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.01 M-2009-07 Catherine ChenCITY OF City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 (408) 777-3251 FAX (408) 777-3333 CUPERTINO COMMUNITY DEVELOPMENT DEPARTMENT Agenda Item No. Application: M-2009-07 Applicant: Catherine Chen Property Owner: Catherine Chen Property Location: 20130 ~ 20132 Stevens Creek Blvd. Agenda Date: September 8, 2009 Application Summary: Modification to an existing Use Permit (U-2004-01) to modify a condition related to retail use. RECOMMENDATION: Consider the applicant's request to modify the existing Use Permit relating to the allowable uses on the site. BACKGROUND: On March 1, 2005, the City Council approved a Use Permit (U-2004-01) allowing the construction of amixed- use development (a.k.a. Adobe Terrace) consisting of 2,395 square feet of retail space and 23 residential condominiums, located at 20128 Stevens Creek Boulevard. The project was approved with a condition that limited the commercial spaces to retail uses (see Attachment 1 for the approved conditions). Currently, 50.1% of the commercial space is occupied by Max Muscle, a retail health food store, and 49.9% is =Retail Commercial Space 1-1 M-2009-07 September 8, 2009 Page 2 vacant (previously occupied by Alexa Eye Wear -see picture to left). The applicant, Catherine Chen, recently acquired the commercial portion of the mixed-use development with the intent to locate a State Farm Insurance office In t e remaining vacant space. The applicant was not aware of the retail limitation on the property and is requesting that the condition be modified to allow greater flexibility of uses (Attachment 2). DISCUSSION: I1ltent of the Original Council Condition when approving the original mixed-use residential/commercial project, the City Council placed a retail limitation on the mixed-use property because it was concerned about the emphasis placed on residential and the diminished presence of commercial uses, given the fact that the prior use for the site was retail commercial- Adobe Lounge Restaurant. A 77-room hotel was previously approved for the site, but never built. Similar use restrictions have been implemented in othel• projects in the City, such as: • Verona (corner of Stevens Creek Blvd. and De Anza Blvd.) • Villagio (De Anza Blvd. and Civic Park Ln.) • Metropolitan (Stevens Creek Blvd., close to Finch Ave.) The City has consistently supported commercial projects by protecting uses that would enhance and support quality slopping experiences and healthy retail environments. In general, shopping districts/centers should be predominately retail oriented (especially along the primary public frontages and/or public spaces) with supporting ancillary office and/or personal service uses. Mid-block commercial properties along major commercial corridors should also maintain a retail predominate frontage in order to avoid dead spaces or voids that would interrupt pedestrian connections and shopping experiences. General Conil~lercial vs. Retail The applicant is requesting that the prior condition limiting the commercial building to retail uses be modified to allow for general commercial uses on the site. According to the Chapter 19.56 of the Zoning ordinance, General Commercial (CG) uses include the following: 2 1-2 M-2009-07 SeptemUer 8, 2009 Page 3 1. Retail businesses (i.e., restaurants, apparel shops and variety stores) 2. Professional offices (not more than 25% of a shopping center) 3. Commercial offices (i.e., financial institutions, insurance and travel agencies) 4. Vocational and specialized schools (no more than 50% of a shopping center) 5. Personal service establishments (i.e., beauty shops and message services) 6. Child day care facilities 7. Private clubs and lodges Please note that even though the CG zoning district limits uses such as professional offices and/ or tutorial services, it does not have any limitations on commercial offices, personal services and child care uses. If general commercial uses were allowed on the subject property, the entire commercial building may be occupied by child care or commercial office uses. Public Comments City staff received five letter/ emails in support of the applicant's request to modify the use permit. (See Attachment 3) PLANNING COMMISSSION OPTIONS The Commission may recommend the following to the City Council: 1. Approve the modification request and allow General Commercial (CG) uses with limitations; or 2. Approve the modification request and allow General Commercial (CG) uses without specific limitations; or 3. Deny the modification request, which would retain the requirement for 100% retail use. Prepared by: Colin Jung, Senior Planner AICP Reviewed by: Approved by: G ao Aarti Shrivastava City Planner Community Development Director Attachments Model resolutions for approval and denial Attachment 1: March 3, 2005 City Council Action Letter (with conditions of approval) Attachment 2: Proposal Letter from Applicant 3 1-3 M-2009-07 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 RESOLUTION NO. OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO RECOMMENDING APPROVAL OF A MODIFICATION TO A USE PERMIT (U- 2004-01) TO ALLOW ADDITIONAL COMMERCIAL USES IN A RETAIL RESTRICTED COMMERCIAL BUILDING SPACE AT 20130 & 20132 STEVENS CREEK BOULEVARD SECTION I: PROTECT DESCRIPTION Application No.: M-2009-07 Applicant: Catherine Chen Location: 20130 & 20132 Stevens Creek Boulevard SECTION II: FINDINGS WHEREAS, the Planning Commission of the City of Cupertino received an application for a modification to a Use Permit (Chapter 19.124 of the Cupertino Municipal Code), as described in this Resolution; and WHEREAS, the Planning Commission finds the following with regards to this application: a) The proposed 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; b) The proposed use will be located and conducted in a manner in accord with the Cupertino Comprehensive General Plan. NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter, the use permit modification is hereby recommended for approval subject to the conditions which are enumerated in this Resolution; and SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. MODIFICATION TO USES ALLOWED The City Council Action Letter dated March 3, 2005 pertaining to application no. U-2004-01 is hereby modified to restrict a minimum of % of the commercial building space to only a retail use. The remaining % (or less) of the commercial building space may be used for 1-5 Resolution No. M-2009-07 September 8, 2009 Page 2 General Commercial uses as defined in Cupertino Municipal Code Section 19.56 (General Commercial (CG) zoning district). 2. COVENANT RECORDATION A covenant pertaining to Condition No.1 above shall be submitted for review and approval by the City and shall be recorded on the property prior to issuance of final occupancy of the vacant tenant space. 3. 