they shall investigate, take appropriate corrective action, and report the complaint and the action taken to the City within three business days of receiving the complaint. 15. NOISE DURING CONSTRUCTION Prior to issuance of any demolition, grading or building permit, include on plans a note that, during project construction, the project applicant shall incorporate the following measures to reduce noise during construction and demolition activity: a. The project applicant and contractors shall prepare and submit a Construction Noise Control Plan to the City's Planning Department for review and approval prior to issuance of the first permit. The Construction Noise Plan shall demonstrate compliance with daytime and nighttime decibel limits pursuant to Chapter 10.48 (Community Noise Control) of Cupertino Municipal Code. The details of the Construction Noise Control Plan shall be included in the applicable construction documents and implemented by the on -site Construction Manager. Noise reduction measures selected and implemented shall be based on the type of construction equipment used on the site, distance of construction activities from sensitive receptor(s), site terrain, and other features on and surrounding the site (e.g., trees, built environment) and may include, but not be limited to, temporary construction noise attenuation walls, high quality mufflers. During the entire active construction period, the Construction Noise Control Plan shall demonstrate that compliance with the specified noise control requirements for construction equipment and tools will reduce construction noise in compliance with the City's daytime and nighttime decibel limits. b. Select haul routes that avoid the greatest amount of sensitive use areas and submit to the City of Cupertino Public Works Department for approval prior to the start of the construction phase. c. Signs will be posted at the job site entrance(s), within the on -site construction zones, and along queueing lanes (if any) to reinforce the prohibition of unnecessary engine idling. All other equipment will be turned off if not in use for more than 5 minutes. d. During the entire active construction period and to the extent feasible, the use of noise producing signals, including horns, whistles, alarms, and bells will be for safety warning purposes only. The construction manager will use smart back-up alarms, which automatically adjust the alarm level based on Resolution No. 2024-12 U-2024-001 September 10, 2024 Page - 7 - the background noise level or switch off back-up alarms and replace with human spotters in compliance with all safety requirements and law. 16. DARK SKY COMPLIANCE Prior to issuance of Building Permits, the applicant/property owner shall submit final plans in compliance with the approved lighting plans to comply with development standards of Cupertino Municipal Code Section 19.102.040 Outdoor Lighting Requirements. In the event changes are proposed from the approved plans, said changes must be reviewed and approved by the Director of Community Development or their designee. The applicant shall provide all documentation required to determine compliance with the Municipal Code. 17. FUGITIVE DUST CONTROL Prior to issuance of the any demolition, grading, or building permit, include on all permit plans, the full text of each of the Bay Area Air Quality Management District's Basic Control Measures from the latest version of BAAOMD's CEOA Air Quality Guidelines, as subsequently revised, supplemented, or replaced, to control fugitive dust (i.e., particulate matter PM2.5 and PM10) during demolition, ground disturbing activities and/or construction. 18. INDEMNIFICATION As part of the application, to the fullest extent permitted by law, the applicant shall agree to indemnify, defend with the attorneys of the City's choice, and hold harmless the City, its City Council, and its officers, employees, and agents (collectively, the "indemnified parties") from and against any liability, claim, action, cause of action, suit, damages, judgment, lien, levy, or proceeding (collectively referred to as "proceeding") brought by a third party against one or more of the indemnified parties or one or more of the indemnified parties and the applicant related to any Ordinance, Resolution, or action approving the project, the related entitlements, environmental review documents, finding or determinations, or any other permit or approval authorized for the project. The indemnification shall include but not be limited to damages, fees, and costs awarded against the City, if any, and cost of suit, attorneys' fees, and other costs, liabilities, and expenses incurred in connection with such proceeding whether incurred by the Applicant, the City, or the parties initiating or bringing such proceeding. The applicant shall agree to (without limitation) reimburse the City its actual attorneys' fees and costs incurred in defense of the litigation. Such attorneys' fees and costs shall include amounts paid to the City's outside counsel and shall include Resolution No. 2024-12 U-2024-001 September 10, 2024 Page - 8 - City Attorney time and overhead costs and other City staff overhead costs and any costs directly related to the litigation reasonably incurred by City. The applicant shall likewise agree to indemnify, defend, and hold harmless the indemnified parties from and against any damages, attorneys' fees, or costs awards, including attorneys' fees awarded under Code of Civil Procedure section 1021.5, assessed or awarded against the indemnified parties. The Applicant shall cooperate with the City to enter a Reimbursement Agreement to govern any such reimbursement. The Applicant shall agree to (without limitation) reimburse the City for all costs incurred in additional investigation or study of, or for supplementing, redrafting, revising, or amending, any document (such as an Environmental Impact Report, negative declaration, specific plan, or general plan amendment) if made necessary by proceedings challenging the project approvals and related environmental review, if the applicant desires to continue to pursue the project. The Applicant shall agree that the City shall have no liability to the Applicant for business interruption, punitive, speculative, or consequential damages. 19. NOTICE OF FEES, DEDICATIONS, RESERVATIONS, OR OTHER EXACTIONS The Conditions of Project Approval set forth herein may include certain fees, dedication requirements, reservation requirements, and other exactions. PASSED AND ADOPTED this 10t" day of September, 2024, at a regular Meeting of the Planning Commission Committee of the City of Cupertino, State of California, by the following roll call vote: AYES: COMMISSIONERS: Fung, Lindskog, Mistry NOES: COMMISSIONERS: Madhdhipatla, Scharf ABSTAIN: COMMISSIONERS: ABSENT: COMMISSIONERS: ATTEST: Piu Ghosh Planning Manager APPROV D: David Fung Chair, Planning Commission