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draft minutes 9/26/2006 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 6:45 P.M. CITY OF CUPERTINO PLANNING COMMISSION DRAFT MINUTES September 26, 2006 CUPERTINO COMMUNITY HALL TUESDAY The regular Planning Commission meeting of September 26, 2006 was called to order at 6:45 p.m. in the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA., by Chairperson Marty Miller. SALUTE TO THE FLAG ROLL CALL Commissioners present: Chairperson: Vice Chairperson: Commissioner: Commissioner: Commissioner: Marty Miller Lisa Giefer Cary Chien Taghi Saadati Gilbert W oog Staff present: City Planner: Ciddy Wordell Senior Planner: Colin Jung Associate Planner: Gary Chao Senior Planner: AId Honda Assistant City Attomey:Eileen Murray APPROVAL OF MINUTES: August 22, 2006 Planning Commission minutes: Corrections as noted: . Page 7: Com. Saadati, first line: Insert "it" after "if" Motion: Motion by Com. Chien, second by Com. Saadati to approve the minutes of the August 22, 2006 meeting as amended. (Vote: 3-0-2; Vice Chair Giefer and Com. Wong abstained) WRITTEN COMMUNICATIONS: Staffnoted various written communications received relative to agenda items. POSTPONEMENTSIREMOV AL FROM CALENDAR: 2. TR-2006-14 City of Cupertino Blackberry Farm Tree Removal of a specimen oak tree at Blackberry Farm. Request postponement to the October 10, 2006 Planning Commission meeting. Cupertino Planning Commission 6. ASA-2006-19 M-2006-05 (EA-2006-17) Mike Rohde (Vallco Fashion Park) 10123 N. Wolfe Road 2 September 26, 2006 Architectural and Site Approval and a Modification to a Use Permit (U-2005-19) for the parking structure north of Macy's to exceed the permitted 32-foot height limit and to allow parking on the fourth level. Request removal from calendar; Tentative City Council date: unscheduled. Motion: Motion by Com. Wong, second by Vice Chair Giefer, to postpone Application TR-2006-14 to the October 10, 2006 Planning Commission meeting. (Vote: 5-0-0) Motion: Motion by Com. Wong, second by Com. Chien, to remove Item 6 from the removal calendar for discussion. (Vote: 5-0-0) ORAL COMMUNICATIONS: Robert Levy, Cupertino resident: . Discussed the Regnart Creek trail which is no longer in the General Plan for the first time in about 20 years. He said the neighbors objected to having people walk by their back yards. He recalled that a developer building houses on Rodriguez had to leave part of his land undeveloped and put a trail through from Rodriguez to the Water District property on the expectation there would be a Regnart Creek trail and access would be provided. He questioned what would happen to the property if there is no longer going to be a Regnart Creek trail. . He asked for clarification on the Planning Commission's role in the future of Cupertino, since the city was almost completely built out. He said he was concerned about the city's future. Ciddy Wordell: . . Confirmed that the Regnart Trail was removed from the General Plan and there was a segment as part of a subdivision and planned development in anticipation of there being more of a continuity there. There was some access, but not a trail on the DePalma Subdivision that was approved a couple of months ago; there is a slight extension of it to it east. Things could change, it is still possible in the future, there might be individual development where you can get some access, it might not be a Regnart Trail officially, but there still might be a possibility to get some access along the creek. . She clarified that there have not been any changes relative to the Community Development (CD) department, and she want people to know that there hasn't been any change or emphasis in the city or in the department. The CD department has been that for decades, and the PD is a division of that, as is the Building Department. CONSENT CALENDAR: None 6. ASA-2006-19 M-2006-05 (EA-2006-17) Mike Rohde (Vallco Fashion Park) 10123 N. Wolfe Road Architectural and Site Approval and a Modification to a Use Permit (U-2005-19) for the parking structure north of Macy's to exceed the permitted 32-foot height limit and to allow parking on the fourth level. Request removal from calendar; Tentative City Council date: unscheduled. Ciddy Wordell, City Planner, presented the staff report: . Clarified that the discussion would include the process issues in dealing with the application. . Explained that the applicant has applied for an amendment to the use permit and for architectural and site approval to exceed the 32 foot height limit and limit of 3 levels allowed Cupertino Planning Commission 3 September 26, 2006 for the parking structure north of Macys. The ERC recommended a mitigated negative declaration and require that there be additional visual, noise and lighting analysis to analyze any impacts of that kind to the neighboring properties. They are also requiring a noise report. . She said she was providing background for the reason for the recommendation that there be no substantive discussion of this application tonight; the first being that the City Council had previously directed that they did not want any additional height. The recommendation is to have the City Council decide if they want this to come back to the Planning Commission for their recommendation or if they in fact want to make the decision. If they choose to make the decision without sending it back to the Planning Commission, they would need to schedule that for a subsequent public hearing; but under this scenario it would be sent to the City Council for their discussion at their next meeting. No substantive discussion will be held tonight because the information is not available that the ERC requested in terms of the impact; therefore the recommendation is to forward this to the City Council for a decision on how they want it heard. Eileen Murray, Assistant City Attorney: . Clarified that because it was on the postponement calendar, it wasn't in the Planning Commission power to refer an item to the City Council. The appropriate approach would be to forward a minute order to the City Council requesting direction on whether it should go to the Planning Commission or City Council. There were no comments from the Planning Commissioners. Chair Miller opened the meeting for public comment;. there was no one present who wished to speak. Motion: Motion by Com. Wong, second by Com. Chien, to reschedule Application ASA-2006-19, M-2006-05 (EA-2006-17) to the October 24, 2006 Planning Commission meeting. (Vote: 5-0-0) Motion: Motion by Com. Wong, second by Com. Chien, to forward a minute order to the City Council for clarification regarding the City Council's intention of not approving future height structure, and request further direction from the City Council on whether to handle at the Planning Commission or City Council level. (Vote: 5-0-0) PUBLIC HEARING 1. RM-2006-08 Philip Covarubias (Bates residence) 20077 John Drive Appeal of a Minor Residential Permit for a 15-foot rear property line setback for a 392 square foot single-story addition. Planning Commission decision final unless appealed. Gary Chao, Associate Planner, presented the staff report: . Reviewed the application for a minor residential permit for a 15-foot rear property line setback for a 402 square foot single story addition to an existing two story house, as outlined in the staff report. . He reported that the decision of the Director of Community Development to approve the application was being challenged by a neighbor. He reviewed the six reasons the neighbor was appealing the approval, as outlined in the staff report. . In response to the appellant's concerns, the applicant agreed to amend the drawings to pull the addition further back from the rear property line, resulting in the revised rear setback of 15 feet. Cupertino Planning Commission 4 September 26, 2006 It also reduced the perceivable roof and wall mass as viewed from the appellant's house. . In addition to the setback change, the applicant made some architectural changes, changing the roof design from a gable roof to a hip roof to minimize mass. . He explained that the options for the Planning Commission are to deny the appeal and uphold the decision of the Director of Community Development as proposed; or uphold the appeal and/or modify the Director's decision. Gary Chao answered commissioners' questions regarding the application. Darlene Thorne, Appellant: . Said that the proposed remodel project had a major visual impact on her property; a possible safety impact; and an impact on her home value. . Said the proposed addition is too close to her fence, creating a possible fire hazard since there will be oxygen in that room; and/or flood damage to the appellant's home because of the overhang. She said she felt the size of the proposed addition, even with the newly configured mass, will have a negative visual impact of a massive wall which will leave a view of only the tops of telephone poles across the whole back of her fence. It will also create a heat spike in the afternoon as the sun sets, destroying all the plants grown in medium heat. . She said the unattractive wall will devalue her home and it will be the only home in the tract that is so close to the neighbor. . The normal setback from the back fence is now 20 feet and the addition is requesting 15 feet, further creating a visual image of a huge, unsightly wall. The entire addition would be better built on the northeast side of the Bates property where there is 20 feet currently between the homes on that side. There is no impediment that would prevent this addition proceeding at that side as a gesture of goodwill and harmony between neighbors who have been very close friends for 43 years. . She requested that the Planning Commission direct the applicant to move the addition to the northeast side of Mrs. Bates' property. Chairman Miller opened the public hearing. Philip Covarrubias, Project Designer: . Said he felt the appellant's objections to the remodel project are unreasonable in the sense of reference to the zoning ordinance, and don't have a relation to the zoning ordinance itself; and are more evidence of personal desires and opinions as a matter of taste for the proposal. . Relative to the ordinance, the application has followed all the proper procedures and has received approval twice from the city staff. Both proposals submitted are compliant with the long standing ordinance regulations. In terms of the specific elements, the setbacks at 20 feet on the rear are still unsatisfactory to the appellant even if we were to comply with the existing setback itself without a request for any encroachment. They basically would have allowed a building that would still produced roughly the same visual impairment from her perspective, but would have not required any neighbor notification. . The two options previously presented included a 10 foot encroachment into that setback which is still less than half of that proposed wall, and the second option after revising the drawings based on her first appeal, took that back down to 5 feet. As noted in the staff report, the difference between the 5 foot stretch and wall is insignificant compared to what would have been a 16 foot length of wall if using the 20 foot setback in the first place. . Relative to the scale of the proposal, the largest one was 402 square feet, under 20% of the existing square footage; as far as that point raised, the square footages for the existing building were clearly marked under the project data section; the square footage of the garage was separated to show what the actual living area square footage and garage square footages are. Cupertino Planning Commission 5 September 26, 2006 . The consistency with the neighborhood is still applicable to these proposals as the appellant mentioned. The next door neighbor did roughly the same proposal as our originally proposed design, including the small jog on the exterior wall. That has set a precedent which would be another reason to consider going with Option 1; but in the interest of compromise we