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PC 07-09-01CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 (408) 777-3308 APPROVED MINUTES OF THE REGULAR MEETING OF THE PLANNING COMMISSION HELD ON JULY 9, 2001 SALUTE TO THE FLAG ROLL CALL Commissioners present: Auerbach, Patnoe, Chairperson Kwok Commissioners absent: Chen and Corr Staff present: Steven Piasecki, Director of Community Development; Ciddy Wordell, City Planner; Colin Jung, Senior Planner; Mike Fuller, Public Works; Eileen Murray, Assistant City Attorney APPROVAL OF MINUTES: None WRITTEN COMMUNICATIONS: Chairperson Kwok noted receipt of a letter from Marc Hynes representing Judy Chen regarding Rainbow Drive project; Notice of employment opportunities from Kennedy & Assoc.; and a letter from T. Kao and G. Serre relative to Item 4. Com. Auerbach noted receipt of a letter from K. Marcus and E. Shafer, Rancho Rinconada residents, concerning a possible stop sign at Tantau and Barnhart; and a letter from C. Jutkins. POSTPONEMENTS/REMOVAL FROM CALENDAR: Application Nos.: Applicant: Location: 05-Z-01, 06-U-01, 06-EA-01 Summerhill Homes 10120 Imperial Avenue Rezonng of an ML (Light Industrial) zoning district to P(Res) (Planned Residential) for a 56-unit townhome development and to P(ML) (Planned Light Industrial) to allow a transfer of floor area ratio development credits Use permit to construct a 56-unit townhome development Postponed from Planning Commission meeting of June 11, 2001 Tentative City Council date: July 23, 2001 MOTION: SECOND: ABSENT: VOTE: Com. Patnoe moved to postpone Applications 05-Z-01, 06-U-01, 06-EA-01 to the July 23,2001 Planning Commission meeting Com. Auerbach Corns. Chen and Corr Passed 3-0-0 Planning Commission Minutes 2 July 9, 2001 Application: Applicant: Location: 04-U-01 Grosvenor California Limited 10120 Imperial Avenue & One Results Way Use permit to transfer floor area ratio development credits from Imperial Avenue to Results Way Corporate Park Postponed from Planning Commission meeting of June 11, 2001 Request postponement to Planning Commission meeting of July 23, 2001 MOTION: SECOND: ABSENT: VOTE: Com. Auerbach moved to postpone Application 04-U-01 to the July 23, 2001 Planning Commission meeting Com. Patnoe Coms. Chen and Corr Passed 3-0-0 ORAL COMMUNICATION: None CONSENT CALENDAR: Application No.: Applicant: Location: 11-DIR-01 Donald Kretsch 23657 Black Oak Way Referral to the Planning Commission of a Director's Minor Modification for a request to remove a protected deodar cedar tree (6-U-97 Oak Valley) Planning Commission decision final unless appealed MOTION: SECOND: ABSENT: VOTE: Com. Auerbach moved to approve the Consent Calendar Application 11-DIR-01 Com. Patnoe Coms. Chen and Corr Passed 3-0-0 PUBLIC HEARING Application No.: Applicant: Location: 20-U-99(M) A1 Lien Wang 1655 So. DeAnza Boulevard Use permit amendment to extend the hours of operation to 10 a.m. to 1 a.m. at an existing restaurant (San Wang). Planning Commission decision final unless appealed Staff presentation: Mr. Colin Jung, Senior Planner, reviewed the background of the application for the benefit of the new Planning Commissioners as the item was presented to the Planning Commission last year. Mr. Jung explained that the retail complex where the restaurant is located was originally approved in the City of San Jose. The complex was built in the 60s, at which time the City of San Jose did not require any time on the planning permit for the operation and it operated continuously through 1998 as a dinner house/piano bar, only open for dinner and live Planning Commlsslon Minutes ~ July 9,2001 entertainment in the piano bar in the late evening hours. The area came into Cupertino in 1979 with a boundary adjustment between San Jose and Cupertino and the dinner house came in as a legally non-conforming use because it was legal in San Jose, but non-conforming to Cupertino city codes, in that presently in Cupertino if a new restaurant if developed, if there is commercial parking abutting residential, the owner would be required to have a conditional use permit. As of 1998 the restaurant changed ownership to San Wang restaurant and at that point the San Wang restaurant operation was different from the previous operations in that they served lunch as well as dinner and ran a bar in hours later than the previous establishment, and featured karaoke entertainment. Mr. Jung reviewed the code enforcement history relative to complaints and hours of operation and noted that an injunction was filed by the city attorney's office against the restaurant owner for the activities. Use permits in February 2000 cut back the hours of operation and addressed other violations and conditions, and in August 2000 addressed other issues and conditions. Relative to the present application, the applicant is willing to close off the rear parking area near the residential neighbors and make other changes to mitigate effects on its neighbors in order to lengthen its existing hours of operation. Staff is recommending an extension of the hours by only one extra hour on Sunday through Thursday, and one extra hour on Friday and Saturday. Staff has also added Conditions 3, 4, 5, 6 and 7 in the model resolution. Mr. Jung reviewed the mitigation measures to address the neighbors' concerns and noted that the owner/operator would have to exercise behavioral control in order to monitor the noise from the establishment. He noted that the only complaints reported since the last use permit approval were related to the early morning parking lot cleanup and not within the control of the restaurant operator, but the responsibility of the property owner who hires the contractor to clean the parking lot. He said that there may have been code violations relative to food odors. Chair Kwok said that he favored a chain barricade in the parking lot; however, Mr. Jung pointed out that the fire department was not in favor of a chain barricade, but required something that could be driven over in the event of an emergency. Com. Patnoe questioned, if the restaurant was successful, the possibility of closing off the parking so that the additional patrons would have to park on Jamestown. Mr. Jung said that they could park legally on the street, but it is likely that if they were searching for additional parking, they would park illegally at the medical office building or park on the side, which is closer. Mr. Piaseki said that a condition could be included that the use permit would be reviewed. He said it was presumed that there is plenty of parking available. Mr. Jung clarified that there was no request for live entertainment or karaoke. Ms. A1 Lien Wang, restaurant owner, appeared with translator Benjamin Yen. Mr. Yen said that relative to the application for the use permit, the applicant would ensure that