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PC 09-08-09CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 CITY OF CUPERTINO PLANNING COMMISSION AMENDED MINUTES 6:45 P.M. SEPTEMBER 8, 2009 TUESDAY CUPERTINO COMMUNITY HALL The regular Planning Commission meeting of ;~eptember 8, 2009, was called to order at 6:45 p.m. in the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, California, by Chair Lisa Giefer. SALUTE TO THE FLAG ROLL CALL Commissioners present: Chairperson: Lisa Giefer Vice Chairperson: Paul Brophy Commissioner: David Kaneda Commissioner: Winnie Lee Commissioner: Marty Miller Staff present: Community Development Director: Aarti Shrivastava City Planner: Gary Chao Senior Planner AICP: Colin Jung APPROVAL OF MINUTES: None WRITTEN COMMUNICATIONS: None POSTPONEMENTS/REMOVAL FROM CALENDAR: None ORAL COMMUNICATIONS: None CONSENT CALENDAR: None PUBLIC HEARING 1. M-2009-07 Modification to an existing Use Permit Catherine Chen (U-2004-01) to amend the conditions to (Cupertino Adobe LLC) allow commerciaUoffice uses where only 20130 & 20132 Stevens retail had been allowed. Tentative City Council Creek Boulevard. date: October 6, 2009 Colin Jung, Senior Planner, presented the stalFf report: • Reviewed the application for a modification to the use permit to allow greater flexibility of use of the commercial portion of the mixed••use development. The original application was approved in March 2005 with the condition that limited the commercial spaces to retail uses only. Currently, the applicant wishes to utilize the vacant space as an insurance office which currently does not fall within the retail uses. Cupertino Planning Commission ~. September 8, 2009 He reviewed the general commercial uses included in the General Commercial Zoning Ordinance, which were outlined on Page 3 of the staff report. Reviewed the Planning Commission's options which include: • Approve the modification request and allow General Commercial (CG) uses with limitations; • Approve the modification request and allow General Commercial (CG) uses without specific limitations; or • Deny the modification request which would retain the requirement for 100% retail use. Catherine Chen, Applicant: • She reviewed prior modifications that were: approved similar to her request. She requested that the Planning Commission approve her request for 50% of the building to be used for retail and 50% for commercial office use. She stated that it was difficult to lease out the spaces to retail businesses only, particularly in the state of the present economy. She answered questions about the insurance company office hours and parking requirements for the tenants. Chair Giefer opened the meeting for public input. Vicky Tsai, business owner: • Supports the application. • Said that there are many building vacancies on Stevens Creek and she felt it was better to have a mix of commercial and retail, rat}~er than have vacant storefronts because of the restriction for commercial use only. Jody Hansen, Cupertino resident: • Supports the application. • Cited a example of a previous exception in 2002 which allowed a dental office to be located in a space which was originally restricted to retail; stating that the dental office is still located there and operating successfully. • She said that Ms. Chen's insurance office vrould be an asset to the azea on Stevens Creek as it has been a successful business and it is difficult to find good tenants, especially in the current economy. Rudy Elbogen, Cupertino resident: • Supports the application. • Said she supported the space being used for' commercial use as it is in an azea where there is residential and only one other retail store. It is a difficult space to lease out to retail since there is not a big draw to the public. The insurance office is a stable business which will occupy the space for a long period of time and be an asset to the community. Chair Giefer closed the public heazing. Com. Kaneda: • Said that historically they tried to keep retail in these azeas; is that still the feeling or aze there second thoughts about whether retail i;~ appropriate in this area. Colin Jung: • Said they conducted reseazch on use restrictions for many mixed use projects in the city which aze mostly small storefront, commercial spaces, some with pazking in front. It Cupertino Planning Commission September 8, 2009 appeared that almost literally without excerption, there were retail use restrictions on every one except the Verona project at Stevens (:reek and DeAnza, and called for uses that were pedestrian oriented day and night uses which could be interpreted to mean retail as well. Gary Chao: • Said that they do place emphasis on retail, especially along Stevens Creek; more when it is part of a shopping center. • The Planning Commission and City Council recently has provided examples of