PC 01-12-04
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
6:45 P.M.
CITY OF CUPERTINO PLANNING COMMISSION
APPROVED MINUTES
JANUARY 12,2004
CITY HALL COUNCIL CHAMBERS
MONDAY
The Planning Commission meeting of January 12, 2004 was called to order at 6:45 p.m. in the City
Council Chambers, 10300 Torre Avenue, Cupertino, California, by Chairperson Angela Chen, and
the following proceedings were had to wit:
ROLLCALL
Commissioners present:
Chairperson
Vice Chairperson
Commissioner
Commissioner
Angela Chen
Taghi Saadati
Marty Miller
Gilbert Wong
Staff present:
Community Development Director
City Planner
Senior Planner
Senior Planner
Public Works
Assistant City Attorney
Steve Piasecki
Ciddy Wordell
Aarti Shrivastava
Peter Gilli
Staff
Eileen Murray
APPROVAL OF MINUTES:
Minutes of the December 8, 2003 Planning Commission meeting:
Vice Chair Saadati: Page 15, last paragraph: Change "cities" to read "city streets"
Motion:
Motion by Com. Miller, second by Vice Chair Saadati to approve the
December 8, 2003 minutes as amended. (Vote: 4-0-0)
WRITTEN COMMUNICATIONS: None
POSTPONEMENTSIREMOV AL FROM CALENDAR:
1.
U-2003-12
Leah HernikllCingular
Wireless
Use permit to erect a 50 foot artificial tree
monopole and an equipment shelter for
wireless phone antennas.
Location: 10881 So. Blaney Ave. (Tin Tin
Market)
Planning Commission decision final unless
Appealed. Request removal from calendar.
Motion:
Motion by Vice Chair Saadati, second by Com. Wong, to remove Application
U-003-12 from the calendar.
P1anning Commission Minutes
2
January 12,2004
ORAL COMMUNICATIONS: None
CONSENT CALENDAR: None
PUBLIC HEARING:
2.
U-2003-13, ASA-2003-09
EA-2003-18 Lisa Brooke!
Kindercare
Use permit to locate a child care facility and
playground to accommodate 160 children in an
existing commercial building.
Location: 1515 So. DeAnza Boulevard.
Architectural and site approval for building
and site modifications for a proposed child
care facility. Planning Commission decision
final unless appealed
Ms. Aarto Shrivastava" Senior Planner, presented the staff report as follows:
Application is for a use permit modification to allow a child care facility in a former retail
building.
Building will be retrofitted for 148 children.
Project includes architectural site approval for changes to the building and site improvement.
Zoning is Planned Commercial with Residential mixed use zoning and allows daycare uses.
Discussed site plan.
Relative to traffic impacts, the project will result in 388 daily trips of which 122 are AM peak
hour and 99 are PM peak hour.
The project will not cause any significant impacts to the intersections.
. Discussed parking analysis conducted of other daycare facilities.
Staff feels proposed 28 parking spaces are adequate for project.
A condition of approval is proposed relative to parking, should there be any issues with
parking, it will be revisited and returned to the Planning Commission for mitigation.
The chain link fence along the rear of the building will not impact the redwood trees if
arborist's recommendations are adhered to. This is included as a condition to the project.
Noise analysis was performed, which indicated the noise levels are within the requirements of
the General Plan and Municipal Code requirements.
. The proposed childcare facility will result in a loss of revenue ti-om sales tax of about $18,750
per year; however, it is felt that the facility would provide an important service to the
community.
Staff supports the application.
Vice Chair Saadati:
Noted there Were two parking spaces between the building and redwood trees.
Ms. Shrivastava:
. Said that the applicant proposed to remove the parking spaces and replace with a children's
play area. The only parking available will be the 28 spaces in the ti-ont area.
The fencing will be put in by the buffer with the redwood trees, which is where the fencing
will go in to make sure the children don't go beyond that.
Planning Commission Minutes
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January 12, 2004
Com. Miller:
Expressed concern about the traffic impacts relative to drivers making a U-turn to get to the
facility.
Ms. Shrivastava:
Said the traffic engineer would address the issue.
Noted that some drivers would likely choose to use the next intersection rather than make the
U turn.
Com. Wong:
Questioned the sales tax revenue of the childcare facility vs. the previous occupant Galaxy
Lighting.
Ms. Shrivastava:
There is only a general breakdown of the sales tax revenue, not an individual retailers'
establishment and how much they provide.
Said that the loss of sales tax revenue ITom the retail would not be significant enough to
support a shopping center; the property has been vacant for a long period of time.
Com. Wong:
. Good job on the parking analysis; want to ask applicant to address their program as well as is
there going to phases when the children come in and out as well as when they leave?
Said he shared concern about the drivers making a U turn.