there would not be any noise bothering the neighbors; she is not applying for karaoke, just extension of hours. The bar has not been in operation for 2 years, however, she is still paying the rent on the space. She said she hoped the bar business would help her business. She said there were 9 employees at the restaurant. Ms. Wang also indicated she was willing to not have a happy hour included in the hours of operation. Com. Auerbach questioned if the applicant was prepared to have an employee every night move all the cars out of the back parking, put parking cones out, and find anyone with a car parked there who is not an employee, getting them to move their car, putting the cones up and taking them Planning Commission Minutes 4 July 9, 2001 down after closing. The applicant said she was willing to do that as a condition of approval, and if necessary put in valet parking. Chair Kwok asked where the employees parked and was told usually there were Snly four cars, and they parked in the front of the parking, not in the rear. Mr. Piasecki asked if the applicant was satisfied that there is sufficient air conditioning in the kitchen area to enable them to close the doors. Response: the air conditioner is working quite well now so they can keep the door closed all the times. Chair Kwok indicated there was a condition that states that all doors remain closed at all times. Chair Kwok opened the meeting for public input. Ms. Julie Smith, 1558 Jamestown Drive, said she lives directly behind the restaurant; and said that the employees do park behind the restaurant, behind her back yard; and the doors are always open at night from the kitchen until the employees leave. She said she was opposed to the extension of operating hours, and was concerned with the activities that would occur after the restaurant hours are concluded, such as the bar operation. She said they have had a lot of trouble and was upset that they were going through the process again. She said she was very concerned about the live entertainment aspect; and although it is stated that it is not permitted, there have been communications between her neighbor Mr. Serre about soundproofing the bar so the karaoke won't be heard. She said she did not understand why this was done if the activity is prohibited by the city. Ms. Smith said she was adamantly opposed to having to police the activity, it has upset her life and she was frustrated that they were going through this again. She said it was affecting the quality of her life and was resentful that she had to go through it again after 17 months. Chair Kwok commented that in future if she saw the door opened, or if there is any live music, please be sure to contact city staff or call code enforcement. He said it was the only way the city would know about the violations of the city codes. Ms. Smith said she was aware of the drill, having done it for a year. Com. Patnoe reiterated that applicant originally wanted to extend their hours to 1 a.m., and what was proposed through the compromised resolution, would only extend the hours to 11 p.m. on Friday and Saturday and 10 p.m. Sunday through Thursday. He commented that the 6omonth trial period would provide the opportunity to return in 6 months and discuss whether the residents have the same concerns after the new conditions are put forth, and whether the owner did what they said they would. He questioned if Ms. Smith would be opposed to a 4-month trial period at these particular hours with explicit conditions in the resolution of no karaoke and no live entertainment, which would extend it a couple of hours and try to limit the parking to her fence line. Ms. Smith said that 4 months would be more desirable; however, she did not see the parking proposal working at all, expecting patrons to move their cars after 9 p.m. She reiterated that many of the employees park in the back of the parking lot, and felt that cones could not be enforceable. She expressed concern about the karaoke starting up again, and said what goes on after 9 or 10 p.m. at a restaurant, are activities, not dining. Com. Patnoe stated that if the clause about karaoke or similar entertainment is included and il' the owner breaks that condition, the city has the right to revoke the entire approval immediately, and it would revert back to the previous hours and previous conditions. He said he was in favor of Plannlng Comm~sslon Mlnutes g July 9, 2001 trying something to see if it fails. Ms. Smith reiterated her concern that they break the rules now and have had a long history about this and it is hard to want to compromise with people who consistently break the rules. She said she was being expected to go through the routine again as a property owner, and police it. She reiterated that there is a history that has to be considered; it is not a new thing; and said perhaps if the rules had not been broken so many times over a long period, she might be more inclined to compromise, but it is unfair to ask of the residents. In response to Com. Auerbach's question, Ms. Smith said she had lived in her home for 7 years, and the restaurant was then Dartanians, and was closed much earlier because it was specifically a dinner house. Com. Auerbach questioned if Ms. Smith had a problem with the current restaurant as it is now. Ms. Smith said that it has been at the location for 17 months; and she has not called each time an incident occurs as she has a life besides policing the restaurant. She said if they do not do anything about the parking, people will be going out to their cars later. When Johnny Z's was there, they simply put up with it. Mr. Jung pointed out that in the current use permit there is no prohibition of keeping the back restaurant doors closed; it is only being proposed in the current use permit modifications. Mr. Glenn Serre, 1670 Jamestown Drive, said that the restaurant is fine, but history indicates any other activities and a bar causes incredible amount of grief. He said he submitted letters of opposition also. He said they were concerned that once the late night hours start, it is in the restaurant owner's interest to keep extending those hours and it is not in their economic interest to be very effective in putting a lid on the noise. Regarding having a test case, one of their main concerns would be that when the initial trial period is over, the conditions would gradually degrade and in order to prevent that, the residents have to police this, and when they are policing it, it has to happen at hours when they normally would be in bed, necessitating that they get out of bed to check to make sure the cars have been moved, we have to get up at 9 p.m. and check it out, which is not a likely activity to continue for very long. He reviewed the history of the restaurant. San Wang started in April 1998, the