Loading...
Minutes - 09-25-13 - PC Planning Commission Minutes Page 1 September 25, 2013 TOWN OF LOS GATOS PLANNING COMMISSION MEETING ACTION MINUTES TOWN COUNCIL CHAMBERS 110 E. MAIN STREET WEDNESDAY, SEPTEMBER 25, 2013 Chair Charles Erekson called the meeting to order at 7:00 p.m. ROLL CALL Present: Absent: Chair Charles Erekson, Vice Chair Margaret Smith, Commissioner John Bourgeois, Commissioner Kendra Burch, Commissioner Thomas O’Donnell, Commissioner Marico Sayoc and Commissioner Joanne Talesfore None Others: Town Attorney Judith Propp, Community Development Director Sandy Baily, Planning Manager Joel Paulson, Senior Planner Erwin Ordoñez, Associate Planner Marni Moseley, and Sgt. Stephen Walpol PLEDGE OF ALLEGIANCE Led by Commissioner Talesfore. APPROVAL OF MINUTES OF SEPTEMBER 11, 2013 Motion by Commissioner Talesfore and seconded by Commissioner Bourgeois to approve meeting minutes of September 11, 2013. Motion carried 7-0. WRITTEN COMMUNICATIONS Desk Item for Agenda Item #1 REQUESTED CONTINUANCES - NONE Planning Commission Minutes Page 2 September 25, 2013 SUBCOMMITTEE REPORTS North 40 Specific Plan Advisory Committee - Commissioner Sayoc reported that the committee met on September 24, 2013, and finalized its review. Its next meeting is October 15, 2013. At that point, environmental reviews will take place as well as an Urban Decay Study. Those reports and the draft Specific Plan will come to the Planning Commission, then to Town Council. General Plan Advisory Committee - Commissioner Bourgeois reported the committee met earlier today and that the Affordable Housing Overlay Zone (AHOZ) was wrapped up at a previous meeting, including the criteria and draft Design Guidelines. The committee requested this come back to revise the setback requirement on a site-by-site basis. The Committee approved this with some minor changes. This will come to the Planning Commission on October 9, 2013. Historic Preservation Committee - Commissioner Burch reported the committee met earlier today and sent 212 Bean Avenue back to staff to review the required setbacks with the applicant, approved exterior modifications at 182 Massol Avenue, approved an addition for 200 Johnson Avenue, and directed the staff to meet with the applicant for 445 Los Gatos Boulevard for additional information on the Town’s process. VERBAL COMMUNICATIONS – Larry Arzie spoke about concerns on possible impacts on the downtown resulting from the implementation of the North 40 Specific Plan. CONSENT CALENDAR – NONE CONTINUED PUBLIC HEARINGS - NONE NEW PUBLIC HEARINGS 1. Town Code Amendment Regarding Live Entertainment Uses. Zoning Code Amendment A-13-04. Consider adoption of Amendments to Chapter 29 (Zoning Regulations) of the Town Code regarding land use regulations for live entertainment uses. It has been determined that there is no possibility that this project will have a significant impact on the environment; therefore, the project is not subject to the California Environmental Quality Act (Section 15061(b)(3)). Adoption of Amendments to Chapter 3 (Amusements) of the Town Code regarding a permit for live entertainment and adoption of the Alcoholic Beverage Policy. LOCATION: Town-wide. APPLICANT: Town of Los Gatos. PROJECT PLANNERS: Marni Moseley/Erwin Ordoñez Chair Erekson opened the public hearing. Associate Planner Marni Moseley presented the first part of the staff report. Senior Planner Erwin Ordoñez presented the second part of the staff report. Planning Commission Minutes Page 3 September 25, 2013 Chair Erekson asked if there were questions of staff. Commissioner Talesfore  Asked why the Planning Commission isn’t included in the matrix provided. Marni Moseley  Commented that it was previously clarified on an earlier matrix.  Commented that any Conditional Use Permit involving alcohol service follows the same process.  Commented that this particular matrix is an example and won’t be adopted as part of the final document. Commissioner Talesfore  Commented that the last public meeting on this Amendment was just held on September 12, 2013, as which time a whole list of concerns was received from the community.  Asked if the concerns raised at the September 12, 2013, meeting were addressed in the document and, if so, how. Erwin Ordoñez  Commented that there were questions regarding enforcement and penalties that were raised.  Commented that the existing ordinance has penalties on page 12. A $1,000 fine, a possible six-month imprisonment, and a misdemeanor for violation of the ordinance. Commissioner Talesfore  Asked if the current standards for existing Conditional Use Permits are at about the same level as these being proposed. Would existing Conditional Use Permit holders be asked to embrace the new policy standards? What about those from years ago? Marni Moseley  Commented that existing Conditional Use Permits with conditions of approval requiring an Entertainment Permit will be required to comply with the current policies. Director Sandy Baily  Commented that existing Conditional Use Permits that do not have conditions of approval in place to comply with the Town’s proposed Entertainment Ordinance will not be subject to the standards. If this policy is adopted, it won’t be retroactively applied to existing approved uses  Commented that it depends on how old the application is. Commissioner O’Donnell  Commented that he is concerned about how each Commissioner’s respective comments will be relayed to staff.  Asked if written proposed edits would be submitted to the Town Attorney. Some are simply drafting comments that don’t require discussion but others raise issues. Planning Commission Minutes Page 4 September 25, 2013 Vice Chair Smith  Commented on the definition of “Live Entertainment.” There is an exclusion stating, “Live entertainment shall not include any live entertainment provided solely without human interaction.”  Commented that in the past year, the Commission had an application before it where the only entertainment proposed would be through an iPod or iPad and would be indoors. The Commission approved limited use. She recently walked by this establishment and the building was rocking because of the “non man-made” live entertainment.  Asked if the language is where it needs to be given that technology requires no more human interaction than plugging it in. Erwin Ordoñez  Commented that staff has attempted to make this definition fairly broad. The concern noted refers more to enforcement of the Noise Ordinance, which would be the appropriate vehicle to handle that concern.  Commented that requirements could be added to the operating agreement or permit such as requiring doors be kept closed at all times or imposing limitations as to monitoring sound levels or establishing appropriate standards.  