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PC 09-28-2010 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 CITY OF CUPERTINO PLANNING COMMISSION APPROVED MINUTES 6:45 P.M. September 28, 2010 TUESDAY CUPERTINO COMMUNITY HALL The regular Planning Commission meeting of September 28, 2010 was called to order at 6:45 p.m. in the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, California, by Chairperson Paul Brophy. SALUTE TO THE FLAG ROLL CALL Commissioners present: Chairperson: Paul Brophy Vice Chairperson: Winnie Lee Commissioner: David Kaneda Commissioner: Marty Miller Commissioners absent: Commissioner: Lisa Giefer Staff present: Community Development Director: Aarti Shrivastava City Planner: Gary Chao Senior Planner: Colin Jung Senior Planner: Aki Honda Snelling City Attorney: Carol Korade APPROVAL OF MINUTES: September 14, 2010 Planning Commission meeting: Motion: Motion by Com. Kaneda, second by Com. Miller, and unanimously carried 4-0 -0, Com. Giefer absent, to approve the minutes of the September 14, 2010 meeting as presented. WRITTEN COMMUNICATIONS: None POSTPONEMENTS/REMOVAL FROM CALENDAR: 3. MCA - 2010 -04 Municipal Code Amendment to adopt a Green Building City of Cupertino Ordinance. Postponed to the October 12, 2010 Planning Citywide Location Commission meeting. Tentative City Council date: December 7, 2010 4. MCA - 2010 -05 Municipal Code Amendment to Chapter 19.100 (Parking City of Cupertino Ordinance) to clarify language regarding storage and parking of Citywide Location vehicles. Postponed to October 12, 2010 Planning Commission Meeting. Tentative City Council date: October 19, 2010 Cupertino Planning Commission 2 September 28, 2010 Motion: Motion by Vice Chair Lee, second by Com. Kaneda, and unanimously carried 4 -0 -0, Com. Giefer absent, to postpone Applications MCA - 2010 -04 and MCA - 2010 -05 to the October 12, 2010 Planning Commission meeting. ORAL COMMUNICATIONS: None CONSENT CALENDAR: None PUBLIC HEARING 1. M- 2010 -03, EXC- 2010 -03, Modification to Use Permit (U- 2003 -04) to allow general TM- 2010 -03 (EA- 2010 -04) commercial uses at existing mixed -use project (Metropolitan Jane Vaughan (Cupertino at Cupertino): Exception to the Heart of the City Specific Plan Housing Partners, LLC, to allow non - commercial uses to exceed 25% of the total Menlo Equities) 19501, building frontage along Stevens Creek Blvd.; Tentative Map 19503, 19505, 19507 to subdivide an existing ground floor condominium space into Stevens Creek Blvd. 5 commercial condominiums. Tentative City Council date: October 19, 2010 Aki Honda Snelling, Senior Planner, presented the staff report: • Reviewed the applications from Cupertino Housing Partners on behalf of Metropolitan at Cupertino, for mixed use development, for modification of use permit to allow 60% non - retail uses and 40% non - retail uses in the 6,400 square foot retail space in the mixed use development; an Exception to the Heart of the City to allow more than 25% of non - retail uses along the Stevens Creek Boulevard store frontage; and a Tentative Map to subdivide the 6,400 square foot retail space from two existing condominium units to five commercial condominium units, as outlined in the staff report. • She reviewed the background of the approval history, existing tenants, regulatory/retail conditions, and recent City Council actions, as outlined in the staff report. • In the past two years, due to the economy, the Council has allowed for some lessening of the retail use restrictions at Adobe Terrace and. Villagio; for the Commission's consideration tonight is that one of the applications is a request for an exception from the Heart of the City Specific Plan and in granting an exception, a finding needs to be made that requires that the least extent of modification from the Specific Plan be made. • The applicant is also requesting approval of a Tentative Map which would allow each of the five individual tenant units to be separated as condominium units, which could be sold off separately, owned separately. They are 1,200 square feet each and are located in two separate buildings on the store frontage on the ground floor facing Stevens Creek Boulevard. • Staff is not supportive of condominimizing the commercial units for a number of reasons. Relative to enforcement issues, when there are a number of multiple owners it becomes difficult to ensure compliance with the conditions of approval and it also tends to burden staff to become an enforcer of the conditions and act as property managers when there is no cohesive management unit that looks over each of the units. Also some maintenance issues could occur; when there are maintenance fixe s, typically you need the agreement of the HOA or multiple owners, so the more owners you, have, there is concern that there will be more difficulty to get agreement from all those owners to maintain the complex as well. Additionally, staff foresees that if units are owned individually, there is a potential in future, that retail may not be realized for this site, and given that if each unit is owned individually, there is less likelihood for a turnover particularly when the economy approves for a better retail market. Also, if each of the units is owned individually, there is less ability and flexibility to lease or sell units for non - retail and retail uses. Each of the units will be set for Cupertino Planning Commission 3 September 28, 2010 either retail or non - retail uses. • In the event the Commission does consider recommending non - retail uses for the site, staff would review non - retail uses based upon meeting the parking requirements. Staff does not recommend using the parking garage as recommended by the applicant for additional parking for the retail spaces, because that additional garage parking was meant to be for the office complex use and if the office complex needs that additional parking for more intensive office type uses, that is what it was meant for. However, if the parking garage is used, staff can foresee it at most that maybe not more than 5 to 7 spaces be used in the parking garage; and this would be to free parking spaces for employees of those commercial units and leave the surface parking along the driveway for retail customers. Staff would recommend that this requirement be put into the CC &Rs to ensure that future owners know that there is a parking requirement and that the employees should park in the garage. • Staff recommends that the Planning Commission consider the applicant's request to modify the existing use permit relating to the allowable uses in the commercial space; to consider the applicant's request for an exception to the Heart of the City Specific Plan relating to store frontage requirements; to recommend denial of the Tentative Map to subdivide the commercial spaces into the condominium units and, recommend approval of the Negative Declaration. Com. Miller: • Why is it assumed that a non - retail use would generate more parking demand than a retail use? It is not clear why a retail use vs. a non - retail u.se would normally trigger a concern. Aarti Shrivastava: • Staff is making the point that if at all, a non-retail use is requested or a retail use, they will always look at the parking demands collectively. Staff was specifically responding to the applicant's request to put in medical offices which are non - retail use and do require a much higher parking requirement than