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. Pursuant to Government Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying with all of the requirements of Section 66020, you will be legally barred from later challenging such exactions. That the subconclusions upon which the findings and conditions specified in this Resolution are based and contained in the Public Hearing record concerning Application M-2009-07, as set forth in the Minutes of the Planning Commission Meeting of September 8, 2009 and are incorporated by reference herein. PASSED AND ADOPTED this 8th day of September 2009, at a Regular Meeting of the Planning Commission of the City of Cupertino by the following roll call vote: AYES: COMMISSIONERS: NOES: COMMISSIONERS: ABSTAIN: COMMISSIONERS: ABSENT: COMMISSIONERS: ATTEST: APPROVED: Aarti Shrivastava Lisa Giefer, Chair Director of Community Development Planning Commission G: Groups on Cupertinosan/Planning/PDREPORT/RES/2009/M-2009-07 approval res.doc 1-6 M-2009-07 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 RESOLUTION NO. (DENIAL) OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO RECOMMENDING DENIAL OF A MODIFICATION TO A USE PERMIT (U-2004-01) TO CHANGE A CONDITION RELATED TO RETAIL USE RESTRICTIONS AT 20130 & 20132 STEVENS CREEK BOULVARD SECTION I: FINDINGS WHEREAS, the Planning Commission of the City of Cupertino received an application for a Use Permit Modification, as described in Section II of this Resolution; and WHEREAS, the necessary public notices have been given in accordance with the Procedural Ordinance of the City of Cupertino, and the Planning Commission has held one or more public hearings on this matter; and WHEREAS, the applicant has not met the burden of proof required to support said application; and has not satisfied the following requirements: 1. The proposal will not be detrimental to the general welfare, or convenience, in that it would remove retail commercial opportunities along Stevens Creek Boulevard, particularly tenant spaces that were originally planned and designed for retail use, in that they have visible public frontages and convenient parking when the property was redeveloped to a mixed use project. The tenant spaces are in an area with an assemblage of retail shopping opportunities and a further dilution of these opportunities is potentially injurious to the retail shopping environment; 2. The proposal is consistent with the purposes of this chapter and the General Plan. The use permit for the residential/commercial mixed-use project was intended to preserve the retail use opportunity that was removed upon the redevelopment of the property. NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter, the application for Use Permit Modification is denied; and That the subconclusions upon which the findings and conditions specified in this resolution are based and contained in the public hearing record concerning Application No. M-2009-07 as set forth in the Minutes of the Planning Commission Meeting of September 8, 2009 and are incorporated by reference as though fully set forth herein. 1-7 Resolution No. M-2009-07 September 8, 2009 Page 2 SECTION II: PROTECT DESCRIPTION Application No.: M-2009-07 Applicant: Catherine Chen Property Owner: Catherine Chen Location: 20130 & 20132 Stevens Creek Blvd PASSED AND DENIED this 8th day of September 2009, at a Regular Meeting of the Planning Commission of the City of Cupertino, State of California, by the following roll call vote: AYES: COMMISSIONERS: NOES: COMMISSIONERS: ABSTAIN: COMMISSIONERS: ABSENT: COMMISSIONERS: ATTEST: Aarti Shrivastava Director of Community Development APPROVED: Lisa Giefer, Chair Cupertino Planning Commission G: ~ Planning ~ PDREPORT ~ RES ~ 2009 ~ M-2009-07 denial. doc ~-$ Attachment 1 City Hall ~` ~~,, ~ 10300 Torre Avenue a` - Cupertino, CA 95014-3255 Telephone: (408} 777-3223 CI I Y OF FAX: (408) 777-3366 Website: www.cupertino.org _ OFFICE OF THE CITY CLERK March 3, 2005 Greg Pinn Pinn Brothers Construction, Inc. 1475 Saratoga Avenue, #250 San Jose, CA 95129 Re: Consider Application No.(s) U-2004-01, ASA-2004-02, EA-2004-02, Greg Pinn (Pine Brothers Construction), 20128 Stevens Creek Boulevard (former Adobe Lounge), APN 369-03-001: a) Negative Declaration b) Revised Use Permit for amixed-use retail (2,395 square feet) and residential condominium (23 units} development and for the demolition of an abandoned restaurant building c) Revised design for an Architectural and Site Approval for amixed-use retail (2,395 square feet) and 23 condominium units Dear Mr. Finn: At its March 1, regular meeting, the Cupertino City Council granted a Negative Declaration, accepted the revised Use Permit subject to staff recommendations listed below, and approved the revised design for Architectural and Site approval subject to the conditions set forth in the Use P ennit: o The approval is based on the current revised plan set and revised project of 2,395 square feet of retail space and 23 residential condominiums, and o That applicable development fees be commensurately adjusted to reflect the reduced scope of the project; o And the use permit conditions of approval be amended to restrict the commercial building space to only aretail-use. 1-9 Printed on Recycled Paper U-2004-01 Page 2 March 3, 2005 o The building permit plans shall substantially conform to the rendering submitted at the City Council meeting as determined by the Design Review Committee in consultation with the architectural advisor. The Use Permit conditions are as follows: SECTION IlI: CONDITIONS. ADMINISTERED BY THE CO DEVELOPMENT DEPT. 1. APPROVED EXHIBITS Approval is based on the plan set entitled: "ADOBE TERRACE, A MIRED USE DEVELOPMENT, 20128 Stevens Creek Blvd., Cupertino, CA. 95072" dated 9/17/04 and consisting. of eighteen sheets labeled A-0.0 through A5.0, A5.1, A6.0, C1 through C6, L-P1 through L-P4, except as may be amended by the conditions contained in this approval. On sheet L-P4, entry arbor "A" is approved. 2. 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. Pursuant to Government Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying with all of the requirements of Section 66020, you will be legally barred from later challenging such exactions. 3. HEART OF THE CITY LANDSCAPE IMPROVEMENTS The applicant shall amend building plans to provide Heart of the City landscape improvements that include: a) A sidewalk width of six feet, b) Appropriate sidewalk transitions to adjacent properties to the satisfaction of the Director of Public Works. In general, such sidewalk transitions should be poured as separate pieces of concrete, so they may be more easily modified when abutting properties redevelop with Heart of the City landscape improvements. c) Flowering Pears in the frontage landscape strip shall be 36"box size trees. 4. BICYCLE.PA,RI~NG The applicant shall install bicycle-parking facilities in accordance with the City's parking ordinance. 5. DEMOLITION REQUIREMENT All existing structures on the site shall be removed prior to concurrently with project construction. The developer shall assume the responsibility to obtain all required demolition permits in accordance with City Ordinances. 1-10 U-2004-O1 rage 3 March 3, 2005 6. DEVELOPMENT ALLOCATION 23 The applicant shall receive an allocation of presidential units from the Heart of the City and/or Undesignated residential development pools of the Residential Development Priorities Table of the Cupertino General Plan. 7. PEDESTRIAN INGRESS/EGRESS EASEMENT The applicant shall record an appropriate deed restriction and covenant running with the land, subject to approval of the City Attorney and providing for the benefit of the abutting residential property to the rear of the subject parcel, an easement for pedestrian ingress and egress from the benefitting parcel to Stevens Creek Boulevard. 8. CUPERTINO SANITARY DISTRICT APPROVAL The project may significantly affect surrounding sanitary sewer facilities. The applicant shall participate in a flow study if necessary to determine the impact of the proposed project on the existing sanitary sewer system and make off-site improvements if necessary. 9. DELOW MARI~T RATE UNITS The applicant shall comply with the requirements of the Housing Mitigation Manual. 10. DESIGN REVISIONS The applicant shall revise the plans to: 1) provide additional building detailing on the east elevation of the building, 2) modify the underground garage to provide adequate backup space for the end parking stalls, 3) evaluate the possibility of moving one or more of the grade-level handicapped parking stalls to the underground parking garage, and 4) evaluate the possibility of providing an interior stairway from the garage to the ground level near the front of the project. SECTION 1V. CONDITIONS ADMINISTERED BY THE PUBLIC WORKS DEPARTMENT 11. STREET WIDENING Street widening, improvements and dedications shall be provided in accordance with City Standards and specifications and as required by the City Engineer. 