Ms. Shrivastava:
Referred to Page 2-43 of staff report, Exhibit C shows estimated children and employees per
shift.
Chairperson Chen:
Questioned how noise is tested when there is not a playground there yet.
. Traffic impact - Pg 2-2: Asked if there is a level of service drop.
Ms. Shrivastava:
Said there was a noise analysis; the noise consultant felt that 150+ feet ITom the project site
was adequate distance to prevent noise from the playground reaching the single family homes.
Mintons Lumber was not a concern.
They did do a noise testing for existing noise to see the effect. They did not test other sites.
They tested the effect of the noise ITom Mintons Lumber to see how that would impact
children on the project site.
Relative to LOS, said that every one of the intersections would remain; there is an attempt to
maintain a LOS D at almost all intersections; each intersection stays much the same except for
DeAnza Boulevard and Hwy. 85 south ramp where it goes from a C to a C- and the differential
is about a 1.67 second delay, which is not significant.
Lisa Brook, Kindercare and Janis Tronik, Area Manager for Operations:
. Hours of operation are 6:30 a.m. to 6:30 p.m.; children arrive on premises at staggered times.
Relative to Com. Wong's concern about the close proximity of the trash enclosure to the
toddler play area, said that the trash enclosure has been designed in accordance with the Public
Works' recommendation. It is split face block with a roof; the back of the trash enclosure will
line up against the infant playground; there will be a fence that buffers.
Planning Commission Minutes
4
January 12,2004
Staff clarified that a condition of approval would be added stating the opening hours of the facility
would be 7 a.m.
Mr. Piasecki:
Noted that if the opening hour was changed to 6:30 a.m. it would have to be advertised to
notify the neighbors of the early start time.
Com. Miller:
Concern is that there will be a considerable amount of U turns being made during heavy traffic
hours, and the way the streets are laid out, said he viewed it as a potential area for hazard.
Ms. Brook:
. Did specifically look at U turns; there may be two separate issues and they may be both of
concern. One issue analyzed in the report is the length of the ques in those turn pockets, since
it is expected that a considerable amount of U turns to see if the traffic added by the project
would cause cars to back out of those turn pockets, and they did not expect that to be a
problem.
The other issue is that it is recognized that due to the location of the driveways and the turn
pocket, there is not much distance for the vehicles to cross the lanes. It is not an unusual
condition given the number of driveways along DeAnza Boulevard; it should be left to the
driver's judgment as to whether the traffic conditions would enable them to make that
movement or not.
Said she felt it was not an issue that needs to be mitigated or changed.
Com. Miller:
Asked what data was used to determine the U turn lane would not back up.
Ms. Brook:
. Counts were made of the number of vehicles making U turns during the peak time period, as
was done at other signalized intersections. The traffic was counted and estimated how much
traffic this project would add to those U turns and evaluated it as an unsignalized intersection
during the peak AM and PM periods.
Chairperson Chen opened the meeting for public input.
Bill Clute, 1486 Jametown Drive:
Opposed the project.
Expressed concern about the noise. Four retired families reside behind the facility and are
home most of the day.
. Expressed concern about the traffic on DeAnza Boulevard; 100 to 125 cars will be entering the
facilities between 7 and 8 a.m.
He described problems encountered with traffic on DeAnza Boulevard making U turns to and
from the facility.
Sal Algeri, 1535 Jamestown Drive:
. Opposed the project.
Resides across the street from where the facility would border.
Concerned about noise - was not satisfied with the applicant's answer or the analysis on the
noise study talking about noise ITom Mintons vs. children. Can tell ITom experience that the
Planning Commission Minutes
5
January 12, 2004
soccer fields over in Hoover Park on a Saturday morning when the children are yelling and
screaming when a goal is scored, we can hear it two or three blocks away. It is not a problem,
but it is a different kind of noise, comparing industrial noise, people speaking, vs. children
playing in a playground where there are high pitched voices screaming and yelling which
tends to carry. It has a possibility of disturbing the neighbors which border the property and
across the street.
Asked the Planning Commission to explore that more deeply and see if they really believe the
analysis is adequate or not, or if some mitigation is necessary with regard to the high pitch
noise ITom the playground.
Expressed concern about the number ofU turns and the difficulty encountered in the afternoon
and evening traffic.
Ms. Shrivastava:
Noted that regarding noise, there is 150 feet between the play yard and the single family
homes; also there is a block wall and a row of redwood trees in between the two.
Said there was an acoustic report; staff did not expect a concern about the children's noise
carrying over because ofthe distance and the solid concrete block wall between the homes and
the children. The concentration was on the lumber yard which is next door on the property
line.
Mr. Piasecki:
The second part of that is that they are eliminating a parking lot which also carries noise into
the evening hours; whereas this use is going to cease operation getting into the more sensitive
evening hours.
