1994-013-Upholding The Planning Commission Decision To Approve Operation Of An Existing Restaurant With The Sale Of Alcoholic BeveragesRESOLUTION 1994 -13
RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
UPHOLDING THE PLANNING COMMISSION DECISION TO
APPROVE OPERATION OF AN EXISTING RESTAURANT
WITH THE SALE OF ALCOHOLIC BEVERAGES
FOR CONSUMPTION ON THE PREMISES
IN THE C -1 ZONE.
CONDITIONAL USE PERMIT APPLICATION U- 93 -14.
(PROPERTY LOCATED AT 258 UNION AVENUE /OWNERS: ANDREW &
HARRIET UNZEN /APPLICANT: JEFFREY BENZLER & STANLEY SCHWARTZ)
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS RESOLVES AND FINDS
AS FOLLOWS:
1. This matter comes before the Council by appeal from the decisions of the
Planning Commission on October 13 and November 10, 1993. The Council is to determine
if and where the Planning Commission erred or abused its discretion in this matter pursuant
to Town Code § 29.20.300.
2. Pursuant to the State Planning & Zoning Law, the Town has adopted a zoning
code and established zones within the Town in order to regulate the use of property in the
Town and the intensity of land use, and the Town has adopted provisions for conditional
use permits and amortization of non - conforming uses.
3. The issues presented in this appeal are whether the use of the property at 258
Union Avenue, Los Gatos, CA (hereinafter Property) should be declared unlawful because
it has lost its privilege of non - conforming use under the Town Zoning Code, and if so,
whether and on what terms, a conditional use permit for the use should issue.
4. This matter was duly noticed in accordance with the requirements of the State
Planning Law and the Town Code for public hearing on January 3, 1994, and the public
hearing was held on that date.
1
5. The Council has received the following documents as part of the record:
A. The Staff Report dated December 29, 1993, and its attachments 1 through 10,
regarding this matter.
B. Planning Commission minutes of November 14, 1990, Staff report to Planning
Commission dated February 8, 1991, and Planning Commission minutes of February
13, 1991.
C. Planning Commission minutes of October 13 and November 10, 1993, and
accompanying Staff reports.
D. Memorandum from Town Attorney dated January 2, 1994, regarding non-
conforming uses.
E. A list of businesses from the Town business license files for the property
involved.
F. A list of the specific conditions imposed by the Planning Commission on
November 10, 1993, for the adopted conditional use permit for the Property.
G. A declaration from Barry Barr submitted by appellants.
H. A petition submitted by appellants at the Council hearing.
I. Declarations from William H. Vandivier and Lisa Pang submitted by
appellants at the Council hearing.
J. Transcript of the Council's hearing on January 3, 1994.
6. The appellants appeared at the public hearing both in person and through
their attorney, Donald Tenenbaum.
7. In addition to presentations by Town Staff, the Council heard from all
interested persons who offered testimony at the public hearing.
8. Pursuant to the State Open Meeting Law, the public was entitled to comment
on this resolution at the time of its adoption.
2
9. The Town Council has considered all of the documents and testimony
presented to it in reaching this decision.
10. The Town of Los Gatos Zoning Code at Division 5 of Chapter 29 (attached
hereto as Exhibit A) provides that a non - conforming use may continue so long as it is not
modified or does not become a nuisance.
11. In 1977, the Town of Los Gatos adopted Ordinance No. 1363 that required
all restaurants to obtain a conditional use permit. Restaurants in existence at the time of
the adoption of this ordinance were given a 20 -year grace period (to 1997) subject to the
provisions of the Zoning Code governing non - conforming uses.
12. In 1977, the property at 258 Union Avenue was in use as a restaurant and was
provided with the 20 -year grace period subject to the provisions of the Zoning Code
governing non - conforming uses. The property was and is located in a C -1 Zone pursuant
to the Zoning laws of the Town. Restaurant means a retail food service establishment in
which food or beverage is prepared, served and sold to customers for on -site or take -out
consumption, and in which food service, not beverage service, predominates.