Commented that those tools (Operating Agreement and Entertainment Permit) would be incorporated into the Ordinance being proposed. Vice Chair Smith  Commented that only the major tier would be required to have a year-by-year permit review.  Asked if it is feasible to have permit review of minor tier uses as well. Erwin Ordoñez  Commented that it was certainly within the Commission’s rights to make such recommendations to the Town Council regarding this Ordinance. Commissioner Talesfore  Asked if this document relating to Live Entertainment is for inside entertainment only. Marni Moseley  Commented that this ordinance is restricted to indoor entertainment at this time. Sandy Baily  Commented that if the Commission has concern with some of the definitions it is within its purview to make such recommendations to Town Council. Larry Arzie  Commented against the Ordinance as these added uses would increase intensification without requiring the provision of additional parking. The added requirement for new parking is necessary before allowing such intensifications (alcohol, late hours, or live entertainment), as each would cause intensification. Planning Commission Minutes Page 5 September 25, 2013 Chris Wiley  Commented that she’s lived across the street from the Bocce Court since 1980.  Commented that she once supported an establishment proposed near her home, nut has discovered since that there is no way to police noise impacts.  Commented that she wants operators to manage their patrons.  Commented that her complaints, as well as her neighbors are being acknowledged.  Commented that once Bocce Court arrived, parking and noise became a problem.  Asked the Commission to consider noise impacts on the entire area, not just adjacent properties. Commissioner Sayoc  Asked Ms. Wiley about her experiences with enforcement of complaints after notifying the establishment.  Asked if she has ever called the Police Department on this issue. Chris Wiley  Commented that she has called the Police and complained to the business owner. The Police indicated that it was not their job to manage the operations. The business managers told her she was the only one complaining. Commissioner Talesfore  Asked Ms. Wiley if she was told how to file a formal complaint. Chris Wiley  Commented that she came to the Planning Department and was told to call the Police when the problems were actually occurring in order to build up a history of reports on enforceable complaints. The Police Department told her she needed to get a copy of their Use Permit to show them what’s allowed or not. Chair Erekson closed the public hearing. Chair Erekson  Suggested conducting separate discussions on each of the three categories: amendments to the Alcohol Beverage Policy; discussion and recommendations of proposed Land Use regulations within Chapter 29; and then focus on the Live Entertainment regulatory process within Chapter 3.  Commented that content specific and/or substantive changes would be discussed tonight. Commissioner O’Donnell  Commented that Mr. Arzie feels that the three things under discussion do result in intensification of use but the documents don’t treat them that way.  Commented that he would like staff to tell him if they consider them an intensification of use. If they do, how have they responded? If they don’t think so, could they explain their reasoning for determining that view? Planning Commission Minutes Page 6 September 25, 2013 Erwin Ordoñez  Commented that the definition for Live Entertainment states that the use itself is primary, while the live entertainment component is ancillary or a supportive type of use.  Commented that a typical application might be a restaurant wanting musicians to play. That could be considered an additional amenity, but the musicians themselves are not doing anything to trigger additional traffic or other impacts if they are wholly within the building and noise is not permeating beyond the walls of the building. Commissioner O’Donnell  Commented that it seems the concern is primarily about alcohol and live entertainment. If you have a restaurant with entertainment occurring after 10 p.m., that ancillary use is intensified because normally the amount of business after 10 p.m. would be increased as a result if the entertainment is successful.  Commented that the assumption has been made that because it is an ancillary use, it couldn’t be intensification. He suggested that is not true. Sandy Baily  Commented that pursuant to Town Code, the definition of intensification of use is if there is an increase of five or more trips at peak hour. That would not be intensification of use in terms of traffic. Commissioner O’Donnell  Asked how staff would know that a particular restaurant wouldn’t have an increase of traffic of five or more as a result of the live entertainment.  Commented that it seems that if it is between 10 p.m. and midnight, you could have a lot of traffic and we don’t care about that. Sandy Baily  Commented that it is during peak hours pursuant to Town Code, which is where you would read to make recommendations.  Commented that parking for an ancillary use wouldn’t change, it would stay the same as with the original use on site. Marni Moseley  Commented that parking and traffic are assessed based on seating in both those types of uses.  Commented that if an applicant were proposing to increase the number of seats, the use would only be considered an intensification if they are proposing any additional seating per Town Code regulations. Commissioner O’Donnell  Commented that a restaurant doesn’t typically have the same volume of use after 10 p.m. Since entertainment would add a greater volume of use, there would be resulting additional traffic and parking demand at hours they normally would not have it. Those are the hours the Commission is concerned about, after 10 o’clock. Planning Commission Minutes Page 7 September 25, 2013 Erwin Ordoñez  Commented that should there be a use that would have to amend its Conditional Use Permit, as part of that, the applicant is required to justify the use and the Commission must make findings as to whether the proposal represents intensification and what the impacts of it might be. Sandy Baily  Commented that previous late night uses with entertainment discussion of those issues occurred even though it was after peak hour trips and technically the parking and seating wasn’t increasing.  