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Minutes - 10-09-13 - PC Planning Commission Minutes Page 1 October 9, 2013 TOWN OF LOS GATOS PLANNING COMMISSION MEETING ACTION MINUTES TOWN COUNCIL CHAMBERS 110 E. MAIN STREET WEDNESDAY, OCTOBER 9, 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, Planning Manager Joel Paulson, Senior Planner Erwin Ordoñez, Associate Planner Marni Moseley, and Associate Planner Jennifer Savage PLEDGE OF ALLEGIANCE Led by Commissioner Burch. APPROVAL OF MINUTES - NONE WRITTEN COMMUNICATIONS Two Desk Items for Agenda Item #1 REQUESTED CONTINUANCES 2. 15644 Shady Lane (Lot 3). Architecture and Site Application S-13-035. Requesting approval to construct a new single-family residence within an approved Planned Development (Highlands of Los Gatos) on property zone HR-2½:PD. APN 527-09-012. PROPERTY OWNER/APPLICANT: Davidon Homes. PROJECT PLANNER: Suzanne Avila. Planning Commission Minutes Page 2 October 9, 2013 Motion by Commissioner Bourgeois and seconded by Commissioner Burch to continue consideration of Item 2 (15644 Shady Lane, Lot 3) to the meeting of October 23, 2013. The motion passed 7-0. SUBCOMMITTEE REPORTS North 40 Specific Plan Advisory Committee – Chair Erekson announced the next meeting on Tuesday, October 15, 2013, at 6 p.m., in the Council Chambers. If the work of the Committee is not completed that evening, a subsequent meeting will occur the next evening, Wednesday, October 16, 2013, to complete the task, prior to sending it forward for environmental review, Planning Commission review, and finally to Town Council for final action. VERBAL COMMUNICATIONS – Chris Wiley informed the Commission about a recent meeting with Mr. Tom Albanese, owner of the Bocce facility on her street, at which the issues raised by the neighborhood have been made clear and assurances made by Mr. Albanese that those concerns would be addressed. CONSENT CALENDAR – NONE CONTINUED PUBLIC HEARINGS - NONE NEW PUBLIC HEARINGS 3. 134 Loma Alta Avenue. Architecture and Site Application S-13-049. Requesting approval to demolish a pre-1941 single-family residence and construct a new single-family residence on property zoned R-1:8. APN 532-29-033. PROPERTY OWNER/APPLICANT: Donald J. Prolo, II. PROJECT PLANNER: Jennifer Savage Chair Erekson opened the public hearing. Associate Planner Jennifer Savage presented the staff report. Chair Erekson asked if there were questions of staff. Commissioner O’Donnell  Commented that there’s no reason provided in the staff report for the recommendation of denial other than this residence would be the largest in the area. Jennifer Savage commented that the recommendation for denial was conservative based on the square footage. Vice Chair Smith asked the difference between a garage and accessory building. Jennifer Savage said that a garage is also known as an accessory building. They’re the same in this case. Planning Commission Minutes Page 3 October 9, 2013 Commissioner Bourgeois asked about the full bath in a garage and what needs to happen to differentiate this garage from a second dwelling unit. Jennifer Savage said that a condition of approval could be imposed for a Deed Restriction that prevents this accessory structure from ever being used as a dwelling unit. Commissioner Burch asked why the home was removed from the historic listing. Jennifer Savage explained that it was removed because the Historic Preservation Commission found it to have neither architectural nor historic significance as well as due to the current condition of the structure. The reasons are outlined on page 5 of the report. Donald J. Prolo, II, Applicant, introduced project architect, Chris Spaulding, who will make their presentation. Chris Spaulding, Project Architect, gave a brief presentation and offered some suggestions of possible changes to solve neighbor concerns. Vice Chair Smith  Asked if moving the house forward by 2.5 feet would shorten the front porch depth.  Commented that the Town’s consulting architect had mentioned the depth of that front porch.  Asked if the garage doors open upward or outward. Chris Spaulding  Commented that the front porch depth has been widened to six feet.  Commented that the garage door has roll up doors to maintain the minimal required distance of 25 feet to the property line from the alley to the garage. Commissioner Talesfore  Commented that within the Design Guidelines, the Loma Alta neighborhood was specifically separated out. It is designed with a regular grid character.  Asked how moving this house forward would retain the existing character of this street and how much further forward the house would be moved. Chris Spaulding  Commented that the guidelines allow you to place a home at an average of the distance utilized by the adjacent homes on either side. One side is set back 20 feet and the other is set back 25 feet. They are splitting the difference and bringing it forward by 2.5 feet. Instead of 25 feet back, it will be at a 22.5-foot setback. Commissioner Bourgeois asked Mr. Spaulding about the letter distributed as a desk item this evening and his thoughts on the specific architectural recommendations included. Planning Commission Minutes Page 4 October 9, 2013 Chris Spaulding  Commented that they would incorporate all those suggestions except for the color accent on the window mullion. The letter suggested three colors be used and they are proposing two.  Commented that they will skip the Spanish tiles set in the stucco. Commissioner Sayoc asked about the suggested reduction in the deck. Does that mean the covered porch would also be reduced? Chris Spaulding  Commented that he thinks they intended the reduction in the balcony and not the deck.  Commented that Item 2 on the list, which relates to the air-conditioning equipment, they are willing to do.  