13. The use of the property at 258 Union Avenue as a restaurant without benefit
of a conditional use permit is a non - conforming use and governed by the provisions of the
Zoning Code regarding non- conforming uses.
14. The Zoning Code of the Town of Los Gatos forbids the use of property in
a C -1 Zone as a free - standing bar operation. Pursuant to the Town Code, in particular
Sections 29.10.045, 29.20.180, and 29.20.185, no conditional use permit shall issue for a free-
standing bar operation in this Zone.
15. The Property's current use has been open until 1:30 p.m. on Fridays and
Saturdays and holidays, and until midnight on the other days of the week. Live
entertainment has been offered on a regular basis.
9
16. The testimony and record showed that complaints regarding noise and other
disturbances began to arise when the Property was acquired by the current owners and
renamed O'Shea's in approximately 1989.
17. The testimony and record showed that noise emanates from both the structure
and the vehicles in the parking area of the Property. Noise in the low or bass frequency
is a primary complaint, and the testimony and record showed that live entertainment was
central concern.
18. The testimony and record showed that neighbors have been awakened at
unusual hours or kept awake into the early morning by noise, fights, and hollering
emanating from the Property.
19. The testimony and record showed that the neighbors immediately adjacent to
the Property have suffered from dust from the parking area and intrusion on their
properties in the form of bottles and trespass.
20. The statements of income in advertising by the current operators of the use
show income of $42,000 per month from alcohol sales and only $3,000 per month from food
sales. This demonstrates that the current manner of use is as a free - standing bar.
21. The testimony and record showed that the Property could be operated as a
restaurant in a way similar to its pre -1989 condition so that it would not unreasonably
intrude on the legitimate interests of the neighborhood. The differences between current
and pre -1989 operations involves hours of operation, meal service, and live entertainment,
all connected to a return to a traditional restaurant operation instead of its current type of
use.
22. There has been a large number of complaints and testimony from neighbors
regarding the problems involved.
al
23. There have been numerous incidents of noise, fights, and disturbance involving
the current use of the property. By virtue of the testimony before both the Planning
Commission and the Town Council, the frequent calls to the police and the complaints
include:
A. Noise at all hours of the night;
B. Fistfights;
C. Hollering, swearing, and arguing;
D. Car doors slamming;
E. Loud car radios;
F. Squealing tires or "peeling out ";
G. Trespassers in swimming pool;
H. Bottles in the pool;
I. Car alarms going off;
J. Excessive dust from parking lot on surrounding cars, pools, and patios;
K. Women screaming;
L. General raucous behavior;
A Live, loud music, particularly bass and drums; and
N. Urinating on fences.
24. The testimony and documentation show that the use has intensified and
modified since 1989, which has been a cause of the use becoming a nuisance.
25. The use of the Property as a restaurant or bar is a difficult situation because
the property is immediately adjacent to a residential neighborhood, and the adjustment of
that use should be based on reasonableness and fairness.
26. This Council has consistently discouraged bars in close proximity to residential
neighborhoods.
5
27. The Town has conducted a number of hearings and mediations in an attempt
to resolve the issues involving this property.
28. A balance between the needs of the business owner and the needs of the
residents must be found, and in this case, no such balance currently exists. The residents
in the adjoining neighborhood should not be subjected to the kind of noise level,
disturbances, fights, altercations, and dust that the testimony and documentation shows has
been generated by the current manner of use. This manner of use does not belong
immediately adjacent to a residential neighborhood.
29. The conditions imposed by the Planning Commission on the proposed
conditional use permit are reasonable and appropriate, and these conditions establish a
clear line for the users of the Property to follow. These conditions will restore the Property
to a restaurant operation where food service is an integrated part and will limit the hours
of operation so that the early morning intrusions on the neighborhood will be reasonably
minimized. In addition, those conditions are consistent with conditions imposed on similarly
situated conditional use permits for restaurants in the Town, such as the Los Gatos Brewing
Company.