karaoke bar started in the summer of 1998, shortly thereafter the adjacent residents complained to the restaurant about the karaoke, and eventually they told his wife (Ms. Kao) they had permits and if their customers wanted it loud, there was nothing the residents could do. Mr. Serre said they called the city and it was nine months before the karaoke (an activity with no permits), stopped after their complaint. He said this was the reason they are so concerned about the issue. The current application is not for karaoke, but when they went to talk to the restaurant owner recently, she asked them how they would feel about her starting it up again and offered to show them the improvements she had made to the bar. He said it was obvious that the ideal thing from the restaurant's point of view is starting up karaoke again. He pointed out that relative to their concern about the late night hours, the later the hour gets, the quieter everything else gets, and the more annoying other noises gets. Promises are nice, but economics and silence are working against that. Mr. Serre said that the bottom line was that it is an inappropriate place for a bar and late night activities and they could not understand why they should be shoehorning this activity into a place that is not right for it. Vallco would be a more suitable place for it. Com. Auerbach asked if Mr. Serre had an issue with the way the restaurant is being run right now under the current use permit. Mr. Serre responded 'no' it is not perfect, but it is a restaurant. He said they wanted a continuation of the existing conditions; there is some noise, but during the day the surroundings are more noisy. Plannlng Commlsslon Minutes ~ July 9, 2001 Com. Patnoe asked if they were concerned that if the restaurant continues to be successful and they close off the large portion of parking; do they worry that some of these cars are going to park in their front yard and down the street, as opposed to behind their fence and behind some trees. Mr. Serre said that it would have to be extraordinarily successful for that to happen because there is parking at the liquor store at the comer and there is other illegal parking nearby, so he would be surprised if that happened. Com. Patnoe asked about changing it to a four month trial period and have a strongly worded statement about no karaoke or similar entertainment and any violation would mean the approval could be revoked and revert back to their previous hours. Mr. Serre said that it is the one hour increase on Friday and Saturday that concerned most of the residents, because it is no longer dinner, but it is late night entertainment activities. A four month trial period is better since the residents would not have to police it for so long; but on the other hand, it would also mean that the restaurant would have to be on its best behavior for only 4 months. Again, the concern is for the gradual degradation. Chair Kwok asked if the permitted hours of operation were approved, would Mr. Serre be satisfied with the conditions, or would there be new conditions to be incorporated. Mr. Serre responded that the letter he submitted detailed the conditions; noting that the parking proposal seemed primed for failure; the other condition would be no extension of the hours on Friday and Saturday. He said the modifications were mentioned in the letter, and it was his opinion that the parking solution was completely unworkable. Mr. Serre said the parking in the rear area is one of the minor annoyances; the biggest problem being they would not know how bad it is until much later. Com. Patnoe restated that it was his understanding that Mr. Serre would not have a problem if the parking proposal that the city is suggesting, is not part of the resolution. He (Mr. Serre) said that it is a minor problem and it actually may cause more problems or more concerns because it would require citizens to feel they have to police the situation and it would require the restaurant to s~ving open their back door from their kitchen to come out and check parking every 15 minutes or so which would take away from their patrons or worrying about noise or other issues and from actually functioning in the restaurant. Com. Patnoe asked if they should move forward to some stripped down version of a resolution; and said he did not like the idea of blocking parking, but understood the situation the residents were thrust into; and he did not want to be locked into something. He said he wanted to put it out there because the residents had given some thoughtful things to think about regarding their opposition. Mr. Serre also noted that they had concerns about patrons turning onto Prospect and driving into the residential area after drinking to get around the traffic on DeAnza Blvd. He responded yes, if the Friday and Saturday hours are left as they currently are. Mr. Steve Wu, 10445 Imperial Avenue, recalled that 20 years ago he had to travel to San Francisco to find a good Chinese restaurant, and then he learned San Wang had a restaurant in the Cupertino neighborhood. He said that he wanted to be sure that they were not against the business and should balance the business owner's concerns with those of the citizens as well. He noted that the restaurant owner did not speak English and did not understand what was happening. He said he was touched when he learned that the new immigrant was trying to run a business in the community and was going through some personal difficulty. He said he hoped for a good resolution to try to help ensure that everyone is happy as a community and to bring good restaurants into the area. He said he did not feel the area was noisy and asked that the owner be given a chance to succeed. Planning Commission Minutes ? July Ms. Eileen Murray, Assistant City Attorney, said that it had cost the city a tremendous amount in time, energy and money to get control of this particular business. She said she felt it was unconscionable to ask the residents to continue to police the restaurant activities, as they have been doing it for two years. Ms. Murray said that they had the sheriff, code enforcement, letters of complaint, phone calls, and the city still could not get these people (applicant) to cooperate; and the city had to go to court and get an injunction, which costs thousands of dollars. She said she felt it was unreasonable to continue to let them come back every few years and continue to expect the residents to put up with it; the last time they came, there were certain concessions made and it seems to be working. The residents are tolerating the small inconveniences and the business ~s operating. She said she did not understand why they would want to start it over again. Mr. Henry Ho, 1682 Jamestown Drive, said he had a problem with how they would enforce the