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PC 04-26-2016CITY OF CUPERTINO 10300 Torre A venue Cupertino, CA 95014 6:45 P.M. CITY OF CUPERTINO PLANNING COMMISSION MEETING AMENDED/APPROVED DRAFT MINUTES APRIL 26, 2016 CITY COUNCIL CHAMBERS TUESDAY The regular Planning Commission meeting of April 26, 2016, was called to order at 6:45 p.m. in the Cupertino Council Chambers, 10350 Torre Avenue, Cupertino, CA. by Vice Chair Gong. SALUTE TO THE FLAG ROLL CALL Commissioners Present: Vice Chairperson: Margaret Gong Winnie Lee Geoff Paulsen Don Sun Commissioner: Commissioner: Commissioner: Commissioners Absent: Chairperson: Alan Takahashi (arrived later in meeting) Staff Present: Assistant Community Development Director: Asst. City Attorney: Associate Planner: Senior Housing Planner: Benjamin Fu Colleen Winchester Gian Paolo Martire C. J. Valenzuela APPROVAL OF MINUTES: 1. Minutes of the March 8, 2016 Planning Commission meeting: MOTION: Motion by Com. Sun, second by Vice Chair Gong, and carried 3-1-1, Chair Takahashi absent, Com. Paulsen abstained, to approve the March 8, 2016 Planning Commission minutes as presented. 2. Minutes of tile March 22, 2016 Planning Commission meeting: It was noted that correct spelling of a restaurant in Cupertino was Amici's MOTION: Motion by Com. Paulsen, second by Com. Sun, and carried 3-1-1, Chair Takahashi absent, Com. Lee abstained, to approve the March 22, 2016 minutes as presented. WRITTEN COMMUNICATIONS: None POSTPONEMENTS/REMOVAL FROM CALENDAR: None Cupertino Planning Commission 4 April 26, 2016 Lisa Warren, Cupertino resident: • Said she was not able to attend today 's earlier meeting with staff and appreciated their efforts; she commented on the question that was asked about the meeting and how the questions were answered today and residents were assured that it was all language needed; which sounded off an alarm to her because when they were talking about General Plan Amendments 1-1/2 years ago, before and after, there was talk that they were just cleaning things up , cleaning up language and following certain state mandates . She said in the end all the redlines came out, and there was a whole lot more going on than that, and that created an opportunity for some residents to speak and clean it up a little better. Because they have dealt with that same statement in the past that wasn't really accurate; she questioned if it is accurate this time. She pointed out that she was not part of forming the questions or part of today 's meeting; she. was not speaking firsthand experience; the comment made her nervous. Chair Takahashi closed the public hearing. Any questions or comments from commissioners about proposed edits to the ordinance? Com. Lee: • Said she has constituents interested in the definition of retail; parking requirements should be discussed. For restaurants, what is the difference between specialty food and fast food; examples specialty foods is an ice cream store, bakeries or shops ; what about Jamba Juice; and ifthere is a difference what is the parking requirement? Gian Paolo Martine: • Specialty foods are more restricted in the CG zone; cumulatively if they go above 50% of the retail area, like a shopping center, they do require an admin use pem1it. In terms of thought behind that I can only make an assumptions, I am not 100% clear why we had that process ; for that instead of a clothing store, I am not going to give my assumptions. We do regulate the specialty food stores more than a regular retail or restaurant. Colleen Winchester, Asst. City Attorney: • Defined specialty food store as where food is prepared primarily for consumption off premises; the difference in parking requirements is probably related to on premises vs. off premises. Chair Takahashi: • The assumption is that there would be more need for capacity if there is seating and for a duration of time and the number of spaces is still tied to square feet of the establishment; correct? Gian Paolo Martire: • For specialty foods, 1 to 3 seats or 1 to 250 sq. ft, whichever is more restrictive. It includes handicap parking. C. J. Valenzuela: • Said staff has a definition for retail as discussed in Chapter 19 .60, it talks about activity, mostly involves direct retailing of goods and services to the general public . The retailing and servicing activity must comprise at least 50% of the floor space including enclosed patio and atrium space and must represent a primary emphasis of the business, so we do have a definition for retail currently in the Code. Cupertino Planning Commission 5 April 26, 2016 Com. Paulsen: • Said he agreed with Jennifer Griffin 's comment about two tiered affordable housing, front door/back door, upstairs/downstairs , first class/second class that type of discrimination ; is it addressed in the codes? C. J. Valenzuela: • Said he appreciated Jennifer Griffin 's comment; the BMR program has been in force since 1993; currently has 138 rental units and 121 ownership units with a portfolio of close to 260 units. Said he has been in all their complexes where BMR units are located and each one is built identical to the market rate unit; the standards are very high in