Commented that if the Commission wants to present further amendments to the Town Council for its consideration regarding this matter, it can do so. Commissioner O’Donnell  Commented that the question is, has intensification been ignored. With the new Ordinances, there is no mention of intensification.  Commented that Conditional Use Permits done in the past are vested and by and large the Commission can’t touch them.  Commented that uses with entertainment will draw in additional people specifically for the entertainment. Town Attorney Judith Propp  Commented that this issue is within the purview of the Planning Commission this evening.  Commented that if the Commission perceives issues and raises those as recommendations that should be forwarded to the Town Council.  Commented that if the Commission doesn’t think conditions can be included in the Conditional Use Permit, it should recommend Town Code amendments to the definition of intensification or use what increases the need for parking. Those are recommendations the Planning Commission should consider and move forward. Erwin Ordoñez  Commented that if the concern is late night hours or alcohol service, one of the tools being proposed as part of this change is the Operating Agreement. Within the Operating Agreement, you have the ability to mitigate some of those potential uses and impacts.  Commented that it may be appropriate to provide some recommendations on what should be in the Operating Agreement templates that are moving forward. Commissioner Sayoc  Commented that currently the number of parking spaces a restaurant has is tied to the number of seats they have in their restaurant.  Commented that by changing their business model after 10 p.m., one would presume they’d have more people that don’t necessarily need the seats anymore, since they’re not sitting down for a meal.  Asked how the parking structure can change so it is no longer looking at the traditional restaurant ratio. Planning Commission Minutes Page 8 September 25, 2013 Sandy Baily  Commented that those are the exact discussions that have come up with recent applications regarding entertainment. If that’s a concern of the Commission, it should forward comments to the Town Council indicating that this needs to be looked at and addressed. Further revisions would have to be made on how to handle that. Commissioner Sayoc  Commented that this is an issue that the Commission should identify or recommend a solution for before it is finalized.  Asked if a business is required to police its parking spaces or only to maintain what’s indoors. Is there a general policy? Sandy Baily  Commented that it is not a specific policy and it depends on the conditions.  Commented that staff learns how to impose new conditions based on previous applications.  Commented that it is the business owner’s responsibility to regulate their property. Commissioner Sayoc  Asked if the site regulating includes the parking. Sandy Baily replied yes. Commissioner Sayoc  Asked if there is a standardized process that clearly states where to call for complaints.  Asked if there were any lessons learned from the previous issue with the Toll House that can be used for future establishments? Sandy Baily  Commented that Council is working on Code Compliance Procedures, to include how to make the process more open to the public, what the process is; how to make things more available on the Town’s website; and to make it more user-friendly so the process is understandable as opposed to someone trying to read and figure out the Town Code.  Commented that staff is also proposing to get Conditional Use Permits on line and available for the general public to see so they know what the conditions of approval are for each use. Commissioner Sayoc  Asked if something tangible could be folded into this process in terms of enforcement. Sandy Baily  Commented not in the terms of this process. It is a separate Town Council process that is being worked on. It is a very sensitive issue right now and proceeding concurrently in some ways including timing. Planning Commission Minutes Page 9 September 25, 2013 Commissioner Talesfore  Commented she doesn’t recall seeing the Operating Agreements.  Asked if the Commission could request seeing the operating agreement prior to making decisions on future alcohol permits. Marni Moseley  Commented that in the past the Operating Agreements have been drafted either as part of the Council discussion and then finalized after the Town Council meeting. There’s no set procedure that needs to be followed. Commissioner Talesfore  Commented on Exhibit 4, page 4 of the policy, Review Process that reads: “If the Director of Community Development becomes aware of any alcohol related impacts on the surrounding neighborhood, the Director shall review the operation of the business to determine whether there is a violation of the Conditional Use Permit.”  Commented that this sentence should begin with “when” and not “if”. Vice Chair Smith  Commented that it has been recommended (from the Outreach Meeting comments) that there be a specific Code Enforcement Officer that works in the evening to look at these establishments.  Asked if this particular Code Enforcement Officer is an employee of the Police Department or the Planning Department. Sandy Baily  Commented that this would be a Code Enforcement Officer within the Community Development Department. Right now existing staffing would not have the capacity to work evenings. It would be Council’s decision on how they want to handle that position.  Commented that there have been occasions when a Code Enforcement Officer has gone out in the evening. Vice Chair Smith  Commented that she has seen Standard Operating Agreements used in other situations.  Asked who enforces Standard Operating Agreements (Code Enforcement or Police)?  Commented that the Police Department is going to be involved in the permitting process. Sandy Baily  Commented that it is a joint agreement so it really depends on what the issues are. It could be the Community Development Department that would go out or the Police Department. Vice Chair Smith  Commented that if a citizen called the Police Department to make a complaint and didn’t have the Standard Operating Agreement, they wouldn’t know if the use was in compliance. Planning Commission Minutes Page 10 September 25, 2013 Sandy Baily  Commented that it would be the Town responding. The nature of the complaint will dictate what Department will follow through regarding compliance. Vice Chair Smith  Asked if it is feasible to have a Standard Operating Agreement for every business with either alcohol or entertainment. This would include both Tier 1 (Minor) and Tier 2 (Major).  