parking condition, and questioned the need to extend the hours for the restaurant. He said he was opposed to the application. Ms. Ting Kao, 1670 Jamestown Drive, said she agreed with Mr. Serre (her spouse) on most issues. She outlined the process of policing: For two years it meant waking up in the middle of the night, something loud happens, sometimes it persists; you don't know where it is coming from; get out of bed and find out where the noise is coming from; walking across the fence to see what it is going on. Sometimes if it is a loud patron, and they are just exiting, it is not there when you get there; you can't call the police or the restaurant because the people are gone already; you can't prove it is the restaurant. You end up going back to bed to try to sleep and then maybe something happens again. She asked how they could be expected to police it again. This happened to their family repeatedly. Karaoke is easier to police; you go there and know where the noise is coming from. When it is a loud patron or parking noise, when it is noise from the kitchen, it is impossible and we don't complain because of that. The last time this happened, it took 9 months to stop the activity and it was a very blatant violation. The residents are being asked to do this for another 4 months, and after 4 months they are granted a permit, and then they have to continue it for how long? She said it was no way to live their lives. Ms. Kao said that the last time it happened, 14 months ago, they organized and knew it was a big problem, but wanted to stop it and they got the entire street to respond; 45 letters stating they did not want the bar in this area- policing it was so difficult. Com. Patnoe said the restaurant currently has a permit to conduct the restaurant business, open the bar, conduct it as a bar if they so desire; the Planning Commission is not to make the decision whether they can continue as a restaurant or whether they can open the bar to function as a bar. Mr. Jung emphasized that the only issue now at this point is the extension of the hours, not talking about live entertainment or karaoke; which has already been settled. Com. Pamoe said that relative to parking, staff was trying to make it easier on the residents who have already been suffering enough by recognizing what they have been through, and if the hours are extended to allow the business the opportunity to succeed, life will be easier by limiting access for parking for that street. He said he shared the concerns about policing it again, as he was concerned in the beginning how they would enforce it. Ms. Kao stated that the problem with extending it by adjusting it by a single hour, is they are slipping away from the dinner hour into a late night entertainment hour and given the history of this particular restaurant, the residents strongly believe that there is going to be some sort of entertainment, something that they cannot predict at this point, but it is going to be a noise source, and once it is a noise source, it is a headache for the residents and requires more policing and Planning Comm{sslon Minutes I July 9, 2001 action steps. It takes time away from the residents lives to argue this point, and she said they have to appear over and over again. She said she does not want to have to continually document the occurrences just to have backup for complaints. Chair Kwok asked if they only extended the hours to 10 p.m. on Friday and Saturday but kept the Sunday through Thursday at 9 p.m., would that be acceptable to Ms. Kao. Ms. Kao said that any extension of the hour takes into consideration that it only limits the restaurant activities; it does not · limit the cleaning of the parking lot activities or anything of that nature. Presently the parking lot trucks can only come and clean after the parking lot is empty which is another hour beyond when the restaurant closes. She said her daughter is frightened when the cleaning trucks come out because of the noise, and she has to close all the windows and doors; play music and read stories because the truck is very loud; 9:30 p.m. on Saturday and 9:30 or I0 p.m. on Wednesdays. The garbage truck comes at 6:30 a.m. She said they tried to be good neighbors when the resolution was last passed; and they made a conscientious effort to say if the restaurant is loud, they would go someplace else because they could; however, if the hours are extended, the option is not available any longer because of the late hour. Com. Patnoe explained that if the proposal was rejected, it would be done without beingable to place in a number of limitations and restrictions around some of the residents' issues of concern; changes can be added about the cleaning trucks to come through, a strict statement about no live entertainment, and no karaoke. If there is a vote to deny the application, nothing will change on what goes on the residents' back yards; the door will still swing open, people will still park and drive back there; if the hours were extended by one hour and do all these other things to help improve the quality of the neighbors' life, there is nothing that can be done to force the restaurant to leave or close their business. He said he was seeking a middle ground to help ease some of the suffering the neighbors are having by having this restaurant there and also allow a Cupertino business a chance to succeed. Com. Patnoe added that he did not agree with the statement that anything after 10 p.m. is entertainment based, because if a show gets out at Flint Center at 9:45 or close to 10, and people want to take the time to go for a snack, many restaurants close right at 10 p.m., and by extending the hours by one hour on Friday and Saturday, Cupertino residents are offered the opportunity to get something to eat on the way home from a social occasion or event. If karaoke was part of this proposal, he said he would not support it, but he wanted to make sure it was understood that this particular plan has to do with the extension of one hour, and with that one hour comes all the other protections for the neighbors with regard to the noise and the street cleaning, etc. Ms. Kao said she felt the probability of having somebody walking in an eatery/restaurant for a bite to eat is about the same as the probability of somebody walking in and wanting a drink; and the person who wants a drink, the probability of them being loud is high because they are with their friends and having a good time. She said she was making a trade off; she is aware of what it is presently like; she has lived with it for a year; she is aware of what she is getting into; she knows what she has to put up with and she could accept that. She said when they asked for the proposal, she is being asked to step into unknown territory and she is being asked to participate