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PC 09-25-07 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 CITY OF CUPERTINO PLANNING COMMISSION APPROVED MINUTES 6:45 P.M. September 25, 2007 TUESDAY CUPERTINO COMMUNITY HALL The Planning Commission meeting of September 25,2007, was called to order at 6:45 p.m. in the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA., by Chairperson Lisa Giefer. SALUTE TO THE FLAG ROLL CALL Commissioners present: Chairperson: Vice Chairperson: Commissioner: Commissioner: Lisa Giefer Gilbert Wong Marty Miller David Kaneda Staff present: City Planner: Senior Planner: Assistant City Attorney: Ciddy Wordell Aki Honda Snelling Eileen Murray APPROVAL OF MINUTES: Minutes of the August 28, 2007 Planning Commission meeting: Co"ection as noted: . Pages 13 and 15: conavision" should read "cone of vision" MOTION: Motion by Com. Wong, second by Com. Kaneda, to approve the August 28, 2007 Planning CommisSion minutes as amended. (Vote: 4-0-0) Minutes of the September 11,2007 Planning Commission meeting: Co"ection as noted: Page 7: Reference to "Speaker who didn't fill out a speaker card" should read: "Mrs. Tasi, Cupertino resident:" Motion: Motion by Com. Wong, second by Com. Kaneda, to approve the September 11, 2007 Planning Commission minutes as amended. (Vote: 4-0-0) WRITTEN COMMUNICATIONS: . Ciddy Wordell, City Planner, noted that the desk items related to agenda items; and one e- mail was received relating to the Rl hillside action. POSTPONEMENTS/REMOV AL FROM CALENDAR: None Cupertino Planning Commission 2 September 25, 2007 ORAL COMMUNICATIONS: None CONSENT CALENDAR: 3. MCA-2007-01 Masayoshi Fujioka (Kikusushi Restaurant) 1655 So. DeAnza Blvd. Modification to Use Permit (20-U-99) to extend the hours of operation of an existing restaurant to 9:30 p.m. (with patrons/employees leaving to 11:00 p.m.) Sunday through Thursday, and 10 p.m. on Friday and Saturday (with patrons/employees leaving by 1:00 a.m.) Aki Honda Snelling, Senior Planner, presented the staft'report: . Reviewed the application from Kikusushi Restaurant for a modification of an existing use permit to extend evening hours of operation to 9:30 p.m. Sunday through Thursday, and 10 p.m. on Friday and Saturday, as outlined in the staff report. . The applicant is requesting a change of operating hours to coincide with those that existed at their prior location at their San Jose location nearby. The restaurant will offer no entertainment or karaoke uses. . She noted that City Code Enforcement received a complaint about the restaurant's heating and air conditioning unit in May 2007. The unit has since been repaired and the noise mitigated. A petition has been submite4d by neighbors requesting that the application be denied. . Staff recommends that the Planning Commission consider granting a temporary approval of the modification to the use permit, granting approval for approximately 6 months, at which time the city can determine whether or not there are violations of the use permit or problems relative to noise and parking. The application would come back in 6 months for the Commission to review whether or not to grant the use permit as proposed. . Staff also recommends additional changes to be added to the temporary use permit; that on Friday and Saturday nights all persons be required to leave the premises by 12 a.m. rather than 1:00 a.m. Staff feels that if the closing time is 10:00 p.m., two more hours should be sufficient time to serve the remaining customers, and to have the employees clean up and leave. Staff is also recommending a condition to require noise control signs throughout the parking lot, and also to restrict patrons from parking in spaces behind the building after 8:00 p.m., to mitigate potential noise from the site. Staff also recommends adding one more condition not in the resolution, which is to prohibit doors facing the residential properties to the west from remaining open during business and cleaning hours. Staff answered Commissioners' questions relative to operating hours, parking, and noise from the restaurant impacting the adjacent residents. Eileen Murray, Assistant City Attorney, recommended that the application come back to the Commission for review after a short time period under the modified operating hours. Masayoshi Fujioka, restaurant owner: . He asked that the operating hours be extended and said he was willing to work with the neighboring residents to develop a good relationship. Scott Helen, Manager, Kikusushi Restaurant: . Said that the main reason to extend the operating hours was to enable them to do their job sufficiently along with working with the neighborhood. He said at their other location, the 9:30 p.m. and 10:00 p.m. closing hours were successful, which allowed the patrons to finish their meals and staff clean up and close the premises within an hour after the closing time. . He said it was their goal to work with the neighbors and the city to work within the guidelines and the rules. Cupertino Planning Commission 3 September 25, 2007 