Cupertino. The reason this was included in density bonus law is taking into account that developers don't have the same profit margin when building affordable units, they are not getting the same cash rental flow; that is why in density bonus law there is a potential relief for the developer to help reduce the cost of constructing as an incentive to not have to build the same finishings. In no way does Cupertino have that with their BMR units and in going forward , the standards will be higher. All the BMR units have access to all the amenities and parking as well. Chair Takahashi: • Back to retail , can you point where that definition is in our material? Gian Paolo Martire: • It is in 19 .60 .050 a3 , in the land use criteria in the CG ordinance. Read the definition: "the activity must invol ve direct retailing of goods and services to the general public. The retailing and serv icing activity must comprise at least 50% of the floor space including closed patio and atrium space and must represent the primary emphasis of the business. Window displays shall reflect the retail emphasis ." Com. Takahashi: • So primary function is in there meaning that the space has to be allocated/dedicated to the retail element. In terms of previous comments about restaurant or vending machine, it sounds like that definition holds up . The concern has been do we have a strong enough definition of retail such that we are not going to grant a bonus height; for example, and somebody is going to put in place some level of retail that is not that legitimate and that is not that access ible to the public. Accessible to the public was a key point to that but it appears all the elements are there to clearly define what the developer needs to establish in terms of that retail space. Com. Paulsen: • If they put in a vending machine and say the room is open to the public, it has a vending machine. That is not the same as having a restaurant that is open to the public; do we look at that kind of thing too? If we allow a hotel to go up higher and put a vending machine in the back lobby, that is not really a public amenity like a restaurant would be. Chair Takahashi: • Asked how much floor space needs to be allocated to a first floor retail project, for example the hotel has a lobby and other elements and then there is the restaurant which is what was counted as the retail element associated with that. How is it defined in terms of how many square feet must be retail of th e total first floor to be compliant? Benjamin Fu: • Said for such a project there would be ancillary uses associated with a principle use itself. They will look at 50 % of overall floor space; if the definition can be justified for the use where the retail and the sales exceed 50 % of that floor area, th e argument can be made that it's retail use. Cupertino Planning Commission 6 April 26, 2016 Chair Takahashi: • If there is allocation of that space along the lines of the daycare, where there is initial retail that opens up and fails; what are the provisions of the city to enforce something actually being there that granted the bonus in the first place? Benjamin Fu: • The bonus would have been given based on the establishment and the maintenance of that particular use or facility. In this particular case we would ensure that the particular use is maintained. If the operation goes out of business, we will want to see earnest effort in trying to replace that particular space. Approval is a condition of approval; and that was the existing previous condition for that approval so we will want to make sure that is being maintained. (If not, fees and fines would be imposed) Com. Lee: • Asked if a child care operator or owner cite that it is not economically feasible or can they apply for hardship that they cannot run the child care facility? Benjamin Fu: • Economic hardship is not justification; however the operator or developer wants to amend the project by either amending the condition of approval or amending the approval in the first place to find a replacement to justify the original approval. They can come back in and go through the process to come back to the decision making board to make that justification. They would come to the city even though it is a state mandated requirement. Because it is part of the original condition of approval, if you want to amend the condition of approval you have to go through the process. Com. Paulsen: • Said a restaurant owner could claim they can't afford to hire a cook to commute to Cupertino, and they would have to put in a floor of vending machines. Would we fine the hotel for doing that or force the hotel to hire someone at a higher salary so they could afford staff to commute? You always try to look at the worse that could happen. Coleen Winchester: • Relative to forcing a property owner to hire at a living wage we do not have that provision in the Cupertino Municipal Code; that is something someone might want to consider someday. With respect to forcing a restauranteur to pay increased wages to staff that is not something; I can 't say would never happen, but it very unlikely that would be the scenario. With respect to