12. CURB AND GUTTER IMPROVEMENTS Curbs and gutters, sidewallcs and related structures shall be installed in accordance with grades and standards as specified by the City Engineer. 13. STREET LIGHTING INSTALLATION Street lighting shall be installed and shall be as approved by the City Engineer. Lighting fixtures shall be positioned so as to preclude glare and other forms of visual interference to adjoining properties, and shall be no higher than the maximum height permitted by the zone in which the site is located. 1-1 1 U-2004-01 Page 4 March 3, 2005 14. STREET TREES Street trees shall be planted. within the Public Right of Way and shall be of a type approved by the City in accordance with Ordinance No. 125. 15. GRADING Grading shall be as approved and required by the City Engineer in accordance with Chapter 16.08 of the Cupertino Municipal Code. 401 Certifications and 404 permits maybe required. Please contact Army Corp of Engineers and/or Regional Water Quality Control Board as appropriate. 16. DRAINAGE Drainage shall be provided to the satisfaction of the City Engineer. Pre and Post-development calculations must be provided to identify if storm drain facilities need to be constructed or renovated. 17. UNDERGROUND UTILITIES The developer shall comply with the requirements of the Underground Utilities Ordinance No. 331 and other related Ordinances and regulations of the City of Cupertino, and shall coordinate with affected utility .providers for installation of underground utility devices. Ordinance No 331 requires all overhead lines to be underground whether the lines are new or existing. The developer shall submit detailed plans showing utility underground provisions. Said plans shall be subject to prior approval of the affected Utility provider and the City Engineer. 18. IMPROVEMENT AGREEMENT The project developer shall enter into a development agreement with the City of Cupertino providing for payment of fees, including but not lvnited to checking and inspection fees, storm drain fees, park dedication fees and fees for undergrounding of utilities. Said agreement shall be executed prior to issuance of construction permits. The Architectural and Site conditions are as follows: SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. APPROVED EXHIBITS Approval is based on the plan set entitled: "ADOBE TERRACE, A MIXED USE DEVELOPMENT, 20128 Stevens Creek Blvd., Cupertino, CA. 95072" dated 9/17/04 and consisting of eighteen sheets labeled A-0.0 through A5.0, A5.1, A6.0, C1 through C6, L-P l through L-P4, except as maybe amended by the conditions contained in this approval. On sheet L-P4, entry arbor "A" is approved. . 2. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS 1-12 U-2004-01 rage 5 March 3, 2005 The Conditions of Project Approval set forth herein may include certain fees, dedication requirements, reservation requirements, and other exactions. Pursuant to Government Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying with all of the requirements of Section 66020, you will be legally barred from later challenging such exactions. 3. HEART OF THE CITY LANDSCAPE IMPROVEMENTS The applicant shall amend building plans to provide Heart of the City landscape improvements that include: d} A sidewalk width of six feet, e) Appropriate sidewalk transitions to adjacent properties to the satisfaction of the Director of Public Works. In general, such sidewalk transitions should be poured as separate pieces of concrete, so they may be more easily modified when abutting properties redevelop with Heart of the City landscape improvements. f) Flowering Pears in the frontage landscape strip shall be 36"box size trees. 4. BICYCLE PARHING The applicant shall install bicycle-parking facilities in accordance with the City's parking ordinance. 5. DEMOLITION REpUIREMENT All existing structures on the site shall be removed prior to concurrently with project construction. The developer shall assume the responsibility to obtain all required demolition permits in accordance with City Ordinances. 6. DEVELOPMENT ALLOCATION ~3 The applicant shall receive an allocation of 2~ residential units from the Heart of the City and/or Undesignated residential development pools of the Residential Development Priorities Table of the Cupertino General Plan. 7. PEDESTRIAN INGRESS/EGRESS EASEMENT The applicant shall record an appropriate deed restriction and covenant n,nning with the land, subject to approval of the City Attorney and providing for the benefit of the abutting residential property to the rear of the subject parcel, an easement for pedestrian ingress and egress from the benefiting parcel to Stevens Creek Boulevard. ~. CUPERTINO SANITARY DISTRICT APPROVAL The project may significantly affect surrounding sanitary sewer facilities. The applicant shall participate in a flow study if necessary to determine the impact of the proposed project on the existing sanitary sewer system and make ofi site improvements if necessary. 9. BELOW MAIZKFT RATE UNITS 1-13 U-2004-01 Page 6 March 3, 2005 The applicant shall comply with the requirements of the Housing Mitigation Manual. SECTION IV. CONDITIONS ADMINISTERED BY THE PUBLIC WORKS DEPARTMENT 10. STREET WIDENING Street widening, improvements and dedications shall be provided in accordance with City Standards and specifications and as required by the City Engineer. 11. CURB AND GUTTER IMPROVEMENTS Curbs and gutters, sidewalks and related structures shall be installed in accordance with grades and standards as specified by the City Engineer. 12. STREET LIGHTING INSTALLATION Street lighting shall be installed and shall be as approved by the City Engineer. I,~ighting fixtures shall be positioned so as to preclude glare and other forms of visual interference to adjoining properties, and shall be no higher than the maximum height permitted by the zone in which the site is located. 13. STREET TREES Street trees shall be planted within the Public Right of Way and shall be of a type approved by the City in accordance with Ordinance No. 125. 14. GRADING Grading shall be as approved and required by the City Engineer in accordance with Chapter 16.08 of the Cupertino Municipal Code. 401 Certifications and 404 permits maybe required. Please contact Army Corp of Engineers and/or Regional Water Quality Control Board as appropriate. 15. DRAINAGE Drainage shall be provided to the satisfaction of the City Engineer. Pre and Post-development calculations must be provided to identify if storm drain facilities need to be constructed or renovated. 16. UNDERGROUND UTILITIES The developer shall comply with the requirements of the Underground Utilities Ordinance No. 331 and other related Ordinances and regulations of the City of Cupertino, and shall coordinate v/ith affected utility providers far installation of underground utility devices. Ordinance No. 331 requires all overhead lines to be underground whether the lines are new or existing. The developer shall submit detailed plans showing utility underground provisions. Said plans shall be subject to prior approval of the affected Utility provider and the City Engineer. 