30. It does not appear that the Planning Commission erred or abused its
discretion in this matter.
IT IS ORDERED AS FOLLOWS:
A. The appeal is denied.
B. The decision of the Planning Commission is affirmed:
i. The manner in which the Property at 258 Union Avenue is currently used is
hereby declared a nuisance.
6
ii. Therefore, the current non - conforming use of the property at 258 Union
Avenue is unlawful pursuant to Town Code § 29.10.225.
iii. The appellants are hereby directed and authorized to obtain a conditional use
permit for the use of the property at 258 Union Avenue as a restaurant
subject to the conditions attached hereto as Exhibit B. The appellants may
make formal request within 14 days and will be allowed to continue to
operate past that date only if the request has been filed and applicable fees
paid on or before that date and the Property use conforms to the conditions
of the permit.
C. If the appellants wish to apply for modification to the conditions imposed by
the Planning Commission, the appellants may do so now or at any time in the future
pursuant to Town Code § 29.20.200.
D. This decision constitutes a final administrative decision pursuant to Code of
Civil Procedure section 1094.6 as adopted by section 1.10.085 of the Town Code of the
Town of Los Gatos. Any application for judicial relief from this decision must be sought
within the time limits and pursuant to the procedures established by Code of Civil
Procedure section 1094.6, or such shorter time as required by state or federal law.
7
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town
of Los Gatos, California, held on the 18th day of January, 1994 by the following vote.
COUNCIL MEMBERS:
AYES: Joanne Benjamin, Steven Blanton, Linda Lubeck, Patrick O'Laughlin
Mayor Randy Attaway
NAYS: None
ABSENT: None
ABSTAIN: None
SIGNED:
MAYOR F THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
1
CLERK OF THE TOWN O LOS GATOS
LOS GATOS, CALIFORNI
K
ZONING REGULATIONS § 29.10.195
DIVISION 5. NONCONFORMING BUILDINGS, LOTS AND USES
Sec. 29.10.175. Scope.
This division regulates nonconforming buildings, lots and uses other than nonconforming
signs, which are regulated by section 29.10.140.
(Ord. No. 1316, § 3.50.010, 6 -7 -76; Ord. No. 1344, 1- 17 -77)
Sec. 29.10.180. Nonconforming status.
(a) Nonconforming status begins only because of:
(1) Annexation of territory to the Town.
(2) Amendment to this chapter, a previous zoning ordinance of the Town or the subdivi-
sion ordinance.
(3) Rezoning.
(b) A use or a building which was lawfully begun (or in the case of a building, lawfully
erected) but which lacks a conditional use permit currently required by this chapter is non-
conforming and subject to the rules of this division.
(Ord. No. 1316, § 3.50.020, 6 -7 -76; Ord. No. 1344, 1- 17 -77)
Sec. 29.10.185. Unlawful buildings, lots and uses.
If a building, lot or use does not conform to the requirements of this chapter or any other
ordinance of the Town, and is not nonconforming as defined by this chapter, it is unlawful and
a nuisance.
(Ord. No. 1316, § 3.50.030, 6 -7 -76; Ord. No. 1344, 1. 17.77)
Sec. 29.10.190. Cessation of nonconforming uses.
If a nonconforming use does not involve occupancy of a building and is discontinued for
thirty (30) consecutive days, the use shall not be resumed. If a nonconforming use involves
occupancy of a building and is discontinued for one hundred eighty (180) consecutive days, the
use shall not be resumed, except as provided in section 29.10.210. Token use does not toll or
interrupt a period of discontinuance.
(Ord. No. 1316, § 3.50.040, 6.7.76; Ord. No. 1344, 1.17.77)
Sec. 29.10.195. Duration of nonconforming use status.