replacing the ground floor with vending spaces, again a nice hotel is not going to want to have 50% of their square footage of vending machines because it is ugly and would cut against their business model, but on each scenario the city would look at to determine; the goal always is to ensure compliance and obtain compliance and especially in situations where people have received a bonus and received incentives for doing something. Under those circumstances the city would take whatever action necessary to ensure that people comply with whatever they were supposed to do and the representations that were made with respect to a project. The short answer is hypotheticals are always difficult; but as far as forcing someone to pay a higher wage is highly unlikely and each situation would need to be considered as far as what is anticipated for the use of the particular project. Com. Lee: • Said she felt the front yard trees should not be a requirement for additions for the second floor; many constituents do not like it. The privacy planting trees are suitable but the front yard tree can do a lot of Cupertino Planning Commission 7 April 26, 2016 damage to the sidewalks for people's health and walking on the sidewalks. Do others feel the same way? Com. Paulsen: • Saich ere we e eopte-o-n-Irts-stre-e-rwh-o-dun-'t-Jtke-tre-e-ntt11ll-;-tlreynre-n-ot -bnitding a secomrsmry, a tree is a much more preferable solution than a fence or a big screen. There are trees that Public Works selects that do not cause sidewalk damage and have a root structure design; sidewalk damage isn't the issue; it may be a personal aesthetic issue, some people just don't like trees . I see a valid point; trees do screen things beautifully; they add value to the city and the home and it is a good thing to have . Gian Paolo Martine: • It is already a requirement that you plant a front yard tree; the purpose of this addition of the language was to add that requiring also be put on the covenant; it has been an established practice since we had the front tree as part of the ordinance itself. For any new two story home, second story addition , or addition to a second story, it is a requirement to plant the front yard tree. Com. Lee: • Said she didn't like the front yard tree requirement; and would like to know ifthe Planning Commission would consider making a recommendation to City Council that in future revisions of privacy plantings or RI Ordinance which they were considering for discussion, that they use this as it is going to City Council next month . Do any have strong feelings on front yard trees? Com. Sun: • Said for the agenda for tonight they should focus on the clarification of existing code instead of making a recommendation on the policy, whether preferred or not. In this case in the future if there is a particular case discussing the front yard tree we can fully use that particular case, whether I agree with you or agree with Com. Paulsen , either way it is a particular case coming to us to discuss it and maybe we can make a recommendation to the City Council , but for tonight's discussion I don't think it appropriate to make a recommendation for a change to our policy. Com. Paulsen: • This is an emotional issue for a lot of people and merits further detailed consideration on our part. Rather than doing it tonight, said he would be glad to talk it over and hear more about issues and perhaps staff could provide some background on the reasons for that and we could discuss it and agendize it for a future meeting. Vice Chair Gong: • Said she agreed it was a different discussion, one that is valid and warranted but it is a different discussion than what is going on which is the clarification of the verbiage of the Code. Chair Takahashi: • Said he favored additional plantings especially ifthe city can recommend lower maintenance and lower impact trees, but he agreed that it is a subject of the RI Ordinance and there was discussion of trying to put that on the work plan; and this is a slight deviation because he was not present at the beginning of the meeting and the minutes from that meeting were incorrect in that some of his comments made at the meeting were attributed to other commissioners. He requested that a review of the video for March 22 11d be done to make sure the commissioners ' comments were attributed to the correct commissioner at the March 22"d meeting. Cupertino Planning Commission 8 April 26, 2016 Colleen Winchester: • Said there would be a motion for reconsideration of the approval of the March 22nd minutes; there will be a motion for reconsideration of the minutes and the member of the majority, the person who moved to approve the minutes, will move that they be amended with that particular clarification . For purposes of clarification, said that the agenda fairly noticed this particular provision, and for purposes of the Brown Act and for purposes of discussion of that particular section, it is within the Brown Act to notice, and the noticing for the agenda whether the Commission believes that what we were talking about is consistency and clarification as opposed to changing policy; I think that is a separate issue. Just