11 Staff Report - 42 Elm StreetI I
COUNCIL AGENDA REPORT
DATE:May 11,2007
TO:MAYOR AND TOWN COUNCIL
FROM:DEBRA 1.FIGONE,TOWN MANAGER
MEETING DATE:05/2112007
ITEM NO:
SUBJECT:CONSIDER AN APPEAL OF THE PLANNING COMMISSION DECISION
DENYING A REQUEST TO OPERATE A RESTAURANT ON PROPERTY
ZONED C-2.APN 529-03-035.CONDITIONAL USE PERMIT U-07-24
PROPERTY LOCATION:42 ELM STREET.PROPERTY OWNER:
MICHAEL COBLER.APPLICANT/APPELLANT:SUH CHUNG KIM.
RECOMMENDATION:
1.Open and hold the public hearing and receive public testimony.
2.Close the public hearing.
3.The Council may take any of the following actions on Conditional Use Permit (CUP)
application U-07-24 (motion required):
a.Uphold the Planning Commission's decision to deny the CUP application.
b.Grant the appeal and approve the CUP application,subject to the required
findings (Attachment 2)and conditions (Attachment 3).
c.Grant the appeal and approve the CUP application with modified conditions.
4.Refer to the Town Attorney for the preparation of the appropriate resolution if approved
or denied (no motion required).
If the Town Council determines that the Planning Commission's decision should be reversed or
modified relative to the appeal:
1.The Council needs to find one or more of the following:
(1)Where there was error or abuse of discretion on the part of the Planning
Commission;or
(2)The new information that was submitted to the Council during the appeal process
that was not readily and reasonably available for submission to the Commission;
or
PREPARED BY:BUD N.LORTZ ~k
DIRECTOR OF &)MMbtnfY DEVELOPMENT
Reviewed by:\I Assistant Town Manager -AtfI.=--own Attorney
Clerk A ministrator __Finance Community Development
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT:42 ELM STREET
May 17,2007
(3)An issue or policy over which the Commission did not have discretion to modify or
address,but which is vested in the Council for modification or decision.
2.If the predominant reason for modifying or reversing the decision of the Planning
Commission is new information as defined in Subsection (2)above,it is the Town's
policy that the application be returned to the Commission for review in light of the new
information unless the new information has a minimal effect on the application.
3.If the appeal is approved,use the findings and consideration of the Conditional Use
Permit application (Attachment 2),and modify the conditions in Attachment 3 as
appropriate.
4.Refer to the Town Attorney for preparation of the appropriate resolution(s).
PROJECT SUMMARY:
The applicant (Cafe Delatti)is requesting approval to maintain a high turnover/sit-down
restaurant with the following modifications to the CUP:
•Sales and service for primarily frozen yogurt plus organic coffee drinks,flavored teas,
and fruit smoothies;and
•Discontinuance of all alcohol service,wine tasting and retail alcohol sales;and
•Reduction of hours of operation to 10:00 AM to 9:00 PM from 6:00 AM to 1:00AM.
The applicant will maintain the existing approved 12 seats,indoors and outdoors.The Planning
Commission report (Attachment 5)contains additional discussion on the proposal.
BACKGROUND:
The previous tenant at the project site (Cafe Rouge)received approval for a Conditional Use
Permit (CUP)on August 21,2006 for a high turnover/sit-down restaurant which allowed:
• A total of 12 seats,indoors and outdoors;
•Beer and wine service with meals;
•Wine tasting;
•Hours of operation from 6:00 AM to 1:00 AM seven days a week;
•Alcohol service and retail alcohol sales limited between the hours of 11 :00 AM to
11 :00 PM;and
•Outdoor seating
When the applicant approached the Town regarding their proposed modifications to the
restaurant,staff carefully evaluated their request to determine what process would be required for
the proposed use.
Section 29.20.200 (3)of the Town Code states that any change that is a substantial departure
from plans which were the basis of the CUP approval will require a modification to the CUP.
Additionally,Council Resolution 2005-037 (Attachment 7)further clarifies when a modification
PAGE 3
MA YOR AND TOWN COUNCIL
SUBJECT:42 ELM STREET
May 17,2007
of a CUP is required.Although both restaurants are classified as high turnover sit down
restaurants,the operation of the approved and proposed restaurants was determined to be
substantially different.The approved restaurant allowed service of meals,beer and wine service
with meals,and wine tasting.The proposed restaurant is for yogurt and nonalcoholic drinks.
Additionally,none of the conditions of approval relating to the service and tasting of alcohol for
the existing restaurant would be applicable to the proposed use.After reviewing the applicant's
request,the resolution,and Town Code,staff determined that a modification of the CUP was
required.
PLANNING COMMISSION:
The Planning Commission denied this application on April II,2007 (Attachment 4).The
Commission was concerned that there was a saturation of restaurants selling dessert products in
the downtown area including frozen yogurt,ice cream and gelato.The Commission felt that to
approve additional shops would be inconsistent with the General Plan goal of providing a mix of
commercial uses.
The Town does not currently have policies that specifically regulate establishments that sell
dessert products.As a result,uses of this nature are considered restaurants based on the current
Town Code.
APPEAL:
An appeal of the Planning Commission's decision was received on April 19,2007 (Attachment
I).The appellant/applicant's basis for the appeal is that the Commission erred or abused its
discretion in that the findings could be made to approve the Conditional Use Permit and the
application is consistent with the General Plan and that the Commission failed to collect
adequate Planning Department Policy information regarding the proposed business.
CONCLUSION:
If the Council approves the modifications to the CUP,it should make the required findings and
considerations specified in Attachment 2,and approve the applications,subject to the
recommended conditions in Attachment 3.
ENVIRONMENTAL ASSESSMENT:
The project is Categorically Exempt pursuant to Section 15301 of the State Environmental
Guidelines as adopted by the Town.
FISCAL IMPACT:None.
Attachments:
1.Appeal filed on April 19,2007 (2 pages)
2.Required findings
3.Recommended Conditions of Approval (2 pages)
4.Verbatim minutes from the Planning Commission meeting of April 11,2007
PAGE 4
MAYOR AND TOWN COUNCIL
SUBJECT:42 ELM STREET
May 17,2007
5.Report to the Planning Commission dated April 5,2007 for the meeting of April 11,2007
(Exhibits A and B deleted and incorporated as Attachments 1 and 3 of this report).
6.Desk item report to the Planning Commission dated April 11,2007 for the meeting of April
11,2007.
7.Resolution 2005-037 (3 pages)
8.Letter of opposition,dated May 7,2007 (2 pages)
Distribution:
Suh Chung Kim,3098 Butte Street,Santa Clara,CA 05051
Michael Cobler,900 East Campbell A venue,Campbell,CA 95008
Jimmy Chang,991 Alta Mar Terrace,San Jose,CA 95126
BNLRT:JP:
N:\DEV\CNCLRPTS\2007\42Elm.doc
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ADDRESS LOCATION:
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Office of the Town t~k Ii ~~~.1m
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I U APR 19 ZOO1:
APPEAL OF PLANNING COl\1[M SION DECISION
I,the undersigned,do hereby appeal a decision of the Planning Commission as follows:(PLEASE TYPE R pR.iD~'%:\~~~~.t
DATE OF PLANNING COMMISSION DECISION:04;£/,/(/.~
PROJECT I APPLICATION NO:
rr-=:..==~
I FILING FEES
1 $277.00 Residential
Jl;ULfiO_per..CommeI:cial,..Mult:i-
family or Tentative Map Appeal
Pursuant to the Town Code,the Town Council may only grant an appeal of a Planning Commission decision in most matters if the
Council finds that one of three (3)reasons exist for granting the appeal by a vote of at least three (3)Council members.Therefore,
please specify how one of those reasons exist in the appeal:
1.The Planning Commission erred or abused its discretion because A T r B C!/G:--D
_______________________________________;OR
2.There 1.s new inform.atioll that was not reasonably available at the time of the Planning Commission decision,which is
_________________________(please attach the new information ifpossible):OR
3.The Plmllling COID.Tl1ission did not have discretion to modify or addrees the following policy or issue that is vested in the Towll
Council:._
IF MORE SPACE IS NEEDED,PLEASE ATTACH ADDITIONAL SHEETS.
IMPORTANT:
1.Appellant is responsible for fees for transcription of minutes.A $509.00 deposit is required at the time of filing.
2.Appeal must be filed within ten (10)calendar days ofPlanning Connnission Decision accompanied by the required filing fee.
Deadline is 5:00 p.rn.on the W"day following the decision.If the 10'1>Jay is u S..turday,SUiicay,or T()Vill holiday,thenlt
may be filed on the workday immediately following the 1alh day,usually a Monday.
3.The Town Clerk will set the hearing withing 56 days of the date of the Planning Commission Decision (Town Ordinance No.
1967)
4.An appeal regarding a Change of Zone application or a subdivision map only must be filed within the time limit specified in
the Zoning or Subdivision Code,as applicable,which is different from other appeals.
5.Once filed,the appeal will be heard by the Town Council.
