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PC 12-11-07CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 CITY OF CUPERTINO PLANNING COMMISSION AMENDED MINUTES 6:45 P.M. DECEMBER 11, 2007 TUESDAY CUPERTINO COMMUNITY HALL The Planning Commission meeting of December 11, 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: Commissioner: Commissioner: Commissioners absent: Marty Miller Staff present: Community Developme~ Senior Planner: Assistant City Attorney: Lisa Giefer David Kaneda Jessica Rose it Director: Steve Piasecki Colin Jung Eileen Murray APPROVAL OF MINUTES: Minutes of the November 27, 2007 Planning Commission meeting: It was voted unanimously to accept the November 27, 2007 Planning Commission minutes as presented. (Vote: 3-0-0; Com. Miller absent) WRITTEN COMMUNICATIONS: None POSTPONEMENTS/REMOVALS FROM THE CALENDAR: None ORAL COMMUNICATIONS: None CONSENT CALENDAR: None ANNOUNCEMENT: Chair Giefer announced that Assistant City Attorney Eileen Murray would be retiring effective January 31, 2008. She presented Ms. Murray a gift in appreciation of her service to the city and Planning Commission and congratulated her on her retirement. Chair Giefer noted that Applications U-2007-11 and M-2007-02 would be discussed together. 1. U-2007-11 Wayne Okubo (Evershine) 19620 to 19780 Stevens Creek Blvd Use Permit approval to allow a food store (Marukai) totaling 28,690 square feet located in the Marketplace Shopping Center (former Longs Drug site). Continued from November 13, 2007 Planning Commission meeting. Tentative City Council date: January 8, 2008 Cupertino Planning Commission 2 December 11, 2007 2. M-2007-02 Wayne Okubo (Evershine) 19620 to 19780 Stevens Creek Blvd Modification to an existing Use Permit (16-U-76) to modify the conditions under which food service businesses will be allowed in the Marketplace Shopping Center along the rear Service corridor. Planning Commission decision final unless appealed. Continued from the November 13, 2007 Planning Commission meeting. Steve Piasecki, Community Development Director, presented the staff report on both Items 1 and 2: • Reviewed the application for a use permit to allow a food store to be located at the Marketplace and the application for a modification to the use permit to modify the conditions under which food service businesses may be allowed along the rear service corridor. In this case, the Planning Commission has final decision over the modification unless it is appealed to the City Council within 14 days. • No cooking or preparation of hot foods will be permitted; there will be sale and preparation of pre-packaged food products, general consumer grocery goods; as well as a fish and meat market as part of the grocery. • Staff proposed modifications to Condition #4 as outlined in the staff report, as staff feels the business needs the flexibility as experts report that in the retail field 70% of new leases are food related. A blanket prohibition severely limits potential tenants in the center and would severely constrain the re-leasing of the tenant spaces, which does not serve anyone's interest. Staff suggests that in lieu of having the blanket prohibition, focus should be on the operational characteristics and attempt be made to write the condition better. The condition to allow food services are not clear, as defined in the staff report. Staff report also outlines the additional conditions to be added to the use permit. • Staff recommends that the Planning Commission recommend to the City Council to approve the use permit for the Marukai Food Market without the cooking of food in a kitchen type situation and approve the modification of Condition 4 of the old use permit and add new conditions per the staff recommendations. Steve Piasecki responded to Commissioners' questions: • Said the modification to the use permit would apply to all the food services along the comdor. • Said staff was suggesting prohibition of the impacts not prohibition of any food activities in that area. They felt it was a one size fits all solution to a problem that they could address through operational controls. They could recognize the concerns of the neighborhood, recognize the concerns the owner has, and try to find a good fit in the middle where activities would be allowed in very limited format. He clarified they were not talking about major new restaurants replacing retail. Chair Giefer opened the public hearing. Shao Liu, Bixby Drive: • It is the street right next to the Marketplace shopping center and the backyard wall is shared with the shopping center. There is barely enough room for a car to pass through. Resolution 3055 was clear in its definition of food preparation, etc. and has worked well for twenty years, and he felt it was unusual that it is being modified. It appears to be for the owner's interests. Cupertino Planning Commission 3 December 11, 2007 • Originally Marukai said there was not going to be any food preparation and at the open house they said they were not going to sell food. Later, they tried to modify this and get a kitchen which was later withdrawn. He feels this was misrepresentation on their part. Marge