17. IMPROVEMENT AGREEMENT 1-14 U-2004-01 ~ age 7 March 3, 2005 The project developer shall enter into a development agreement with the City of Cupertino providing for payment of fees, including but not limited to checking and inspection fees, storm drain fees, park dedication fees and fees for undergrounding of utilities. Said agreement shall be executed prior to issuance of construction permits. Please review conditions carefully. If you have any questions regarding the conditions of approval, please contact the Department of Community Development at 408-777-3308 for clarification. Failure to incorporate conditions into your plan set will result in delays at the plan checking stage. If development conditions require tree preservations, do not clear the site until required tree protection devices are installed. The conditions of project approval set forth herein may include certain fees, dedication requirements, reservation requirements, and other exactions Pursuant to Government Code Section 66020(d)(I), these conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You afe hereby further notified that the 90-day approval period in which you may protest these fees, dedications, a~:d other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying with all of the requirements of Section 66020, you will be legally barred from later challenging such exactions. Any interested person, including the applicant, prior to seeking judicial review of the city council's decision in this matter, must first file a petition for reconsideration with the city clerk within ten days after the council's decision. Any petition so filed must comply with municipal ordinance code X2.08.096. Sincerely: ~~ Grace Schmidt Deputy City Clerk cc: Community Development 1-15 Attachment 2 RICHARD K. ABDALAH, EsQ. EMAIL: RABDALAH@ABDALAHLAW.COM WWW.ABDALAHLAW.COM ABDALAH LAW OFFICES A PROFESSIONAL LAW CORPORATION 10455 TORRE AVENUE CUPERTINO, CALIFORNIA 95014 TELEPHONE: (408) 252-5211 FACSIMILE: (408) 996-2004 EMPLOYMENT, REAL ESTATE, BUSINESS, CONSTRUCTION, 'I7tANSACTIONS AND LITIGATION MIItIAM H. WEN-LEBRON, ESQ. EMAIL: MWENLEBRON@ABDALAHLAW.COM MEGIIAN E. JUHL, ESQ. EMAIL: MJUHI,@ABDALAHLAW.COM July 29, 2009 Cupertino City Council City Planning Commission Planning Department 10300 Torre Avenue Cupertino, CA 95014 Re: Use Permit Modification Request 20130/20132 Stevens Creek Blvd. Dear Members of the City Council, Planning Commission and Planning Department: I am writing this letter on behalf of Cupertino Adobe LLC which is owned by Catherine Chen and her husband. As explained hereafter, Ms. Chen recently purchased the property located at 20130& 20132 Stevens Creek Blvd. from the Pinn Bros., believing the property could be used for commercial/office space. Ms. Chen planned to move her State Farm Office to the existing empty unit. For reasons explained hereafter, Ms. Chen is asking the City of Cupertino ("City") to issue a modification to the use permit to allow both retail and office use. Presently, the property has a use permit allowing only retail. When Ms. Chen was considering the purchase of the property, her agent contacted the City Planning Department on at least two occasions to insure that the building could be used for office space. On both occasions the agent was informed that use of the property as office space was permitted. After close of escrow on July 10, 2009, Ms. Chen went to the City to begin the process of obtaining permits for various improvements, including signage. That was when she was informed that the property was zoned for strictly retail use. After getting over the initial shock, Ms. Chen downloaded from the City records a report on a recent sale at the same address and the records show that 20128 Stevens Creek Blvd is zoned to allow "Commercial /Office /Residential" uses. A copy of the printout is attached to this letter. Given the information on the public record, Ms. Chen reasonably believed that an office would be a permitted use. In light of the circumstances, Ms. Chen is requesting that 1-16 Cupertino City Council July 29, 2009 Page 2 the City approve a modification to the exiting use permit to allow office use as well as other commercial uses. At this time, the unit in question is partially vacant and generates no sales tax to the City. If Ms. Chen, who has been an active member of the community for many years, is granted a modification to the use permit, the unique circumstances will not set a precedent. Furthermore, the opening of the office will generate sales tax from restaurants and other retail that her clients are likely to patronize in the Cupertino area. For the reasons explained above, Ms. Chen respectfully requests that the City issue a modification to the existing use permit allowing commercial/office use of the property located at 20130 and 20132 Stevens Creek Blvd., Cupertino, CA. Thank you for your attention and consideration. Very truly yours, ~,'~ w.~IL.~i1~ RICHARD K. ABDALAH RKA/drr Encl. Cc: Client 1-17 i`~,~vi ~ City of Cupertino Parcel -Detail Report Yage 1 of 1 APN 369 03 001 Secondary APN Owner Chen Jenny C In Ca re Of Situs Address 20128 STEVENS CREEK BLVD CUPERTINO, CA 95014 Mail Address 20128 Stevens Creek Blvd Unit 11 Cupertino, CA 95014 Transfer pate 20061211 Document Number 20242543 Document Type GRDE Price $223,000 Price Transfer Date 05/07/2009 Prior Price $223,000 Sale Price -Full/Partial FULL Use Code 06 Trail And lot 97621 Census Trail 5080,01 Assessed Total Yaiue $3,154,660 Land Yalue $136,656 Improvement Value $1,400,000 Structure Value $ Percent Improved 96% Nome Owners $ Exemption Type Tax Rate Area 13003 Tax Amount $42,035 Mapgrid E7 Subplat ADOBE TERRACE Zoning P Land Use Commercial /Office /Residential Li ht Air TM Number Front Street Side Address Owner Phone 0 Tenant Phone Distn'ct Data School District Elementary School High School CUPERTINO UNION FREMONT UNION Title Company Recorders Map Number Recorders Page Number Of Buildings Assessor Map Assessor Map Index-IO FIRST AMERICAN TITLE 0 63 9 03.Ddf 369-IO.adf Total Rooms 0 Lease SgFt Year Built Fire Bedrooms 0 Office SgFt Effective 0 1st Floor NaN Bathrooms 0 Rental SgFt NaN Dishwasher 0 2nd Floor NaN No. Of 0 Lot SgFt 36,155 Tennis Ct 0 3rd Floor NaN Dining Lot Acres .83 Frame Type Elevator Family Lot 108x338 Total Units 0 Wall Height 0 Rec Roam 0 Cntrl 0 Patio Utilities Utility Room Bldg Class 0.0 Porch 0 Water Fireplace Bldg Shape Garage Type 0 Electric Pool Bldg 0 Garage Gas Service Sauna Bldg SgFt Garage SgFt 0 Useable 36,504 Addition NaN P/anninQPro, "e~cts_ File Number A-2 00- 1 ~ A-2004- 2 ~ TM-2005.02 ~ U-200 -O1 ~ -20 4-01 ~ http://gissvr/cupertinointranet/home/XSLTransforfnef.~spx 7/23/2009 Attachment 3 -----Original Message----- From: Howard Jensen [mailto:mathteach@earthlink.net] Sent: Tuesday, August 04, 2009 6:41 PM To: lgiefer@sbcglobal.net Cc: orrinmahoney@comcast.net; DaveK@cupertino.org; Catherine Chen Subject: Catherine Chen Hello, My name is Gail Jensen and I have been a Cupertino resident for 55 years. I am a 40 year veteran teacher retired from the Fremont Union High School District and currently serve as President of the Cupertino Quota International Club. I am writing to you on behalf of one of our outstanding members, Catherine Chen. Catherine bought a piece of property in good faith on 20132 Stevens Creek Blvd. In Cupertino (the old Adobe Restaurant property). The sellers never informed her that the property was restricted to commercial sales use only. Catherine, a loyal Cupertinian, who has served as President of the Connect Club II of the Chamber, voted best small business by the World Journal, raised via her own efforts a team for Cupertino in the Relay for Life, and currently serves as first Vice President of Quota International, has been hoodwinked by the seller and given the cold shoulder by the city and Planning Commission in General. I encourage you to think about the customers for local businesses, such as restaurants, that could be generated through Catherine's insurance customers, and to remember that in tough times we want to encourage businesses to stay in our city, a city we all love and want to see continue to be supported by its constituents. Sincerely yours, Gail Jensen mathteach(a)earthlink.net 1-19 !