PC 09-13-04
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
6:45 P.M.
CITY OF CUPERTINO PLANNING COMMISSION
APPROVED MINUTES
SEPTEMBER 13,2004
CITY HALL COUNCIL CHAMBERS
MONDAY
The Planning Commission meeting of September 13, 2004 was called to order at 6:45 p.m. in the
City Council Chambers, 10300 Torre Avenue, Cupertino, California, by Vice Chair Gilbert Wong.
SALUTE TO THE FLAG
ROLL CALL TAKEN AT STUDY SESSION
APPROVAL OF MINUTES:
Minutes of the August 9,2004 Study Session:
Com. Chen:
Page 1, roll call: Change last "Commission Wong" to read "Commissioner Chen"
Vice Chair Wong:
Page 17, last sentence, delete the word "original"
Motion:
Motion by Com. Chen, second by Com. Miller, to approve the minutes
of August 9, 2004 as amended. (Vote: 4-0-0; Chair Saadati absent)
Minutes of the August 17, 2004 Joint Study Session:
Motion:
Motion by Com. Cheu, second by Com. Miller, to approve the minutes of the
August 17,2004 Special meeting as presented. (Vote: 3-0-1; Chair Saadati
absent; Com. Giefer abstain)
Minutes of the August 23,2004 Study Session:
Motion:
Motion by Com. Giefer, secoud by Com. Chen, to approve the August 23,
2004 study session minutes as presented. (Vote: 4-0-0; Chair Saadati absent)
WRITTEN COMMUNICATIONS: Vice Chair Wong reported two letters received relative to
Item 4.
POSTPONEMENTSIREMOV AL FROM CALENDAR: None
ORAL COMMUNICATIONS: None
Cupertino Planning Cornmission Minutes 2
September 13, 2004
CONSENT CALENDAR
2.
TR-2004-04
Li Mei Yee
8062 Park Villa Circle
Tree removal of a protected tree at a planned residential
development. Postponed from Planning Commission
meeting of August 23, 2004.
3.
2004-05
Nathan Lewis (Westridge
HOA) 10166 English
Oak Way
Tree removal of a protected tree at a planned residential
development. Postponed from Planning Commission
meeting of August 23, 2004.
Com. Giefer:
· Asked if the applicant Park Villa Circle was representing the Homeowners' Association.
· The action that will be taken is enforceable by the homeowners association, concern is we are
approving it and the Homeowners' Association mayor may not support the individual owner.
Mr. GiIIi:
· The homeowner originally filed without the Homeowners' Association approval; he provided
a letter afterwards stating they had approval. Normally it is standard protocol that the
Association files, but in this case it went backwards but has been clarified.
· In discussion with association representative, there was no concern raised about the approval
or the replacement trees.
Com. Giefer:
· They agreed to support staff's recommendation on this one.
Motion:
Motion by Com. Giefer, second by Com. Chen, to approve Applications
TR-2004-094 and TR-2004-05 ofthe Consent Calendar. (Vote: 4-0-0;
Chair Saadati absent)
PUBLIC HEARING
4.
DIR-2004-06
David Perng (Tian
Hui Temple) 7811
Orion Lane
Appeal of a Director's minor modification for minor
additions to an existing church. Postponedfrom Planning
Commission meeting of August 23, 2004.
Tentative City Council date: September 20, 2004
Colin Jung, Senior Planner, presented the staff report:
· Application is for appeal of Director's approval of a minor modification to allow minor
additions and a one-story entry porch to an existing church and ancillary building at 7811
Orion Lane.
· Appellants are Peter Zen and Dar Jen Huang, residents of Wallin Court and reside west of the
property.
· Church was built in the county in the 1960s; Cupertino annexed the lot and surrounding
properties in 1980; subsequently the church has been surrounded by additional single family
developments, particularly on the northwest and east sides.
· The current owner has cleaned up the site of overgrown landscaping and severely pruned back
other parts of the landscaping which has exposed more of the site to adjacent neighbors.
Cupertino Plarming Commission Minutes 3
September 13,2004
· The property owner began demolition and construction activities without city permits. The
owner's representative applied for planning approval which was for the exterior modifications
to the building and some small additions, which was granted in June 2004.
.. The approved plans did not reflect the extent of all the construction activities, nor did the
applicant obtain a building permit before continuing with construction.
· The neighbors filed an appeal of the planning approval and construction was halted.
· Discussed appellant's concerns as outlined in the staff report.
· Reviewed the site plan.
· Said that the previous approval of the property in 1988 the parking lot was striped for 42
parking spots which hasn't changed in the applicant's plan; in the 1980 approval there was a
requirement that they increase the parking to 55 stalls which did not happen; the applicant is
asking for the original 42 parking stalls.
· Noted that the church was not approved in the county, nor the city; there is no use permit on
file and staff is relying on one previous planning approval that applied to the sanctuary
building and showed a structure there; a requirement for 55 parking stalls, and that they limit
their activity until II p.m.
· The appellant has supplied some additional information including photos and has made them
available.
· Staff is recommending that the appeal be denied, but require that the applicant apply for
additional Director's approval for any other minor changes, to address those changes not
reflected in the existing approved plan set as well as a Director's approval of the landscape
plan; and that the applicant prepare the landscape plan in consultation with the neighbors.
Com. Miller:
· Expressed confusion about the use permit; it was approved in the county and now is in the
city; so we assume the use requirements were approved in the county, or how is does it work.
Mr. Jung:
· It becomes difficult because when a use comes over, we typically need to enforce the county's
permit if they required one for the site, and for something this old, we have not been able to
find permits on record with the county, for this particular church.
· The search is continuing but nothing is available for this hearing.
Com. Miller:
· What guidance is used to determine whether they are or are not within an acceptable use to
Cupertino.
Mr. Jung:
· Typically when we talk about the intensity of the church use, we look at the actlvltles
themselves, particularly in the amount of parking that was required for the site. Parking is
based on number of sanctuary seats, one parking stall for every four sanctuary seats and any
other activities in any other buildings aside from the sanctuary are considered ancillary
activities and don't add to the peak demand. They are ancillary activities that take place either
before or after workshop services and the parking requirement is solely based on the sanctuary
seats.
· As shown in the diagram, there are two buildings, the sanctuary building is smaller than the
social hall, and the previous drawings date back to 1980s and show a parking lot in that
configuration with 42 parking stalls.
Cupertino Planning Commission Minutes 4
September 13, 2004
Com. Miller:
· Is it appropriate when they are coming in for modification such as this to require a use permit.
Mr. Jung:
· It depends on the extent of the modifications; if someone wants to change out the window or
change a roofline, it typically doesn't require a use permit change.
· This is a church, was a church, and has continuous use as a church with varying levels of
activities; staff considers the level of activity fairly minor in nature and felt it was appropriate
to approve it under a Director's minor modification.
· Relative to traffic, said staff feels it would be an issue only if they are proposing a level of
parking already presently permitted on the site.
Com. Chen:
· With the use permit issue, if there are problems after we approve this process or give the
Director authority to approve all the changes, and the use or noise becomes an issue, is that a
code enforcement issue or can we at that time ask for a review?
Mr. Jung:
· It is a code enforcement issue; if you wanted to put in the conditions of approval that if
parking becomes a problem it will return to the Planning Commission, the Planning
Commission has done that in the past.
Com. Chen:
· What about the use, the hours of operation and the number of people allowed in the
congregation; the time it is allowed for them to gather; can that also be part of this approval.
Mr. Jung:
· The controlling factor is the number of parking stalls, previously they had 42 parking stalls;
according to the parking code it would result in 168 occupants; the applicant said in their
presentation they were significantly lower numbers of approximately 120.
Mr. Piasecki:
· Said hours of operation can be specified.
Com. Giefer:
· Questions about the past, how they operated in terms of beginning the demolition and
construction prior to having appropriate permits; is the project currently in hand and do they
understand what they have to do.
· Said when walking the site, she observed several open deep holes that were footings for
various things not yet constructed; she said she felt that the area was not under control because
of the many obstacles that could cause injury.
· Asked if the City required an easily identifiable sign in English for the fire and police
department safety in front of the building.
Mr. Jung:
· Said he felt there. was no malfeasance, but was a misunderstanding and an ignorance of proper
city procedure as the main root cause.
· Said the Building Department placed a stop work order on them; they complied, but probably
did not cover the holes up.
Cupertino Planning Commission Minutes 5
September 13,2004
· Said he did not think the building was currently being used.
· Relative to signs, said he did not recall seeing any signage on the property; however, the
property was in a state of non-use at the time.
· Commented that signage is the last thing that occurs to people unless they are a developer.
Vice Chair Wong:
· Said he had no questions.
Cherngye Hwang, Secretary, Tian-Hua I-Kuan Tao Foundation, owner of the church:
· Illustrated a Power Point presentation, outlining the background, purpose and functions of the
organization.
· Reviewed the proposed remodeling plans.