Thompson, resident: • Said the resolution should not be amended; it was originally intended to protect the citizens surrounding the Marketplace, including Bixby Drive. At this point, the amendments or proposals do not do that. Why after twenty years is it no longer acceptable to protect the citizens of Cupertino. • Said she was opposed to the definition of food prep. If it is prepared on site, where does the waste go ... into the dumpster which creates odor which will infiltrate the surrounding neighbors. • Another issue is the Marketplace misrepresented the parking because they listed Eriks Deli as retail and not a restaurant. It would require at least 18 spaces of parking, not 8, which puts the parking over the 2 extra spaces they have calculated already without adding anything else. • She asked that the resolution not be amended. Art Federico, Bixby Drive: • The rear corridor limitations have always been a problem; although the gates have been locked and unlocked, delivery trucks still get back there. Recently a truck driver unlocked the combination lock to make a delivery after an employee told him that deliveries were to be made in the back. Security is a problem. • Suggested that the resolution be changed to any business related to unloading and loading activities. Eugene West, resident: • Said there were loose ends with the project. If there is going to be fish and meat preparation, that is food preparation and is not allowed. • Said that the resolution should not be modified as it will become a slippery slope to additional provisions for the businesses. The parking problem is already severe and the frozen yogurt shop is not needed. He questioned why the yogurt shop was being built prior to the permit being issued. Virginia Tamblyn, Bixby Drive: • Said that many residents have sent letters of opposition to the Planning Commission. The residents are very vocal, and are not in favor of amending Resolution 3055. In 1987 the resolution was passed with the intent to restrict restaurants and food services adjacent to the rear corridor and to eventually eliminate them. By changing the definition of food preparation, the number of restaurants with special food services will increase along the rear corridor. Nothing was done when a neighbor went in and said a yogurt shop was going in. The resolution was in place, that is breaking the law when you do not enforce the law when it is brought to your attention. If more restaurants go in that negates the intent of the resolution. The Marketplace is already 7000 square feet over, they already exceed the limit for restaurants. • To change the resolution is a disservice to the adjacent residents and to the neighborhood. Evershine knew the law and over the years has tried to ignore it. They requested the resolution be amended, that is their right. It is the right of the residents to say no and to protect their quality of life and privacy. The homes are only 50 feet from the back wall of the center. • Evershine has not acted in good faith towards the residents protected by Resolution 3055. Cupertino Planning Commission 4 December 11, 2007 Boris Abramzon, Bixby Drive: • For the last ten years there has been a lot of restaurant development; however, every condition that the resolution was to protect, got worse. Rats, raccoons, noise, garbage and traffic worsened. • Said there was no justification for amending the resolution; it is the only protection the residents have. Alan Roth, resident: • Resolution 3055 was an agreement, a promise to the residents to protect them. If the grocery store is allowed to build a kitchen, the letter of the agreement is broken. A kitchen does not have to have cooking facilities to do food preparation. • He said he had concerns about odors and the parking situation. Parking is going to become a huge problem and might spill into the community. He suggested they review the study Evershine has done. • The city has passed the regulation that requires all new restaurants to put in odor abatement systems. The Elephant Bar has this and there is still a huge odor problem. The residents want the shopping center to succeed, but if a kitchen is allowed to be installed, it is breaking the promise made in Resolution 3055. Jennifer Griffin, Rancho Rinconada resident: • Said that the loading docks have been a long standing issue. She suggested that the ordinance be left in tact for the protection of the residents who have put forth a lot of effort to attend repeatedly and it is important to them. • There are still many issues that need to be taken care of at the Marketplace before existing ordinances are changed. The palm trees still have not been put back, and they were promised in June of 2007. • The Marketplace is in an ideal position to have retail but it is important to protect the residents, and have some harmony there. Please respect the existing laws. Chris Huang, Bixby Drive: • For the last twenty years the retail and residents have been balanced. The new device to remove odor is not perfect, the odor still remains, and affects the quality of life for the neighbors. Keith Murphy, resident: • He discussed the statements on the application