(a) This section regulates the duration of nonconforming uses. (Nonconforming buildings
are regulated by section 29.10.200.) A nonconforming use must cease at the end of the appli-
cable period. The duration of all nonconforming uses is:
(1) The following uses are allowed to continue interminably:
§ 29.10.195 LOS GATOS TOWN CODE
b. Schools.
c. Church uses.
d. Nonresidential uses in the downtown which would otherwise be nonconforming
due to zone changes and ordinance amendments which occurred after July 1,
1982.
e. Residential care facilities for the elderly that existed as of January 1, 1988 and
are nonconforming only as to parking.
f. Hotels /motels located in residential zones which were converted to multiple -
family dwelling units prior to March 22, 1986, if a conditional use permit is
obtained.
g. Commercial uses that are nonconforming as to parking if parking has been pro-
vided on -site by July 1,1992, or twenty (20) years from the date the use became
nonconforming, whichever is later. Parking must be provided to the maximum
extent possible given existing physical constraints of the property such as building
location and coverage, trees and other physical barriers or features.
Any commercial property that is nonconforming as to parking shall not be al-
lowed to intensify use or improve the property other than as required for normal
maintenance. Examples of changes that would be permitted are painting (interior/
exterior), normal maintenance to electrical, plumbing and mechanical equip-
ment, signage with required permits, and uses with applicable use and occupancy
permits.
(2) A junkyard must cease ninety (90) days from the date it becomes nonconforming.
(3) Where there are improvements on land, but of a type for which no building permit
would currently be required, the nonconforming use must cease three (3) years from
the date the use becomes nonconforming.
(4) Where the land is improved with one (1) or more structures of a type for which a
building permit would currently be required and the structure(s) are utilized in con-
nection with the nonconforming use, the authorized period of duration of the noncon-
forming use is twenty (20) years from March 23, 1966, or twenty (20) years from the
date the use became nonconforming, whichever is later.
(5) Commencing in 1982, where a zoning amendment is adopted which causes a use to be
nonconforming solely by subjecting it to the requirement of obtaining a conditional
use permit, all uses affected by the amendment must apply for a use permit within
sixty (60) days after the amendment becomes effective. Failure to make such appli-
cation shall render the subject use immediately unlawful.
In making its decision on an application for a conditional use permit made hereunder,
the Planning Commission shall, as one (1) of the conditions of the permit, establish an
amortization period, based on a reasonable accommodation between the public gains
to be derived from a speedy removal of the nonconforming use and the private loss
which removal of the use would entail.
Supp. No. 1 2024
ZONING REGULATIONS § 29.10210
(b) If any period of authorized duration is held by a court to be too short and therefore
unconstitutional on its face or as applied, the period of duration shall be extended to such time
as the court determines is lawful.
(Ord. No. 1316, § 3.50.050, 6 -7 -76; Ord. No. 1344, 1- 17 -77; Ord. No. 1532, 4- 20 -82; Ord. No.
1546, 8- 16 -83; Ord. No. 1716, 4- 20 -87; Ord. No. 1754, § I, 7 -5 -88; Ord. No. 1821, § I, 5- 21 -90;
Ord. No. 1864, § I, 9 -3 -91; Ord. No. 1884, § I. 1 -6 -921,
Sec. 29.10.200. Duration of nonconforming building status.
(a) A nonconforming office, commercial or industrial building located in a residential zone
must, by demolition, removal or alteration be made to conform with the rules of the zone when
the building is older than shown on the following schedule:
U) UBC Type 4 or 5 buildings .......... ............................... 25 years
(2) UBC Type 2 or 3 buildings .......... ............................... 40 years
(3) UBC Type 1 buildings .............. ............................... 50 years
(b) When any of the foregoing time periods have elapsed, the building in question no
longer has status as a nonconforming building. However, when a nonconforming building
houses a nonconforming use the building need not be made to conform until the nonconforming
use ceases as provided in section 29.10.190, or expires as provided in section 29.10.195, which-
ever happens first. Buildings that become nonconforming only as a result of the adoption of
floor area ratio shall be exempt from the provisions of this section.