· Apologized for not applying for a permit before demolition and construction and (landscaping
- overdoing the tree trimming, ivy branches, etc.)
· Discussed the view and adjacent neighbors' privacy and said he was working with the
neighbors to try and work out an acceptable plan for both sides with Mr. Zen and Mr. Huang.
· Regarding parking and traffic, as staff mentioned, currently the most attended activity is
weekly Sunday seminar, maximum of 80 people, including children. Restriping the 42
existing parking spots should be adequate because many guests come as a family; lunches are
also provided for the particular activity and there should not be any traffic congestion since
there are different eating times and people will not leave the premises all at one time.
· Want to work with the neighbors to be a good neighbor, working in the community; your
concerns are our concerns.
· Safety and security: it is a gated property and don't want people trespassing.
Com. Chen:
· Referred to the site plan; the reason for moving the entrance is to create access for disabled
persons; for those 20 feet between the two buildings would you not be able to accommodate
that change.
· By making this change, you actually take some space away from the congregation; add a
bathroom; remove some gathering space; but not increase the building size.
Mr. Hwang:
· Said it would be difficult, and illustrated where they park, and said he felt it was a more
appropriate place for the entrance.
· It is just a combination of several considerations.
· Not increasing the building size, but blocking the library and the reception area; feel they need
more space for guests to sit; they are reducing the entry space also. The use permit will have
to reconsider how many people they can allow, which he felt was less than what was
previously granted in the past.
Com. Chen:
· Asked if other than Sunday morning, Sunday afternoon and Wednesday morning, is the
building vacant.
· Is applicant willing to work with some restrictions in terms of the size of the congregation and
number of people allowed on site at one time.
Mr. Hwang:
· That is the current plan; weeknight gatherings would be staff meetings, perhaps 5 people but
no public gatherings.
Cupertino Planning Commission Minutes 6
Septernber 13, 2004
· Sunday night activities are inside the building.
· Said they would follow rules to be a good neighbor.
Dave Perng, architect:
· Answered questions about the location of the ducts.
Com. Giefer:
· Asked if the applicant considered having the ADA restroom in the illustrated area, so it would
be further away from the neighbors and the fenceline. Said it appeared that it would be more
accessible because there was an uneven patio in the other area and would be difficult for
handicapped individuals to navigate.
Mr. Hwang answered Commissioners' questions:
· Would not operate the air conditioner on 24 hour basis; too expensive; only when absolutely
necessary.
· Special events held would include hosting special seminars, mostly outside regular hours, once
per quarter.
· Said he did not feel it was appropriate to hold festivals in a religious facility/area.
· Last two special events had attendance of 50.
· Want to have translation classes Saturday afternoons.
· Two basketball courts; one to remain, one to be removed.
· Neighborhood children use basketball courts now, the church hasn't used them yet.
· Relative to the excessive tree trimming, he showed where the ivy was cut back and trees
trimmed to the roof as high as the gutter.
· Have met with Mr. Zen and worked out an agreement; propose to put together a provisional
landscape plan, and consult with Mr. Zen and other neighbors before it is presented to the
Planning Commission.
Peter Zen, 1066 Wallin Court, Appellant:
· Reviewed the written communication he submitted as the Planning Commission had just
received it and not had ample time to review it.
· Said he had nothing against having a church in the neighborhood; not a religious issue, mainly
a land use issue.
· Difficult to fit a church in the middle of a residential neighborhood; church is surrounded on
all sides by residential single family homes and is located on a small side street.
· Things can be worked out if the church works in more active ways with the neighbors; the
church did a lot of things without talking to the neighbors, causing a lot of damage.
· The church was established in 1960s, since then many houses have been added, traffic has
changed, time to take a fresh look and do a reassessment.
· The proposed changes are significant changes; they drastically impact neighborhood
properties, and are reason for a public hearing to !lush things out and not have future surprises.
· There are now two separate buildings, each with its own entrance which is not a minor change.
· They should not be handled through purely as Director approval because they are not minor
changes, but major impact to the neighborhood.
· The plan has many inaccuracies such as items not appearing on the drawings. How can the
city approve incomplete and inaccurate plans?
· Asking for a public hearing; make sure the church people talk to the community to get all
points of view; make sure people's safety and private issues are taken care of; maintain the
Cupertino Planning Commission Minutes 7
September 13,2004
integrity, keep a really nice residential neighborhood and work out a good arrangement with
the church; it requires a lot of cooperation between the two parties.
· Said replacing the severely pruned landscaping was a minor consideration because it would
grow back; but he was concerned with how the church fits into the whole environment.
· Said he felt putting the entrance on the north side would be detrimental to the neighborhood,
because it put a main entrance in the back.
· His back yard and all the other backyards were facing a private street and a public area.
· He asked the church to talk to all the neighbors but it has not happened yet.
· Said he was opposed to the changes proposed; putting the front door on the north side.
· It is not a minor change; the structure they are proposing is more than 19 feet high; it projects
20 feet, the narrowest part is 28 feet wide, about 28% off the center.
Vice Chair Wong opened the public hearing.
Doll Zen, Wallin Ct.:
· The temple wants to add a big entrance door to the back end of the building; currently there
are no windows or doors.
· Why does the temple want to make this change; what is the reason they cannot remodel the
current entry door to accommodate their needs.
· If they add a door at the end of the building, it turns the back yard into a front yard and our
back yard is facing the front yard, or the adjacent back yard facing their front yard; we face the
oncoming traffic, noise and they take away our right to back yard privacy.
· They can do the handicap ramp closer to the side of the building in the front; it is more
reasonable to access those restrooms.
· 42 parking lots; established in 1960; how much environment, technology, building codes and
regulations have been changed within the half century.
· When they changed ownership the city should have re-evaluated their intention to use the
property before they give any permit or neighborhood public hearing,
· A decision cannot be made saying it has no impact; don't think 42 parking spaces is still valid;
they should have less spaces.
· Special events will be held which will create noise in neighbors' backyards.
· Asked the Commission and community to think about having their backyard neighbors put in a
big door facing their backyard and whether or not it would have an impact.
· Gated property: before the gate was never closed; now they close and lock it, which is an
insult to the neighborhood.
Nitin Shan, Orion Place:
· The people from the church have been pleasant and good neighbors so far; there has been a
tour of the church.
· Was not notified about the change of the entrance from the southside to the northside; other
than one letter, the plans and details were shared by a neighbor.
· Reason why this entrance changing to the north side is of concern is that effectively the
distance between my home and the entrance area, is now roughly one-third of what it was.
· Concerned about access, noise.
· Was notified about the ramp for disabled access; the concept was to have it between the two
buildings to allow access for the disabled to both buildings. Said he did not understand the
details, but thought the purpose of the ingress was to give access to both buildings.
· Summarized that he respects the beliefs and background of the church owners, is somewhat
concerned about the construction at the entrance area, which seems like a large entrance area
Cupertino Planning Commission Minutes 8
September 13, 2004
to be put in the north side; and also concerned that when people leave the building they will
congregate closer to his and others property, negatively impacting the neighbors' privacy.
· Main concern is to have an open dialog to share information.
Grace Lin, West Mill Ct.:
· Said she was a participant in the Tao Youth Camp and youth classes.
· Youth class is held once a month; small class focused on limited amount of people; youth
camp held every year.
· Discussed the value of the youth camp and classes held at the temple.
· Outdoor activities are limited; minimal disturbance to community.
Jenny Chang, Menhart Lane:
· Spoke on behalf of the senior group to allow them to remodel the temple.
· The seniors do not drive, but walk to the church; not adding to traffic; they need a place to go.
Richard Madden, Imperial Avenue:
· The church has offered their facilities to use as a center for first aid classes, CPR; which is
indicative of their beliefs that they want to help their community be better.
· There is a desire to add to the community around the facility and understanding of information
about emergency preparedness.
Debbie Huang, Wallin Ct.:
· In 2002 the Community Congress Report which is the city officials and Cupertino citizens
participated in discussion about Cupertino's general planning, said the goal was to best meet
the needs of the residents and stressed the importance of community participation. The report
stated that the people who live here are the heart of Cupertino.
· Do not force owners to lose their privacy; respect neighborhood wishes, neighborhood
planning by neighbors.
· We have several questions about the plans because confusion remains.
· Said the plans submitted have several discrepancies with the official records, it was approved
with minor changes by the Director; however two ofthe major additions are not up there.
· Don't know if plans have been submitted, what kind of hazard materials will be used; right
against the bushes and trees, and is concerned about safety.
· If there are any changes, it is not on the plan; we want them to do it the way it is.
· The backyard/front yard question; from the south to the north.
· Discussed the location of the handicapped spaces.
· There are so many conflicting points.
Carol Subrhmanyam, Orion Lane:
· Was not present at the meeting.
· Opposed the project.
