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Desk ItemMEETING DATE: 2/18/14 ITEM NO: DESK ITEM COUNCIL AGENDA REPORT DATE: FEBRUARY 18, 2014 TO: MAYOR AND TOWN COUNCIL FROM: GREG LARSON, TOWN MANAGER SUBJECT: UPDATE ON CONDITIONAL USE PERMIT COMPLAINT PROCESS REMARKS: The Town has received public comments regarding this matter (Attachment 2). Following is a response to some of the comments raised in the attachments. Hillbrook School's code compliance — Some allegations were raised regarding Hillbrook School's CUP. This matter was not agendized and therefore cannot be discussed. Public suggested Conditions of Approval - Staff takes into account any suggestions made by both the public and the applicant regarding conditions of approval and may incorporate all or a portion of any suggestions as draft conditions of approval, which staff believes is appropriate for the project. All public comments on a specific application are forwarded to the Planning Commission for consideration, which would include suggested conditions of approval. Status of allowing the public to set revocation hearings — At this time there has been no Town Council direction to amend the Town Code to allow the public a process to set revocation hearings. As noted in previous reports on this matter, currently any concerned citizen can go before the Planning Commission and Town Council to voice their concerns about an existing CUP and request that the CUP be considered for revocation or modification. Proposal to set a defined amount of time to abate a CUP violation — At the Town Council meeting of April 1, 2013, there was a Council member comment that the amount of time to abate a CUP violation be equal for all CUP's. At the September 4, 2012 Town Council meeting, Council consensus was that code enforcement complaints should have a maximum of 30 to 60 days, if tangible resolution of the issue is evident. However, abatement of planning and permitting issues (i.e. CUP violations) would not be allowed without Council concurrence. PREPARED BY: SANDY L. BAILY, {�l2 Director of Community Development Reviewed by: hb Assistant Town Manager Town Attorney Finance N:ADEVATC REPORTS2014VCUPCOMPLAINTPROCESS.dsk.docx PAGE 2 MAYOR AND TOWN COUNCIL SUBJECT: Update on Conditional Use Permit Complaint Process February 18, 2014 Enforceable Conditions of Approval — Recommended conditions of approval are typically written to be enforceable. During the public hearing process, applicants may offer a condition in an attempt to possibly further mitigate a potential impact. On occasion, these offered conditions are not mandatory and therefore are not enforceable. An example is where an applicant will provide a specific service, but there is no requirement that the public use this service. In reviewing any application, the deciding body should take this into consideration when approving an application. Requiring CUPs to be renewed — This would require an amendment to the Town Code. The same concerns noted in the report for tonight's meeting for periodic CUP reviews would apply for this process. Attachment 1 (previously received with staff report): 1. Excerpt from Town Code Attachment 2 (received with this desk item): 2. Public correspondence, received February 18, 2014 February 18, 2014 Members of the Los Gatos Town Council 110 East Main Street Los Gatos, CA 95030 Dear Council Members: I am happy to see the Town moving forward on issues related to CUPs. I just want to raise a couple of issues. First, I want to raise an enforcement issue that has been a major problem with code compliance complaints I and others have made about Hillbrook School. As I've mentioned to Council previously, we believe Hillbrook has intensified the use of its campus by increasing its afternoon activity and sports schedule. The result has been a dramatic increase in afternoon traffic. Hillbrook has also created a new program that generates more than 5 additional peak hour trips. We have filed complaints about these matters. Responses have never referred to the Town Code or explained why provisions of the Town Code do not apply. Town Code Section 29.20.200-Conditional use modification refers to the following kinds of instances as violations: • Intensification of use in which a change results in five or more peak hour trips; • Commencement of new activities with adverse impacts on the surrounding area; and • Changes that depart substantially from plans that were the basis of the CUP approval. I wonder if there is any way to clarify this policy so that the Town can easily recognize intensifications of use and address them. Residents need to be protected from the negative impacts of the kinds of intensifications we've seen with Hillbrook. We think it is only reasonable that either these provisions of the Town Code be enforced or we be told why they should not be enforced. My second issue relates to whether or not to open up an entire CUP for review. In the Hillbrook situation, residents feel that the current CUP from 2001 has failed to adequately address the traffic situation. We also feel that many conditions were put in place without adequate research or information. We hope to see the entire CUP reevaluated and all conditions reconsidered so that we can finally get some serious mitigation for traffic and safety problems. I am guessing that in other CUP situations, residents want the CUP to be looked at as a whole as well. I encourage you to continue to use the existing de novo approach when CUPs come up for amendment. My third issue relates to how residents can see their own requests for conditions included in the version of the CUP that Staff submits for approval. Again referencing the Hillbrook case, we have provided a list of conditions