Chair Giefer opened the public hearing. Ting Kao, Cupertino resident; also spoke on behalf of Mr. and Mrs. Haong: . Reviewed the history of the prior restaurant and the problems encountered by the neighbors. Many of the residents moved from the neighborhood because of the constant problems with the previous restaurant, which they did not feel were mitigated. She said that because the building is so old, it does not conform to any of the city's existing codes including those related to noise mitigation, safety and traffic. . She said that the nature of the business puts the burden of enforcement on the neighbors for monitoring the noise impacts and safety impacts on the neighborhood. . She said that problems still exist regarding the air conditioner unit, and the parking lot lights. . Opposed to the applicatIon. Aki Honda Snelling: . Said that the code section related to exterior doors, and loading dock doors, and said that many of the ordinance requirements applied to new developments. It is a legal non-conforming site which was developed, hence they are having to work with an existing development site. . Said that a noise study had not been conducted. She reported that a complaint had recently been received about the air conditioner unit; Code Enforcement said it was resolved by repair of the air conditioner unit. . Staff said that they would check on the status of the air conditioner unit repair. Jennifer Griffin, Rancho Rinconada resident: . Reviewed the various bars and restaurants in Cupertino from previous years which created problems within the neighborhoods. . She said if the hours are extended, she felt 12 midnight was a suitable time for the patrons to leave the premises. The area is a heavily populated area with houses and it is unfortunate that the bar area is close to the neighbors but that is the way it was built. She recalled the problems at the Captain Cooks bar many years ago and another bar at Blaney and Stevens Creek which was also notorious. . She said she was certain the restaurant would not fall into that category, and she felt that trying to limit the number of intoxicated people on the streets after 12 midnight was a positive thing. She questioned if they could stop serving alcohol earlier at the bar. . She said that because of the historic nature of the property and that the neighbors had to go to such lengths to try to mitigate the problem, they need to be sensitive to the residents. . It is important that they address the lighting and the parking issues. If you do lock the doors on the back side of the building, please make sure you put screamers on them; don't let people go out, but don't have the situation where you are locking patrons in the event of fire. Glenn Serr, Cupertino resident: . Said he submitted the complaint about the air conditioner unit and the parking lot lights, and stated that the problem with the air conditioner unit still existed, even though the city said it had been repaired. . Relative to the operation of the fans, he suggested that the fans be turned off earlier in the evening. . Opposed to the application. Alan Russell, Cupertino resident: . In favor of the application. Cupertino Planning Commission 4 September 25,2007 · Said that Kikusushi Restaurant has always been responsive to neighborhood concerns and is an asset to the community. . He requested that the application be approved for extended operating hours. Scott Helen: · Said that the reason to have the liquor license transferred is for the customers' consumption while they are dining, not for before or after hours, which is why there is a separate area for that. First and foremost it is a restaurant with a bar; not a bar that serves food. · Said they currently did not have plans to expand the bar or make it a sports bar. Chair Giefer closed the public hearing. Com. Wong: · They said that when they generated a code enforcement complaint, one was the HV AC which Code Enforcement dealt with and the other part of lighting was refeiTed to the Planning Department. Is it a two part process that must be split? Aki Honda Snelling: · Said that in the original use permit condition, there is a condition regarding parking lot and building lighting, that it should not cast illumination on or over the fence; therefore if it is currently doing that, they will have to remedy the situation to meet the condition. Com. Wong: · Since it is a legal non-conforming building built many years ago, and since there is a series of restaurants that go in there, is there any way to have a masonry wall there? Ciddy Wordell: . Said it could be a condition of approval to install it at this time; the property owner would have to install it as he is party to the application. If he refused to do it, the use permit would not be valid. Eileen Murray: · Said the mechanism of enforcement of the judge's ruling that parking was not permitted in the back after 9:00 p.m. would be through the Sheriff s office because there is no night time Code Enforcement. The city cannot do anything if it is from the judge; it