6.If the reason for granting an appeal is the receipt of new infOlmation,the application will usually be returned to the Plaill1ing
Commission for re~onsideration.,.'-1-_---"-,AllN/
PRlNTNAME:Sf)H Ch (;UJ6 k 11'1 SIGNATURE:c:.::::::=:..+-------.--~9f_~p
DATE:---.-l2..U /?/()r ADDRESS:2_Q4i_£}V#c?_:;;'t:.__
PHONE:110 &)4J.2--,!)D ~Z ~_._=;~~Cia :;:1 /CI}"~!~~
'''':-);OFFICIAL USE ONLY ***
DATE Of PUBLIC HEARING:ry\(\':.,1 Sh,j oJ)()-'r CONFIRMATION LETTER SENT:Dale:~tAl''0']__
q /----..,-._----+--'---..--j--
TO ;\PPLICANT &APPELLANT BY:
DATE OF PUBLiCATiONDATETOSENDPUBLICATION:
Ptllding Planning Department Confirmation
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H :\DEV'~:'O!Z.Iv1S\Piallning'Ij'lannll1g Corncrlls:;iCI\f\F~h:.d.\vpd
Attachment 1
The Planning Commission erred or abused its discretion because:
1.Planning Commission failed to fmd that each of the following findings area
supported by the Applicantes Conditional Use Permit application.
(a)The proposed uses of the property are essential or desirable to the public
convenience or welfare;
(b)The proposed use will not impair the integrity and character of the zone;
(c)The proposed uses would not be detrimental to public health,safety or
general welfare;and
(d)The proposed uses of the property are in harmony with the various
elements or objectives of the General Plan and the purposes of the Town
Code.
2.The Plarming Commission failed to fmd that the proposed use was entirely
consistent with the land use element of the Townes General Plan for the Central
Business District,in that the use is retai~locally-owned,pedestrian-oriented,and
consistent with the small-town and historical nature ofthe downtown area.
3.The Planning Commission failed to collect adequate Planning Department
Policy information concerning the Applicantes proposed business.
(a)Use &Occupancy:The current approved use is a high turnover(sit-
down)restaurant as defined by the Zoning Ordinance.
Restaurant -A definition ofrestaurant is contained in the Zoning
Ordinance (29.10.020).Restaurants include those businesses offeringfood or
drinks that are ordered by the customer and prepared while the customer waits
(e.g.bagels with condiments,gourmet coffee shops (except sales ofwhole bean
or ground coffee),sandwiches,ice cream,yogurt,pizza or Chinese to-go,health
drinks,etc.).Any business that sells food products and offers seatingfor
customers is considered a restaurant.
(b)Land Use:There is no current policy addressing and/or limiting the
number of yogurt retail store can be opened in Central Business District.
REQUIRED FINDINGS FOR
42 Elm Street
Conditional Use Pemlit U-07-24
Requesting approval to modify an existing CUP (Cafe Rouge)to allow a coffee and yogurt
business (Cafe Delatti)on property zoned C-2.APN 529-03-035
PROPERTY OWNER:Michael Cobler
APPLICANT:Suh Chung Kim
FINDINGS
•As required by Section 15301 of the State Environmental Guidelines as adopted by the
Town that this project is Categorically Exempt.
•As required by Section 29.20.190 of the Town Code for granting a Conditional Use
Pemlit.
(a)The deciding body,on the basis of the evidence submitted at the hearing,may
grant a conditional use permit when specifically authorized by the provisions of
the Town Code ifit finds that:
(1)The proposed uses of the property are essential or desirable to the public
convenience or welfare;
(2)The proposed uses will not impair the integrity and character of the zone;
(3)The proposed uses would not be detrimental to public health,safety or
general welfare;and
(4)The proposed uses of the property are in hannony with the various
elements or objectives of the General Plan and the purposes of the Town
Code.
•That the proposed project is consistent with the Redevelopment Plan for the Central Los
Gatos Redevelopment Project Area (Section IV.B).
Attachment 2
2.
4.
7.
8.
9.
10.
RECOl\IMENDED CONDITIONS OF APPROVAL FOR:
...2 Elm Street
Conditional Use Permit U-07-24
Requesting approval to modify an existing conditional use permit (CUP)to allow a coffee
and yogurt business (Cafe Delatti)on property zoned C-2.APN 529-03-035
PROPERTY OWNER:Michael Cobler
APPLICANT:Suh Chung Kim
TO THE SATISFACTION OF THE COMMUNITY DEVELOPMENT DIRECTOR:
(Planning Section)
1.CONDITIONS:These conditions of approval shall supersede all previously adopted
conditions.
APPROVAL:This application shall be completed in accordance with all of the conditions
of approval listed below and in substantial compliance with the plans approved and noted
as Exhibit E in the report to the Planning Commission.Any changes or modifications made
to the approved plans shall be approved by the Director of Community Development or the
Planning Commission, depending on the scope of the changes.
LAPSE FOR DISCONTINUANCE:If the activity for which the Conditional Use Permit
has been granted is discontinued for a period of one (1)year the approval lapses.
USE:The approved use is a high tum over sit down restaurant.
5.NUMBER OF SEATS:The maximum number of seats for the restaurant shall not exceed
12 seats total indoors and outdoors.
6.HOURS OF OPERATION:Maximum hours of operation for the restaurant shall be 10:00
AM to 9:00 PM seven days a week.
ALCOHOL SALES:Alcohol service and retail alcohol sales shall not be pennitted.
TAKE OUT:Take out food shall be served in recycled material containers.
UTENSILS:All beverages and food served on site shall be served on reusable materials.
TRASH:Operators of the restaurant shall pick up trash along the business frontage and in
the vicinity of the restaurant when outdoor seating is available.
TO THE SATISFACTION OF THE BUILDING DEPARTMENT:
(Building Section)
11.PERMITS REQUIRED:A building permit shall be required for any interior tenant
improvement to the existing commercial building.Separate pemlits are required for
electrical,mechanical,and plumbing work as necessary.
12.CONDITIONS OF APPROVAL:The Conditions of Approval must be blue-lined in full on
the cover sheet of the constructions plans.A Compliance Memorandum shall be prepared
and submitted with tbe building permit application detailing how the Conditions of
Approval will be addressed
13.SIZE OF PLANS:Four sets of construction plans,maximum size 24"x36".
14.BACKWATER VALVE:The scope of this project may require the installation of a
sanitary sewer backwater valve per Town Ordinance 6.50.025.Please provide infotmation
ATTACHMENT 3
42 Elm Street -April 11,2007
Conditional Use Permit U-06-20
Page 2
on the plans if a backwater valve is required and the location of the instaliation.The Town
of Los Gatos Ordinance and West Valiey Sanitation District (WVSD)requires backwater
valves on drainage piping serving fixtures that have flood level rims less than 12-inches
above the elevation of the next upstream manhole.
15.TITLE 24 -COMMERCIAL:For any proposed tenant improvements,the building shall be
upgraded to comply with the latest California Title 24 Accessibility Standards.Necessary
work shali be first investigated by the design architect,then confirmed by Town staff.
16.TITLE 24 -RESTAURANT USE:Proper size grease trap shall be required for any
restaurant use.The following agencies will review the grease trap requirements before
issuance of the building permit:
a.West Valley Sanitation District (WVSD):(408)378-2408
b.Environmental Health Department:(408)885-4200
c.Town Public Works Department:(408)399-7530
17.SPECIAL INSPECTIONS:When a special inspection is required by UBC Section 170 I,
the architect or engineer of record shall prepare an inspection program that shall be
submitted to the Building Official for approval prior to issuance of the building pernlit.
The Town Special Inspection form must be completely filled-out,signed by ali requested
parties,and be blue-lined on the construction plans.Special Inspection forms are available
from the Building Division Service Counter or online at www.losQatosca.gov/building.
18.NONPOINT SOURCE POLLUTION STANDARDS SHEET:The Town standard Santa
Clara County Valley Nonpoint Source Pollution Control Program Sheet (or Clean Bay
Sheet 24x36)shall be part of the plan submittal as the second page.The specification sheet
is available at the Building Division Service Counter for a fee of $2 or at San Jose Blue
Print for a fee.
19.PLANS:The construction plans shall be prepared under the direct supervision of a licensed
architect or engineer.(Business and Professionals Code Section 5538).
20.APPROVALS REQUIRED:The project requires the following departments and agencies
approval before issuing a building permit:
a.Community Development -Planning Division:Elizabeth Pettis at 354-6802
b.Engineering/Parks &Public Works Department:Fletcher Parsons at 395-3460
c.Santa Clara County Fire Department:(408)378-4010
d.West Valley Sanitation District:(408)378-2407
TO THE SATISFACTION OF THE DIRECTOR OF PARKS AND PUBLIC WORKS:
(Engineering Division)
21.RAILING:A railing of similar materials and appearance to that used on the adjacent
parking structure shall be provided along the back side of the handicap ramp.The rail shall
be provided prior to iss~ance of a certificate of occupancy,or within 3 months of issuance
of the Conditional Use Permit,whichever comes first.
N\DEV\CONDITNS\2007\42 Elm.doc
Los Gatos Planning
Commissioners:
A P PEA RAN C E S:
Joanne Talesfore,Chair
John Bourgeois
Michael Kane
Phil Micciche
Tom O'Donnell
Marico Sayoc
PRO C E E DIN G S:
CHAIR TALESFORE:We are going to get to Item #4,
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12
Assistant Director of
Community Development:
Town Attorney:
Transcribed by:
Randy Tsuda
Orry Korb
Vicki L.Blandin
(510)526-6049
42 Elm Street.I think we're within our time limit.Do I
need to assess anymore?No,okay.So let's bring up the
applicant for Item #4.Well first of all,Mr.Tsuda,do you
have a Staff Report on this?