forms such as the applicant signing the certification that the statements are true and correct to the best of the applicant's knowledge. He said the neighbors who have already spoken pointed out some misrepresentations. The application also states another step where the Planning Department is required to discuss the application with other staff prior to submittal; and also review applicable General Plan policies and zoning ordinances. He said it would cause a review of Resolution 3055 and the prior use permit. How does the city allow this to keep going on when you have residents telling you over and over again that it is not taking place. We are addressing intent of the applicant, and there is an situation with the palm trees that were removed and it has been a five year process to get them back on the property and it is still not done. • Said he hoped they would not amend the resolution because they are addressing mitigation rather than the intent and he does not feel they should fix problems that the applicant does not like through mitigation. It should go back to the intent; keep Resolution 3055 intact for those neighbors that it protects. Cupertino Planning Commission $ December 11, 2007 Steve Piasecki: • Said the pre-meetings took place with the applicant and they were aware of the condition and they are here to try and amend it. Wayne Okubo, Evershine Group: • Said that Evershine initially turned the applicant down; the applicant had emailed staff and got approval. The applicant from Yogurtland also came in and was told to talk to the city; if the applicant was approved for that use by the city they would look at it. • He stated that if they were to tell an applicant that they could not give them a lease because of the use and then the applicant is approved by the City, they wouldl come back to Evershine and ask why they cannot have a lease. He said they worked with some tenants on the issue. • Vector control is taking place to alleviate the rodent and bug problems; and an effective odor control product is being used in the trash compactors to address the odor control issues. The building department issued the permit so they can plant the remainder of the palm trees. • There are different levels of usages and each has its own parking requirements. Erik's Deli is set up as a food specialty usage and comes up with the same parking requirements that were displayed in the chart. Com. Rose: • Said at the previous meeting the Planning Commission hoped the applicant would go back and address different ways to mitigate some of the concerns the neighbors had about the kitchen. She asked if they had met with the neighbors since the November meeting to discuss some of the changes that Marukai has been willing to make to the plans? Wayne Okubo: • Said they had talked to Virginia Tamblyn to discuss the direction Marukai was going with not doing any cooking, and taking out the kitchen. They wanted to meet again to better understand more about the cooking issue, but there was no other information other than they were taking out the kitchen and would not be doing any cooking on the premises. • Said they did not offer the community a chance to meet as a group and hear the latest information, but they talked with Virginia Tamblyn to see if she would work on the neighborhood's behalf. • Said the parking management plan was still in effect. Chair Giefer: • Asked when the new trash system would begin. One of the stipulations with the trash is that it not be picked up earlier than B:OOam. Was the trash company agreeable to that? Wayne Okubo: • Said when everything is approved they can work on putting together the new trash compactor at each side of the shopping center. They have asked the trash company to come later but they do not know if that will happen. Gary Wong, Architect for Marukai and Marketplace: • Said he had permission from Marukai to visit their market facilities in Artesia, California to look at what they have there related to packaging, cutting and putting the food out to the public. The food preparation involves cutting up the food into packages and wrapping them and then selling them. He said he was impressed with the way they ran the business. He designed the trash compactors for each side of the center. They have drawings to submit but they wanted to get approval on the planning side prior to submitting them to the City. Cupertino Planning Commission 6 December 11, 2007 Com. Kaneda: • Asked if there was any waste when Marukai does the fish and meat preparation. Gary Wong: • Explained that the fish is packaged with no waste. There is recycling involved. The fish comes in a Styrofoam container on ice, the fish is washed, and the container goes in the recycling, the fish is cut up and all the pieces including the bones are packaged. There is no fish waste that goes into the trash. The meat is slimmed down and packaged. There is some fat thrown away like in any other market. The boxes are recycled. Tae Min, Yogurtland applicant: • Said she was not aware of the resolution code for the Marketplace; if she had known, she would not have submitted an application. • She went to the City and