stepped back the wall 5 feet and changed it to a hip roof in order to mitigate the view impact on the appellant's rear yard. . The scale of the proposal is also consistent with the existing home as they are also just matching the same plate height and same roof pitch as the existing home. It is not out of scale with the home as shown on the overhead view of the staff report. . Said it was their opinion relative to the applicant's concerns, that the concerns did not have merit with the exception of the view issue; as listed in the staff report and previously presented. The ordinance changes have been standing since prior to the 1999 revision; the visual images were provided by the city in accordance with their minor residential permit application requirements; and the setback distances have been consistent throughout the previous ordinance changes. . There is not a fire hazard to the neighboring home, and is an exaggeration of the effect of what the addition will have on the neighboring plants. . He said he felt they should concentrate mainly on the view issue and with that in mind, attempted to scale back the massing as far as that line that is adjacent to her side yard. As noted by the staff, the difference in the view between the 5 feet proposals of the 20 foot setback and our second option is not that significant and there is no privacy issue because that is essentially one solid wall with the exception of the bathroom window which could be an obscure window. . The wall and the impact on the neighboring property is easily mitigated with landscaping which has been offered by Mr. Bates. . He said their position on the issue of a neighbor's personal opinion vs. the sovereignty of the individual owner is at stake; and they feel that they compromised to a significant degree on the design of the proposal and feel it is an issue of whether or not to favor property rights of one individual owner vs. an excessive level of influence from a neighbor based on solely personal desire or opinion of the design itself. . We have taken into consideration the appellant's alternative design which would flip the option to the other side of the lot; in our assessment it creates an excessively long access path to the rear yard from the garage side which is the main access side for the property; you would have to walk the entire depth of the property if you were unloading something out of the garage. There is additional cost with that proposal because an extensive paved area that is been there a long time; it is just as dear to Mrs. Bates as Mrs. Thorne's patio is to her and this request would require that the building as proposed also not only get flipped but that the existing patio also be taken up and relocated and set doWn as new paving. The magnitude of that request in our opinion is a little excessive for what could be resolve through design and what we had already intended to revise. It is also our opinion thatit would create a lopsided massing on the right half of the lot. . On the interior it creates an undesirable connection of the public and private space as appellant stated this is a master suite for Mr. Bates' mother; she does have an oxygen tank that she carries with her and this is meant to be a private sanctuary for her; so to place it next to the family room which is a more public area in our opinion, negates the purpose of that room. That would also bring about more additional costs in terms of relocating windows and doors in order to meet light and ventilation requirements. There is an existing fireplace in the family room which would tougher for us to meet the light, ventilation requirements if we are going to be placing the addition on the side where the larger sliding door is. Lastly, it also, for the interior, increases the distance from the new bedroom to the kitchen and the main areas where Mrs. Bates spends most of her time. The current proposals keep that at a close proximity of about 5 feet, whereas flipping it the northeast side would increase it to about 30 feet and a step from a portion of the Cupertino Planning Commission 6 September 26, 2006 house that is on the slab foundation to that of the raised floor foundation; whereas the one proposed would keep everything at the raised floor level so that she could get to the kitchen, the bathroom and to her main seating areas without having to go down any steps and at a shorter distance. . Summarized that the proposal is consistent with the ordinance and the staff interpretation of the ordinance; it is consistent with the neighborhood and the neighborhood's existing precedents. The compromise that was significant and in good faith as far as taking her considerations into account was rejected. It is our assessment that the bottom line is she doesn't want anything on the side of the house, so even if it was to conform to setbacks, there would still be a complaint. The effect on the neighbor is minor and can be easily mitigated to make a smooth transition by way of landscaping and in terms of the precedent of honoring an unreasonable in our opinion request and the seemingly unwillingness to compromise over an individual's sovereignty and property rights, not to be a doomsday prophet, but in the larger scope, it would be a virtual Pandora's box where any neighbor could cause any project to be delayed for this amount of time, seemingly based on a matter of taste or a personal disagreement with the ordinance. Com. Wong: . Asked if a certified civil engineer had been hired to do the survey of the property lines. Mr. Covarubias: . Said they did not hire a surveyor but was willing to confirm the property lines. Said it was his understanding that the fence although replaced recently has been in the same location for about 45 years. Chair Miller: . Asked if they had considered making the setback of the addition the same as the setback for the existing structure. Mr. Covarubias: . Said it would be their design goal in terms of being able to make the addition look like it was always part of the existing home, which is the reason they wanted to use the gable roof and go with the rectangular option originally proposed. . In this case, in terms of the floor plan, there is a limited amount of space in the dining room and the window in the kitchen sneaks up on that wall. In the interest in getting a reasonable amount of width for the design's program, it was decided to put it out to the setback as allowed by the ordinance. . Responded to other comments by Chair Miller about the proposed design. Vice Chair Giefer: . Asked if skylights in the kitchen area were considered. . Suggested other cost effective measures. Mr. Covarubias: . Said they had not considered skylights; basically this was referencing the project already approved on the neighboring property; it was the most cost effective way to preserve the natural light and ventilation as well as get the needed program on there. He said that because of Mrs. Bates' fixed income, it was the most cost effective way, and they felt it was not in line with her budget to flip the entire design and patio as well. . Said there was a crawl space in the closet closest to the bathroom and there was one designed for the new addition. Cupertino Planning Commission 7 September 26, 2006 . Above the adjacent grade, the existing finished floor elevation of the raised floor portion is about 12 inches above grade. Chair Miller opened the public hearing. Mrs. Bates, family representative: . Explained that the downstairs bedroom addition would allow her mother- in-law to remain in her home with her physical limitations. . To flip this, which seems to be the only reasonable issue her neighbor has raised, would be cost prohibitive for her. Jennifer Griffin, Rancho Rinconada resident: . Said it was not likely that this type of building less than 20 feet from the back property line was even part of the county ordinance, and is a new type of building scheme for some residents of Cupertino. John Drive is an older area of Cupertino and has been under this ordinance for some time. . There was a similar building scheme with only 20 feet from the back property line about two years ago in Rancho Rinconada where lot sizes are often less than 5,000 square feet. There was a home 5 feet from the back property line with a trellis and PG&E equipment, and the ultimate amount was only 3 feet from the back property line, which presented a problem for the neighbors. . She said she did not understand why the item was being considered further; a neighbor has expressed her objection to it. Mrs. Thome has the right to object to this; this is an unusual building standard and it sets up dangerous precedents for the city. There needs to be standard back yards. Mrs. Thorne: . Mrs. Bates cannot go into her back yard; what she had was a small area with potted plants and orchids but she can no longer go out there. . She asked why it was not appropriate; the architect moved it back 10 feet and said it was superb; but if she asked it to be moved back another 10 feet, it is considered minor and insignificant. She said that if it cannot be moved to the other side, to please move it 20 feet. . She requested that a condition be added that would guarantee significant drainage be caught, converted and channeled to the street so that it does not go onto her property. Mr. Chao: . Said there was a state law prohibiting any drainage from the project property to drain onto adjacent neighbor's site. He said it was normally covered at the Building Department stage, but could be added as a condition. . The side yard has to be graded so that it doesn't drain toward the neighbor's side and there are gutters. If need be, there could be French drains and culverts being placed; all that will be checked by Public Works at the time of the building permit check process. Dena Kaufer: . Clarified that the house they are discussing setting a precedent with having the addition on one side has no house on the other side. She said she wanted to ensure that the precedent is set that there is no house on the other side. Chair Miller closed the public hearing. Cupertino Planning Commission 8 September 26, 2006 Com. Saadati: . Said that it appears that the addition meets all the requirements of the ordinance; the setbacks, the remaining back lot being 20 times the lot width; however, considering that the floor height is 12 inches above the adjacent grade, the plate has to be about 3 feet above the fence. By planting some shrubs and trees on the side, that will screen it and make it nicer. . The proposed addition is not out of scale; I could see the benefit of it being on that side, because it is closer to the kitchen. This is not the first time that this type of addition has been made by reducing the backyard setback. . Said he supported staff's recommendation with the addition that some trees and shrubs be planted on the neighbor's side, to provide more screening for the second level. The applicant is willing to do that, and it may resolve the issue. Mr. Chao: . Said that when someone pulls a minor residential permit, they do not necessarily have to get a grading engineer or soil report. It may be required, but is usually determined by Public Works and a soils report and grading plan is not generally required at the planning stage. . Privacy planting and screenings are only required on two story additions and two story homes; it is not required by the ordinance, although you could suggest it, and if agreed to by the applicant, you can add it as a condition. . Said there are no mitigations measures in the ordinance for single story additions. Com. Chien: . Said that the Planning Commissioners are appointed by the City Council to give advice and consent about matters from the ordinance; and the Rl ordinance pertaining to the single family residential ordinance is one of the ordinances where he does not like to do a lot of interpretation because once we start meddling into individual properties, we essentially are having government dictate what private property owners can and cannot do. However, our ordinance does