2007-073 - Resolution Granting An Appeal Of A Planning Commission Decision Denying A Request To Operate A Restaurant On Property Zoned C -2 Apn: 529 -03 -035 Property Location: 42 Elm Street Property Owner: Michael Cobler Applicant /Appellant: Suh Chung KRESOLUTION 2007 -073
RESOLUTION GRANTING AN APPEAL OF A PLANNING COMMISSION DECISION
DENYING A REQUEST TO OPERATE A RESTAURANT ON PROPERTY ZONED C -2
APN: 529 -03 -035
PROPERTY LOCATION: 42 ELM STREET
PROPERTY OWNER: MICHAEL COBLER
APPLICANT /APPELLANT: SUH CHUNG KIM
WHEREAS:
A. This matter came before the Town Council for public hearing on May 21, 2007, and was
regularly noticed in conformance with State and Town law.
B. Council received testimony and documentary evidence from the applicant /appellant 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 May 11, 2007, along with any and all
subsequent reports and materials prepared concerning this application.
C. The appeal concerns a Planning Commission decision denying a request to operate a
restaurant on property zoned C -2.
D. The application was considered and denied by the Planning Commission on
April 11, 2007. The previous tenant at the project site (Cafe Rouge) received approval for a
Conditional Use Permit on August 21, 2006 for a high turnover /sit -down restaurant. The Conditional
Use Permit allowed for beer and wine service with meals, wine tasting, hours of operation from 6:00
AM to 1:00 AM seven days a week, alcohol service and retail sales limited between the hours of
11:00 AM to 11:00 PM, and outdoor seating. The applicant/appellant desires to modify this
Conditional Use Permit to operate a high turnover /sit -down restaurant, while discontinuing all alcohol
service, wine tasting, and retail alcohol sales and reducing the hours of operation to 10:00 AM to 9:00
PM. Although both the approved and proposed restaurants are classified as high turnover /sit -down
restaurants, the operation of the approved and proposed restaurants was determined to be substantially
different. The Commission denied applicant /appellant's request to modify the Conditional Use
Permit because it was concerned that there was a saturation of restaurants selling dessert products in
the downtown area including frozen yogurt, ice cream, and gelato. The Commission felt that to
approve additional shops would be inconsistent with the General Plan goal of providing a mix of
commercial uses.
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 and the application is
consistent with the General Plan and that the Commission failed to collect adequate Planning
Department Policy information regarding the proposed business.
F. The decision of the Planning Commission was incorrect and is hereby reversed.
G. Council finds as follows:
i. The request for a modified Conditional Use Permit 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). Council notes that the use, a high turnover /sit down restaurant, is essentially the same as
that which was previously approved, but with a lesser impact resulting from the elimination of the
permit to sell alcohol and conduct wine tasting and the reduced hours of operation.
ii. Pursuant to Town Code section 29.20.300(b)(3), the decision involved an issue of
policy over which the Planning Commission did not have discretion to modify or address, but which
is vested in Council for modification or decision; to wit, whether it is appropriate under the policies
and rules of the Town, including the General Plan and Zoning Code, to regulate the concentration of
businesses within a common zoning use category, such as high turnover /sit down restaurant, by
distinguishing their particular product, such as dessert. Council finds that it is not appropriate to do
SO.
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 4`" day of June 2007, by the following vote.
AYES: Steve Glickman, Diane McNutt, Barbara Spector, Mike Wasserman, and Mayor Joe
Pirzynski
NAYS: None
ABSENT:
ABSTAIN:
SIGNED: C"-�
2u
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CL R ADMINISTRATOR
TO OF LOS GATOS, CALIFORNIA
RECOMMENDED CONDITIONS OF APPROVAL FOR:
42 Elm Street
Conditional Use Permit U -07 -24
Requesting approval to modify an existing conditional use permit (CUP) to allow a coffee
and yogurt business (Cafe Delatti) on property zoned C -2. APN 529 -03 -035
PROPERTY OWNER: Michael Cobler
APPLICANT: Sub. Chung Kim
TO THE SATISFACTION OF THE COMMUNITY DEVELOPMENT DIRECTOR:
(Planning Section)
1. CONDITIONS: These conditions of approval shall supersede all previously adopted
conditions.
2. 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 and noted
as Exhibit E in the report to the Planning Commission. Any changes or modifications made
to the approved plans shall be approved by the Director of Community Development or the
Planning Commission, depending on the scope of the changes.