· Vice Chair Wong read content of speaker card:
"I am not able to attend tonight's meeting, but wanted to join other neighbors in vOlcmg
concerns regarding the Tian-Hui Temple at 7811 Orion Lane. I am particularly concerned
about the traffic congestion that would be caused by 42 cars going in and out of the small
residential street. We recently had our house for sale, about one-third of the people who
viewed our home, stated that the reasons they were concerned or they were not interested was
because of concerns about traffic congestion and the potential of street parking. Most other
churches in the community are located on 4 lane roads with adequate turning lanes; it seems
Cupertino Planning Commission Minutes 9
September 13,2004
unreasonable to allow the Tian Hui Temple to go forward with their plans when it would have
a negative impact on the wonderful neighborhood."
Henry Teng, Foster City resident:
· Said his wife worked in Cupertino.
· Spoke in favor of the remodel.
· Not a member of the foundation; however, knows the chairman of the foundation (Applicant)
who founded the non profit organization. The foundation always makes good to the
community.
· Shared information about the applicant's philanthropy in the community and Bay Area, and
recognition received.
· Applicant and the foundation help the community be a better place.
Chao Yue Liu, San Fernando Avenue:
· Is a temple member.
· Believes education comes from the family, schools and the community where there are places
for worship.
· It is a strong intention to have the place for the family's spiritual guidance; need that guidance
to achieve more harmony between people and the community and the world.
· Recognized the temple members in the audience and said they have good intentions and
strongly support the plan, the renovation project, and asked for permission to continue
remodeling.
Chihua Wei, Willowbrook Way:
· Executive Director of Organizational Special Needs Families, which helps handicapped
children, adults and their families.
· The adults help and also send their youth to help the handicapped children at OSF.
· Said his comments would not be about architecture, but he would address the issues from a
humane perspective.
· He said living in the world, people get hold of a lot of things and sometimes have to give
things up; the community talks about love, mutual understanding and helping each other.
· Said when his neighbor built a second floor and forced him to close his door in order to take a
shower in privacy, he was in shock, but still remained friends with the neighbor because they
got beyond that barrier and still understood each other.
· He said he felt the church is willing to do everything to preserve the neighbors' privacy.
· Believes that the value of where you live is who your neighbor is; and he felt they would be
proud to have this group of people be their neighbors.
· Encouraged the church people to talk with the neighbors to solve the concerns. The temple
will provide a wonderful place for handicapped children, adults, families and seniors to gather
and be part of the community.
Kan Wu, Sandhurst Drive:
· Has been a member of the temple for over 10 years and currently a volunteer.
· Spoke of the values taught at the temple; most valuable lesson to teach generations is respect.
· Not concerned about excessive noise from the children as they are indoors the majority of the
time.
· When future activities are set up for teenagers, they will consider the neighbors' privacy.
· Are part of the neighborhood and want to make the community better and hope that the
neighborhood will accept them as part of the community.
Cupertino Planning Commission Minutes 10
September 13, 2004
Ephi Dror, Wallin Court:
· Concerned about the level of activities vs. control, current numbers of cars, members,
occurrence of activities, meetings, etc.
· It is a contradiction; as they become more successful, the numbers will increase relative to
number of meetings and classes held to accommodate their members.
· Somewhere it needs to be stated how to control what is done at the temple; to ensure that they
are adhering to the conditions and not going beyond what was granted.
· Just by saying they are minor changes, doesn't make it minor, some are very major changes.
Aruna Natraj, Oragrande Place:
· Main concern is about the structure, the entrance on the back which he said he was not aware
of it, and he is impacted.
· Concerned that he had not seen before they had changed the entrance from the front to the
back.
Rajani Balaram, Orogrande Place:
· The entire back stretch is a common fence between our back yard and the church.
· Have lived there for 10 years, harmoniously with the church and hope to continue to do that.
· I have no problem with their activities as long as they remain at the level being proposed now.
· Concern is the movement of the entrance to the back, because that is my back yard; I can see it
over the fence and the building that exists now is just a plain wall, so it is not visually
obtrusive but once they put the portico on and people are coming in and out of that, my
privacy is gone; I really would like that not to happen.
· Other alternative is that I would like them to discuss with us the possibility of raising our fence
which is now separating it. Originally the church had a separate fence of their own which fell
apart and we had our own back fences; so there were two fences next to each other. Our fence
is now being used as the common fence since theirs has been taken down; which I don't have a
problem with, but wanted to make sure that the fence is high enough so that the view from our
back yard does not allow us to be looking at this new portico which is going to be more
substantial.
· There is a screen of trees, and I want them to commit to not doing anything to those trees
because the upstairs of our house looks into their parking lot.
· I do have concerns about privacy and basically the number of people who will be using the
parking lot and using that entrance to enter.
· There are concerns about property value, but the existence of the church in that place, I have
no issue with that.
Lihuei Wei:
· President of Organization of Special Needs Families (OSF), located at St. Jude Church, with a
membership of about 300.
· The temple is actively involved with teaching aids, volunteer coordination, and provides
financial support to the OSF.
· They provide enrichment programs for children and adults with special needs and collaborate
with other agencies supporting various activities in the city for special needs families.
· Thanked them for the opportunity to practice what they learn from the temple.
· The members are caring and self disciplined, well mannered, helping the children with special
needs.
Cupertino Plarming Commission Minutes II
Septernber 13, 2004
· Encouraged the Planning Commission to allow the group to remain in the community to teach
and help it be a better place to live, not only for this generation but for generations to come.
David Rosenblum:
· Resides out of the area but has friends who are members of the temple.
· Emphasized that the facility is used only a few days a week.
· Issues of traffic and congestion should be able to be worked out.
· Some people are concerned about property values; but said he was puzzled about comment
about property value declining because the temple has not been used for some time.
· Encouraged everyone to work together.
Jean Fan, Oak Meadow Court:
· Said that she worked in the computer industry for 12 years; the Silicon Valley is a high tech
area with a lot of competition; and stressful atmosphere for workers.
· Said that the religion has provided her principles and values to assist in her work life and
personal life.
· Hopes that the temple can remain in the area to help people in all directions.
Steven Wong, Felton Way:
· Supports the proposal.
· Member of the temple.
· Learned values that beyond monetary contribution to community, people need to contribute to
the peacefulness and values of the community.
· Wants to bring the values taught by the temple to the community to help others.
· Hopes the landscaping and fencing will help to reduce concerns of the neighboring residents.
· The temple can help to provide peace and tranquility to the lives of people that live and work
in the community.
Hwa Yu Lin, West Hill Court:
· The church group has devoted themselves to improving the temple.
· People move to Cupertino because of the good schools and it is important that children be
responsible and patient.
· The church provides valuable teachings to the children and adults.
· Because of language barrier of some church volunteers who don't speak English there may be
some misunderstanding between the neighbors.
· The organization wants to be open to the neighbors and sit down and discuss solutions to
concerns.
· It is a positive project for the neighborhood.
Sharon Chen, Seeber Court:
· Asked for the opportunity to prove that the concerns raised are not concerns; when you go to a
temple, it doesn't matter if the gate entrance is from north or south. When we go to temple we
use indoor voice and smile; we respect people and God more.
· Explained the values taught by the temple which assist her in her life and help her learn to
respect other differences in the world.
· Allow us to have the chance and also offer us the chance to understand us more so you will
know that there would not be concerns about where the entrances were. Not a concern at all.
Cupertino Planning Commission Minutes 12
September] 3, 2004
Sally Haworth, Derbyshire Drive:
. Addressed parking and traffic issues which were of concern to her and surrounding neighbors
and have not been addressed.
· Questions about building usage have not been addressed as far as how that will further impact
the community for growth.
· How will future festivals, seminars impact the neighborhood relative to congestion and
parking.
· If the guidelines to the usage of the building are still in question, that they are determined by a
4: I ratio based on the parking, what happens again with the overflow, and if that turns into a
code enforcement issue, how much bureaucracy will the neighborhood have to deal with if the
parking and overflow and congestion does become an issue.
· The red flags that are being raised are the lack of communication, incomplete plans and all the
potentials for growth, special seminars, camps, festivals, hours of operation, usage of the
buildings, traffic and parking. We need answers so that we can work together and everyone
know what is going on.
Richard Yao, Country Spring Court:
· Said that the religion is good for the community, but the concern is the privacy of the
homeowners and the numbers offollowers will likely increase.
· No one wants to have their back yard face a front yard.
· Before the facility is used, they should be more concerned about the privacy of the neighbors.
· Said he respects the religion and felt they would provide a good service to the community;
however, consideration should be given to another location.
Kay Lam, Byrne Avenue:
· The church was located there before the residents.
· The church provides a good service to families and the community.
· Visited the site and felt there was no concern for noise and traffic.
· When someone purchases a home they should consider what is around the house; the temple
was there first.
· Questioned why everyone couldn't work together and work out concerns.
George Quan, Orien Lane:
· Was not aware of the issues until a neighbor discussed them with him two days ago.
· Echoed concerns of neighbors about the traffic and usage.
· Said what was approved in the past is not appropriate for the present and should be revisited.