heavily to make it the way they want it; except the participation comes at a very steep price in that they (the neighbors) have to sacrifice their lives just to police this restaurant, and policing is not pleasant, and she was not willing to live with it. She said she understood that it came with extra protection, but realistically the protection is only on paper, the parking lot solution is on paper in her opinion; Planning ~ommlsslon Minutes 0 July 9, 2001 the cleaning truck proposal is on paper also because they are limited to those hours when the restaurant is not operating. Ms. Kao said there was a lot of good things on paper but someone has to make sure that the things are done and she was not willing to do it; and if she is the person who has to make sure that is going to happen by calling various agencies, she does not want to do it. She reiterated what her husband Glenn said, that there are a lot of other suitable places for late night dinners, they feel this restaurant is not one of them because it is right next to residential neighborhoods and there are a lot of codes currently existing in the Cupertino city code. Chair Kwok closed the public hearing. Chair Kwok clarified the working hours; currently Sunday through Thursday 10 a.m. through 9 p.m.; applicant requests to change it from 10 a.m. to 10 p.m. and staff agrees to go from 10 a.m. to 10 p.m. Mr. Jung clarified the permitted hours were Sunday through Thursday from 10 a.m. to 9 p.m. and noted the Planning Commission entered into discussion about what is meant by "closing". Mr. Jung clarified the meaning of closing hours: it is basically 10 a.m. to 10 p.m., 10 a.m. they open and 10 p.m. everyone is out the door Sunday through Thursday; Friday and Saturday the permitted hours are 10 a.m. to 11 p.m., meaning you open at 10 a.m. and by 11 p.m. everyone including patrons and employees are out the door. Staff proposal was a modification of this so that these hours would increase by just one hour, so it would become 11 p.m. and this would become 12 midnight. The applicants are requesting 1 a.m. closing. He pointed out that there was talk about modifying the parking arrangement; staff cautioned that if there are problems, they often relate to the behavior of patrons in the parking lot itself, which was found to be the case in some other bar situations. Mr. Jung said there needs to be that buffer between the residential and the bar restaurant parking, especially in the later evening hours. Mr. Piasecki commented that these are obviously far from ideal conditions when there is commercial so close to residential, and staff prefers not to do it this way. Currently if there is new development occurring, it is a problem for residents to try to monitor what is happening and what is presented is the classic case of trying to balance giving a tenant in a shopping center some flexibility in exchange for assurances that they can possibly make the situation better through closed doors, mechanical equipment screening, keeping the cars out of the parking lot all together, and limiting the parking lot sweeping to try to gain more controls. The bottom line, is in exchange for an extra hour you get these other benefits like equipment screens, others are soft operational, and they are difficult and we don't pretend that they are not. What you do have is a test period and the ability to say we tried it and it didn't work; we are not going to try it again. Com. Patnoe said they do not have the full picture because the bar is not operational; it is being utilized as storage presently, with the bar in storage there is no way to know what the popularity would be; what sort of patrons would be coming, the type of clientele, and it would be approving an extension of the hours with some unknown commodities. He said it was an issue that is one of the fundamental debates of government or local government on how do you balance the ability of giving a business the tools it needs to succeed in a community but also having to balance the needs and desires of a community at large and in the neighborhoods that they are greatly impacting. Com. Patnoe said he was inclined to deny the application, but would be open to re-hearing it later on when they have all the components; once the bar is open and operating for a couple of months, it can revisit the thought of extending the time by one hour. By then a solution to the parking problem may be more evident. Planning Qommlsslon Minutes l0 July 9, 2001 Com. Auerbach said he agreed with Com. Pamoe, and noted that they spent more time on the issue than on much larger projects, because the issue of the boundary between residential and urban development is so important. On one hand, many of the residents moved in knowing that it was a commercial center behind their back yards, which is something to deal with as an ongoing issue. At some point in the future, it will be redeveloped as something larger and development with many more people and restaurants, and is something to bear in mind for the future. On the other hand, when the residents moved in, there was a restaurant there and when the owner took over to open the restaurant with certain operating hours, he felt it was the most compatible use. He said he felt the parking was not workable, not realistic and not a good mitigation for the issue, and he was inclined to leave it as is and deny the application. Chair Kwok said he sat through the extensive hearings last year and was concerned and sympathetic about the residents. Again, there is the need to balance the business needs and the community needs and also the residents' needs. The question is that, how are you going to know it works unless it is given a try? A three month trial period might be the first try; by three months the restaurant owners might be extraordinarily careful about keeping in compliance with all the conditions; but again it is a temporary permit. The question the city attorney indicated that again, it is not the citizens' responsibility to police the operations of the restaurants; it is a painful experience for them to do it. Chair Kwok said that as it stands, he would vote to deny the permit; but suggested one condition change might be that the commissioners reconsider the situation in terms of the permitted hours of operation. Sunday and Thursday are very critical to the residents because they have to go to work; they need a good night rest and don't want to be bothered by any unnecessary noises within the area. He suggested that if the hours of operation are changed on Sunday to Thursday from 10 a.m. to 9 p.m., at this time no new patrons will be admitted after 9 p.m. and all employees of the restaurant must exit the premises by 10 p.m. instead of 11 p.m. so it would all be clear by 10 p.m., and then on the weekends Friday