Commented that the garage is bigger than 20 x 20 feet and they can park and unload within it. Karen Evenden  Listed issues with bulk, architectural compatibility, building height, as well as the loss of natural light and sky views and suggested rejection of the current plan. Commissioner Burch asked Ms. Evenden if there was consultation with the neighbors about these plans and whether she currently has hillside views from her home. Karen Evenden  Commented that the applicants came around with a sketch and she indicated her issues with privacy and light impacts. She received an email on Thursday and got together with the applicants on Sunday to discuss concerns.  Commented that she does not currently have hillside views. Vice Chair Smith  Asked Ms. Evenden if her home is to the right of the applicant’s property.  Asked the height of the fence and what rooms of her home are along that side.  Commented that it appears there is a rather narrow space between the fence and Ms. Evenden’s home and the roof slopes down. Karen Evenden  Commented that her house is to the right, downhill.  Commented that the rooms impacted are her study, master bedroom and children’s rooms. The rest of their home is open plan so those private spaces are where each family member goes to be alone.  Commented that they do get natural light now that will be curtailed by this proposed two- story structure. Commissioner Bourgeois asked if Ms. Evenden felt some of the concessions the applicant seems to be willing to make alleviates some of her concerns or does she prefer to see just a one- story home constructed on this property. Planning Commission Minutes Page 5 October 9, 2013 Karen Evenden  Commented that moving the home forward on the lot will help in one room, the master, but she was not sure that reducing the roofline by one-foot would make much of a difference. She would like to take a look at a shadow map. Commissioner Talesfore asked Ms. Evenden what she sees now from this portion of her home. Karen Evenden said this is not a view issue but a light issue. Laura Johnson  Commented that the applicant never spoke with her; that she currently has a hillside view from her kitchen and office; that she is concerned about mass as the story poles make this home appear huge; how short (20 feet) the setback is for the second story portion of this home which results in an invasion of the adjacent neighbor’s property; and that this proposal doesn’t fit with the character of the neighborhood.  Commented that she had remodeled her own home following the Town’s guidelines that require sensitivity to the character of a neighborhood. Jennifer Lo  Commented that the applicant never spoke with her and she was unaware until she saw the story poles; that this home will impact the hillside views from her home; that this home is so much larger than others in the neighborhood; that the light from the second-story portion of this new home will impact more than just the homes on either side. The character will change significantly and this home does not match.  Said that her home is two-story at the back but appears as a one-story as seen from the front.  Commented that those homes with a second story are set back. There is no overwhelming two-story on the street. Vice Chair Smith asked Ms. Lo if her home is a one or two-story structure and if some other neighbors have two-story homes. She said that there are a number of two-story homes on the street. Commissioner Burch clarified with Ms. Lo that her home is two-story but it is sunken into the grade so that one takes steps down from the front in order to access the first floor. Jennifer Lo replied somewhat. She said that her home’s first floor falls below the grade. Steve Piasecki  Commented that as he is retired he is home most of the time, which is the reason for his request for a Construction Management Plan. He is the back neighbor.  Commented that he’d like to see the garage at 20 x 20 feet; that it be deed restricted so as never to be used as a dwelling and that it be kept available for parking.  Commented that he appreciates the architectural changes the applicant seems willing to incorporate. Planning Commission Minutes Page 6 October 9, 2013 Virgil Quisol  Commented that he lives next door to Mr. Piasecki and shares his concerns, including the bath in the garage, which he was denied years ago.  Commented that the house on the alley is actually a single-family home with attached one- car garage. Vice Chair Smith  Asked if Mr. Quisol has seen the garage off the alley that appears to have been turned into a secondary dwelling unit. George & Lezli Logan  Commented that they live adjacent to the project site on the uphill side; that they support the staff recommendation for denial due to issues of scale, compatibility and negative impact on this existing quaint neighborhood. They were never contacted prior to September 26, 2013.  Commented that this would be the largest house in the area and the height of this two-story is inconsistent with the Town’s design guidelines and will impact their quality of life as their views will almost completely be occluded.  Asked that this be denied and that a more compatible and respectful design be created. Commissioner Sayoc asked Ms. Logan if her home is single-story; whether the Logans were present at the October 6, 2013, meeting; and if they are familiar with the proposed architectural changes discussed at that time. What concessions would help? Lezli Logan  Commented that their home is single-story with a basement.  Commented that they did not attend the meeting on October 6, 2013.  