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107-F. Planning Commission staff report of December 14, 2010.pdfATTACHMENT F Agenda Item No. 9- OFFICE OF COMMUNITY DEVELOPMENT CITY HALL 10300 TORRE AVENUE - CUPERTINO, CA 95014-3255 (408) 777-3308 - FAX (408) 777-3333 - planning@cupertino.org Agenda Date: December 14, 2010 Application: M-2010-08 Applicant: Jane Vaughan (Cupertino Housing Partners, LLC) Location: 19501-19507 Stevens Creek Boulevard (APN 316-49-999) APPLICATION SUMMARY Amendment to a Modification application (M-2010-03) of a previously approved Use Permit (U-2003-04) to amend Condition No. 2 (Parking) to allow the parking requirements to be incorporated into an appropriate alternate legal document in lieu of the covenants, conditions and restrictions (CC&Rs). RECOMMENDATION Staff recommends that the Planning Commission recommend that the City Council approve the proposed amendment in accordance with the Model Resolution (See Attachment 1). BACKGROUND On October 5, 2010, the City Council approved a Modification (M-2010-03) to a previously approved Use Permit (U-2003-04) and Exception to the Heart of the City Specific Plan (EXC-2010-03) to allow the following: 1. Up to 40% of the total retail space as non -retail restricted to Building B (19501 Stevens Creek Boulevard); and 2. Allow medical use as a non -retail use, with staff to work with the applicant to determine the correct parking count for surface parking and underground parking to accommodate medical use. One of the conditions (Condition No. 2) associated with M-2010-03 also requires that the CC&Rs of the development be amended and recorded to require that employees of the retail commercial uses park in the existing available and unused parking spaces in the underground parking garage, and that such parking must be striped for retail use only. (Please see Attachment 2, City Council Action Letter dated October 7, 2010 for additional details.) M-2010-08 Metropolitan Complex December 14, 2010 Page 2 The applicant, however, is requesting an amendment to this condition to allow an alternate legal document to be recorded on the property that memorializes this parking requirement, rather than in the CC&Rs. The proposed amendment will not result in any physical or use changes in the development. DISCUSSION The applicant (See Attachment 3, Applicant's Justification Letter) states that the CC&Rs is not the appropriate instrument to regulate the retail parking requirements since the shared parking in the parking garage is controlled via an easement, not by the CC&Rs. Additionally, the applicant notes that changing the CC&Rs would be difficult because it would require the approval of all 107 residential unit owners and their lenders as members of the homeowners' association of the development. In lieu of incorporating the parking requirements into the CC&Rs, the applicant is requesting the modification to allow the parking requirements to be incorporated and recorded in a Parking License Agreement for each retail building (See Attachments 4 and 5, Draft Parking License Agreements), which includes Building A located at 19505 Stevens Creek Boulevard and Building B located at 19501 Stevens Creek Boulevard. The proposed changes to the Condition No. 2 are outlined as follows (the underlined language represents the newly proposed language, and the strikethrough represents the proposed deleted language): 2. PARKING Employees of the commercial spaces shall be required to park in the existing available and unused parking spaces in the underground parking garage of Building B that were originally designed for use by the office complex. No more than seven (7) of these spaces may be used to accommodate employee parking for the commercial spaces with the provision that such parking spaces are to be striped for commercial employee parking only to ensure that the surface parking is made available to customers of the commercial uses only, and that these requirements will be incorporated into an appropriate legal document as deemed acceptable by the City Attorney and Director of Community Development the rs. The City Attorney has reviewed and supports the attached draft Parking License Agreements to fulfill the requirements of the proposed amended condition. However, since the City is not a party to the Parking License Agreements (as would have been the case in the CC&R option), the City Attorney is recommending an additional condition requiring the property owner to provide advance notice of proposed changes to the Parking License Agreement, as well as a copy of any document recorded in the future related to parking. This is reflected in Condition No. 3 of the Model Resolution. Follow up on the Department of Real Estate Notification Condition As part of the conditions of approval for M-2010-03, the Council required that the applicant work with staff to reconcile paperwork that notifies the Department of Real M-2010-08 Metropolitan Complex December 14, 2010 Pace 3 Estate that the City recognizes there are only two retail condominium units, consisting of the retail Building A and Building B. To comply with this requirement, the applicant has submitted draft Declarations of Restrictive Covenants (See Attachments 6 and 7), one for each building, for the City's review that the applicant will record and send to the Department of Real Estate with a cover letter. These restrictive covenants clarify the number of retail spaces in each building, and that retail spaces in each building must be owned by the same owner. The covenants make it clear that separate retail spaces in each retail building cannot be owned by different property owners since each retail building is considered one retail condominium unit. ENVIRONMENTAL REVIEW This project is categorically exempt per Section 15301 (Existing Facilities) of the California Environmental Quality Act (CEQA) since no physical or use changes will occur as a result of this project. Prepared by Aki Honda Snelling, AICP, Senior Planner Reviewed by: G ao City Planner ATTACHMENTS Attachment 1 Attachment 2 Attachment 3 Attachment 4 Attachment 5 Attachment 6 Attachment 7 Approved by: 'k arti Shrivastava Community Development Director Model Resolution October 5, 2010 City Council Action Letter Applicant's Justification Letter Parking License Agreement for Building A Parking License Agreement for Building B Declaration of Restrictive Covenant for Building A Declaration of Restrictive Covenant for Building B G: Planning/pdreport/pcMreports/2010Mreports/M-2010-08