that represent our interests and goals in creating a neighborhood without excessive traffic. Staff has simply filed these requests without including them in any versions of a CUP it projects. Can you include a provision in the CUP policy that residents' requests for new conditions should be included in staff recommendations for CUPS? And a fourth issue relates to earlier proposals that seem to have been lost. Originally, there was a proposal that the public should be allowed to set revocation hearings. There was also a proposal to set a defined ATTACHMENT 2 amount of time to abate a CUP violation. What has happened to these? Can they still be included in revisions to CUP policy? There are certainly cases where a business or school violates its CUP in so many ways that revocation should be threatened to make that entity recognize it needs to conform to CUP conditions. And it would be good to know the amount of time within which CUP violations had to be abated. 1 hope that you can address the issues I've raised. As always, thank you for your public service. Sincerely, Barbara Dodson page 1 FEBRUARY 10, 2014 TOWN COUNCIL AGENDA ITEM 8 UPDATE ON CONDITIONAL USE PROCESS From Lee Quintana Dear Mayor Steve Leonardis and Council Members, I would like to thank the Council for considering changes to the CUP's. I may not be able to attend Tuesdays Council Meeting and would like to make the following comments for your consideration. I. The bottom of page 3 of the staff report states: RECEIVED ' Eb 1 8 2014 TOWN OF LOS GATOS ^LANNING DIVISION As noted in the previous report on this matter, the Town receives approximately 20 CUP a year. The majority of these applications are consent items or applications noncontroversial and operate without incident. Due to staff workload and the number of hearings already before the Planning Commission, staff does not recommend requiring that all CUPS have a condition to be reevaluated before the Planning Commission. In addition, CUP reevaluations could potentially deter CUP applicants, especially applicants for small independent businesses, as this could create an uncertainty with their business planning. (emphasis added) There needs to be a balance between business interests and those of the town and its residents who may be affected the CUR CUP reevaluations encourage compliance which would reduce or eliminate uncertainty as well. While I appreciate the staff's concern for any concerns CUP applicant, I believe the Town's focus should be the interest of its citizens, rather than the concerns of the applicant's business. If both interests can be protected with a CUP, fine, but monitoring compliance over time is essential to a successful permit process. If, potential impacts to residents cannot be addressed by mandatory, enforceable conditions don't issue a CUP. The whole purpose of a CUP is to protect residents from uses that have potential impacts. II. I support the following Staff recommendations to place information on the Town's website. • Place information on the Town's Website • De Novo review for subsequent evaluation/review or revocation of approved CUR III. Please also consider the following comments and suggestions: • Conditions of Approval: Include only mandatory, enforceable conditions of approval. Voluntary conditions are not mandatory, are not enforceable, and do not ensure that identified potential impacts are mitigated. page 2 • Group CUPs by type and develop appropriate findings for each group. Projects requiring CUPs may not share the same potential impacts. For example, potential impacts from schools, churches or sports clubs, are different from those of restaurants or alcohol related uses or live music or mixed use commercial or a non- residential use in a residential zone etc. • Types of Hearings: Distinguish between hearings to address noncompliance with existing conditions and/or requests for revocation for already approved project and modifications after initial approval required as part of the CUP process to address issues that were not anticipated by the original approval, or are found to be inadequate to address the impacts identified at the initial approval. • After initial CUP approval - Initial approval for two years, subsequent renewal for 5 years.1 2 Renew CUP two years after the initial approval to addresses compliance with conditions, identifies any issues not anticipated during the initial approval process or that were foreseen but not adequately addressed by the original approval. Modify conditions of approval as necessary. Subsequent to the initial two year evaluation require CUP's to be sunset every five years.The renewal of CUPS every 5 year would allow modification of conditions to current circumstances. For example, if there were a change in business plan or new owners with a different business plan the CUP could be modified to address current conditions.The length of the initial permit and subsequent permit renewals could be varied by type of CUP based on identification of types that typically may result in unforeseen problems If no problems have been identified with compliance and no new issues and no other changes have occurred renew CUP renew permit for an additional 5 years as an administrative action. If complaints are on file or staff has identified the need to modify conditions schedule a PC hearing to consider modification to conditions. Cost covered for review and application fees. Thank you for your consideration Lee Quintana 5 Palm Ave., Los Gatos Ca. Two years may give a better idea of how the CUP is functioning over a longer period of time. 2 Different CUP categories might have different initial and subsequent renewal periods, depending on the history of complains to the category.