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P&R 09-07-06 ~ CITY OF CUPEIQ"INO P ARKS AND RECREATION COMMISSION CITY OF CUPERTINO REGULAR MEETING THURSDAY, September 7, 2006 1. CALL TO ORDER Chairman Peng called the regular meeting of the Parks and Recreation Commission to order at 7 p.m. 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL Commissioners present: David Greenstein, Roger Peng, Margaret Goodrich, Derek Chen Jeanne Bradford Commissioners Absent: Staff present: Thomas Walters - Acting Director Mike Bookspun - Administrative Assistant 4. MINUTES OF PREVIOUS MEETING ACTION: The minutes of July 6, 2006, were approved unanimously 5. ORAL COMMUNICATIONS - None 6. NEW BUSINESS Roger Peng The main subject is the Commission will make a recommend to the Planning Commission and City Council should the Municipal Code be amended to allow the Blue Pheasant operator to apply for a Conditional Use Permit for 11 :OOpm to midnight operation on Thursday, Friday, and Saturday nights? Make a recommendation to the Planning Commission and City Council. David Greenstein I talked to the City Attorney, I live a block away from the Blue Pheasant, and was advised to recuse myself from the meeting because of the two conditions regarding restaurant hours and that I live within 500 feet of the facility, so I'm going to do that at this time and let the Commission proceed. Tom Walters I have a presentation to give on the Blue Pheasant Restaurant. The Blue Pheasant bar and restaurant operates in a City-owned facility adjacent to Blackberry Farm Golf Course. The restaurant has been in business for over thirty-five years. Prior to Spring 2004, the Blue Pheasant stayed open until 2 AM on weekends. The City of Cupertino acquired the Blue Pheasant (the building) with Blackberry Farm Picnic Grounds and Golf Course in 1991, along with inheriting the lease. At the time of purchase, the lessee was in the final years of a 10-year agreement with an option to renew for an additional 10 years. The City honored the ten-year lease extension. Eighteen months prior to the March 31, 2004 lease expiration, staff negotiated a new lease (through 2009 with another renewal option) based on an II PM closure. The parcel the Blue Pheasant occupies is approximately two acres. The parking is shared with the golf course; the lease designates 91 spaces for the restaurant. The Blue Pheasant hours of operation became an issue after the City acquired the property and annexed it. Prior to annexation, the property was under the jurisdiction of Santa Clara County. Once a part of Cupertino, the Blue Pheasant became subject to city zoning. The "Park" General Plan designation was assigned and the applicable Parks and Recreation zoning applied. The current owner of the Blue Pheasant is Mike Tsachres. Mr. Tsachres acquired the business from the Rasmussen family in 2005, when they retired. The Rasmussans founded the Blue Pheasant. Upon acquisition of the business, Mr. Tsachres asked the City (as property owner) to process a General Plan amendment, zone change and Conditional Use Permit to allow 2AM operation of the bar. The City Council initiated the process, but ultimately the request was denied by the Council. Mr. Tsachres has once again asked to stay open later. He has now limited his request for time extension until midnight, three nights a week (a total of three more hours of operation per week). Tonight you will take public comment and make a recommendation to City Council regarding the amendment to the Municipal Code. The Planning Commission will hold a public hearing on the Code Amendment on Tuesday, September 26, 2006. The City Council will consider the Amendment to the Municipal Code on Tuesday, October 17,2006. Assuming the City Council amends the Municipal Code to allow the Blue Pheasant owner to apply for a Conditional Use Permit, the owner would then need to apply to remain open until midnight, Thursday, Friday and Saturday nights. Public hearing notices will be sent to surrounding residents. The Planning 'Commission will hold a hearing on the CUP application. However, the issue before you is not whether or how the Blue Pheasant should operate, but rather, whether the code should allow for the Conditional Use discussed above. End of presentation. Roger Peng Asked audience to fill out cards for comments on the issue. David Greenstein Speaking as a resident and not a commissioner, per attorney, I live near the Blue Pheasant, and know there are neighbors for the Blue Pheasant, and some don't like some of the operation of Blue Pheasant. I want to personally to see, since it's been around for such a long time, before most residents in area, I think we should look at that fact that it's been around for a long time and honor that there are many people that like Blue Pheasant. I would like to see hours extended, with a proviso for the neighbors that live right next to and around the restaurant, that there be strict regulations on parking and noise and a way to penalize if these things are not followed, so the neighbors can also be honored in their request. Albrecht Schoy Lives on