10
RANDY TSUDA:Actually Elizabeth Pettis,one of
11
our assistant planners,is going to provide you with that
12
Staff Report.
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CHAIR TALESFORE:Thank you.
ELIZABETH PETTIS:This is Conditional Use Permit
U-07-24 for 42 Elm Street.The applicant is requesting
approval to modify an existing conditional use permit to
allow for a yogurt and coffee business on property zoned C-
2,and this will be to permit a high-turnover,sit-down
19 19 Irestaurant that will serve organic coffee,drinks,frozen
~
i
.;:..
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21
22
23
24
25
LOS GATOS PLANNING COMMISSION 4/11/2007
Item #4,42 Elm Street
1
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yogurt,flavored teas,and fruit smoothies,have a total of
12 seats indoors and outdoors,with the hours of operation
between 10:00am and 9:00pm.
The previous tenant,Cafe Rouge,received approval
for a conditional use permit on August 21,2006 for a high-
turnover,sit-down restaurant,which allowed a total of 12
LOS GATOS PLANNING COMMISSION 4/11/2007
It~n #4,42 Elm Street
2
I~..................__......_......_----_......-----_......__......_---
I
seats indoors and outdoors,with the hours of operation CHAIR TALESFORE:Thank you very much.
between 6:00am and 1:00am,seven days a week,with beer and Commissioner Micciche has a question for Staff.
wine service with meals,wine tasting,alcohol service and COMMISSIONER MICCICHE:If they came back before
retail alcohol sales between the hours of 11:00am and the year was up,would they have to?
11:00pm,and outdoor seating.RANDY TSUDA:If you do not approve this permit or
CHAIR TALESFORE:Thank you very much.Do we have this applicant chooses not to implement the conditional use
any questions,Commissioners?Commissioner Kane.permit,chooses to reopen the previous Cafe Rouge business,
COMMISSIONER KANE:In that cafe Rouge is out,
8
they can do so under the previous CUP.Assuming you approve
does the CUP regarding alcohol become a sunset policy?Is this permit,once it's implemented,it's done.The alcohol
10
would it be grandfathered?
that now gone?Would a future tenant need to reapply,or
existing permit if it's reactivated within one year.Under
CHAIR TALESFORE:All right,so any other
questions?Seeing none,I'd like to have the applicant,
service goes away.
address for us.Thank you very much,and please adjust the
Jimmy Chang,come up to the podium and state your name and
microphone so we can hear you.Thank you.
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13
11
14
12
It can continue to exist under theRANDYTSUDA:
this proposal the applicant is not proposing any alcohol
service and that's included in a conditional of approval.
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14
12
15 COMMISSIONER KANE:So it may be a sunset in one 15 JIMMY CHANG:My name is Jimmy Chang and I live at
16 year?16 991 Alta Mar Terrace in San Jose,California.I'm here to
17 CHAIR TALESFORE:Yes.17 represent the new Delatti proposal.We're here to request an
18 RANDY TSUDA:Well if you grant this permit,the 18 lapproval to modify the existing conditional use permit to
19 luse permit is immediately changed,and alcohol service must 19 lallow low-fat frozen yogurt as primary,and coffee and
20 Icease once they open their business.20 I drinks ,mostly ice-blended,as a secondary use or service
21 COMMISSIONER KANE:And the new tenant would need 21 Ifor the business on this property.
22 to reapply in the future?So it's gone?22 We believe our proposed use is very suitable for
23 RANDY TSUDA:If they wanted to restore the 23 the current location,given that the immediate surroundings
24
alcohol service,they would have to come back.24
are restaurants,retails,and actually right across the
25
COMMISSIONER KANE:Thank you.25
LOS GATOS PLANNING COMMISSION 4/11/2007
Item #4,42 Elm Street
LOS GATOS PLANNING COMMISSION 4/11/2007
Item #4,42 Elm Street
4
street from Elm Street is a small gift shop,so given the
conditions,we believe it's suitable.
Our store,we think it will bring more friendly
environments,especially to the pedestrians who are walking
along Elm Street and eventually North Santa Cruz Avenue,
because there's a public parking lot,which kind of opens up
right next to the store.
We are actually forfeiting our current use permit
that allows alcohol and alcohol sales,and we're actually
asking to provide healthy low fat tart frozen yogurts with
10
fresh fruit toppings.
11
Our low fat tart soft-serve yogurt is actually
12
very different from traditional frozen yogurts.It's really
10
11
12
traditional yogurt,which is creamier.It's hard to describe
the taste.
Also in addition to that,we're proposing that it
will have fresh fruit toppings,and our display on the
counter has a topping area,which will be refrigerated and
has the fresh toppings.As you can see on the business plan,
we put the visual images there as a reference.
We believe our proposal will actually serve the
neighborhoods.We did a survey and there are a lot of
supporters who signed this document,and it was provided to
you guys as a supplement.And also in a bigger area I think
it just adds another store that's different and unique and
one of the kinds in Los Gatos,and I think it still would
13 hard to describe the taste actually without tasting it,but
13 add a lot of value to the community.That's it.
14 if I may kind of compare the new frozen yogurt that we're
14 CHAIR TALESFORE:Do we have any questions of the
15
16
proposing versus the traditional frozen yogurt,if you had
an experience,say,with 31 Baskin-Robbins ice cream versus
15
16
applicant?Okay,I do as well.Commissioner Bourgeois,and
then Commissioner Kane.
17 Italian gelato,there is a significant different.Yes,it is 17 COMMISSIONER BOURGEOIS:Thank you for your
18 Ithe same ice cream,if you were to categorize it,but as far
19 las taste-wise,it is very different.We believe if someone
20 Ilikes the flavors that are provided by 31 Baskin-Robbins,
21 ,they will go there.If someone likes the sherbets that are
22 Iprovided by Italian gelato,they will go there.So as far as
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presentation,for providing the business plan stuff in the
packet;that was really good to see.
I just want to understand how familiar you are
with our downtown.Between where you are and Main Street
there are a number of ice cream,gelato,yogurt places,as
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the taste,that's an example of how it is different.
Also the new low fat tart,it's the tart part that
provides the little bit more sour taste and is unlike the
LOS GATOS PLANNING COMMISSION 4/11/2007
Item #4,42 Elm Street
5
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well as coffee shops.You kept saying you're unique.How are
you different from what's already there,and are you aware
LOS GATOS PLANNING COMMISSION 4/11/2007
Item #4,42 Elm Street
6
I~____-
of this kind of saturation of this use in this block?I'd
just like your thoughts on this issue.
JIMMY CHANG:Actually,we are.When we were first
putting together these business plans a few months ago,we
did some marketing research and we are aware that there is I
believe one that particularly says they have frozen yogurts.
The way we see it is that that store is actually located
CHAIR TALESFORE:Commissioner Kane,do you want
to go next?Okay,Commissioner Sayoc.
COMMISSIONER SAYOC:Yes,all right.Thank you for
4 Iyour comments.Your concept and your business plan is very
intriguing,but when you were looking at potential places,
were there other places in consideration besides 42 Elm
Street?
I
more towards the Main Street,and actually all the reference
8
JIMMY CHANG:AS far as I know,42 Elm Street was'
stores are located on North Santa Cruz Avenue,whereas our
location,it tends to serve more towards the Los Gatos
10
Boulevard and the shopping area and Elm Street.So yes,it
11
is a reasonable distance,but as far as the location,I
12
think it serves a different area.
the store that was available,and no,we did not look at the
other locations,because the other locations weren't
10
available.
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CHAIR TALESFORE:Commissioner Kane,and then
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Commissioner Micciche.
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And two,as far as taste-wise,we didn't provide
you with the other traditional frozen yogurt ingredient
breakdowns,but if you look at the business plans,at least
our machines are different.It's actually a private company
that manufacturers the machines in Ohio,and that's where
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COMMISSIONER KANE:The concept of Delatti is that
someone has purchased a franchise?
JIMMY CHANG:No,it's not.
COUNSEL SABO:It's not a franchise?
JIMMY CHANG:No,it's a name that we came up
18 Iwe're getting the machines,and so the mixture itself to
19 Icreate this soft-serve frozen yogurt is different,meaning
18 Iwith.Basically it's delicious,and we just came up with
19 I that name,so it's not a franchise,no.
20 I the ingredients are a little different.The fat is 20 COMMISSIONER KANE:Son of a gun,I misread it.
21 Isignificantly low,sugar is very minimal,and that's what we 21 IThis is a one and only store?
22 said:it's healthy frozen yogurt.It's really hard to 22 JIMMY CHANG:Yes.There are a lot of similar
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describe the taste,but at least gelato was an example.It's
not a gelato.It's not an ice cream.It is a frozen yogurt,
in reference to your question.
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concepts given that it's a frozen yogurt,but as far as the
store,yes,it is the only one.
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COMMISSIONER KANE:I saw that.I had a reaction
to the business plan;I thought it was being sent out by the
holy city somewhere and you had to abide by their formula
approach.You know the store that's in there now is a
reasonably casual,friendly kind of place.I thought there
was some corporate order that you had to wear these
uniforms.
JIMMY CHANG:No,that's all designed by a graphic
designer.
COMMISSIONER KANE:And you have the freedom to
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change if you need to?