Commented that the proposed one-foot reduction in height makes little difference; that a three-foot balcony is better but still of concern since there will be view into their yard from that balcony and they sit on their deck every evening during nice weather. Commissioner Talesfore asked Ms. Logan what living spaces are on that side of their home. Lezli Logan said the rooms on that side of the house include dining, bath, bedroom, stairwell and kitchen eat-in area. Chris Spaulding  Said that it may be possible to make the second story smaller and the first floor larger but it would need to go deeper into the lot. They could move the master suite to the first floor and the smaller bedrooms upstairs. Commissioner Talesfore pointed out to Mr. Spaulding that several neighbors would like the opportunity to work with the owner. Are they willing to do that? Planning Commission Minutes Page 7 October 9, 2013 Don Prolo  Commented that it seems the neighbors want a one-story, which is not what he wants to build. Therefore, they will have the same basic problems even if he were to reduce the second story. The existing house is tiny so this is basically a vacant lot and anything new will be a change. Commissioner Talesfore asked Mr. Spaulding if he had taken the slope of the street into consideration with this design. Commissioner O’Donnell  Asked if the downhill neighbor’s impact would be lessened with a redesign of the second story.  Asked if a single-story design would deprive the lower grade neighboring property’s natural light just as much as a two-story design. Chris Spaulding  Commented that they couldn’t dig this home down into the hill, as it would create a drainage problem.  Commented that both properties would be impacted by a second story. Once you bring the home deeper into the lot, it has more impact on both sides. Bringing the home toward the front opens up views to their back.  Commented that the two-story portion of the currently proposed home is just half the length of their home (lower grade neighbors). A one-story home will have the same structure length as theirs does. Commissioner Burch asked if they had considered a basement to minimize massing. Don Prolo said they had. This site is perched on a water table just four feet down. A basement would require extra design, could leak and requires pumps. Vice Chair Smith asked if a one-story would be higher than the home on site now. Chris Spaulding said it would be higher by six feet and deeper into the lot. Vice Chair Smith  Commented that the owner is open to making changes and the neighbors have raised issues that the owner may want to think about a little more.  Suggested continuing this to another meeting to allow the applicant to meet with neighbors and then come back with the necessary compromises to satisfy everyone. Chris Spaulding said that is a good idea. Chair Erekson closed the public portion and asked the Commission for questions, comments or a motion. Planning Commission Minutes Page 8 October 9, 2013 Commissioner O’Donnell  Commented that a continuance is a good idea.  Commented that anything constructed here will make an impact but it’s worth exploring opportunities and issues. Commissioner Sayoc  Commented that there is a lot of specificity and detail in the proposed Construction Management Plan. Is this typical? Jennifer Savage advised that a Construction Management Plan is put into the conditions when there are concerns raised. It addresses traffic, staging, etc. Commissioner Burch  Commented that she supports the continuance as a good idea that offers the opportunity to achieve compromise.  Suggested that the applicant reference the design guidelines closely so that the design interest of this neighborhood stays intact. Commissioner Talesfore commented that she is impressed with the quality of the neighbors’ comments. This is a precious neighborhood and this project must remain respectful of the character of this neighborhood. Chair Erekson re-opened the hearing and advised that this continuance could be date certain to the November 13, 2013, meeting. He asked the applicant if that gave sufficient time for them to both meet and prepare changes. Chris Spaulding said that December 11, 2013, would be better and give them enough time to meet with the neighbors. Chair Erekson re-closed the hearing. Motion by Vice Chair Smith and seconded by Commissioner Sayoc to continue consideration of S-13-049, 134 Loma Alta Avenue, to the Planning Commission meeting of December 11, 2013, to allow the applicant and neighbors the opportunity to meet and for the architect to incorporate some of the recommendations and suggestions made tonight. Commissioner Sayoc added that it would be helpful to have a solar shadow study of the various configurations at that next meeting. Commissioner Bourgeois  Commented that he would support this motion. He said this is a well-designed home that meets most of the requirements such as setbacks and heights, except for the architectural compatibility.  Commented that he didn’t think that a two-story is incompatible with the neighborhood. The existing two-stories in the neighborhood are not very conspicuous. You have to look for them. Planning Commission Minutes Page 9 October 9, 2013 The motion passed 7-0. 