a regular retail use. Staff explained the differences between retail and non - retail spaces. Com. Miller: • Asked staff to comment on the reasons the site has been so difficult to lease out. Aarti Shrivastava: • Said some of their opinions are in the staff report. As noted, there are several evaluations of mixed use projects along Stevens Creek Boulevard, more is learned with every project. She said staff worked with applicant when design ing the original project to ensure that all of the retail parking was along the main drive as soon as you come in; there were 25 spaces supposed to be allocated; none of them were in the garage, for ease of parking. The applicant has noted that the obvious lack of parking along Stevens Creek is a definite deterrent to the use. Staff feels that locating the building and the uses similar to some of the uses in the Crossroads area, and some of the newer retail along Crossroads, where there is a definite connection to the street, might have been better; however, they would then have to look at how the volume worked on the higher stories. The development of a larger plan with Mainstreet, Rosebowl and Vallco coming together would definitely ]make this a more active area. There have to be a number of things fall into place before this can be a very successful retail area. Because the Main Street area has taken a while to come together, and the Rosebowl was winding its way through, it has been challenging, and that is the reason for the flexibility with the uses. Staff is saying let's not close the door entirely to that happening in the future, but look at the flexibility in the interim. Cupertino Planning Commission 4 September 28, 2010 Com. Miller: • Said he has heard that comment many time; if there was some onstreet parking, people could pull in, get out of their car, do some shopping quickly, get in their car and leave; and that might seem to make sense. On the other hand, there are some sites in town where that doesn't seem to be a major detriment, such as Pizza Panerra. Aarti Shrivastava: • Said the way the project is designed is also key; the project has a lot of lawn in between the sidewalk; at Pizza Panerra the building is close to the street and people can see the activities and there is the possibility of a restaurant or coffee shop wanting to locate there. This project was trying to stay within the bounds of the Heart of the City at the time. Jane Vaughan, Menlo Equities, Applicant: • Provided background information on the application and stated that her view differed from what was stated in the staff report. • In 2001 she went to the Planning Department as an office developer with excess land and the city wanted more residential development. Because the city wanted more residential, she proposed 35 units per acre maximum with retail on the street frontage, no parking in front of the retail; with pauses in front of the retail. She said there is a feeling that they got some benefit from doing the residential and owe something back. That was the flavor at the time, there was a housing jobs imbalance and that was the direction they had and took. She said the size of the retail depends on the width in the front of the project which is narrow, hence there is not a lot of retail because there is not much street frontage. She ended up with 6,400 square feet of retail in five units. At the time they weren't thrilled about doing the retail, because they felt that small amount of retail was not going to be very viable; but also in 2002 Vallco was going to be an open air mall, with a lot of pedestrian traffic. The reality was that Vallco never did anything that was open air or pedestrian oriented. The site next door and the Toll Brothers plan was not pedestrian oriented; there was a park next to them and everything focused inward. • Clarified that it was a very small amount of square footage; 6,400 square feet broken down to five units of 1,200 square feet each. The plan that was submitted and approved by the city showed 5 retail units; the retail shell was completed in the summer of 2006, and the first lease was signed in Nov. 2007. The optometrist is considered a medical use and per the zoning, they are allowed to have up to 25% medical use, but that is an exception. • She said she felt the city is short sighted on those types of medical uses; they consider the medical uses that sell to the public, not only optometrists, dentists, they are all about cosmetics, it is about trying to create retail traffic, and they think those uses should be considered retail uses. She reviewed the tenants in place and said that their brokers have tried to generate some activity, and it is not just the economy, but lack of critical mass and retail. Said the city should move away from forcing small amounts of square footage all over the place because it is not viable as a stand - alone. They have atypical parking; the city would not permit them to put the parking in front; there is no street parking and no pedestrian traffic from nearby sites. Said she felt that their retail units will always be secondary retail, meaning the least non - traditional retailers, and it would help if the surrounding area were successfully redeveloped with pedestrian orientation, and also onstreet parking would help. Also providing them with some alternative leasing options would also help; medical with a retail orientation, which is why they are requesting it. • The use permit was approved, granting 107 residential units in 6,400 sq. ft. of retail; there was no discussion on how many retail units they could or could not have. There is an approved condominium map, with no restriction on the number of retail units; the California Dept. of Real Estate has approved 5 retail units along with the 107. In 2009 they had a marketing brochure illustrating 5 retail units, and the City notified them they could not do that, which was Cupertino Planning Commission 5 September 28, 2010 the first time they were made aware that it was not permissible. She said she knew of no policy, zoning, or approval, etc. that they were violating by having the 5 retail units. She said it was awkward to ask for a Tentative Map to approve what they already seemed to have; and it was incumbent on staff to specifically say they didn't want them to have more than 2 retail units and document it, versus doing it after the approvals were done. Some of the objections of the extra retail were if there were multiple owners, you get more input into the city; it is the tenants that come in, not the owners. It makes no difference whether there is one owner or five; because there will still be five tenants. • The retail units are all under the HOA, maintenance is taken care of and documented by the HOA; whether there are 5 retail owners or one, it is all under the CC &Rs; it makes no difference in terms of maintenance. In terms of flexibility for leasing, she said it makes no difference whether there are five or two owners and they legally have to have two owners because the retail is in two different buildings; hence some of the objections are not practical. • Said that she felt condominimizing the project would make it easier to get tenants; they are trying to expand the uses and expand the viability of sale to help and it would be an additional thing to offer. Com. Miller: • Said that it appeared that the Main Street project next door was including some retail uses on Stevens Creek