Pharlap Dr. near Blue Pheasant and is also on board of Oakdale Ranch Homeowners Association, and speaks for those who are concerned with extended hours and is against the time extension because neighbors have suffered enough under prior owner. There have been many problems over years. Ilpm doesn't mean Ilpm, when the restaurant stays open from 12:30 until 12:45. I want to challenge assumption that the business cannot make it. Living there I see how many cars are there on weekend and are there late, and can run without the extension and still be profitable, such as Elephant Bar. This is in very residential area. Everyone who parks there and walks by affects our peace and quiet. Big risk for us to go back to the old days when late coming patrons, different clientele who dances, after 11 pm go there already drunk from other establishments, and difficult to control. The underlying problem is not with restaurant, but nightclub operation. Noise and parking issue has not been resolved, City has not added parking, all the facts remain the same as a year ago when application got turned down, extending another hour with put people back to leaving at 2am again. Most people go to Blue Pheasant are not from Cupertino who go there for nightclub operation. We open can of worms now, 12 months later, we'll be here asking for another extension, should stay in parks and recreation area as protection to neighbors, and believes business can still succeed. John Ennals Speaking as past president of the Oakdale Ranch Homeowners Association. The City assured us their was nothing they could do because of the 10 year lease but promised once lease expired, it would go to the park and recreation use, and was upheld at City Council. It was staggered when Mr. Tsacres still bought the business. He was surprised when he went there on July 22 at 11 pm and 21 cars were in the street, the lot full, a car being towed, 19 cars on access road, 7 empty spaces in lot, 131 cars total. A couple weeks ago at Fri. at 11 :30pm, the road was still full with cars parked on dirt, 13 spaces available in lot and an unusual number of cars parked on his street, with 8 cars on Oakdale. There were no cars on Oakdale, and much fewer on Pharlap the next morning. Mr. Tsachres is running a successful operation and is running way past closing time, people are staying as long as the restaurant and bar operation lets them, and not in the spirit of what was decided when the new lessee arrived. So some data will be collected in the future, I don't see where people will park if they start arriving after Ilpm, and Council voted unanimously not to extend hours when it went there last summer. Roger Peng Noted that the speaking time has expired. Tessa Ennals I'm on the Board for Oakdale Ranch, and a questionnaire in the summer was sent to homeowners, and one topic was the Blue Pheasant hours, and I received a total of 23 surveys which said 8 were in opposition to extension, 4 were somewhat opposed, 6 in support of extension, and 8 said indifferent, not very many out of 120 homes, but feels more in opposition than in favor. I feel the Blue Pheasant is a landmark, and no one wants to see it go out of business. I'd like to get clarity on what is meant by closing time, when doors closed and operator can continue to play music and serve drinks as long as he wants? Because it's City property, if! rented another community facility for wedding and was allowed to hold untilllpm, I'd make sure everyone left by II pm, or could I close doors and go on as long as want. I don't understand definition of closing time. Can you help me on that? Roger Peng Appreciate you bring statistics here, that will help us. Tom can you help us understand the closing time? Tom Walters Regarding closing time, I can't answer that question, but at the Quinlan Center, if there's a wedding, the closure is at 11, then everything has to be cleared out by 11 pm. Roger Peng A closing time specific definition at Blue Pheasant, like the Quinlan or Senior Center should be applied here too. Mike Tsachres I'm here to answer any questions. You all know the troubles that you had with previous situation, when I came in, I asked for 12pm closure, With my other clubs, I never ask for after 12pm, that's it,. Ifwe close at 1lpm, no one kicks out customer, doesn't mean we violate time, the rule is no one is let in. If Council approves 12pm, everyone will be gone by 12 :30pm. I'll assure the neighbors that if open until 12pm, nothing will be different from now and security in the parking lot will not let people park across the street, and wont let them enter the restaurant if they do, problem has been eliminated. I won't get rich by leaving it open until 12pm. Plenty of empty spaces by 11 or 11 :30, and don't see why I can't pick up other customers. I notified the City a month after a bought that it's getting tougher and tougher. I'm not there to be in fight to hurt neighbors, I need the neighbors' patronage and have no desire to come into confrontation with anybody and don't understand why they fight so much for one hour three days per week. I made a sign