3. LAPSE FOR DISCONTINUANCE: If the activity for which the Conditional Use Permit
has been granted is discontinued for a period of one (1) year the approval lapses.
4. USE: The approved use is a high turn over sit down restaurant.
5. NUMBER OF SEATS: The maximum number of seats for the restaurant shall not exceed
12 seats total indoors and outdoors.
6. HOURS OF OPERATION: Maximum hours of operation for the restaurant shall be 10:00
AM to 9:00 PM seven days a week.
7. ALCOHOL SALES: Alcohol service and retail alcohol sales shall not be permitted.
8. TAKE OUT: Take out food shall be served in recycled material containers.
9. UTENSILS: All beverages and food served on site shall be served on reusable materials.
10. TRASH: Operators of the restaurant shall provide onsite trash receptacles and shall pick
Lip trash along the business frontage and in the vicinity of the restaurant when outdoor
seating is available.
TO THE SATISFACTION OF THE BUILDING DEPARTMENT:
(Building Section)
11. PERMITS REQUIRED: A building permit shall be required for any interior tenant
improvement to the existing commercial building. Separate permits are required for
electrical, mechanical, and plumbing work as necessary.
12. CONDITIONS OF APPROVAL: The Conditions of Approval must be blue -lined in full on
the cover sheet of the constructions plans. A Compliance Memorandum shall be prepared
and submitted with the building permit application detailing how the Conditions of
Approval will be addressed
13. SIZE OF PLANS: Four sets of construction plans, maximum size 24 "x36 ".
14, BACKWATER VALVE: The scope of this project may require the installation of a
sanitary sewer backwater valve per Town Ordinance 6.50.025. Please provide information
EN
42 Elm Street — April 11, 2007
Conditional Use Permit U -06 -20
Page 2
on the plans if a backwater valve is required and the location of the installation. The Town
of Los Gatos Ordinance and West Valley Sanitation District (WVSD) requires backwater
valves on drainage piping serving fixtures that have flood level rims less than 12- inches
above the elevation of the next upstream manhole.
15. TITLE 24 — COMMERCIAL: For any proposed tenant improvements, the building shall be
upgraded to comply with the latest California Title 24 Accessibility Standards. Necessary
work shall be first investigated by the design architect, then confirmed by Town staff.
16. TITLE 24 — RESTAURANT USE: Proper size grease trap shall be required for any
restaurant use. The following agencies will review the grease trap requirements before
issuance of the building permit:
a. West Valley Sanitation District (WVSD): (408) 378 -2408
b. Environmental Health Department: (408) 885 -4200
c. Town Public Works Department: (408) 399 -7530
17. SPECIAL INSPECTIONS: When a special inspection is required by UBC Section 1701,
the architect or engineer of record shall prepare an inspection program that shall be
submitted to the Building Official for approval prior to issuance of the building permit.
The Town Special Inspection form must be completely filled -out, signed by all requested
parties, and be blue -lined on the construction plans. Special Inspection forms are available
from the Building Division Service Counter or online at www.los atg osca.gov / building
18. NONPOINT SOURCE POLLUTION STANDARDS SHEET: The Town standard Santa
Clara County Valley Nonpoint Source Pollution Control Program Sheet (or Clean Bay
Sheet 2406) shall be part of the plan submittal as the second page. The specification sheet
is available at the Building Division Service Counter for a fee of $2 or at San Jose Blue
Print for a fee.
19. PLANS: The construction plans shall be prepared under the direct supervision of a licensed
architect or engineer. (Business and Professionals Code Section 5538).
20, APPROVALS REQUIRED: The project requires the following departments and agencies
approval before issuing a building permit:
a. Community Development — Planning Division: Elizabeth Pettis at 354 -6802
b. Engineering/Parks & Public Works Department: Fletcher Parsons at 395 -3460
c. Santa Clara County Fire Department: (408) 378 -4010
d. West Valley Sanitation District: (408) 378 -2407
TO THE SATISFACTION OF THE DIRECTOR OF PARKS AND PUBLIC WORKS:
(Engineering Division)
21. RAILING: A railing of similar materials and appearance to that used on the adjacent
parking structure shall be provided along the back side of the handicap ramp. The rail shall
be provided prior to issuance of a certificate of occupancy, or within 3 months of issuance
of the Conditional Use Permit, whichever comes first.
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