There was a tradeoff on the noise issue.
Les Schreiber, 1498 Jamestown Drive:
. Opposed the project.
. Has resided behind Minton's Lumber for 25 years.
Said Minton's generates noise and felt the child care facility would generate noise also.
Said the Planning Commission should look at the other daycare centers located in the city and
find out ITom the neighbors behind those facilities what kind of noise level they hear on a daily
basis.
Said that the parking lot behind the facility has not had much use in the last years and should
not enter into the issue.
Said they worry about property values decreasing because of the child care and the noise.
Chairperson Chen closed the public hearing.
Com. Wong:
Relative to concerns about crossing over and making U turns, asked if there was any way to
put a restriction on having traffic going south or having no U turns on that first street.
Mr. Piasecki:
. Said it was an appropriate question for the traffic engineer.
. Said that raised bars could be used to prohibit exit ITom the southerly most driveway ITom the
Kinder Care location crossing the three lanes and trying to get into that left turn pocket to
make a U turn. A sign stating right turn only could also be used, which may force some
people to circulate through the parking lot and go to the north driveway which might be safer.
Planning Commission Minutes
6
January 12, 2004
Com. Miller:
The comments from residents are correct; there is a lot of traffic flowing south during the
evening rush hour and it would be difficult even by the time you reach Prospect to get over
three lanes; have unsuccessfully tried; their question is a legitimate one; is that going to impact
their neighborhood by having people drive through their neighborhood to try to get around.
Com. Miller:
. Asked in terms of the noise impact, could it be done if it does get approved, and bring it back
at some period of time and look at what the impact is and then ask for additional mitigation, if
it should be unacceptable.
Mr. Piasecki:
. If the Planning Commission is concerned about the noise issue, he suggested the item be
continued, and ask the applicant to prepare a noise analysis to demonstrate how many children
will be out there, and what noise levels will they reach.
Said he felt it will be audible to the residents, potentially not unlike a school located in a
neighborhood, children playing in a school yard are audible to surrounding neighbors.
The question is, is that a sound that is disturbing and is it something that you should be
discouraging in this location or is it 150 feet plus away, is that sufficiently distant that it will
be a pleasant sound to hear in some cases.
Com. Wong:
Said he concurred with Mr. Piasecki; he lives adjacent to a preschool and said the noise ITom
Highway 280 and 85 is a lot higher and he would prefer listening to children.
. Said he felt the lumber yard would be a lot noisier also.
Chairperson Chen:
. Relative to noise, the lumber yard, is there a parking lot buffer behind the lumber yard
between the residential area and the lumber yard also.
Mr. Piasecki:
No there is not.
Traffic Engineer:
Said she understood the concern that it may be difficult to turn out of the driveway particularly
the southern driveway and make a U turn at the first opportunity on DeAnza or even to change
lanes to make a left or U turn at Prospect.
It was not specifically evaluated in a quantitative manner and not addressed how difficult or
how long one might have to wait in order to find a gap to cross those lanes.
. Said that the number of trips during the PM peak hour expected to exit the site and make a U
turn to go north onto DeAnza is only II in the PM peak hour.
. Traffic generated ITom the site that would cut around the adjacent streets, would likely not be
significant relative to the volume added to a residential street.
More of the traffic is expected to go either south on DeAnza Boulevard or turn onto Prospect
due to their destinations being located south on the site.
It is generally expected that there are more employment sites to the north, and in the afternoon,
there are more residential areas where people are picking up their children and heading home;
so more of the traffic is expected to be headed toward destinations south of the site in the
afternoon. The total number is not II, but the number expected to travel north during that
hour.
Planning Commission Minutes
7
January 12, 2004
Mr. Piasecki:
The second part of the question was, could you put a physical barrier if it was desired; a raised
curb, or rumble bars to prevent that movement tram the south driveway.
Applicant:
Said that the specific design considerations were not looked at to do that, but it has been done
in other locations, and the location of this driveway would make it possible to put a barrier to
prohibit or to make it not possible to enter that turn pocket from the southern driveway. The
city engineer could consider whether that would be appropriate or not. Said in her opinion, it is
likely possible.
Mr. Piasecki:
As shown in the photo, the driveway is shared with the office building to the south; it is a
fairly large building with quite a few trips exiting that office building during the PM peak
hours; and if it was a problem, it would likely have surfaced prior to this point.
Said a condition could be added requiring the applicant to put some kind of deterrent or raised
median or bars if the Public Works Director felt it was necessary either now or up to and
including when they operate, up to a year after operation. That may be an avenue for the
Planning Commission to rely on the professionals in Public Works to make that judgment after
they have been in operation and make them responsible for the installation.
The noise issue remains to be dealt with.
