Reso 6776 i
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M-2014-0 l. i
CITY OF CUPERTIlVO �
10300 Torre Avenue '
��.:�� Cupertino, California 95014 �'�
RESOLUTION NO. 6776 ' `
OF;THE PLANNING CONIlVIISSION.OF THE,CITY OF CUPERTINO APPROVING A ;-
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MODIFICATION TO A USE PERIVIIT(U-1988-11) TO REIVIOVE A RESTRICTION TO ALI,OW A
SEPARATE BAR AND EXTEND THE HOI7RS OF OPERATION TO 1:OOAM AT AN EXISTING
RESTAURAlVT(SMOKE EATERS) LOCA'TED-AT 10650 S.I�E ANZA BOULEUARD
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SECTION I: PROTECT DESCRIPTION
Application No.: 1VI 2014-01 ' - :
Applicant: Julio Espinoza(on behalf of Srnoke Eafers Restaurant)
Location:: 10650 S.De Anza Boulevard `
SECTION II: FINDINGS FOR USE PERNIIT ;
WHEREAS; the ,Plan„ing Commission of the City of Cupertino received an.application for the
1Vlodification of a Development Pexmit, as described in.Section II of this Resolution; and
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����,� WHEREAS, the necessary 'public notices have been given in accordance with the Procedural
Ordiriance of.the Cify of Cupertino, and the Plailning Commission has held one or more public
hearings.on this'matter,;and
WH.EREAS, the applicant has met the burden of proof required to support said application; and has
satisfied t11e following requirements
' be detrimental or injurious to
a) The proposed development, at the proposed locat�on, will not
property.or improvernents in the vicinity, and will not be detrimental to t11e public`health, '
safety, general welfare, or convenience;
The proposed project will be within the existing Stnoke 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.
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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.
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The proposed use complies with the Cupertino General Plan and Municipal Code requirements,
including but not limited to,parking regulations,hours of operation and security measures.
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Resolution No.6776 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 Use Pernnit are hereby recommended for approval,
subject to the conditions which are enumerated in this Resolution begulning on Page 2 thereof;
1. The application to modify Use Permit, U-1988-11, Application No. M-2014-01 is hereby �vroved,
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. 2 of the Planning Commission Resolution No. 40691imiting alcohol service and
hours operation as approved by the Planning Commission on 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 service with up to 16 bar seats. �
2. RECIPROCAL PARKING 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, 2014 consisting 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. EXPIRATTON
If the use for which this conditional use permit is granted and utilized has ceased or has been
suspended for two years or more, this permit shall be deemed expired and a new use permit
application must be applied for and obtained.
5. OPERATIONS
a. Alcohol service at the restaurant shall be limited to 12:30 am with a hard closing time at
1am. The outdoor patio shall be closed at 11:30 pm. �
b. The total number of seats within the restaurant service area shall be limited to 16 bar
seats, 112 restaurant seats, and 32 patio seats, unless as otherwise allowed by the
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Resolution No.b776 M-2014-01 February 24,2015 II
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Community Development Direcfor provided� sufficient parking is "available-witivn the '
� shopping center.:
c. Exterior doors shall be kept closed at all times.
6. REVOGATION OF:USE PERNlIT `• , _
The'Direetor xnay initiate proceedings for revocation.of-the Use Permit in any case:where, in
" the judgxnent of the Director: _ :
'' a. Substantial eviderice indicates that the conditioris of:the conditiorial use permit have not i
' been impleinented, or ` ' ;
" b. 'Complaints are received related to the tenant'under this use pexmit, and the complaints '
"are not inimediately addressed by tlie property management and/or the tenarit, or
c. Where the permit is b'eing conductecl in a manner detrimental to the'public health, safety, '
-and welfare,in accord with the requirements of the municipal code.
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7. LAW ENFORCEMENT SUPPORT : : _
The` properiy owner shall address :security concerns in the everit that they arise� to :the
satisfaction of the City. 'Tlie property owner'shall pay for any additional Sheriff enforcernent
" time�resulting from documented iricidents iri the development at the City's contracted hourly
: rate with the Sheriff'Deparhnent at tlle'time of the incident.
The City reserves the right to require additionaT security patrols and/or other measures as
prescribed by the Sheriff's Office or Code Enforcement. , _ :
� 8. ALCOHOLIC.�EUERAGE CONTROL LICENSE
'The' applicant shall obtain and: adhere to' the appropriate ,California Alcoholic $everage
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Control License(s) in conjunction with the proposed service. :
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9.` CONSULTATION V1lITH OTHER I�EPARTMENTS
The'`applicant is responsible to corisult with other`departinents and/or agencies w-ith'regard to
' tlie'proposed project for additional conditions and requirements."Any misrepreseritation of
' any submitted data may invalidate an' approval by the Community Development
; Department. ,::
10. INDEMNIFICATIOlV
To the extent pexmitted by law;'the applicant shall inde�nnify and hold harmless t.�ie City, its
City Council, its officers; employees and agents (the "indemxufied parties") from and against
any',claim, action, or proceeding'.brought by a third party against the indemnified parties and
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tlie applieant to attack, set aside;'or void this Resolu.tion;or any permit or approval au.thorized'
hereby for the project,including(without]irnitation) reirnbursing the City its actual attorneys'
fees and :costs incurred in defense of the l�tigation. The applicant and City shall use best
efforts to select mutually agreeable legal,counsel to defend such action, arid the,applicant
shall pay all compensation for such legal counsel, following the applicant's receipt of invoices
from City, together with reasonable' supporting documentation. Such compensation shall
� include reasonable compensation paid to counsel not otherwise employed as City;staff and
shall include City Aftorney time and overhead costs and other City staff overhead costs and
any costs directly related to the litigation reasonably incurred by City. If the applicaxit and the
Resolution No. 6776 M-2014-01 February 24,2015
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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 Conditions constitute 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.
SECTTON 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 Deparhnent all applicable construction permits.
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Resolution No.6776 M-2014-0 l February 24;2015
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� PASSED AND ADOPTEID this 24th day `of February 2015, at a Regular 1Vleeting of the Planning
Commission of the City of Cupertino,$tate of California,by the:following roll call vote:
AYES: GOMIVIISSIONERS: Chair Lee, Gong, Sun,Paulsen
NOES: COMIVIISSIONERS:none
ABSTAIN: COMNIISSIONERS:none
ABSENT: CO�/IMISSIOlVEIZS:�Tice Chair Takahashi
ATTEST: APPROVEI�:
G-`'�l r> ' � � �
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�r� ao` - Winnie Lee, Chai� �
Assist. Dir. of Community Development Planning Coin�nission
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