spoke with Gary Chao and was told to proceed. She got the franchise and hired a contractor; submitted all the plans and the resolution code was never mentioned. They went into the City so many times and were not told about the code. She already paid about $30,000.00 and does not know what to do now. She did not want to cause problems with the neighbors. The first time she heard about the situation was November 10"', right before the hearing on November 13"'. The City sent her the corrections, only three items to get the permit and start construction. Com. Rose: • Asked staff to comment on Tae Min's impression that this was something that was going to happen. Steve Piasecki: • Said he did not think that people understood that food preparation was going on; they thought that is was basically product comes in and product goes out. When they learned that the wording of the resolution is as broad as it is, they said cutting up raspberries is food prep. If taken literally, that is likely why they got mixed messages. • Said Resolution 3055 covered only the corridor piece. Com. Kaneda: Said he did not know the history of Resolution 3055 but presumed there must have been serious problems in the past to have the wording on the resolution the way it is. He agreed that food preparation and cooking are not the same thing, and said he was concerned with the smell of the trash and especially with meat and fish refuse going into the trash. Selling general food items is different than preparing meat and fish for sale. Said if the food came prepackaged, he would support it, but he did not support the preparing of the fish and meat on the premises. He said he does not support the resolution, the modifications and the use permit. Com. Rose: • Said she had hoped for a compromise between the Marketplace and the neighbors. She agreed with Com. Kaneda on the food preparation. • Said she felt the resolution is really clear why it exists and its intent, and it speaks to what they are facing today. She does not support either of the applications. Cupertino Planning Commission 7 December 11, 2007 Chair Giefer: • Said she does not support the resolution to change the overall use permit for the center. In terms of Marukai and being the replacement to Longs, she said she felt it was a somewhat comparable business. • Said she would support a six month use permit with a review of the trash enclosures. She said she felt they would be able to mitigate any smells from that market. Motion: Motion by Com. Kaneda, second by Com. Rose, to deny use permit U-2007-11 (Vote: 2-1-0; Chair Giefer no; Com. Miller absent) Motion: Motion by Com. Kaneda, second by Com. Rose, to deny modification M-2007-02 (mot^: '' ' n; ~'''^~-' r;^''^r °^; Vote: 3-0-0; Com. Miller absent) Steve Piasecki: • Stated that Application U-2007-11 will go forward to City Council on January 7, 2008 and Application M-2007-02 is a final decision unless appealed within 14 days. 3. U-2005-14 Dayna Aquirre, Sutro Consulting (For T-Mobile) Property Owner: Pacific Rim Park LLC 20041 Bollinger Rd. (Pacific Rim Shopping Center) Use Permit to erect a 32-foot tall monopole with three panel antennas and an equipment shelter for wireless phone service. Colin Jung, Senior Planner, presented the staff report: • Reviewed the application for a Use Permit to erect a 32-foot tall monopole with three panel antennas as stated in the staff report. The application has been on file for over two years. The original application was for a monopole surrounded by trees or bushes to be located at the back of a shopping center. That application was denied by the Planning Commission and later appealed to the City Council; the appeal was heard by the City Council and on the advice of the attorney, later remanded back to the Planning Commission for review of other design options at the request of T-Mobile. Staff has been discussing options with T-Mobile. Chair Giefer: • Asked if it was necessary to review Alternative B although they are not considering it. Colin Jung: • Said he felt it was necessary; although they are not reviewing it at this time, it is an alternative that the applicant will pursue if they are not successful in getting Alternative A. From their standpoint Alternative B is a facility type that in some respects based on State public utilities law they are allowed to do because they are looking at putting the equipment on existing telephone pole and the city's approval authority over it is very minimal compared to site A. He thinks it has some bearing on this. If the Commission does not want to review it he will hold his comments. • Illustrated slides showing the existing T-Mobile cell coverage. Com. Rose: • Asked staff if they knew the reason that the trees designated for removal and replacement were not thriving. She suggested they ascertain why they are not thriving and try to mitigate it for the future. Cupertino Planning Commission $ December 11, 2007 Colin Jung: • Said he did not know the reason; the ground cover and other trees are thriving. He said the City Street Supervisor would be asked to look into that. Com. Kaneda: • He asked for clarification on the location of the pole