similar to the applicant. Jane Vaughan: • Said that was correct, but their parking is on the inside and people would drive in and park; it doesn't cause anybody to be on Stevens Creek and walk from their project to hers. If you parked on the inside, it would be somewhat illogical to walk through and go out to Stevens Creek; the front doors of the units are on Stevens Creek. Aki Honda Snelling: • Said the Mainstream project was designed to fit with pedestrian orientation with the adjacent Menlo Equities property. The perimeter of the Metropolitan retains a public pedestrian easement that allows the public to walk between the projects; the thought being that people could walk through the two developments. Gary Chao, City Planner: • Said the discussion has always been that the spaces along Stevens Creek would have dual frontages so that they could also function to entrances along Stevens Creek as well as having secondary fronts toward the interior. Jane Vaughan: • Said there is a certain ratio of depth for street frontage width and theirs is very limited; most of their project is vertical into the project and given the width they could have on Stevens Creek, the depth is the maximum they could go and still attract a small tenant. • Relative to the parking issue raised, she commented on dealing with the increased parking requirement for medical offices. • Relative to the maintenance issue, she said there is common area which is the landscaping, the building exterior, all of that is dictated by the HOA. Each owner takes care of the interior of his space, and if he has a private patio or balcony. The issue they are raising is the private patios in front. The developer put in place a retail plaza standard which was approved by the HOA which governs precisely what kind of furniture etc. that can be put on those patios. • There are two retail condominiums; they are asking the city to recognize 5; the issue is issue is the HOA has to enforce the rules and make sure somebody doesn't bring their lawn furniture Cupertino Planning Commission 6 September 28, 2010 from home and put it out front. All of that is dictated in the CC &Rs and if they don't comply they can be assessed and fined and it is levied against their unit. Com. Miller: • The concern staff has is that with more owners it is harder to get people to adhere to compliance standards and the response is that the HOA will sign up for that responsibility. Aarti Shrivastava: • Said one of staffs concerns was compliance with the zoning. In the past they have had projects that have sold individual units to uses that are not allowed in the zone; and that is part of having Jane Vaughan manage the five spaces and understanding the rules has been very beneficial; and she has done a very good job. If there are individual people, many times they sell them off and it is difficult for staff to give them the harsh message that although they purchased the unit, they cannot go in there. • It is a difficult message to give somebody, because everybody is responsible for their own unit. If you have one person managing the five, then you only have the only person with the knowledge; the more you divide it up into little pieces, that knowledge base becomes more difficult to retain and manage. Jane Vaughan: • Said there is an HOA manager and a Board of Directors. She said that presently they own all five units; it could be two owners in the future since staff recognizes that they have at least two retail condos. Aarti Shrivastava: • Said staff was concerned about the issue of understanding the rules of the zoning and the conditions of approval for the project. Typically those are not part of the HOA CC &Rs; they are the conditions of approval of a project and the underlying zoning General Plan designation; all of those are given and meet a knowledge base. • Said there is a concern they will rent or sell to someone who doesn't comply with the current zoning; and that difficult message had to be given to people before. The other one was if one does determine that a certain percentage gets a non - retail and a certain percentage has to get the retail, then somebody is going to be stuck with no flexibility and they will come to the city and say they got the retail piece and don't have flexibility. Having one owner keeps that flexibility so they can juggle some of these things and get a small part of each and not stick somebody with that one use. Chair Brophy opened the public hearing; as there was no one present who wished to speak, the public hearing was closed. Com. Miller: • Said that no one benefited because it does not serve the community or the applicant to have vacant office space or vacant space particularly on Stevens Creek Boulevard. Said he understood the challenges from the staffs side; and struggled to come up with some ideas that work for both sides, so that they get that space tenanted, and it creates some vibrancy on the streetscape, which is important to Stevens Creek Boulevard as well as provide the applicant with a reasonable chance of getting a return on their investment which they agreed to do between the applicant and the city. It is important to get that space tenanted and as pointed out earlier, they want to 1 earn from the experiences so the next time an application is approved, it has a better chance of success. Asked for input on how to move the issue to a more satisfactory solution for both staff and the applicant. Cupertino Planning Commission 7 September 28, 2010 Com. Kaneda: • Asked if they allow medical office building uses, is the decision set in stone and stay forever; or are there different ways of doing that? Is that the only option? Aarti Shrivastava: • Staff recommends that it not be boxed in as one use, medical office. If the Commission is considering opening it up to other uses, call it non - retail uses, to allow flexibility, because they don't want them to come back and say they can't get a medical, but can get something else. • The second issue to be addressed is parking, because 60% medical office will not be able to accommodate the parking; 40% medical office will be able to accommodate the parking if the employees are required to park in the garage, and staff feels the most reasonable is 40 %. • Staff would prefer to keep the retail giving them the flexibility they had before. That is the other issue; it is not a requirement, but if you just said the non - retail with the added condition that all parking has to be in the surface with a maximum of 7 spaces in the garage allocated to employees, it would give enough direction. When dividing it up among the units, flexibility should be considered of both sides, and for condominimization, two are plenty. Com. Kaneda: • Said that since it is such a small retail area, is the impact that big on parking between making 60% and making 100 %? Aarti Shrivastava: • Staff feels that each added increment will affect the surface parking with the office, and they have given some flexibilities such as 7 spaces worth; increasing it beyond that is not advisable. • The recently approved Heart of the City Specific Plan has a retail frontage requirement of 75% retail and 25% non - retail. She said that Jane Vaughan may have information on the average feet for each unit. Jane Vaughan: • Explained that in a large retail shopping center, there would be a Safeway -type space with mini - anchors and the smaller shops which can be as narrow