Asked what if a Tier 1 has entertainment. Sandy Baily  Commented that Tier 1 uses don’t have alcohol service so there wouldn’t be a Standard Operating Agreement for those uses.  Commented that it is a possibility. If the Planning Commission feels it is pertinent, it can forward that recommendation on to the Town Council. Vice Chair Smith  Commented that at the joint study session, it was discussed whether it could require Standard Operating Agreements for those businesses that were established prior to the last two years. Sandy Baily  Commented that it would only be businesses approved in the last two years that had a condition of approval imposed that would have to comply. Vice Chair Smith  Commented that Ms. Propp had previously stated there could be some sort of amortization schedule established to capture agreements from businesses that didn’t have this condition in their approval to also comply with these new regulations. Asked Ms. Propp to confirm. Town Attorney Judith Propp  Commented that she had not reviewed the previous minutes specific to that; however, that is something staff could look at if so directed by Council. It would have to be researched as to whether that is feasible and/or lawful on vested rights for existing Conditional Use Permits.  Commented that this is not something Council has asked staff to do at this time Vice Chair Smith  Commented that she has reasons for that suggestion especially if the Town is going to require these new businesses to come back year-by-year for a review.  Commented that complaints being received are against established businesses that have been here longer than two years.  Commented that she is trying to figure out how to get all uses under compliance and recommended to Council that an amortization schedule be prepared. Commissioner O’Donnell  Commented if the Code Enforcement Officer is responsible for this and goes home at 5 p.m., we’re setting up a system with no enforceability. There is fewer staff working fewer hours.  Commented they should consider whether a recommendation to Council can actually work. Planning Commission Minutes Page 11 September 25, 2013  Commented that some conditions imposed on Conditional Use Permits are not observed and nothing ever happens as a result.  Commented that comments to that effect should be forwarded on to Council and/or something added in the Ordinance. If not enforced, an Ordinance is a waste of time. Commissioner Talesfore  Commented that there’s a conflict in the Alcohol Beverage Policy, Exhibit 4, page 3, #9 of the General Policy, in which limited alcohol service is allowed for those waiting for a table.  Asked how that provision would be monitored and enforced and stated that the General Policy should be eliminated.  Commented that the General Policy that strongly discourages alcohol service requires help in defining “strongly” discourage. Sandy Baily  Commented it is existing wording within the policy. The Commission can suggest changes. Commissioner Talesfore  Commented that a mission or purpose policy statement is needed. Commissioner Bourgeois  Asked why they are striking out an entire policy to discourage alcohol sales in conjunction with entertainment establishments.  Commented that entertainment is supposed to be only an ancillary use.  Commented that his recommendation is not to strike General Policy 2, on Exhibit 4, page 1. Commissioner Sayoc  Stated her concurrence with that.  Commented that “strongly discourage” is clear. The Commission follows these rules and it becomes Council’s interpretation.  Commented that she would like Council to think about the standard to strongly discourage.  Commented that General Policy 1 hasn’t changed unless the interpretation has changed. Chair Erekson  Commented that the first sentence captures the purpose of the policy.  Asked whether denying an application requires findings. Sandy Baily  Commented that no findings are required to deny this type of application. The Commission makes justifications or reasons for the denial that are then forwarded to the Town Council so they will understand the reasons. Commissioner Sayoc  Commented that you could use Item 1 for a justification of denying. Planning Commission Minutes Page 12 September 25, 2013 Chair Erekson  Asked if there is a presumption that if an applicant, even one with a legitimate business and business license, goes forward that the Commission could simply deny it on the basis that we strongly discourage that particular use. Commissioner O’Donnell  Commented that the burden should be on the applicant to get over our policy of strong discouragement. The applicant must present compelling reasons for the Commission not to go forward with our recommendation to strongly discourage their use. Chair Erekson  Asked what those compelling reasons could be.  Commented that he was drawing on the language of what would be the purpose of the policy or its intent. Commissioner O’Donnell  Commented that he can’t remember the last time a request to serve alcohol was turned down.  Commented that if there’s a policy to strongly discourage alcohol, it is strongly ignored. Commissioner Burch  Commented that this language is not for a restaurant with alcohol. It’s for stand-alone bars with full alcohol service or restaurants with separate bars with full liquor service. That is different from a new restaurant coming in wanting to serve alcohol with meals. Commissioner O’Donnell  Commented that if you go into a restaurant with a bar, they have people sitting at the bar arguably waiting for a table. There’s no way of knowing if a person is waiting for a table to open. They can change their mind and walk out the door without having dined.  Commented that this policy has been in place forever and makes no sense. Commissioner Burch  Commented that the description means the applicant comes to us with reasons why they shouldn’t be strongly discouraged, rather than the Planning Commission justifying why it is strongly discouraging it.  Commented that the policy is trying to determine the approval process and enforcement, but how do we enforce what the definition is and what was the need for breaking these out? Marni Moseley  Commented that the Conditional Use Permit for that particular business would usually specify what that counter is to be used for.  Commented that during her time in Los Gatos, the Town has not approved any new restaurant with separate bars, where you can order a beverage and not be required to order your food there as well.  Commented that they are all food counters. They may look like a bar and that is where the discussion has stemmed over the years as far as providing that clarification. Planning Commission Minutes Page 13 September 25, 2013 Commissioner O’Donnell  Commented that this town is full of restaurants that have bars. Commissioner Bourgeois  Commented that the key question is how we are defining a separate bar.  