recognize property rights of both sides during any construction. We recognize the person has a right to build, the neighbor also has a right to their privacy and that is why in parts of our ordinance there are privacy mitigation measures. Unfortunately there are not any for single story additions and that is something we could look at in the future. . Said he did not support 5 foot setbacks; they are the minimum setbacks and make it difficult to plant any privacy plantings should the applicant choose to. In terms of the basis of Ms. Thome's appeal, staff has done their best to address all 6 items and the applicant has done her best to address the concerns expressed. . He said for the reasons stated, he supported staff's recommendation. Com. Wong: . One of the things when reviewing the Rl ordinance, is to make sure there is privacy protection and notification given to the neighbors. The next door neighbor did get notified, and was unhappy; and she has the right to bring up her concerns to city staff. . Said he was concerned that the ordinance is prescriptive and is set; if you want to suggest something to your neighbor and have it on the other side, I think you did due diligence, asking the Bates about their concerns. . Said he was more supportive of the first plan presented to the Director of Community Development; the original plan that the Bates had. The second plan includes the window looking out to a wall, whereas she would prefer to look out at something more pleasant. The designer did a good job following what is within the ordinance. . He suggested having a hip roof at the end instead of a gable roof; follow up and ensure that the property line is correct by hiring a civil engineer; and follow up regarding the drainage to make sure the drains are on the street, even though it is a state law. Cupertino Planning Commission 9 September 26, 2006 . He said they were things that could be accommodated, and because it is very prescriptive, he supported the Community Development Director's decision. Vice Chair Giefer: . Said it was a difficult decision since visiting the site and meeting with the appellant and applicant, and looking at the site from both sides of the fence; it provided a realistic view of what the addition would be like. . Suggested to make it an equitable project for both sets of property owners, that the project conform to the 20 foot setback from the rear fence line. . Said she would like to see the addition aligned with the current side setback, western side setback of the home so it doesn't encroach as close to 5 feet to the fence line. If it encroaches the 5 feet of the setback and there is a privacy planting, you don't have a viable pathway, and you currently have a gate on the west side of the applicant's home, resulting in a corridor that is impassible by privacy planting which would soften the afternoon sun and western heat that would reflect offthe new addition into Mrs. Thome's yard. . This is a difficult spot for both the appellant and the applicant because Mrs. Bates has a right to develop her property and her family is trying to accommodate her. The appellant is not looking forward to the change and I would like it to conform as much to what we have today. If the applicant decided to switch it for some reason on the east side, I would have no objection to the minor modification on the rear fence line because of the layout to the school behind it and the two adjacent neighbors. I don't think it would be an invasion of privacy. . Said she did not support the Director's minor modification; and would like the new addition 20 feet from the rear fence line with a hipped roof to minimize the visual impact. It should also conform to the current foundation line coming from the existing structure. Chair Miller: . Said it was a difficult issue trying to decide which neighbor's concerns are more valuable; which is not the function of the Planning Commission, but the purpose of the ordinance which is prescriptive. He said for that reason he was inclined to go according to what the ordinance requires; as Com. Saadati pointed out, the rule of 20 times the width of the property has been applied many times to many houses in Cupertino; and has been done for many years. He said he did not see an issue from the standpoint of a major exception to the ordinance. . It would be good if the applicant could move the structure a little to the east, and there is the possibility here from a functional standpoint of moving the doorway over; however many feet that is to the kitchen, and then increase the side setback by one foot. I am not sure if the applicant is amenable to that or not; it would reduce the overall size of the structure or the square footage of the structure by about 22 square feet which they could choose to make up by extending the eastern side of the building. . He said for those reasons he supported staff s recommendation. Motion: Motion by Com. Wong, second by Com. Saadati, to deny the appeal and uphold the original decision of the Director of Community Development with the following modifications: (1) At the end of the building, change to a hip roof; (2) Hire a civil engineer to confirm the property lines; (3) Drainage should be confirmed to make sure it goes out into the street; (4) Landscaping privacy plan be approved by the Director of Community Development. (Vote: 4-1-0; Vice Chair Giefer, no.) Ms. Wordell noted that the decision may be appealed to the City Council within 14 days. Cupertino Planning Commission 10 September 26, 2006 3. TR-2006-15 Sam Lin (Chinese Church in Christ) Tree removal and replanting of eight eucalyptus trees at an existing church. Planning Commission decision final unless appealed. Colin Jung, Senior Planner, presented the staff report: . Reviewed the application for tree removal and replanting of 8 eucalyptus trees at the Chinese Church in Christ on Bandley Drive, as outlined in the staff report. . He reviewed the arborist's report concluding that although the trees are healthy, they have suffered limb breakage due to topping in the past, which results in new water sprout shoots that are poorly attached and are highly prone to failure. Further topping would require that the trees be pruned every 3 to 5 years for life which would be expensive for the applicant. The arborist recommended that replacement be one for one with smaller 24" box trees. . Staff is agreeable to tree replacement for the interior trees because Chinese Pistache is a deciduous tree; for perimeter trees staff recommends an evergreen tree for privacy screening reasons. Angela Chen, representing the Chinese Church in Christ: . Presented a slide presentation illustrating the location of the trees and proof of prior damage caused by limb breakage. . She reviewed the potential hazards of the eucalyptus trees, including fire hazards; impacts of falling limbs, destroying property and sometimes resulting in injury or death; the nuisance of dropping sap and large amounts of debris in the area. . Applicant concurs with staff in planting Canary Island Pine trees as replacement trees. . Said that the church would not meet their parking demand if the trees remained in their present location. . Estimated that the cost of up keeping the eucalyptus trees would be $3,000 every 3 to 5 years. Vice Chair Giefer: . Asked staff if they considered recommending a native tree as the replacement trees as opposed to Canary Island Pines. Mr. Jung: . Said that staff felt that when they got to a mature size, there wouldn't be enough growing space, or enough room for the canopy and have the parking spaces there also, since the canopies are 40 feet wide. It seemed excessive for the growing space to fit into. Com. Wong: . Asked for clarification on the staff recommendation; "add a finding that eucalyptus are part of an approved landscape plan for a church" Mr. Jung: . Said that the heritage and specimen tree ordinance lists a number of trees that by species and size are protected; another category of protected trees includes those trees that are a part of an approved landscaping plan which the eucalyptus are. . The Assistant City Attorney questioned why the eucalyptus trees were being protected and staff explained it was part of an approved landscape plan. She suggested that the Planning Commission recommendation is clear that it is included as a finding in the resolution. It is an acknowledgement that it is subject to the ordinance. . Relative to the irrigation, if the trees are to survive, they need irrigation. The newly planted trees are not well established, they will need regular watering to become established in order to survive, which is the reason for the recommendation they provide irrigation; they can use the Cupertino Planning Commission 11 September 26, 2006 existing irrigation system. The present eucalyptus trees have been there for a long time and are well established and likely do not rely on existing irrigation. A new tree relocated to this relocation will need irrigation in order to survive. Chair Miller: . Relative to Com. Wong's question, we haven't been requiring that in other projects to this point. Why is this a change in policy? Mr. Jung: . Said it was not a change in policy; it is also observation in the arborist's report that if trees are to be replanted, they will need to be irrigated. Also in another recent report that was done, relative to the former Suburban House, those trees were removed and new trees were going in. The arborist did recommend that irrigation go in at that location as well. Com. Chien: . Asked why they were protecting a certain number of the trees. He recollected that trees as part of an Rl privacy protection plan would fall under protection; and his understanding of that vs. the landscape of any tree in the landscape plan is drastically different. He asked for clarification that a tree can be in a landscape plan but not necessarily be used for privacy protection purposes. Mr. Jung: . The tree ordinance says that trees that are part of an approved landscaping plan usually pertain to a non-residential development, or a multi-family development. If there is some sort of discretionary planning approval where there was an approved landscape plan, they are considered protected trees and require a tree removal permit. Ms. Wordell: . Said her interpretation is that all of the trees are protected trees because of the landscaping plan, and it is a term of the application that some of them actually serve as privacy trees, but they are privacy protection trees in a sense of the Rl ordinance. They are all in the category of an approved landscaping plan. Chair Miller opened the public hearing. Earl Sutton, Sutton Swim School: . Said his business was located in the same building as the church; and falling limbs and trees fell on his employees' and customer's automobiles. He said that limbs fall off the trees frequently in the absence of any wind or heat factors. . Foot traffic from his business is high and he is concerned for the safety of his clients. . He said he applauded the church for bringing their concerns about safety to the Planning Commission for resolution. Jennifer Griffin, Rancho Rinconada resident: . There are many different species of eucalyptus trees planted in the area; many of them are old; they shed their bark at certain times and drop their limbs in the middle of summer. She said the trees were likely planted when Cupertino wanted Australian types of trees planted, and there was a drought. . The eucalyptus trees were appropriate at the time they were planted, but they may not be appropriate if there are children in the parking lot; times change. She applauded the church for Cupertino Planning Commission 12 September 26, 2006 not cutting the trees down; it is a known fact that Cupertino has approved landscape plans for buildings. . She said she did not promote removing large trees in Cupertino; however, if they are removed, she suggested that the replacement be as large as possible, as they are large trees with canopies about 40 feet tall. Chair Miller closed the public