and Saturday, let them operate until 12 midnight. Would there be any difference because only the hours are changed for Friday and Saturday and the latest hours being 10 p.m. instead of 11 p.m.? Com. Patnoe said he would not support that because he did not believe they have the full picture; they want to operate as a restaurant and a bar, but they are not operating it as a bar currently, though they do have permission to do so through previous approvals. Com. Patnoe said that his view remains the same; until they have the whole picture, the application should be considered at a later date once the bar has been open for several months. He encouraged the residents or the city to increase their communication or find some easier channels by which to raise concerns regarding to keeping the doors open or concerns about people making noise behind their fence line. He said he would support denial of the resolution as it stands. Com. Auerbach concurred; noting they were sensitive to the fact that the restaurant is a benefit to hundreds of people in the community vs. several residents. On the other hand, in this case there is an applicant who has less than a stellar track record and he said it bears on his decision. He said he concurred with Com. Patnoe that he would like to see them have more positive experience in the neighborhood and perhaps revisit it at a later date; but given the track record at present, he would not support it. Chair Kwok reiterated that the suggestion was to leave it running as it is now until they have proven a good track record and then revisit it again if they desire. Plann{ng t2omm{ss{on M{nutes 11 July 9, 2001 MOTION: Com. Auerbach moved to deny Application 20-U-99(M) on the basis that hours of operation are best suited at this point with the knowledge we have to restaurant hours as they currently stand; that the solutions to the parking are not adequate; and that the applicant has a track record of not standing by previous agreements and being a difficult neighbor; whereas the applicant has not met the burden of proof required to support said application; and whereas the Planning Commission has not determined that the proposed use properly conditioned in this use permit will be detrimental or injurious to property or improvements in the vicinity, and will be detrimental to the public health, safety, general welfare or convenience; and the proposed use will be located and conducted in a manner in accord with the Cupertino Comprehensive General Plan and purpose of this title. SECOND: Com. Patnoe (added that we do not yet have the full picture with regard to the full level of operation of this restaurant as a restaurant/bar; and should this come before the Planning Commission again, we would like to have the applicant spend some time operating both and perhaps increase the access of communication between both neighbors, the city and the restaurant) Com. Auerbach accepted the amendment to the findings. ABSENT: Coms. Chen and Corr VOTE: Passed 3-0-0 Mr. Piasecki noted that the applicant had a period of 14 days to appeal the decision before the City Council. Mr. Jung noted that there was an appeal fee; refundable if the appellant is successful. Chair Kwok encouraged the applicant to work closely with the neighbors and make sure they are in compliance with the current conditions, be the good neighbor, and return in six months to show compliance. Application No.: Applicant: Location: 01-TM-01, 10-EA-01 Moxley Properties 21949 Lindy Lane Tentative map to subdivide an approximately 1.6 acre site into three parcels ranging in size from approximately 20,300 to 22,500 square feet in an R1-20 zoning district. Planning Commission decision final unless appealed Staff presentation: The video presentation reviewed the application for a tentative map to subdivide 21949 Lindy Lane into three parcels in an R-20 zoning district. The existing driveway will continue to serve the existing as well as new lots without alteration. An arborist report identifies 18 of the 43 trees on the site as specimen oaks; 12 are proposed to be removed. Staff recommends that several of the trees be reevaluated for removal to either remain or be transplanted. Those removed shall be replaced with 36 inch box oak trees. The applicant plans to rebuild an existing retaining wall and construct a new retaining wall between lots 1 and 2, and lots 2 and 3. Com. Patnoe left the meeting for a short period and returned during Ms. Wordell's presentation. Planning Commission Minutes ll July 9, 2001 Ms. Ciddy Wordell, City Planner, referred to the vicinity map and reviewed the proposal to subdivide the site into three parcels. She noted that the two issues identified by staff were the non- engineered fill and the tree protection. The non-engineered fill is shown on the shaded area, and is scheduled to be removed. The pads for the three lots would not be created, those would come later when individuals apply for their building permits for houses. There will be some retaining walls and drainage provided as part of the actual subdivision improvements. The trees shown for removal have been illustrated by X; 13 were identified as specimen trees and six would be saved. The arborist's report discussed trying to improve on that; three of the trees along the fill area are suggested for re-evaluation when the fill is implemented; because they are on the edge they could be re-evaluated to see if they could be saved; it would be part of the condition of approval to implement her report which calls for that and the oak tree would be relocated. Staff feels that two other trees could be saved, tree 42, a very large oak tree in a potential building pad could be re- evaluated at the time of building since there is no building pad proposed as part of this subdivision. There is also an oak tree by the proposed retaining wall that could be designed around and staff recommends retention of the tree. Ms. Wordell reviewed the recommendations for removal and retention as set forth in the staff report; and noted that tree No. 43 should be corrected to read No. 42. Staff is recommending a mitigated negative declaration for the fill, which would be removed and also for the trees which would have additional protection measures, and recommends approval of the tentative map. Com. Auerbach questioned if there was concern about introducing earth moving equipment from other areas that may be contaminated with sudden oak death fungus, or any way to keep equipment clean from contaminating oak populated areas. Ms. Wordell said that thearborist had not addressed the issue in her report, and said that if there was any validity to the concern, she could address it. Mr. Bret Moxley, applicant, said that he had a positive experience working with staff, and staff feels all conditions currently