Commented that applicants have claimed a food prep counter but when you see it, it’s a bar.  Commented that his issue with how food service counters, versus bars are defined. He suggested getting rid of food counter altogether. It is simply perpetrating an issue that has been a concern for years on what is a separate or stand-alone bar. Commissioner Talesfore  Commented that a separate bar is defined as the area that is separate from a restaurant with a physical barrier from the dining area. We cannot approve it if the bar is physically separate from the dining area. Vice Chair Smith  Commented that another issue she raised earlier is the enforcement for both policies.  Commented that for the Entertainment Policy, there will be law enforcement inspections and a revocation process.  Commented that the Alcohol Enforcement Policy, on page 5, states on Enforcement: “The Town Council authorizes the Town Manager to take enforcement action if it is determined that the sale of alcohol has become a nuisance to the Town’s public health, safety, or welfare.”  Commented that there is an established step-by-step policy for enforcement of entertainment uses but when it comes to the enforcement of alcohol it’s not as clear.  Commented that what has been learned from this past year is that in at least one situation no one is keeping track of complaints.  Asked how the number and types of calls for service at or near a specific establishment that are a direct result of that establishment’s patrons’ actions are tracked. Does the Town Manager receive this information?  Commented that there is currently no Code Enforcement Officer available in the evening, so only altercations requiring Police response have a report.  Commented that there is no way to tabulate citizens’ complaints of noise impacts, etc. Chair Erekson  Asked the Town Attorney if there is a specific legal meaning where the term “nuisance” is used or is it a more common definition. Judith Propp  Commented that it has a legal significance. In the Town Code and State law, there are certain criteria to determine what a nuisance is, a public nuisance versus a private nuisance, and are bound by that. Staff will look at that issue going forward. Planning Commission Minutes Page 14 September 25, 2013 Commissioner Sayoc  Commented that she shares Vice Chair Smith’s concerns.  Commented that parking and enforcement are the two issues she wants to make sure are clear in both of these documents and should include what a resident neighboring these businesses can do if there are issues.  Commented that how to allocate parking based on our new definition of a restaurant is being reviewed.  Commented that it seems that like with Code Compliance, there is also a parallel track. How do we make sure that parallel track gets put into this document so when this moves forward it’s not just an empty document without teeth?  Commented that she’d like it to be very clear who gets called; who will respond; and how many complaints before someone actually looks at this permit agreement. Commissioner O’Donnell  Commented that part of the problem is that enforcement means more people.  Commented that the burden of proving no adverse impacts should fall on the applicant. The policy could include considerations of what impact, if at all, would this new use (sale of alcohol and/or entertainment) have on traffic at hours we have not evaluated. We can tell the Council that we’re very concerned about the apparent absence of that consideration and are inviting the Town Council to figure out how best to address it. Commissioner Talesfore  Commented that the process hasn’t been clearly defined.  Commented that she feels less secure if she lets this document go without something clearly defined on enforcement, available to our residents and then acted on until resolved. Commissioner Burch  Commented that there is an Enforcement Policy in the works and if there’s a way to word these documents now to tie anything that falls within these documents, including Conditional Use Permits that have been approved in the last two years, to be tied to these and later tied to those documents. Sandy Baily  Commented that a complaint process is in place. If someone calls into the Town, staff would investigate to see if it is a legitimate complaint and whether the business owner is complying with their Conditional Use Permit. If staff determines there is an issue or that the applicant is not complying, staff then works with that business owner to achieve compliance. If the owner won’t work with staff, there’s a process of bringing the Conditional Use Permit back to Planning Commission for consideration of either a modification or revocation of the use.  Commented that Council is looking to be more open to the community; to make it more available; to let them know what that process is; and to be more user friendly. Commissioner Burch  Asked if parking based on seating equals maximum occupancy of a location. Planning Commission Minutes Page 15 September 25, 2013 Marni Moseley  Commented that the maximum number of seats that a business is allowed is how traffic and parking are both assessed within the Town Code. Commissioner Burch  Asked if it would be possible to change that to a maximum occupancy as part of the Conditional Use Permit. Marlin Moseley  Commented that this has been considered in the past and can be included in the recommendations to require the inclusion of a maximum occupancy condition.  Commented that she did not know if this could be done regarding parking and traffic requirements being tied to that as well. Sandy Baily  Commented that the Commission can certainly request that the Town Council consider amending the Town Code’s parking requirements to address these concerns. Commissioner O’Donnell  Commented that in the past a limit in the number of tables and/or chairs was imposed on a restaurant but he doesn’t think the Commission ever reviews that.  Commented that a maximum number of tables and chairs could be established rather than a maximum occupancy for a particular number of people.  Commented that Ms. Wiley indicated earlier that there have been mixed results on her complaints. Enforcement will require more money and more staff. The process is probably already in place. Chair Erekson  Commented that this item could potentially be continued and staff asked to bring this back with modifications.  