4. Affordable Housing Overlay (AHOZ). General Plan Amendment GP-13-003. Town Code Amendment A-12-003. Requesting approval of a General Plan Amendment to include the Affordable Housing Overlay Zone sites in the Housing Element Technical Appendix Housing Sites Inventory; Amending the Town Code to incorporate the Affordable Housing Overlay into Division 5, Article VIII Overlay Zones and Historic Preservation; Adoption of Affordable Housing Overlay Zone Design Guidelines; and application of an Affordable Housing Overlay to five properties generally located at: 1)Knowles Drive, east of Winchester Boulevard, APN 424-32-077; 2)Los Gatos Lodge, 50 Los Gatos-Saratoga Road, APN 529-24-032; 3)Los Gatos Lodge, 50 Los Gatos-Saratoga Road, APN 529-24- 001; 4)Higgins Business Park, 400 Blossom Hill Road, APN 529-16-071; and 5)Los Gatos Oaks Apartments, 517 Blossom Hill Road, APN 529-16-042. APPLICANT: Town of Los Gatos. PROJECT PLANNER: Erwin Ordoñez Chair Erekson opened the public hearing. Senior Planner Erwin Ordoñez presented the staff report. Chair Erekson asked if there were questions of staff. Commissioner Talesfore  Commented on how impressed she was with the thorough work done with inclusion of the public and comments that have been incorporated. She said she is proud to be part of a Town that listens to its public.  Asked how the RHNA (Regional Housing Needs Allocation) numbers are allocated to the Town of Los Gatos. Do they visit the community?  Commented that she is sure this is not the only small town with concerns about its allocation. Erwin Ordoñez  Commented he was not sure if ABAG (Association of Bay Area Governments) visits each community. They utilize DOF (Department of Finance) information as well as Census projected data. Committees are formed and establish formulas taking into account the proximity to transit and jobs. Commissioner Talesfore clarified that the intent is simply to create the potential for such housing and not to actually build it within a time frame. Erwin Ordoñez  Commented that the Town has to plan for its projected need based on those ABAG numbers that are based on projected local growth. The mandate is to have planning in place to accommodate such housing using overlay zones or other strategies. The Town is not obligated to build it or pay for it but simply to have the potential for building it. Planning Commission Minutes Page 10 October 9, 2013 Frederick Lyon  Commented he is the attorney for Los Gatos Lodge and another owner. Both have properties selected for inclusion in the AHOZ (Affordable Housing Overlay Zone). He distributed a written handout to the Commissioners.  Commented that he is here in opposition of each of the matters mentioned in the report. First they oppose the choice to utilize an Addendum EIR. That is the incorrect choice and more is required such as a fully documented Supplemental EIR that takes into consideration public services, noise and traffic issues.  Commented that he strongly opposes the process that removed the density credits offered by the State and via Ordinances of the Town of Los Gatos. Density credits are removed for these sites by this Ordinance.  Commented that the minutes of the General Plan Committee show a trimming of incentives for affordable housing and takes away any reason for doing so. Commissioner Sayoc thanked Mr. Lyon for his written comments and she hopes to read them in more depth when time permits. She asked if he had had any conversations with staff. Frederick Lyon replied that he had. Commissioner Bourgeois asked Mr. Lyon to elaborate on his point about the CEQA review and his belief that a Supplemental EIR was more appropriate than an Addendum. Why? Frederick Lyon said that the traffic studies referenced in the document indicate sufficient empirical data that the traffic will not create significant environmental impact. Commissioner Bourgeois asked Mr. Lyon if he is telling the Commission that significant impacts are not addressed in the original EIR and therefore a Supplemental is warranted. Frederick Lyon replied right. Lee Quintana  Commented that she supports affordable and high-density housing but does not see good architectural design in this document and has concerns about the use of guidelines versus standards and when one or the other is applied. She said that modifiers “shall” must be used rather than the weaker “should”. She expressed concern about including such qualifiers that degrade them.  Commented that the intent of the document is unclear including some of the illustrations and drawings that may be good illustrations but also include things we may not want. She referred to page 7, which depicts an alley with units above garages; without pedestrian- friendly entrances; and in straight rows. This may be better illustrated without visual or using a single point rather than photographs. Chair Erekson reminded that the Town Council will take the further action on this issue. Another public hearing will be held before the final decision is made. He said he joined this Committee later in the process and commends Commissioner Bourgeois for his leadership. Planning Commission Minutes Page 11 October 9, 2013 Motion by Commissioner O’Donnell and seconded by Commissioner Talesfore to recommend that the Town Council take the following actions: to make the required findings (Exhibit 9); to approve the General Plan Amendment, GP-13-003 (Exhibit 2); to approve the Zoning Code Amendment (Exhibit 1); to approve five Ordinances for five AHOZ sites (Exhibits 3 through 7); to adopt a resolution to approve the Town Code Amendment, A-12-003 (Exhibit 8); and to approve the Addendum to the General Plan EIR (Exhibit 10). Vice Chair Smith commented that she attended the first AHOZ meeting as a member of the public and finds that such progress has been made since thanks to the efforts of staff and the General Plan Committee together with the public. She will support this motion. Commissioner Sayoc  Commented how tremendous it was to have residents come forward to provide information that has helped craft what is before the Commission tonight.  Commented that she is sensitive to the issues of environmental impacts and made it clear that there will be individual environmental review and studies on a project-specific basis. Specific concerns can be taken care of when they come forward. The motion passed 7-0. 