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JIMMY CHANG:Yes.
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COMMISSIONER KANE:Thank you.
the fact that the nutritional value of this yogurt is
different than other yogurts in town?Is that a correct
statement?
JIMMY CHANG:Yes,that's a correct statement.In
this town,yes.
COMMISSIONER MICCICHE:Excuse me?
JIMMY CHANG:In this Los Gatos town,yes.
COMMISSIONER MICCICHE:In this area,we're
talking about,right?
JIMMY CHANG:Yes.
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COMMISSIONER MICCICHE:So when Commissioner
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Bourgeois spoke about saturating the area,you don't feel
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you're saturating,because you've got something separate
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CHAIR TALESFORE:Can I just follow-up for a
13 here,something different,is that right?
14 second?Were they just examples of what you're thinking
14 JIMMY CHANG:Yes.
15 about doing,or is this the actual?15 COMMISSIONER MICCICHE:If a store like TCBY,I
16 JIMMY CHANG:Well,a graphic designer designed 16 think is the name of it,were to add this feature,would you
17 the logos,the words,and the image that was going to be on 17 have an objection to that?
18 I the apron.Recycled (inaudible)and all that,it was 18 JIMMY CHANG:Our understanding of TCBY,yes,they
19 I designed.
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CHAIR TALESFORE:So is the answer yes?
JIMMY CHANG:Yes.
19 ladvertise frozen yogurt,which is a traditional frozen
20 I yogurt ,knowing that TCBY is a well known franchise,that we
21 ,have an access to their ingredients,that it is a creamy
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23 Micciche.
CHAIR TALESFORE:Thank you.Okay,Commissioner 22
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traditional frozen yogurt.
On top of that,the current TCBY on North Santa
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COMMISSIONER MICCICHE:It appears from your 24
Cruz Avenue,in addition to frozen yogurt,or advertisements
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statement that you're unique and one of a kind stems from
LOS GATOS PLANNING COMMISSION 4/11/2007
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that are dedicated to frozen yogurt,at least on the front
LOS GATOS PLANNING COMMISSION 4/11/2007
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door they also advertise Mrs.Fields cookies.They also have
a lot of fruit juices,like factory manufactured fruit
COMMISSIONER O'DONNELL:We're still open.
CHAIR TALESFORE:We're still open.
~
juices in a container.So other than the frozen yogurt,I COMMISSIONER O'DONNELL:(Inaudible).
don't think we have any other items that are conflicting
with that store,and what we are proposing in here.
COMMISSIONER MICCICHE:Excuse me,that wasn't my
question.My question was if they were to add a nutritional
yogurt to their menu,would you feel an objection to that?
JIMMY CHANG:If they purchase the same
(inaudible)and start to serve to same frozen yogurt with
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the idea of serving the fruit toppings just like what we
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were kind of showing you as a visual image,yes,we may.
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COMMISSIONER MICCICHE:Okay.
CHAIR TALESFORE:Well there is.We have card.I
have a speaker card.
COMMISSIONER O'DONNELL:Oh,you do?I'm sorry.
CHAIR TALESFORE:Yeah,I have a speaker card.
COMMISSIONER O'DONNELL:I withdraw my motion.
CHAIR TALESFORE:Okay.Thank you.
COMMISSIONER O'DONNELL:But I have a comment.
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(Inaudible)so far,I want to clarify,because I don't think
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we can say to somebody,'Gee whiz,there's a lot of yogurt
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in town."This is not a chain store;it's consistent with
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CHAIR TALESFORE:Okay,looking for just a motion
to extend our meeting time.
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everything.If you wouldn't do this,that's fine,but I
don't see any basis upon which we can say oh my gosh,there
15 COMMISSIONER MICCICHE:So moved.15 are a lot of ice cream and yogurt places.So I just wanted
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COMMISSIONER KANE:So moved.
CHAIR TALESFORE:So moved.Okay,could I have a
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to get that out,because if there is some reason to be able
to do that,I'd like to hear what it is.
18 Isecond?(Everyone seconds.)I love it.Okay,so how many
19 Ivote in favor?All right,I'm going to call the motion.In
18 I COMMISSIONER KANE:If they're out of balance,we
19 Icould,but they're not.
20 I favor of extending the meeting past 11:30?Opposed?None.20 CHAIR TALESFORE:And Commissioners,I am going to
21 COMMISSIONER O'DONNELL:I want to make a motion.21 Itell you that there's also a desk item on this that was here
22 CHAIR TALESFORE:Yes.22 tonight when you came in.Did you all have a chance to read
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COMMISSIONER O'DONNELL:
(inaudible).
I want to move that 23
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that?I'm sorry to be reminding you of it now.Okay,thank
you very much.And so I'd like to call up Jamie Kim.
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CHAIR TALESFORE:But one other thing.
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JAMIE KIM:Hi,name is Jamie Kim and I'm from 13
North Santa Cruz Avenue,TCBY,representing my parents as
the owner of a TCBY store.It's actually my second time
representing my parents at the hearings.The first time was
last December at an appeal case of Powell's Sweet Shoppe.
However,today is a little bit different.I feel a
different emotion because I'm here to ask of you to protect
our business by regulating the permit for yogurt business
for new shops.I have prepared a (inaudible),but I
(inaudible).
CHAIR TALESFORE:That's all right.We're with
you.
JAMIE KIM:Okay.No one else is here.
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in the coming spring and summer season we'll be able to make
up for the loss and continue our business to serve the
customers and community,and also continue being part of
this historical town as the TCBY store has been for the past
16 years.
But when we heard of this new business coming in-
we actually found out last Thursday-we were devastated.
Having another frozen yogurt shop within one block from our'
location selling basically the same product will hurt our
business even more,but not only our store,but also other
frozen treat shops in downtown.I am not being skeptical or
pessimistic,but it is clear that it will be very difficult
for us to make up for the rent and other operation expenses,
13 CHAIR TALESFORE:Just us.
13 and therefore unable to sustain our business any further.
14 JAMIE KIM:But to get straight to the point
14 There is only so much we can do to make up for the loss.My
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however,I'm here to request the Planning commission to
considering regulating permits to sell frozen yogurt
products for the new store,in this case cafe Delatti,and
in the future other possible businesses.
As of now there are already five businesses that
serve frozen treats,not even counting restaurants selling
ice cream on their dessert menu.With the opening of the
fifth store,which is Powell's Sweet Shoppe selling gelato
last July,it has affected our business very much.Our sales
have gone down over 30%,and we just had a long winter
season of negative revenue.But we were still hopeful that
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parents are already working every day,many hours,so they
can save money on the payroll,and they are using their own
savings to maintain the business.
Competition is good for the customers and also for
the businesses as they motivate them to continue to make
improvements in their service and quality of their business,
but it only works when it is balanced.Only when businesses
are capable of bettering their business both financially and
resourcefully without compromising the quality of their
product and service,it will benefit both customer and the
business.In this case it is not balanced.There are just
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too many frozen sweet treat shops in this small downtown,RANDY TSUDA:You do not have the ability to
especially on Santa Cruz Avenue around the Main Street.2 Iregulate market share,regulate business.What you have
Really,how many ice cream stores does a block of downtown before you is a land use decision,and it needs to be based
need?on the General Plan and the Town Code,and that's what will
TCBY has been a part of the Town's history for the ultimately guide your decision tonight will be those land
past 16 years.I believe it is one of the oldest businesses use policies,not the marketplace.
in the downtown and we are proud to be part of it.It has COMMISSIONER KANE:Okay.Thank you.
been the place where a whole family can come in for yummy CHAIR TALESFORE:I just wanted to ask the
yogurt,for young people to hang out,and older people to speaker,do you understand that?
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to be part of the Town of Los Gatos for many years to come
come in and relax and enjoy the yogurt.We hope to continue
as to whether they can sustain or not.
your decision to review the business plan and grant the
JAMIE KIM:Yes,I do,but I know it's ultimately
permit or not,and it would really affect existing business
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and to serve the customers and community,so please consider
helping and protecting existing business by regulating
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13 permits to sell similar items,in this case regulating
13 CHAIR TALESFORE:Commissioner Micciche.
14 permits to sell frozen yogurt products for Cafe Delatti.
14 COMMISSIONER MICCICHE:I'm very familiar with
15 By no means are we denying their coming into the 15 your store.In fact,my children love to go there to get
16 town,but it's just the product they're selling,and they 16 cookies from Mrs.Field.Does TCBY allow you to add products
17 insist it's a unique different yogurt,but to people it's 17 to the line,or are you compelled to use what they give you?
18 Ijust ice cream.18 JAMIE KIM:We have very strict guidelines by the
19 CHAIR TALESFORE:Okay.commissioner Kane,do you 19 Ifranchise to the ingredients or even to the amount of the
20 Ihave a question?20 I serving;everything is dictated by the franchise.And even
21 COMMISSIONER KANE:I have a question for Staff.21 Iwe want to make a different modification or improvements to
22 Mr.Tsuda,it carries on what Commissioner O'Donnell was 22 the store,but it is also regulated,so we cannot compete
23 saying,that what we're being asked to do.I was wondering 23 with privately owned stores where they could use a graphic
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if you could comment to the speaker.I don't think we have 24
designer to design their uniform or whatever they can do.
