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PC Packet 02-24-2015CITY OF CUPERTINO AGENDA Tuesday, February 24, 2015 10350 Torre Avenue, Council Chamber PLANNING COMMISSION 6:45 PM SALUTE TO THE FLAG ROLL CALL APPROVAL OF MINUTES 1.Subject: draft Minutes of January 27, 2015 Recommended Action: approve or modify draft Minutes of January 27, 2015 Draft Minutes 1-27-2015 2.Subject: draft Minutes of February 10, 2015 Recommended Action: approve or modify draft minutes of February 10, 2015 Draft Minutes 02-10-15 WRITTEN COMMUNICATIONS POSTPONEMENTS/REMOVAL FROM CALENDAR ORAL COMMUNICATIONS This portion of the meeting is reserved for persons wishing to address the Commission on any matter not on the agenda. Speakers are limited to three (3) minutes. In most cases, State law will prohibit the Commission from making any decisions with respect to a matter not on the agenda. CONSENT CALENDAR PUBLIC HEARING 3.Subject: Use Permit Modification for Smoke Eaters Restaurant Page 1 CITY OF CUPERTINO February 24, 2015Planning Commission AGENDA Recommended Action: approve the application per the draft resolution Description: Application No.(s): M-2014-01 Applicant(s): Julio Espinoza (Smoke Eaters Restaurant) Location: 10650 S De Anza Blvd Modification of a Use Permit (U-1988-11) to extend the operating hours past 11pm and to allow a separate bar at an existing restaurant Postponed from the January 27, 2015 meeting Planning Commission decision final unless appealed Staff Report 1 - Draft Reso M-2014-01 2 - Smoke Eaters Business Plan 3 - Plan Set OLD BUSINESS NEW BUSINESS REPORT OF THE PLANNING COMMISSION Environmental Review Committee Housing Commission Mayor’s Monthly Meeting with Commissioners Economic Development Committee Meeting REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT None ADJOURNMENT Page 2 CITY OF CUPERTINO February 24, 2015Planning Commission AGENDA If you challenge the action of the Planning Commission in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this agenda, or in written correspondence delivered to the City of Cupertino at, or prior to, the public hearing. In the event an action taken by the planning Commission is deemed objectionable, the matter may be officially appealed to the City Council in writing within fourteen (14) days of the date of the Commission’s decision. Said appeal is filed with the City Clerk (Ordinance 632). Members of the public are entitled to address the Planning Commission concerning any item that is described in the notice or agenda for this meeting, before or during consideration of that item. If you wish to address the Planning Commission on any issue that is on this agenda, please complete a speaker request card located in front of the Commission, and deliver it to the City Staff prior to discussion of the item . When you are called, proceed to the podium and the Chair will recognize you. If you wish to address the Planning Commission on any other item not on the agenda, you may do so by during the public comment portion of the meeting following the same procedure described above. Please limit your comments to three (3) minutes or less. Please note that Planning Commission policy is to allow an applicant and groups to speak for 10 minutes and individuals to speak for 3 minutes. In compliance with the Americans with Disabilities Act (ADA), anyone who is planning to attend the next Planning Commission meeting who is visually or hearing impaired or has any disability that needs special assistance should call the City Clerk's Office at 408-777-3223, 48 hours in advance of the meeting to arrange for assistance. Upon request, in advance, by a person with a disability, Planning Commission meeting agendas and writings distributed for the meeting that are public records will be made available in the appropriate alternative format. Also upon request, in advance, an assistive listening device can be made available for use during the meeting. Any writings or documents provided to a majority of the Planning Commission after publication of the packet will be made available for public inspection in the Community Development Department located at City Hall, 10300 Torre Avenue, during normal business hours and in Planning packet archives linked from the agenda/minutes page on the Cupertino web site. For questions on any items in the agenda, or for documents related to any of the items on the agenda, contact the Planning Department at (408) 777 3308 or planning@cupertino.org. Page 3 CITY OF CUPERTINO CITY OFCUPERTINO 10300 Torre Avenue Cupertino, CA 95014 CITY OF CUPERTINO PLANNING COMMISSIONMEETING DRAFT MINUTES 6:45P.M. JANUARY 27, 2015 TUESDAY CUPERTINO COMMUNITY HALL The regular Planning Commission meeting ofJanuary 27, 2015was called to orderat 6:45 p.m. in the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA. by Chair Paul Brophy. SALUTE TO THE FLAG . ROLL CALL CommissionersPresent: Chairperson:Paul Brophy Vice Chairperson: Winnie Lee Commissioner: Margaret Gong Commissioner:Don Sun Commissioner: Alan Takahashi Staff Present: Asst. Dir. Community Development: Gary Chao Assistant Planner: Kaitie Groeneweg Asst. City Attorney: Colleen Winchester APPROVAL OF MINUTES: 1. Draft Minutes of the November 25, 2014 Planning Commission Meeting. MOTION:Motion by Com. Gong, second by Com. Sun, and unanimously carried 5-0-0, to approve the minutes of the November 25, 2014 meeting as presented 2.Draft Minutes of the December 9, 2014 Planning Commission Meeting. It was noted that the spelling of Com. Takahashi’s name on Page 5 of the minutes was incorrect. MOTION:Motion by Com. Gong, second by Vice Chair Lee, and unanimously carried 5-0-0, to approve the minutes of the December 9, 2014 meeting as amended. WRITTEN COMMUNICATIONS: Gary Chao, Assistant Director of Community Development: Noted a request for continuance by applicant for Item 3, Use Permit Modification for Smoke Eaters Restaurant, to February 24, 2015. Cupertino Planning Commission January 27, 2015 2 POSTPONEMENTS/REMOVAL FROM CALENDAR: 3.M-2014-01 Modification of a Use Permit (U-1988-11) to extend the opening Julio Espinoza (Smoke hours past 11 p.m. and to allow a separate bar at an existing Eaters Restaurant)restaurant. 10650 So. DeAnza Blvd. MOTION:Motion byCom. Gong, second by Com. Takahashi, and unanimously carried 5-0-0 to continue Application M-2014-01 to the February 24, 2015 Planning Commission meeting. ORAL COMMUNICATIONS:(Relative to Item 3 which was postponed to February 24, 2015.) Grace Zhou, Monta Vista High School Student: Presented Chair Paul Brophy a thank you gift upon his retirement from the Planning Commissioner after eight years of dedicated service to the Cupertino community. Nazika Khan, resident: Read into the record an e-mail relative to the Smoke Eaters Restaurant application she sent to the Planning Commission earlier in the day. “Dear Respective Planners of Cupertino: As long-time residents living in the neighborhood, this restaurant is bringing down the quality of life inCupertino. It brings a noisy crowd from outside the town which has been reported at the town hall previously. The noise goes late into the night with patrons often staying and smoking behind the restaurant. The smoke drifts into the neighboring areas and the noise disruptsour sleep as well as the other neighbors. The type of crowd and atmosphere the restaurant creates is not aligned with this area and that includes schools, parents, and students who have paid top dollar in order to prepare for bright futures. Furthermore, the house prices are very high in this area and (the appeal of this restaurant) the appeal of the neighborhood is that it is quiet and very low in crime. Serving alcohol so late intothe night puts neighbors at risk to be victims of alcohol related crimes. Thank you very much for your consideration.” Chair Brophy: Apologized for the last minute postponement of the item and invited Ms. Khan to attend the February 24th meeting. City Attorney: Noted that if Ms. Khan was unable to attend the February 24th Planning Commission meeting, the e-mail read into the record could be referred to as part of record for the February 24th meeting. CONSENT CALENDAR: None PUBLIC HEARING: None OLD BUSINESS: None NEW BUSINESS: None Cupertino Planning Commission January 27, 2015 3 REPORT OF THE PLANNING COMMISSION Environmental Review Committee: No meeting. Housing Commission: No meeting. Mayor’s Monthly MeetingWith Commissioners: No January meeting; Vice Chair Lee will attend the February meeting. Economic Development Committee: No meeting. REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: Written report submitted. Aarti Shrivastava, Director of Community Development, thanked Chair Paul Brophy for his years of service on the Planning Commission. Chair Brophy: Expressed his pleasure in working with the commissioners, staff, city attorney’s officeand thanked the residents of Cupertino for the respect they have shown to the Commission