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 advised that staff had nothing further to add to the report at this time. Commissioner Sayoc  Commented that a lot of the comments included in the desk items this evening could be helpful additions as far as the Conditional Use Permit enforcement processes.  Asked if the Commission can request that this be included. Erwin Ordoñez commented that the Planning Commission could provide input to the Town Council. Members of the public will also have the opportunity to address the Town Council and offer further input as well. Planning Commission Minutes Page 12 October 9, 2013 Commissioner Bourgeois  Commented that staff did not follow the Commission’s suggestions on the bar definition that may end up creating non-conforming bars based on parking.  Asked what the ramifications would be on the individual businesses as well as the Town. Marni Moseley  Commented that within the Downtown area the parking requirements are one per three seats for a restaurant with a bar; one per four seats for a restaurant without a bar. This would remove 25 percent of their allowable seating. Commissioner Bourgeois asked if that means they have to reduce their seating or find parking. He added that some could already have more parking than required. Commissioner O’Donnell  Commented that there is confusion between some of the definitions. He’s not clear if they are conflicting or outright different.  Commented on page 2, Intensification of Use, saying this might have impact on traffic and parking and if so, what is the impact on the CEQA review?  Commented that the thresholds may not fit this new Ordinance.  Commented that the definition doesn’t fit the facts and gets around CEQA. Changing this impacts traffic and parking in Town. Marni Moseley said that staff has provided this potential wording based on the last meeting, but maintained the same language within the document. Joel Paulson reminded that the Town has specific thresholds monitored for CEQA, which are a.m. and p.m. peak trips. He added that verbatim minutes are being prepared of the last hearing. Vice Chair Smith  Asked whether Fire or the Town assigned maximum occupancy loads.  Asked the difference between stand up patrons versus seated. Should something be written into the intensification section about the difference?  Commented that Exhibit 16, page 5, offers a clear outline of Enforcement and by whom and how violations are handled as well as the method for tracking calls and complaints.  Commented that Exhibit 16, page 2, second line, references existing hours for uses in good standing.  Asked if those uses approved in the last two years would be subject to these new policies. Joel Paulson  Commented that Fire assigns a maximum occupancy load based on category of use.  Commented that the Commission can forward its recommendation to the Town Council to consider basing parking on something other than seats as currently occurs.  Commented that occupancy loads are higher than Conditional Use Permits generally allow. Most would become non-conforming if we change.  Commented that the Town Council will address concerns about Enforcement. Planning Commission Minutes Page 13 October 9, 2013 Marni Moseley said that several newer uses that include entertainment are subject to these pending Entertainment Ordinance changes. She clarified that this applies only to those for which a condition of approval was imposed mandating such compliance. Erwin Ordoñez added that uses with existing Conditional Use Permits that are in good standing must continue to comply with their imposed conditions of approval but not these new ones. Commissioner Sayoc  Commented that several restaurants will become non-conforming if the definition of separate bar is implemented.  Commented that all agree that parking has to be increased so what happens in the future if the definitions are changed. Town Attorney Judith Propp  Commented that many uses have Conditional Use Permits that run with the land and have vested rights. A process would be required to reconsider valid existing rights. They are not subject to amortization. She clarified that amortization and vested rights are two different things. Commissioner Sayoc asked staff if the only reason staff didn’t make the changes recommended by the Planning Commission at the last meeting was because it would create too many non- conforming uses. Are there any other reasons? Marni Moseley said that was the main issue. Judith Propp said that Code Section 29.10.195 (Amortizing) defines the term of non- conforming use status. Commissioner Sayoc  Asked that this definition be as defined at the last meeting by the Commission.  Asked for clarification from staff that the parking situation only applies for future applications. Joel Paulson said that is the case. The use can continue until and unless they want to modify their use in some way. At that time, they must achieve compliance with these standards. Judith Propp reiterated that existing Conditional Use Permits must have a due process, hearing and findings before any changes can be imposed. They have existing vested rights. Commissioner O’Donnell  Commented that Vice Chair Smith raised an issue of loud music at the last meeting.  Commented that background music has a good definition but the definition of live entertainment as being “without human interaction” doesn’t necessarily make sense.  Commented that it may be better to consider all forms of music that are not background. That would be the best way to avoid problems by starting when a use is applying for a Planning Commission Minutes Page 14 October 9, 2013 Conditional Use Permit including any music that is not “background” per the definition. That way the Town would have greater control. Commissioner Bourgeois  Commented that he considers live entertainment as being contained within an establishment and feels that the difference between inside versus outside should be explicitly stated.  