in one of the slides that showed the view of the hills. Colin Jung: • The point they are trying to make is that in the original hearing in 2005 some of the residents mentioned how the pole impacted their views of the west foothills, and that was when the pole was much more northerly of the present location. Staff is trying to demonstrate that the pole itself would be located on Bollinger Road from Blaney Road and as seen from the descent of the hills, the views are not impacted by the pole in that location. Chair Giefer: • Said that in the master plan, it shows an example of a stealth type street lamp on page 20 that shows a smaller antenna hanging off the street arch lamp. She asked what the difference was between this design and having multiples of them on multiple lights versus having one monopole? Colin Jung: • Said that antenna was a failed technology; and he felt it was both the technology and the service that failed. Steve Piasecki: • Said that technology was applied to many street lights throughout the city and it was trying to show an example if you are going to do this, it should be done small and contained. This is one location to fill a void; it is a monopole that is 20 inches wide and you have to use the reasonable standard. We have to strike a balance between the need to have cell phone coverage and reasonable stealthness. Chair Giefer: • Asked if there was a different technology that accomplishes the same thing in a different form factor? Dayna Aguirre, Sutro Consulting representing T-Mobile: • Currently T-Mobile has a coverage gap where their subscribers have difficulty placing calls and calls are dropped frequently. This has been a hot spot for T-Mobile and other carriers for a long time and it has taken a long time to get to this design. There will not be a generator on this site because it would obstruct the right of way; there will be batteries in the enclosure itself. • Microcells are a smaller type of facility they have on each pole, and are used in more rural areas where they are trying for continuous coverage. • They are a low coverage site, the idea is to utilize them when nothing else is available. A microcell is not an ideal site because of the fact that cities typically do not want cabinets within their right of way. She said she was not certain why the other technology did not work. Chair Giefer opened the public hearing. Cupertino Planning Commission 9 December 11, 2007 Bruce Burkart, Cupertino resident: • Said he did not get any signal inside or outside his house; he is located in the dead center of the white spot over by Bollinger. If he walks to the library, he may get some signal. He expressed concern that the result is he cannot give out his cell phone number or make outgoing calls. He said not having coverage in Silicon Valley is appalling and could also be considered a safety factor. • Said that his research of all the carriers indicated that T-Mobile has a good package; and the one pole does not appear to be so bad when there are other light poles in the shopping center for light; the one pole is not much for the coverage in the area. Andy Radle, Chairman, Technology Information Communications (TIC) commission: • Shared some results from a wireless survey conducted in the City. They received 614 responses from the residents talking about wireless in the city; 50% of the residents reported poor coverage within the city; 70 out of 71 written comments pleaded for better coverage. They did not survey the San Jose side of the city. Only about 10% of the residents surveyed raised any concerns of safety from radiation from cell phone towers. Ten percent of those surveyed also stated safety as a concern resulting from poor cell phone coverage. He said he witnessed an accident and was not able to call 911 on his cell phone. • People are concerned about the look of the towers, it is important to have a good design. The design is an improvement over the past designs. Peter Friedland, TIC member: • The report and all data is available and the City Council already reviewed it and asked them to proceed on the basis of it. He said they worked a lot with the emergency responder community and one thing that happened with the cell phone trend, is that it is becoming the default telephone that people are using for all their communications; it is the default telephone that emergency respondents use. The places where they cannot use their cell phones are very serious problems. Tom Hugunin, Laroda Court Homeowners Association: • Said the noise study does not consider reflectivity of the walls in the area. There is a non point pollution issue still. It sets a poor design precedent for Cupertino. If you approve this one, will more come in looking like this one? There is not any location on this pole for co-location. This neighborhood has been subject to one application after another and the Planning Commission has denied it twice. • The TIC survey also mentioned that 6% of the residents use T-Mobile. They also noted that this was not a problem area, perhaps, the TIC members can come back and elaborate. This location is difficult to hide something tall. He said he felt there