even when they may have disagreed. He said serving on the Planning Commissionwas a positive experience and he thanked all who contributed to it. Com. Takahashi: Thanked Com. Brophy for his contributionsand guidance. ADJOURNMENT: The meeting was adjourned to theFebruary 24, 2015 Planning Commission meeting at 6:45 p.m. Respectfully Submitted: /s/Elizabeth Ellis Elizabeth Ellis, Recording Secretary CITY OFCUPERTINO 10300 Torre Avenue Cupertino, CA 95014 CITY OF CUPERTINO PLANNING COMMISSIONMEETING DRAFT MINUTES 6:45P.M. FEBRUARY 10, 2015 TUESDAY CUPERTINO COMMUNITY HALL The regular Planning Commission meeting ofFebruary 10, 2015 wascalled to orderat 6:45 p.m. in the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, CA. by Vice Chair Winnie Lee. SALUTE TO THE FLAG . ROLL CALL CommissionersPresent: Vice Chairperson:Winnie Lee (Chair) Commissioner: Geoff Paulson Commissioner: Margaret Gong Commissioner:Don Sun Commissioner: Alan Takahashi (Vice Chair) Staff Present: Asst. Dir. Community Development: Gary Chao Assistant Planner: Gian Paolo Martire Asst. City Attorney: Colleen Winchester CEREMONIAL MATTERS: 1. Election of New Chair and Vice Chair, Committee Appointments: Welcome new Planning Commissioner(s); elect new Chair and Vice Chair, make a recommendation to the Environmental Review Committee; assign Committee representation, review 2015 meeting calendar. Vice Chair Lee welcomed new Commissioner Geoff Paulsen, who served on the Bike Ped Committee and Parks and Recreation Committee. Gary Chao, Assistant Director of Community Development, reviewed the various committees needing representation from the Planning Commission. MOTION:Motion by Com. Gong, second by Com. Paulsen, and unanimously carried 4-0-1, Com. Lee abstaining, to elect Com. Winnie Lee as Chairperson for the 2015 year. MOTION:Motionby Com. Sun, second by Com. Gong, and unanimously carried 4-0-1, Com. Takahashiabstaining, to elect Com. Alan Takahashi asVice Chairfor the 2015 year. Cupertino Planning Commission February 10, 2015 2 2. The following Committee assignments were made: Design Review Committee Vice Chair Takahashi:Committee Chair Com. Gong:Representative Com. Paulsen:Alternate Economic Development Committee Com. Paulsen:Representative Com. Sun:Alternate Council Reps:Chang, Vaidhyanathan Environmental Review Committee Chair Lee:Representative Com. Gong:Alternate Council Reps:Chang, Vaidhyanathan (alt) Housing Commission: Com. Sun:Representative Com. Paulsen:Alternate Mayor’s Monthly Meeting: Chair Lee:February 4 Chair Lee:March 4 Com. Gong April 1 Com. Paulsen May 6 Vice Chair Takahashi:June 3 Com. Sun July 1 Chair Lee August 5 Com. Gong September 2 Com. Paulsen October 7 Vice Chair Takahashi November 4 2015 Meeting Calendar: Vice Chair Takahashi reported he would be absent from the February 24, 2015 Planning Commission meeting. APPROVAL OF MINUTES: None WRITTEN COMMUNICATIONS: None POSTPONEMENTS/REMOVAL FROM CALENDAR: None ORAL COMMUNICATIONS:None CONSENT CALENDAR: None PUBLIC HEARING Cupertino Planning Commission February 10, 2015 3 2. DP-2014-08, ASA-2014-13,Development Permit to allow the construction of a TR-2014-60 two-story 15 unit apartment complex; Architectural Terry Brown (D&B Legacy, LLC)& Site approval to allow the construction of 15unit 10310 No. Foothill Blvd. apartment complex housed within 3, two-story buildings with underground parking; Tree Removal Permit toallow the removal and replacement of 6 trees to facilitate the construction of a new apartment complex. Planning Commission decision final unless appealed. Gian Paolo Martire, Assistant Planner, presented the staff report: Reviewed the application for development permit, architectural and site approval and tree removal permit for the construction of a two-story 15 unit apartment complex on No. Foothill Blvd. He reviewed the site and surroundings, development allocation, site plan, architectural review, parking/traffic, site improvements, tree replacements, landscaping, public outreachand staff’s responses to their concerns. He said the Fire Department and Public Works Departments were integral in reviewing the project and site circulations in terms of the two access points on the site. Staff feels the privacy impacts mentioned have been mitigated through the extended setbacks of the development and landscaping. Staff recommends approval of the following subject to findings and conditions of the applicable resolutions: Development Permit,Architectural and Site Approval and Tree Removal Permit. Staff answered questions about the application relating to parking, grading, tree removal and replacement. Terry Brown, D&B Legacy, LLC, representing owner of parcel: Provided background of the property owner who provides rental properties in Monta Vista and west Cupertino, his intention is to develop the property and keep it as part of the family rental income properties. He described the property, noting it was a difficult site, and thanked staff for helping them get it developed; it is a trapezoid, elevatedwell above the street, adjacent to R1 properties which is always an issue with multi families dwellings. There is a row of mature Oak trees at the northern property line which happens to be the property line that joinsthe R1 people to our north. Videos were taken showing the views that would come from thoseplacesadjacent to the R1 properties. Chet Tang, Architect: Reviewed the project, noting that it was a challenging site not only in terms of the immediatecontext but also a challenge as a gateway site into Cupertino from Los Altos, Mountain View and Sunnyvale. Referring to the project summary he said they were fully in compliance with everything in the R3 zone; in addition to that they were sensitiveto the adjacency of the neighbors. From a community design point of view there are also challenges, not only from adjacency point of view, a lot of existing trees but also working with the Fire Department there are a lot of requirements in terms of site access. Regardless of the technical issues, the one thing they want to meet the challenge was to create a residential scale gateway that could be a reasonable gateway to additional apartment projectsdown the street. It is really non-descript now, the hope is that this project would enhance the presence of that gateway. They are removing only 6 trees from the site; the presence of the site will have a landscaped feel because they are retaining so many trees especially on the eastern side of the site. In a project like this with the noise condition, generally people back their project onto the street. In this case with the view looking west, there is a gateway condition; we want to have this project address the street even though there is some noise issue there but that is a very important element for us. Said that the typical apartment project is single loaded with a corridor on one side; they have created a boutique villagefeel; a mix of multi level units and flats, in order to create the pods of buildings instead of justa row of buildings like a typical apartment project which is an intentional move to Cupertino Planning Commission February 10, 2015 4 breakdown massing the project inherently and creating passageways that would come into the outdoor living room in the middle from the parking area. The landscape plan creates a sense of entry both on the north drive and on the south drive coming in with a gateway type of landscape element. The passageway coming throughfrom the driveway area and the parkingarea coming into the outdoor room is the heart of the project; it is also an interesting device to break down the building massing as well. Theproject is designed to feellike a home; the mix of different unit types is interesting, a unique feature. Architecturallyone of the things they wanted to do is create eave lines that does not make it a complex; so along with the notion of a boutique village, it has broken up the eave lines and the roofline, the building is broken down so that they feel and experience individual bungalows and complexes. He showed a video of the proposed project; discussed the materials used, and reviewed the architecture. ChairLee opened the public hearing. Albert Perry, Alpine Drive, Cupertino: Expressed concern about the impact on Foothill which is a unique street where 18 wheelers line up spewing gravel, with a highly used bike lane, cars lining up each day to get to the elementary school just past the proposed project which makes it almost impossible to turn out of the street. It is a very dense area that doesn’t need any more density. He suggested that a real-time traffic impact report be done. Said he resided in a triplex three houses away and generate several vehiclesevery morning and several each night. Said there is noway a 15 unit complex with 30 car stalls is going to have 8 vehicles in the morning and 8 at night. The Apartments on Foothill Group: Three females spoke on behalf of the group (no last