Asked if there is a permit available to allow outdoor concerts or is this allowed only through issuance of a Special Use Permit such as held by Old Town. Marni Mosley said that Old Town does hold a Conditional Use Permit for outdoor music but the Ordinance restricts live entertainment to indoors. Commissioner Talesfore commented that she is concerned about covered outdoor areas and whether they are considered a part of the indoor or outdoor space. Marni Moseley said that it depends on the Conditional Use Permit definitions but she would say that is generally outdoor. Commissioner Talesfore  Asked if that could be added to the Ordinance.  Asked if any thought had been given to the issue of concentration of Live Entertainment Permits in the Downtown area.  Commented that the reason she is concerned is that if three restaurants in a row all have indoor music that could create a noise impact.  Asked how a template could be created to control that. Marni Moseley suggested that the Commission could include that in its recommendation to the Town Council but staff did not receive any direction from Council in regards to that. Commissioner O’Donnell  Commented that Exhibit 16, the policy regarding establishments serving alcohol, it is stated that the Town “shall continue to strongly discourage” but the next sentence identifies how to circumvent that. The Town seems not to have decided just what it wants.  Asked if there are entertainment establishments without food. Marni Mosley said that was requested by the Commission at the last meeting. Live entertainment is currently only intended as an ancillary use. Erwin Ordoñez  Commented that there are two different entertainment uses. One is where the entertainment is the primary use and the second is where entertainment is used in conjunction with another primary use. He gave the example of a gallery with live music as an example of the intent of the ordinance. Planning Commission Minutes Page 15 October 9, 2013 Commissioner O’Donnell  Asked if it is possible for a gallery to be able to serve alcohol without food.  Suggested including the requirement for a Conditional Use Permit and take out the “strongly discourage” language from the text.  Asked where the definition of Entertainment Establishment is located.  Commented that this draft could use improvement by referring to a definition of Entertainment Establishment and indicating the requirement for a Conditional Use Permit. He found the existing text to be confusing. Erwin Ordoñez  Commented that a Conditional Use Permit would be required to serve alcohol without food.  Commented that it would be up to the Town Council to determine what is appropriate. That language is included in the current policy. Marni Mosley added that any service of alcohol is a trigger to require a Conditional Use Permit. Chair Erekson referenced the purpose statement of the Alcohol Policy and suggested it might be better to be explicit in the last sentence in referencing the requirement for a Conditional Use Permit. Commissioner O’Donnell  Commented that the Chair’s suggestion is helpful. However, if a Conditional Use Permit is required, why even include the “strongly discourage” language.  Commented that he remains confused about paragraphs 2 and 3 in Section II, in regards to requiring a physical barrier between restaurant and its bar in order to consider the bar a stand- alone bar. It is important to make sure that is what is intended. Chair Erekson said it might be better to move the language from Section II, item 2 and 3, into the purpose section. He asked if there were any further questions for staff. Vice Chair Smith commented that it appears the Noise Ordinance is in effect when it comes to Live Entertainment Permits and that a noise analysis needs to be provided. How can it be prepared in advance of being open. Erwin Ordoñez  Commented that this is a part of the application process and describes the proposed use and to document the existing noise of the site.  Commented this becomes a part of the review and approval process to determine if it is acceptable or not. Chair Erekson opened the public portion of the hearing. Larry Arzie commented that staff should provide a better answer to Vice Chair Smith’s question about Conditional Use Permit. Planning Commission Minutes Page 16 October 9, 2013 Lee Quintana  Commented that she agrees with the points raised by Commissioner O’Donnell.  Commented that there is a difference between occupancy load and table load and how both impact parking.  Asked how approved Conditional Use Permits fit in with these policies and what are the answers of the effect on parking.  Commented that comparisons on how to calculate occupancy load should be made.  Commented that this is a very confusing ordinance that should be simplified. Maria Ristow  Commented that it is clear the Commission read the letters from the neighbors and understands their concerns.  Commented that it feels like staff thinks the policy exists only on paper and don’t seem to understand what is going on in the Downtown.  Commented that there are stand-alone bars. Chair Erekson closed the public portion of the hearing. Vice Chair Smith  Commented that discussion occurred at the last meeting regarding the fact that other retail uses in the Downtown are closed after 9 p.m.  Asked how parking is calculated in regards to that.  Asked what happens when there is a change in tenant. Joel Paulson  Commented that Downtown parking has two components. While some businesses have on- site parking, others have credits within the Parking District that are allocated to their parcels.  