Com. Miller:
One of the residents indicated that it was difficult to make a turn into the northern entrance;
was the entrance evaluated with the possibility of widening it, or is it acceptable in its current
configuration.
Applicant:
Said it was acceptable in its current configuration; but she thought there was a condition ITom
Public Works to modify the design.
Ms. Shrivastava:
. The Northern driveway is going to be entry only; the southern driveway exit only; there will
be a one way flow.
The southern driveway is not on the property; it is on the AAA property, so any changes to
that will need the cooperation of the property owner.
Com. Miller:
. The suggestion was to widen the northern entrance.
Ms. Shrivastava:
Said it is part of the condition of approval.
Applicant:
. Relative to operating hours, the hours are ITom 6:30 a.m. to 6:30 p.m. It is not uncommon to
have training for a parents' night out once a month when the facilities are open until 9 p.m.
There are also training hours for staff only outside the normal business hours.
Planning Commission Minutes
8
January 12, 2004
Chairperson Chen:
How many children are expected to arrive and how many children are expected to be in the
playground at any given time and how many times per day?
Applicant:
Three shifts 7 to 9; 9 to 12; and 12 to 6 p.m. Based on 65% occupancy, we anticipate that there
will be approximately 57 to 58 children per shift. Not all of the children will be out on the
playground at once.
. There are 3 playgrounds - 16 in one; 16 and the rest of the playground for the preschoolers,
that is rotated in groups.
No school age children, oldest child is 4 to 5 years old.
Mr. Piasecki:
Said the conditions could be written 7 a.m. to 9 p.m., Monday through Friday, with a
limitation on number of children outside at anyone time, to give them some flexibility.
Applicant:
. Said she felt putting a limit on the number of children in the playground would not be in the
best interest of child care and would be difficult for their business.
. The State of California licensing does not limit the number of children that can be on a
playground at any given time.
Chairperson Chen:
The option is to do a report to make sure the noise is not going to impact the neighbors.
Applicant:
Said she had no objection to that.
Com. Miller:
. Originally was most concerned about the traffic, but taking into consideration the traffic
engineer's comments, the number of people making U turns does not seem to be inordinate. It
is also a valid comment that there is an office building next door and they would likely
generate more U turns; which doesn't seem to be impacting the street at this time.
Is in favor of the idea of doing something with the first turn lane to prevent people from trying
to move across to that lane, potentially causing a traffic hazard.
On the issue of the noise, it appears that the children are not going to generate enough noise to
impact the neighbors. Compared to Mintons Lumber, Mintons backs further up to the
residential area.
. Said he was concerned no noise study was done; hence, either ask them to do a noise study or
approve the application; and perhaps similar to what was done with the YMCA, ask them to
come back after a certain period of time and evaluate if the noise is an issue or not; and if it is,
ask them to provide further mitigation for the noise.
Other than above comments, he said he was in favor of the project.
Vice Chair Saadati:
Concur with Com. Miller regarding traffic and if people make U turns that is something that
could be remedied in future, as has been done in other locations in Cupertino.
Relative to the noise, said he doubted that it would create too much noise based on the
distance.
. Said he lived behind an elementary school; and said the noise is not that bad.
Planning Commission Minutes
9
January 12, 2004
If there is a noise level bothering the neighbors in the future, they can bring it back and address
it then.
Said he was not sure a noise study would accomplish anything; it is difficult to do that; willing
to look at it when it is in operation and see if the impact will bother the neighbors, and if so,
bring it back and try to remedy that.
Chairperson Chen:
Asked if it is possible to find a similar site for a noise study.
Mr. Piasecki:
Said if the applicant was asked to contract with a noise consultant, it is possible they have
done something, either an analysis of a school or an outside play yard. Said he was not certain
if it would be completely analogous to 4 and 5 year olds outside on relatively low activity
equipment as opposed to basketballs with older children. They are not operating on the
weekends; there will be no noise on the weekends when the residents are there as a rule and
want their quiet time, as well as the evenings.
The Planning Commission has to weigh, based on what you have heard whether it is necessary
to go and ask for a noise report which may cost the applicant $3,000 to $5,000 and six more
weeks of continuance to have it prepared and brought back to you.
What could be done as suggested by Com. Miller, is add a condition that states in the event
there are complaints, the Planning Commission may recall the application and if there are
noise complaints, possibly ask for either noise mitigation walls and!or limiting the number of
children outside at anyone time. The applicant would have to address whether they can
practically do that. It would only be imposed if there were complaints and/or problems
associated with the number of children at anyone time. He said he could not imagine that this
age group would create that kind of problem; there are other day care centers in neighborhoods
immediately adjacent to homes. It has not been a past requirement.