names given) A slide presentation was shown of various locationsand activities within the city, trucks and school buses going to different locations, people headed for their job, etc. The narrator showed pictures of different building designs, architecture and areas of concern relative to traffic. Commented that there were areas of concern throughout the city. It is a public safety concern to add additional traffic on Foothill; some design features don’t fit in with the neighborhoods. Another female speaker expressed concern about privacy; there are homes with large windows and balconies that can see into one story homes, which affects their privacy. R3 -in the code thereare requirements to protect for privacy other thanplanting trees. They should use the architecturaland structural solutions also. Other slides which illustratethat Cupertinois famous for Foothill Blvd. famous for bike trails, famous for schools and the guiding principle for the General Plan. Cupertino should be safe, friendly, healthy, connected, walkable and bikable. We don’t feel that this project provides some of the value we saw so far; they provided some landscaping, some outdoor open space but it doesn’t fit into the fabric in this neighborhood around this community. Said that 8 units would be more appropriate for the area and would be inline with creating growth and housing for people without as much impact on the cycling community and the trucks going to the quarry regularly, and the traffic that will not go away because the schools are crowded. The community pleads for the city’s help to mitigate risks where they liveevery day, and don’tmake it worse by this and some other high density housing brought to Foothill. The road and school are at capacity; it needs to be looked at from a sustainable development perspective and find the right project for the community, protect the students, cyclistsand walkers. Bo Chang, representing Foothill Blvd. Apartments Group: Showed a slide presentation of different areas of the inside and outside of his home which illustrated his views and examples of privacy intrusion in his house and outside. Showed examples of attempted mitigation on his property and saidhe wanted to remain a good neighbor. He suggested lower building elevation as a mitigation measure. Cupertino Planning Commission February 10, 2015 5 Kate Brauner, Vista KnollBlvd.: Expressed concern about the traffic; she contacted the school by letter to make them aware of the school traffic on Vista Knoll, which prevents her from getting out of her driveway in the morning. There is no parking allowed on Vista Knoll; she suggested giving parking stickers to the residents of the new complex. Alan Brauner,Vista Knoll Blvd.: Very skeptical about 8 or 9 movementsin or out; when told by builder that this was mostlyfor professionals, they are going tobe going to workand traffic is a disaster. Said he would like a real time study and not something out of abook that has no relevance to what is being built. Jennifer Griffin, Rancho Rinconada resident: Asked if the property was still in the County orhas it been annexed into Cupertino; Creston is currently being annexed parcel by parcel into Cupertino but is designated as a Cupertino neighborhood; said Creston should not be compromised because they are still in the county. Suggested there be some discussion on issues of theannexation especially if this current apartment proposed project is still in the county; when will it be annexed and how is that being handled? It is possible it has been in the city the whole time as the lot has been empty foryears? What is the grade of the north entrance which is currently the only access point now and what is the grade of the south exit, next to the Alpine Road? How do the residents get down to the sidewalk? She suggested putting in a bus pull out with a bench with a rain cover. Said it was a difficult site with many challenges and would be easier if the trucks weren’t using those roads so much. It is a very congested area Chair Lee: Asked staff to review the grade, annexation, walking paths, sidewalk and bus stop pullout. Gary Chao: Said the project is in the city of Cupertino, not in the county pocket Ms. Griffin referred to, which is the reason it is before the Commission for a decision. It is not related to the Creston Park neighborhood issue. Interms of the walk, there is a meandering pathway that leads from the sidewalk up to the project and it feeds intothe common open space; you can walk along the driveway and there is a designated pedestrian path that is ADA acceptable or compliant that is serving the project in connecting it to the sidewalk. Gian Paolo Martine: In terms of the grade for the ingress and egress, it is 15% on the north ingress and between 15 and 20% on the south egress. (It is all 15% on both) Gary Chao: Said the applicant is not required to provide any bus stop amenities although it is within the purview of the Planning Commission to discuss it with the applicant and realize that it is not up to them to decide if it is appropriate to put in a bus stopor not. VTA would have to be involved and they will have input about where and how it looks, and the specs meeting their requirements. If the majority of the Commission desires to entertain a condition that requires the applicant work with VTA to havethat dialog and if acceptable to VTA, the applicant could provide some amenities. Other than that, as suggested by Com. Paulsen, benches, carve-outs or spaces for people to sitare all within the Commission’s purview. Cupertino Planning Commission February 10, 2015 6 Jonathan Chang, Vista Knoll Blvd: Said the two story high density project is not consistent withthe neighborhood and the city of Cupertino;and asked the commissioners how they would like to have a two-story building looking into their yard and house. He commented that developers try tosqueeze every single inch of the property by building high density apartments. The 30 parking spaces will not be enough for residents and their guests and there is no other place to park other than Vista Knoll Blvd. The project will bring more congestion, parking and traffic issues to Vista Knoll Blvd. Foothill Blvd. is a highly trafficked road with plenty of commuter traffic and big rig cement trucks. How will the fire department and emergency responders get access; is it safeto cram that manypeopleinto such a small space? The city parking requirement does not fit this project because there will be plenty of people living here; large families will move here because of the excellent schools and developers will be able to charge high rental rates in this red hotmarket. Cramming more than 50 people into this complex will be a recipe for disaster. Kalyan Ramanatin, Vista Knoll Blvd.: Addressed the issues of design, traffic and security. Said while he did not fully understand ordinances, he was certain the developers planned the development adhering to the ordinance. Said he felt the design is inconsistent with the neighborhood. The neighborhood consists of many single story homes and the proposed project is a two story home with balconies, and windows overlooking his home. It is not consistent with the neighborhood and intrudes on their privacy. Secondly, the trafficon Foothill is a nightmare! It is easier to make a turn onto Market Street in San Francisco on any day rather than try to turn into Foothill Blvd. Security is also a major concern; the backyard of the high density apartment complex looks into the living areas of the mostly one story homes. Reducing the size of the proposed complex to 15 units would help make it more manageable and comfortable. Mrs. Ramanatin: Said that her 11 year old daughter has fears about the proposed development as she and her sister are home alone frequently and feels the neighbors from the proposed development will be able to look down inside their home. She expressed concern about the open spaces in front and back and the potential that the back area may become a problem area with people hanging out. She asked that there be noise mitigation in the area when construction occurs and afterwards. Thomas DeFranco, Vista Knoll Blvd.: Said he resided behind a fourplex unit diagonal from applicant’s property. When that project was built, they moved the project back because there were balconies 25 feet from the fence that looked straight into his house. They used landscaping to offset the visual intrusion; now many of the trees are 20 feet high so all the foliage is above the visual line, now someone standing on the balcony can see directly into the living room of the other house, the same problem that existed before. That’s not the intention but that is what has resulted from the way the landscaping solutions do not work. He said a single story unit behind the single family houses wouldbe a direct solution to the problem of the neighbor being able to look directly into his home. A two