· There should be levels of controls on size of the congregation and how often activities are
held.
Sam Chow, Sunnyvale resident:
· Member of the temple.
· Clarified that youth group is held only once every two months with less than 10 members.
· The youth do not have outdoor activities in their classes.
· Said that when he attends the temple in Sunnyvale, he always parks away from the facility and
not blocking home entrances in the area.
· Value of property not only includes physical value of the property but people's values as well;
the temple will bring real value to the community.
· Feels that most concerns can be solved and the temple members want to work with the
community to solve problems and concerns.
Cupertino Planning Commission Minutes 13
September 13,2004
Alain LeRoy:
· Not a resident of the area, but concerned about the situation.
· Is a business manager of a character education school in San Leandro and their main focus is
character education, respect and responsibility.
· There are a lot of good people involved and he felt that they could find a solution.
· Said there is an internal aspect, some very good people trying to do something good; to help
with handicapped; and then external aspect of traffic congestions, and other things.
· The church will add incredible value to your property and when you want to sell yoUf
property, some good people will come to buy your property at a very good price. You can sell
your house much more than the price you have now.
· The people will add values and the internal aspect has to be looked at more seriously.
Vice Chair Wong closed the public hearing.
Vice Chair Wong:
· Asked staff to explain to the public the process of notification of Director's modification
regarding the zoning of this location, and also the concern about the growth of this
congregation; are they limited?
Mr. Piasecki:
· One of the issues faced is that it is an existing church building previously occupied by a
church, which had no use restrictions other than parking; the city inherited it when they
annexed the large area of San Jose.
· The dilemma is there is a church and the owners of that church have certain rights to have
reasonable use of their property consistent with how it has been used in the past. We honored
those rights and we looked at this as simply a physical change to the building.
· A lot of the issues people are raising relate to use controls which would typically be covered in
the use permit and under our ordinances, you are required to have a use permit if you are
building a new church or moving a church into an office building or changing the use. In that
event, we have the opportunity to impose limitations on hours, number of occupants at anyone
time, and activities and control many of the things the neighbors are concerned about.
· The present situation is a pre-existing building, legal non-conforming, it pre-existed the
application of our ordinances. One option is that the applicant could agree to reasonable
restrictions, and they could be imposed; typically that would be done through a use permit.
The applicants could be asked if they would be willing to file for a use permit; I don't know
how long they want to wait and go through a process such as that; and come up with some
reasonable rules under that mechanism to control hours, number of persons, activities. The
city attorney could comment on whether it is appropriate through this mechanism to apply use
related controls. Again, if it is voluntary on the part of the applicant, there may be more
leeway than if it isn't. That is one of the issues that many people are not understanding and
it's a vague concept.
· Suggested asking the applicant if they would be willing to put use related controls under this
permit and/or file for a separate use permit application through which we could apply use
related controls.
Mr. Piasecki explained the process to amend the use permit if there are concerns raised by
neighbors:
· In this case, it is not known if there is a use permit, staff feels there is not one under
Cupertino's laws.
Cupertino Planning Commission Minutes 14
September 13, 2004
· Dealing with a pre-existing legal non-conforming use of a building; when an applicant comes
in and would wish to go fiom a church into an office building, they are changing use and
would clearly need to get a use permit.
· If this was a vacant site, and you wanted to build a church here, and it was zoned for quasi-
public, you could apply for a use permit to build a church. The issue is a pre-existing church
facility, previously used as a church; that church could have expanded, could have created
outdoor gathering places in exactly the location that is being proposed this evening. We don't
have that situation, a very clear situation where a use permit is required. The applicants could
agree to apply for one and come through the process and impose reasonable restrictions, or
they could agree under this permit to apply reasonable restrictions.
Mr. Charles Kilian, City Attorney:
· There is no use permit, we are not amending anything, but requiring them to get a new use
permit.
· At best, what this would be then or at worst, depending on one's point of view, is a legal non-
conforming use and they are asking you to approve certain modifications, which you have to
decide whether that is expanding the non-conforming use. In other words, they are asking for
a porch that is 19 feet high, that may be viewed as an expansion of a non-conforming situation.
You do not have to grant that; you can say that because of this and other issues, you can't
grant that if you feel beyond minor unless they get a use permit for the site; because the church
has heard the concerns of the neighbors and most of those concerns cannot be addressed by
what is before you tonight.
· There are two ways it could be addressed; one way is for there to be a use permit on the
property, then we could deal with hours of operation, traffic, parking, many of the other issues
that are typically use permit; or the applicant can say we don't want to do that, we would
prefer that you impose what would ordinarily be use permit conditions on this approval and we
will agree to abide by them. If they do that, those would become legally binding on them even
though it would not be through a use permit process; and I haven't heard that it was the
applicant wishes to do.
· What is before you tonight, most of the issues that are raised by the neighbors are not before
you, because you are talking about minor modifications of a structure. Moving the doors is
important to the neighbors and adding porch or a tower whatever structure we are talking
about, may impact the neighbors, but the neighbors are much more concerned about other
things, that you can't address tonight unless the applicant wishes to allow you to address those
things. If they do, you can request a continuance to allow them to bring those things back
having talked to the neighbors again.
Com. Chen:
· If there is a concern about issues, I feel that we are dealing with an existing situation also and
the new situation caused by the change; the concern about the existing situation which is
overflow parking, traffic issues, that's already pre-existing before the temple took over the
property, how do we deal with that.
· The second issue is that the only leverage is to not approve any change until those issues are
addressed.
Mr. Kilian:
· Land use approvals are not dependent upon who owns the property or who operates the
property; land use controls are based on the property functions themselves; meaning that while
this church may be one that is very neighborhood oriented and concerned about the neighbors
Cupertino Planning Commission Minutes 15
September 13, 2004
five years from now, another church could come in that wouldn't have that concern; yet, the
decisions you make tonight are binding forever until the use changes.
· Land use controls run with the property, they don't run with the owner of the property or
whatever church runs the property; so you have to divorce yourself from the important good
works of the church does because that may not be what happens in the future.
· There is no other way that you can reach those issues that are not addressable as I have already
discussed them. For example, if they walked away and they continued to have overflow
parking, and continued to have problems with traffic if that's the case, and they didn't ask for
any approvals and they didn't need any approvals from the city; the only way the city could
address that is through a nuisance procedure and that would be difficult in light of the fact that
a public nuisance has to be really egregious for the city to be involved.
· The city doesn't have a lot of power except the power to approve improvements that lengthen
the life of a non-conforming use, and when you lengthen the life of a non-conforming use, and
you expand the non-conforming use in the non-conforming building, you are entitled to ask for
some operational controls of property that previously didn't have those controls, because you
are allowing the use to actually expand and become more permanent. That is appropriate for
you to do, but the decision will have to be up to the applicant as to whether or not they want to
accept those under these circumstances or not.
Com. Chen:
· Elaborate on the lengthening of the life of non-conforming use. If it is non-conforming its
existing use?? It is my understand that it can be carried on forever.
Mr. Kilian:
· Under our system, that is correct; some cities have adopted amortizations of non-conforming
uses; but that is a rare city; most cities allow non-conforming uses to continue on until they are
abandoned, or the buildings are destroyed or something else happens to change; essentially a
non-conforming use or non-conforming building can continue on forever.
Mr. GiIIi:
· The proposal before the Commission is for physical changes to the existing building which
may be related to directional changes in use and that we have a new location for a door, a
porch, a bathroom and a storage area in the bathroom the storage area really hasn't been a
controversial thing.
· They are not intending to increase the parking lot beyond what was already there; it is just for
the lack of striping that you don't know that it has already been approved for 42 spaces; that
has not changed.
Mr. Kilian:
· Stated it was a point of difference; it is not about a non-conforming use that is a misnomer; it
is a non-complying facility or non-complying building; they are contained in the same
ordinance but what we have is a non-complying building that wants to get compliance. It is up
to you to determine whether a change from the entry way from a south orienting the building
by changing the main entrance is a major or minor change or not, you are also adding a
structure whether that is minor or major, is strictly up to you; you could decide tonight that all
of these things are minor and that they are okay and you could approve them subject to
whatever staff recommendations you wish to take, and that would be fine; but that would not
address most of the neighbors' concerns that are otherwise there in terms of traffic and other
things, so it is up to you to decide.
Cupertino Planning Commission Minutes 16
September 13, 2004
Com. Chen:
. Another question regarding the concerns raised by one of the neighbors regarding the county
record being incorrect. Is there any potential legal issues.
Mr. Jung:
. Unfortunately a lot of people, especially in the real estate and development professions rely on
the county records for zoning information; it is known that the county records are historically
inaccurate; if you want correct source for zoning information, they should come directly to the
city for it, not rely on county records.
Mr. Kilian:
· Said he was more concerned whether the plans are complete or not; 1 am not sure from what I
heard from staff or others whether the complete plans have been filed to allow you to make
these decisions or whether there are plans still left to be prepared that are more detailed; it is
unclear to me.