\ ALAIN PINEL August 26, 2009 To whom it may concern, This letter is to verify that as the Buyer Agent in the real estate transaction of 20130 & 20132 Stevens Creek Blvd, Cupertino CA 95014, closed on July 10 2009, we have never received any of the following permits or letters concerning the Property as only a retail-use, from the Seller, Adobe Investment Inc., Pirin Brothers: (1) letter from Grace Schmidt,. Deputy City Clerk of Cupertino City, to Greg Pinn, dated~on March 3, 2005 -total 7 pages (2) letter from Jeff Curran, COO of Pinn Brothers, #o Kelly Kline, City of Cupertino Planning, dated on February 2fi, 2008 -total 1 page Regards, d -~ Joseph Yen DRE#01136969 Alain Pinel Realtors Lily Fu DRE#01842120 Alain Pinel Realtors 12772 Saratoga-Sunnyvale Rd. I Saratoga, CA 95070 I Office 408.741.1111 I epr.com 1-20 Catherine Chen From: Winnie Pang Sent: Monday, August 31, 2009 3:38 PM To: Catherine Chen Subject: Letter to City Hall TO: PLANNING COMMISSION. CITY COUNCIL FROM: Xuan Pang My name is Xuan Pang. Catherine Chen is my State Farm Insurance agent for the past 8 years. She and her husband bought the building on 20130 & 20132 Stevens Creek Blvd, Cupertino, in July 2009. Because the builder/seller never disclosed to her that building is zoned for Retail Only during the real estate transaction. Catherine Chen learned this Retail use permit issue when she's ready to do the tenant improvement from the City Planning Department. Now she cannot move in her new purchased building for her own insurance Agency. Now she stuck with mortgage payment (from August 1) and monthly rent to her current location's landlord and the $4,446 hearing application fee to the City. No one can afford 2 rent checks every month for a short period of time. This prolong period will cause the financial hardship for Ms. Chen or anyone who is in her shoes. Since 20132 Stevens Creek Blvd. has been vacant for more than one year. Vacant, one more empty space on Stevens Creek Blvd. The empty storefront does not generate any sales receipts to the City of Cupertino at all. It just shows to the drive by people that the economic is down, nobody wants to bring their business to the City of Cupertino. Why not let Ms. Chen move her insurance agency into the space? Since Ms. Chen is also the victim of the purchase transaction. Catherine Chen Insurance Agency has been in business since 2001. Her office is very successful and has lots of customers, her office is always clean, professional and profitable. Ms. Chen's policyholders will move with Catherine to her new location on Stevens Creek Blvd. and will definitely bring their business to the nearby restaurants, hair/nail salons, sandwiches shop, title company, etc when they get to know more about the nearby businesses. This is win/win situation for City of Cupertino and Ms. Chen. Catherine has been active in the Cupertino community, Chamber of Commerce since she's in business in 2001 she has been president of AABC (American American Business Council), Bridge Award winner in 2005. Board of Director of Chamber of Commerce in 2006, Catherine was the team captain for Relay for Life in 2008. Catherine raised $5000 + for American Cancer Society within one month. We all want successful business to come and stay in Cupertino. Catherine Chen Insurance Agency has lots of walk-in which generate lots of foot traffic to and around her agency. All her policyholders will definitely give their business to nearby other kind of business, i.e. restaurant, hair/nail salon, healthy food, groceries, etc. Please consider use permit modification on 20132 Stevens Creek Blvd for Catherine Chen. 1 1-21 ^ u rin u A Class Above. Guaranteed"' Thursday, August 27, 2009 AlmadenCenter • Almaden Eap. And Via Valiente • (408) 997-7590 Cupertino/Saratoga Center • De An7a and McClellan • (408) 446-4955 Los Gatos Center • By Los Gatos High School • (408) 399-9745 Willow Glen Center • Lincoln and Curtner • (408) 979-9900 To Whom It May Concern: Catherine Chen's Cupertino State Farm office has been located next to my tutoring business for the past 7 years. During that time, Catherine's business has been a perfect complement to my business. Her up-scale, affluent customers frequently became customers of mine. In addition, during that time, I have never had any difficulties with her, her business, or her clientele. If you have any questions or concerns, please don't hesitate to contact me directly at (408) 446-4955. Sincerely .- Mike Flynn Owners 1-22 Aug 27th, 2009 TO : CITY OF CUPERTINO, PLANNING COMMITTEE & CITY COUNCIL FROM: Daniel Yang I've been long time Cupertino resident resides on Heatherwood Dr. Catherine Chen has been my State Farm agent for the past 8 years locates at10555 S. DE ANZA BLVD, STE 125. She always employs 2 -3 staffs in her office. Her office has been successful, clean, professional storefront and lots of foot traffic visiting her office daily. Her nearby businesses have been benefited from all of her office being there since 2001. Now Catherine and her husband bought the building at 20130/20132 Stevens Creek Blvd., Cupertino. In observing the office moving to the new location, all of her clients will continue to visit her office to make the payments, get the quotes 8~ get insurance advice and eventually get the chance to know those business surround her new location. All those restaurants, grocery stores, sandwiches shops 8~ furniture stores will be benefiting from her move. Also we strongly want the successful business to stay in Cupertino. Since recent economic down turn and not knowing how long it will last. We need profitable business to move into the vacant storefront and to generate more business to nearby business in our city. I sup-port Catherine in moving to this new location and wish her continue success in her business. Sincerely, (~ Daniel ang 1-23 -.: 1. .61 C (::• ~ d :: ~ , rt__ .r wit .. n.F ~ -~ l.tr . . ~ -. .... ~.... ~ n. ~~ ,~ .... - ... _ .. r. H .- .. - Attachment 4 •~ ~ Cyty Hall _ ~ 1030 ToI•t•e Avenue ~i~ ~. Cupertino, CA 95Q 14-3255 C1.1-Y QF Telephone: (408) 777-3223 ~ .~. ~ ~ ~~ ~ r-A~:: (40S) 777-3356 ~~ b it i ,. e s e: vv~~~~.cuoerr t~o.ar _-____~ OFFICE OF THE CITI' CLERIC ~llarch 3, 2005 Greg Pinn Pinn Bro~he:rs Construction, Inc. 1475 SaI•atoga Avenue, #250 Stan Jose, C~~ 9S 129 lZe: Consider Application No.(s) U-2004-Oi, ASA-2004-02, BA-2004-02, Greg Pinn (Pitul l3; others Construction), 20128 Stevens Creek Bpulevard (foraner Adaba Lounge), APN 3G9••~3~-001: a) Negative Declaration b) Revised Use Permit for a mixed-use retail (2,395 square feet) and residential condominium. (23 units) develup]nent and for the demolition of an abandoned restaurant building c) Revised design for an Architectural and Site Approval for amixed-usE retail (2,395 syaare feet) and 23 condominium units Dear Mr. Piru]: At its March 1, regular meeting, the Cupertino Cit<~ Council grat]te.1 a Negativz Declaration, accepted the revised Use Permit subject to staff recommendations listed below, and appl•oved tl]e; t•evised desi,~~ for Architectural and Site approval subject to the conditions set forth in the Use P~nnit: a The approval i ;based on the current revised plan set and revised project of 2,395 square. feet of retail space and ?3 residential cordonuntums, and o That applicable developnYent fees Ue cormneusurately adjusted to reflect the reduced scope of the project; o Aril the use perniit conditions of approval be a.tnended to restrict the colninercial building space io only aretail-use. ~~,» ; ~,~` ,~~. ~ +~: ,~ 1, ~ ' 1 .24. - - ~ - ~ ti~~it al-+l?licat~l develo~zmer2r fet~s~ Ue cc~rziti~c~i.~strra.#~~i~~ <itijt~s°t:~ci tc.~ ~~c{icrt t12~.~ ;.