story unitbehind the single family houses has never worked, it hasn’t worked on Alpine; and the city of Cupertino has allowed it. It is an atrocity. Chair Lee closed the public hearing. Com. Gong: Said she would like to addresswhat needs to be done in order to require the applicant to speak to VTA about the bus carve out; it makessense if they state that the traffic on Foothill is atrocious, that a carve out would only be positive. Cupertino Planning Commission February 10, 2015 7 Gary Chao: Currently there is a bus stop out front with a carve-out for the bus. There are no amenities such as a shelter or bench; theywould first need to have a conversation with the applicant and ask them to comment on that. It was discussed briefly but it requires VTA’s consent and requires coordination with VTA; you could consider adding a condition that would direct the applicant to havethe conversation with VTA to maximize that effort and the applicant can weigh in, in terms of what their commitments in thatregard are. There is nothing to prevent working with the developer to carve out areas that are around the area along the frontageor other points of the frontage; it does require some retaining wall or grading work to create a flat spot to cut into the slope, to createan area for a bench or some other sitting piece; it could bea more passive sittingarea; perhaps the retaining wallitself could function as the sitting planter/sitting area; it doesn’t haveto take onthe form of an actual bench. He said he would encourage that dialog with the applicant. Staff could support that; itis a good suggestion; it is a little trickier to involve VTA, another agency that is not in this room today, and the city cannot commit to what they are or are not going to say. There may be reasons for their not supporting something like that. Said he felt it was a good idea; a condition can requirethat conversation to take place and the city staff can help facilitate that conversation. Mark Kelton, Civil Engineer: Said if they try to push it down 4 feet, they have to push everything down 4 feet the entire site in order to maintain the ADA access. Can it be done; yes, however, one of the things done in working with staff was try to maintain a minimal amount of retaining walls, that they would try and keep a 5 foot retaining wall max for most of this. There are some minor exceptions but if we push it down to 4 feet more, the back seat wall at about 18 to 24 inches becomes 5-1/2 to 6 feet and on the most southerly side that wall which was about 6 feet to 7 or 8 feet becomes more like 10 to 12 feet which is a very tall wall staff was tryingnot to have us do. GaryChao: Said it was their original direction to the applicant; if the applicant is willing to drop a few more feet they can deal with retaining walls along the back. It is not desirable to have retaining walls taller than 6 or 7 ft for many reasons; there are ways to side the retaining wall with wood, stone or terrace it if there is room to help break up that visual impact. That being said the retaining wall that is in question outlined in red, the people living there would be the ones looking at the large walls. Com. Paulsen: Suggested they consider a bench set further from the bus stop which would alleviate the need for VTA’s involvement. He said he agreed that the traffic is a big issueespecially the big rig trucks; the school buses are also a serious long term issue. Said he could appreciate all comments aboutthe views and the privacyas he had an Apple Computer building go up behind him which blocked his previous beautiful view of the mountains. Said theoretically there a some things one can do, but this project was zoned for what’s built; it is builtin compliance withwhat is permitted; therefore for them to require the developer to reduce their opportunity to get income from the property would not be fair in light of the fact that they designedit according to what wasalready zoned. Whatone can do is build taller and narrower but again Cupertino residents do not like height which has been clear. He said in his case he would rather there be a 20 story Apple building he couldsee around and still see the sunset; however he can’t do that because it is limited to 4 storys. The other alternative is called a density trade where thedeveloper gets a densitycredit at another development. A development in another location could be made denser and this area left open space. It appears this is something that has been hammered out carefully with staff accordingto existing requirements so it seems like it is tough to require the developer to make a major structural changein terms of the numberof units and that kind of thing. Cupertino Planning Commission February 10, 2015 8 It is fortunate to have the California Live Oak tree in the Cupertino area; it is fast growing into a large bush and last a long time. With skilled arborists and some pruning, one could grow an effective green wall to mitigatethe privacy concerns; the sunset and the view of the mountain concerns is something that has been in the zoning for a long time and don’t see it easily changed. Com. Takahashi: Said that traffic is a major concern, the convergence of two elements, the truck traffic and morning school drop-offs are primarily morning problems. Relative to people trying to turn left out of Vista Knoll onto Foothillsouthbound, it blocks the people trying to get outof VistaKnoll turning right onto northbound Foothill. Has the city considered a left turn prohibition during certain hours which would alleviate that problem but does restrictresidents from turning left in the morning? Has there been discussion with the cement plant with regard to some levelof traffic control duringspecified times? It appears to be more of a global traffic problem that is not fair to pin on this project. Gary Chao: Said they don’t have an answer; they have had conversations with the cement company about traffic it is an independent conversation outsidethe purview of the Commission. The cement company is not party to this application; the question can be asked as a side comment from the Commission. Staff would be happy to follow through and come back with what they find out. City Attorney: Following the tragic incident involving the bicyclist the city is working on school zones and whether or not there could be some truck regulations around certain school zones. It is in the works and is a process that will be coming back to the Council in a couple ofmonths, but there are certain things the city cannot do. Com. Takahashi: Said bike traffic on Foothill heading northbound isproceedingdownhill so bike speeds tend to be a little higher heading in that direction; his main concern is the exit and cars exiting not necessarily during peak traffic times, but in general. Heavily travelled bike route Foothill Blvd. is probably one of the most highly travelled bike routes in the country; because of that there is a concern with cars turning out something to make residents aware that it is a very high bike traffic area and to be on lookout. Privacy concerns are the second major concern; looking at the layout and plan view where buildings are being placed, it seems it is as optimized as possibleto respect the privacy of the citizens; one person commented about how would you like tohave a two story house next to you. Said he lives in a one story house with a two story next door and closely spaced; the situation is fortunate from the standpoint of a lot of existing vegetation that can be maintained there is probably gaps, filling those gaps would be positive with regard to some ofthe planting to enhance privacy. The one comment about landscaping deteriorating over time, you might lose a tree or two from constructionbut how do you maintainthat good neighbor environment? Said he felt staff and the owner have done lotto mitigate and enhance privacy as best as possible but is there any element in terms of long term maintenanceof that landscaping to ensure thateverything doesn’t die. Constructiondust and noise mitigationis a given; a good plan is needed from the standpoint of start times and dust mitigation across the site; make sure to use common sense courtesy during construction as it will add to the traffic. There were some concerns about parking overflow; it seems like there is a trade between privacy and parking and from an adjacent resident’s perspective would be curious whichis more important, privacy or expanding the parking spaces on the site such that there is enhanced security. It seems there were more concerns about privacy than safety and parking elements but that is a trade that could be Cupertino Planning Commission February 10, 2015 9 entertained. Gary Chao: In terms of landscape maintenance and requirements some good points have been made by the public as well as the Commission regarding the desireof making surethat the landscaping, whetherit is a preservation of the existing