Chairperson Chen:
Said she envisioned as a noise study, if there is a playground immediately adjacent to the
residential homes; do a noise db test, staying 300 feet away and try to assimilate the situation
to see how much noise is actually being dealt with.
Said she was concerned about potential noise after hearing ITom retired residents who are
home most of the day.
When a preschool is in operation, it would be more complicated to deal with the noise issue.
Com. Wong:
Said he understood the concerns regarding the noise and the traffic; but at this time, would also
like to support this project.
A preschool is needed in the community to support working families; the mitigated factors
suggested what Mr. Piasecki suggested, that the Public Works look into that device and see if
they think it is appropriate. Said he was comfortable with that.
Relative to the noise, he said he also resides adjacent to a preschool, and felt that if the
residents are really concerned, as suggested by Com. Miller, bring it back in 12 months for
review and at that time see if a noise study is warranted.
. Said he did not want to uphold the application because he wanted to be more business friendly,
but also wanted to listen to the residents' concerns.
Regarding the parking analysis, said he felt the proposed clause was ideal; if there were any
parking problems or traffic concerns, it would be brought back to the Planning Commission.
Planning Commission Minutes
10
January 12, 2004
.
There are other avenues to address concerns but since the school is not in operation yet, it is
hard to judge where it is at.
Supportive of the application.
Chairperson Chen:
. Said she also supported the application but was concerned with traffic which can be dealt with.
. Said she was hopeful that a study could be done before the school is actually in operation.
Questioned if the exit in the south is not part of their property, was there any kind of
agreement required to make it happen.
Ms. Shrivastava:
It would require the approval of the property owner to do any work on their property. The
northern driveway is part of the condition, which is on the applicant's property. To evaluate
and add something on the southern drive, would require the adjacent property owner's
approval.
Chairperson Chen:
Asked if it was part of the recommendation to always enter from the north and exit ITom the
south.
Ms. Shrivastava:
. No, just because of the direction of traffic and the way traffic moves, it is a one way on
DeAnza, Public Works recommended that the northern driveway be the entry and the southern
be the exit, to keep traffic in and out of the site flowing smoothly.
Mr. Piasecki:
Suggested wording for condition: "No. 32, U turn movements: The Public Works Department
shall review the necessity of limiting traffic movements from the south driveway to the
opposite left turnIU turn pocket and may require the applicant to install a raised physical
barrier, curb or rumble bars and appropriate signage. Said mitigations may be required up to
one year following operation of the day care use."
Also suggested wording for the noise: "Condition No.2 Development Approval: it currently
states "Approval is granted to operate a day care facility with a maximum occupancy of 148
children and 21 employees." Would add the wording "Operating from 7 a.m. to 9 p.m.
Monday through Friday only, except for enrollment periods which may operate during
weekends. Said use shall be reviewed within the first year of operation in the event of noise
related complaints; and the Planning Commission may require a noise mitigation study and
noise mitigations up to and including a noise wall along the west property line, and/or
limitations on the number of children allowed in the outside play yard."
That would put the applicant on notice that if there was a problem they would be required
potentially to do all three things; a noise mitigation study, identify whether these two
mitigations would be the appropriate ones. For 4 and 5 year olds, it provides a reasonable
level of comfort, and the neighbors will have the advantage that on the weekend they won't
listen to anything.
Chairperson Chen:
Asked to add that the noise would have to be in accordance with the municipal code.
Mr. Piasecki:
. Said he doubted that the noise would exceed the municipal code at any time.
Planning Commission Minutes
II
January 12, 2004
Said that one would have to feel that just the fact that it was audible and bothersome to the
neighbors, that it could trigger this requirement and trigger the mitigations; just because it
would be a nuisance sound that would not necessarily be a noise.
He doubted that it would exceed the noise levels; and would require a judgment call.
Chairperson Chen:
As part ofthe noise mitigation, it basically can be anything.
Mr. Piasecki:
The result if there is a complaint, would trigger the requirement that the applicant come back,
perform the noise analysis, then you could make a judgment: how loud is it; is it really that
obnoxious; they would be in operation and you could actually go out and listen to it and the
Planning Commission can exercise reasonable judgment at that point. There are cases where
uses don't exceed 65 decibels, which is a fairly loud sound, your speech would be interrupted,
freeways generate 65 decibels, not 4 and 5 year olds as a rule.
Nevertheless, those kind of uses if you are trying to sleep during the day, may be a disturbance
and you may want to petition the Planning Commission to take some action. It is stretching it,
but you may want to put kind of provision into the conditions if you wish to.
Chairperson Chen:
Said it was acceptable to her.
Motion:
Motion by Com. Miller second by Com. Wong, to approve Application
U-2003-13, ASA-2003-09 and EA-2003-18 per the model resolution
with the additional changes suggested by Mr. Piasecki.