Summarized the comments made in reference to Exhibit 4 (Alcohol Policy). o Section 2.1 (General Policy). Whether the wording of that is appropriate or not. o Section 2.2. Whether or not it should be eliminated. o Page 3. Whether or not Section 2.9 should be added. o Section 3. Specific question was raised about #4 but it seems like language on 3, 4 and 5 together captures the intent. o Section 4.1.c. The use of “when” instead of the current “if”. o Section 4.2.d. Uses the same phraseology as 4.1.c. If one is changed then the other should also replace “if” with “when”.  Commented that the rest of the comments were about Section 5 (Enforcement).  Commented that one of the important parts of the recommended changes on this is within the definitions section.  Asked the Commissioners if they agree with those definitions for which no questions were raised. Planning Commission Minutes Page 16 September 25, 2013 Commissioner O’Donnell  Suggested the Chair ask the Commissioners if there are more parts of the document for which questions have not yet been raised that anyone would like to discuss.  Commented that Mr. Arzie’s letter (dated Sunday but received today) indicates his problem with our definition of “small plates.”  Commented that he thinks the use of “when” in the two sections is not warranted. He said it pre-supposes that a violation will occur.  Commented that staff should decide final wording with the Town Attorney.  Commented that he suggests adding the following to Section II.5: “In addition to the findings normally required for a Conditional Use Permit, the deciding body shall make the following additional findings.” Chair Erekson  Continued his summary. o 2.1. As is or suggest change o 2.2. Proposed striking that. o 2.5. Add proposed language provided by Commissioner O’Donnell at the beginning of that sentence. o 2.7. Staff to take into consideration comments from the public received and comments raised about small plates o 2.9. Question whether a definition of a food counter is necessary in an Alcohol Policy. Commissioner Sayoc  Commented that it may simplify things to recommend deleting 3, 4 and 5.  Commented that when the Commission sees plans, it’s pretty obvious what the uses will be. Through experience, an applicant will just say what they think we want them to say. Ultimately, as the restaurant owner you change your layout depending on how you need it. Defining it at the application state is really not necessary. Commissioner O’Donnell  Commented he agrees with regard to 4 and 5 but 3 is necessary because in 2 we use the term “separate bar”. If you use the term, it should be defined. Commissioner Sayoc said that is a good point and she agrees. Commissioner Bourgeois  Commented that Definition 3 should be expanded to include what was previously being called a “food counter”.  Commented that the odds of having a restaurant with a physical barrier between the dining and bar areas are small. Everything we see is with the bar opening into the restaurant as one integrated space. Therefore having that definition of a “physical barrier” doesn’t need to be in there. Instead, it needs to be a broader definition by folding 3 and 4 together. There may be a value in keep 5.  Commented that if there is a place where no customers can sit and there will never be seats there, that’s different and should be defined as such. Planning Commission Minutes Page 17 September 25, 2013 Chair Erekson  Questioned whether 5 should be kept even though a service bar has nothing to do with the service of alcohol. Vice Chair Smth  Commented about 5 and its relevance. She knows of a particular place that began with a service bar/counter where food would be picked up. Eventually bar stools were placed there and now customers sit there. The intent is to prevent service bars from becoming customer- seating areas. Commissioner Talesfore  Commented that service bars could be included in the definitions under bars to differentiate a service bar from a bar. Chair Erekson  Asked staff if an operator must have two different types of alcohol license to sell alcohol for on-site consumption versus off-site sales as this policy is specifically addressing on-site consumption and not off-site sales. Marni Moseley  Commented that they do require separate licensing for on-site versus off-site alcohol sales and/or consumption. She agreed the policy under discussion is for on-site alcohol service. Commissioner O’Donnell  Commented that off-site is packaged liquor one gets when one goes into a liquor store. It has nothing to do with a restaurant. Vice Chair Smith  Commented that she wanted to follow up on the information about enforcement provided by Sandy Baily, and the existing process for the filing of complaints.  Commented that she wasn’t aware of a formalized process except for the process when one calls the Police Department.  Commented there isn’t a tabulation of complaints maintained, at least resident complaints.  Commented that she’d like to add language to this Enforcement Section such as, “In accordance with the Town’s process for filing complaints…”  Commented that it is important for people reading this Code to understand that there is a process in place. Commissioner Talesfore  Asked what number triggers action or if every complaint is acted upon? Sandy Baily  Commented that it depends on what the complaint is. There has been different discussions with the Town Council at meetings on the subject of Code compliance including whether there needs to be a trigger regarding how many complaints should trigger follow through. Planning Commission Minutes Page 18 September 25, 2013 Commissioner O’Donnell  Commented that the definition of a nuisance is the key. It’s not a question of quantity. Chair Erekson  Asked staff if there was anything further to discuss. Motion by Chair Erekson and seconded by Commissioner Talesfore to continue consideration of the Alcohol Policy to a future meeting date to be determined by staff to allow staff to incorporate the changes proposed by the Planning Commission tonight. The motion passed 7-0. Chair Erekson called for a recess at 9:19 p.m. The meeting resumed at 9:28 p.m. Chair Erekson  Started the consideration of Chapter 29, Exhibit 2A.  Commented that this section provides a distinction between minor and major live entertainment. It suggests that the Development Review Committee determine the applications for Minor Entertainment Permits; outlines the specific roles of the Planning Commission and Town Council; and suggests additions to appropriate sections regarding accepted uses. Commissioner O’Donnell  Commented that the Town Council does more than consider recommendations from the Planning Commission regarding Major Live Entertainment Permits. They can also end up determining an appeal of a Minor Entertainment Permit.  