is a contempt of court if that is occurring and the city would have to go back to court to file a contempt action. IShe said it may not be an issue because they are willing to block it off. As far as the rest of the court order regarding the hours, it allows for them to ask for other hours, by coming in and applying for a use permit. Com. Wong: · Asked what type of mechanism a resident has other than doing documentation by calling and investigating in the middle of the night, e-mailing Code Enforcement or the city the next day. Eileen Murray: . Said that the mechanism is to call the Sheriff if it is a disturbance at night and call the city during the day and report it; and staff would go out and work with the property owner or business owner. It is similar to the procedures for a temporary restraining order and then a permanent injunction which is what was done previously with this particular site. . Said that is why she recommended that it come back to the Planning Commission with notice to the neighbors that it is being brought back so they can report any problems encountered. Cupertino Planning Commission 5 September 25,2007 · She said she would recommend against it because they are so close to residences, and there will likely be problems. She expressed concern that it took a year and it was a terrible situation where families and children couldn't sleep at night and it went on every night, not an occa~ional incident. It was a previous business. Com. Miller: . Said that whenever there is an interface between two different types of uses, opportunities for problems and friction exist; the bar has been there for 30+ years. There are always problems, some places in town seem to work their problems out better than others; the Blue Pheasant has been a continuous problem for the neighbors there and has not had a completely satisfactory solution. There were some concerns from the residents across the street from the Elephant Bar, but they were resolved in a reasonably satisfactory way because nobody has complained further. Even though they are separated by a street they are roughly the same distance. · Comparing the Blue Pheasant to the Elephant Bar, the Blue Pheasant makes its money primarily through its bar and by providing entertainment and loud noise late into the evening. The Elephant Bar does not; it is primarily a restaurant; they do have a bar area similar to Kikusushi's, but it is primarily to serve drinks with dinner as opposed to people coming in to hang out as a singles bar, and such. Late at night, they seem to be closed and a good neighbor. . He said they want to ensure that the residents who live there are not unduly put out; but they also have a responsibility to their commercial interests in the city; particularly when one comes from San Jose into Cupertino, they are welcomed and they want them to be successful as well and they look for win-win solutions. . He referred to an earlier comment from a speaker about choosing to live behind Home Depot even though he knew that it would be noisier. He said that when residents move in close proximity to a shopping center or large store, it is a choice they have made. He said they still wanted to ensure that things work as best they can for the residents near the restaurant, and if the air conditioner is creating a problem and there is a code issue, they want to make sure it is addressed. . He said a speaker discussed concerns about traffic issues, but he did not know how relevant traffic issues were tonight because there will always be some commercial interest and there will be traffic whether or not Kukisushi stays open for an extra hour. It is important that if there is more traffic in the neighborhood, there are ways to mitigate that as well. . He said that since they have not received any complaints since the new ownership of the restaurant, and they were good neighbors in their previous location, his preference would be to approve a conditional temporary trial allowing the extended hours, and bring it back in six months to the Commission. If there are still complaints at that time, they can then be addressed. . The other issue was whether or not a masonry wall was appropriate, and the neighbors may Want to be consulted on that. To some extend a masonry wall would help the first story of a house, but it wouldn't help the second story of a house. Although there may be an unattractive wood fence, he said he would not want to live in a house where he had to look at a masonry wall every day. . He said he felt they should follow staff's recommendations. Aki Honda Snelling: . . Everything in the current use permit would carry over except for any changes, meaning extended hours and any new conditions would be added. She said they could bring in the language of the lighting and HV AC to the current model resolution for clarity. Cupertino Planning Commission 6 September25,2oo7 Ciddy Wordell: . Said they did not try to bring everything up to code; it is the Planning Commission's discretion if they felt they wanted to tie