wanted to make sure that is clear. Re-spoke; for purposes of noticing and the notice that went in the newspaper and was also for this hearing and on the agenda, Section 19 .28 .120 was that particular provision and amending that Code was on the agenda. The agenda and noticing did state that the purpose of these revisions were for purposes of clarification and for consistency with State Law. There is some slippery slope to go beyond what was noticed, but it was fairly published and fairly advertised and noticed; however, if this Commission believes that we should be looking strictly for consistency and ensuring consistency with the State Code, then that is a different issue. Com. Paulsen: • Said ifthere is an issue they can all feel free to talk about, he didn't want any commissioner to feel like he or she has been shut down; he has strong opinions but that doesn't mean he is not interested in hearing others' opinions and have a free discussion. If that be the case, they could talk more about trees. Chair Takahashi: • Said they felt they could have a free discussion, although he felt some concern from the standpoint of a slippery slope. He did not want it to appear that they are making a policy change that some residents might construe that they weren 't supposed to do. Asked if it was appropriate for them to discuss this without making an amendment and possibly recommending further discussion and/or revision of the Rl Ordinance. Where is it currently? Is it in the Rl Ordinance? Benjamin Fu: • Said it is in the Rl Ordinance. Com. Paulsen: • Said it was an issue where a lot of people shared Com. Lee's views, and it would be wise to discuss it further and let the public know they are talking about it; and come and share their views. Their discussion would have an impact on a recommended change to the Council, but that is not what they are doing tonight. Com. Lee: • Said she didn't know why they couldn't talk about it or have an opinion , because it will be the people who care about it, and they may discuss it further in preparation for the City Council meeting next month. If they cannot attend , they can email the City Council members. Chair Takahashi: • Said they don't believe they should be restricted from discussing or commenting on this particular element tonight. There was initial discussion and then we clarified we should feel free to discuss it in more detail so we know we are initially based on the data we have which is relatively limited on this element where we think we currently stand on it. Cupertino Planning Commission 9 April 26, 2016 Vice Chair Gong: • Clarified that she saw it as a separate issue from what they were looking at now w ith the redlines; said she did not mean to imply or state that it is not a valid discussion to have. It is two separate discussions. ~~~~~---~ns;,..---~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~___;_ • Said she wanted feedback on whether the street tree the front yard tree should be required. Com. Sun: • Relative to the tree , on one part Com . Paulsen likes the trees; on the other reality , every household if you live along the major streets, the tree roots do damage to the sidewalks sometimes, especially if you ride bikes. Said he did not want to make a preference to judgement; but was hopeful he could wait for the particular case and use the case to make the recommendation or the law. The focus should be on tonight's agenda; if it is anything over the definition, it is not their job to act on at the present meeting. Vice Chair Gong: • Is it true that the proYision is there and yahoo are just asking fer the elarifieation to put it in the eovenant? The provision is there but also there is the ability to look at an individual case if it comes about and the requirement to plant the tree is there but if the owner comes and says ifl plant it here this will happen; there are considerations that are made, it is not just a blanket you must have a tree. Has it been done? Gian Paolo Martire: • There are various ways of doing that. It has been done but there has to be a clear reason why you can 't plant it. Chair Takahashi: • There is added cost for the applicant because they have to get the arborist. Gian Paolo Martire: • Said there were many levels through their department even when you do two story homes . Also one of the jobs of Public Works is to ensure that these front yard trees are-in are not in competition not only with existing street trees which are city owned and maintained, but also sidewalks. They are not going to want to see a certain tree planted two feet from the sidewalk, in anticipation of what was said, root damage to the sidewalk. Chair Takahashi: • Said from his neighborhood; the city trees are by far the biggest issue with regard to any sidewalk damage, resident's trees front yard trees tend to be significantly offset from sidewalks; if that is reviewed in the plan as well, it is not necessarily a legitimate concern that a front yard tree is going to cause sidewalk damage regularly. Colleen Winchester: • With respect to street trees and city trees , Chapter 14 deals with street trees ; it is a slippery slope, trees can take up