trees or new plantings being proposed are going to be carried out as well as surviving the construction. As mentioned previously once the project is approved, the project, the siteplans, the landscaping plan associated with the site plan is considered protected category; they will be held to it in terms of being sure that its carried out accordingly, also in the future if something happens to it that it would be addressed. They could consider adding a condition that requiresa covenant being recorded that further stipulates that, so it is clear to the property owner that the landscaping shall be maintained as well as consider a condition that requires certification of the landscaping planting by a professional arborist; a report be provided to the city either after the construction or prior to the final occupancy of the development. It can also be conditioned that after a year a report by a professional arborist be submitted to the city that all the trees are in good standing. It is a check-in and the applicant may be open to that. Said they could consider having conditions requiringsigns relating to cyclist or pedestriancrossings, but the sign shouldplacedon the private property for the benefit of the exiting vehicles from the apartment complex because he was not sure what Public Works prohibits in terms of signs within public right of way. The concept is for people to see that sign. A condition can be entertained to that effect, as well as work with staff to carve out a space in front to provide the opportunity for benches or sitting opportunities. They are good conditions to consider. City Attorney: Referred to the terms and conditions of the ASA, Paras, 8 and 9 with respect to Para 8 does require a landscape installation audit conducted by a certified landscape professionalafter the irrigation and landscaping has been installed; it is already a term and condition of the architectural site approval. Sub Para. 9 refers to the landscape and irrigation maintenance including that failed plantshall be replacedwith the same orfunctionally equivalent plants. It may also be an appropriate place to add the additional condition about a covenant should the Commission so chose. Com. Paulsen: Addressed an earlier comment about the sun shining in the drivers’eyes as they exit the development; stating that it could be mitigated by selecting a tree species that would have leaf cover high enough to block the sun for the exiting drivers, but tall enough so that the under story wouldn’t block the view of the oncoming traffic. Com. Sun: Shared concerns about guest parking and also trafficin and out to Foothill Blvd. Said he shared some of the same concerns that the public did, such as Foothill traffic; It is not only public traffic, for the Planning Commissioners they will likely isolate the issue to this single project; the challenge is how to combinethis particular project intothe larger issue of Cupertino traffic. Said it was also challenging for him because city has zoned it as zone 3; they have to obey the law and vote to allow developer or applicant to develop zone 3 residents here. Said it was suspicious and he shared someconcerns about the privacy, similar to Com. Gong’s concernabout reducing grade, or dig more dirt out but he did not think it was very feasible in the construction part. Said perhaps they could reduce the number of units to solve the traffic problem; andthe privacy issue could be resolved between the applicant and the neighbors. He said he hoped that staff could do some mitigation about the privacy because the presentation from applicant’s side and from the neighbors’ side is totallydifferent than the picture. Cupertino Planning Commission February 10, 2015 10 Said his main concern is if they have the right to challenge the R3 zone to ask the applicant to reduce a couple of units to have more guest parking. Said he drove around and there was no other place to park cars except the tiny neighborhood. Two parking spaces for each; a total of 30 parking spots is not enough spaces for 15 units. Com. Gong: Said she supported a condition that would require the applicant discussthe issue of carving out the bus stop. Said signage should be on privateproperty, and also requestedthe angle of the egress be sharp enough to hinder a rolling exit and to keep the visual line of site exiting on the left completely clear, perhaps 5 to 8 feet. Gary Chao: Said it could be added in a condition that the applicant shall work with staff to evaluate the exiting driveway along the south of the property for the following: (1) To ensure that the exiting curvature alignment is maximized to reduce speed as cars exit; (2) Look at traffic triangle to the south making sure there areno physical obstructions in terms of vegetation, planned features or walls and staff will consult with the city’s traffic engineer as well as the applicant’s civil engineer to make sure it is maximized. The bottom line isthey can work withthe applicant to make it happen. Relative to the bus duck out, up till now we have been talking about pedestrian features not necessarily changing the geometry of the street to facilitate a full bus inset that alters the curb so I want to make sure we get clarity on what conversation we are having with VTA; it is one thing to talk to them about having a facility for bus shelter, for pedestriansto wait for the bus; it’s another thing to talk about expanding the curb and carving in, because that will impact eventually the sidewalk as well. There is the option of creating something informal, not involving VTA but serve a similar purpose. He said he wanted to make sure they understand the majority’s direction. Com. Paulsen: Suggested not consulting with VTA initially but have the architect design a small shelter for residents located back from the street out of VTA jurisdiction but close enough to the bus stop itself. Com. Takahashi: Said he was not sure he agreed about not consulting the VTA, as they build a lotof busstopsand have insight on what works and what doesn’t. They should at least be consulted to understand their general practice. There were security issues; if it is too far back there may be concernthat somebody could lurk there Most of the shelters in Cupertino are structured with sidewalks behind the shelters. Chair Lee and Com. Paulsen: Said theyagreed. Com. Sun: Said he agreed and supported Com. Takahashi’s proposal. Signs okay. Chair Lee: Referred to site plan,said her biggest issue with the project was the width of the driveway(20feet); a two way driveway is 24 feet; they would save 4 feet width to get two ways,. Gary Chao: Said it would impact the projectsignificantly if talking about 4 feet. All the 14 tuck-in parking stalls would have to be redesigned; there are advantages. They looked at the circulation and bounced it off the Fire Dept. as well as Public Works; there are advantages to this particularcirculation design where you are coming in one way because there is an intersection closer to the north and you hear Cupertino Planning Commission February 10, 2015 11 people talking about queuing and conflicts with the traffic already on Foothill; ideally the least amount of outlet from a project would be better in that case, having one outlet vs. two; but you would rather have cars queue on sites as opposed to having multiple disruption opportunities to interrupt the flow of the traffic and possibly causing some congestion there. Queuing further away tothe south is better than north in that regard and also there is grade considerations and the Fire Dept.would be happy if it is wider, butin this case they support the layout. Said to consider that as they evaluate the width of thosestreets as well. It can be done, but does require significant alterations to the design of the project that the applicant would probably have to weigh in on. Chair Lee: Said she was uncertain how her colleagues felt about the traffic backing up; people mistaking it for an entrance when it’s an expressway. People travel significant speeds and some came to say that it is not safe. Said she felt it was ideal to have one way because it is confusing to drivers. Com. Paulsen: Would support the one-way over the two-way; the people coming in and going out are going to be 95% residents so they will adhere to that; it does beg to question, what kind of signage on that exit is going to be there for drivers that are visitors that might betempted to turn into the exit? Gary Chao: Said they could have a condition relating specifically to people exiting, watching for pedestrians and cyclists. It could require the applicantto work with staff to require proper signage in warning signs where it is clear so that people understand it is not an entrance. There could also be arrows on the ground and also additional signs on the private property. Com.Paulsen: Said he supported narrower roads and one-way. He said he assumed that there have been some traffic