~ciicecl sct3pc~ of #kic~ pxoject, a.rid . e the i.2S~ ~~'r~11it CC)I~:IIttOT2S of ap~rt)1%~11 bE' ?~L31t'.ild('.d tCs r['str2st ~'~~~' i_~?i~Firi~i'C~:i~il btlilt{in~; space tip ~:)~-il}T a retaii usi. T~raj~:ct l'~a~ae C~n~rai Flan l:)esigi~~ttit)ii: ~:om~nerciai/t~ffit,e/l~esic~er~tial ~otti.ng llesigit>;ti~r2: P(~te~~~ens Creek 13~ulevard t~'~~r2r~r t-~a1 %orx~ni;~ ~sp~~r, ifie f'lar~:. 1•-Ie~-2rt of the City Specikic T'l~n 1~1ef ~c>;eage: 0.34 acre C~ros~ [$.cx~a~e; x:92 acro ~c;tu~~ Residei~fi~2l lr~n~ify 33.3 Dtt/Net Ac. ~ila~wed T?ci~sify: 35 Di2,ll~i~t Ac. ~t©ries: 2 statics ><'arkir~~ ~~~uired: 5E~ spaces Ca2n.r22e~`cia9 = {'1 stall/2a0 sq. fe.j ?_,39~ sq.ft.[ 250 = l0 stalls. Yiesicl~ntiai - ` (~ ~tal;s/apt:) x 23 apts.= ~6 stalls ~'arkir~~ ~upp~ied; fi7 spices ~ra~ect C~`tansisfea~~y ,with; E,~~er~I i"~an: Yes 5p~cifi~ Plan~Z..~ning: Yes ~n~irm~t~slez~tal ~a.ssessmen4: I`~e~;aii~~e ~Declaratia~3 ~ACt~~l?OUTgiD At its nleetin~ r~# Octciber 2(~, 200, the I~lar-ning Con12r-ission re~~iewed a slightly differ~yi~t project that inclu~,tec~ 2,000 sctuare feet of commercial a21d 2~ apa2-t>-~ieritsr and votcci (5-0) to rer..o~2nlenc~l approv~il cif the project. Qty ~toveinber 26; -2004) the City Council reviewed the pr~:~ject recomrt~er2ded by tine plailr~in~ Coinrhission. several council nc~2•nb~rs corrux2e2~cfecl oil the previous use.of this site for. commercial p~22~1~~5es, i~icluding tl~i; aband~z~ed aclob~ LUUr~e T~estaurarit~ ('x;600 sciuare fe~~t~ anti the expired al~pra~l:il fc~r n 77-ti2'iit hs~tei: `~'h~y expressed their G~ncerns ~ritf2 the current, ii~ixed-izse rede•c~elopmer2t proposal that er?~i.pha"sizes residential (29 apartrr2e21t units) and less conzi~iercial space {2,000 sgi2~re fe~t~ and statr~d a pi•~~fererice fox a I~trger retail conipor~ent. Tl~c caunc:i4 nlemih~s xequeste~i that ~ retail corisulcant be retain~~cl to advise the CikV Co~.~ncii o2~ the romrr2ercial ~~iat~ility cif small a~-2cl narrow ct~2nmexrial lots i~~ tl~~~ mice-k~lock a2•~~a alc.~~i~ ste~re~n~•, Creek Bo;~levard, y ~.~t1 ji~I.lilrai~t~ `~~ ~.(#0~~ t#lE' C.i~t}' ~.:~a~zrieYi cc~nrintaed t#~e project ft~r car to tl~res~ I~tott~E?:-- :~i';Ci c-lirti'~tc~i tile? appiici;I~t i:o: ~ ~ed2lce tl2t~ IlUi'~13is2' t~f residel~tia~ utii4; ~I1c:I•~~as~: ~-1i~ ~}za~c~u~~t of coi~unercial square foot~~s~~; s iYreft~ase file nu~i~l~ei~ cif s~Irface parking ;tails; lii~lit #i~e use ref file c:oni~i~erci~li space to a ret~Iil use; Iu>t perSC~I~_3# ~,ervicis SIXC7~15j t1Tic.~ ~9 ilrrc~as~~ file ~~tixl~till# 4~~ali setback to ~Z#eet, i~.~avin~ the t~cs.lit~I7t parking E~r~~il at ~ f~:E-i car I~sS. "Ilse-fr~ject ~.~~~s to be r~~-l~otfre~i tiefol'e ret~.~rning to thE~ ~ouricil. ~v~arrc:fd ;flfreetioiss Tate applica~'it cc~tnpliec~ t~vitl`I tizo City CouncYl's direction in the faII~>~vil~; vr,~ay~s; r _..._._ _.._. !~.L3L1lC~~ ~~:zrc~ttl©I1T ~.__. R~~uce file azua~f?r~~ of reaic~ealtial units ~ In~reas~ the comiaterci~~I 5 bare fCtt~ra 7e __ _ ~.:_.__.. ~~z. TilcrQase fhc~ ttt~nibex Qf .;urfas:e ~77r~ing . t r'S'1~ ~ k s ~s? ~r j't:y x x~ 2r3 _ 2,~~'0 s f t. _ _ _ .-.. a:.._. _. _ . _--- ~ ~ - ~ ~ C`'u~ ; *`; ~t C'x°o~e~s~ t _23 _ _-~ 2'r'3~5 S;~ ft -._ ._ ._ ~..... ~ ..~ _ .--- ~ i Limit ~~itli~lerciZl usc~ tc~ a retailer. N/ ~ Conditioll ofd ~ - -- ._ _ ~ -- -ar?prot~al - Increase ~icle sett~~c:k to `i? feet; parking ` Si~~le setback ?0 feet; Sidi s~tUE~c3 poc~i~irri ~.1Ta)l at ~ feed ter loss podir~.In wall 4 feet recluireinexlt ~ti>7s or. less addressed by 1 - - rec~~cif ~g the i ~~eig}~t E1i.tllc i ~"JIiI#C~lrl~ fJ~ ~ ~ lo,n~eri~lg the - podium wall. l/~ception for ~idc setback .is ~~o __----._.._..~___._._ ._-- _ --__-- -- loiil~ei ileet~ed. 'T#~c re;~~~ietioii of re~ic~en~es ~v~is achie~~ed liy eliinihating the units above ti.e co~YU~ierci~# space and corn},irlirg so~n€; of the or:e-bedroom units, }~trri~ing 1~-~cfre 2-bedrooiln idni~S ~.n141 clt? ~xtr•~a 3~'bedroolli unit-. 1'#tc'. proposal l,as cl~angeri front afa ap.artineilt project t~~ an ov~rilersl~ip conclanliniLlll-n proje:.t. 1-26 _ - ~ ~ { ... _. *.~~}3~ if,R 1'p~dlC"a]d - ` iyr~Yjll~l.~ s~} Y4 ~9~J ~~~ ~L/l~L~C ~ZV~•~ t ~i I ., ..__- ' ~ ~?L'dl tlOii\ ultl~ --- - - - - _'' lf~ -~ - ._..W._~~.._~__._-._ _ _______.______._._____~__ 2~ l'lte ~p}~lir~7~zt has also l~oti~ored. the overall hei~;l~t of the projt1c:t ~,y drop~aing t1.FT par~iing paclit;i~t to ~Tr~•tc~e Iewel. `l'liis has eliminated tl~e ~?eed fc~t~ ~ 1-1ca~•f. a~ il:;:' ~t~l' Srdc' ~etbaClC 2?CC~pt1oll ~~C~l.l~.~t SiP,,Ce: ~1~,€'. 1111i111I1i.~II1 52C1~-' 'i~~15d~~ bS ~.~ fC't.'i, v-rhi~lz i.I~alf tlae Izei~ht of the ~iuiIclin~~vall ciE 20 fec}: .l't~rki~t~= Tl1e applira~~k is-providing tkie full code rec3~iireci parking for }he proj~>ct pIazs "1'I extra parking stal.~s, Also, he is not e~untinl; any shared use of, paikir~g, t'V1iC~'t is tv~f~irally per~ni~teci !or Mixed use prajec:t. Hence tl~ie parking is ad~:~:~tzatc, f'repaped lay: Colin Juig~; Se~~ior .l-'laxtr3er E1F;~[.~S~JIt~S I'lat3ni€~l; ~omaa~~issiott ~2eso~~,tions rdc~s..G27t), ~~$0 I'laruting C~~n~~tission ~tatf report d~t~d lU/~f~/(~? L?RC Ree~ixtn~eaiziat?c~i-, Ini~itzl Sfudy~, I~regatir~e t?ec~i3i'ntiiln Pl~tai ~t . j' SubrY tt~~~ big: approved by: ;f ,,~~ - Steve Piasecl;i Director, ~ommunik}~ U~vel~pment G:\PIa>>nir~gll?L P,EI'C?iZT\C:C\ U-?0~:-01 cc~'~.doc ~~ . ___ t7avic~ ~V. i~napp - ___._ City :`Manager 1-27. Attachment 5 November 16, 2004 Cupertino City Council Page 6 22. Con u e first reading of Ordinance No. 1953: "An ordinance of the City Council of the City of Cu o Amending Section 2.08.090 of the Cupertino Municipal Code regarding the Order of Bu ' s far Regular Council Meetings." Lowenthal/Kwok moved and seconded le the item, and the motion carried unanimously. RECESS PUBLIC HEARINGS 12. Consider Application No.(s) EXC-2004-15, U-2004-01, ASA-2004-02, EA-2004-02, Pirtn Brothers, 20128 Stevens Creek Boulevard (formerly Adobe Lounge), APN No. 369- 03-001: a) Grant a negative declaration b) Approve an Exception to the Heart of the City Specific Plan fora 5-10 foot side yard setback c) Approve a use permit for amixed-use retail (2,000 square feet) and residential (29 units) development and the demolition of an abandoned restaurant building d) Approve architectural and site approval for amixed-use retail (2,000 square feet) and residential (29 units) development Applicant Greg Pine gave a brief history of the project and the uses that had been considered for this site, including a hotel. He said that 80% of the side yard setbacks exceed the minimum requirements. He said they are requesting two exceptions: To improve pedestrian and vehicle access, and to accommodate the garage for underground parking. He said they have worked with staff for over 16 months on 7 different designs and 3 different submittals. The applicants also met with the Concerned Citizens for Cupertino to discuss some project variations. He said the current proposal would bring in $25,000 in parks and recreation fees and provide 4below-market-rate units. He said that all of the residential units would be rentals, and the retail use would probably be something like a dry cleaner or a hair salon. Curt Anderson, the project architect, explained the side yard exceptions in more detail. The Council members discussed the project and their concern with the amount of residential use at this particular site, which they felt might be better suited to a commercial use. 1-28 November 16, 2004 Cupertino City Council Page 7 Greg Pinn explained the limitations on the site because of the long-term, very high lease rate, and how difficult it has been to build anything economically viable. The Council members discussed the possibility of continuing this item in order to rethink what kinds of uses they would like to see along Stevens Creek Boulevard, as well as obtaining an analysis by a