are other more suitable locations, such as near the Trader Joe's site. Another solution may be a distributed antenna system. There is no source point pollution fix in this area. The neighbors did not like the Laroda Drive site for the pole. • Said that comments on the A site, were that they would like it located somewhere else completely. They are not happy as it has been an issue for three years. Jan Edbrooke, resident near the Pacific Rim properties: • Said he would like conclusion after three years, and to have cell service in the area. It appears to be the best location presented so far. • He expressed concern about alternative carriers coming in and wanting to place poles. Cupertino Planning Commission 10 December 11, 2007 Jonathan Lin, Laroda Drive: • Said although the proposal is not perfect, it was acceptable to him; Alternative B is unacceptable. Maryann Overton, resident: • Questioned the reason staff was speaking in favor of the proposal, as she thought staff was to remain non-partial. • Wanted to know what the circumference is at the top where the unit is going to be. It looks like a huge obstruction that will not be covered by trees. That is her only objection. She stated that she can use her cell phone in that area and she saw an accident off Blaney Avenue and people were using their cell phones. Colin Jung: • Said the diameter throughout the pole is 20 inches. Steve Piasecki: • Clarified that staff's technical role is to advice the Planning Commission on a variety of topics related to the policy structure of the city. Staff has reviewed the various plans and policies and is recommending this one because they feel it is the best compromise between their obligation and what their limitations are under state and federal law. He said that staff does not care for Alternative B either. Cristina Papadakis, Cupertino resident: • Said she resides next to the market and if they put that up she will see it from her kitchen window. She asked if others would like to come home to the noise and see that antenna, or die from cancer from the antenna? She stated that the residents pay their taxes, and vote for the Commissioners with the expectation that they will do something for the residents. Keith Murphey, E. Estates Drive: • Said there was a cell phone tower erected two houses away from his home on Miller and Richwood Drive, which was put in without holding a public hearing. The tower resembles a tree, but since the other trees have been trimmed, it is in his view. He said the monopole reminds him of the 30s and questioned if the city wants that to be a standard throughout the city. He suggested waiting to see if the aesthetics can be improved before that is a model they will use in the future. Com. Rose: • Asked staff if there were other design options? Colin Jung: • Said they looked at approximately 15-20 designs for poles at this location; 3 or 4 of the designs for this location went to the Planning Commission and were denied. He said they had exhausted everything with the technology; the residents were not interested in the tree option. • The options are limited; the trees to not look like real trees. Com. Rose: • Asked what the benefits were of the pole being in that space. Colin Jung: • Tin Tin Market is a tenant in the shopping center owned by Pacific Rim Center. The lease arrangement is that T-Mobile will have two leasers' and one would be the City because they Cupertino Planning Commission 11 December 11, 2007 are going into the public right of way and they would be a leaser for Pacific Rim Center because they have conduit and the base equipment on private property. The pole itself is in the public right of way and the base equipment is on private property. They will have two landlords. Both parties will probably earn a rental income from that. The neighbors have historically had problems with Tin Tin Market. Since the last review, many problems have been corrected. He said staff did not feel it was appropriate to hold one tenant responsible for another tenant's problems in the shopping center. Colin Jung: • Relative to the air conditioning unit on the properties, he reported that the noise assessments that were done for the applicant were for the air conditioning units running on the system. What they can do is take a similar site that is using the same equipment and measure the noise level. They measured the ambient noise of this location and then looked at their test site and measured the noise from the similar equipment which measured 53.9 decibels at the property line. They are trying to stay below 60 decibels. Chair Giefer: • Said this particular pole is not going to be co-located with any other vendor. How large would the top of the tower have to be if they did want to co-locate the tower? She asked if the San Jose residents across the street were noticed? A comment in Mr. Hugunin's handout was made about the relocation of a tallow tank at the plaza to implement the cooling system for the equipment. She asked if that was technically correct? Colin Jung: • Said the tower would have to be about 10 feet taller and likely be the same diameter. The residents of San Jose were