engineers consulted on whether the flow is clockwise or counter-clockwise behind the unit. Com. Takahashi: There are pros and cons to either direction; one con about switching the direction is there is a bus stop that is going to block the view of people if they are exiting; that would be a concern when there is a bus at the stop, they are not going to be able to see traffic easily as well as bikes are going to be going around that bus so that would be a concern of reversing it, but understand and agree with your point that it is a little counter intuitive; that is why I think signage is going to be necessary to avoid that; and even with that you are still going to get a few people going the wrong way. Gary Chao: Some points of consideration; one is signage, the other about alignment of that egress driveway; ironically there are pros and cons and whether it should be 90 degrees or at an angle because if you were to address ChairLee’s concern you want the driveway to be at an angle. If the Commission wants to entertain a condition and craft some of those principles, staff will work withthe traffic engineer to best address some of those requirements, to make sure a design is hindering speed, such as a big speed bump. Com. Paulsen: Suggested they recommend as a Commission that the best traffic engineering best practices be used to ensure pedestrian and bicycle safety for egress and ingress. Com. Takahashi: Relative to the street view; one concern that speakers have raised isarchitecturalconsistency; the Cupertino Planning Commission February 10, 2015 12 design looks nice; however, there are a lot of vaulted ceilings and pitched roofs which are adding to the height and potentially some of the obstruction. Seeking comments from others as to the thought with regard to some of the peaks and whether or not the design style is necessarily as good neighborly as possible. Is there a gradethere to be discussed? Com. Gong: Said she would like to know thatstaff has opened the door to higherretaining walls; look at lowering the grade first rather than just changing the peaks. Said she felt lowering the grade would be agreeable to many of the R1 residents and help with the overall situation as opposed to just adjusting a peak or two. Com. Paulsen: Said he liked the design, althoughdifferent; different is appropriate as long as it is aesthetically pleasing. The concern about hours of sunset or whether or not you can see the setting sun, if you chop 2 feet off the peak roof vs. lowering the wholeproject 2 feet, she said she would favor lowering the whole project; it maintains the architectural integrity of the design. Gary Chao: One benefit of lowering it is you see a retaining wall inthe front that’s in the slope of the front lawn, that effectively would be reduced; while the retaining wall in the back will be increased, the retaining wall seen along the street front is going to be lower as well as the front landscaping slope. Com. Takahashi: Said he sympathizedwith the architect and the civil engineer in terms of the amount of work that has to go into the grading decision with regard to all of the access elements. Said if it is driven by privacy concerns they need to think about it in terms of makingit 2 feet deeper. It will add to the cost of the project, and it will require some level of redesign; just looking for a balanced perspective on what that is, 4feet would be challenging. Com. Gong: The applicant said their concern was the restriction that staff placed on them about the height of the retaining wall; now that staff has opened the door to raising the height of the retaining wall it is worth looking at. It would be good to hear the impact of two more feet and their willingness. Com. Sun: Relative to lowering, he said considering the privacy of the neighbors, he did not feel it was proper for them to make aneconomical or technical suggestion for either removing the dirt or changing the architecture. If they agree that privacy is an issue, give them the option to pick whatever they think is proper as long as it meets the privacy requirement. The applicant can figure out the best way to meet the privacy standard; doing either the combination or the one-way. He said he would like to reduce the grading to 2 feet; but economically uncertain the applicant wouldspend that much money. Com. Gong: Said she wanted to increase more grading. Applicant: Said they would like to keep the integrity of the architecture; if there is a way to lower those pitchesin some way that they can look at the detail they want to be respectful, they have done a lot of work on the architecture with design review. Cupertino Planning Commission February 10, 2015 13 Com. Sun: Suggested that before making motion they have some discussion about the privacy issue where originally two solutions were proposed: (1) Downgradethe elevation; (2) Change architecturewheel. A third solution has been proposed to plant some Oak trees. The three options should be discussed. Said his proposal was to leave this alternative; before makinga motion fully discuss three options. His proposal is to leave this alternative to the applicant; have them decide which way is most efficient for thecommunity. They can work with neighbors and generate the best solution. Com.Takahashi: Said he agreed but felt having a landscape requirement would give some assuranceof a view standpoint, but agree withthe applicant being in a position to work with staff in terms of those other elements. Gary Chao: Following discussion provided wording summarized for Inclusion in Motion (Insert A for Motion) Motion:Motion by Com. Gong, second by Com. Takahashi, and carried 4-1-0, Com. Sun voted No, to approve Resolution DP-2014-08, Resolution ASA-2014-13 and resolution TR-2014-60 with amendment to conditions as clarified and stated by Gary Chao, AssistantDirector ofCommunity Development. (Insert A for Motion)To approve all title, the condition to consider to add to change is a condition that requires the applicant to work with staff to explore with VTA possible bus stop enhancements including but not limited to the duck out, pedestrian amenities shelter and benches; consider a condition that requires the applicant to work with staff to explore and study the driveway safety with the objective of reducing exiting speed and increasing visibility and awareness of pedestrian and bicycle safety; Consider a landscaping condition that requires that the existing and proposed landscaping screening are maintained/upkept through a covenant on the property; in addition to require the applicant to furnish a report of the health and status of the landscaping of the project one year from the final occupancy of the project. The reportis to be preparedby a professional arborist. Consider a condition that requires the applicant to work with staff to minimize the heightof the project and privacy concerns by considering one or a combination of the following items:(1) Lowering the grade up to 2 feet, unilaterally across the board; (2) further enhancement on landscaping planting vegetation gaps andtree types, and fencing height; would add fencingheight does require consent of adjacent property owner if on joint property; (3) Potential architectural changes including but not limited to roof pitch, plate heights, and other ideas that the applicant can come up with that doesn’t significantly alter the design of the building; but accomplish lowering the height of the project slightly. OLD BUSINESS: None NEW BUSINESS: None REPORT OF THE PLANNING COMMISSION Environmental Review Committee: No meeting. Housing Commission: No meeting. Cupertino Planning Commission February 10, 2015 14 Mayor’s Monthly MeetingWithCommissioners: Chair Lee reported: Commissioners were asked for feedback on meetings; was the interaction at Council meetings effective, should monthly meeting continue; would it be better to have a more information interaction with Council? Discussionabout work program calendars. Teen Commission: Said it would help if she had more informal interaction with Council relative to the workprogram. TIC Commission Working on fiberopticswith AT&T. Library Friends Book Sale –Feb. 21, 22; CupertinoLibrary website up and running; Lego classes; Silicon Valley Reads 2015event. Fine Arts and Housing Commission 2 Committeees want to work with PC Coms. agreed that they would benefit with informal interaction with Council Economic Development Committee: No meeting. REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: Written report submitted. ADJOURNMENT: The meeting was adjourned to theFebruary 24, 2015 Planning Commission meeting at 6:45 p.m. Respectfully Submitted: /s/Elizabeth Ellis Elizabeth Ellis, Recording Secretary PLANNING COMMISSION STAFF REPORT Agenda Item No. 3 Agenda Date:February 24, 2015 Applications:M-2014-01 Applicant:Julio Espinoza(Smoke Eaters Restaurant) Location:10650 S. De Anza Boulevard APPLICATION SUMMARY: Modification of a Use