displayed in the staff report and resolution are appropriate conditions. Chair Kwok opened the meeting for public input. Mr. Ron Berti, 11406 Lindy Place, said he looked at the property from his balcony and had the positive externalities of it being full of oaks and rather pretty and he questioned why he was present, and why he would think that he was entitled to a vote about someone's private property. He said he lived previously in Garden Gate for a number of years when the county owned it and developers added many granny houses and because of the impact it was having on the neighborhood, he led a neighborhood petition and went to the county and convinced them that the development was deleterious to the character of the neighborhood to continue subdividing all those properties. He said he was not concerned about the property itself, but concerned that once one of the large parcels is subdivided it will set a precedent and the area will end up like Garden Gate. Mr. Berti said his concern was with the process by which they start dividing up the large lots. He said he moved there because he wanted a place with large lots and has a deep appreciation of it after living there for six years. He reiterated that he wanted to voice his concern about the ongoing process. Planning Commission Minutes 13 July 9, 2001 Ms. Sara Arzeno, 21949 Lindy Lane, said she felt like she had been through a similar thing in another neighborhood, formerly on Normandy Way for 12 years in a single story home and by the end of the 12 years, two story homes were all around them with no privacy. She said they moved to Lindy Lane for the large lot and the project would directly affect their beautiful view; and she was concerned that once you let something like this happen, it continues. She asked if the homes would be one story or two story houses, and had they taken into consideration that the road is very dangerous already. She said their auto was hit while parked in front of their house several weeks ago. She said that during the rains, the road floods over also. Ms. Arzeno said that she felt it was taking away from the reason they moved there, and they had put their life savings into the home and she felt that Cupertino is so pro-development that they will not listen to the concerns of residents. She pointed out that she did not receive notification ten days before the hearing date which is an issue; and she was concerned that at this time of year many residents are on vacation and the city was hearing only from a few who happen to be home and received the notice. She said that although it is not coded hillside, she pointed out that there have been slides in the area, which should be taken into consideration. She said she was crushed that she and her family were once again in the same position as seven years ago in the prior neighborhood. Ms. Wordell reported that staff looked at the environmental impacts of the project, and said on occasion the staff report may be truncated because they do not want to elaborate on things that might be written; however, it did go through environmental review, and looked at the road, drainage and grading. She said there is a geological consultant who reviews the geological report, visits the site, makes recommendations and the map is the result of those recommendations. She noted that it had been zoned R-l-20 for decades, and there would have to be a technical reason why a subdivision according to the zoning is not appropriate; and there was no technical reason identified. Mr. Mike Fuller, Public Works, said he was not aware of any flooding problems on that street, and noted there is an existing storm drain on Lindy Lane. The storm drainage from those lots will be conveyed to Lindy Lane; they are going to cut off the water at the downslope side of each property so that the properties are not draining into one another and that will be conveyed to Lindy Lane via the paved driveway. Relative to the road, he said they would be using the existing driveway so that road geometry and access of the properties on that private roadway to Lindy Lane will not change. Mr. Fuller said the frontage of this property on Lindy Lane is very short; there is an existing curb cut and no sidewalk on that side of the street, so street improvements are basically in, and the frontage on Lindy Lane is very short. Ms. Wordell clarified that the noticing was done by a professional service, and she was not aware if there was a circumstance which prevented them from getting the notices out on time or if there was a delivery problem. She said it was unfortunate if any residents received the notice later than that, although she did not think it affects the outcome of the public hearing, if in fact that does occur. Chair Kwok asked the city attorney if the project was approved, would the city be in violation of any code that requires public hearings be noticed a specified number of days in advance. Ms. Murray clarified that the city does have an obligation to get the notices out on time, and if a professional service is used, staff should verify that they were sent on time. She said she would have to research the implications if they did not get it out in time. She said she felt the hearing could continue and specify in the resolution that it will be verified that there was sufficient notice given. If there was not, the item could be brought back to the Planning Commission. Plannlng Comm{ssion Minutes 14 July 9, 2001 Mr. Berti said that he received the notice during the week prior to the hearing, before the 4th, but not the full ten days. Ms. Wordell said her understanding of the code was that it does not affect the outcome of the decision, but that it would be confirmed. Chair Kwok said that the concept of the public hearing and public notification is to notify the public for their input. If some of those neighbors did not receive the notice on time, he felt it meant that there was not adequate public input received. Assistant City Attorney Murray reiterated that the public hearing should continue. Ms. Wordell reviewed the road access to the three parcels. Mr. Fuller said the only addition to the existing roadway proposed was an asphalt curb on the property side; they are conveying some drainage to the roadway. He said there is a curb on the opposite side of the roadway but not on the property side because it is relatively flat, and staff wanted to make sure there was not a scouring issue at the edge of pavement, and proposed an asphalt curb along the edge of the roadway to help convey the drainage. Mr. Fuller said there is a Y that connects the driveway Com. Auerbach referred to, to another one to the east for the neighboring property, but he was not sure that it is proposed for use. He asked the applicant to address that issue. Mr. Moxley illustrated