flexibility where you would place some percentage of a use on the building so that you can still have and preserve that retail component which ,attracts the activities and provides the filler; and they also considered the fact that the other spaces may be hard to rent out and allowed some flexibility in economic situations like this. Com. Kaneda: • Asked staff if there was flexibility of allowing one time usage and reverting it back to retail when the tenant moves out. Aarti Shrivastava: • She said that the Commission could, but noted that the applicant is the owner of the commercial space and would continue being the tenant until she sold the property. She said staff continues to look at active pedestrian oriented uses as good things, but also look at situations where it might be reasonable to provide some flexibility. Gary Chao: • One other consideration you would have to make is if you would provide some type of one time use allowance. It becomes difficult t~~ track sometimes; we cannot control the timing and don't know when that is going to expire;; it has to be somehow memorialized somewhere so that we don't get in a situation that is ,going to get lost. You could put in a condition where other uses that you may be concerned with would have to come back and have a use permit or something similar, as an alternative. Aarti Shrivastava: • Said that uses could also be limited; restriction to commerciaUoffice and not daycare or tutorial centers. Com. Lee: • Asked staff to validate the number of parking spaces for retail. The applicant talks about the number of parking spaces on the site. She said she found only 9; 6 on top and 3 on bottom. Colin Jung: • There are a total of 67 parking stalls for Aclobe Terrace; 7 on surface, 60 underground. The parking requirement is 46 for residential, l0 currently for commercial calculated at a retail commercial rate, leaving an excess of 11 stalls now. He said he did not know whether Ms. Chen had access to all of those 11, there m~~y be something in her purchase agreement or the CC&1Zs that says she doesn't have access o f all of those but that is what the project had built in over and above what was needed by the Uses of the property. Cupertino Planning Commission ~l September 8, 2009 Ms. Chen: • Said she had access to 7 on top for surface parking, and 9 underneath. She said she did not anticipate any pazking problems because people did not come all at the same time, and the most she has seen at once was three. Com. Miller: • Said he had no further questions. • Said he was sympathetic to Ms. Chen's comments; she presented examples of how the city has been accommodating in the past, and in those particular situations where it is not a larger center and is the stand alone small shops that have no synergy with other areas; it seems appropriate to show flexibility and allow other than retail uses to go in there. • He said he would much rather have filled space that is not retail than vacant space that doesn't generate any income and looks bad in the city in general. It doesn't present a favorable image when driving up and down the main streets to see a lot of vacant shops. • He said he would support allowing the exa~ption which is specifically what was granted the facility on DeAnza; it seems the right thing to do in this case. Chair Giefer: • Said that another issue was how to memorialize those things; one of the issues brought up was that when Ms. Chen purchased the specific building, the restriction was not readily available to her, even though she did try to get that information. How should they consistently memorialize these specific requirements; should it be done in a deed restriction or how else can it be done. Aarti Shrivastava: • Said the City Attorney suggested a deed restriction as the most obvious venue; so if someone were buying property, they would be able to go through their deed and see those restrictions. Com. Kaneda: • If all properties in the city have some kind of zoning on them, restrictions on what you can and cannot do, is this unusual case or is this just a case where the owner just didn't know. Aarti Shrivastava: • Said that most projects that have gone through the use permit process, do tend to have some restrictive requirements, typically the mixed use projects which have a pedestrian oriented or retail restriction. In looking at other projects too, sometimes neighbors who have issues come to the meeting and express concerns, :ind uses aze restricted. • Said the property restriction was not unusu~il to mixed use developments; but unusual in the sense that if you looked at the base zoning you wouldn't have known, until you looked into the project details. Com. Miller: • Said that after speaking with staff, his first response was a deed restriction; however, after further reflection, he was not certain it way, a good idea. It