Vote: (4-0-0)
Mr. Piasecki:
Noted the decision was final by the Planning Commission unless appealed within 14 days to
the City Council
Chairperson Chen declared a short recess.
3.
M-2003-08
Todd LeelMarketplace
Use permit modification (16-0-76) to
permit new food services and restaurants
Adjacent to the gated portion of the rear
Corridor through a use permit process.
Location: 19770 Stevens Creek Boulevard
Planning Commission decision final unless
appealed
Mr. Peter Gilli, Senior Planner, presented the staff report as follows:
Application is for modification to a use permit for the Marketplace Shopping Center.
Referred to the site plan and illustrated the location of the project.
The shopping center was approved in 1976; one ofthe conditions at the time was that the rear
area would be used only for emergency access and there would be no deliveries or pedestrian
or vehicular traffic.
In 1987 a condition was added that new food services not be allowed to be within the gated
area. The condition was made to protect neighbors from odors and noise impacts.
Planning Commission Minutes
12
January 12, 2004
.
The applicant is the management of the center and is proposing to change the 1987 regulation
to allow food services in the gated area under certain conditions. Each business would have to
offer their own use permit, come to the Planning Commission and show that they can mitigate
the impacts that they mayor may not be creating.
Staff believes there are two areas that need to be addressed. One is to have proper equipment
inside the tenant space and the other is the behavior of the tenant.
Relative to equipment, as outlined in the staff report, it will be determined on a case by case
basis, which is more appropriate. For a restaurant with a full service kitchen, there will be
more equipment; for a sandwich shop that does not have any cooking, less equipment would
be needed.
There is no food service applicant who wants to occupy a space here immediately; this is just
modification to allow the possibility for the future.
Relative to behavior, currently all tenants along the rear are required to have their doors closed
at all times to keep noise down, and odors in.
If each tenant has a use permit, it gives the city a lot more power to enforce the conditions.
Said there was a wall and a taller wall along the illustrated area, which is the loading dock for
Longs.
.
.
.
Vice Chair Saadati:
Said he drove by, there is a 20 foot wall, inside the gated area the fence is about 6 foot high.
The reason the wall is so high is because of the noise. Is there anything proposed to be put in
place to remedy any noise or odor.
Mr. GiIli:
If the past conditions are being met, there should be no noise back there, with no one back
there and no deliveries. The issue with odors would be coming from existing restaurants of the
center. There is nothing in this modification proposed to address existing tenants.
Com. Wong:
Want to review the history and why the residents were concerned in 1987; and with this new
mitigating resolution staff suggested, is it workable for the community; and has staff had the
opportunity to present it to the community to get feedback.
. Asked for comment on the community input.
Mr. GiIli:
Relative to the history of why these conditions are in place, ITom researching old documents
and speaking to people present at the time, it was based on complaints that had occurred; the
rule about not having a restaurant in the area came after the shopping center was built; the rule
about the rear area being closed was when the shopping center was built.
Originally the back area was going to be landscaped area, not a driveway; the Fire Department
wanted an access way. It was agreed that there would be an access way but it would be closed
off, with no deliveries. That was accepted at the time.
. In 1987, the Council amended the use permit to limit the uses that go in the red area, based on
complaints. There were occasions where the old management of the center or old tenants,
requested a change in the conditions either to allow deliveries or along that area, and it failed.
Relative to the question about the input ITom the residents, there are three major concerns. One
is they want to make sure that the rear area stays gated, and the applicant has no intention of
changing that. Second, is the odors, and the conditions that have been drafted addressed the
odors to the highest amount that the city can do. There may still be an odor, but what would
be required of people coming in for a use permit, would be they would have to have the
Planning Commission Minutes
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January 12,2004
necessary equipment to mitigate the odors as much as feasible. Lastly, in speaking with some
of the neighbors on Bixby, they are concerned that one change could lead to another, and
changing this condition could lead to weakening of another condition. As stated earlier, this
modification is to allow something under certain conditions that are not there at all now.
Com. Wong:
Currently all deliveries for the red area are being done in the front.
We are trying to develop a user-friendly resolution so that we can address
community concerns as well as add some variety to the marketplace center.
some of the
Chairperson Chen:
Are there any concerns about existing restaurants regarding noise and odors.
Mr.Gilli:
Said he has heard of some complaints of existing restaurants.
Chairperson Chen:
. Clarified that if this modification is approved, they are not approving for any restaurant to
move in, just opening it for a potential restaurants.
Questioned if this is approved tonight, and a restaurant comes in to apply for a use permit; is
there a more scientific way to test for the odor similar to the noise level being studied?
Mr. GiIli:
. If any restaurant applies, it will be a full use permit and come back to the Planning
Commission and it will be noticed.