included in the noticing. A tallow tank is a tank for grease usually associated with a restaurant. He said that the owner would have to find new locations for the garbage cans and tanks if they lease the space to T-Mobile. Com. Kaneda: • Said he saw the need for the pole; but did not see any difference between San Jose and Cupertino for safety purposes. Based on the calculations, he said he did not see any problem or danger with radiation; his concern is with the potential for the sound through the air conditioners. The numbers are lower than the numbers that are required for commercial properties. • He said he supports the application. Com. Rose: • Said she felt since it was located on a busy street, it is likely a benefit for visual aspects, and the location is likely the best location for everyone involved. • Said she supports the application. Chair Giefer: • Agreed with the other commissioners on their comments; and said she supports the application. Motion: Motion by Com. Kaneda, second by Com. Rose, to approve Application U-2005-14 (Vote: 3-0-0; Com. Miller absent) Steve Piasecki: • Said the decision was final unless appealed within 14 days. Cupertino Planning Commission 12 December 11, 2007 4. U-2007-09, ASA-2007-14, TR-2007-06, (EA-2007-10) Tantau Investments, LLC 10900 N. Tantau Avenue Use Permit to construct a 100,000 square foot, two-story office building on a 6.6 acre site. Architectural Site Approval fora 100,000 square foot, two-story office building and site improvements. Tree removal of 34 trees to construct a 100,000 square foot, two-story office building and site improvements. Aki Honda Snelling, Senior Planner, presented the staff report: • Reviewed the applications for use permit and architectural and site approval to construct a two story office building with site improvements, and tree removal permit for the removal of 37 trees to construct a 100,000 square foot, two-story building with site improvements, as outlined in the staff report. • Reviewed the project description, site layout, architectural design, green building, tree removal/replacements, groundwater remediation, North Vallco Park special center, parking, and ERC recommendations. • Staff recommends that the Planning Commission recommend that the City Council approve the use permit, architectural site approval and tree permit per the model resolution and also approve the negative declaration. • Said the project supports walkability with a number of plazas in the area, the pedestrian connections to the sidewalk, and from from the parking lot and around the neighborhood. • Said the applicant stated they would build the building to LEED Silver Certification and get it certified. It is a condition of approval since they have committed to it. Steve Piasecki: • Said that since it is a condition of approval, if it is approved this way, they would not be able to get their building permits or occupancy until they have satisfied their condition or they have come back to amend the condition. Larry Wallerstein, Applicant: • Said they have attended both the North Vallco meetings and also met with city staff as well as the city arborists and have responded to the commentary of the architects. It is a challenging site and he said he hoped to meet silver certification. • He said he would have preferred going with just a LEED certified building and not the silver certified standard. If they have to reach silver, they will try for it. The water is 99% or better clear already and about 50 feet below the surface. • Something not mentioned, but came up in the environmental hearing was a question about the safety inside the building. They personally met with Roger Papper from the RWQCB and the representatives of GE and learned that the amount of vapor possibly from the TCE that could leach from the 50 feet down groundwater into the building is probably non-existent to negligible. However, they decided to voluntarily put a vapor barrier below the building as well, which should address any concerns voiced. • They are planning to retain more trees than the city arborists have recommended, which is partly out of respect to the Santa Clara residential neighbors. As long as those trees will survive, they will provide them with a certain amount of privacy. If the trees die and the city requires them to replace them, they will do so. • They have taken a lot of direction from the city and feel they have a well thought out building. • Said the purpose of the sunshades were that they be used for the functional purpose of creating shade across the building, and help get LEED points. The second intent is to create articulation to reduce the building mass along the frontage. Cupertino Planning Commission 13 December 11, 2007 Sylvester Ramirez, Devcon Construction: • Said the certification process will likely take six to eight months but also depends on when they have the tenant in place. Currently they do not have a tenant. In order to get full LEED certification, the tenant will have to be in place and be part of the entire program. • Said they planned to get certification on new construction. Chair Giefer: • The certification does not happen at