hearing. Com. Wong: . Said that the applicant went through the appropriate process regarding their concern about the eucalyptus trees; they did not cut them down. Agreed with Ms. Griffin that she acknowledged that there were children in the facility and safety was a major factor for them and the parishioners of CCIC. . Said he supported the application based on staffs recommendation. He said he felt it was important to have privacy protection trees along the perimeter over the single family homes. . He commended the church for following the process and for working with staff to resolve the Issue. Vice Chair Giefer: . Said she concurred with Com. Wong that she would rather see people follow the policy as opposed to circumventing it and having to come in after the fact. . I think that when we talk about the tree policy later, what we need to do is make it easier to remove trees that are not or should not be protected because they are not a native species; they are invasive and a variety of other reasons that might make sense. We need to also make sure that we are also keeping our heritage trees that are older, a part of the city. These are not. The eucalyptus trees do present a fire hazard; they are non-native and use a considerable amount of water and will need to be irrigated for a longer period of time than the native species. Because they are for privacy screening, I would like to specify the trees 3, 4 and 7 be 36 inch box size. I am fine with the smaller trees in the parking, the landscape beds between the parking spaces; we don't want an excessively large tree there but we do want to create shade for the parking lot in the long term, and as they mature, they will grow and provide shade for the parking lot. I think along the back fence we do need to have a large tree and I would like to see that be an evergreen native species along that fence line. . Other than those changes, I would support staff s recommendation. Com. Chien: . Said he understood the city received approximately $3,000 for the tree removal permit. . Said that the tree ordinance will be studied as there continue to be infractions. Safety is the number one concern when it relates to the possibility of endangering people. . He said the applicant has done a good job of finding evidence toward that fact and an adjacent property owner has testified about trees and limbs falling. . Supports the removal of the trees, with a preference for using native species as replacement trees. Com. Saadati: . Said he concurred with previous comments. . Considering eucalyptus are not native trees and pose hazards, he said he was in favor of tree replacement, possibly with native species. . Supports staff s recommendation for approval of the tree removal. Cupertino Planning Commission 13 September 26, 2006 Chair Miller: .. Said he supported staff's recommendation and staff could choose the tree replacement species. . Said that safety is first and trees should be removed. Motion: Motion by Com. Wong, second by Com. Chien, to approve Application TR-2006-15, including the addition of the findings that the eucalyptus tree is part of the approved landscaping plan for the church subject to Chapter 14.18 of the Municipal Code pertaining to heritage and specimen tree per the model resolution. Amended Motion: Friendly amendment by Vice Chair Giefer to add that they specify the privacy planting along the fence lines trees, 3, 4 and 7 as a native Deodora Cedar and that they be 36 inch box size to aid in the privacy between them and their neighbors. Mr. Jung: . In response to Com. Wong's question about the recommendation, he said that staff recommended the Flack Leaf Paper Bark primarily because it was on the list of privacy trees in the RI zoning ordinance, and also with the intent of having a tree that could grow to a considerable size so that eventually it could replace in stature the eucalyptus trees that are presently there. The same applies to the Canary Island Pine, which is another tree that over time will grow to the height that is comparable to the existing eucalyptus trees. They are both evergreen trees and from a form standpoint, staff felt that they would be more appropriate because they have a tendency to have a columnar form rather than a conical form. . The 24 inch box was reasonable in size; there are landscape islands there; they are not that large and to plant a 36 inch box tree, the island needs to be 3 feet by 3 feet wide. The 24 inch box will have a small root ball and will have a chance to adapt itself to that island vs. trying to force something. Vice Chair Giefer: . She said that once the eucalyptus are removed and the stumps ground out, the new trees can't be planted where the stumps are ground out; planting has to be adjacent to it. . It will not be directly in the island, but toward the back fence line. If the soil is going to be replaced, and it is going to be exactly where that tree is, that is a different issue and I would agree on that. Com. Wong: . If you suggest that, when we plant the Chinese Pistache, we will run into the same concerns. . It would be suitable to have them planted as close as possible in the island, because it is a point of parking and the trees help shade the patrons, the church goers and the swim school patrons, and we want to plant a tree that is compatible with the landscaping plan for the parking lot. . Said he agreed with staff that the Deodora Cedar or Atlas Cedar tends to grow wide vs. the other ones which grow straight up. . The other concern is having an easier maintenance free tree and the paper bark tree is part of the privacy and landscaping trees that have been preset by the ordinance. Com. Chien: . Said they can mix and match trees; however, the findings today say that per the arborist's suggestion, that the total combined replacement trees equal to about $9,000. He said he supported Vice Chair Giefer's recommendation for Deodora Cedar; however, if that is a large tree or is cost prohibitive, the applicant could find a smaller tree for the other areas, because they are trying to place a value there. Cupertino Planning Commission 14 September 26, 2006 Ms. Wordell: . Asked if they could leave some options, that you prefer natives within certain constraints. Chair Miller: . Said he was not at ease designing the landscape architecture, and would have staff do it. He said he did not support an increase, staffs thought that a 24 inch box tree will give a better chance of growing vs. 36 inch. . He said he supported staffs recommendation, and could add further guidance, but not specific trees, just specify non-native vs. native. Vice Chair Giefer: . Said she supported the language, concurred with Com. Chien's observation about the value of the replacement trees. Amended Motion: Com. Wong accepted the amendment for Nos. 3,4 and 7, that it shall be 24 inch box, native evergreen trees based on the approval of the Director of Community Development. Second accepted by Com. Chien. (Vote: 5-0-0) Chair Miller declared a recess. Com. Saadati left the meeting and did not return. 4. MCA-2006-03 City of Cupertino Municipal Code Amendment to amend Chapter 19.68 of the Cupertino Municipal Code related to permitted and conditional uses in Park and Recreation (PR) Zones. This amendment would create a new conditional use in this zoning district, which would allow the Blue Pheasant to operate until midnight, subject to a conditional use permit. Tentative City Council date: Oct. 17, 2006. Gary Chao, Associate Planner, presented the staff report: . Reviewed the proposal for Municipal Code amendment of Chapter 19.68 of the Cupertino Municipal Code related to permitted and conditional uses in the Parks and Recreational (PR) zones. The amendment would create a new conditional use in the zoning district which would allow the Blue Pheasant restaurant to operate until midnight subject to a future condition of use permit. . He reviewed the history of the operating hours of the Blue Pheasant restaurant, which until the Spring of 2004, the closing was 2 a.m. Eighteen months prior to the March 2004 lease expiration, staff negotiated a new lease through 2009 based on the 11 p.m. restaurant/bar closure time. The 11 p.m. closure was important to the surrounding property owners, but was a limitation on the business viability. Since acquiring the business in May 2005, the new owner has been closing the premises at 11 p.m. . Mr. Tsachres, the new owner, is requesting that the closing time be extended to midnight, three nights per week. . Staff supports the proposed zoning code amendment since it allows the same rights to an existing commercial use, the Blue Pheasant, that other commercial uses in Cupertino have, which is the right to apply for a use permit. . He clarified that the condition of the 11 p.m. closure was that no more patrons would be permitted in the facilities after 11 p.m., but the patrons already in the facility were not required to leave the premises. Cupertino Planning Commission 15 September 26, 2006 Staff answered Commissioners' questions regarding regulations for hours of operation in other cities, history of code enforcement concerns, and clarification of conditional use permits for 2 a.m. closings. Vice Chair Giefer: . The justification for staffs recommendation is that we want to make this amendment because it allows the same rights to an existing commercial use; however, other commercial uses within the city can petition us to stay open till 2 a.m. but we have determined to include the stipulation that the applicant can only apply for a conditional use permit through midnight. Questioned why it says midnight rather than 2 a.m. which is when the State of California would require him to close. Mr. Chao: . Explained that it was the requested hours from the applicant and/or restaurant owner. Eileen Murray, Assistant City Attorney: . Said that if the owner stayed open to 2 a.m. it would have to be a commercial zone, but is a Parks and Rec zone. Businesses are permitted to stay open until 2 a.m. if they are in a commercial zone. . In this case, we would not particularly favor changing the area to a commercial zone or even that portion of the park area because it abuts a residential area. There is a compromise having this type of business next to residences, in a Parks and Rec zone. Chair Miller: . Said that patrons cannot enter after 11 p.m., but the patrons inside can potentially remain inside as long as they want. Ms. Wordell: . That is true in the current ordinance; if this comes back for a conditional use permit, that can be addressed as it was for another restaurant in Cupertino that was especially sensitive and they had special restrictions placed on them. (Chilis) . With respect to Chili's they had to close at 10 p.m. and people had to be out, and they had till 11 p.m. for the employees to leave. . The closing time was enforced because of the residential area directly behind the restaurant. Ms. Murray: . Clarified that Chilis had a parking lot in the back which abutted residential homes at the time. She said there had been many complaints about car noise during the late hours. . Stated that Mr. Tsachres had been addressing the former problems with the noise in the parking lots at the Blue Pheasant during the late hours, and code enforcement was also more prevalent in that area, trying to reduce the problems. Chair Miller: . With respect to the justification, it seems like we are not comparing apples to apples because of the different zoning. The other places that we talk about in Cupertino are in a commercial zone and this is a Parks and Rec zone. . Without this application, you are saying the current situation will continue where patrons who are there can continue to stay there; there is no way to adjust those hours without him applying for this. In another words, if we satisfy this request and we also at the same time, say 12 a.m. means 12 a.m., the patrons have to be out. Cupertino Planning Commission 16 September 26, 2006 Ms. Wordell: . You would say that at the conditional use permit stage. Com. Wong: . Asked the city attorney