makes sense if they are certain they aze never going to want to change it for some unknown reason, and the obvious good example is landscaping which is for screening for one neighbor vs. another or landscaping for commercial. However, people are coming in for exceptions for these types of applications and it is to some extent a function of the economy and also of what is changing in Cupertino, and by putting it in the title, it makes it a lot more difficult to change and he said he was hesitant to do it at this point. Cupertino Planning Commission September 8, 2009 Vice Chair Brophy: • Said that once again, they are seeing another failed attempt of the city trying to force retail uses onto sites that simply won't work, and hopefully it won't continue in the future. In the meantime, they have to clean up the problem. • He said he did not feel the issue was a result of a bad economy; the project has been open for several years, during a good economy, just as VeMgie Vellagio and Metropolitan, so to say that this site has a problem because of a cyclical issue just doesn't comport with the facts. He felt the best way to deal with the existing ones that have to be cleaned up is to get the spaces filled up and not do this anymore. He proposed Option 2, since they did not know what the future of Max Muscle Shop was; it is only 2400 square feet that is in question, and he would rather see the space reverted to allow General Commercial uses as well. Relative to the issue of deed restriction, a potential solution is to put it in the deed restriction saying that this property is zoned under a Planned Development Ordinance in the City of Cupertino and that any purchaser should check with the city to find out what the restrictions are under the Planned Development, rather than listing the specific restrictions. Com. Kaneda: • Said he was sympathetic to the city's attempt to get retail in, because he felt some of the things that the city has tried to do are longer term and sometimes cause tension between what is happening in the short term and what i:~ happening in the longer term. Relative to this particular site, he said he agreed with the other commissioners that the site is so landlocked from other retail that it will be years before the building could have viable retail; and even in a good economy, it would be a challenging place to keep retail going until the rest of the neighborhood develops much further. • Said he agreed with Vice Chair Brophy and Com. Miller. Com. Kaneda and Com. Miller: • Said they would support either 50/50 or General Commercial. Chair Giefer: • We agree that it is not correct as it is; and are open to options, which the applicant is as well. Com. Lee: • Said it is difficult for retail to do well if it its not in a corner location; the subject space is in the middle of the street so it is more difficult; there is only one area of ingress/egress access and it is a narrow space. She said on a sitf: visit she spoke with the owner of Max Muscle, and he said one of the reasons it could be difficult is because by the time you drive Stevens Creek you already passed the entrance to th~~ parking lot. It is a unique site because there are 23 condos in the back and sometimes people use some of the 7 surface parking spaces dropping people off during the day; sometimes parking can be an issue. • She said she did not feel it was detrimental to their long term vision goal to have part of this location be non-retail; hence she was open to 50/50; would prefer it to be 51% retail and 49% commercial. She expressed concern -that if in the future Max Muscle doesn't do that well, if they open it up to General Comme+rcial then the space may become a 2500 square foot child care facility or similar. She said she was okay with commerciaUoffice which would include real estate, travel agents and insurance, 49%. Cupertino Planning Commission September 8, 2009 Vice Chair Brophy: • Said that relative to the 50/50 vs. 100% th~~ reason he was arguing for 100% when even the applicant isn't asking for that is his concern for what happens if and when Max Muscle decides to relocate to another location. It is a very difficult site to find another retail and should that happen, there is the likelihood of the applicant coming in saying the space has been vacant for 5, 12, 24 months and c,in it be changed again. He said they should recognize that this space should never have been built, should never have been limited to retail space, being only 2400 feet with n~~ connection to retail space on either side. He recommended cleaning up the situation novr. Chair Giefer: • Said that Vice Chair Brophy's comments expressed her opinion also. It is such a small space; they need to provide flexibility; there needs to be a retail presence and have it tie in. In another 10-15 years, retail may dominate and they may get that