as 25 feet and as wide as 50 or 60 feet. Their average is about 42 feet, which is standard for small shop space; they are little shops with no variety Aarti Shrivastava: • Said that square footage had to be looked at; the 1,200 square foot range seems to be a good average to be able to get a variety of uses; once it starts getting smaller and smaller, then it is more difficult. In the past there have been divisions where you may get a small coffee shop in 500 or 600 square feet, but the shop can be divided in half. They attempt to design them in increments that can be divided in a way you can use them well. This seemed to be a good small shop; they are limited to making it deep because of the residential behind it. Jane Vaughan: • Said that they want to deliver a size that works for a tenant, plus give them enough frontage; know the size, frontage, then calculate the depth; if it is too deep, no one will want the extra depth and they cannot use it. • Responded to a question if there was other parking in the complex that could be made available. Said the office has surface parking and parking underneath the office, also .a permanent easement on 57 spaces in the underground residential garage. The underground spaces are empty 50% of the time; the office doesn't want to park there, which leaves the Cupertino Planning Commission 8 September 28, 2010 remainder of the 57 spaces open and not being used. They approached the HOA about renting out the empty spaces. Said that still leaves empty spaces not being used, and when the project was approved, the concept of the shared parking was that if you require 3 -1/2 spaces per 1,000 on the office, one space per 250 square feet of retail, but if you put them together, you don't need as much, leaving plenty in the underground. She agreed that the customer would not go there, but said if the surface is enough for the customers, they would have more than enough for the employees. Chair Brophy: • As Ms. Vaughan mentioned, the commercial space was built solely because the city demanded it; in retrospect it may have been a mistake to require this kind of space, a small amount of square footage tacked onto a residential project does not make it a mixed use project, especially on a 6 -lane road with minimal pedestrian traffic, now or in the foreseeable future. • The property has been on the market for 4 years, including 2 years of good economy, so the problems of renting the space should not be blamed on the economy. It is clear the professional developer has incentive to lease the space as quickly as possible with the best possible tenants. People do not rent spaces to nail salons because they are high paying tenants but because they can't get anyone else. He said if it were his choice, he would make all the space non - retail; however, the City Council saw differently on that subject when they took the draft of the Heart of the City. The Commission has to work within the direction from the City Council. The 60% non - retail use is a reasonable exception from the Council's policy because this space is already built and can't be undone. He said he supported Ms. Vaughan's suggestion to clarify that since they already have 2 separate condominium units, the B Building would be those units available for non - retail use. Said he felt that 1,200 foot retail condos were not in the city's best interest. • Referred to a phrase on Page 1 -5 and said when they talk about the equal balance between private benefits reaped presumably from developing homes for residents to live in, and community benefits presumably from construction of the 6,000 feet of disjointed commercial space unrelated to anything else, he was at a loss to understand how they think homes, especially those in the $700K to $800K range, would constitute some type of burden upon the city; whereas requiring an applicant to build unleasable space is somehow a public benefit. Vice Chair Lee: • Said she disagreed, and felt that the corner is a busy corner and very conducive to retail; the location is excellent. If retail is going to happen, this is the place. She also felt that the store frontage being close to the street with the parking towards the side could be a definite advantage because building signage is important and when there are trees, cars, and trucks in front of the signs, it is difficult for retailers to do well. She said she felt it could be a good retail spot although some things need to be re- evaluated such as the leasing, or rental rates may be too high. If it is cheap enough retailers will want to make it risk in this economy and locate there. She said that it was interesting that the applicant's arguments state that it is a bad location for anybody to locate there, but at the same time, a medical or dental office is willing to purchase it. Medical and dental equipment is not cheap to set up, and they are willing to spend the money to buy it and place their medical and dental practices there. She reiterated that it was a good visible location, very accessible; and felt they should continue to stay within the Heart of the City plan. • Recommended not to modify the existing use permit and deny the request to subdivide into 5 commercial condos; and deny the request for exception to the Heart of the City Specific Plan. Com. Miller: • Said he was not a retail expert, but despite the fact that it is a very visible location, it has been Cupertino Planning Commission 9 September 28, 2010 very difficult to lease to retail in the last four years, similar to other locations in town that have been difficult to lease to retail. For whatever reason they are not viable retail spots but seem to be viable non - retail locations. • Said he was in favor of doing something because doing nothing would likely result in the spaces continuing to go unleased, which is not in the city's best interest. The major issue to going completely non - retail is the parking. He said he supported doing the 60% which the applicant is asking for as non - retail. The applicant is willing to designate specific units as medical as opposed to retail, which is an acceptable solution and one he supported. • Said he was neutral and could go either way on condominimizing the project. Gary Chao: • Asked for clarification, as two Commissioners talked about supporting 60% non - retail. Said that when they approved the optometrist use, it was approved under presumption that it had substantial amount of commercial component, which it does. • The optometry use is approved under commercial retail uses; for the dental office to go in, they could function under 40% non - retail; they only need 40% non - retail uses for the remaining two tenant spaces to occupy the non - retail or medical office use. Pointed out that Building B which has 3 tenants; one of the spaces is already occupied by the optometry; was allowed previously as commercial use; leaving 2 tenant spaces, which is 40% of the entire project. Even if they go 40 %, the dental office is :not in jeopardy and they still can go into the remaining two tenant spaces. Chair Brophy: • Said they were discussing 1,200 or 1,300 square foot spaces, and asked if the debate was whether to have 2,400 or 3,600 square feet; staff responded affirmatively. He said that, to the extent that Building B has become the medical building, he felt the most appropriate use would be if not a medical use, at least a non - retail use there. Aarti Shrivastava: • Said staff was not able to support a third medical use based on the parking, and did not want to give the applicant unreasonable expectations. When talking about the 7 spaces, that is with only 40% as staff report notes of medical office. 