Mr. Piasecki:
· The plans before the Planning Commission and that I approved are what we see in this plan
set, and only those things; and that is why Mr. lung mentioned that if there are any additional
out buildings, storage buildings they would need to show them and come back in for another
either minor modification or come in for a use permit or architectural approval.
· All that was approved initially was to relocate the front entry, put in the bathroom in the
storage area, and take down the other building; if they have anything that is not on here, it is
simply not approved.
· We understand they are planning on having a storage building, and they would have to come
back for those.
Com. Chen:
· Is there any minimum handicapped parking required for the amount of parking they have on
site.
Mr. Jung:
· It is evaluated by the Building Department during the building permit phase; typically with a
lot of planning approvals, a site plan is approved with a certain number of parking and is often
the case that not until the applicant goes directly into the working drawings that they begin to
surface a lot of these handicapped accessibility issues having to do with the location of the
entrances, where the shortest paths are.
· Often, especially parking plans and doors, handicap ramps are not approved by the Planning
Commission or City Council but are approved at the building permit stage because those are
when those needs are identified. Both buildings are very old, they haven't had a lot of work
done to them in about 40 years and they do not meet current handicapped accessibility
standards, and they attempted to do so with the one story sanctuary building, but the work that
they are doing on the other building is probably going to trigger other accessibility issues with
that property.
· Said he had been on the property, and their access to either building is poor; they have some
ramps but there are too steep, and there are stairs where there should be ramps. Said he was
certain they would have to make handicap accessibility improvements to this building as well
as what they are suggesting.
Cupertino Planning Commission Minutes ] 7
September 13, 2004
Mr. Piasecki:
· They could install more landscaping which they have trimmed down which caused some of the
problems, made it more visible, and they could look at the possibility of installing a screen
wall, trellis structure that would shield the front entrance area from the neighbors visibly and
then landscape around it.
· There may be some different solutions to discuss with the applicant.
Com. Chen:
· The entrance of the building - is the side entrance the only ingress/egress of the whole
building so the cars will go in and out of the lot from the same place.
· Is it sufficient for two cars to pass at the same time.
Mr. Jung:
· This is the only ingress/egress for this church property.
· Yes it is.
Com. Miller:
· If this property had not been annexed but had been part of Cupertino all along, would this
normally have been zoned for this particular use.
Mr. Piasecki:
· Any piece of property is in some other jurisdiction, be it the county or in this case, the city of
San Jose, and if this building pre-existed in the county and was annexed or pre-existed in the
city of San Jose, was annexed and utilized as a church, it has the same status.
· Would we zone it for quasi-public in this location; I think we would have a lot of concerns as
the neighbors are raising about proximity to neighbors and noise.
· The only counter to that is it is a fairly small facility; not a large church, and we have allowed
churches in residential areas in the past.
Mr. Jung:
· Reviewed the noticing procedure followed. The proposal was approved with a Director's
minor modification, in that the plans are referred to Planning Commission and City Council
for their review and as a courtesy notice it was also sent to the adjacent neighbors. What made
this proposal interesting was that while we were doing this review, we were still working on
the property and that is part of the reason why the plans do not necessarily reflect what is out
there because they were building new things after our site visits.
· Summarized that the next door neighbors received the staff report, and the plan set was likely
not included; and in reading the staff report they became alarmed and went to the city offices
to look at the project.
· Mr. Jung went to the property and noticed things were different and spoke to the architect who
was surprised at some things that were happening.
· An appeal was filed, a stop work order filed and we asked the applicants to engage the
neighbors in a neighborhood meeting to see if some of these things could be addressed. The
noticing radius was either 300 or 500 foot radius; they had their meeting; subsequently the
appeal was continued once so the applicants could get a neighborhood meeting organized.
There may have been different notices sent out with different radius.
Com. Miller:
· Is the applicant willing to apply for a use permit or allow us to put use restrictions on his
property as part of the approval.
Cupertino Planning Commission Minutes 18
September 13, 2004
Vice Chair Wong:
· Stated the Planning Commission's concern that either reapply for a use permit or use the
existing application and address some of the concerns, which would likely have to be a
continued item.
Mr. Kilian:
· In addition to that, there are apparently some other things that are going to be planned and
constructed there. It would probably be a better idea for the Planning Commission to have the
whole plan to see ifit is really minor or not in the totality of things, rather than piecemeal.
Com. Miller:
· Said he agreed, and hoped they would come back with a complete application and an
application for a use permit, then do a proper noticing of all the neighbors and give everybody
the opportunity to talk. Everybody seems willing to work it out and they should be given the
opportunity to do so.
Vice Chair Wong:
· Asked if the Planning Commission accepts the minor modifications, and can the application
address some of the concerns of the neighbors as well.
Mr. Kilian:
· We like to have a use permit and hearing, but in order to help the applicant, if they are willing
to short circuit the process and agree that use permit type conditions can go on this type of an
approval, that would avoid them having to file another application and pay another fee; would
shorten the time in which they would be able to get approvals; and they could better address
the neighbors in a more informal situation than through a formal use permit; but that is strictly
up to them. We can't impose that on them.
Vice Chair Wong:
· Asked the applicant to address the concerns.
Applicant:
· Said he could not represent the group because for this type of decision they need to have the
establishment decide what they are going to do; said he did not know if a use permit is
involved, what is the condition.
· Said they are willing to work with the Planning Commission to understand what is involved
and would like to put it off for further discussion until they have a chance to talk amongst
ourselves and then come forward and have a discussion. At the moment he said they were
confused.
Mr. Kilian:
· One of the options is not necessarily to have a use permit but only to address the concerns of
the neighbors which are normally use permit types of conditions, but they would still be in this
context and this permit process.
· Also the Planning Commission would also like to see what other plans you have in the area so
that they can combine them.
Cupertino Planning Commission Minutes 19
September 13, 2004
Applicant:
· [ understand that we have to revise our plan and put forward a complete plan; we are working
on it. But we are not aware of the use permit situation, so we have not discussed it amongst
ourselves and I feel uncertain, what I say may not represent the group and I didn't want to
make any commitruent, but I would say from what I know that we are willing to work with the
commissioners.
· A month would be needed to accomplish that.
Mr. Piasecki:
· Suggested that the applicant in talking with the representatives of the church could talk about
expanding the plans to include the air conditioning, the noise levels projecting from the air
conditioning, the external storage facility, added landscaping and/or screening which could be
building type screening.
· Additionally the applicant should consider whether they would be willing to record a covenant
and deed restriction running with the land limiting the hours of operation (perhaps 8 a.m. to 9
p.m.)
· It can be debated whether it is more or less, and limit the total number of persons on the site to
no more than 120, that would give a comfort level with the 40+ parking spaces that would
exceed our normal 4: 1 ratio; so 120 persons at anyone time and that the covenant shall be
reviewed and approved by the city attorney and shall name the city as a third party beneficiary
so we can enforce it. That would be one option under this permit and is some suggested
language.
Com. Giefer:
· Said she wanted to consider handicap access to both buildings, not moving the entrance, but
keeping the entrance on the south side, connecting the two buildings to have handicapped
access to both buildings and the handicap restroom.
· It addresses 80% of the comments from the surrounding neighbors.
Mr. Piasecki:
· That is something the Planning Commission can ask the applicant to come back and
demonstrate why that does or doesn't work; on the surface there is about 20 feet between the
buildings, 10 feet of it will go for handicap access.
· They may have chosen this other location because there was no congregation space for
parishioners as they leave the sanctuary; they can explain that.
Com. Giefer:
· Expressed concern that the plans are so vague; there are a lot of things observed during the site
visit that are not included here.
· Said she was uneasy with what has been presented to the Planning Commission at this time.
· Many of the things mentioned earlier have been addressed.
· A question on procedure; what we are debating or ruling on this evening is the approval or
denial of the appeal; what is our status with the appeal, is it left hanging for a month.
Mr. Piasecki:
· It would be continued for a month and then decide when they come back do they have a full
and complete application; in your judgment is it minor, is it now major, can you comfortably
move ahead with appropriate conditions or pull up the appeal at that time and ask them to file
for a full use permit.
Cupertino Planning Commission Minutes 20
Septernber 13, 2004
· You are giving them the opportunity to bring everything in and demonstrate how they can
make this work and they would also have the chance to meet with their neighbors.
Com. Giefer:
· Asked if it is required to have a sign other than the address numbers on the building; and if so,
include it on the plans.
Com. Chen:
· Said she supported Com. Giefer's suggestion of not moving the door and build the handicap
access to benefit both buildings; it is a good solution to the problem for both neighbors and the
church.
· Said those at the temple are willing to work with the neighbors on all the issues.
· Would also like to consider putting restrictions on parking; it seems that parking is an existing
situation and to prevent it from becoming a bigger issue for the neighbors, I would like to see
some restrictions on parking, strictly on site or just along the property line but not on the
neighbor's side. Restrictions such as the church cars can only park either on the site or based
on Cupertino regulations, they should have the right to park along the property line, but not in
front of the neighbors' property line; so either do a permit parking or put some restrictions for
no parking for the congregation. Said she saw it happening in San Jose.