Permit (U-1988-11) to extend the operating hours past 11pm and to allow a separate bar at an existing restaurant. RECOMMENDATION: Staff recommends that the Planning Commissionapprovethe modification of a Use Permit (M- 2014-01) in accordance with the draftresolution(Attachment 1). PROJECT DATA: General Plan Designation:Commercial / Residential Zoning Designation:P(CG) Commercial Building Area:3,610 square feet Bar Area:312 square feet Number of Seats: Bar:16 Restaurant:112 Patio:32 Parking Spaces (Shopping Center): Required:225 Provided:264 Hours of Operation: Existing:11 am –11 pm Proposed:11 am –1 am Project Consistency with: DEPARTMENT OF COMMUNITY DEVELOPMENT PLANNING DIVISION CITY HALL 10300 TORRE AVENUE •CUPERTINO, CA 95014-3255 (408) 777-3308 • FAX (408) 777-3333 M-2014-01 Smoke Eaters Restaurant February 24, 2015 General Plan:Yes Zoning:Yes Environmental Assessment:Categorically Exempt BACKGROUND: Existing Center and Surroundings The proposed project site (existing Smoke Eaters Restaurant), is located as an extension of the De Anza Centre shopping center. To the west of the site are retail uses; offices andsingle family residential uses are located to the east; the De Anza Centreto the north; and retailto the south. The nearest residential property is approximately 177 feet away from the siteto the east. A conditional use permit was approved in 1988 allowing the operation of a sit down restaurant at the subject site. The Use Permit included a condition of approval (condition 2 of Resolution 4069) limiting alcohol sales for the restaurant to a service bar only and the hours of operation between 7am to 11pm. In 2010, the City approved a modification to the sit down restaurant (DIR-2010-48) permitting the expansion of the outdoor patio to include 32 seats, bringing the total number of restaurant seating to 160. M-2014-01 Smoke Eaters Restaurant February 24, 2015 Application Request The applicant, Julio Espinoza, on behalf of Smoke Eaters Restaurant, is requesting a modification of a Use Permit (U-1988-11) to extend the operating hours past 11pm and to allow a separate bar at the existing restaurant.The General Commercial (CG) Ordinance requires that the Planning Commission review and approve requests for restaurants with separate bar facilities as well as business operating hours past 11pm. The modification request was originally noticed for the January 27, 2015 Planning Commission meeting. However, the applicant requested a continuance of this application to the February 24, 2015 hearing in order to clarify the Public Works Environmental Services Division’s requirements regarding trash enclosures and waste disposal as discussed below. DISCUSSION: OperationalDetails Smoke Eaters is a full service restaurantthat currently sellsbeer and wine for onsite consumption.Concurrent with the request to add a bar and extend the hours of operation to 1am,the applicant has submitteda separate application to the California Department of Alcoholic Beverage Control (ABC) for a Type 47 License for the onsite consumption of liquor as well as beer and wine. The addition of the barwillnot add seating to the restaurant.Sixteen restaurant seats will be replaced with 16 bar seats. In addition, the project will occur completely within the interior of the existing restaurant and will not involve any exterior modifications or expansion of the building. A condition has been added to limit the service hours for the patio area to 11:30pmand to stop service of alcohol at 12:30amwith a hard close of the restaurant at 1am. Please refer to Attachment 2for theapplicant’sdetailed business plan. Staff met with the applicant to discuss Public Works requirements regarding upgrading the existing trash enclosure and providing additional bins for litter control.The applicant has indicated a wish to move forward, and conditions have been added to the draft resolutionto address the requirements. The added conditions can be referencedunderSection V, Conditions Administered by the Environmental Programs Division of the draft resolution. Parking The parking demand for the existing restaurant is based on one space for every four seats for the restaurant and a portion of the patio seating plus one parking space per employee. By converting a portion of the seating area for the bar, additional parking will be required at a rate of one space per threeseatsforthe sixteen bar seats, one space for every four seats for the restaurant and a portion of the patio seating,plus one parking space per employee.Currently, the parking demand for Smoke Eaters is 43 spaces. With the addition of the bar, the new parking requirement is 45 spaces. M-2014-01 Smoke Eaters Restaurant February 24, 2015 Cupertino Parking Ordinance Requirements Existing Condition 43 spaces (1 space per 4 seats + 1 space per employee) Project (Restaurant + Bar)45 spaces (1 space per 3 seats (bar) + 1 space per 4 seats (restaurant)+ 1 space per employee) The De Anza Centre,which spans over multiple parcels, currently provides264spacesto service theentire shopping center. The Parking Ordinance allows shared parking facilities to serveone or more contiguous propertieswith a conditional use permit, and calculatesthe parking demand byusing Table 19.124.040(C). This table factors in the peak operating hours of the various uses within the shopping center to determine the peak parking demand.Based on Table 19.124.040(C), a total of 225spaces is required for the De Anza Centre. The site currently provides 264spaces, leaving a surplus of 39 spaces. Proximity to Residential Use The project site is not immediately adjacent to any residential uses. The closest residential propertyis located approximately 177feet to the eastand 300 feet to the west.Therefore,the project is not expected to cause any significant impacts to the surrounding residential neighborhoods. Security The Santa Clara County Sheriff’s office hasreviewed the project and does not foresee any security concerns or negative impacts to the surrounding neighborhood. A condition of approval has been added to require the property owner to address security concerns in the event that they arise and pay foradditional Sheriff’s enforcement timeif required. ENVIRONMENTAL ASSESSMENT: The use permit is categorically exempt from the California Environmental Quality Act (CEQA) per section 15301(Existing Facilities) of the CEQA Guidelinesbecause the proposed use occurs within an existing facility and minor alterations will be made within an urban, developed environment. PUBLIC NOTICING & OUTREACH: The following table is a brief summary of the noticing done for this project: Notice of Public Hearing, Site Notice & Legal Ad Agenda Site Signage (14 days prior to the hearing) Legal ad placed in newspaper (at least 10 days prior to the hearing) Notices mailed to property owners adjacent to the project site (300 foot) (10 days prior to the hearing) Posted on the City's official notice bulletin board (one week prior to the hearing) Postedon the City of Cupertino’s Web site (one week prior to the hearing) M-2014-01 Smoke Eaters Restaurant February 24, 2015 PERMIT STREAMLINING ACT: This project is subject to the Permit Streamlining Act (Government Code Section 65920–65964). The City has complied with the deadlines found in the Permit Streamlining Act. Project Received: October 31, 2014 Deemed Incomplete:November 25, 2014 Deemed Complete:December 17, 2014 Since this project is Categorically Exempt, the City has 60 days (until February 17, 2015) to make a decision on the project. ThePlanning Commission’s decision on this project is final unless appealed within 14 calendar days of the decision. Prepared by: Gian Paolo Martire, Assistant Planner Reviewed by:Approved by: /s/Gary Chao /s/Aarti Shrivastava Gary Chao Aarti Shrivastava Assistant Director of Community Development Assistant City Manager ATTACHMENTS: 1 –DraftResolution for M-2014-01 2 –Business Description 3 –Plan Set M-2014-01 CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 DRAFT RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO APPROVINGA MODIFICATION TOA USE PERMIT (U-1988-11)TO REMOVE A RESTRICTION TO ALLOW A SEPARATE BAR AND EXTEND THE HOURS OF OPERATION TO 1:00AMAT AN EXISTING RESTAURANT(SMOKE EATERS) LOCATED AT 10650 S. DE ANZA BOULEVARD SECTION I: PROJECT DESCRIPTION Application No.:M-2014-01 Applicant:Julio Espinoza(on behalf of Smoke Eaters Restaurant) Location:10650 S. DeAnza Boulevard SECTION II: FINDINGS FOR USE PERMIT WHEREAS, the Planning Commission of the City of Cupertino received an application for the Modification of a Development Permit, as described in Section II of this Resolution; and WHEREAS, the necessary public notices have been given in accordance with the Procedural Ordinance of the City of Cupertino, and the Planning Commission has held one or more public hearings on this matter; and WHEREAS, the applicant has met the burden of proof required to support said application; and