completely walkable frontage they want along Stevens Creek but you have to have a certain amount of density which the community does not support today. She was hopeful that Ms. Chen's business grows and at some point she will need the space Max Muscle is in, and will be able to expand. If the retail space needs more square footage and it makes sense for her to move out because she can get more money for the square footage than the business she is generating, either way she would rather give the ov~~ner flexibility on this space today to be more efficient in the future and also retain the city's vision. She said she believed it would happen, it is just a matter of when, and presently the market indicates that they want more commercial uses. • Said she supported allowing 100% commercial or retail and choosing Option 2; she supported the language Vice Chair Brophy suggested to include as a deed restriction, not the specifics, but just saying that there are deed restrictions and that they need to check with the city on the specifics for that. Com. Kaneda: • Said he supported the language that would provide some type of warning that they need to check something without actually putting the specifics into the deed restrictions. • Clarified that they were suggesting a deed restriction but the wording is not "that you must do" but will be to "check with the City on vrhat the current requirement is." Motion: Motion by Vice Chair Brophy, se~~ond by Com. Miller, to approve Application M-2009-07, with the following modification: Page 1-5 language in bottom paragraph, delete words "restrict a minimum of z% of the commercial building space to only retail use, the remaining percentage or less of xx..." and replace with "the City Council action letter pertaining to Application U-2004-O1 is hereby modified to allow that the commercial building space may be used for General Commercial." Chair Giefer presented a friendl~~ amendment to Condition 2, add "a covenant shall be recorded on the property that will notify potential owners of the property that the property is in ~i Planned Development zone and the potential property owner should check with the city on the allowed land uses" Vice Chair Brophy and Com. Miller: Agreed to friendly amendment. Vote: Motion carried 4-1, Comis. Miller, Brophy, Kaneda, and Chair Giefer voted Yes; Com. Lee voted No. Cupertino Planning Commission September 8, 2009 Com. Lee stated her reason for voting no was that she wanted to leave half for retail use. She expressed concern that the entire building might become a child care facility or personal service establishment. 2. DIR-2009-20, EXC-2009-07 Director's Minor Modification to allow the Gordon Bell installation of a personal wireless communications (Cupertino Loc-n-Store, Inc.) facility consisting of 3 panel antennas and 3 microwave 10655 Mary Avenue dishes t:o be affixed to a proposed extension of an existing; PG&E lattice tower and a base equipment cabinet. Height Exception to allow 3 panel antennas to be mounted at a height of 149 feet and 3 microwave dishes mounted at a height of 148 feet where 55 feet is the maximum height allowed. Planning Commission decisio;n final unless appealed. Colin Jung, Senior Planner, presented the staff report: • Reviewed the application for Director's Minor Modification to allow construction of a personal wireless service facility; 3 panel antennas, 3 microwave dishes mounted on a rack affixed to an existing PG&E lattice tower, a.nd a base equipment cabinet; and a request for a 149 foot Height Exception for the panel antennas and 148 feet for the microwave dishes, as outlined in the staff report. • The justification for the height exception request is they are asking for the heights because the technology of this system is a broadband high speed Internet access service being started up in the Bay Area and several other locations. The technology is being developed by connecting all of their cell sites through microwave communications and not through land lines; it is important for them to have the rr~icrowave antennas because the communications are straight line of sight, that they be able to see over everything else. Every application received on a preliminary basis has been on top of PG&E lattice towers or on very tall buildings here in Cupertino, so they need ttie extra height to make sure all of their sites are connected. PG&E is requesting that the applicant apply for 12 foot extensions rather than 6 foot extensions because they want to be ably: to accommodate co-locations of other antennas on their towers without having to go up there and change it out when they get another request or interrupt a service of the carrier iin situations where they would need to ask for a slightly taller extension. The referral was sent to the designated TIC commissioners, and one who responded was supportive