saying this is not parking for restaurant guest, security enforces this. I want neighbors to understand that I'm not there to create trouble to anybody. Since I bought the restaurant I've paid the bills, and it's old, the sewer is bad, the air conditioning is bad, the elevator, refrigerator went out, I spent $30K to fix place. Roger Peng Please come back to podium, I have some questions. There are times when you asked patrons to park properly, how often does that happen? Mr. Tsachres Every Friday and Saturday only, and a little on Thurs. I have two security people in lot and at doors, if they say them coming from across street, they're stopped and told to go park at post office or deli. There's a please don't park here sign and please be quiet sign, so people don't bother residents. Also sheriffs go by there every weekend. Derek Chen Do you have any projection on how much more money you'd bring in with extra 3 hours every week? Mr. Tsachres No , but at 9pm, every night we do a count, and know by 11 pm how many are inside, usually 158 162, we estimate 10-15 more people from II to 12pm on weekend. During the week 80 or 90. It's a big restaurant with a lot of expenses, so any extra money we can recover during the busy time will help, if you turn back people, they won't come back, the number will get less and less, all the promotion, not getting the numbers as Elephant Bar and others. Whatever we can get, we'd like a chance to survive. I like the restaurant and want to stay there. Derek Chen Before you bought the restaurant, you had time to observe the business, did you not take into consideration that the restaurant does close at 11 pm and is City ordinance? Mr. Tsachres I understand what you say, but 12pm was not the issue. I could do the closure with City Council was his understanding. I came in and said I'll comprise and close at 12pm, then figured out after spending all the money, do I have the right to request one hour in October, November and January. I need some help to succeed and survive, I'm not here to hurt anybody, if the neighbors don't come, who will? Margaret Goodrich Have you considered other revenue avenues, longer hours, weddings, and other activities you've considered to increase the revenue stream? Mr. Tsachres We tried to do banquets, November and December the Kiwanis, but not enough. Margaret Goodrich What about breakfast? Mr. Tsachres It's impossible, the kitchen is too small to cook. Margaret Goodrich You're now open at noon? Mr. Tsachres 11 :30am until 11 pm. Margaret Goodrich When you signed on the contract, you knew you were signing for 11 pm, you had a choice? Mr. Tsachres It was already done, not at that point, I put money in escrow, ABC, so I took it, but it's ok , I like the place and will stay there Margaret Goodrich Sounds like you do a good job. Tony Vandersteen I've lived on Pharlap for 34 years, haven't heard much of previous positions, but know what's represented on Pharlap and the opposition. We've been very happy with the environment, and enjoy fact that a nice restaurant,club and golf course, and have taken full advantage, and sympathize with people living closest to the club dealing with people creating problems. I'm concerned this might mean a zoning change, because it opens up a can of worms that can't foresee in future. I don't have a problem with the Blue Pheasant and really believe that success of Blue Pheasant comes from club because you do see a good attendance. Some residents do have problems, some don't, at the far end ofPharlap, I don't have a problem. The main concern is ifisn't enough profit to make it worth some ones while, it doesn't take a lot to realize there isn't much money to be made of this, with cutback in hours, I can see it is a bit of a threshold thing. I can see that city has a problem in terms of the parking, monitoring a and policing of the operation and Pharlap parking and has to be fixed properly. I wouldn't have a problem with extension as long as it's fixed. I'm concerned if it does go out of business, what happens 5 years from now if condos are put there? I don't see an easy solution but I think the City should come in and help. Roger Peng Closes public comments section, and gives to the Commission to discuss and make a recommendation Derek Chen I'm familiar with area because my in laws live there, and I drive by 2-3 times per month and know it's a steep street and cars go extremely fast and could pose a danger if the restaurant is open too late at night. I feel the pain the owner is feeling trying to generate revenue for his business, and wondering if I can recommend a 6 month trial period to see how it runs, if it worsens, or after the 6 month period, the owner would have to reapply for a Conditional Use Permit to see if worsens, and if so, stop it. If it doesn't, allow to continue? Margaret Goodrich I also am concerned about the history of the Blue Pheasant, it's become a fixture in community. Cupertino inherited the lease and long hours from Santa Clara County, and renegotiated the lease with the Rasmussens, and then with the new applicant, negotiated a contract. I'm