40% medical use is all that can be supported if all the other uses were parked at retail; if employees are allowed to park in the 7 spaces in the garage, 60% retail, 40% non - retail. • If the non - retail is less intensive that is fine; since the applicant is talking about medical, in the parking context staff was talking about medical. There are 24 spaces surface, and if 2 of the spaces were converted to medical they would need about 30 -31, assuming 7 of the employees will be parking in the garage. To assume that a greater number park in the garage is just setting up for failure because they will not end up parking there. • Using those numbers, only 40% of the entire project can be medical use. She noted that the more intensive uses one allows on the site, the more burden is put on the other uses, and although they would like a Peet's Coffee or similar in there, that possibility reduces with one or two spaces taking up the intensity. She said they understood that some flexibility is needed. • Every tenant that goes in there has to apply for a business license; when they apply for a license staff checks to make sure the zoning is appropriate, they meet the conditions of approval, and meet the parking. For those businesses that don't check in the business license, those are the ones they have to code enforce and give difficult information and bad news to. • Staff's calculations showed that if only two of the 5 spaces are parked at medical, they will need 30 spaces, which you can meet by putting 7 underground. If the third space is also counted as medical, then you will need many more spaces, probably 3 to 4 additional; they can be restricted to a maximum of 2 medical. Cupertino Planning Commission 10 September 28, 2010 Discussion continued about parking spaces Com. Kaneda: • To understand the parking numbers, if we are to say that Unit A is required to be retail and Unit B is non - retail, does the parking work. Aarti Shrivastava: • Said it could work, but wanted to check the zoning ordinance to see what non - retail uses would be less intensive based on what is known. • Said staff can control the application, but they want to ensure that there is at least some chance of success for them to lease it out to a non - retail with less intensive uses. Experience shows that non - retail tends to be tutorial classes, insurances offices or medical offices, all of which have much higher parking requirements; and while they do have the flexibility for retail, staff does not want to set up an unreasonable expectation and set it up for failure. • Said that with the flexibility to provide non - retail, knowing that the preference is retail; you can definitely do retail, but the flexibility is there. They have been written up before for other projects, and can do it for this one, to make it clear that retail is an allowed used. It can be stated so much non - retail, that doesn't mean that retail is precluded. Com. Miller: • Said that in order to make the project work, they needed the flexibility of not going condominium. However, staff is concerned that is the owner gives away too much to one tenant, there will not be enough for another tenant. He said he felt it should be a business decision, and not one that the City should make. The owner can choose to leave one storefront vacant because he has a potential tenant and it is a decision the owner should be allowed to make and not the city. Vice Chair Lee: • Said she felt they are trying to give more flexibility; the applicant is asking for more flexibility but at the same time, by supposedly agreeing to these requests or abiding by them, they are actually boxing them in even more and saying it can only be retail, it can be non - retail but low usage. Staff cannot figure out exactly what type of uses that would be, what kind of businesses would there be. Aarti Shrivastava: • Said staff determined that the only viable use was office and those would typically have blinds in the front. Chair Brophy: • Said that for the future, it is a good reason why they should never approve projects with 5,000 or 6,000 square feet of retail space, because if you have a larger complex, the numbers average out. In this instance it is "like they are angels dancing on the head of a pin" trying to figure if they can get one or two more spaces. Jane Vaughan: • Commented on the parking; Building B being medical requires one space per 175 square feet; Building A being standard retail requires one space for 250 square feet; which totals 32. The reason for the discrepancy on the 7 spaces is because staff took each medical space and divided it by 175, rounded up and came up with many more spaces; which is not the way any other city calculates parking. Said there is plenty of parking for this project because it is mixed use and a Cupertino Planning Commission 11 September 28, 2010 disservice is being done by not taking in account that they have the ability to do shared parking and shift it. If they have to designate more retail on the surface and try to coerce more office underground, they will do so, that is the advantage of shared parking. • Said it was acceptable to designate one building as retail only; the other one allowing medical because there aren't that many non - medical uses. Com. Miller: • Said staff had a concern with high parking requirements if the whole thing went medical. Jane Vaughan: • Said that was the reason they agreed with staff before the meeting to change their request from 100% medical down to 60 %; feeling it was a compromise with still trying to accommodate the dentist but hearing what they had to say and limit it. Com. Miller: • They are saying that they don't think that the parking will support more than 40% medical; you can have another non - retail use but you are going to have to somehow make sure the parking works so that you won't be able to get a tenant in there. Jane Vaughan: • Staff is looking at parking counts based on dividing out square footages; we are looking as the owner and saying there is plenty of vacant spaces in that garage that can accommodate it. Com. Miller: • Said if they didn't solve the problem, it will come up again when they bring a tenant in and staff says they don't think the parking can be supported. Jane Vaughan: • Said she would pull out the underlying traffic study that staff approved for this project which says that in shared parking you shouldn't be adhering to these statistics because you are disregarding the shared parking. That was the point of sharing the parking; they are talking one or two spaces; not 40 spaces. Com. Miller: • Said Ms. Vaughan was correct in that they looked at parking two ways; one according to so many spaces per square feet or tables, and the other to do a parking study that shows you can justify the parking based on actual accounts. Aarti Shrivastava: • Said that regardless of whether there is parking available or not, staff feels it is unreasonable to expect that customers will park in the garage. The recommendation is based on about 7 spaces in the garage; staff does not want to consider employee parking in the garage since they don't feel it will work very well, but are willing to give some