something to the new request. Relative to the masonry wall, 8 feet is currently the minimum requirement and likely is established as something that the city has required for a long time; therefore it could be appropriate. Com. Wong: · Said he agreed with some of the neighbors' concerns and also Com. Miller's comment that some of the previous tenants were not being a good neighbor. Kukisushi with their record at their previous location, is one of the better tenants compared to the others. He said he felt the concerns about lighting and HV AC were legitimate concerns and he hoped that the city would follow through in addressing those issues. . Concurred with the city attorney to bring the application back in six months and if legitimate concerns are still not addressed, there could be reconsideration of not granting the liquor license. . Said he felt the staff recommendations and compromise made were within reason. Com. Kaneda: · Said he agreed with Com. Miller, and with the six months' trial period. He said he was concerned about the lighting issue that has nothing to do with the current restaurant owner. He said that it is not under the control of the new restaurant owner, and it was unfair to hold him responsible. . Relative to the air conditioner issue, it is a matter of getting out there with a sound meter to determine if there is a problem. · Said he understood that there is a conflict between the neighbors and the restaurant; and said that the restaurant owner is very concerned about being a good neighbor and will try to do the right thing. If he doesn't, the Planning Commission will have the ability in six months to reverse their decision. . He said he felt the restaurant owner was being punished for the wrongdoings of the previous restaurant owners, which was not fair. Chair Giefer: · To clarify the point Com. Kaneda brought up, with regard to the lighting, that is for the entire center and is something controlled by the owner of the Coach House site. It is tied into this use permit, and if we were to give a six month temporary extension of the hours, would it be appropriate for us to require the property owner to either adjust the timing on the lights and ensure that the height is brought down so that it is not lighting off of the site. How is that done within the city for us to notify the property owner or make sure that happens? Ciddy Wordell: . It is an existing condition; if the problem was brought to staffs attention; (there is no record that it was) staff would seek and get compliance. Com. Kaneda: . If the property owner is required to correct the lighting problem, if it may turn out that lowering the lights five feet or to their original height, would it stop light from bleeding off the property. It may have been that it was incorrect before they were raised; what would the property owner be required to do at that point. Cupertino Planning Commission 7 September 25, 2007 Ciddy Wordell: . The property owner needs to comply with the condition of approval, to not cast direct elimination on or with the fence. Chair Giefer: . Said she concurred with comments from the other Commissioners; and agreed with the temporary six month use permit extending the hours and staff recommended items. . She commented that in the past, she has frequented Kikusushi's as well as other restaurants within the city, and always felt it was a family restaurant, where you could have a drink if you wanted one; but did not consider it just a bar. Motion: Motion by Com. Miller, second by Com. Kaneda, to approve Application M-2007-01 per the staff recommendation; in addition it be a temporary use permit for six months; add door closure on the west side? (4-0-0) Chair Giefer declared a short recess. OLD BUSINESS: NEW BUSINESS: None None REPORT OF THE PLANNING COMMISSION: Tbe Environmental Review Committee: No meeting held. Housinl! Commission: No meeting held. Economic DeveloDment Committee: No meeting held. Mavors Monthlv Meetinl! With Commissioners: Com. Wong reported that the following issues were discussed: . The Senior Commission: Preparing for the next age wave; working with the City of San Jose to identify their issues. . The Telecommunications Commission: A report regarding the cell towers; there will be some outreach. . Housing Commission: A report on the Kliel project; they are going to do some affordable housing, the housing commissioner reported that the bids had been sent out. . Library Commission: A new librarian has been hired to replace Maryanne Wallace. Cupertino is one of the highest circulation libraries in Santa Clara County. . Parks & Recreation Commission: Com. Roger Pang resigned. A new park is being created in Rancho Rinconada. . Public Safety: They are working with the middle schools on a pilot program to monitor speed limits near the schools. REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: No additional report. ADJOURNMENT: The meeting was adjourned to the October 9, 2007 Planning Commission meeting at 6:45 p.m. SUBMITTED BY: Approved as presented: October 9, 2007