(Ord. No. 1316, § 3.50.060, 6 -7 -76; Ord. No. 1344, 1.17 -77; Ord. No. 1606, 2.6 -84)
Sec. 29.10.205. Record of nonconforming uses and buildings.
The Planning Director shall maintain a list of all nonconforming uses required to cease by
the provisions of section 29.10.190 and all nonconforming buildings required to be made to
conform by section 29.10.200. The list shall state the nature of the nonconformity, the date and
reason it became nonconforming, and the date the use must cease or the building must be
made to conform.
(Ord. No. 1316, § 3.50.070, 6.7.76; Ord. No. 1344, 1- 17 -77)
Sec. 29.10.210. Changing use of a nonconforming building.
A conditional use permit is required whenever the activity is changed in a building which
is nonconforming as to type is changed regardless of whether the activity is otherwise proper
under this chapter. In no case shall intensification be deemed a change of activity for purposes
of this section. Any conditions which are reasonably necessary to protect the neighborhood or
the general public welfare or to promote the policy of phasing out nonconforming buildings and
uses shall be imposed. If the new activity would not be allowed under the rules of the zone, a
conditional use permit cannot be issued unless the requirements of section 29.10.235 are
fulfilled.
(Ord. No. 1316, § 3.50.080, 6 -7 -76; Ord. No. 1344, 1- 17 -77; Ord. No. 1903, § I, 5- 18 -92)
Supp. No. 3 2025
§ 29.10.215 LOS GATOS TOWN CODE
Sec. 29.10.215. Modification of a nonconforming use.
After May 6, 1981 (March 22, 1986, for hotels and motels located in residential zones that
were converted to multiple - family dwelling units), a use which is nonconforming shall not be
modified without obtaining a conditional use permit therefor. A modification shall be defined
as follows:
(1) Any change that is an intensification of use, including but not limited to:
a. Additions to seating capacity or gross floor area;
b. Increase in parking required, other than the requirement of increases because of
ordinance amendment;
c. Use of additional land;
d. Commencement of new activities; and /or
e. Increase in the number of hours of operation or staying open later and such
change of hours imposes a new burden on the surrounding neighborhood.
(2) Any change that is a substantial departure from plans which were the basis of any
approved use.
(Ord. No. 1316, § 3.50.085, 6 -7 -76; Ord. No. 1496, 4- 20 -81; Ord. No. 1821, § II, 5- 21 -90)
Sec. 29.10.220. Proceedings to determine that nonconforming use is no longer lawful.
Failure to comply with any of the requirements of this division shall render an otherwise
valid, nonconforming use unlawful under section 29.10.185. Proceedings to make a determi-
nation of such unlawfulness shall be held in the same manner as set forth in section 29.20.310.
Any notice given for such proceedings should indicate that the result of the proceeding may be
cessation of the modified use or a continuation of the modified use with a conditional use
permit.
(Ord. No. 1316, § 3.50.086, 6 -7 -76; Ord. No. 1344, 1.17 -77; Ord. No. 1496, 4- 20 -81)
Sec. 29.10.225. Grounds for determining that a nonconforming use is no longer lawful.
After the hearing the deciding body may declare a nonconforming use unlawful if it finds
that one (1) or more of the following grounds exist:
(1) That the nonconforming use is being, or has been exercised contrary to the terms or
conditions of the original approval; or any conditional use permit issued under section
29.10.215;
(2) That the nonconforming use is so exercised as to be detrimental to the public health
or safety, or to be a nuisance; or
(3) That a person has modified a nonconforming use without a use permit under section
29.10.215, or has continued such modification after a permit therefore has been de-
nied.
(Ord. No. 1316, § 3.50.087, 6 -7 -76; Ord. No. 1344, 1- 17 -77; Ord. No. 1496, 4- 20 -81)
Supp. No. 3 2026
ZONING REGiLATIONS § 29.10.245
Sec. 29.10.230. Remedies; conditional use permit.
