2007-005 - Denying A Request To Operate A Restaurant In Conjunction With Retail Sales (Powell's Sweet Shoppe) On Property Zoned C-2. Apn:510-44-032 Conditional Use Permit: U-07-4 Property Location: 35 N. Santa Cruz Avenue Property Owner: Ritchie Asset MgmRESOLUTION 2007 -005
RESOLUTION GRANTING AN APPEAL OF A PLANNING COMMISSION DECISION
DENYING A REQUEST TO OPERATE A RESTAURANT IN CONJUNCTION WITH
RETAIL SALES (POWELL'S SWEET SHOPPE) ON PROPERTY ZONED C -2.
APN: 510 -44 -032
CONDITIONAL USE PERMIT: U -07 -4
PROPERTY LOCATION: 35 N. SANTA CRUZ AVENUE
PROPERTY OWNER: RITCHIE ASSET MGMT CO.
APPLICANT /APPELLANT: KNOTT FAMILY RESTAURANT/NEIL KNOTT
WHEREAS:
A. This matter came before the Town Council for public hearing on December 18, 2006,
and was regularly noticed in conformance with State and Town law.
B. Council received testimony and documentary evidence from the appellant/applicant
and all interested persons who wished to testify or submit documents. Council considered all
testimony and materials submitted, including the record of the Planning Commission proceedings
and the packet of material contained in the Council Agenda Report dated December 11, 2006, along
with subsequent reports and materials prepared concerning this application.
C. The applicant is requesting approval to sell gelato in conjunction with an existing
1,898 square foot retail candy store. The store currently contains four seats within an area to watch
television. No additional seats are proposed. The applicant operates from 10:00 AM to 11:00 PM
seven days a week. The major portion of the business is retail and has been conditioned as such.
D. The application was considered by the Planning Commission on October 11, 2006,
which acted to deny the application under the impression that the applicant knowingly sold gelato
without discussing this portion of his business with Town staff and obtaining the required
approvals. Subsequent to the hearing, staff became aware that the applicant did indeed discuss
with Town staff the sale of gelato as part of his operation prior to opening his business. Staff,
however, had understood that the gelato was prepackaged, which would be considered a retail
item. Therefore, there was a misunderstanding between Town staff and the applicant.
E. The applicant/appellant claims that the Planning Commission erred or abused its
discretion in that the findings could be made to approve the Conditional Use Permit, the
application is consistent with the General Plan and that staff did not collect adequate information
concerning the applicant's proposed business prior to issuing a business license. The applicant
also submitted a petition in support of the project, containing over 1,100 signatures, 95% of which
are Los Gatos residents.
F. The decision of the Planning Commission was incorrect and is hereby reversed.
G. Council finds as follows:
i. Although the application is requesting approval of a restaurant, the major
portion of the applicant's business is retail and the application has been conditioned as such. The
tenant space encompasses 1,898 square feet. Only a small portion of the tenant's space
(approximately 20 square feet for the refrigerated case) is for the restaurant portion of the
business. The approval of this use would not displace a retail establishment and would be
consistent with Section I of Ordinance 2021 regarding new restaurants in the C -2 zone.
Moreover, it is conditioned in a manner that will not permit a future full sized restaurant use.
ii. The request for a Conditional Use Permit allowing for the sale and service of
gelato on the applicant's business premises promotes policies and strategies of the General Plan
including: L.P.1.3 (encourage economic and social activity consistent with a small - scale, small
town atmosphere and image); L.P.5.1 (maintain a variety of commercial uses to meet the shopping
needs of residents and to preserve the small -town atmosphere); L.P.5.2 (emphasize retail uses in
the Commercial Business District); L.P.5.5 (encourage the development and retention of locally-
owned stores and shops); L.G.6.2 (preserve downtown Los Gatos as the historic center of the
Town with goods and services for local residents while maintaining the existing Town identity,
environment and commercial viability).
iii. Pursuant to Town Code section 29.20.300, the Planning Commission erred
in denying the application based on whether the applicant/appellant had knowingly sold gelato
without first obtaining a Conditional Use Permit. That question was irrelevant to the application
and should neither have been considered nor formed the basis of a decision on a land use
application. The role of the Planning Commission in reviewing a land use application is to decide
the matter solely on the merits of the application, applying all applicable Town laws, policies and
procedures to the evidence on the record of the application. The Planning Commission is not
empowered to punish past violations of the Town Code.
RESOLVED:
1. The appeal of the decision of the Planning Commission on Conditional Use Permit
application U -07 -4 is granted and the application is approved, subject to the conditions attached as
Exhibit "A" hereto.
2. The decision constitutes a final administrative decision pursuant to Code of Civil
Procedure section 1094.6 as adopted by section 1. 10.085 of the Town Code of the Town of Los
Gatos. Any application for judicial relief from this decision must be sought within the time limits
and pursuant to the procedures established by Code of Civil Procedure section 1094.6, or such
shorter time as required by State and Federal Law.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los
Gatos, California on the 16' day of January 2007, by the following vote.
COUNCIL MEMBERS:
AYES: Diane McNutt, Mike Wasserman, Steve Glickman, Barbara Spector, Mayor Joe
Pirzynski
NAYS: None
ABSENT:
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SIGNED:
YOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
\CLERK DMINISTRATOR_
TOWN OF LOS GATOS, CALIFORNIA
RECOMMENDED CONDITIONS OF APPROVAL FOR:
35 N. Santa Cruz Avenue
Conditional Use Permit U -07 -4
Requesting approval to operate a restaurant in conjunction with retail sales (Powells Sweet
Shoppe) on property zoned C -2. APN 510 -44 -032.
PROPERTY OWNER: Ritchie Asset Mgmt Co
APPLICANT: Knott Family Restaurant/Neil Knott
TO THE SATISFACTION OF THE DIRECTOR OF COMMUNITY DEVELOPMENT:
(Planning Division)
1. APPROVAL: This application shall be completed in accordance with all of the conditions
of approval listed below and in substantial compliance with the plans approved. Any
changes or modifications made to the approved plans shall be approved by the Director of
Community Development, the Development Review Committee or the Planning
Commission, depending on the scope of the change(s).
2. EXPIRATION: Zoning approval will expire two years from the approval date pursuant to
Section 29.20.320 of the Town Code, unless the approval has been vested.
3. BUSIN ESS OPERATION. This approval is for the sale of frozen dessert products in
conjunction with a specialty retail store. One frozen dessert case is permitted as shown on
the approved floor plans which encompasses approximately 20 square feet of retail space.
The dessert case shall not expand further into the retail space without approval of a
modification of the Conditional Use Permit.
4. HOURS OF OPERATION. Maximum hours of operation shall be from 10 AM to 11 PM
seven days a week.
5. SEATS. The maximum number of seats shall not exceed four. No outside seating is
permitted
6. RECYCLABLE MATERIALS. The restaurant shall utilize recycled products whenever such
a product is available.
7. LITTER. Employees of the business shall monitor the public right of way adjacent to the
business and pick up debris relating to the business.
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