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the authority to make that kind of policy.25
LOS GATOS PLANNING COMMISSION 4/11/2007
Item ~4,42 Elm Street
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LOS GATOS PLANNING COMMISSION 4/11/2007
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COMMISSIONER MICCICHE:Have you looked at the
nutritional value list that they have on theirs?Did you see
this report?
JAMIE KIM:Well I didn't have a chance to look at
5 lit until just a few hours ago,right outside.
COMMISSIONER MICCICHE:So you do you know if you
have any product that matches thief's nutritionally?
JAMIE KIM:oh yes,actually TCBY as a franchise
guarantees their product and the quality.of their product,
and we do serve no-sugar,non-fat yogurt in a variety of
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flavors.We have hard yogurt,we have sweet yogurt.
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COMMISSIONER MICCICHE:So you feel you have a
12
competitive product,an equal product,to them?
JIMMY CHANG:Well I just have a couple I guess
lines to you to say.Obviously we're not here to add another
competition.We feel like it's a different product,
different item.As you can see,we felt like there is a
demand in the neighborhood,because there are obviously 50
people-50 people is what we've given you-but they are a
mixture of residents of Los Gatos town and also the business
owners,and you can indicate them by their business name and
their address.We felt like that's evidence that there is
more demand for a new kind of l.ow-fat frozen yogurt,a
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healthier product.
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CHAIR TALESFORE:Thank you.Any questions?I have
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a question.Are you planning on serving anything besides the
13 JAMIE KIM:Yes.
13 ice cream,such as cookies,sandwiches?Nothing,okay.
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16 how long?
COMMISSIONER MICCICHE:Thank you.
CHAIR TALESFORE:And you've been in the town for
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JIMMY CHANG:No.
CHAIR TALESFORE:All right,well thank you very
much.I'm going to have you sit down,and Commissioners,
17 JAMIE KIM:My parents took over the store about a 17 Idiscussion,questions?
18 Iyear-and-a-half ago.18 COMMISSIONER MICCICHE:Shouldn't you close the
19 CHAIR TALESFORE:Thank you very much.But the 19 Ipublic hearing?
20 I store has been for sixteen years.20 CHAIR TALESFORE:Oh yes,I'm closing the public
21 JAMIE KIM:Sixteen years.21 ,hearing.Commissioners,questions?Commissioner O'Donnell.
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CHAIR TALESFORE:Yes,that's what I wanted to
know.Thank you very much.Okay,thank you.And I'd like to
call the applicant back up for a rebuttal,if you want.If
not,it's fine;you don't have to say anything.
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COMMISSIONER O'DONNELL:I just want to,at l.east
from my understanding,make it quite clear,because I'm very
sympathetic with what the TCBY people are saying,but I
don't know that you understand what our authority is.
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I
We've been told it's a land use decision.We CHAIR TALESFORE:Okay,we have a second from
cannot regulate whether there are two or ten,at least to my Commissioner Micciche.Discussion?
knowledge we can't,so we are making a land use decision I'm sitting here not knowing how I feel about it,
only,whether after hearing what you're saying about how because I do feel that there's a cluster of ice cream
hard business is,which I believe you,whether it is a wise establishments.On the other hand,I feel that the location
decision to do what they're doing,we can't tell people how of this shop is actually almost in another neighborhood,and
to run their business,so I just want that to be clear,it does serve people that may not come upon it.I mean I
because we're not trying to hurt your business,and know how it felt when I was using it as Cafe Rouge,or
hopefully you're not trying to hurt your business,but before that,the coffee store that was there,so I don't
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feel we're constrained to make,and that motion would be
COMMISSIONER BOURGEOIS:I am going to support the
motion,but I do think that as a land use decision we do
Sayoc.
Commissioner Bourgeois,and then Commissioner
know,I'm sitting somewhere there,whatever that means.
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that it is exempt under CEQA,that it is justified,it's
approve the conditional use permit and the findings would be
In any event,I would like to make a motion that I
that's not the point.
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14 desirable for public convenience and welfare,would not
14 have the ability,if we think there's an over-concentration
15 impair the integrity and character of the zone,it would not 15 of a use,then we can make the decision based on that.
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COMMISSIONER BOURGEOIS:I am torn on this and I'm
be detrimental to the public health,safety,or general
17 I welfare,and the use is in harmony with the various elements
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CHAIR TALESFORE:Mmm-hmm.
18 land objectives of the General Plan and purpose of the Town 18 Ivery sympathetic to the existing businesses.We've had this
19 ICode.The proposed project is consistent with the 19 Idiscussion numerous times.We've had it for Powell's,we've
20 Iredevelopment plan for central Los Gatos Redevelopment 20 Ihad it for Cold Stone Creamery.I mean this issue has been
21 IProject area.That's the motion.21 Italked to death on this block,but the bottom line for this
22 CHAIR TALESFORE:We have a motion in progress.Do 22 parcel,for this property,we're going from coffee and wine
23 I have a second?23 to coffee and tea and yogurt,and they're giving up their
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COMMISSIONER MICCICHE:I second.24
alcohol and they're reducing their hours.I mean I can't see
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Item ~4,42 Elm Street
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LOS GATOS PLANNING COMMISSION 4/11/2007
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voting against this applicant,but I do think that use is a
concern to me in that district.
CHAIR TALESFORE:But it's more effective and what
we do rule on is the land use.
CHAIR TALESFORE:Commissioner Kane.RANDY TSUDA:I think what the Con~issioner seems
COMMISSIONER KANE:I expect I'll be supporting to be raising is a larger policy question here that goes
the motion,but I would ask again of Mr.Tsuda,we have one
here,we have one there,we have one there.When Planning
has the sense that we have one here and when you start to
get concerned,when you first hear of the protest from a
beyond this particular application.What I would suggest is
given this trend that we're seeing in the downtown,if it is
a trend,that we raise this in our discussion with the
council at the upcoming retreat.
merchant,maybe then we could do a market study,a CHAIR TALESFORE:I wanted to get back on this for
saturation study,because what we don't want to do is add to
10
critical mass and bring in a sixth one and they all fail.
11
I'm just thinking when you hear something out there,when
12
you hear a protest,maybe we should do a market study or
a second.Can we do that after we vote on this motion?I
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would like to capture that so it's not lost.
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RANDY TSUDA:You can capture that after you make
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the motion.
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determine that we're approaching a saturation point and we
do need to be careful,and that we can rule on,but it's not
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CHAIR TALESFORE:Thank you.Commissioner
Micciche.
15 in this report,so I'm assuming it's not relevant,but I 15 COMMISSIONER MICCICHE:What I was going to
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would say that we're getting close to that point of
relevance if a merchant is losing 30%and having trouble
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suggest,and we've done this before,as part of this motion,
is we send a strong recommendation to the Council to look at
18 I surviving.18 Ithis issue of saturation of any item,since we're being
19 CHAIR TALESFORE:But Commissioner Kane,I don't 19 Iconfronted with it,so I'd like to make it part of the
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think we can rule on market...I don't know what the market
(inaudible).
COMMISSIONER KANE:We can rule on anything
deleterious to the Town and if all six of them are going to
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motion that we're sending the recommendation along to the
Town Council.We've done that before.
CHAIR TALESFORE:Could that be part of the
motion?No.
CHAIR TALESFORE:Commissioner O'Donnell.
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fail,I'd rule on it.24
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COMMISSIONER MICCICHE:We've done it before.
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COMMISSIONER O'DONNELL:Before responding to
that,let me say this.I think that Commissioner Bourgeois
raises a good point.You'll recall when we voted down the
ice cream place at Lyndon Plaza we were reversed by the Town
council on some basis.
CHAIR TALESFORE:Yes.
COMMISSIONER O'DONNELL:We felt at that point
there was an over saturation of ice cream places in Los
Gatos and the Town Council said baloney.Now why the baloney
was,anybody's guess is as good as mine.I do think that
John is correct.At some point you can say too much is too
much.You don't have to get into the economic analysis that
Commissioner Kane is getting into,because that really kind
isn't that.We're thinking of the Town,and we can say wait
a minute,if everybody wants to sell ice cream,this isn't a
balanced town.If everybody wants to sell sweatshirts,this
isn't a balanced town.So that's got nothing to do with
whether everybody can get rich selling sweatshirts,it's
like do we want to have a town that only sells sweatshirts?
So here I would agree.If you've got every other
store is going to sell ice cream of whatever,that's not
right.So yes,we can get to a point where there are too
many,and to the extent that I suggested otherwise,I was
wrong,and I think John'S point is well taken.So even
though I have made the motion,I would invite anybody to
tell me that they really feel within let's say a five block
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area,or a six block area,that we just have too many and
this would be the straw that broke the camel's back,not
from an economic standpoint,but from the idea of having
balance in our community so that our citizens will want to
corne downtown.I don't think yogurt shops are going to be
destination shopping.So I'm inviting some criticism of my
motion.
CHAIR TALESFORE:Would like to go before me,
Commissioner Micciche,because I have a comment?
COMMISSIONER MICCICHE:Yeah,I'd like to change
my comment before and say that I'm against the motion now.I
think Commissioner O'Donnell has presented a good case for
us challenging the existing policy.
CHAIR TALESFORE:And I will weigh in with three
things.One is commissioner O'Donnell,when you referred to
the ice cream store at Lyndon,that was Cold Stone Creamery,
and one of the reasons that the Commission did turn it down
was because it was a franchise whose other store was less
than a mile away from it and there was that policy that they
couldn't have two stores within a mile of each other.That's
the franchise policy.
