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PC 07-27-81 CITY OF CUPERTINO, STATE OF CALIFORNIA 10300 Torre Avenue, Cupertino, Ca. 95014 Telephone: (408) 252-4505 PC-36l Page 1 MINUTES, JULY 27, 1981 REGULAR PLANNING COMMISSION MEETING CALL TO ORDER/SALUTE TO THE FLAG 7:30P.M. ROLL CALL: Present: Cómmissioner Adams Commissioner Binneweg Commissioner Blaine Commissioner Koenitzer Chairman Claudy Staff Present: City Clerk Cornelius Assistant Planning Director Cowán City Attorney Kilian Planning Director Sisk Public Works Director Viskovich APPROVAL OF MINUTES The Minutes of the Regular Meeting of July 13, 1981 were approved after the following corrections: Page 2, penultimate and last paragraphs, "transportation" to be replaced by "traffic". Page 3, seventh paragraph, Heastboundl1 and "westbound" to be transposed. Page 8, seventh P?ragraph,fi~st line, last word to read HMulqueeney's". Page 10, sixth paragraph, second line to read "assigned to one household.' . MDTION: SECOND: VOTE: Com. Koenitzer, that the Minutes of the Regular Meeting of July 13, 1981 be approved as amended. Com. Blaine PASSED 5-0 POSTPONEMENTS/NEW AGENDA ITEMS WRITTEN COMMUNICATIONS Assistant Planning Director Cowan transmitted to the Commission copies of a report that Staff had received from the California Real Estate Community, for information. ORAL COMMUNICATIONS PUBLIC HEARINGS: ITEM #1, Application 33-U-79 of GREGG C. BUNKER (PHOTO DRIVE-UP): A Public Hearing initiated by the City of Cupertino to consider the revo- cation of Use Permit 33-U-79 (allowing the operation of a drive-up PC-36l Page 2 INUTES, JULY 27, 1981 REGULAR PLANNING COMMISSION MEETING indow) because of non-compliance with conditions of approval. Said roperty is located at the northwest corner of Wildflower Way and Saratoga- unnyvale Road in a C-l (commercial) zoning district. First Hearing. R. CLAUDY requested City Attorney Kilian to provide information on the ormat of the Hearing and what the responsibilities of the Commission were. ity Attorney Kilian explained that this was a formal revocation hearing, "n which evidence would be taken, and that not only would a record be kept in the usual form of tapes and Minutes, but also by a court reporter providing transcript. He stated that since the hearing would be evidenciary in ature, oaths would be administered, with the order being that first,Planning taff would present their evidenceand Mr. Bunker or his attorney would be llowed to ask questions of them, then Mr. Bunker would be allowed to present vidence on his own behalf,through testimony, documents or witnesses, with his evidence being the subject of questioning also. He continued that, since this was a public hearing, members of the public would then be allowed to speak,that at the conclusion of the hearing, or at any time during the earing, the Commission could ask questions of any witnesses or concerning ny evidence, and that at the end of the hearing, by majority vote, the ommission would decide whether or not the evidence established that Mr. Bunker ad fulfilled all the conditions precedent and subsequent to issuance of the Use Permit, and would make findings based on the evidence with which to upport its decision. He advised that the Commission had the option to efer the matter to his office for preparation of legal findings to support its conclusions, and that the action of the Planning Commission would be final, subject to an appeal before the City Council by any interested person. he CommissIon had the authority to revoke the Use Permit, not revoke the se Permit, or modify any of the conditions, he said. COM. BLAINE wanted the option of the City Attorney's office drawing up findings clarified. City Attorney Kilian explained that this was a common court practice, and that if the Commission thought the findings complex, they could be drawn up in his office and adopted at the next Regular Meeting, which meant the final decision would not be taken, and no appeal time would accrue, until that time. here being no further questions of the City Attorney, Assistant Planning Director Cowan was sworn in by CIty Clerk Cornelius. Assistant Planning Director Cowan related that in August of last year, the Ci.ty Council'had approved Mr. Bunker's request for a drive-up window addition to a photo retail facility at the corner of Wildflower Way and Saratoga- Sunnyvale Road, based on standard conditions 1-14 and conditions 15 and 16. He explained, for the record, that conditions 1-14 applied to the vast majority of applications involving the construction of a facility or the initiation of a new activity that might or might not cause unusual problems for the community. He summarised standard conditions 1,2,3,9,10 and 13, and also conditions 15 and 16, and went on to relate that after the appli- cation had been approved, there were no further developments for eight or MINUTES, JULY 27, 1981 REGULAR PLANNING COMMISSION MEETING PC-36l Page 3 nine