an entire night of discussion and you have to stick to what has been agendized and noticed . For purposes saying we would like to revisit this particular requirement. It is within the commission's purview to state they would like to re visit that particular requirement. Com. Lee: • Said she felt the property owners should have a choice because some trees can cause damage to the house and can create a lot of maintenance issues and she felt their landscape requirements are Cupertino Planning Commission 10 April 26 , 2016 sufficiently good enough for aesthetics and there are nice bushes that are water and drought resistant and that is good enough. • Said she did not feel there should be a requirement to have a lot of property owners who have built new houses or demolished an old house and build a two story house, constituents object to having to have a front tree to reduce the massing; there are already a lot of design elements in place to reduce the massing and the bulkiness our second floor stories . Aesthetically it is a good design with staff to come up with really nice design for two story houses ; said she did not feel the need to hide them with huge trees and cause a lot of maintenance issues. The choice for the property owner is a good thing because they have a lot of green building requirements, landscape ordinance requirements, design issue FAR to follow and the street tree mandate for a front yard tree, it is not necessary . Property owners should have a choice for a front yard tree; sufficient bushes and drought tolerant plants would be sufficient. MOTION: Motion by Com. Paulsen, second by Vice Chair Gong, and unanimously carried 5-0-0, that the Planning Commission recommend that the City Council adopt an ordinance amending Title 1, Chapter 1.10, to add Section 1.10.055 "Recording Notice of Violations"; amending Title 19, Chapter 19.08, Section 19.08.030 "Definitions", amending Chapter 19.12, Section 9.12.080 "Application Process" and Section 19.12.180" Expiration, Extension and Revocation" amending Chapter 19.28 Section 19.28.120 "Landscape Requirements" amending Chapter 19.32 Section 19.32.010 "Purpose", repealing and replacing Chapter 19.56, "Density Bonus", and amending Chapter 19.104 to add Section 19 .104.205, "Message Substitution"; related to permits, procedures, and requirements of the code to conform to law, ensure internal consistency and provide clarification. MOTION: MOTION: Motion by Vice Chair Gong, second by Com. Sun, and carried 3-0-2, Com. Lee and Chair Takahashi abstained, for reconsideration of motion to incorporate changes in the March 22, 2016 draft minutes of the Planning Commission relative to Commissioners' remarks. Motion by Vice Chair Gong, second by Com. Paulsen and carried 4-0-1, Com Lee abstained, that the draft minutes of the March 22, 2016 Planning Commission be adopted as amended; ensuring that comments by Chair be attributable to the appropriate speaker. 4-0-1 Com. Lee abstaining. OLD BUSINESS: None NEW BUSINESS: None REPORT OF THE PLANNING COMMISSION Environmental Review Committee: No meeting. Housing Commission: No meeting. Economic Development Committee Meeting: No meeting. Mayor's Monthly Meeting With Commissioners: • Vice Chair Gong reported on April 6th meeting: Sustainability Commission: Looking at green streets and cleaning the water before it gets to the bay. Library Commission: Building a gateway to the city; a ph y sical place in the Library that updates citizens on what each commission is doing. They are also producing tech talks . Teen Commission: Had a booth at Cupertino Day, publicizing what Teen Com. is in volved in Public Safety Commission : Wants to develop a course to train kids in self-defense. Cupertino Planning Commission 11 April 26 , 2016 Fine Arts Commission: • There were 113 applicants for young artists ' awards ; theme Valley of Heart 's Delight; art is displayed in the library. • Utility Box Painting: Boxes will be displayed along Stevens Creek Blvd. • D1stmguished Artist Award: being expanded to include Calling all artists, poe s , au ors, Musicians. • Sponsoring China photography display • Beginning Mainstreet art selection TIC Commission: Hackathon ; also designing a safety seminar for kids Parks and Rec: Bunny Fun Run was well attended Stevens Creek Corridor Plan: Underway; in conjunction with the citywide Master Plan Mayor's Meeting: Mayor Barry Chang plans to build a pool and performanee eenter in Memorial Parle and presen'ing Blaekberry Farm as a worldwide unique environment studies eenter. Mayor Chang voiced that he would like to see something like the preservation of Blackberry Farm as a worldwide unique environmental studies center. Asked all Commissions to present what they want to see done in the next 9 months to submit directly to City Council. Stated that the building of the new Civic Center City Hall Redevelopment Center is presently on hold. The VTA is allocating 38.6% of the upcoming tax measure to West Valley. Report of the Assistant Director of Community Development: None ADJOURNMENT: • The meeting was adjourned o next Planning Commission meeting on May 10 , 2016, 6:45 p.m. Approved as Amended: June 14, 2016