neutral party such as Randall Mackley, and the applicant agreed to a continuance. Council member Lowenthal moved that the item be continued to January 4, 2005. The City Attorney said that the question for staff to study is whether there is a reasonable theoretical use of the property without constraint, as opposed to the use of the property with a $15,000 a month lease on it. Patrick Kwok seconded, and the motion carried unanimously. Road, APN No. 342-18-020: Grant a negative declaration b} rove the rezoning of a i.31-acre parcel from RHS {Residential Hillside to RH 1 (Residential Hillside Minimum Lot Size 21,000 square feet) c) Conduct t first reading of Ordinance No. 1950: "An Ordinance of the City Council of th City of Cupertino rezoning of a 1.31 acre parcel from RHS (residential hillsi to rhs-21 (residential hillside minimum lot size 21,000 square feet)" Marcus Nelson, representing the o ers, said there is a 20-25% slope from the building site to Stevens Canyon Road and that ' too steep for access without significant grading and retaining walls. There is also truck affic on that road, so that is why they need access to San Juan Road. Dean Sayer said he lived about 3 doors away fro this property. He said he was not opposed to the project, but was concerned about its 'tort', because it was legally but forcibly taken away from previous owner. He explain that the owner had tried to subdivide but was refused by the City, which then took p of the land for Stevens Canyon Road. He was concerned about the possibility of 3 large mes in this area. He also asked a question about the sewer capacity. Community Development Director Steve Piasecki said that the owner will required to meet the Sanitary District's requirements to provide sanitary hookups and t impact other residents. He said that he would confirm that this unit meets the second uni oning requirements. Kris Wang asked if this type of subdivision of lots had been done in other adjacent' properties. Piasecki said that the Dor property is the most recent, and it is located farther ......41. Li,~ .~.,«t...«...7 ~l.,.t aL:,. ~_.._~._..1 _,. ~r±l.-~_~~ __._~L aL_ _'~_7_ ~l_~ 1`__ .L_ ____ 1-29 January 4, 2005 Cupertino City Council Page 5 James/Lowenthal moved to deny the appea lanning Commission 15. Consider Application No.{s) EXC-2004-15, U-2004-01, ASA-2004-02, EA-2004-02, Pinn Brothers, 20128 Stevens Creek Boulevard (formerly Adobe Lounge}, APN No. 369- 03-001. {This item was continued from 11/16/04}: a) Grant a negative declaration b) Approve an Exception to the Heart of the City Specific Plan fora 5-10 foot side yard setback c) Approve a use permit for amixed-use retail (2,000 square feet} and residential (29 units) development and the demolition of an abandoned restaurant building d) Approve architectural and site approval for amixed-use retail (2,000 square feet) and residential (29 units) development In response to a request by a Council member, applicant Greg Pinn said he was not in favor of continuing this item to a later time. Community Development Director Steve Piasecki reviewed the staff report, and introduced Randol Mackley, a principal with The Real Estate Group, and explained that he was a consultant hired by the City with funds provided by the applicant. Mackley explained that he had been hired as a neutral party to report on the viability of retail development in the Stevens Creek Boulevard area. He said that the Adobe Lounge site is in an area with an excellent demographic with a high level of traffic. However viability of a retail use is limited because the narrow street front area, and there is little space is available for parking. He said he would recommend a quality retail use on the Stevens Creek Boulevard side of the property, with far better architecture than is typically seen. He suggested a use such as a higher end jewelry store, men's apparel, etc. He talked about the site of the former Santa Barbara Grill and said that lack of access eliminates any success for retail, and would remain a problem for a restaurant. Mackley suggested the Adobe Lounge applicant discuss his site with a real estate advisor, and emphasize improvements in parking and trash management. He said the proposed 2,000 square feet is viable and has high probability of success in terms of leasing. Kurt Anderson reviewed the site plan, parking spaces, elevations, circulation plan, and Iocation of trash enclosures. He said there would be 1, 2 and 3-bedroom units. 1-30 January 4, 2005 Cupertino City Council Page 6 Senior Planner Colin Jung explained that the proposal is consistent with the Heart of the City plan, as well as requirements for parking and traffic Level of Service. The applicant requests an exception to reduce the side setback from 17.5 feet to 5 feet for the four foot tall parking podium at the rear of the property, and walls would have a minimum setback of 10 feet. This request is necessary to create the underground parking area. Virginia Tamblyn, Bixby Drive, felt the project was poorly planned, that underground parking gazages are unsafe, that building is being crowded into the space, and there will be a negative impact on adjacent housing units. Tom Hugunin, Loretta Court, felt the decisions should wait until the General Plan is done, and the current proposal seems to be token retail versus primary retail. Deborah Hill, Cupertino resident, agreed that underground parking garages are unsafe. The public hearing was closed at 9:10 p.m. Council members discussed the matter, and James/Wang moved to deny the proposal. Greg Pinn said he did not think that the Council had a legal right to deny this project. He said that a hotel had already been approved for this site, and it was larger {3 stories), and right on the property line. Three years later, after spend hundreds of thousands of dollars and receiving no opposition from the public and full approval from the Planning Commission, a continuance had been agreed to only so that Randol Mackley could report to the Council on the viability of retail uses on Stevens Creek Boulevard. After further discussion among Council and the applicant, Pinn indicated he accept a 3 month continuance to address design-related issues. James withdrew her previous motion, and offered a new motion to continue the item for 3 months subject to additional public notification, to give the applicant time to review Council's input and make adjustments to the plans. Sandoval seconded, and the motion carried by the following vote: AYES:. James, Lowenthal, Sandoval. NOES. Wang and Kwok. The Community Development Director summarized the Council's comments as follows: The City Council requested fewer units, mare retail, more surface parking, greater setbacks to match at least one-half the building wall height and/or one-half the roof height as they go away from the property line; assurances that the retail tenants will produce retail sales tax, such as restaurants and product sales; uses would not include personal service establishments; and underground parking was not adeal-breaker. 1-31 January 4, 2005 Cupertino City Council Page 7 James asked that the record reflect that she did not think the Council should wait for the General Plan to decide on this project. She also said that it was appropriate to compare this proposed residential use to a hotel use, because a hotel brings in much more revenue, and residential uses cost the city more in services. Kwok said he was opposing the project because he felt it was too dense, the type of retail he expects there is not realistic, and he strongly believed there should not be exceptions. The ~uncil meeting was recessed from 9:42 p.m, until 9:50 p.m. PUBLIC 1~ARINGS (continued) 16. Consider~pplication No.