months, when Staff, revising some outstanding Use Permits, had determined that Mr. Bunker had not proceeded with the conditions of approval, and that a letter to that effect was sent to Mr. Bunker in March, with a follow-up evaluation conducted in April. It was determined that satisfactory progress was not being made, and there was further telepþone contact to request compliance, when Mr. Bunker had been inform~d that non-compliance could result in a revocation hearing, he said, and such a hearing had been set up on June 8, after Staff had determined that there was no real attempt to comply. He expressed the feelings of Staff, that because the applicant had now retained an engineer and was diligently pursuing matters relating to the Use Permit, the Commission might grant Mr. Bunker a thirty day period to have a civil engineer prepare plans for improvements on Wildflower Way and Saratoga-Sunnyvale Road, and might also instruct Mr. Bunker to file a landscaping plan with the Architectural and Site Control Committee and work to obtain the necessary reciprocal access agreements. These were Staff's recommendations, he advised. CHR. CLAUDY, referring to the berming, driveway access and parking stall alignments shown on Exhibit B, wanted to know which had been executed and which had not. Assistant Planning Director Cowan advised that the parking stalls were in place, and the traffic circulation system was also completed, but that the planting beds and street widening had not been, although a plant had been installed on the southerly side of the site. He emphasized that the main problem was the lack of street improvements. CHR. CLAUDY established with Assistant Planning Director Cowan that the Use Permit had been granted on condition that certain improvements be made, that they had not been, and that the applicant had not submitted plans to the City for making 'such improvements. City Attorney Kilian inquired whether Assistant Planning Director Cowan wished to submit any documents to the Planning Commission, and whether he wished to show any slides or introduce any other information at this time. Assistant Planning Director Cowan submitted documents to the Secretary fo the Planning Commission, consisting of a Staff Report dated July 22, 1981 from Robert Cowan, Assistant Planning Director, 2 pages; a copy of Resolution No. 2216, which was a resolution of th~ Planning Commission directing the Planning Stqff to schedule a hearing to consider revocation of the Use Permit; a Letter, undated, mailed very soon after August 18, 1980, to Mr. Gregg C. Bunker, 1357 Kooser Road, San Jose, 95118, from City Clerk Cornelius, outlining the action that City Council had taken on August 18, 1980 in granting the Use Permit, with two attach- ments, one labelled Exhibit A of Application 33-U-79 and the other Isbell d Exhibit B of same; a Report to James Sisk, Planning Director, from Kathryn McKenna Scott, Senior Planning Technician, dated April 20, 1981, on the subject of Photo-Drive-up, 2 pages. Assistant Planning Director Cowsn inqutred if the Planning Commission wanted to see three slides. PC-36l Page 4 MINUTES, JULY 27, 1981 REGULAR PLAm;ING COMMISSION MEETING The Commissioners expressed their desire to see them. The slides, depicting the basic street frontages on Saratoga-Sunnyvale Road and Wildflower Way, were exhibited. The first was a slide taken from Saratoga-Sunnyvale Road, approximately in front of the Yamagami Nursery, looking south to Mr. Bunker's Photo Drive-up facility, and was marked Slide No.1. CHR. CLAUDY established with Assistant City Planning Director Cowan that the street frontage immediately in the foreground of Slide No. 1 was not improved, though in the background, in front of the storage, it was. The second slide looked east from Wildflower Way, showing the street improvements currently underway on property directly to the west and illustrated, to a certain degree, some of the parking stalls and the planter mentioned in the Staff Report, and was marked Slide No.2. The third slide looked directly east from the developing adjacent property and showed the general location of the future curb which was to be installed on Wildflower Way abutting the applicant's property, and was marked Slide No.3. COM. ADAMS inquired whether the existing planter on Slide No. 3 would remain and be integrated with the planting, curb and sidewalk shown in Exhibits A and B. Assistant Planning Director Cowan was not sure of the precise location of the planter, but assumed that it would. COM. ADAMS established with Assistant Planning Director Cowan that the planter had not been in position prior to the issuance of Mr. Bunker's Use Permit, and that it had not been installed based on an approved plan. CHR. CLAUDY invited Mr. Bunker to cross-examine Assistant Planning Director Cowan. City Attorney Kilian. asked that Slides Nos. 1,2 and 3, and the transparency that had been shown, marked Item No.4, be introduced as further