also concerned with being in the shoes of resident, who need assurance about the hours of operation, and granting a CUP, which is the issue before us this evening, which brings a broad interpretation. CUP's have various degrees of monitoring and interpretation, and uncertainty if a home owner adjacent to Blue Pheasant, so neighbors would be in a position where they'd have to reinforce, have vigilance, and not a lot of assurance about what the future would hold. So to me this Conditional Use Permit per say should have a very limited use. I also look as this primarily as a Parks and Recreation Zone that happens to have a restaurant in it. It serves a very important purpose, however it was inherited in a way, so we must take on the issue with the property, try to collaborate, it means finding a middle ground which is what staff did when 11 pm was negotiated. Mr. Tsachres indicated at 11 pm when last customer arrives, you don't want to force him to leave, but let them enjoy their time, so closing isn't exactly 11 pm. I want parking monitored to see if it is a major issue for the business. Tome we have a situation that is a de facto situation, it may not be covered by ordinance or legally, but in a certain way, the bar is a pre-existing condition, personally I wouldn't want to say just because it's a Parks and Recreation Zone, we'll dispense with the bar. My inclination is to keep it the way it is and work with the Blue Pheasant to enlarge the revenue stream, be a little flexible, and see how it works for a little while longer. Ifit doesn't, we'll revisit it. Roger Peng First, I'd like to respond to the question, should Municipal Code be amended, but tonight's recommendation regarding a Municipal Code Amendment is directly related to the Blue Pheasant, and I agree with a 6 month probation, in addition adding conditions that restrictions strictly be applied and enforced on parking and noise level. Let them run a trial period for 6 months, and we'll monitor the situation. Lets make a motion. Tom Walters To make sure you guys are clear on what you're voting on, it's a recommendation to the Planning Commission and City Council to allow an amendment to the Parks and Recreation Zone, and Planning Commission to issue a Conditional Use Permit for the operation of a restaurant and bar. Right, correct. Derek Chen So we cannot put a trial period in there? Tom Walters I don't know how that works exactly, except that the Commission needs to make a recommendation to Council on whether or not to amend the Municipal Code. Roger Peng My understanding is the amendment this is not a generic case, but specific to the Blue Pheasant. We can apply the conditions of 6 months trial period and noise and parking enforcement Tom Walters Even if recommended, it still has to go to Planning and Council and back to Planning. The Planning Commission will take this up on 9/26, and Council on 10/17. Margaret Goodrich I need clarification here. My understanding is just on this issue we're voting. Are we amending the issue? Tom Walters It sounds like your amending the issue. Margaret Goodrich Do we have authority to change wording on the issue? Derek Chen I think we can vote on issue, but separate from the vote, recommend how to best address the Issue. Margaret Goodrich Based on wording, it's a yes or no, so I don't see how that's possible Roger Peng The way I read it, we can make an additional recommendation. Sometimes the chair has to make some interpretation on the wording. Margaret Goodrich So if we're going to change the wording, should we allow for further discussion on that? Roger Peng Sure. Margaret Goodrich I'm just not clear, Tom can you give us any direction on this? Tom Walters I haven't gone through this process so I'm not sure whether you can change the wording or not. Margaret Goodrich My understanding is the recommendation will go down the pipe to Council and Planning. Mike Bookspun I can read the agenda. The agenda item states: Should the Municipal Code be amended to allow the Blue Pheasant operator to apply for a Conditional Use Permit for 11 :OOpm to midnight operation on Thursday, Friday, and Saturday nights? Make a recommendation to the Planning Commission and City Council. The way I read it, it doesn't really specify what type of recommendation you're supposed to make, and unfortunately, Therese could not be here tonight, but I think that along with you recommendation you can communicate your feeling on conditions, which the Planning Commission and Council would stipulate in the end Margaret Goodrich The tentativeness with a plan like that, involves enforcement, interpretation, homeowners and the owner together more, its' a problem because it's so indefinite. Roger Peng Lets have two motions. One to follow wording strictly. Then second motion including two conditions. To cover all ground. Derek Chen MOTION: Should the Municipal Code be amended to allow the Blue Pheasant operator to apply for a Conditional Use Permit for 11 :OOpm to midnight operation on Thursday, Friday, and Saturday nights? Roger Peng Suppose we vote on this here, then there's no point