That wasn't proposed in the conditions; staff was going to rely on the recommendation of the
chief building official based on their experience in the rest of the city. The Planning
Commission could take that recommendation and if they believe this use may need a little
more, could require more or less. Relative to a scientific way, it wasn't proposed because the
municipal code does not specify how to measure what an odor is.
Wayne Acouville, Evershine Group:
Said they were attempting to reinstall some vigor into the spaces in the center they have had a
difficult time in leasing.
Some of the spaces would be considered for food use, not necessarily restaurants, such as ice
cream shop.
Said he just received the packet today about the concerns ITom the residents in the back area,
and they would like to talk more with the residents about the change.
. Would like to have application continued to a later date to allow time to meet with residents.
Com. Miller:
Said that the applicant's request was reasonable; however, it appeared there was a deal in place
between the applicant and the residents and the city.
. Said he would like to see the applicant and residents come to some agreement before he was
willing to make a change to that.
Vice Chair Saadati:
Reiterated that the back was gated and should remain gated and no trucks be allowed to go
through the back area.
Planning Commission Minutes
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January 12, 2004
Applicant:
Correct, and we will keep that the same.
Questions regarding air conditioning, they are rooftop units; the wall in the back is around 7 to
8 feet tall ITom our side; ITom the neighbors side, it is shorter because the ground on their side
of the fence is higher.
Chairperson Chen opened the public hearing.
Virginia Tamblyn, 19721 Bixby Drive, representing north side Bixby Drive residents:
Requested that her comments and attached signature be made part of the record.
She and neighbors are opposed to the modification; they do not want the use permit changed.
Purpose for the present restrictions in the use of the alley as quoted in Para. I of the
application summary on Page 3-1 is to protect the residents from noise and odors.
Present condition has been in place for 16-112 years.
. She was one of the owners instrumental in getting that amendment to the use permit.
Are opposed to the change which will increase odors and noise; there are odors and noise that
have not been abated.
. She and other neighbors are disturbed by strong odors.
Said she cannot open windows in the summer; nor entertain company around the pool because
of strong cooking odors which have increased in the past two years after another restaurant
opened.
. More restaurants will increase the odors, noise and traffic.
. Planning suggests that more efficient use of air conditioning will mitigate odors; but air
conditioning will not totally remove all odors and increasing odors.
Even though there have been continual complaints over the years, nothing has been done to
abate the odors.
Page 3-1, Para. 2 of the summary, it states that the center management proposes modified
conditions they believe are in keeping with the original proposal. The original proposal was to
protect adjacent residents from traffic, noise and odors. This change does not do that.
The Planning Commission and City Council in 1987 passed the Resolution 3055 because of
their concern of the welfare of the neighbors and were responding to the complaints and
problems which had been occurring over the years. She and neighbors do not want Resolution
3055 to be modified in any way as it protects the gated area ITom additional restaurants and
eventually eliminates them.
It is anticipated that the odors will increase; also noise and traffic if the use permit is modified.
Also anticipate possible efforts to open the gated area to truck traffic in the future.
Page 3-1, Para. 3 of the summary, states that through the use permit process individual
mitigation measures could be placed on the tenants on a case by case basis depending on the
magnitude ofthe noise and odor impacts.
Currently the staff and owner of the center never get the tenants to comply with regulations;
how will they achieve this in the future? There is a history of non compliance since the center
has been built.
. Said she delayed a delivery in the alleyway at one time; and informed the owner to have the
deliveries in the front.
Asked why the residents' rights were taken away; it is stated the city can better monitor and
enforce the behavior of food service tenants, but there has been a history of non-enforcement.
. The proposed plan does not address penalties for non compliance nor what will be done to
enforce compliance in a way that immediately addresses a problem.
Better enforcement and penalties are not defined on Page 3-4, Paras. 3 and 4.
Planning Commission Minutes
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January 12, 2004
.
Eventual termination of leases or conforming to the condition upon renewal of leases does not
solve an immediate problem. There is no consideration of the downstream impact of
modifying the use permit.
Said she spoke with a representative of the applicant and told him that abating the odor would
address the issue and satisfy the neighbors.
Questioned the motive of the applicant to make the change at this time; questioned if they
were considering selling the center and the restriction would perhaps be unacceptable to a
future buyer.
.
Patricia Smith, Cold Harbor Drive:
. Said she was not directly impacted at her residence, but when visiting Ms. Tamblyn's home in
the summer, the odors are very strong, especially in the morning and evening.
. The wind direction affects the odors in the neighborhood.
. Said that the residents' complaints regarding the odors were substantiated.
Stressed that "abatement" was necessary.
. She urged the Planning Commission to seriously consider the concerns of the residents as their
quality of life was negatively affected.
Arthur Federico, 19711 Bixby Drive:
Reiterated that the odors needed to "abated".