flexibility and not make it difficult; but any more than 5 to 7, they don't feel is workable. • Summarized they were still at the 7, because there is a deficit of one space. There is a current deficit of one space because there is only 23; if they restriped, they would get that one also. Said she was not certain restriping is a valid solution; it doesn't change the 5 to 7 employees. It doesn't tip the scales to allowing the third medical use anyway. When doing the calculations they assumed that 30 spaces were required for 40% medical. Cupertino Planning Commission 12 September 28, 2010 Com. Miller: • Said they all agreed that they could put 7 employees in the garage, which was staff's recommendation. Gary Chao: • Said part of the confusion is that the applicant is referring to a report that was done when the project originally went through the process and it did not consider medical offices in that shared parking mix; it was completely 100% retail because that was the term. You can't use the conclusion with accuracy of that to justify the new percentage that is going to work, that is why staff is relying on the ordinance in terms of ratio, short of having another study done by a firm or consultant. Com. Miller: • If they allow medical in there now, there will still be some vacant office space and after that medical is in, they will be able to look and see what the actual counts are. Aki Honda Snelling: • If the third one is medical, they will need 32 parking spaces total, with a deficit of 9 spaces. Gary Chao: • The optometry use was allowed under the commercial ratio because of the substantial commercial component. If you do that, you are going to have to raise it; it is parked out more intensely if it is a medical office use; hence you need to add two or three stalls onto it based on the ordinance. • If it is medical use, it is one per 175 sq. ft. Referring to the chart on Page 1 -6, the only difference would be if you were considering 60% medical office; Unit 103, the optometry use, instead of 4.8 would be approx. 7.4 or 7.3 similar to the other two medical office; the difference being about 3 stalls. Com. Miller: • The applicant's comment was if you calculate it based on the total square footage instead of the individual ones, it works; and if you do it individual units, it doesn't work. Aarti Shrivastava: • Said that is not how it is calculated, because they are operated as individual, not as one office. Jane Vaughan: • Said the dentist is looking at taking two units; shouldn't they combine those two when doing the parking. Aarti Shrivastava: • Said she did not think they would get two extra spaces with that; but either way, if left to staff to work out who can go in based on the 7 employees in the garage, and give them direction on how much of it is non - retail, they can make it work. Com. Kaneda: • Said he was not sure if they were better off at 40% or 60 %; because at 60% you can't make the parking work. He agreed with Com. Miller's statement that the space has been vacant for 4 years so there is a problem leasing it out; it is isolated, and may be in a nice part of town but it is in the middle of nowhere until the rest of the neighborhood gets developed. Once it is developed, it could be a different story, very possibly with these projects coming online, it Cupertino Planning Commission 13 September 28, 2010 could be different; but it could be ten years from now. There is no critical mass; it is unfair to say just keep the space empty for another 10 years. There is a timing issue here; he said he supported the 40% non - retail use, and would like to say a 60% non - retail use, but they need to find a way to make the parking work because if you can't make it work, then you can't do it. Aarti Shrivastava: • They could still rent it out to an office space such as insurance office which has a lower retail requirement; which would be non - retail. Chair Brophy: • The applicant would have to understand that even if the 60% non - retail in Building B was approved, they would have to meet the parking requirement or they could rent it to retail. Com. Kaneda: • Asked if there was potential to do some other type of deal to get additional parking spaces. Aarti Shrivastava: • Said it was doubtful, because they feel the juxtaposition is difficult; they have tried to find the best way to provide some flexibility in the parking and don't want to stretch it too far because it is a precedent for future projects. They are trying to ensure they are giving some reasonable balance and that is why they discussed the parking, to provide an understanding of how complicated it is. Com. Kaneda: • Asked if they allowed 60% non - retail use, could they find a way to make that work. Aarti Shrivastava: • Said it was always workable; but it would not work with 60% medical, they could rent it to an insurance office; the 40% non - retail will allow the dentist office to go in and optometrist stay. Chair Brophy: • The important issue is that if it is approved with a 60% non - retail, it does not close the door in the future for retail use if and when this area does become a more desirable retail corner. It is true as Vice Chair Lee pointed out that certain medical uses such as dentistry involve the high capital expenditure to go into the space and it is unlikely they will turn over, but a psychiatrist who has less capital expenditure, could easily be replaced by a higher paying tenant. Aarti Shrivastava: • Relative to parking on the street, projects are not allowed to count parking on the street as part of their requirement; however, parking on the street can contribute to the success of retail, so it is beneficial. If the Planning Commission thinks at some point in the future it is a good idea, they can include it in a minute order to be forwarded to the City Council, but they would not want to count it as parking for the project because that would open up a new way of looking at parking in the city. Chair Brophy: • He commented on the draft; clarification point that Com. Kaneda mentioned earlier, that this is the model resolution for M- 2010 -03, that under No. 1 where it states "the remaining 40 %, two of the five spaces shall remain" ... Add the words "only for retail use space" to clarify that the non - retail space can also be retail. Look for language that identifies Building B as the location of the non - retail uses; and going from 23 surface spaces to 24 spaces. Suggested they delete Cupertino Planning Commission 14 September 28, 2010 the second sentence at 2a to eliminate that if it is not doable. Motion: Motion by Com. Miller, second by Com. Kaneda, and carried 3 -0 -1, Vice Chair Lee voted No, Com. Giefer absent, to approve Application M- 2010 -03, EXC-2010-03, and EA- 2010 -04 per the model resolutions with the changes suggested by Chair Brophy. Motion: Motion by Com. Miller, second by Vice Chair Lee, and carried 4-0-0, Com. Giefer absent; to deny Application TM- 2010 -03 per the denial resolution 2. DIR- 2010 -35, EXC- 2010 -06 Director': 3 Minor Modificaiton to erect a personal wireless Ian Crawford (DeCarli facility on a 12 -foot vertical extension of an existing Family Trust) PG &E lattice tower, consisting of three panel antennas 116540 Regnart Canyon Dr. and four microwave dish antennas and a ground level base equipment enclosure. Height Exception to allow three panel antennas and four microwave dish antennas to be mounted at a maximum