the end of construction. It occurs after the tenant moves in and the tenant activities influence that certification. Com. Kaneda: • Asked if they will write the lease agreements to require the tenants to do whatever they need to do to get the points to meet the silver certification. Sylvester Ramirez: • Said they would build a shell and they are looking for a tenant, who will go in that direction. It will be up to the owner to clause the tenant through lease agreements to comply with the LEED standard so the overall building will achieve certification. Greg Dumond: • Asked for the meaning of the white tape on the trees around the property; wanted to know if the arborists map is online; how he can contact Tantel Investments LLC if problems develop during construction. Also asked for the duration of construction, what species the new trees would be, and when the next neighborhood meeting would be held and how everyone would be notified. Larry Wallerstein: • The civil engineer marked the trees for the arborist, and there are likely some notations of the elevations and tree dimensions on the tape. They correspond with the arborist report. • The intent is to start construction April with 11 months to complete the shell portion of it. Chair Giefer: • The arborist map can be requested from the Planning Department at their counter. • The construction hours for Cupertino do not start before 7:00 a.m. on week days. Work is permitted on Saturday, but not on Sunday or holidays. The information is online; the tree species will be worked out this evening. Larry Wallerstein: • Said they noticed the residents who were on the city list. He made an announcement with the date, time and place. Jennifer Griffin Rancho Rinconada resident: • Said she was pleased that an office tech building, not residential, was going on the site, and that the building was appropriate. She recommended that they ensure the buildings stay green. She said she was also pleased that the trees will be replaced in the parking lot and she felt they are doing everything possible to protect the residents on site. Cupertino Planning Commission 14 December 11, 2007 Chair Giefer: • Said that in the environmental conditions, Page 4-147, even though the contamination has been removed from the soils, they still made recommendations with regards to not disturbing the soil as much as possible. She said to ensure that would be sufficient, she felt they needed some additional information with regards to the soil management plan as indicated in 7.1 on Page 39 of that document. Aki Honda: • Said they did not include any of those because those are specific requirements at the Federal level that the applicant will have to abide by. • Said communication to the construction team and landscape team will be accomplished directly through the applicant's construction team. It is the owners' and the construction team's responsibility. Larry Wallerstein: • Said there is a restrictive covenant that runs with the land in place. The USEPA functions through the RWQCB and the information is also given to the city. • Relative to the soils and soil movement, he recalled that there was a vapor removal completed in 1993; and the soils are considered to be clean. If they were going to do anything to impact the groundwater, they would not do it without first contacting RWQCB. There will be a design criteria that will be put into place for general questions of safety; they will not have to do a health plan. They will be in interface with RWQCB. Chair Giefer: • Suggested that they add to replant native trees under the landscape plan on page 4-9 and tree replacement No. 16 on 4-11 in the use permit, and also those same sections in the ASA application. Motion: Motion by Chair Giefer, second by Com. Kaneda, to recommend granting of a negative declaration on EA-2007-10. (Vote: 3-0-0; Com. Miller absent) Motion: Motion by Com. Kaneda, second by Com. Rose, to approve Applications U-2007-09, ASA-2007-14, TR-2007-06 with the following modifications: change wording to "replant native trees", and under the green building change the wording to "LEED silver, new construction or NC certification." (Vote: 3-0-0; Com. Miller absent) OLD BUSINESS: None NEW BUSINESS: None REPORT OF THE PLANNING COMMISSION Environmental Review Committee: • Chair Giefer reported that the item just discussed was discussed at the ERC meeting. Housing Commission: No report. Mayor's Monthly Meeting With Commissioners: No meeting held. Cupertino Planning Commission 15 December 11, 2007 Report of the Director of Community Development: Steve Piasecki: • Thanked Eileen Murray for her service to the Planning Commission and City and wished her well in her retirement. • He reported other personnel changes in the Community Development Department: Leslie Gross is the new Assistant Planner; Melissa Emerling is the new Office Manager; Senior Office Assistant is now full time from part time; and Patricia Garcia is another Senior Office Assistant. Meeting Adjournment: The meeting was adjourned to the next Planning Commission meeting. Submitted by: ~-/ " Elizabeth lis, Recording Secretary Approved as Amended: January 22, 2008