Commented that the parking is tied to the owner and aligned to specific uses so as not to exceed their particular allocation of spaces. Commissioner Burch commented that she has found a lot of this information to be confusing and questioned if a Study Session might be applicable to address everyone’s issues. Commissioner O’Donnell  Commented that is a good suggestion and might be the right thing to do but is not compelling. This has to be decided by the Town Council.  Commented that this material has been gone through a number of times and while it could use a lot of improvement, the Commission needs to know exactly what the Town Council wants on some key items. He said he was not sure if this could benefit from further study or was best left to the Town Council to share their answers to the questions the Commission has raised. Commissioner Bourgeois said this has been a beneficial meeting and he agrees with Commissioner O’Donnell. However, the Commission should tell the Town Council what it Planning Commission Minutes Page 17 October 9, 2013 wants and thinks about this material. They want this input and they can agree with or poke holes in our recommendations. Commissioner O’Donnell  Commented that the Commission could raise its specific issues but should stop trying to redraft the document. Rather forward the suggestions articulated this evening. Perhaps identifying the top five to ten issues/suggestions to help achieve a more defined and useful document. Commissioner Sayoc  Commented that she has three specific things that require clarification. The first is the definition page that does not clarify the definition of a restaurant versus a bar, a wine bar, and a retail wine establishment. Next, is the issue of enforcement and the need to include a step- by-step explanation of how to make a complaint, who can a resident contact to complain, and how long before a complaint will be acknowledged and resolved. The final issue is parking. It is unclear how the allocation of spaces occurs. She doesn’t understand how the Parking District works. How are seated versus standing patrons counted and what type of parking best serves both? What are future impacts on applicants? Chair Erekson said that all of Commissioner Sayoc’s comments appear related to the Alcohol Policy. Commissioner Sayoc agreed but added that there is some overlap. Commissioner Bourgeois commented that the definition of indoors must be more specific to prevent entertainment from creeping into outdoor spaces. Added that the use of the term food counter needs to go. Commissioner O’Donnell  Commented that the issue of intensification must be discussed. He noted the many taxi cabs can be seen in the Downtown late at night.  Commented that it should be considered before issuance of a Conditional Use Permit for a use that will go later into the evening or is different than usual and the corresponding impacts on parking and traffic. Counting tables and chairs is not the answer. Vice Chair Smith  Commented that when looking at a major permit, the Town should look at the maximum occupancy load rather than counting seats.  Commented that she would urge the Town Council to have a Code Enforcement Officer available in the evening. At this time there is no Enforcement Officer at night so violations are not witnessed.  Commented that there currently are no codes or policies to determine parking and traffic based on potential occupancy of a space.  Commented that intensification of parking has not been fully addressed. Planning Commission Minutes Page 18 October 9, 2013 Chair Erekson  Asked if the intent is to establish the maximum load occupancy as the standard for setting parking requirements.  Commented that it is useful direction to apply a maximum occupancy load at all times for a use in order to determine the parking requirements and not only in a situation when they are operating beyond normal hours as provided by the policy. Commissioner Talesfore  Commented that she agrees with what has been said including concerns with a concentration of permits within one area and the intensification that would come with it.  Commented that she would propose creating an impact map that goes along with the application process.  Commented that she doesn’t know if this policy will help or hurt at this point. Planning Manager Joel Paulson said that this could be achieved with a greater downtown map outlining uses, similar to the formula retail map. Judith Propp  Summarized the Commissions points as follows: o Include in the definitions section: Entertainment Establishment, Restaurant, Separate Bar, and Indoors (not to include decks or patios, etc.). o Clarify the difference between restaurant and retail and between retail and wine bars. o Enforcement: Outline how to raise a complaint, what are violations to a Conditional Use Permit, who responds and tracks complaints, and suggesting a Code Enforcement Officer be available to provide a timely response. o Parking: Ask the Town Council to provide clarity on parking and if it should be based on seats or maximum occupancy loads. o Recommended an alternate definition of a separate bar and eliminate the definition of food counter. o Intensification: The Town Council should address intensification of uses, be it alcohol or live entertainment, as they may have impacts on parking and traffic. Suggesting additional studies that may be required to provide to the Town Council. o Major Permits: Propose use of maximum occupancy loads and not number of seats as the standard for establishing parking requirements. o Concentration of Permits: Create an impact map.  Asked the Commission if their recommendation is for a Code Enforcement Officer every day of the week or on weekends.  