if they had looked at the lease between the city and Blue Pheasant. There are no hours spelled out in the lease; so if the lessor wants to do it, they can just go beyond 11 p.m. Ms. Murray: . Confirmed there was an 11 p.m. closure in the lease. The lease and the closure were negotiated in a lawsuit and at that time the City Council in approving the lease, Mr. Lowenthal clarified at the Council meeting, that closing meant closing the doors at 11 p.m. and no new patrons were allowed in. There was no discussion at that time of an actual time when the building was to be emptied or all patrons and employees out of the building. It was not a part of the negotiation, nor a part of the public meeting with the City Council. Mike Tsachres, owner of Blue Pheasant Restaurant: . Said the issue of the 11 p.m. closing has been going on for the last year and he would like to hear from the residents who had concerns, so that he could address their concerns. . He explained the reasons it was important to have the one additional hour of operation in the evening. . Said that when he purchased the restaurant he lost business because of the earlier closing time. However, the 11 p.m. closure creates a continuation of losing a business, specifically whoever arrives between 11 p.m. and midnight and cannot enter the nightclub, will not return. Day afer day, there is a loss of customers. . When the restaurant opened, there was a problem with the people parking across the street from the restaurant. We have security and additional signs on the street indicating that it is not a parking area for restaurant patrons. We approach patrons entering the restaurant who have parked on the street and try to persuade them to go to the post office to park. Weare constantly monitoring the customer to minimize any troubles with the neighbors to avoid any friction. It has reduced the problems and complaints. The Sheriffs Department also assists in the parking lot on the weekends. . He said he felt the additional hour of operation would not cause additional problems because all patrons and employees would be gone from the building and parking lot. . He said that if business does not improve, he will be forced to put the restaurant on the market as it is not producing to its potential. . He explained that he had invested approximately $30,000 to improve the facilities. Chair Miller opened the public hearing. Terry Hertel, Byrne A venue: . Said that there has been improvement since the 11 p.m. rule. . Thirteen months ago the community voted to have the closing time be 11 p.m. and he said he felt it should remain 11 p.m. closure. . He said that prior to the 11 p.m. closure and Mr. Tsachres' ownership, there was prostitution on the property when the facility was open until 2 a.m. The earlier closing time eliminated that. . He said there are still large quantities of empty bottles on Friday morning and Saturday morning and many customers drink before they enter the premises. Most of the cars parking on Byrne, Orange, and Granada has stopped. Cupertino Planning Commission 17 September 26, 2006 · He said that staying open until midnight would allow people more time to drink and the noise in the parking lot will likely resume. He said the community wants the lot empty by midnight. Jennifer Griffin, Rancho Rinconada resident: . Said that a former Homestead High School teacher, Mary Lou Lyons provided information about the Hoo Hoo House which was an eating establishment or roadhouse in the area for almost 90 years. It was located near the Blue Pheasant and Cupertino Symphonic Band played there Friday and Saturday nights and they were likely a rowdy group also. Although the Blue Pheasant is now located in a recreational area, and if considered a historical section of the city, there is historical precedence for having a roadhouse there. Richard Knock, representing resident John Bunz: . Opposed to the application. · Said Mr. Bunz' main concern is parking. If the parking situation could be resolved and not changed by some shifts in the hours, it would be within the bounds of things he would be at ease with. · The permit would apply for a six month trial and would then monitor the noise in that time if the six months would also monitor the parking, which would be a good addition to the items brought up. Marjan Kashvad, resident: . Opposed to the application. . Discussed the parking problems on the weekends; the parking lot is full and cars are parked on the streets, and the Sheriff has to be called on several occasions. . Said that there continues to be noise from the site which has a negative impact on the neighborhood. . She said that if the closing hour is extended to midnight, it will bring in a different type of guest; people from other bars who have been drinking prior to coming to the Blue Pheasant. . The restaurant business is suffering because there is no focus or nurturing of the restaurant; what is happening is, in order to compensate for the lost business of the restaurant, the nightclub comes in, and that pressure is kept pushing back on the residents. . This land was bought, the residents paid for it through taxes; and trusted the city to manage it for the city's well being and welfare. Every time you push the times and the cars, the residents suffer the brunt of it. The $30,000 in improvements was the city's money, not the owner's money. . She reported that last year the city lowered the rent for the business to $2900 per month for the entire year. The rent for this year should be $7,000. She suggested that the city work with the business owner on a number so that the owner can focus on the restaurant business to make it a success. Ms. Kashvad: . Said she was not opposed to the restaurant, and supported it although she did not patronize it because of her frustration about the management. . She said she felt the owner puts the emphasis on the nightclub because he said the restaurant was not profitable, putting all the pressure and focus on the nightclub business. She said she felt it could improve if the city worked with the owner to improve the restaurant operation. Theresa Horng, Cupertino resident and realtor: . Opposes the application. .. Said that the restaurant owner is unable to enforce the patrons leaving at 11 p.m. with the 11 p.m. closing time; and the parking lot is still full at 11 :30 to midnight. Cupertino Planning Commission 18 September 26, 2006 . The customers create noise in the parking lot and leave litter in the streets. . She said one hour will not change the success of the restaurant, and the owner should try to improve the business of the restaurant and consult a business consultant if necessary. Marianne Klinkowski, Phar Lap Drive: . Opposed to the application. . Has resided directly across from the Blue Pheasant restaurant for 26 years; in the 80s the restaurant closing hours were 2 a.m. and there were many problems. With the 11 p.m. closing, things have improved; however, patrons remain in the nightclub for hours after closing. . Parking on the street is dreadful; the residents pay $40 annually for permit parking on their own street because of the Blue Pheasant. . She said the applicant purchased the business with the 11 p.m. closing, but with a history of a 2 a.m. closing. She questioned whether he was edging increment by increment toward another 2 a.m. closing. . She said there was trash, litter and noise outside the premises and on the parking lot and surrounding area. She has had to call the Sheriff's Department to ask for help with problems. . Recommended the enforcement of an 11 p.m. closing; lights out, everybody out. Although it is a nice restaurant, they don't need a bar in a residential neighborhood. Sunil Malkani, resident: . Opposed to the application. . Concurred with previous speakers on the issues. . Things have improved in the last two years, but there are still incidents of the beer bottles, noise and people parking on streets. . Said that code enforcement does not show up when called at 11 p.m. or midnight. . He said he did not understand how the business could be suffering since the parking lots are full almost every weekend between 8:30 p.m. and 11 :30 p.m. . He said a lot of time is spent revisiting the issue of the 11 p.m. closing time. . Reiterated that the 11 p.m. closing is not really 11 p.m.; it goes onto midnight or later. Tessa Ennals, Florence Drive: . Opposed to application. . Said that in a questionnaire to the Oakdale Ranch HOA about social events and ~oncerns involving the city, of 25 responses to question about extending the hours of the Blue Pheasant, 9 were strongly opposed to the extension; 4 somewhat opposed; 5 in favor and 7 no opinion. The bylaws of the association do not allow any official position be taken on the issue. John Ennals, Florence Drive: . Opposed to the application. . Expressed concern that the process laid out in the letter sent to determine if the Blue Pheasant have longer opening hours is not working well. . Pointed out that he attended the Parks and Rec Commission meeting regarding the issue and said that the documents and information for the present Planning Commission meeting did not have continuity with what was said at the Parks and Rec meeting. He noted that the documents stated incorrectly that the resolution was passed, when it was rejected 2: 1 by the Parks and Rec Committee. . He said there was also some discussion and a recommendation made as mentioned tonight where they would rather have a trial period of 6 months before any change be made to zoning. That passed 2: 1. He expressed concern that none of this particular information was in the Planning Commission packet of information. There is also no summary of the data that was Cupertino Planning Commission 19 September 26, 2006 . presented, nor the surveys that were presented tonight. Instead there are emails attached showing support from nearby residents who are not at the meeting. That was not the majority position of those who spoke at the Parks and Rec meeting. . He said he was concerned with the discontinuous process and that information was being lost that was given at each successive meeting. . He questioned how the process would get the get the correct information from the Parks and Rec staff to the various Commissions to have some continuity; who actually decided not to tell you the actual voting record, who decided not to include the public input. . He said he was told by Mr. Tsachres that he was led to believe by someone in the city that the extension of one hour shouldn't be a problem; in fact he is upset it is taking so long to get this on the agenda. Who was this person; how can someone in a city department convey that message after a unanimous 5:0 vote by the City Council not to change the 11 p.m. closing time. Who in the city came up with the new process we are going through to accommodate this request when a year ago we told him it was impossible. I would like to know when the Parks and Rec department are going to concentrate on a cohesive approach to the management of the resources under their control and stop worrying how to run a profitable nightclub. . Many years ago the Parks and Rec department told the residents the problems of late opening of the Blue Pheasant would all be taken care of when the lease terminated and the facility could then be used for a purpose more in keeping with the objectives of the Parks and Rec charter. . He requested that the ordinance not be changed, but that efforts be devoted to better define the existing ordinance so that the tenant and future tenants understand the meaning of an 11 p.m. closure. He said it appeared that once the doors are closed, people could potentially stay until daybreak. . He reported on data he collected in July and August when he visited the parking lot at various times to assess the use of the parking lot, monitor the arrival and departure of the cars, ascertain whether or not cars were parked on the street, and assess the impact on the neighborhood relative to noise and littering. . He said the current situation is in a fragile balance; the