And there was also when we had the American
Apparel here,it was for another T-shirt store and we have a
lot of stores that sell T-shirts.So I was on the fence
before;I don't think I am now on this.I mean I think the
plan that they presented,I was impressed with it.I don't
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Item #4,42 Elm Street
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I
think we can do any kind of market analysis as far as
economics are concerned on this,but I do think we can do
land use policy.I think this does lean toward over-
concentration in that very small area,plus the idea of
other restaurants,so I'm probably not going to support the
motion.
CHAIR TALESFORE:Okay,and let's reflect that
Commissioner Micciche also withdrew his second.I would tend
to agree with Commissioner O'Donnell and Commissioner
Micciche,and also adding into that,it's also yogurt plus
coffee plus teas,which we have those stores as well.So
commissioner Sayoc,you had a comment?
motion.
COMMISSIONER O'DONNELL:I'm going to withdraw my COMMISSIONER SAYOC:Well the motion has been
withdrawn,so I guess not.I was going to say that I was not·
COMMISSIONER MICCICHE:Excuse me,I'm going to
withdraw my second.
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COMMISSIONER O'DONNELL:Okay.
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CHAIR TALESFORE:Wait a minute,let's withdraw
going to support the motion.Instead,how about I throw out
a motion?
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CHAIR TALESFORE:Commissioner Sayoc,we'd like
11
that.
12
the motion,and we're withdrawing the second.Commissioner
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COMMISSIONER SAYOC:I move to deny the
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O'Donnell.
COMMISSIONER O'DONNELL:Let me withdraw it and
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application,because the General Plan states that we should
provide a mix of commercial and industrial land uses to
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let me explain.I still tend to think that from a legal
standpoint the motion is probably well taken.But I do think
from a Town planning standpoint,how many is enough,and how
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maintain a full-service to\VD,and I believe the proposed use
will create a disbalance to an already over-saturated
market.
18 Imany is too much?And I can tell you from living here that 18 CHAIR TALESFORE:We have a motion for denial due
19 I there is no shortage of ice cream or yogurt.19 Ito over-saturation.
20 CHAIR TALESFORE:Yeah.20 COMMISSIONER MICCICHE,I second.
21 COMMISSIONER O'DONNELL:In fact,if anything,21 CHAIR TALESFORE:Seconded by Commissioner
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there are too many.So having been reminded of the
saturation issue,I just don't want to make that motion,so
I withdraw it.
LOS GATOS PLANNING COMMISSION 4/11/2007
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Micciche.Okay,thank you,Commissioner Micciche.Unless
have somebody with a burning desire to say anything,I'm
going to call for the motion.Thank you.All those in favor
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say aye.Opposed?So it's two nays and four ayes,so the
motion passes.
ORRY KORB:Just note for the record,
Commissioners Bourgeois and Kane were in opposition.Appeal
rights.This decision is appealable to the Town Council.The
decision must be appealed within ten days and appeal forms
are available upstairs at the Town Clerk's office.
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I
REPORT TO:
FROM:
LOCATION:
FINDINGS:
ACTION:
EXHIBITS:
Date:.:-.A~p~n~·1_.:=:.5_'_,2'='.:0~0'-'...7
For Agenda Of:__~A~pr~il~lo.....:l_'_,=20,,-,,0,-,-7
Agenda Item:~4
The Planning Commission
The Director of Community Development
42 Elm Street
Conditional Use Permit U-07-24
Requesting approval to modify an eXIstmg conditional use permit
(Cafe Rouge)to allow a coffee and yogurt business (Cafe Delatti)on
property zoned C-2.APN 529-03-035
PROPERTY OWNER:Michael Cobler
APPLICANT:Suh Chung Kim
DEEMED COMPLETE:March 22,2007
FINAL DATE TO TAKE ACTION BY:September 22,2007
•As required by Section 29.20.190 of the Town Code for the
granting of a Conditional Use Permit
•As required by Section IV.B of the Redevelopment Plan for the
Central Los Gatos Redevelopment Project that it meets the use set
forth in the Town's General Plan.
•It has been determined that the project is Categorically Exempt
pursuant to Section 15301 of the State Environmental Guidelines
as adopted by the Town.
The decision of the Planning Commission is final unless appealed
within ten days.
A.Required Findings (1 page)
B.Recommended Conditions of Approval (2 pages)
C.Existing Conditions of Approval for 42 Elm Street (2 pages)
D.Letter of Justification/Project Description (11 pages),received
March 22,2007
E.Development Plans,received March 22,2007 (3 pages)
ATTACHMENT 5
The Planning Commission -Page 2
42 Elm St.U-07-24
April 11,2007
A.DESCRIPTION:
The applicant (Cafe Delatti)is requesting approval to modify the existing Conditional Use
Permit (CUP)for 42 Elm Street to permit the following:
• A high turnover/sit down restaurant that will serve organic coffee drinks,frozen yogurt,
flavored teas,and fruit smoothies;
• A total of 12 seats indoors and outdoors;and
•Hours of operation from 10:00 AM to 9:00 PM.
Please see Exhibit D for further information regarding the applicant's justification for the
proposed modifications.
B.BACKGROUND
42 Elm Street (Cafe Rouge)
The previous tenant at 42 Elm Street (Cafe Rouge)received approval for a Conditional Use
Permit (CUP)on August 21,2006 for a high turnover/sit-down restaurant which allowed:
• A total of 12 seats,indoors and outdoors;
•Beer and wine service with meals;
•Wine tasting;
•Hours of operation from 6:00 AM to 1:00 AM seven days a week;
•Alcohol service and retail alcohol sales limited between the hours of 11 :00 AM to
11 :00 PM;and
•Outdoor seating
The existing Conditions of Approval are included as Exhibit C.
C.DISCUSSION
Conditional Use Permit
Cafe Delatti would be the owner's only restaurant serving this type of food and beverages.
Restaurants in the C-2 district require a Conditional Use Permit (CUP).The applicant is
proposing to reduce the hours of operation to 10:00 AM to 9:00 PM from 6:00 AM to 1:00
AM.The applicant will discontinue all alcohol service,wine tasting,and retail alcohol sales.
The applicant will maintain 12 seats,indoors and outdoors,which is the same as Cafe Rouge.
Parking
There are no onsite parking spaces,however;the subject site has 15 parking spaces within
the Parking Assessment District (PAD).The existing CUP permits 12 seats,and the
applicant is not requesting approval for additional seats.Therefore,the existing three spaces
in the PAD that are allocated to this tenant space provide the required parking for the
The Planning Commission -Page 3
42 Elm St.U-06-20
April 11,2007
proposed use.
The following table shows the existing and proposed uses,and required parking for the
project site.
Use Parking Ratio Square Feet/Required Parking
Number of Seats Parkin~Provided
Retail 1/300 s.f.2,423 s.f.8 8
Personal Service 1/300 s.f.1,152 s.f 4 4 I
I
Cafe Delatti 1 space/4 seats 12 seats 3 3
Total 15 in PAD 15 in PAD
o on site o on site
D.GENERAL PLAN CONFORMANCE
The General Plan designation for the parcel is Central Business District Zone,which allows
for community oriented goods and services,while maintaining a small town character.The
following sections of the General Plan are relevant to the proposed application:
L.P.1.3 -Encourage economic and social activity consistent with a small-scale,
small town atmosphere and image.
L.P.5.!-Maintain a variety of commercial uses (a strong downtown commercial
area combined with Los Gatos Blvd and strong neighborhood commercial
centers)to meet the shopping needs of residents and to preserve the small-
town atmosphere.
L.P.S.2 -Encourage a mix of retail,office and professional uses in commercial
areas,except in the Central Business District where retail should be
emphasized.
L.P.S.5 -Encourage the development and retention of locally-owned stores and
shops.
L.G.1.1 -To preserve,promote,and protect the existing small town character and
quality of life within Los Gatos.
L.G.S.2 -To maintain a balanced,economically stable community within
environmental goals.
L.G.6.2 -Preserve downtown Los Gatos as the historic center of the Town with
goods and services for local residents while maintaining the existing Town
identity,environment and commercial viability.
The Planning Commission -Page 4
42 Elm S1.U-07-24
April 11,2007
E.RECOMMENDATION:
If the Planning Commission finds merit with the proposal,it should:
1.Make the required findings (Exhibit A);and
2.Approve the application subject to the recommended conditions of approval (Exhibit
B)and development plans (Exhibit E).
If the Planning Commission has concerns with the application,they may:
1.Continue the matter to a date certain with specific directions;or
2.Approve the application with additional and/or modified conditions of approval,or
3.Deny the application.
rP/'?f--------l,,4,.o~~'_;If,J_"_~RiPJ~_~rv
Elizabeth Pettis,Assistant Planner
BNL:RT:EP:
~Approved by:
Bud N.Lortz,
Director of Community Development
cc:Suh Chung Kim,3098 Butte Street,Santa Clara,CA 95051
Mike Cobler,900 East Campbell Avenue,Campbell,CA 95008
Jimmy Chang,991 Alta Mar Terrace,San Jose,CA 95126
N:\DEV\REPORTS\2007\42 Elm.doc
CONDITIONS OF APPROVAL FOR:
42 Elm Street
Conditional Use Permit U-06-20
Requesting approval to modify a conditional use permit to increase the seating,allow special
events,
and wine bar with retail wine sale on property zoned C-2.APN 529-03-035.