of the project. Notices will be sent to those property owners within 1000 feet of the property. • Staff's recommendation is to approve the Director's Minor Modification and the Height Exception per the model resolutions. Gordon Bell, Bell & Associates, Agent for Clearwater: • Explained that the technology was different in that they are not using T1 lines for their connections to their facilities; every site is connected and linked to other sites for communications. Clearwire is in the process of launching 1,000 sites in the Bay Area and Clearwater has been assigned about 100 sites in the Silicon Valley area; currently there are 8 vendors working in this area to bring the network up on line. The sites go all the way up through San Francisco and to the North Ba:y Area at the present time. They are looking at about 6 applications currently in the Cupertino area; each of the sites are actually linked to one another by the lines of sight for the microwave dishes. He illustrated the location of the other sites. Cupertino Planning Commission September 8, 2009 Said they are trying to promote a network that is self-reliant; planning for future growth by having connectivity with a number of microwave dishes to each site which may eventually link to other sites. Clearwire is a subsidiarS~ or affiliate of Sprint/Nextel; they are opening up 4G technology, currently using 3G technology for cell phones and data transmission; 4G allows faster transmission speeds for wireless services and voice. Their footprint follows Sprint/Nextel footprint, in that they are trying to co-locate in every instance possible and co- locate with Sprint/Nextel; they are able to share their equipment shelters, their cable runs, mounting brackets and sometimes they hava; vacant spaces on their antenna rays. Applicant answered Commissioners questions about coverage. Chair Giefer opened the public hearing. Appala Patnala, Cupertino resident: • Opposed to the application. • Said he was concerned about the radiation <<ssociated with the radio waves emitting from the dishes. He read a statement, stating that there is a growing number of scientific studies linking cell phone cell towers to health related illness issues such as headaches, dizziness, loss of memory, lack of concentration, sleep disorders and depression as well as cancer. • Said that another concern was that all of the facilities' height were 55 feet whereas this particulaz one would be 150 feet, three times the height of other wireless facilities. He said on behalf of the homeowners of Casa DeAn.za they were concerned about the radiation effect not only for the wildlife living there but the seniors in the complex and also young children. Chair Giefer closed the public heazing. Chair Giefer: • Asked staff to confirm what the Planning Commission can consider in their deliberations about cellulaz antennas. Colin Jung: • Said that the Federal Telecommunications Act of 1996 states that if a facility meets the federal safety guidelines for radio emission:;, local agencies such as the City of Cupertino are not permitted to regulate on the basis of its ~:nvironmental effects. • Said that there was no RF report for this p;irticulaz facility; staff felt one was not necessary since they have approved at least 4 or 5 ap~~lications for cell sites at this particular area. He pointed out that the facility was 3 times taller than most of the other facilities; it is 150 feet tall, hence the radiation exposure itself is going to be 9 times less than what would normally be expected. There is a copy of an RF report that Mr. Bell submitted on a different site which will be reviewed by the Planning Commission and the RF report is for a similaz facility, same equipment, and that particular facility was measured at 50 feet and the ground level exposure was .09% of the federal stan~jac•d. Com. Miller: • Said the residents are concerned about healrh issues, but the subject tower is so far away and so high up; staff pointed out that it is prol-ortional to the inverse square, meaning falls off very rapidly. The other ones discussed were within 150 feet; this is well over 400 feet away. • He said he did not feel there were any health issues related to the proposed tower; it is located by the highway away from resident;. • Supports the application. Cupertino Planning Commission September 8, 2009 Vice Chair Brophy: • From an aesthetic issue, even though they are talking about 149 feet for the tower, they are talking about adding an additional 11 feet ~u-d it will not have a significant aesthetic effect, especially in this location. Com. Kaneda: • Said he agreed with Coms. Brophy and Miller. Com. Lee: • Said it was the Commission's responsibility to ensure the location helps preserve the aesthetics; they want to look at health; the F:F levels are below, they are acceptable and they want to