residents acknowledge that it is slightly better than before, they were living with the current levels of disturbance and would rather not tip the situation over the edge again. Mr. Chao: . Said staff talked to the Parks and Rec Director Therese Smith about the specific issue and it is felt that the Commission may have been somewhat confused in terms of the process, in terms of how they should make the motion to carry out their message to the Commission and City Council. . The conclusion was that they did make a motion at the end to recommend approval provided specifically that the two items were addressed, that the noise and the parking implications be evaluated and potentially at the use permit stage a six month trial period be looked at. . They wouldn't have made that suggestion if their intent was not to recommend approval of the ordinance amendment; in a sense they did make a motion to deny; but that was the confusion; they also made a motion to include those two conditions at the end, and I think that the conclusion was that the final motion superseded the previous, with the conditions that they recommend that the use permit be looked at. Com. Wong: . Recalled that there were two new commissioners and one senior commissioner who was absent, and another senior commissioner from another commission had to recuse himself because he was within the 500 feet. Cupertino Planning Commission 20 September 26, 2006 . He said his interpretation was they were trying to say they did not support the project and wanted to make amendments to it regarding the noise and the parking, but because they were so new, they didn't know the proper process. Chair Miller: . Expressed concern that information wasn't being communicated between the various committee and commission meetings and that details from the meetings were not being passed on. He said it was important to have the detailed discussions and/or actions taken on the various topics in order that all the committee and commission members were kept well informed on the issues. Albrecht Schoy, Phar Lap Drive: . Opposed to the application. . Submitted a copy of a petition opposing the matter and email correspondence for the record. . Summarized the questions from speaking with numerous residents relative to the Blue Pheasant operation. . He said many residents believe the nightclub operation has proven to be a nuisance as defined in the Municipal Code and would like some comments on deliberations. . He said many residents feel that the restaurant owner is neglecting the restaurant business in favor of the nightclub business. . Have the claims of the restaurant owner that his business has decreased by 40% ever been substantiated, and by whom? . He said that the owner previously stated he would keep the business open regardless if the closing time was changed; however, the residents are questioning why the city and Parks and Rec pushing for the conditional use permit. . He stated that the Elephant Bar can run a viable business with closing at 10:30 p.m. and questioned why the Blue Pheasant could not with an 11 p.m. closing time. . He asked if there were other recommended solutions to consider. Jung Chen, Oakdale Place: . Said that the restaurant owner signed the lease knowing there was an 11 p.m. closing time. . He said as a resident, knowing the city was so flexible to adopt code changes, he could potentially apply for a code change to build a ten story building in a residential area, which he opined was not the message the city should be giving. Eileen Murray, Assistant City Attorney: . Clarified that Mr. Tsachres was not the applicant and he has not submitted an application. She stated that it is a city application for a code change to make it possible for Mr. Tsachres to make an application for a code change. Chair Miller closed the public hearing. Com. Wong: . Suggested that there be follow up regarding the dumpsters and delivery trucks on the premises at 5:30 a.m. and following up with the Code Enforcement department if necessary. . He expressed concern about how to enforce the closing time, getting patrons to leave the premises after 11 :00 p.m. and getting the parking 10t-c1eared out with minimal noise. Ms. Wordell: . Clarified that the closing time meant people do not have to leave and clear the parking lot by a certain time. Also, if there are specific problems, they are reported as complaints or Cupertino Planning Commission 21 September 26, 2006 emergencies and there would be a response. If it is a disturbance in the parking lot, it would be reported to the Sheriffs Department at the late hour. · If the neighbors have a code enforcement complaint in the evening hours, they can contact code enforcement the next business day. If it was something that needs immediate attention, they should call the Sheriff s Department. Ms. Murray: · Clarified the role of the Sheriffs Department and code enforcement in responding to complaints about the Blue Pheasant. She said that there have not been many violations since Mr. Tsachres took over ownership of the facility. . She noted that although the residents in the area have concerns, they do not report all concerns to the Sheriff or code enforcement. Com. Wong: . Stated the importance of residents documenting any complaints and concerns by calling the Sheriffs Department in the evening and calling the City of Cupertino. Without the documentation, it is difficult for the city to convey the message to the owner. Ms. Murray: . Reiterated the 11 p.m. closing means that no customers will be permitted to enter after 11 p.m. . She reviewed the closure hours for various restaurants in Cupertino. Com. Wong: . Said tonight's application is not about the hours, but about the conditional use permit to allow the applicant at the Blue Pheasant to provide a vehicle or tool in a public recreation zone so that they can remain open later. . Said Mr. Tsachres explained his concerns of opening a business. The biggest concern is the city inherited an establishment that is in a park. The neighbors and emails received strongly support the historical institution the Blue Pheasant; they serve good food, and there is no problem with having a lounge there. It would be better suited to be located in a commercial zone. . Said he was not comfortable . I don't feel comfortable supporting the request for setting a precedent; having the public hearing provided good feedback, positive and negative constructive criticism to help improve the business. . He suggested that if the owner wants only one hour extension, the city might compensate him by renegotiating the rents to avoid the city having to find another person to run this particular business, as the city supports the restaurant. . Said at this time, during the public hearing and during the testimony and staff report, he did not support the conditional use permit. Vice Chair Giefer: . Said that when Mr. Tsachres previously requested an extension of hours, she supported extending the Thursday, Friday and Saturday hours. At that time her reasoning was that the city needs to decide what kind of business was suited for that particular location. The Blue Pheasant has been the same type of business for many years, and the ownership of the land has changed, going from private to the city as a park. . The Blue Pheasant business has remained the same for many years, and the city needs to either give the business what they need to compete in the open market; in this case it is longer hours on three specific nights; or say this is not the type of business they want there. We want to have a breakfast, lunch, tea time, close the doors or we need to allow the tenant to be successful. Cupertino Planning Commission 22 September 26, 2006 . She said she was pleased to see that things improved somewhat since the last time the application was before the Commission with regards to parking and noise; and said she hoped the trend continues to work in the residents' favor. . She said she supported staffs recommendation because they need to help make the business successful, or as a city need to change their mind about what kind of business should be located there. Com. Chien: . Asked the Assistant City Attorney what the legal difference was between a nightclub closing time and a restaurant closing time. Ms. Murray: . Explained that in this particular case, the lease was negotiated in a lawsuit and the lease states "the nightly closing time of 11 p.m." She said it was also defined at a City Council meeting orally. . She said that she did not have a written legal definition of restaurant and nightclub closing times. . Said that alcohol permits are issued and controlled by the ABC. Com. Chien: . After all the input, we as commissioners need to look at this from a business owner perspective because we are the owners of this building, and when you look at it from that perspective, you can say it would be good to have the restaurant hours extended so that it can survive; however, you would never make a business decision jeopardizing your other businesses. Your other businesses are all of you here today, and those residents of Cupertino. I would never make a decision that is good for one business but jeopardizes the other, and the problems are clear to me. People have told us that noise and parking is a problem and I believe that the later it gets, the worse the problems get. I am convinced that the combination of the late hours and the problems that exist are caused by the late hours and I don't feel comfortable to extend the hours which I believe would exacerbate the problems. . Staff has a responsibility when any applicant comes in for a residential application to present all the avenues, choices, what can be done and what can't be done. He said he felt the business was excellent, and because the city is the property owner, they need to work with the owner to see how it can work. He said however, that he did not feel extending the closing time to 12 midnight would be a solution. . Said he would not support the staff recommendation for the stated reasons. Chair Miller: . The issue here is that the city is running a business which is in conflict with some of the other objectives of the city, and that is to provide recreational facilities and to make sure that the neighborhoods are protected and that noise and those kinds of issues are handled. . Said the last time the application was presented, he voted against extending the hours, for the reason that the bar did not belong in a Parks and Rec zone. He said he was not changing his opinion at this point. . Mr. Tsachres has been doing the best he could to manage his patrons and try to deal with the parking, and it doesn't seem to be working. There are some other solutions, but it seems like there are solutions that the city needs to decide if they are ones they want to take, such as increasing the size of the parking lot or working with Mr. Tsachres to provide valet parking or doing better policing. Those solutions haven't been brought up or discussed. . Said based on the presentation tonight, he had no reason to change his previous vote. He said he would not support staff recommendation to extend the closing hour. Cupertino Planning Commission 23 September 26, 2006 Motion: Motion by Com. Chien, second by Com. Wong, to deny Application MCA-2006-03. (Vote: 3-1-1; Com. Wong, Chair Miller, and Com. Chien Yes; Vice Chair Giefer No; Com. Saadati Absent) Motion: Motion by Com. Wong, second by Com. Chien, to present a Minute Order to City Council to clarify the lease between the City of Cupertino and the Blue Pheasant Restaurant regarding 7b, the Use of the Property, stating that the use of the property shall be consistent with the rules and regulations of the City's PR zoning district which includes the nightly closing time of 11 p.m." City Council to clarify if it means that the premises shut down at 11 p.m. and everybody has to exit the building, or is there another interpretation. Com. Chien: . Said he wanted to limit that purview to what goes on inside the building, not the parking lot. Com. Wong: . Said he wanted interpretation of what the lease states and was open to the suggestion of adding something to it. Vote: 4-0-0; Com. Saadati absent. Chair Miller declared a recess. S. MCA-2006-02 City of Cupertino Citywide location Municipal Code Amendment of Chapter 14.18 (Heritage and Specimen Trees) Tentative City Council date: Unscheduled. Aid Honda, Senior Planner, presented the staff report: . Reviewed the background of the Municipal Code Amendment of Chapter 14.18 (Heritage and Specimen Trees) as outlined in the staff report. . On August 15, 2006 the City Council conducted a preliminary study session on the city's Heritage and Specimen Trees Ordinance and provided comments to the Planning Commission to address additional tree protection measures for possible incorporation into the ordinance. . City Council provided comments to the Planning Commission on topics including tree protection, approval authority, penalties of unlawful tree removal, noticing, and solar panels which are summarized in the staff report. . She reviewed the public comments received including a request to allow tree removal where trees block solar energy panels, and to request that PG&E reduce pruning of trees and use special insulated wires to allow trees to be closer to the wires; and to support tree protection in the city during construction. It was expressed that the tree removal fees were excessive. It was also requested to consider adding redwood trees, sycamores and black cottonwoods to the protected tree list. . The recommendations for additional protected trees were reviewed and are included in the staff report, Page 5-2 and 5-3. . She reviewed the penalties imposed by other cities for trees removed without a tree removal permit approval; and the revisions to the draft model ordinance. . Discussion items for the Planning Commission to consider include adding or removing trees from the protected tree list; determining a definition for what is considered unsafe or a dead tree; decide the approval authority for a tree removal permit; and retroactive tree removal permits, whether they be done at staff level or at the Planning Commission level; and decide Cupertino Planning Commission 24 September 26, 2006 what type of penalties to be imposed for unlawful tree removals; and what type of tree replacement requirements to impose if added as a penalty requirement; consider placing noticing on trees during application or appeals processes; and to consider allowing tree removal of protected trees where trees impact a property due to overcrowding and over-planning. Com. Chien: . Asked the arborist his opinion on using the width of the canopy, as proposed in the ordinance, to determine things such as value, rather than using the width of the trunk. Barry Coates, City arborist: . The trunk diameter at 4-1/2 feet above grade is the standard used by arborists all over the world, and since it is a standard used everywhere and the trade understands it, and it is the first item on which a tree's value is calculated, that should always be included. However, that doesn't mean that you couldn't add the canopy dimension as part of your evaluation; the trunk diameter is merely an easily accessible definition of tree mass. It is not simple to measure the canopy mass, but it is simple to get to the trunk. . The trunk diameter measurement is designed to evaluate the size of the tree. Adding the canopy mass to it as part of the evaluation is a very valid idea, because the canopy represents the tree's value to the city and the neighborhood more than the trunk diameter does. . Said the biggest deterrent for cities to use to prevent people from cutting trees is regulations and fines. If somebody cuts down a tree and the newspaper publicizes what is done about it, it is an effective deterrent for illegal tree cutting. . Regarding the criteria used for adding trees to the list, he said that the arborist evaluates the size, its health, its structural condition, whether it is damaging pavement or a structure and all of those go into an equation yielding an opinion. For example a Coast Live Oak that is a beautiful specimen but is structurally a disaster, they may recommend its removal even though it is a healthy specimen. That is happening in Saratoga now and a lot of controversy about it, but if 'the tree is hazardous, whether it is healthy, is irrelevant. There is a definition of the different native oak species in the document; previously just native oaks were protected. . Said that he felt educating the public on the process was important. He suggested a brochure, or a door hanger about cutting and removing trees that could be distributed when someone purchases a home or submits an application to reconstruct a home in Cupertino. Com. Wong: . Discussed the fee schedule and said the high cost may be a deterrent to applying for a permit to cut the tree. He questioned if having a lower fee would encourage them to follow the process. Barry Coates: . Said that in Saratoga, many times people will cut the tree down and pay the fine. The fines are not large enough to be relative to the value of the home or their opinion of the value of the tree being gone are not sufficient to prevent them from removing trees. He said he was not sure if having a lower fee would encourage the people to apply for a permit to remove the tree. . Provided a history of his background. Vice Chair Giefer: . Said she liked native trees because they thrive in the area, use less water, and produce less pollen. She said she tries to rectify trees that have come before us both here and planning as well as the DRC where they do landscape plan reviews; and is attempting to balance between native species and/or problematic species in Cupertino. She asked for the arborist's opinion on different species. Cupertino Planning Commission 25 September 26, 2006 Barry Coates responded to Vice Chair Giefer's questions regarding a variety of trees: . In response to Vice Chair Giefer's question about Washitonia Fan Palm trees, he said that both Mexican and California fan palms come from very specific micro sites, they are always in a desert and in an area and in a micro site that is wet. They are not a drought tolerant plant; they always only appear in those locations; they would never appear in clay soil; or in an area that is dry. You can say that about many plants, but if asking if they are appropriate here, he said you would never see a palm growing naturally in this location. . Deodora Cedar is native to the Himalayas. However, Deodora Cedar is very drought tolerant, is extremely long life, and very useful here. . Most conifers will produce pollen which are the primary sources of people's allergens. People see yellow acacia flowers and assume they are the cause of their allergens. A government research project in Australia demonstrated that the acacias were not usually the cause of most people's allergens; pine trees, cedars, cypress all are dominant. . Ash trees are problems; they are Evergreen Ash from Mexico and it is a huge tree, very brittle and very difficult tree to prune. It is a nightmare for an arborist. They are fast and very destructive of pavement. Some Ash trees are very useful but that one is a real problem. . California Pepper is from Peru; in Australia it is called Australian Pepper; in South Africa it is called the South African Pepper. It is not from California. Whether or not it is invasive, depends on the climate. Near a water course, they do tend to reseed and they can become a nuisance. Some places in Southern California, weather prohibitive; but they aren't a problem in that respect. . Madrones are a California native, but only in very specific areas. It is all through the Santa Cruz mountains, but the largest Madrone in the world is in Oregon, not in California. They are dying in the Santa Cruz mountains from a disease. It is not a tree you would plant and expect to grow in your garden. . Relative to affixing something to the tree to designate that it is a protected tree, he said in doing tree surveys, a one-half inch nail is used because it goes only into the bark, not into the vascular tissue. The tree grows around that and actually pushes it off eventually. What is done in most botanical gardens is to use a longer nail with a spring on it, with the label on the outside of the spring; the head of the nail holds the label on and then as the tree grows in diameter, it compresses the spring and the label lasts for a much longer time, from 5 to 20 years depending on the species of the tree. . He explained the reasons for adding the Coast Redwood and Incense Cedar trees to the list, because they are large native California trees, relative low maintenance and long life. The Incense Cedar is also a native tree from the Sierras, and is a large, useful tree. Chair Miller: . Noted there was a recommendation from the city naturalist to include the Western Sycamore, the California Bay Laurel, the Black Cottonwood, the White Alder and the Box Elder Acer. He asked the arborist for his opinion on adding those trees. Barry Coates: . He said he did not agree with the latter three, and noted they would be found only naturally growing in streambed areas. . He said that it is not very often that you encounter that type of situation when you have to make a decision about preservation of trees, but they are all short lived; if you are going to preserve trees, hat is normally done is to chose trees that are long lived so that the designation you have given, helps contribute to a longer life city forest. The California Bay is a separate problem because where you have California Bay going through the canopies of Coast Live Oaks or other oaks, the Bay will eventually ruin the oak trees; it outgrows them and as it grows above their canopy and begins killing the oak. Further, California Bay is the dominant supply of spores that Cupertino Planning Commission 26 September 26, 2006 cause. sudden oak death; so there are cases where Bay should be removed for the benefit of the surrounding Oaks. . The last recommendation is the Western Sycamore, which is one of the most valuable deciduous native trees, and wherever there is a stream area or wet area, it will likely be the most important tree you have. It should be preserved; however, it is so fast growing it is not a tree normally preserved at a small diameter; it would almost be equivalent to a redwood in the growth rate and you might wish to preserve that at a larger size, because small ones are very young. Chair Miller: . Stated that the arborist recommended more stringent mInImUm tree size requirements of between 6 and 8 inches; yet on the Coast Redwood and the Incense Cedar the proposal was for 12 to 15 inches. He asked for an explanation for reducing the size of the trees. . In terms of criteria for putting a tree into this protected category; is it native or indigenous to the area. Barry Coates: . Explained that it was a matter of how fast that species grows. One tree at 6 inches diameter could be 50 years old; where a Coast Redwood of 6 inches diameter might be a year or two; a 12 inch Coast Redwood might be 6 to 10 years old. The attempt is to try to protect trees of approximately the same age as each other. Once they reach some stage of maturity, it could be protecting them. . If it is important to your skyline, if as you look down the street you see a few of these which rise above the dominant trees, they deserve to be protected because that is what gives you the skyline, and if there are native trees that are reasonably long lived, they probably should be protected because they are native trees. He said he was quoting the logic behind those decisions by most cities. Chair Miller opened the public hearing. Carol Bunn, resident: . Said there was a Black Walnut tree on her property that was planted inadvertently and its canopy is above her house. She asked if would be considered protected because of the canopy, or because it is a good tree. It is causing some problems for her neighbor. . She asked if the cost of applying for a permit goes into a