Mr. Piasecki:
· There are two ways to handle that; one is by the total number of persons on the site at anyone
time comfortably fitting within the onsite parking. Typically people have the right to park on
the public street and if you impose a permit parking system, that is a bigger deal that the whole
neighborhood should buy into because they would be inconvenienced by that as well because
they now have to hang their sticker or show that they are legitimately parking there. They
might look at how they should look at how they could control it at their end.
· There is a different process for noticing a permit parking system that would affect a larger area
focusing on whether or not it is what they want. People who are ten houses away may not be
concerned about it, because they don't want the imposition of the permit parking system and
getting ticketed if they don't have their sticker on the car when parked.
· It is not as straightforward; I know it has been done before, but it has been done in really
serious situations where you have a lot of overflow, not just a few. In the case we have here, if
you limit the number of parishioners who can attend at anyone time, it will likely be
acceptable.
Com. Chen:
· I don't want to put any more burdens on the neighbors, so I will leave it up to the neighbors; if
any situation happens and the neighbors would like to put the permit parking in front of their
property, I think we should help them to implement it.
Mr. Kilian:
· They do that by petition to the Public Works Department and there is a process that Ralph
Qualls goes through. A study is done, and it is independent of what the Planning Commission
does.
· It is dependent on the neighborhood doing the petition, not the applicant. The applicant would
have no control other than as one property owner.
Cupertino Planning Commission Minutes 21
Septernber 13, 2004
Mr. Piasecki:
· Said that they can ask the parishioners not to park in front of neighbors' property, but the
parishioners can say it is a public street and they can park there; they have that right.
· If the number of parishioners is within the available parking, it is not an issue, it could be
controlled by the total number of parishioners as opposed to the opposite, because a neighbor
can always come in and ask for it if they feel things have gotten out of control, and they can
get out of control without any of these.
Com. Chen:
· The point is to resolve the issues among neighbors but not to increase it, so I would like to
encourage you to work with the neighbors and welcome the church to Cupertino.
Mr. Kilian:
· Encouraged the applicant to meet with the Planning staff before the next meeting to get their
plans in order; staff has been very careful in noting all the concerns of the neighbors and the
Planning Commission and they probably have a checklist of things that the applicant would
benefit from having that knowledge.
Com. Chen:
· Commented that it is clearly not a minor permit.
Vice Chair Wong:
. Thanked the neighbors and the congregation for attending the long meeting and staying so late.
· Said it can be a very emotional issue and some people see it as a minor modification and some
people see it as major modification.
· Suggested that the item be continued, so that the congregation can work with the neighbors
and staff and return in 30 days with a win-win situation.
Motion:
Motion by Com. Miller, second by Com. Giefer, to continue Application DlR-
2004-06 to the October ll, 2004 Planning Commission meeting. (Vote: 4-0-0;
Chair Saadati absent).
Mr. GiIIi:
· Pointed out that the applicant will need to do some maintenance work on their property
because at this point it is not known how long it will extend for, and there are maintenance
works that need to be done to secure the site from the elements; possibly re-roofing, gutters,
etc., typical maintenance type activity that may be misconstrued as construction.
Vice Chair Wong declared a short recess.
5.
M-2004-04
Etsuko Kuromiya
19990 Homestead Rd.
Modification of a use permit (U-2004-02) for late night
activities: extending the hours of operation of a karaoke
studio to 2 a.m. Planning Commission decision final
unless appealed. Postponed from Planning Commission
meeting of August 9, 2004.
Peter Gilli, Senior Planner, presented the staff report:
· Application is for a use permit modification to extend the hours of operation from II p.m. to 2
a.m. of Gamba Karaoke, and change one of the conditions of approval from the earlier action
to convert a storage room into a studio room.
Cupertino Planning Commission Minutes 22
Septernber 13, 2004
· Illustrated the site plan, noting the location of the karaoke studio, and proximity of residential
units in Northpoint complex.
· On the conditions in the staff report, there are some options depending on whether the
Planning Commission is comfortable with the hours of operation; first whether or not to allow
the extended hours; and then possibly allow it only on certain days.
· Condition 6 refers to the conversion of Room 4, from a storage room back to a studio;
choosing A or B, whether or not you would want to approve the conversion or not.
· Staff is not opposed to the conversion because even if the assumptions on the original parking
study are accurate, it is only a difference of two to three cars at the peak hour and staff
believes the parking lot has sufficient space for that.
· Relative to the hours of operation staff is neutral on this; it is based on the residents' input,
and options are to approve the extended hours the applicant is requesting, up to 2 a.m. each
day; approving it on certain days, or approving it with a certain time.
· Staff recommends approval based on the model resolution.
Mr. GiIIi explained the notification process for the change:
· Modification requires a noticing radius of 500 feet.
· It is not a minor modification because it is changing hours of operation and condition of
approval, and considered a major amendment; treated as if it was a new use permit.
Com. Giefer:
· Relative to reason for changing room 4 from storage to studio; in the staff report it said the
demand had not been that high where all rooms had been engaged; why at this time do they
want to convert that room.
· Has the parking demand followed what we anticipated?
· Staff report also indicated that the sheriff's office has no issues with later hours since there had
not been any problems from the bar next door.
Mr. GilIi:
· Staff is not aware of the reason for the change other than optimism that it will be needed at
some point.
· It is difficult to say because all of the data provided isn't clear if it is referring to cars or
parties, staff does not feel they underestimated parking at the earlier use permit, if anything,
they over-estimated.
· The main issue that the sheriff's departruent has is if alcohol is being sold; and if not, in their
opinion there is no concern.
Com. Miller:
· What are the hours of operation of the next door bar.
· If the request is approved, can conditions be added to review it at a later date should there be
issues with noise or similar concerns.
Mr. GiIIi:
· Not certain of opening hour, but closure is at 2 a.m.; it is a legal non-conforming use and has
been in operation since before there was a rule about how late they could remain open.
· Relative to conditions, it is included in the model resolution; it should be one of the last
conditions that the Planning Commission reserves the right to revisit based on observations by
the city or complaints from neighbors.
Cupertino Planning Commission Minutes 23
September 13,2004
Vice Chair Wong:
· When it was first approved, when did they start up operations.
· Since they started, have there been any complaints to the sheriff's department or City
regarding the operations until II p.m.
· With the notification made, was there any concerns raised by adjacent neighbors.
Mr. GilIi:
· Do not have the exact date of startup; on information provided by application, it was early
June.
· The code enforcement department and the Sheriff's department have not received any
complaints.
· Relative to notification and concerns raised, a letter was written by a resident who also had
concerns about the original use permit and he is present at the meeting.
Jeff Wooten, attorney, representing applicant:
· Provided background information regarding Gamba Karaoke.
· Facility is very well lit; a place for families.
· Reason for request for expansion of hours is that in the later evening, they tend to get
customers who are business people who are not looking for a facility where alcohol is served.
· Customers will have dinner and want time and place to socialize but not drink.
· Presently customers who come at 10 or 10:30 p.m. can only stay for a limited time, and as a
result don't patronize the facility.
· Applicant has had a number of requests for the expansion of hours.
· Applicant has invested over $100,000 in renovations, but patronage is not supporting the
facility in order to stay open.
· Need to make changes in hours of operation to increase patronage, particularly in the later
hours.
· Relative to noise concerns, no one has complained about noise from the facility; if the facility
was noisy, it would defeat the purpose of the facility, because if noise was bleeding out from
one room, it would bleed into the adjoining rooms, which would disturb the patrons within the
facility and result in unhappy customers.
· Not only does noise not bleed from room to room, it doesn't bleed outside the facility.
· Said he was at the facility in the evening and could not hear any noise from the karaoke
facility when he was across the street at the condo complex.
· Because of the proximity to Highway 280, there is traffic noise which would drown out any
noise from the area.
· Visited the Peacock Lounge, the doors were open and music blaring out; could not hear the
noise from the bar from across the street.
· Said that no noise is coming from the Gamba Karaoke, and if there was, it shouldn't disturb
the residents.
· He said that the letter from the gentleman who lives in the facility next door was vague about
disturbances from the Karaoke facility, and if he had a specific concern about the facility, there
were willing to address it this evening.
· Explained the reasons for expansion of the studio.
· They want to use Studio 4 and it would be good to have Studio 8 available, but not imperative.
· Reemphasized there have been no complaints from neighbors specifically directed toward the
facility and as staff pointed out, the Sheriff's Department has had no concerns or complaints to
them.
Cupertino Planning Commission Minutes 24
Septernber 13,2004
· As stated in the staff report, there is no evidence to support any kind of conclusion that noise is
a problem.
· Addressing the parking issue, the parking survey originally done on the facility assumed worse
case scenario, worse case being the maximum use of the facility. Statistics showing actual
patron usage of the facility are far below those offered in the original study.