height of 108 feet, where 55 feet is allowed. Planning Commission decision final unless appealed. Colin Jung, Senior Planner, presented the staff report: • Reviewed two applications for Director's M inor Modification to allow the installation of a personal wireless service facility, consisting of 3 panel antennas and 4 microwave dish antennas affixed to a proposed 12 -foot extension of an existing PG &E lattice tower, and a ground level base equipment cabinet, and Height Exception to allow the antennas to be mounted at a maximum of 108 feet where 55 feet is allowed, as outlined in the staff report. • He illustrated a photo simulation showing what the antennas would look like on a 12 foot extension of the tower. The reason for an height exception is that if the antennas were mounted on the lower part of existing antenna, there would be interference from the trees growing around the base of the tower, as well as the visual impacts to the nearby residents. • He reviewed the design and ridgeline visibility from the valley floor, and RF energy assessment. • Staff recommends approval of the Director's Minor Modification and Height Exception. Staff would like the Planning Commission to consider a design consideration; there is a discrepancy between the design drawings and the visual simulation. The drawings in the packet show a horizontal arrangement of the antennas on the extension; a photo simulation illustrates them vertically stacked. Staff's design preference and what they think would be less obtrusive to the nearby residents would be the vertical stacking of the antennas versus the horizontal arrangement. Planning Commission is asked to modify the conditions in the resolutions to require that the design itself requires vertical stacking of the antennas and a correction of the plan sets that were submitted with the application. Applicant: • No one representing Clearwire was present. Colin Jung reported that the applicant listed on the application no longer worked for Clearwire and no other representative was present. Aarti Shrivastava stated that the application was not pulled and is still a current application. However, the Commission has the option to continue the application until a representative from Clearwire could be present. It was decided to have the members of the public provide their input. Cupertino Planning Commission 15 September 28, 2010 Chair Brophy opened the public hearing. Dr. T. Capadia, Cupertino resident: • Said she was surprised that the application carne up again since it was opposed and sent back six months ago. • Said she was a practicing physician in San Jose for 15 years, and had concerns about the medical ramifications of the RF. She said she has read several studies relating to radio frequencies with health hazards and because the studies were not completed because of the costs, there is not 100% proof that the radio frequencies are carcinogenic. • She reviewed a Powerpoint presentation presented to the Commission earlier and said that they have been told that exposure is minimal, almost equal to that of a baby monitor; however, baby monitors are used by people for only a few years and the tower would expose people for a longer term. She said she felt the RF from the tower was a health hazard. • Another concern is that the proposed area for the tower is one of the most beautiful and scenic areas of Cupertino; they purchased their home in the area because of the openness and serenity, and don't want the tower built in that area. • Said she understood that it could benefit the City of Cupertino, but proposed that the city look at areas with more commercial buildings where people would be less exposed, especially because the long term effects are not known. • Said she talked with different neighbors and only received the letter about the hearing a few days ago. She said her neighbors would support them and would provide petition signatures if time was provided. Colin Jung: • Explained that the 1996 Telecommunications Act prohibits local agencies from regulating these types of facilities on the basis of the environmental effects of radio frequency emissions, to the extent that those emissions comply with Federal Communications Commission guidelines for such emissions. In this case, the report says that the emissions are well below what the Federal standard is, one milowatt per square centimeter; and they are saying because of the height above the antennas and they are all low emissions, that it is only about .02% of that Federal limit. Ronald Smith, Cupertino resident: • Said that the proposed location of the tower severely impacts his view from his home. Additional impacts will result from the maintenance trucks traveling on the private roads which are maintained by the local residents. The additional traffic will also present a hazard for the neighborhood children as the roads are one lane only. • Said he did not see any benefits for Cupertino. He said he has had three different cell companies and they worked adequately in the area. Technology constantly changes and in the future the cell companies may want to add more antennas which would only increase the visual pollution in the area, which is a negative impact. • Relative to house values, when people look at the house today, they look up and see, whether there is proof of impact for cancer causing waves or not. There is a perception if you put up more antennas, you are going to negatively impact the house values in the area as well. Colin Jung: • Said that the tower has been looked at by a number of other companies. At a previous neighborhood meeting the City held on this facility, concerns were expressed by the local property owners who had to maintain the road, and they also expressed concerns about damage because they were paying for it. • He reviewed two conditions from the previous meeting, requested by the property owners who Cupertino Planning Commission 16 September 28, 2010 live along that road. The first condition calls for a photo survey to be done of the road prior to any construction, to document the present deficiencies in the road and then after construction. The company would be responsible for any new visible damage to the road and would repair it. The second condition related to the concrete pad for the equipment, that the concrete itself be mixed onsite. Com. Miller: • Since it is a private road, do the owners of the private road need to give their permission before an outside company would use the road on a regular basis. Is there some type of easement that needs to transpire? Colin Jung: • It is a road, not a driveway, but any type of public service vehicle would need to have access to it, deliveries, PG &E, and the Water Company. Carol Korade, City Attorney: • If this particular applicant fails to obtain the necessary ingress and egress rights, they may have the approval, but cannot build it. We are presuming that it is a private road that has certain easement rights for public use; for example, if it was a gated community, what happens if somebody wants to build a Lucky Supermarket in there, and the city approves Lucky's in the middle of a residential area. The city approval does not have the right to require a change to a private agreement. • It is not a matter of this particular Commiission's jurisdiction because it is their issue or problem to resolve privately. It is the applicant's problem, not the city's; granting an