fund that people in need could draw from to get their permits. Ms. Wordell: . Said the Black Walnut tree is not protected, the only way it would be protected is if in the course of a subdivision or use permit, that particular tree was protected. . She said it was wise to call the Planning Department to have them check to see if a specific tree is protected even though it is not on the list of protected trees. . Regarding the fees, the fees go into the general fund and they are not a resource. Donald Anderson: . No longer present at the meeting. Syd Jacobson, Property Manager of St. Jude Church: . Said he was opposed to the process for tree removal. . Questioned why there were so many different classifications of trees. . Said there was a 90 year old Deodora Cedar tree on the property that died. They were informed they had to pay a $3,000 fee, which was reduced. He said he opposed the fee charged. He said Cupertino Planning Commission 27 September 26, 2006 they also had a heritage tree on their property; a Coulter Pine that leans over at 18 degrees and drops 5 pounds of pine cones. The arborist informed them that they would soon have to cut it down. The arborist also suggested they rope off the parking lot in places where it is becoming a danger. · He said that the church has planted in excess of 100 trees on the property. · There should be some specific guidelines when the tree is dangerous and removed, other than a person's opinion. . Said he was not previously aware that the city had a staff arborist. Ms. Wordell: · Clarified that the city arborist is called upon when someone applies to remove a tree or if somebody is applying for a development and a tree assessment is needed. The city arborist is not available for people to come out and look at their trees or to ask questions; the arborist's services are related to a development application. Robert Levy, Wilkinson Avenue: . Reported that recently on a Friday afternoon about 4:45 p.m. the city tree in front of his home dropped a large branch leaving part of it hanging and the remainder covering the parking strip on the sidewalk. He said he was unable to contact any staff in the city and when he called the Sheriffs non-emergency number, he was told that he was responsible for clearing the sidewalk and the parking strip. On Monday he was able to reach a street .tree maintenance group. Because the Sheriff's Department informed him that he was responsible for the tree, he cut the branch and put it in the street for the city to pick up on Monday. . He said he had 8 trees on his property and went out and purchased a new blade for his chain saw. He said that he did not know which of the trees on his property will be on the protected list with the upcoming changes, and he did not want trees that he planted to grow and threaten the safety of his family and home. Louise Levy, Wilkinson Avenue: . Said she did not see anything in the proposed ordinance that states which trees required a permit. . Said that the $3,000 fee for an application for a tree removal permit was exorbitant, and resembled a fine for having cut down a tree rather than an application fee. Gail Bower, resident: . Said she understood it would apply to the city as well as residents; hence any city trees would be a part of this program. . She requested that where feasible and safe, that dead trees be kept for habitat purposes. . She noted that in the proposed 2006-07 budget, the tree maintenance for the city has been deferred for about 4 years, and recommended including maintenance by the city so that they are not only being protected, but maintained so they don't have to be removed. · Said she supported adding more trees to the protected tree list as it would add variety. She said she was in favor of keeping all the currently proposed trees on the list also. . The model ordinance No. 10 states that the Community Development Director would be able to deem a tree dead and allow removal, which appears to be a broad approval given to one person. She suggested that an arborist's opinion be required in addition to the Director. . Said she requested by email a heritage tree list with a map of their locations. Ms. Honda stated that the list was available form the Planning Department. Cupertino Planning Commission 28 September 26, 2006 Julia Tien, Cupertino Road: . Referring to Mr. Coates' comment about looking at the viewscape of the city in terms of which trees to keep, one item is to look at the density of a property's plantings. She pointed out that Coast Live Oaks are very large trees and not too many can be planted on a property in the city. . In addition to looking at the species and the size, consideration should be given to how many are on the property in deciding which to remove. James Welsh, Commercial Tree Care, San Jose: . Said the high cost of a permit is a deterrent for honest people to come in and apply for a permit for tree removal. . Said that San Jose, Sunnyvale and Mountain View did not have fees for tree removal and other cities had low fees. . He said there are dangerous trees that may fall and cause deaths of people. . He said there needs to be consistency in the size of the trees and notification to neighbors needs to be clarified and streamlined. Eucalyptus trees are a major problem; some cities will assist with the permits just to get them removed. . Relative to using the size of the tree to determine if it should be removed, he said the size of the tree is determined more on the amount of water they need. . Questioned the reason for a staff arborist. He said he had four certified arborists on his staff and he felt that any certified arborist should be able to write an arborist report. Jennifer Griffin, Rancho Rinconada resident: . Said one of the reasons Rancho Rinconada annexed to the city was for the protection of their street trees, which are valuable to the neighborhood. . Said she wanted to ensure that street trees are protected by the city; they are under a special category and it may need to be explained to residents, exactly what a street tree is. . Cupertino has always loved its trees and as a prominent city in the Bay Area, Cupertino should continue to do everything possible to protect its urban and suburban forests. Trees provide valuable canopy cover and make Cupertino a comfortable city for walking. Mature tree cover allows city residents to feel they are in the country during their busy lives. . She commended the city for building fences around trees to protect them during construction, and said the city has done a good job of replanting their street trees and was assured that it will continue. . She said that posting notices on the trees that are going to be removed was important. . She asked if there was a designation that any tree over a certain size is protected? Jan Stoeckenius, Cupertino Road: . Said that he and his wife sent an email with comments. . Said they supported the concept of protecting the trees; . He said they initially were concerned with the move down to six inches on Coast Live Oak, since they had a large number of Coast Live Oak trees on their property, and they grow to six inches quickly. (Chair Miller clarified that Coast Live Oak was 8 inches) . Coast Live Oak trees grow quickly and he was concerned that there would be a large number under the ordinance when they are not difficult to replace. Chair Miller closed the public hearing. Chair Miller and Com. Wong summarized the issues: . Cost - the issue of goal congruence; which is not to discourage people from filing an application, but discourage cutting the trees down and coming in after the fact. Perhaps the fee Cupertino Planning Commission 29 September 26, 2006 . should be lowered for the application, and increase the fee if they cut the tree down without a permit. . How to define when a tree is dangerous and needs to be removed. . How to define what size of tree; heard several different approaches. . List of trees to be added. (They should be indigenous and in some way they helped define the skyline, but the others didn't make sense for a number of reasons) . What is criteria for adding trees to the Heritage list (why 4 inches vs. 6 inches?) . Cities of Mountain View, Sunnyvale, and San Jose have no costs for permits for tree application (What is their cost recovery) . What is the rationale for the different fees? What is the breakdown of fees. . How was the replacement plan criteria determined. . What is the cutoff point for fines; when does it become excessive? . Any other fees involved, such as fees for arborist examining the tree? Com. Chien: . Said he felt it was unreasonable that the church had to pay a $3,000 application fee to remove the trees. . He commended the fine work done and said more is to be done, with having it in writing so that the residents have a better understanding. Vice Chair Giefer: . Asked for clarification of "Heritage" tree vs. "Protected" tree Ms. Murray: . Clarified that the palm trees on Palm A venue were heritage trees, although palm trees are not a protected species. . The heritage trees are specific trees that have some historical value to the city and does not relate to its particular species. . She said that a specific oak tree could be a heritage tree if it is designated. Vice Chair Giefer: . Said she would like to see what is not included, because the landscap,e trees were discussed and she was not certain she agreed with the list. The tree list needs to be expanded, with the California Pepper tree added, as well as other trees. The audience had questions about street trees also. It needs to be stated what is covered and what is not. . Said one of her goals for the tree policy is to have an incentive for good behavior; and penalize people for not being out of compliance. She said that a tree removal permit fee of $10 and a retroactive tree removal permit $9,000 may be appropriate. Other cities are imposing fines and court cost recovery and she said she agreed with Mr. Coates that the way to get people to stand up and pay attention is if people get caught and the city imposes fines on them. She said that providing education and adjusting the fees is what it will take for people to stop hiring itinerant tree cutters because they don't want to pay the fee and they can pay $200 to cut the tree down. . She said there was more work to be accomplished. She expressed concern about the canopy equation because of crowding. Mr. Coates: . Said that the Big Leaf Maple should be included on the list since it is a useful tree, long lived and is indigenous to the immediate area. Com. Wong: . Said he wanted to know the criteria used for adding trees to the heritage and protected list; and Cupertino Planning Commission 30 September 26, 2006 was concerned that if too many are added to the list, it may become cumbersome to enforce. He said they should be careful when adding anything to the list. Motion: Motion by Com. Wong, second by Vice Chair Giefer, to continue Application MCA-2006-02 to the October 24, 2006 Planning Commission meeting. (Vote: 4-0-0; Com. Saadati absent) OLD BUSINESS: None NEW BUSINESS: None REPORT OF THE PLANNING COMMISSION: Environmental Review Committee: . Vice Chair Giefer reported that Val1co Shopping Center requested approval for the 4th floor garage exceeding 32 feet; the ERC felt it was a mitigated impact and it was agendized for the Planning Commission. Housin2 Commission: . Meeting was cancelled due to lack of business. Mavor's Monthlv Meetin2 With Commissioners: . No report. Economic Development Committee: . Com. Chien reported that the North Vallco study area was discussed. . Interviews are being conducted with businesses leaving Cupertino to talk about conditions they experienced while doing business in Cupertino. . Discussed upcoming projects. . Interviews have been taking place for the Redevelopment Manager. REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT . No additional report. ADJOURNMENT: The meeting was adjourned to the October 10, 2006 Planning Commission meeting at 6:45 p.m. Submitted by: Elizabeth A. Ellis, Recording Secretary