has satisfied the following requirements: a)The proposed development, at the proposed location, will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience; The proposed project will be within the existing Smoke Eaters Restaurant which has operated at the site since 2010. The closest single-family residential property is located approximately 177 feet from the proposed interior bar. Adequate security measures are incorporated into the proposed project. Therefore, the proposed use will not be detrimental to the public health, safety, and welfare. b)The proposed development will be located and conducted in a manner in accord with the Cupertino Comprehensive General Plan and the purpose of the City’s zoning ordinances. The proposed use complies with the Cupertino General Plan and Municipal Code requirements, including but not limited to, parking regulations, hours of operationand security measures. Draft Resolution M-2014-01 February 24, 2015 Page-2- NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter, the application for Modification of the UsePermit are hereby recommended for approval, subject to the conditions which are enumerated in this Resolution beginning on Page 2 thereof; 1.The application to modify Use Permit, U-1988-11,Application No. M-2014-01 is hereby approved, and That the subconclusions upon which the findings and conditions specified in this resolution are based and contained in the public hearing record concerning Application No. M-2014-01,as set forth in the Minutes of the Planning Commission Meeting of January 27, 2015, and are incorporated by reference as though fully set forth herein. SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1.MODIFICATION OF USE LIMITATION IN REGARDS TO LIQUOR SALES AND HOURS OF OPERATION Condition No. 2of the Planning Commission Resolution No. 4069limitingalcohol service and hours operation as approved by the Planning Commissionon June 16, 1988, as a condition of approval for Use Permit Application U-1988-11, shall be modified to expand the hours of operation to 1am and to the allow a separate bar for alcohol servicewith up to 16 bar seats. 2.RECIPROCALPARKING AGREEMENT The property owner shall enter into a private agreement with the owner of the contiguous lots that make up the De Anza Shopping Centre (APN 369-38-039, 369-38-037, 369-38-038, 369- 37-027, and 369-37-025) for a reciprocal parking agreement. The agreement shall run with the land and shall be recorded prior to final occupancy. 3.APPROVED EXHIBITS Approval recommendation is based on the plan set received December 15, 2014consisting of 1 sheet, labeled UP1.0 entitled, “Proposed expansion of service –bar counter to an existing restaurant: Smoke Eaters,” drawn by Julio Espinoza; except as may be amended by conditions in this resolution. 4.EXPIRATION If the use for which this conditional use permit isgranted and utilized has ceased or has been suspended for two yearsor more, this permit shall be deemed expired and a new use permit application must be applied for and obtained. 5.OPERATIONS a.Alcohol serviceatthe restaurant shall be limited to 12:30 am with a hard closing time at 1am.Theoutdoor patio shall be closed at11:30 pm. b.The total number of seats within the restaurant service area shall be limited to 16bar seats, 112 restaurant seats, and 32 patio seats, unless as otherwise allowed by the Draft Resolution M-2014-01 February 24, 2015 Page-3- Community Development Director provided sufficient parking is available within the shopping center. c.Exterior doors shall be kept closed at all times. 6.REVOCATION OF USE PERMIT The Director may initiate proceedings for revocation of the Use Permit in any case where, in the judgment of the Director: a.Substantial evidence indicates that the conditions of the conditional use permit have not been implemented, or b.Complaints are received related to the tenant under this use permit, and the complaints are not immediately addressed by the property management and/or the tenant, or c.Where the permit is being conducted in a manner detrimental to the public health, safety, and welfare, in accord with the requirements of the municipal code. 7.LAW ENFORCEMENT SUPPORT The property owner shall address security concerns in the event that they arise to the satisfaction of the City. The property owner shall pay for any additional Sheriff enforcement time resulting from documented incidents in the development at the City’s contracted hourly rate with the Sheriff Department at the time of the incident. The City reserves the right to require additional security patrols and/or other measures as prescribed by the Sheriff’s Office or Code Enforcement. 8.ALCOHOLIC BEVERAGE CONTROL LICENSE The applicant shall obtain and adhere to the appropriate California Alcoholic Beverage Control License(s) in conjunctionwith the proposed service. 9.CONSULTATION WITH OTHER DEPARTMENTS The applicant is responsible to consult with other departments and/or agencies with regard to the proposed project for additional conditions and requirements. Any misrepresentation of any submitted data may invalidate an approval by the Community Development Department. 10.INDEMNIFICATION To the extent permitted by law, the applicant shall indemnify and hold harmless the City, its City Council, its officers, employees and agents (the “indemnified parties”) from and against any claim, action, or proceeding brought by a third party against the indemnified parties and the applicant to attack, set aside, or void this Resolution or any permit or approval authorized hereby for the project, including (without limitation) reimbursing the City its actual attorneys’ fees and costs incurred in defense of the litigation. The applicant andCity shall use best efforts to select mutually agreeable legal counsel to defend such action, and the applicant shall pay all compensation for such legal counsel, following the applicant’s receipt of invoices from City, together with reasonable supportingdocumentation. Such compensation shall include reasonable compensation paid to counsel not otherwise employed as City staff and shall include City Attorney time and overhead costs and other City staff overhead costs and any costs directly related to the litigation reasonably incurred by City. If the applicant and the Draft Resolution M-2014-01 February 24, 2015 Page-4- City cannot in good faith agree on joint counsel, the City shall have the right to retain counsel of its own choosing, separate from the applicant’s litigation counsel. 11.NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS The Conditions of Project Approval set forth herein may include certain fees, dedication requirements, reservation requirements, and other exactions. Pursuant to Government Code Section 66020(d) (1), these Conditionsconstitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying with all of the requirements of Section 66020, you will be legally barred from later challenging such exactions. SECTION V: CONDITIONS ADMINISTERED BY THE ENVIRONMENTAL PROGRAMS DIVISION 1.TRASH, RECYCLING AND COMPOST RECEPTACLES The developer or business owner is required to install public trio bins (~30 gal) side-by-side for trash, recycling and composting, adjacent to the development or business to control pedestrian litter at the site.The type and location of the receptacles are subject to the approval of the Environmental Programs Manager. (CMC 9.18.210 P) 2.TRASH, RECYCLING AND COMPOST ENCLOSURES Trash enclosure plans must be designed in accordance with the City’s “Public Works Guidelines for Non-Residential Building Trash & Recycling Enclosures” posted at www.cupertino.org/nowaste , and to the satisfaction of the Environmental Programs Manager.Modifications to existing facilities shall, to the maximum extent practicable, meet the Public Works Guidelines and shall be subject to the approval of the Public Works Director.Clearance by the Public Works Department is required prior to obtaining a building permit. (CMC 9.18.210 H & K) 3.REFUSE TRUCK ACCESS Developer must obtain clearance from the Environmental Programs Manager in regards to refuse truck access for the proposed development and trash, recycling and compost enclosures. Plans for access must be reviewed and approved by the City’s franchised refuse collector. SECTION VI: CONDITIONS ADMINISTERED BY THE SANTA CLARA COUNTY FIRE DISTRICT 1.FIRE DEPARTMENT REVIEW Prior to preforming any work the applicant shall make application to, and receive from, the Building Department all applicable construction permits. Draft Resolution M-2014-01 February 24, 2015 Page-5- PASSED AND ADOPTED this 24th day of February2015, at a Regular Meeting of the Planning Commission of the City of Cupertino, State ofCalifornia, by the following roll call vote: AYES:COMMISSIONERS: NOES:COMMISSIONERS: ABSTAIN:COMMISSIONERS: ABSENT:COMMISSIONERS: ATTEST:APPROVED: Gary Chao Winnie Lee, Chair Assist. Dir.of Community Development Planning Commission