evidence. Mr. Gregg Bunker, 1357 Kooser Road, San Jose, said that he had not fully understood the nature" of the hearing, and wanted to have his attorney present. City Attorney Kilian asked Mr. Bunker if he had any questions of Assistant Planning Director Cowan. Mr. Bunker did not recall standard conditions 1-14 being provided prior to the Meeting at which he had received approval, nOr subsequently did he recall every receiving a copy of them, and was not sure that it was clearly understood at what time the improvements were to be made. City Attorney Kilian interjected to advise Mr. Bunker that at this point" he was·to ask questions of Mr. Cowan. Mr. Banker had no questions for Mr. Cowan. MINUTES, JULY 27, 1981 REGULAR PLANNING COMMISSION MEETING PC-36l Page 5 CHR. CLAUDY called on any City Staff members who wished to give input. - There being no response, he requested that Mr. Bunker be sworn in to present his counter arguments. City Attorney Kilian thought that Mr. ,Bunker might elaborate on his desire to obtain the services of an attorney before he was sworn in. CHR. CLAUDY advised Mr. Bunker that the Commission wanted to give him every opportunity for preparation and would be sympathetic to a request for a continuance to retain legal counsel. Mr. Bunker explained that he had not anticipated the judicial aspects of the situation, and felt it would be prudent to have his attorney present, in case of any future legal action. City Attorney Kilian advised the Commission that Mr. Bunker had been notified orally and in writing of the nature of the hearing, but observed that in the interests of justice it might be appropriate for the Commissi to grant a short continuance. He advised that the hearing should in no way deter Mr. Bunker from attempting to comply with the legal conditions, and indeed that such an attempt would be taken into account when making determinations. CHR. CLAUDY understood that Mr. Bunker might not be aware of the methods of conducting this particular hearing, since it w·as atypical. He asked Mr. Bunker whether he wanted to make a formal request for a continuance at this time. Mr. Bunker answered that he did. He informed the Commission that he intended to pursue the additional landscaping as diligently as possible. City Attorney Kilian suggestèd that any further delays would be inapprop- riate, and that this continuance should be the last. CHR. CLAUDY wanted Mr. Bunker to þe provided with a copy of the fourteen standard conditions. Mr. Bunker advised that he now had a copy. COM. BLAINE observed that on the second page of the Staff Report of April 20, 1981 it was stated that on April 16 and 20, 1981 Staff had consulted with Mr. Dick Hansen, attorney for Mr. Bunker. She asked Assistant Planning Director Cowan if there had been any discussion of what was expected of Mr. Bunker and what would be the consequences of not fulfilling the conditions of the Use Permit. Assistant Planning Director Cowan answered that he, Mr. Bunker, Mr. Ranse and Planning Director Sisk had been in attendance, and that the need for street improvements and the satisfaction of other conditions of approval had been discussed. COM. BLAINE wondered if it had been mentioned that the Use Permit might be revoked if the conditions were not met. PC-36l page 6 MINUTES, JULY 21, 1981 REGULAR PLANNING COMMISSION MEETING Assistant Planning Director Cowan believed Planning Director Sisk had mentioned it at least once. COM. ADAMS, also referring to the second page of the Report of April 20, thought that 7(c) meant that Mr. Hansen had asked for a one week review period to evaluate the general issues and the issues of the standard conditions. Assistant Planning Director Cowan had not written the Report, and did not understand 7(c) so could not substantiate it. COM. ADAMS observed that in paragraph 8 of the second page of the same Report, the City's correspondence to Mr. Bunker and also actions to be taken in the event of non-compliance had been described, including the possibility of a revocation hearing. COM. BLAINE inquired if the City had had any other discussions with Mr. Hansen after this time. City Attorney Killian told her that he had talked to Mr. Hansen approximately thirty days ago, and that,from their discussions, he knew Mr. Hansen·was well aware of the situation. COM. BLAINE wondered if Mr. Hansen was aware of the proceedings for the revocation of a Use Permit. City Attorney Kilian could not say, since his conversation with Mr. Hansen had taken place approximately one week prior to the initiation of the hearing. COM. ADAMS thought the Commission could act on City Attorney Kilian's suggestion that one continuation of the hearing was in order. MOTION: Com. Adams, that the hearing on the revocation of Use Permit 33-U-79 Photo Drive-up Window be continued to the Regular Meeting of August 10, 1981. DISCUSSION: Com. Adams and Com. Binneweg pointed out that they would be absent on August 10, 1981. Chr. Claudy