on the second motion. Derek Chen So depending on the outcome of this vote, could we make another motion? Roger Peng If this passes, then there's no point in making another recommendation. ACTION: The Commission voted 2-1 NO to allow the Blue Pheasant operator to apply for a Conditional Use Permit for 11:00pm to midnight operation on Thursday, Friday, and Saturday nights. Yes - Peng No - Goodrich No - Chen Roger Peng Can I have second motion? Derek Chen Can we discuss? Marget Goodrich What I'd like to see is something substantive, really verifiable evidence of what you've done to increase business to generate more of an income stream, a profit loss statement, whatever you're comfortable with, if this is revisited Derek Chen I think conditions are midnight closure with patrons leaving by 12:30am, that they do this for six months, then this is revisited, or apply to extend further after 6 months. Roger Peng 6 months with conditions that parking an noise be enforced. How do you enforce this? I can't tell you now, but there are ways such as signage for example. Lets make a motion. Derek Chen I move to vote that the Municipal Code be amended to allow the Blue Pheasant operator to apply for a Conditional Use Permit for 11 :OOpm to midnight operation on Thursday, Friday, and Saturday nights under the conditions that a six month trial period with parking and noise enforcement be implemented. Margaret G. I'll suggest that it isn't an amendment, but what your proposed is a trial period, and amendment cannot be a temporary thing. My feeling is what you're suggesting to have a trial period, and than come back later for an amendment. Roger Peng Should we allow the Muni code to be amended? This applies directly to issue of the Blue Pheasant. When a Conditional Use Permit is applied for, add these two conditions. Derek Chen Maybe we could just recommend on our own to Council? Roger Peng We can't do that on our own. Margaret Goodrich I have no other input, its either or. I don't think were in a position unless there was more enforcement. Roger Peng Suppose these two conditions were added, would we want the Municipal Code amended? Derek Chen Maybe it's the owner's responsibility to apply for a trial period? Roger Peng They can't, there's no legal ground. Lets make a recommendation. If Council looks at two motions, if they think second motion is valid, then they'll accept it. Derek Chen It's really only a recommendation. Tom Walters Your first vote was two no's and one yes not to have Council amend the Municipal Code. What you're trying to do now is come up with another recommendation? Roger Peng Yes, to amend the Municipal Code to allow the Blue Pheasant operator to apply for a Conditional Use Permit for 11 :OOpm to 12:00am operation on Thursday, Friday, and Saturday nights under the conditions that a six month trial period with parking and noise enforcement be implemented. Margaret Goodrich And the have a determination of who and how would determine the validity efforts. Tom Walters You're just making recommendation on what you'd like to see. Roger Peng Planning and Council will look at all the details. ACTION: The motion passed 2-1 to amend the Municipal Code to allow the Blue Pheasant operator to apply for a Conditional Use Permit for 11:00pm to 12:00am operation on Thursday, Friday, and Saturday nights under the conditions that a six month trial period with parking and noise enforcement be implemented. Roger Peng -yes Derek Chen - yes Margaret Goodrich - no Roger Peng I understand outcome and discussion cannot please everyone, but this is not final decision but only a recommendation to Planning Commission and City Council. Thank you to all for coming and bringing your thoughts. 7. MISCELLANEOUS - NO ACTION REQUIRED Tom Walters updated the Commission that at on 9/5/06 City Council voted to reject the Sports Center Pool RFP's and would like the Commission to take public comment and make recommendation to Council on future use of the facility. The focus should be on service and revenue programs, which are not already offered. At the next Parks and Recreation Commission meeting, ideas will be discussed and recommended. David Greenstein Asked for any background. Who applied and what happened? Tom Walters DACA has a 10 year lease at the pool, and didn't renew, and has since moved it's location nearby. The City would have to invest too much money in repairs and upgrades, so instead is looking at other programs to offer. Also noted is there is too much competition amongst existing swim programs within the community. Skateboarding, a driving range, dog park are some ideas that have come up. David Greenstein The pool area is big enough for a driving range? Are we talking about same place? Tom Walters It's a small area like the Blackberry Farm facility. Commissioners will have a month to think on this and staff will bring data to next meeting for analysis. Roger Peng The Moon festival is on Sept. 30, and hopes to see everyone there. 8. ADJOURNMENT Chairman Peng adjourned the meeting at _8:15-p.m. Respectfully submitted, Mike Bookspun, Administrative Assistant