PROPERTY OWNER:Michael Cobler
APPLICANT:Belghis and Farhad Proushani
TO THE SATISF ACTION OF THE COMMUNITY DEVELOPMENT DIRECTOR:
(Planning Section)
1.CONDITIONS:These conditions of approval shall supercede all previously adopted
conditions.
2.APPROVAL:This application shall be completed in accordance with all of the conditions of
approval listed below and in substantial compliance with the plans approved and noted as
Exhibit I in the report to the Planning Commission.Any changes or modifications made to the
approved plans shall be approved by the Director ofCommunity Development or the Planning
Commission,depending on the scope of the changes.
3.LAPSE FOR DISCONTINUANCE:If the activity for which the Conditional Use Permit has
been granted is discontinued for a period of one (1)year the approval lapses.
4.USE:The approved use is a high turnover (sit-down)restaurant as defined by the Zoning
Ordinance.
5.NUMBER OF SEATS:The maximum number of seats for the restaurant shall not exceed 12
seats total (indoor and outdoor).
6.HOURS OF OPERATION:Hours of operation for the restaurant shall be 6:00 a.m.to 1:00
a.m.seven days a week.Service of wine and the retail sale of wine shall be limited to 11:00
AM to 10:00 PM,seven days a week.
7.WINE SALES:The service of wine by the glass for the restaurant is permitted,indoors and
outdoors,only with meals.A meal is defined as a combination of food items selected from
a menu (breakfast,brunch,lunch,or dinner).Appetizers such as popcorn,nachos,pretzels,
potato skins,relish trays,etc.(hot or cold)are not meals.Retail sale of wine for off-site
consumption is permitted from 11 :00 AM to 10:00 PM,seven days a week.
8.WINE TASTING:Wine tasting is permitted indoors only.The maximum sample size for the
tasting shall not exceed one ounce.
9.OUTDOOR AREA:The design of improvements to the outdoor area must be approved by the
Chief of Police,the Community Development Director,and Director of Public Works prior to
installation.The Chief of Police will review the proposal for public safety.The Director of
Public Works will review the proposal for landscaping,proper separation between landscaped
areas,loading zone and.pedestrian ramp.
10.TAKE OUT:Take out food shall be served in recycled material containers.
11.UTENSILS:All beverages and food served on site shall be served on reusable materials.
12.TRASH:Operators of the restaurant shall pick up trash in the vicinity of the restaurant when
outdoor seating is available.
13.SPECIAL EVENTS:Wine tasting lectures,community meetings and private (invitation only)
events are allowed.These events are limited to once a month and during hours of operation.
Alcohol service and entertainment is not permitted during these events.
42 Elm Street -August 7,2006
Conditional Use Permit U-06-20
Page 2
14.PROHIBITED USES:Service of alcohol without a meal and outdoor barbeques are not
allowed.
TO THE SATISFACTION OF THE DIRECTOR OF PARKS AND PUBLIC WORKS:
(Engineering Division)
15.CONSTRUCTION STREET PARKING.No vehicle having a manufacturer's rated gross
vehicle weight exceeding ten thousand (10,000)pounds shall be allowed to park on the portion
of a street which abuts property in a residential zone without prior approval from the Town
Engineer (§15.40.070).
16.RESTORATION OF PUBLIC IMPROVEMENTS.The developer shall repair or replace all
existing improvements not designated for removal that are damaged or removed because of
developer's operations.Improvements such as,but not limited to:curbs,gutters,sidewalks,
driveways,signs,pavements,raised pavement markers,thermoplastic pavement markings,etc.
shall be repaired and replaced to a condition equal to or better than the original condition.
Existing improvement to be repaired or replaced shall be at the direction of the Engineering
Construction Inspector,and shall comply with all Title 24 Disabled Access provisions.
Developer shall request a walk-through with the Engineering Construction Inspector before the
start of construction to verify existing conditions.
17.OUTDOOR TRASH ENCLOSURES.Within 60 days of issuance of a conditional use permit,
outdoor trash enclosures shall be covered and area drains connected to the sanitary sewer system
shall be provided within the enclosure.
18.GREASE TRAPS.Meet all requirement ofthe Santa Clara County Health Department and West
Valley Sanitation District for the interception,separation or pretreatment of effluent.
19.CONSTRUCTION NOISE.Between the hours of 8:00 a.m.to 8:00 p.m.,weekdays and 9:00
a.m.to 7:00 p.m.weekends and holidays,construction,alteration or repair activities shall be
allowed.No individual piece of equipment shall produce a noise level exceeding eighty-five
(85)dBA at twenty-five (25)feet.Ifthe device is located within a structure on the property,the
measurement shall be made at distances as close to twenty-five (25)feet from the device as
possible.The noise level at any point outside of the property plane shall not exceed eighty-five
(85)dBA.
REPORT TO:
FROM:
LOCATION:
EXHIBITS:
REMARKS:
Date:~A~p~ri~l1~1:..L'=..20~0::...:..7
For Agenda Of:__.=...!A~p~ri~ll~1:..L,=-20~0::...:..7
Agenda Item:--'-4
DESK ITEM
The Planning Commission
The Director of Community Development
42 Elm Street
Conditional Use Permit U-07-24
Requesting approval to modify an eXIstmg conditional use pen11it
(Cafe Rouge)to allow a coffee and yogurt business (Cafe Delatti)on
property zoned C-2.APN 529-03-035
PROPERTY OWNER:Michael Cobler
APPLICANT:Suh Chung Kim
A-E.Previously Submitted
F.Petition of Support (5 pages)(received Aprill0,2007)
G.Letter of Opposition (2 pages)(received April 11,2007)
Exhibit F (a petition in support of the project)and Exhibit G (a letter in opposition of the project)
were submitted after the report on this matter was finalized.
Prepared by:
Elizabeth Pettis,Assistant Planner
BNL:RT:EP:
N :\DEV\REPO RTS\2007\42 ElmDskitm.doc
pproved by:
Bud N.Lortz,
Director of Community Development
A'ITACHMENT 6
Business Supporters for Opening "Delatti Cafe(Frozen Yogurt)"
in Downtown Los Gatos Business District
April,9,2007
Surveyors:
Seo Jung Kim (owner)
Daisuke Nitta
Wei Tien Pang
Store Location:42 Elm Street,Los Gatos,CA
EXHIBIT F
Business Supporters for Opening -Delatti Cafe(Frozen Yogurt t in Downtown Los Gatos Business District
No Name
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Business Supporters for Opening MDelatti Cafe(Frozen Yogurt r in Downtown Los Gatos Business District
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Business Supoorters for Openinq "Oe!atti Cafe(Fiozer,Yoqun)"in Downtown Le,s Gatos Busine~:;Distri(t
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April II.1007
Dear Planning Commissioners of City of Los Gatos,
My namc is Jamie Kim and I am a daughter of Mr.Iron (Se Bok)Park,the owner of thc
rCBY /Mrs.Fields store on 13 N.Santa Cruz.
Weare writing this letter in regards to the new yogurt store planning to open in
downtown Los Gatos,at 42 Elm St.We would like to present few points as to why we
are requesting the City of Los Gatos to consider disapproving the conditional usc
permission to sell frozen yogurt product at this new store,Cafe Delatti.
First.here is a history of how my parents have come to own TCBY store in downto\vn
Los Gatos which first opened its doors in 1991.They are Korean immigrants who came
to the U.S.with the dream of staring their new life after retiring in Korea.Through many
years of visiting the Bay Area,they fell in love with the town of Los Gatos for its
beautiful and friendly atmosphere.At that time,they only dreamed of becoming a part of
this town someday.In Nov.200S,they finally had an opportunity to acquire a business
which took great investment of their retirement fund.In hopes to succeed in a very
competitive market,they have worked extremely hard in trying to generate a good
reputation with quality products while serving and giving to the community through
various means of donation and service.We also employ students and individuals from
this community and are active in community work.We have been actively participating
in community event and making donations to local schools.Also,TCBY as a franchise
has high standard of quality and service which we would like to meet and even exceed.
Since we have taken over the store over 1 year ago,we have made improvements to the
store to make it a more pleasing experience for each of our customers.We even
purchased new yogurt machines recently to improve quality of the product.
\Vith four different stores selling frozen treats (frozen yogurt,smoothies,ice cream.
gelato,etc.)already in downtown Los Gatos alone,the fifth store opened in July of 1006.
Since the opening of Powell's only few doors down from TCBY,we have noticed a
considerable loss of sales (over 30%)and revenue.Although we have managed to survive
and keep afloat with a very small margin of profit without compromising the quality of
our service and product to the customer and to the community,we are at very difficult
situation right now.And with possibility of another yogurt store opening within one
block of vicinity which clearly means that our sales and business will be reduced even
more,we are not sure how much longer we can sustain the business.
Although we understand that an individual or group holds the right to open any business
of their choosing,we feel that saturating one area of downtown Los Gatos with another
yogurt store will cause ours and other stores selling frozen treats to suffer.With the high
cost of rent,the franchise fee and daily operating expenses,the margin of profit for a
store like TCBY is very low,especially frozen yogurt is a very weather sensitive and
seasonal items.