Commented that per page 29, it reads that the Planning Commission determines the recommendation for Council for Major Live Entertainment Permits.  Asked if the Planning Commission doesn’t also hear appeals on decisions of Minor Entertainment Permits? Chair Erekson  Commented that he believes there is already broad language in the Code that suggests the Planning Commission is the place where appeals from the Development Review Committee are brought no matter what the nature of the appeal might be. That is also true with respect to the Town Council and appeals it receives on Planning Commission actions. That’s why there was no language included. Commissioner O’Donnell  Commented that it is confusing if you tell half of what is already there but not the other half. Both sections are part of what those two bodies do. Chair Erekson  Commented that it is clarifying that this is an addition to the responsibilities that the Planning Commission already has as well as the responsibilities of the Town Council. Planning Commission Minutes Page 19 September 25, 2013  Commented that all appeals of Development Review Committee actions come to the Planning Commission per the Town Code. Sandy Baily  Commented that the Town Code lists the duties a particular deciding body has authority to do. None of the duties in this specific section of the Town Code refer to Appeals.  Commented that there is another separate section of the Town Code that discusses the Appeal Process and states that all decisions of the Development Review Committee are appealable to the Planning Commission.  Commented that there is yet another section that says all decisions of the Planning Commission are appealable to the Town Council. Commissioner O’Donnell  Commented that it reads, While the Development Review Committee can make a final determination, which is appealable, the only body that can’t make a final determination is the Planning Commission and the Planning Commission gets involved on appeals for minor permits and the Planning Commission is the recommending body on major permits whereas Development Review Committee is not.  Commented that he is confused why some of this is included but not all of it. Any determination by the Development Review Committee is automatically appealable to the Planning Commission.  Commented that on the other hand, any determination made by the Planning Commission on such an appeal from the Development Review Committee is merely a recommendation to Council. Normally, the Planning Commission is the final deciding body on appeal from the Development Review Committee. In this case, the Commission is not but rather simply gets to make a recommendation. That means there are three bodies involved in one matter. Sandy Baily  Commented it is similar verbiage to an alcohol recommendation where the Planning Commission makes recommendation to the Town Council. Commissioner O’Donnell  Commented it is different. If it is a unique situation where it takes three bodies to make a decision, it should say so. Sandy Baily  Commented it appears that Section 3.70.045 was titled wrong regarding appeals. That will be clarified to answer Commissioner O’Donnell’s concern. Chair Erekson  Asked if it might be better if the Planning Commission handled the Minor Entertainment Permits instead of the Development Review Committee. Commissioner O’Donnell  Commented that he assumes that Minor Entertainment Permits may be more frequent and the Town Council may not want it elevated to a larger body. Planning Commission Minutes Page 20 September 25, 2013  Commented that he does not have a problem with the Development Review Committee handling the Minors. They can be appealed to the Planning Commission.  Commented that neither would he have a problem if the Planning Commission is charged with dealing with Minor Entertainment Permits in the first instance but perhaps it might be more effective and efficient to have Development Review do it since they meet more often. Vice Chair Smith  Commented that there is a question of transparency here. Chair Erekson  Commented that he does not see any advantage in substituting the Community Development Director with the Development Review Committee in the review of Minor Entertainment Permits. He is not persuaded that these Minor Entertainment Permits shouldn’t come to the Planning Commission first and doesn’t see the advantage of having them go to the DRC.  Commented that any decision of the Community Development Director is appealable to the Planning Commission. That would result in an appeal being heard at a more convenient time. Commissioner O’Donnell  Asked if there is an appeal fee.  Commented that he would not want to put the public at the disadvantage if someone had to pay for an appeal. However, the Town Council will decide how they want to go here.  Commented that it seems transparency will be improved by having it before a body (Planning Commission) that meets in the evening. Sandy Baily replied yes, there is an appeal fee charged. Vice Chair Smith  Commented that she looked at the definition of Live Entertainment on the first page of 2A. It does not mean a lack of human interaction.  Commented that Section 3 (3A) of the actual Code lists the exceptions. On pages 4 and 5, she noted that an exception to Live Entertainment is background music (live or recorded) or the playing of televisions or video if no compensation or admission fee is charged.  Asked if this means if a restaurant wanted to bring in a band to play and they don’t charge an admission fee they can do so without being subject to this Live Entertainment Policy?  Asked if determining whether music qualifies as background noise is subjective? What about the difference between a pianist and a five-piece band?  Commented that this might be a loophole that should be closed with tighter language. Marni Moseley  Commented that at the top of page 2, Exhibit 3, the definition of background music is included under Section 3.70.015. Planning Commission Minutes Page 21 September 25, 2013 Commissioner O’Donnell  Commented that he is not at all troubled by background music. There is no easy way to more tightly describe it. It is a term of fairly general acceptance and is better than any more specific definition. Commissioner Talesfore  Commented that she agrees and is comfortable with that definition as well. Chair Erekson  Summarized the comments on the Zoning Ordinance. o Change 29.27.45. This would not be included in the amendments to Chapter 29. Is that correct? o Chapter 29.27.50. This would have something added to it that would assign the responsibility for Minor Entertainment Permits to the Planning Commission.  