· There are approximately 110 parking spaces available; n particular the late night usage, the
study said it looked at the peak night, Friday, and it showed the number of actual parking
spaces being used at Friday midnight was only 13 of the 110 available; there is over 80 in the
main lot and almost 30 in the smaller adjacent lot. Based on the parking survey and the actual
patronage use, there isn't an issue regarding parking.
· The gentlemen who wrote the letter mentioned that somebody from the Peacock Lounge had
parked in this facility; but as far as we know, no patron from Gamba Karaoke has parked there,
and there is no reason for any patron to be parking over here; again it was speculative that
there might be a problem; in fact there hasn't been, and there is no reason to believe that there
would be.
· Concurs with staff report on parking, that the increased proposed usage would not have an
adverse effect on the parking; opening up that one studio would result in two to three cars
based on actual use, more likely one or two, as most people come as a group.
· In Mr. Ashborn's letter, most of his concerns relate to the Peacock Lounge and he was
addressing the Peacock Lounge; emphasized that this facility does not permit alcohol on the
premises, which would defeat the atmosphere they are trying to create and the customers and
patronage they are trying to attract.
· If Mr. Ashborn went to the facility, he would feel most welcome and very comfortable and I
think he would enjoy himself in a respectful way.
Com. Chen:
· Reiterated they were not adding a space to increase the use of the facility; but trading it, using
one facility for supplies which is different from the original plan.
Mr. Wooten:
· Would like to have it if the Planning Commission is willing to give it so they would have that
flexibility, but if they are not inclined to do that, then alternatively we would like to have the
discretion to move that storage room to wherever we feel is appropriate, and we are going to
put it in the one corner where we have problems with the Peacock Lounge.
· The Peacock Lounge may not be there in the future, and if and when their lease expires, it may
be converted into another use and the noise problems from the lounge may go away. If that
happens, he said they would like to be able to use the room.
Mr. GiIli:
· On the original approval, the room in front was shown as storage; the approval to make the
parking work under what we thought was going to be the situation, they had room for a studio
and as a condition they converted it into storage so that the parking numbers all worked out; so
it is not really a trade. As stated earlier, we don't have a concern with the conversion, and if in
the future they want to move the storage room around, as long as it is about the same size, we
would also not have a concern with that; it would likely be approved without a Director's
minor modification, just a TI or if even that is necessary.
Mr. Wooten:
· Said Studio 4 was built out and ready, looks like any of the other studios, with a big glass
window on the door in front and is painted a bright neon color which are colors children like.
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September 13,2004
· All of the rooms are ready to be used for studios; it would be helpful for the business that
when from time to time they are able to fill the entire facility, that they have the ability to do
that. Parking and noise are not problems.
Vice Chair Wong opened the public hearing.
James Ashborn, Northcrest Square:
· Opposed to application.
· Concern is the mix between the patrons of the Peacock Lounge and the patrons of the karaoke
bar; they are two different types of people with different kinds of music; the bar with alcohol
served in the other.
· When there is a big sporting event, there is overflow parking from the bar and they come into
their area and park at night. Concern is not so much that they park there, but what they leave
behind on the grounds.
· With the karaoke studio, added to the patrons of the bar, two different types of audiences, is
the mix going to be an issue for the community.
· The shopping center has been revitalized, Mr. Wong is to be commended for the excellent job.
· Concerned with music on one side of the bar and the other, although the Sheriff no concerns as
long as alcohol is not involved.
· Said he was concerned when he talked with the owner he was assured that the closing time
was II p.m. He later received notice from the city stating that it was going to be open until 2
a.m. and he felt that if the issue of the liquor license changed, he would come to the meeting
and voice his concerns for the record, and move forward.
Nancy Needham, Northcrest Square:
· Opposed to application.
· Was informed that this was a family oriented activity; no young children in the facility; and 2
a.m. is late for families and children to be there. Have observed in the evening, no young
people or children in there; there may be older people or young adults, but no children
patronizing the facility.
· Relative to traffic issue, Mr. Ashborn addressed that and again it was likely attributed to the
bar patrons who didn't want their cars seen in the parking lot and were parking in the
Northpoint parking lot, but it has been an issue several times at the Northpoint Homeowners
Association. There is debris and bottles left in the parking lot of the units.
· Relative to traffic, later in the evening, but prior to II p.m., there are people leaving the area,
speeding cars, squealing tires, driving erratically and cannot say it is attributed to the karaoke
place, but may be the bar patrons.
· Concened about a 2 a.m. closing as liquor may be consumed in the parking lot even though the
facility doesn't have a liquor license.
· A 2 a.m. activity, a bar or a karaoke studio is not appropriate in a shopping center surrounding
by residences
· The shopping center is surrounding by residential area, homes and condos in the Sunnyvale
area, the shopping center has dance studios, shoe repair, and optometry. The only late night
activity is the bar; she said she understood that bar's lease was not going to be renewed.
Ann Mitchell, Northcrest Square:
· Concern outside of traffic issues is the lateness of the operation; it will add again to the late
leavers coming from the Peacock Lounge; people at that time of night are not cautious about
how quietly they leave; they are rowdy.
· Request the business hours be limited to midnight.
Cupertino Planning Cornrnission Minutes 26
Septernber 13, 2004
Vice Chair Wong:
· Said the neighbors are voicing concern about the Peacock Lounge and not the karaoke facility;
how can staff address that.
Mr. GiIIi:
· If alcohol is being consumed outside of the bar, then it is a matter for the Sheriff. If there are
cars parking in the condo lot, their association likely has sigos indicating that cars can be
towed and they may want to explore that or call the Sheriff.
· It is difficult especially when the bar patron leaves the property, to go and try to get the
Peacock Lounge owner to enforce their behavior, it is a matter of law enforcement and code
enforcement.
Com. Giefer:
· Primary concern is to give the homeowners some relief and suggested posting of signs in the
area prohibiting bar patrons parking.
· Have no objection to karaoke facility staying open later if it is the bar patrons who are causing
the majority of the problems.
· Concerned about bar patrons driving irresponsibly and parking in the wrong place; and what
has been done in the past with the YMCA and other Stevens Creek businesses who abut to a
neighborhood, is to have sigos on fences that remind the patrons to leave quietly as they are in
a residential neighborhood.
· Suggested some outreach, as people who have had too much to drink at 2 a.m. may not be
paying attention to those signs, but it would be worth it to try and raise some awareness.
· Since the complaint is not against the karaoke facility, said she was comfortable with changing
the closing time to 2 a.m. on Friday, Saturday and Sunday; II p.m. or 12 midnight during the
week. She said she did not necessarily view karaoke as a family oriented entertainment.
Vice Chair Wong:
· Said that the applicant was targeting Japanese business people who patronize the business; it is
part of their culture that they stay up late at night, have dinner late and then want to have some
wholesome entertainment, which is the reason they visit the karaoke place.
· There are not many places in Cupertino for college students and young professionals to enjoy
family oriented entertainment.
· I would support having the time extended to 2 a.m. 7 days a week.
Com. Chen:
· Concerned about having the combined effect of having the lounge and karaoke place opened at
the same time until 2 a.m. each night.
· Said it was speculation at this point, but she drove by the place late at night and saw people
hanging out in the front of the building drinking alcohol. There is nothing to prevent people
from coming out from the karaoke place, taking a couple of drinks and going back in again.
· Would support operating hours to stay at II p.m. for weeknights and open until 1 a.m. Friday
and Saturdays.
Com. Miller:
· Based on the comments, clearly there is an issue there, but it seems the issues are being
addressed to the wrong business and that we should be looking at code enforcement for the
Peacock Lounge and not penalizing the karaoke facility, who to this point has been a good
neighbor.
Cupertino Planning Commission Minutes 27
Septernber 13, 2004
· There is no reason at this point not to grant their request, particularly in light of the model
resolution including an opportunity if noise or disturbances to the neighbors do occur, the
decision can be changed.
· Said that it is important that when new businesses come to Cupertino, they are given the
opportunity to succeed.
· Said he was in favor of doing it for that reason, and welcomed Com. Giefer's suggestion that
perhaps there is some way the karaoke facility can encourage their customers to leave quietly,
through the use of signs or some other appropriate method so they continue to be a good
neighbor, which would eliminate the need to come back and revisit reducing the hours at some
later time.
Motion: Motion by Com. Miller, second by Vice Chair Wong, to approve Application M-
2004-04 per the model resolution, specifically Page 5-5 hours of operation, issues
A or B; Item 6, issues A or B; and allow applicant to have 2 a.m. closing time, 7
days a week, and allow them to use all the rooms for karaoke activities.
Mr. Killian, City Attorney:
· Said he perceived there may be a difference on the hours, and clarified the proper procedure
for someone who disagrees with the hours to make a motion amending the prior motion to
change the hours; vote on the amendment and then vote on the other.