EXHIBIT G
It is our desire for our store,TCBY,to continue to be a part of the history of this beautiful
town as it has been for past 16 years,and to be established in downtown Los Gatos as a
family friendly business for many years to come.But with another store in direct
competition to ours within one block of vicinity,we fear that the impact this new store
will have on ours may cause us to close our doors.
Please consider the loss that the city and the downtown Los Gatos may take with the
absence ofTCBY which has been here for over 16 years in the same location.We hopc
the planning commission will consider protecting existing businesses by regulating
permit to sell similar items for the new business.In this particular case,we are pctitioning
for the planning commission to regulate permit to sell frozen yogurt product for thc nc\\
store.
We thank you for allowing us to present our point of view in this matter.
\\'e also thank you for your consideration.
Regards,
Jamie Kim
RESOLUTION 2005 -037
RESOLUTION OF THE TOWN COUNCil.,
OF THE TOWN OF LOS GATOS
ADOPTING GUIDELINES FOR MODIFICATION OF USE
This resolution establishes the criteria that will be used to evaluate a modification of use
pursuantto Zoning Ordinance Section 29.20.200.
RESOLVED:
A conditional use permit (CUP)is intended to allow the establishment ofthose uses that have unique
characteristics or special form such that their effect on the surrounding environment must be
evaluated for a particular location.The CUP process allows for review of the location,design,
configuration ofimprovements and potential impact on the surrounding area.Once a CUP has been
.granted it runs with the laI1d.Modifications to a property with a valid CUP may be considered when
an application has been filed for Architecture &Site approval or a building permit has been
requested,providing there is no material adverse 4npact or substantial departure from the plans that
were the basis for the CUP.
1.The following are examples of changes that would be considered a material adver~e impact
on the surrounding area:.
a.
b.
c..
>d.
".,.,:'e.
f.
Requirement for environmental review under the California Environmental Quality
Act (CEQA)
Conflicts with General Plan goals and/or policies
An increase in outdoor noise levels that would exceed the limits set by the Town's
Noise Ordinance
Non-compliance with the Commercial Design Guidelines
Changes to the operational aspects of the business that conflict with Planning'
Commission or Council conditions of approval (example,increasing hours of
operation). ..
Inconsistency witb.;ii'1pplicable provisions of the Zoning Ordinance and the spirit
and intent of the original approval
l
2.Examples of changes that are a substantial departure from plans that were the basis of the
conditional use permit approval are those that result in any of the following:
a.Conflicts with operational conditions of approval
b.Adds land area to the property for which the use permit was granted
c.Results in a parking or traffic impact to other properties in the area
d.Conflicts with applicable provisions of the Town Code
e.Conflicts with General Plan Goals and/or Policies
f.Results in a change relative to service of alcoholic beverages
ATTACHMENT 7
PASSED AND ADOI)TED at a regular meeting of the Town Council held on the 18 th day of April,
2005,by the following vote:
COUNCIL MEMBERS:
AYES:
NAYS:
Steve Glickman,Diane McNutt,Joe Pirzynski,Barbara Spector
Mayor Mike Wasserman
None
ABSENT:None
ABSTAIN:None
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS,CALIFORNIA
ATTEST:
~1~
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS,CALIFORNIA
ORDINANCE 2143
ORDINANCE OF THE TOWN OF LOS GATOS AMENDING TOWN
CODE SECTION 29.20.200 (CONDITIONAL USE MODIFICATION)
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN AS FOLLOWS:
SECTION I
Town Code Chapter 29.20.200 shall be amended as follows:
Sec.29.20.200.Conditional use modification.
A use authorized by conditional use permit shall not be modified unless a modification to the permit is
approved.The following changes in use are modifications:
(l)Intensification of use.Changes of use that will result in an increase of five (5)or more peak hour
trips.
(2)Commencement of new activities that could have a material adverse impact on the surrounding
area.
(3)Any change that is a substantial departure from plans which were the basis of the conditional use
permit approval.
SECTION II
In the event that any part of this ordinance is held to be invalid,the invalid part or parts shall be severed
from the remaining portions which shall remain in full force and effect.
SECTION III
This ordinance was introduced at a regular meeting of the Town Council of the Town of Los Gatos on
April 18,2005 and adopted by the following vote as an ordinance ofthe Town of Los Gatos at a regular meeting
of the Town Council of the Town of Los Gatos on April 18,2005.This ordinance takes effect 30 days after it is
adopted.
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
Steve Glickman,Diane McNutt,Joe Pirzynski,Mayor Mike Wasserman.
Barbara Spector
None
ABSTAIN:None
SIGNED:
ATTEST:
MAYOR OF THE TOvVN OF LOS GATOS
LOS GATOS,CALIFORNIA
TOWN CLERK.OF THE TOWN OF LOS GATOS
LOS GATOS,CALIFORNIA
r
May 7,2007
Dear Town Council Members of Los Gatos,
My name is Jamie Kim,and I am representing my parents Se Bok and Sharon Park of
TCB Y.Weare writing this letter in regards to the appeal case of the new yogurt shop,
Cafe Delatti on 42 Elm St.
There are few points we would like to make in taking the position of opposition for
approval of CUP for Cafe Delatti.
1.Over saturation of "Ice Cream Shop"(referring ALL frozen sweets/treats -
Frozen yogurt,ice cream,gelato,smoothies,etc.)in Los Gatos downtown,
especially around Santa Cruz avenue between Main street and Elm street.
There are currently five businesses serving ice cream or frozen yogurt or gelato
all only few doors away from each other.One thing we do NOT lack in
downtown Los Gatos is ice cream shop.How many ice cream shops does one
downtown need?On Castro Street in Mountain View downtown,there are two
ice cream shops and they are located at the opposite end of the strip from each
other (per visitation).In Palo Alto downtown,there are only two ice cream shops
on the University Ave,and two more on crossing street around the University Ave.
(per internet search).In Los Altos also,there are only two ice cream shops in
central downtown area (per internet search).Not only as a business owner,but as
a consumer who shops and dines at downtown Los Gatos,I would like to see
more variety of retail stores and restaurants,not six different ice cream shops
within half of a block.
2.Over saturation of the same type of business does not promote healthy
competition.
Competition is good for the customers and also for businesses as it would
motivate them to continue to make improvement in their service and the quality of
their business.But it only works when it is balanced.Only when businesses are
capable both financially and resourcefully of pursuing better their businesses
without compromising the quality of product and service,it would benefit
both customers and the community.
With Powell Candy shop open last July,our sales has dropped over 30%.
Although we have managed to survive and keep afloat with a very small margin
of profit without compromising the quality of our service and product to our
customer and to the community,we are at very difficult situation as it is.But if
another yogurt shop who serves almost identical menu (frozen yogurt,fruit
toppings,and smoothies)opens,it will affect our business even more and we will
most likely not be able to stay in this direct competition with even bigger loss in
sales than now and it could also mean that we will be forced to close our door.
Per Cafe Delatti's;business plan and their presentation at the planning committee
hearing,they claim that their product is unique and they offer different items,but
in reality,for most of consumers it is just another frozen treat,and for many
people and children,it is just another "ice cream".And the fact that not only that
ATTACHMENT 8
their menu is identical to TCBY,but also in addition,they offer all kinds of coffee
drink,espresso drink and tea,it can be in direct competition with the Great Bear
Coffee as well.
3.Asking the town council to protect the existing business by regulating over
saturation of the same type of business.
Although we understand that an individual or group holds the right to open any
business of their choosing,we feel that saturating one area of downtown Los
Gatos with another ice cream shop will cause ours and other stores selling frozen
treats to suffer.With the high cost of rent,the franchise fee and daily operating
expenses,the margin of profit for a store like TCBY is very low,especially as
frozen yogurt and other frozen treat are very weather sensitive and seasonal items.
Despite our struggle to stay in the business,we have been making improvement to
the store to make it a more pleasing experience for each of our customers.We
also have been actively participating in community events and making donations
to local schools (St.Mary school,Los Gatos high school sports teams,etc.)and
other local charity organization.
It is our desire for TCBY to continue to be a part of the history of this beautiful
town as it has been for past 16 years,and to be established in downtown Los
Gatos as a family friendly business for many years to come.We would like to
continue to serve our customer with great product that is both delicious and
healthy,and to contribute to the community by giving even more.
As we write this letter and prepare for the appeal hearing,our heart is burdened because
we have to take the position of opposition to take to protect our business from the new
business in direct competition.However,we feel that it is necessary not only for our
benefit but for benefit of other existing businesses that can be affected negatively with
opening of this new store,and further the benefit of the downtown of Los Gatos to have
more balanced and diverse goods and service for its citizens.By no means,we are
denying the right of the owner of Cafe Delatti to open a business in this beautiful town of
Los Gatos,but it is the type of business they are trying to run which is already overly
saturated in this particular area of downtown Los Gatos that we are opposing to.
So we are asking the Town Council to consider the matter of over saturation of ice cream
shops (frozen treat business)in the downtown and the effect of yet another shop on
existing business if opened,in decision making for this appeal case.
Thank you for allowing us to present our point of view in this matter.
We appreciate your consideration.
Regards,
~~
Jamie Kim,.
Se Bok &Sharon Park,the owner of TCBY.
Business Plan
"Organic Coffee" and "Low-fat Tart Frozen Yogurt."
Prepared by Seo Jung Kim
Feb. 28, 2007
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EXHIBIT E
MAP AVAILABLE FOR VIEWING AT THE
CLERK DEPARTMENT