(s) M-2004-09, R-2004-40 for Centex Homes, The Murano Developme (formerly known as Saron Garden) and adopt resolutions: a) Modificati s to the previously approved site plan of use permit no. U-2003-02 to widen Poppy ay from 28 feet to 36 feet to add a parking lane, Resolution No. OS-010 b} Exceptions to the Rl finance allowing reduced setbacks and floor area ratio over 45% for two single- ily homes located on Poppy Way, Resolution No. 05- 011 The City Clerk distributed a letter da Dec. 19 from Gary Albright opposing an exception for reduced setbacks and floor are atio over 45%. James clarified that the exceptions are requested the community and are not made to benefit the developer. Jennifer Griffin said the pictures showed that there was an vious danger because Poppy Way was not straight, but in this situation allowing only a -foot backyard for a large family home was not a good precedent. Greg Maleski, Poppy Way, asked the Council to remember that the o`~ter houses across from these very large homes are two single-family homes of only 1 S00 sq re feet each. The public hearing was closed at 9:58 p.m. James asked that the record reflect that this action was taken at the request of the P~py Avenue residents, and she hoped that the results of straightening the street would b satisfactory. She expressed concern that the new alignment would increase speeding, and 1-32 March 1, 2005 Cupertino City Council Page 3 Blvd. (formerly Alotta's Delicatessen}. 9. Adop resolution approving a Maintenance agreement with Civic Park Master Associatio , caner of all real property and improvements consisting of Lot A as described on Tra o. 9535, and the City of Cupertino, Resolution No. OS-035. 10. Adopt a resolution appro ' the First Amendment to the agreement providing for implementation of the Santa C Valley Urban Runoff Pollution Prevention Program, Resolution No. OS-036. 11. Adopt a resolution approving an Improvement a ement for Mehdi Moazeni, a married man and Mohsen Amini-Rad, an unmarried man as 'nt Tenants, 10580 San Leandro Avenue, APN 357-OS-045, Resolution No. 05-037. 12. Adopt a resolution approving a Grant of easement, roadway, for ehdi Moazeni, a married man and Mohsen Amini-Rad, an unmarried man as Joint Tenan 10580 San Leandro Avenue, APN 357-OS-045, Resolution No. OS-038. PUBLIC HEARINGS l3. Consider Application No.{s) U-2004-01, ASA-2004-02, EA-2004-02, Greg Pinn {Pinn Brothers Construction), 20128 Stevens Creek Boulevard (former Adobe Lounge), APN 369-03-001: Applicant Gregg Pinn reviewed the history of this applications for this site, mixed-use residential, and a large hotel use which had been approved but not built. He discussed the most recent changes made at the request of Council, which included lowering the height, reducing the density, and increasing the retail size and allure. He showed a rendering of the latest plan and explained that they had eliminated the residential portion over the retail, so the retail would stand out more, and they also added another surface parking stall. Kwok said that at one time the Council had talked about an in-lieu fee to make up for a reduction in retail. He asked what the applicant could do to make up for the loss of revenue, such as putting funds into an additional park fee or the general fund. Pinn said he's looking into a way to donate funds to allow the library open to stay open on Sundays as well as funds for park fees. Council member James said the City Council does not currently have a policy to require in Iieu fees for reductions in retail. She said that it would be great if the applicant wanted to make a donation to the library, but any in-lieu fee requirements must first be discussed 1-33 March 1, 2005 Cupertino City Council Page 4 and adopted by the City Council and shouldn't be discussed during the review of a particular project. Bob McKibbin, Cupertino resident, said he felt the process was confusing and the numbers were fuzzy; that this is still a residential development with a negative impact on city revenue and on schools; and that there is insufficient parking. He suggested that the City hold out for retail, or at least send the revised project back to the Planning Commission for review. Tom Hugunin was opposed to the project. He said there was limited maneuvering space in the parking garage, and said the project appeazs to offer token retail in exchange for residential. Dennis Whittaker said he was concerned about insufficient parking, impacts on schools, sales tax replacement, and how below-market-rate apartment dwellers could be forced out when the units become condos. He asked that the project have more retail, more parking, and less density. Wang moved to send this item back to planning commission for further review. Kwok seconded, and the motion failed with Council members James, Lowenthal and Sandoval voting no. LowenthaUJames moved and seconded to approve a Negative Declaration. The motion carried unanimously. Lowenthal/James moved and seconded to approve the revised Use Permit for amixed-use retail (2,395 square feet} and residential condominium (23 units) development and for the demolition of an abandoned restaurant building, subject to the staff recommendation as shown below. The motion carried with Kwok and Wang voting no. o The approval should be based on the current revised plan set and revised project of 2,395 square feet of retail space and 23 residential condominiums o Applicable development fees should be commensurately adjusted to reflect the reduced scope of the project o The use permit conditions of approval should be amended to restrict the commercial building space to only a retail use o The building permit plans shall substantially conform to the rendering submitted at the City Council meeting as determined by the Design Review Committee in consultation with the architectural advisor Lowenthal/James moved and seconded to approve the revised design for an Architectural and Site Approval for a nuxed-use retail (2,395 square feet} and 23 condominium units, 1-34 Mazch 1, 2005 Cupertino City Council Page 5 subject to the conditions recommended by staff, above. Motion carried with Kwok and Wang voting no. CATIONS (continued) Ned Britt, pertino resident, referred to an upcoming election for a parcel tax for the library district, whic would be conducted by a mail ballot. He asked if the City can use a mail ballot for elections of than filling Council seats, or if the initiatives were to pass in November, whether a mail bal t can be used if there are exceptions to vote on. The City Attorney said at Cupertino is following the election law that applies to municipalities, and the initiatives are alr dy set for election in November. He said that the library district election might fall under a sp ial law that allows mail ballots. Mayor Kwok reordered the NEW BUSINESS consider item No. 15 next. 15. Adopt a resolution approving a s '-rural designation to eliminate the requirement for sidewalks and streetlights for Scofiel rive, Sunrise Drive and the northern portion of Rodrigues Avenue, west of De Anza ouievard pursuant to Ordinance No. 1925, Resolution No. OS-039. James/Wang moved and seconded to adopt including language from the staff report rE unanimously. on No. OS-039, with a condition streetlights. The motion carved Mayor Kwok reordered the agenda to discuss item Nos. 21 and STAFF REPORTS 21. Receive a status report on weekly single-stream recycling and yard, waste service. (IVo documentation in packet). The City Clerk distributed a memo from the Public Works Director along w a brochure about the new weekly recycling program and illustrating the new garbage an recycling toters. Public Works Director Ralph Qualls said the weekly service will be fully impleme~ May, and Los Altos Gazbage Company will work with any residents to address regarding toter storage or placement. 1-35