the location of the driveway which serves two different houses; and noted that one driveway was improved when one house was built around 10-15 years ago, which was when the road was widened, and noted where the curb and driveway concrete fixtures were put in. In response to Com. Auerbach's suggestion, Mr. Moxley said he did not feel it would be a problem to put in a piece of asphalt to make it a contiguous entranceway. Com. Patnoe said that should the proposal be approved, the applicant would have to work with the city on what the houses will look like, and it would give the residents the opportunity to provide input and help shape what is there or raise some issues they have. He said it was encouraging to see the 1:1 ratio regarding the oak trees removal/replacement, which speaks to the environmental friendliness of the applicant. Ms. Wordell said that the buyer/developer of each lot is not necessarily the current land owner, and since it is R1 they may or may not go through a public process to develop the parcel. If they can conform to the R1 and are under a certain size, it would be straight to a building permit, but if they are two story over a certain size, there would be neighbor notification and more opportunity for neighbor comment. Mr. Fuller illustrated where the storm water would flow to, generally from a higher area to a low area. He said it would be a swale and be surface drainage. He said staff felt the lots were relatively large and therefore would have a large pervious surface and that surface drainage was acceptable; there is storm drainage down on Lindy Lane but there is no public storm system up in the private driveway. He noted that the Public Works Department would issue the grading permit; staff has reviewed the grading plan to this point and the only modification proposed was a curb on the property side of the private road, so that there would not be a scouring problem at the edge of pavement. Mr. L. Dalle Ore, 22101 Lindy Lane, pointed out that in terms of being at the bottom of the property, the only thing to watch out for is the fact that if you have large equipment, the only way to get up is actually on the driveway on the right. He said if you try to get up on the bottom side, Plann;ng Commlss~on M~nutes 1~ July 9, 2001 there is too much slope, and therefore heavy equipment might not be able to get up that way. He said it was a major consideration in trying to clean up part of the driveway. Chair Kwok closed the public hearing. Com. Patnoe said he was supportive of the application with one caveat; with the condition that the city attorney research whether the ten days noticing of the neighbors was actually utilized. If the research confirms that the notification was sent out late, it may negate any decision the Planning Commission would make. Ms. Murray said that it should not affect the Planning Commission decision tonight; if someone wants to appeal it based on insufficient notice, then they would have I0 days to do so. She recommended making a decision; noting that some neighbors may be happy with it, there is no way of knowing how it will go. She said she felt it was appropriate to move forward with their decision. Com. Patnoe said that the 1:1 on the oak trees is something he would like to see included. Com. Auerbach said he was prepared to go ahead with the subdivision; if the residents have issues with the ability to divide the properties, then that process should have begun a long time ago, challenging the zoning for the area. He said the zoning of the area has been known for a long time. There is a lot of large home development up there, and it is not out of character with the general area. MOTION: SECOND: ABSENT: VOTE: Com. Auerbach moved to approve the mitigated negative declaration on Application 10-EA-01 Com. Patnoe Coms. Chen and Corr Passed 3-0-0 MOTION: SECOND: Com. Auerbach moved to approve the tentative map on Application 01-TM-01 with the following changes: that the tree identified in tree protection Item 3b, changed from 43 to 42; that in Section 4, Item 6- street widening with special attention to alignment at the entrance of Lindy Lane; that the arborist prepare a report prior to the final map approval recommending any possible ways to mitigate or to prevent or lessen the chance that the area will be affected by sudden oak death imported on machinery, equipment, or people. Com. Patnoe Com. Patnoe commented that staff or counsel investigate whether there was proper public notice, and should there be an appeal to the City Council, anyone that is opposed to the decision, they and the council be advised the results of this research, whether the ten days notice was found or not. Com. Auerbach accepted Com. Patnoe's additional comments. ABSENT: Coms. Chen and Corr VOTE: Passed 3-0-0 OLD BUSINESS: None Planning Commission Minutes 16 July 9, 2001 NEW BUSINESS: Consideration of cancellation of August 13, 2001 Planning Commission meeting. Mr. Piasecki noted that the City Council was canceling their first meeting in August. MOTION: SECOND: ABSENT: VOTE: Com. Auerbach moved to cancel the August 13, 2001 Planning Commission meeting Com. Patnoe Coms. Chen and Corr Passed 3-0-0 REPORT OF TItE PLANNING COMMISSION: Environmental Review Committee: Chair Kwok reported on the June 27th meeting; Summerhill Homes was on the agenda with the construction of a 56 unit townhome development and negative declaration. The major concern was the traffic, which was mitigated. Use permit was approved also. Housing Committee: Com. Patnoe reported that there was no meeting held and they would be meeting in the near future. Mayor's Breakfast: Chair Kwok will attend the July l0th meeting. Other: Com. Patnoe reported on his attendance and serving at the pancake breakfast on July 4th sponsored by the Optimists Club. There was a column in a recent Cupertino Courier by Councilmember Don Bumett, relative to the jobs, housing, and balance issues and some of the growth issues faced within the next few years. He said it was also accessible on Cupertino.com. Chair Kwok reported that he attended the farewell dinner for Don Allen, past president of the Rotary. He congratulated Mr. Allen on his work and said it was a pleasure to have him as a community member. REPORT OF TIlE COMMUNITY DEVELOPMENT DIRECTOR: Mr. Piasecki clarified Item 3 in the report; discussed Garden Gate annexation; relative to the likelihood of having a vote, City Council will need to take action at their next meeting. Dates for election would be in November; possible certification dates November/December 2001. DISCUSSION OF NEWSPAPER CLIPPINGS: None ADJOURNMENT: The meeting adjourned at 9:15 p.m. to the regular Planning Commission meeting at 6:45 p.m. on July 23, 2001. Respectfully Submitted, Recording Secretary Approved as presented: August27,2001