entitlement to use doesn't mean you have to grant the particular private property right change in order to make that happen. Chair Brophy closed the public hearing. Chair Brophy: • Noted for the record two documents on the dais, one letter and one email in opposition to the project. Vice Chair Lee: • As stated during the Results Way application, the Planning Commission is not able to make a decision based on health and RF emissions, based on perceived or actual information. Such concerns were noted in the written communications received and from the speakers at the meeting. The Commission is able to make a decision based on aesthetics and whether or not the addition of the structures will cause significant visibility impacts from the valley floor. • Recommended approving the application with allowing installation and making sure the approved plan sets will be changed to vertical to make it the least visible as possible. Com. Miller: • Said they could not consider the health issues; and said that looking at the aesthetics it is hard to believe that the aesthetics are going to get significantly worse, particularly when viewing the pictures of the proposed site. • Another objection is the decrease in home values, which is very subjective. He said he was more concerned about a decrease in home values at the Measurex site, where the homes are clustered very close together on tiny lots. In the hills where the home prices are higher and further separated and considerably longer distances from the tower itself, it is difficult to see a Cupertino Planning Commission 17 September 28, 2010 strong argument for that. • The last issue is the impact on the private road. He said it was a serious concern for him because he saw it as a private company reaping a benefit and one resident getting a benefit at potentially the detriment of all the other residents in the area who are going to have to pay the cost of maintaining the road. • He said that although staff felt they had addressed the private road concern with the condition that the applicant fix any problems with the road, he did not see how there is going to be an effective mechanism to enforce that. There have been problems in the past with this particular homeowner in which there were impacts on the road and they were not properly addressed and he said he was concerned about the potential for that happening again. He said if there was a way to ensure the homeowners that it is going to be enforced, and they won't have to pay for road maintenance, he was fine with it. But if there isn't, he still had a major concern about it. Said he was concerned about both the construction of the equipment and the maintenance. Chair Brophy: • Noted that the language in the resolution stated that the "applicant shall conduct a photographic survey of Regnart Canyon Drive road defects, provide copy; the applicant shall repair all noticeable damage caused by its construction activities ". • Said the maintenance would likely be a panel truck on the road once a month; and it was hard to make the case that one truck would do any more damage than PG &E could do when servicing the lines. Aarti Shrivastava: • Said staff has consistently asked Clearwire how often they service it, and the response was that it was consistent with a panel truck once a month; they typically do a lot of remote servicing and come in once a month to check that. Other than that, if the Planning Commission wants to strengthen the requirement, they could ask to see an agreement based on the condition and a building permit won't be issued until staff sees it. She said that a bond could be required relative to damage to construction. Carole Korade: • Said that without the applicant present, they could either make the term general, to provide adequate assurances of the maintenance issues being solved subject to approval by staff or hold the application over to the next meeting and ask specific questions such as: Do they have an ingress /egress? Is there an agreement or a bond? How are they going to put teeth into the agreement? If a specific question is needed, staff needs to be directed to ask those questions, to bring it back or leave it up to staff to get a reasonable answer and then report back. Com. Miller: • Based on information provided, said his recommendation was to continue the item to allow more time to get more information. He said he would like assurance that if there is any damage to the road, it would be addressed; suggested that the applicant be required to post a bond and if there are any damages to the road, there are funds that can be used and the neighbors would not have to pay for it. Aarti Shrivastava: • Relative to addressing noticeable damage, she said staff ensures that all the requirements are met prior to building permit issue. After approval, the applicant has to apply for a building permit to put in the panels. The photo survey would be done ahead of time; and an alternate would be that staff sees a signed agreement or bond posted. If there is a problem after construction, the applicant will have to repair all noticeable damage. There is a final sign off Cupertino Planning Commission 18 September 28, 2010 on all building permits and all the conditions need to be complied with before final sign off. Com. Kaneda: • Said his main concern was the road issue, and was satisfied if there was something in place requiring the applicant to repair the road damage at their expense, not the private road owners. Relative to road maintenance, he said he was not concerned about any impact a panel truck would have using the road once a month to do maintenance checks. • He said they could not rule on health issue 3; and agreed with Com. Miller that the visual pollution was not a compelling argument. Chair Brophy: • Said he agreed with Com. Kaneda. Motion: Motion by Vice Chair Lee, second by Com. Kaneda, and carried 3 -0 -1, Com. Miller voted No, Com. Giefer absent; to approve Applications DIR- 2010 -35 and EXC- 2010 -06 with the following condition: that the applicant make their changes to the plan sets to have the panel antennas mounted vertically vs. horizontally OLD BUSINESS: None NEW BUSINESS: None REPORT OF THE PLANNING COMMISSION Environmental Review Committee: No report. Housing Commission: No meeting Manor's Monthly Meeting With Commissioners: No report Economic Development Committee Meeting: No report. REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: Aarti Shrivastava reviewed: • The Council directed staff to initiate two public outreach meetings to consider some changes to the North Vallco Plan, to look at large format retail uses in that area as an additional use, and also to add commercial allocation in the General Plan, since they were running low on commercial square footage in the city overall. Staff will be looking at those and bringing the input both to the Planning Commission and City Council from those two public meetings in the next three months. • There will be public meetings held on the T orth Vallco Plan as well as adding more square footage in the city, not scheduled yet. • Discussed briefly whether or not to cancel the November 23 meeting during Thanksgiving week. No decision was reached. Adjournment: The meeting was adjourned to the next regular Planning Commission meeting scheduled for October 12, 2010 at 6:45 p.m. Respectfully Submitted: • Elizabe 1 ' Recordm g re Approved as presented: October 12, 2010