provide telecommunications to the residents and locate the towers on existing structures that are in non-residential areas, and this application does that. • Supports the application. Chair Giefer: • Supports the application. Motion: Motion by Com. Lee, second by Com. Miller and unanimously carried 5-0 to approve Application DIR-2009-20 and EXC-2009-07. Final decision unless appealed within 14 calend:~r days. 3. DIR-2009-21, EXC-2009-08 Director's Minor Modification to allow the installation of Gordon Bell (PG&E) a personal wireless communications facility consisting of PG&E Substation at terminus 3 panel a~rtennas and 3 microwave dishes mounted on an of California Oak Way extensio~i to an existing PG&E lattice tower. Project also includes an equipment cabinet located at ground level underneath the lattice tower to house base equipment. Height Exception to allow 3 panel antennas to be mounted at a height of about 158 feet and 3 microwave dishes mounted at a height of about 157 feet on a PG&E lattice tower extension where 55 feet is the ma:cimum height allowed. Planning Commission decision final unless appealed. Colin Jung presented the staff report: • Said the application was similar to the previous one, but a different location, on a different tower. Reviewed the application as outlined in the attached staff report. Applicant is requesting a height exception since they need the extra height to maintain their network connectivity of sites which uses microwave communications, not land lines. The tower extensions will contribute 4% to the tower height. He noted that the TIC Commissioners had no comments on the application. Staff recommends approval of the Director's Minor Modification and the Height Exception per the model resolutions. Gordon Bell, Applicant: • Said that the original location was in a re:~idential area and Clearwire opted for an area in the non-residential zoning. He said it was an example of their attempt to make every effort to locate the towers in non-residential areas where there may be visual impacts. Cupertino Planning Commission 10 September 8, 2009 Com. Lee: • The application is several hundred feet away from residents; they need to look at aesthetics and aesthetically there is already a big l;ittice tower, so it would contribute minimally to the height; the setbacks are exceeded. • Supports the application. Com. Kaneda: • Similar to previous application; further avray from residents. • Supports the application. Vice Chair Brophy: • Supports the application: Chair Giefer: • Supports the application. Com. Miller: • Supports the application. Motion: Motion by Com. Miller, second by Com. Kaneda, and unanimously carried 5-0 to approve Application D1R-2009-21 and EXC-2009-08. OLD BUSINESS• None NEW BUSINESS• None REPORT OF THE PLANNING COMMISISION: Environmental Review Committee: No Meeting Housing Commission: No meeting. Monthly Meeting With Commissioners: No report. Economic Development Committee: No meeting. Chair Giefer: • Asked the Commission if they wanted to agendize or have more formal discussions on how to memorialize when there are specific conditions on mixed use properties; or is the way it was handled this evening a good example to follow when moving forward. Com. Kaneda: • Said he supported Vice Chair Brophy's sLiggestion as it was a flexible way to put verbiage into a place where at least the property ov~mer has some type of heads up that there may be some issues they should check on before they make their purchase. Com. Miller: • Agreed it was a good solution. Cupertino Planning Commission 11 September 8, 2009 Chair Giefer: • Suggested that staff go back, and consult the City Attorney, and if everyone is satisfied with that, report to the Commission, t~~ have an understanding of how to avoid any confusion when moving forward.. The rr~ain issue is to make sure that whoever purchases a commercial property on city PD areas, specifically understands they need to go in and review whatever conditions might be associated with that property. REPORT OF THE DIRECTOR OF COM]VIUNITY DEVELOPMENT: Housing Element: Reported that they recei~red a letter from HCD who had several questions about the sites; staff is preparing a response letter; this is new and they are taking a hard line on individual site selection to make sure they do support housing. Lehigh Quarry Permit: Info for the public who are following the Lehigh Quarry permit for renewal; the Bay Area Air Quality Management District is seeking input at Quinlan Center in September; consult their website. Every five :years the permit is renewed to ensure they remain in compliance. Adiournment: The meeting was adjourned to the next regular Planning Commission meeting scheduled for Septe er 22, 2009 at 6:45 p.m. • ~ Respectfully Submitted-~-° ~+ th Ellis, Recording Secretary Approved as amended: September 22, 2009