Amended Motion:
Motion by Com. Giefer, second by Com. Chen, to amend the motion
before the Planning Commission to change hours to Monday through
Thursday closing at midnight, and Friday, Saturday and Sunday
closing at 2 a.m. Vote: 2:2; Ayes: Corns. Chen, Giefer; Noes: Com.
Miller and Vice Chair Wong. Amendment defeated.
Call for the question on the main motion:
7 days a week until 2 a.m. Vote: 2:2; Ayes:
Com. Miller, Vice Chair Wong; Noes: Corns.
Giefer and Chen. Motion Failed.
Mr. Kilian:
· Clarified the options of continuing the item until the fifth Planning Commissioner is present;
have the fifth Planning Commissioner listen to the tapes, and make a vote, or go onto City
Council as denial.
Vice Chair Wong reopened the public hearing; and declared a short recess.
Jeff Wooten, attorney for applicant:
· Said he felt his clients have been penalized for something they did not do or would do; by not
voting for the use permit, they are being penalized.
Mr. Killian:
· Clarified that it was not concerning what was decided, but was continued with the idea that the
applicant would come back with a choice of whether they wanted a final decision tonight or
whether they wanted a continuance.
Mr. Wooten:
· Said he understood they could propose an alternative.
Cupertino Planning Commission Minutes 28
September 13, 2004
· For Sunday, midnight closure is appropriate; Monday through Thursday, until I a.m., anything
less than that we would need to appeal; Friday and Saturday until 2 a.m., otherwise the
business wil1 not survive.
Motion:
Motion by Com. Miller, to approve Application No. M-2004-04 with amended
hours of operation to be Sunday midnight closure; Monday through
Thursday closure I a.m., and Friday and Saturday closure at 2 a.m.
Mr. Wooten:
· Said they would put up a sign for patrons to leave facility quietly and to respect neighbors.
Com. Giefer:
. Suggested inclusion of conditions that the property owner post signs In the parking lot
reminding patrons that they are near a residential neighborhood.
Mr. Kilian:
· The problem with that is if the application is by this particular tenant, it would punish this
tenant because there is no complete control over the land owner. (Land owner was in audience
and agreed)
Second: Com. Giefer. Vote: (3-1-0) Com. Chen - No
Mr. Piasecki:
· Noted that the action by the Planning Commission is final unless appealed to the City Council
within 14 calendar days.
OLD BUSINESS
6. Report on Discussion of Planning Commission Meeting Protocol.
Com. Miller:
. With respect to Page 6-3; Item 2 - the concept is to make sure that we are being fair and
impartial and also being perceived as fair and impartial; part of that has to do with staff as
well; and there was a lot of discussion about our concerns or concerns that have been raised
about staff being fair and impartial also, and specifically instances given where there has been
occasion when there has been a debate or back and forth argument between a member of the
Planning Commission and staff on a particular item which is perceived as more of an advocacy
situation than just providing information.
· There was one or two instances where staff has added some commentary after the
commissioners have presented but before the vote was taken and again there is a perception
from the audience that potentially puts staff in an unfair position of advocacy, and I would just
suggest we add those comments in, in terms of, it is very important that we not restrict staff
from providing valuable information and technical information, and whatever it is we need, so
that we have all the information and we have accurate information. There is a fine line as to
when staff is providing information and when staff is advocating a particular position.
Mr. Piasecki:
· There is a fine line between getting staff input and staff persuasion and then the third results
staff will interject on critical issues during the Planning Commission comment period if
necessary. Weare reflecting the same thought process.
Cupertino Planning Commission Minutes 29
Septernber 13, 2004
Vice Chair Wong:
· Asked if the City Council and City commissions as a whole, follow Roberts Rules of Order.
Mr. Kilian:
· They can be used as guidelines, but you don't follow them completely because Roberts Rules
of Order do not take into account constitutional rights of speakers; for example, Roberts Rules
of Orders states that the Chairman does not vote; that would not apply there, because State law
has said that Planning Commission as a whole votes or the Council.
· Roberts Rules of Order can be used as a guideline to how motions are made, but it is not
strictly adhered to, because it doesn't take into account from the audience who have rights to
speak under the Constitution.
Mr. Piasecki:
· Said that the agenda would have verbiage relating to audience conduct.
· A standard statement will be included in the staff report relative to commissioners disclosing
communication they were a part of prior to the meeting on the specific application being
discussed.
Vice Chair Wong:
· Should city commissions and council members report all of their correspondence, e-mails, site
visits.
Mr. Kilian:
· If it is regarding a pending matter before the Planning Commission, the evidence received
outside the hearing process such as a field trip or discussion with somebody either for or
against, should be disclosed if the matter is an application.
· The City Council is different because they oftentimes consider broad laws and the same rules
don't apply to those that apply to due process rights for an application. An applicant and
opponents to the applicant have a right to have your decision made based upon the evidence
they hear at a hearing and not what you receive outside the hearing process. So if you do go
on a field trip you should disclose that you went on a field trip and what you saw, or that you
had a discussion with the applicant outside the hearing process, and this is what he or she told
you; so that at least on the record is the evidence that you relied upon in making a decision.
Vice Chair Wong:
· On all applications, we all make site visits regarding Design Review Committee or Planning
Commission, but if nothing out of the ordinary, we don't have to report every single visit or
else every application; I will say I visited the site.
Mr. Kilian:
· Only if you get some evidence from the site; if you see something that is important in the
making of your decision, you should disclose it because how do they know how you are
making a decision unless you tell them on what basis you are making that decision.
· Said he completed a legal opinion about two or three years ago, and will re-circulate it on what
Council members and commissioners can do vis-a-vis contact with third parties and field trips,
etc.
Mr. Piasecki:
· Clarified the correct way to handle comments and questions from councilmembers.
Cupertino Planning Commission Minutes 30
September 13, 2004
· Said that in most cases the Director can resolve the issue with the commissioner and save time
by involving less people and having the Director handle the specifics.
Vice Chair Wong:
· The suggestion of getting together every year in February or March for a retreat is a worthy
one.
· Concur with Com. Giefer's suggestion about audience behavior or decorum; perhaps do a flow
chart regarding what is the process, when does the public speak, when is the public hearing,
and it should be in the City Council and city commissions, so people are aware of the process.
· It goes back to notification, a lot of people come to the meetings and they are frustrated, it is
giving information to the public.
Mr. Kilian:
· The Planning Commission waits until all the information is collected before discussing it.
· You mentioned that you didn't want staff to be in an advocacy position; however, I don't think
their input is limited just to facts and data, they also are going to inform you of the arguments
that can be made pro and con, that would be helpful to know. I believe that you do want them
to make a recommendation and that would be somewhat of an advocacy position; what you
don't want to do, what staff should not do is argue just one side of an issue at the expense of
the other, but give you a balanced view and give you the arguments why their recommendation
is such. I think that is appropriate, not just data.
NEW BUSINESS
REPORT OF THE PLANNING COMMISSION
ENVIRONMENTAL REVIEW COMMITTEE
· Com. Chen reported the meeting was cancelled.
HOUSING COMMISSION
· Com. Giefer reported the meeting was postponed until September 23, 2004.
MA YOR'S MONTHLY MEETING WITH COMMISSIONERS
· Com. Giefer reported the next meeting was September 21, 2004.
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT
· Nothing additional to written report.
Vice Chair Wong:
· Asked for an update on when the General Plan will be presented to the Planning Commission
and asked if it had any weight on what is going on with the three initiatives.
Mr. Piasecki:
· Reported that the task force version is the same, staff put together a matrix as requested by the
Council.
· The title has been changed to clearly label the draft as a task force draft that is going to the
Council on September 20'h; ifthe Council releases it, it will then roll out into the public
hearing process.
· Staff will suggest to the Council that there also be an initiative alternative and in that initiative
alternative staff will lay out, in the event that the initiative is passed, what will be the likely
Cupertino Planning Commission Minutes 31
September 13,2004
General Plan changes and and/or zoning changes that will take affect in the event that the one
or more initiatives will take effect.
Mr. Kilian:
· I would like to see a initiative General Plan alternative that would automatically take effect if
the initiative were passed, so that the voters would see exactly what would occur in terms of
the initiative passing.
. If there is time to do it, it would be good to have the two alternative General Plans, the one you
would adopt without the initiative and the one that would take affect immediately upon
adopting ofthe initiative, so that the voters can see exactly what would happen, and we
wouldn't be in a position of having to decide what was consistent with the initiative's after the
initiative passed. It would be appropriate and helpful to the voters.
Vice Chair Wong:
. That is a good idea; and based on the Commission's decision, it would start the public hearing
at the Planning Commission.
Mr. Piasecki:
· Yes, based on the Council's decision to roll that out; staff would have it to the Planning
Commission in October.
ADJOURNMENT:
The meeting was adjourned to the regular Planning Commission
meeting at 6:45 p.m. on September 27,2004.
SUBMITTED BY:
,
Approved as Presented: October II, 2004