Commented that the discussion included the suggestion to provide information to the Town Council about Conditional Use Permits that have been issued in the last three years and determine which of those might be applicable to this new policy.  Commented that another suggestion made was to exclude the text, “music without human interaction” from the Live Entertainment definition. Is it the Commission’s desire to include or exclude that in its recommendation? Planning Commission Minutes Page 19 October 9, 2013 Chair Erekson  Commented that Code Enforcement should be available on all days for which there are permits in operation that contribute to the problems.  Commented that it seems the intent of the Town Council is to prevent live entertainment or alcohol beverage service in specific types of commercial establishments. It is intended to determine what kinds of establishments should never be permitted alcohol beverage service and to name those types of commercial establishments where it might be possible to get such a permit. Commissioner O’Donnell cautioned that having a Code Enforcement Officer available in the evenings is a financial issue. He added that minimally it is important for the Town to follow up on complaints and respond. That would be cheaper and effective. Commissioner Bourgeois said it is not the place to include “non-live” within a Live Entertainment Policy. Commissioner O’Donnell commented that if “non-live” is precluded the definition may become too broad. He added that he would not personally want to give an automatic pass within this Ordinance simply because of “no human intervention” in the provision of the music. Vice Chair Smith  Commented that this issue came up when an applicant wanted to install a jack for amplifiers within a restaurant as part of a Conditional Use Permit application.  Commented the issue is live entertainment versus loud music and that per staff the Noise Ordinance is the tool to control loud music that is none-live. Chair Erekson commented that if we would like to regulate all music and noise, including non- live, this should be a more general Live Entertainment and Music Policy. Commissioner O’Donnell commented that just as a DJ plays music in person, someone else is still controlling any device being used to provide music. Commissioner Bourgeois suggested adding the text, “…when a Conditional Use Permit is required,” on Exhibit 16, the sentence before the General Policy. This will clear up any confusion between Conditional Use Permits and the use of “strongly discouraged”. Chair Erekson said he prefers to have staff translate these recommendations into a list. He asked if the Commission prefers this list be brought back prior to submittal to the Town Council. Commissioner Talesfore said that staff has captured everything the Commission has said and will do a great job preparing the Commission’s recommendations to the Council. Motion of Vice Chair Smith to move forward to the Town Council a recommendation for adoption of a Zoning Code Amendment (A-13-04) with the required findings of consistency with the General Plan (Exhibit 1) and including the list of comments provided by the Planning Commission at this and the last meeting; and that the Town Council adopt the Alcohol Policy. Planning Commission Minutes Page 20 October 9, 2013 Chair Erekson asked the Town Attorney to repeat the motion. Judith Prop  Restated the motion: Per the required findings (on page 4) for consistency with the General Plan (Exhibit 1), forward a recommendation to the Town Council for the adoption of amendments for the Zoning Regulation Ordinance and the amendments to the Alcohol Beverage Policy with the inclusion of the list that was provided by the Planning Commission for issues they want to make sure are addressed. Commissioner Bourgeois asked if the intent is to give them a separate list or to put those listed items directly within the documents. Joel Paulson said it would be on a case-by-case basis. He added that there is a combination of issues with the Conditional Use Permit in the purpose section and definition issues. Marni Mosley added that the motion should also include the recommendation for the Live Entertainment Regulatory Process per Exhibit 15. Commissioner O’Donnell said that the motion should be subject to the comments provided by the Planning Commission but the actual changes to the document itself should not. If that occurred, the Commission would need to see those documents again. He reiterated that the existing documents should be forwarded “as is” and the list with comments sent along with it as a separate document. Vice Chair Smith indicated her agreement that the exhibits should be forwarded as they are currently and the comments of the Planning Commission attached separately and forwarded on to the Town Council. Commissioner O’Donnell seconded the motion with the inclusion of the list of issues to be provided to the Town Council. The motion passed 7-0. NEW OTHER BUSINESS 5. Report from the Director of Community Development DRC Meeting of October 8, 2013: DRC approved a new residence on a vacant lot at 17059 Pine Avenue; and approved a Certificate of Compliance for 16235 Short Road. Town Council Meeting of October 7, 2013: Approved the Zoning Code Amendments to the Housing Element, and reviewed the Conditional Use Permit for 550 Hubbell Way and denied it. Vacancies on Boards and Commissions: Application deadline has been extended to October 18, 2013. Planning Commission Minutes Page 21 October 9, 2013 6. Commission Matters - None ADJOURNMENT Meeting was adjourned at 10:34 p.m. TOWN OF LOS GATOS PLANNING COMMISSION Wednesday, October 9, 2013 ___________________________________________ Charles Erekson, Chair APPROVED AS TO FORM AND ATTEST: _____________________________ Joel Paulson Planning Manager