Expressed concern about the opening of the rear of the center for deliveries.
. Said he was instrumental in the 70s in making certain that the deliveries were not allowed in
the rear area of the center.
Said that there should be a way to measure the odors.
. When the noise measurements were taken, it was determined that the deliveries in the rear area
were exceeding the noise level and the gates were locked to deter deliveries.
. Expressed concern that the fire hazard in the rear area is high during the summer.
. Said that there have been problems in the past with the air conditioners on the roof.
. Confirmed that Ms. Tamblyn's home was negatively impacted by the restaurant odors.
Com. Wong:
. Expressed appreciation to residents for coming to the meeting and expressing their concerns.
Applicant asked to continue the item to work with the residents.
. Staff explained that they wanted to stay within the intent of the 1987 ruling, to remain locked
and gated, not allowing deliveries in the rear; and the need to have the odors abated, and their
apprehension regarding change that it might have something that will further change.
. Asked if the restriction in the resolution was meant for the red area or the entire center.
. Said he was hopeful that the issues could be worked out with management; the goal is to make
Cupertino a friendlier place and if concerns on abatement are addressed, they would like to
bring more restaurants, retail and shops into Cupertino.
It is important to ensure that the concerns are addressed as well.
Mr. Gilli:
. Restriction was specifically for the tenant spaces backing up to the gated area.
Vice Chair Saadati:
Concurred with Com. Wong.
. Was hopeful that when the application returned, all the residents' concerns will be addressed.
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January 12, 2004
Said that when the application returns, it needs to be focused on what is going in; identify
limitations; candy shop or ice cream shop should be clearly stated and no deliveries ITom the
back gates; all deliveries are in the front area.
Said he foresees additional problems with addition of more food shops, and monitoring any
activity back there.
Com. Miller:
Said there is an issue that needs to be addressed whether this application goes forward or not,
namely the issue of odors in the neighborhood that are presently not being abated or mitigated.
Reiterated the other issue is whether it is reasonable for the applicant to pursue this or not,
there is a deal in place and he said he would not be inclined to change that deal unless all
parties agreed to those changes.
Said he welcomed the applicant and residents getting together to work out their differences.
Motion:
Motion by Com. Wong, second by Com. Miller, to continue Application
M-2003-08 to the February 9, 2004 Planning Commission meeting.
Vote: (4-0-0)
OLD BUSINESS: None
NEW BUSINESS:
4.
Selection of alternate representative for the Environmental Review Committee.
Motion:
Moved by Com. Wong, second by Com. Miller, to nominate Vice Chair
Saadati to serve as the alternate for the Environmental Review Committee.
Vote: (3-0-1, Vice Chair Saadati abstained)
REPORT OF THE PLANNING COMMISSION:
Environmental Review Committee: No meeting held.
Housine: Commission: No meeting held.
Mavor's Monthlv Meetine: With Commissioners: Com. Wong reported that the Mayor's
monthly meeting was now scheduled for the third Tuesday at 7 a.m. (A new schedule of
attendance will be forthcoming). Com. Wong reported that the. grand opening of the Sports Center
was held January 10; Teen Commission opened in the basement of the facility; Library
Commission reported that in March they would have a measure; want to notify the residents of the
opening hours, law that is going to be sunset and want residents and voters to be aware of that
coming up in March. Telecommunications Committee is looking into wireless internet at locations
including the library, the new park at Stevens Creek Boulevard and DeAnza College, Vallco.
They also reported Public Access TV Channel 15 will feature how to make more partnerships
regarding that particular station. The Housing Commission is looking into BMR units.
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT:
Mr. Piasecki distributed information on the 2004 Planners' Institute. Rl ordinance is
scheduled for the next meeting; discussion ensued regarding holding a study session prior to
the regular meeting, to begin at 5:30 p.m.
Planning Commission Minutes
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January 12,2004
Ms. Ciddy Wordell, City Planner:
Provided an update on the General Plan. The task force asked to have until January 15 to look
over their draft to see if there were any other suggested changes. An agenda item will go
forward to the City Council on Monday, but not the draft as more turnaround time is needed to
see if the task force has anything they want to change on their draft.
Staff will suggest to the City Council that they set up at least two meetings in February,
possibly three, to hear the recommendations of the task force, and the task force will present
their recommendations. The task force draft is anticipated to be released on January 23 and
once the City Council approves the draft, whether it is the task force draft or some version of
that, public hearings will be set with the Planning Commission, once they have the
environmental analysis of the draft.
ADJOURNMENT:
The meeting was adjourned to the Study Session at 5:30 p.m. on
January 26, 2004, followed by the regular Planning Commission
meeting at 6:45 p.m.
SUBMITTED BY:
a~
Approved as presented: January 26, 2004