Stated the he believes this is all that was discussed as far as changes. He asked if there were any others. Motion by Chair Erekson and seconded by Commissioner O’Donnell to recommend changes to Chapter 29 of the Zoning Ordinance as outlined in Exhibit 2 with the changes noted this evening and supported with the finding that those changes are consistent with the General Plan of the Town. The motion passed 7-0. Chair Erekson  Asked for any comments on the proposed Live Entertainment Ordinance. Vice Chair Smith  Commented on Exhibit 3A, Page 7 (B-1). At the end of the sentence, she proposed adding, “…which shall include an annual review of the permit subject to a public hearing.”  Commented that her reasoning is that there is a tendency to see a business start with plans but once they open, things change.  Commented that an annual review will let the Town know where they stand after a year.  Asked what could serve as a trigger to go from “may” to “shall”. Commissioner O’Donnell  Commented that if this review is made mandatory, the Town will need to assess what impact this requirement would have on staffing. That would become a cost issue and the Commission is not in a position to make that judgment.  Commented that he is not troubled by the use of “may” and is not sure why the Town would want to consider these uses every year. That review requires a report and someone to do something in preparation.  Commented that the things we are talking about are readily apparent to anyone who looks. The fact that nothing ever happens is not because people don’t know about it. If there were Planning Commission Minutes Page 22 September 25, 2013 to be an annual review of some of these things, it wouldn’t change much. There seems to be some benign neglect going on here and this could be an unnecessary cost in time and money.  Commented that the Planning Commission could forward its recommendation and Town Council could say yes or no. Vice Chair Smith  Commented that she only intended this requirement for the Major Live Entertainment Permits and not for the Minor. Commissioner Sayoc  Commented that she would like to discuss the conditions of approval.  Commented that a compromise can be that those permit holders that have had three complaints within a year must come to the Planning Commission for review.  Commented that at some point the Town must address these issues otherwise why are conditions even being placed on these uses.  Commented that she understands the issue of cost but likes it to be something that the Council considers.  Commented that she wants triggers so those businesses causing complaints can be reviewed under a public body, neighboring residents will have an opportunity to share their concerns, and the Commission will have the opportunity to see if there are ways to rectify the situation. Commissioner Talesfore agreed that a quantified number of specific complaints must be established. Chair Erekson asked for a specific recommendation as to the number of complaints to trigger review. Commissioner Sayoc  Commented that given there is an existing review process, she would hate to overlap or duplicate existing efforts. Perhaps the same number of triggers could be used. Sandy Baily  Commented that the answer to that question is dependent on the final outcome of the policies adopted by Council for Code Compliance of Conditional Use Permits.  Commented that she is not sure how the timing is going to work specifically to move this project along. Commissioner O’Donnell  Asked the distinction between public and private schools. Pointed out that churches and schools have fundraising events and doesn’t know if that qualifies as entertainment.  Asked if 4 should be expanded to also include private schools.  Commented that he is not sure if these Ordinances apply to outside uses. Planning Commission Minutes Page 23 September 25, 2013 Judith Propp  Clarified that the Town doesn’t regulate or have the ability to regulate what a public school does on school property, whether it’s inside or outside. Chair Erekson  Commented on page 12, at the top of the page about surrendering the permit.  Commented on cleaning up language on Subsection D (page 13). Commissioner Talesfore  Commented that a mission statement should be incorporated into the Live Entertainment Policy since it is included within the Alcohol Policy.  Commented for consistency with other Ordinances the mission statement should be expanded to include Town goals. Chair Erekson asked for a motion. Sandy Baily  Commented that the Commission has already continued the first part of this material and asked if the intent is not to continue this portion as well since they all go together.  Commented if the Commission wants to do so, they could forward all but the Alcohol Policy on to Council with comments and have the Alcohol Policy return to the Commission. Commissioner O’Donnell  Commented that this would not speed up the process unless there’s a reason to split up the three documents.  Suggested bringing it all back to the Planning Commission rather than just a portion. Chair Erekson  Asked for an alternate motion to bring all three items back to a future meeting with this motion to replace the earlier actions taken this evening. Sandy Baily recommended a date certain of October 9, 2013. Motion by Commissioner O’Donnell and seconded by Commissioner Talesfore to continue consideration of the Alcohol Policy, Live Entertainment Policy and Zoning Amendments to the next Planning Commission meeting on October 9, 2013, to allow staff to incorporate the changes proposed by the Planning Commission tonight. The motion passed 7-0. NEW OTHER BUSINESS 2. Report from Director of Community Development Planning Commission Minutes Page 24 September 25, 2013 Director Sandy Baily  Commented on the recent approval of updates to the Firearms Regulations. It was introduced at the last Council meeting. Council removed tax preparers and real estate agents from the list of prohibited home occupations. Existing uses must comply within four years. Second reading will occur at the next Council meeting. Commissioner O’Donnell asked about the four-year amortization period. Is it reflective of the lease for the one affected business location? Was a copy of the lease provided? Director Sandy Baily advised that the lease was in the file. 3. Commission Matters - None ADJOURNMENT Meeting was adjourned at 10:24 p.m. TOWN OF LOS GATOS PLANNING COMMISSION Wednesday, September 25, 2013 ___________________________________________ Charles Erekson, Chair APPROVED AS TO FORM AND ATTEST: _____________________________ Joel Paulson Planning Manager