established that all Commission members expected to be present at the Meeting of August 24, 1981, and felt that in· the best interests of the City and the applicant, as many members as possible should be present at the hearing. City Attorney Killian established with Mr. Bunker that this date would be agreeable to his attorney and himself. The Motion died for lack of a second. SECOND: VOTE: Com. Adams, that the hearing on the revocation of Use Permit 33-U-79 Photo-Drive-up Window be continued to the Regular Meeting of August 24, 1981. Com. Koenitzer MOTION: PASSED 5-0 MINUTES, JULY 27, 1981 REGULAR PLANNING COMMISSION MEETING PC-36l Page 7 City Attorney Kilian advised that the evidence already presented would ø be admitted into evidence then, and that the- proceedings would begin with Mr. Bunker's case. He asked if the Commission required a transcript of the proceedings thus far. CHR. CLAUDY thought one should be available. He also advised Hr. Bunker that he would probably want to have his attorney present at that Meeting. At this point in the Meeting City Clerk Cornelius, City Attorney Kilian, Planning Director Sisk and Public Works Director Viskovich left. ITEM #2, Application ls-Z-8l of CITY OF CUPE~INO (BUBB ROAD NORTH PERCOLATION POND): REZONING approximately .4 gross acre from ML -(Light Industrial) zone to BA (Public Building) zone or whatever zone may be deemE:d a!,propriate by the Planning Commission. The su',ject property is located on the northeast corner of McClellan Road and Bubb Road. First Hearing. Assistant Planning Director CONan reported that in the Meeting of June 22, 1981, the application had been described in detail and the Commission had recommended approval of the change from zone ML to BA. He noted that the Santa Clara Valley Water District, owners of the property, had not objected. MOTION: SECOND: VOTE: Com. Blaine, to close the Public Hearing. Com. Koenitzer PASSED 5-0 SECOND: VOTE: Com. Blaine, to recommend the Negative Declaration of the Environmental Review Committee. Com. Koenitzer PASSED 5-0 MOTION: MOTION: SECOND: VOTE: Com. Blaine, to recommend approval of Application l5-Z-8l. Com. Binneweg PASSED 5-0 UNFINISHED BUSINESS COM. KOENITZER wanted to have a status report on the Housing Element at the next Meeting. Assistant Planning Director CO"7"n advised that he would be discussing it in the Planning Director's Report. NEW BUSINESS CHR. GLAUDY wanted to know the position at the northeast corner of Stevens Creek Boulevatd and Foothill Expressway. Assistant Planning Director Cowan assured him that a notice would be sent to the developer. REPORT OF THE PLANNING COMMISSION PC-36l Page 8 INUTES, JULY 27, 1981 REGULAR PLANNING COMMISSION MEETING OM. BLAINE wanted to know if there was some way to set a time limit on the tank house project, as she had a feeling it would become a hazard, even ith a fence. Assistant Planning Director Cowan said that he would talk to Mr. Terry Brown and have a report for them next time. COM. BLAINE thought it was the responsibility of Woolworth Construction and not Terry Brown, and further, as Woolworth was presently operating across the street from the site, it would be timely if the work could be done now. CHR. CLAUDY had noted in driving down Stevens Creek Boulevard in Manta Vista, that P.M. Communications was operating where Last Chance Pants had been, but that the Last Chance Pants sign was still visible through the paint, each letter having been blocked out separately, without the wall being repainted. The Commission agreed that action should be taken on the matter. CHR. CLAUDY had been in Augusta, Georgia, and remarked that Cupertino's construction, landscaping and signing was far superior. REPORT OF THE PLANNING DIRECTOR Assistant Planning Director Cowan wanted the Commission's reaction to the letter from the State on the Housing Element. Staff felt the request for information was technical, he said, and though they wanted the Public Hearing for August 24, 1981 to be well advertised, their recommendation was not to become involved in any policy changes. COM. KOENITZER had the feeling that the State was asking for some changes, and quoted the example of page 7, in the paragraph before the summary, where they seemed to be asking for manufactured home parks. COM. BLAINE had the feeling that the State was trying to represent new standards as 1977 standards. COM. KOENITZER did not see how the material in parag~aph lA could be gathered, or, in some cases, even defined. Assistant Planning Director Cowan advised that some of the information had been available in the 1970 census, but it was outdated, and the 1975 census did not include it. COM. BLAINE observed that she had not suggested the Public Hearing to consider changes, but for the community to come and see what the State mandated. COM. BINNEWEG thought the Cupertino Courier might write a story, not full of facts,but explaining what the'Commission and Council were up against.