(a) In section 29.10.220 proceedings_, the deciding body may allow the modification to
continue under a conditional use permit or allow the nonconforming use to continue without
a conditional use permit if the use is restored to the previous level. In no event shall the
issuance of a conditional use permit extend the period during which such use may lawfully be
continued.
(b) The deciding body may impose any conditions which are reasonably necessary to
protect the neighborhood or the general public welfare or to promote the policy of phasing out
nonconforming buildings and uses.
(c) The effective date of the conditional use permit will be delayed until all application
fees are paid. If the fees are not paid within the period specified by the deciding body, the use
will be deemed unlawful.
(Ord. No. 1316, § 3.50.088, 6 -7.76; Ord. No. 1344, 1- 17 -77; Ord. No. 1496, 4- 20 -81)
Sec. 29.10.235. Use of nonconforming buildings.
If the owner of a nonconforming building proves in a section 29.10.210 proceeding that the
building is not suited, even with reasonable modification, for any activity permitted in the
zone, the building may be used for an activity which is not otherwise permitted if the proposed
activity is clearly more consistent with permitted activities than the most recent noncon-
forming activity in the building. If the owner of a nonconforming building proves in a section
29.10.210 proceeding that the building is not suited, even with reasonable modification, for an
activity which is more consistent with the uses allowed in the zone, the building may be used
for an activity substantially identical to the most recent nonconforming activity in the building.
In no event may the building be used for an activity which is less consistent with the activities
allowed in the zone than the most recent lawful activity in the building.
(Ord. No. 1316, § 3.50.090, 6.7 -76; Ord. No. 1344, 1- 17 -77; Ord. No. 1903, § II, 5- 18 -92)
Sec. 29.10.240. Findings.
The general availability of users for the building may be considered in determining what
uses a building is suited for, but the fact of a scarcity of buyers or tenants or the capabilities
or intentions of the owner or specific occupant or proposed occupant do not by themselves
justify a finding that a building is only suited to house an activity which is not allowed in the
zone.
(Ord. No. 1316, § 3.50.100, 6 -7 -76; Ord. No. 1344, 1.17.77)
Sec. 29.10.245. Expansion of nonconforming building.
This section regulates the expansion of nonconforming buildings:
(1) Except as provided in subsection (6), the expansion of nonconforming commercial or
industrial buildings located in residential zones (section 29.40.010) is prohibited.
Supp. No. 3 2027
§ 29.10.245 LOS GATOS TOWN CODE
(2) The expansion of nonconforming multiple- family dwellings in the RC, HR, R -1, R -D,
or R -11) zone is prohibited.
(3) Except as provided in subsection (6), the expansion of nonconforming industrial build-
ings in an office or commercial zone (section 29.60.010) is prohibited.
(4) Nonconforming one- or two - family dwellings and accessory structures on lots with
one- and two - family dwellings in any zone may be expanded with the approval of the
Planning Director.
(5) Architecture and site approval is required for the expansion of any nonconforming
building except as provided in subsection (4) above.
(6) When a law, ordinance or regulation concerning public safety or the safety of a
workplace requires an alteration to a nonconforming building in order to allow the
continuation of an otherwise lawful activity in the building, a conditional use permit
may be issued for the alteration. Besides the usual conditional use permit findings,
however, the facts must also support findings that the alteration will neither impose
any added burden whatever on, nor detract from the character of the neighborhood,
nor increase in any way the difficulty of terminating the nonconforming building or
use on schedule. Recordable agreements may be required.
(Ord. No. 1316, § 3.50.110, 6 -7 -76; Ord. No. 1344,1-17-77; Ord. No. 1431, 6 -4 -79; Ord. No. 1493,
3- 17 -81; Ord. No. 1798, § II, 9 -5 -89)
Sec. 29.10.250. Rules governing the expansion of nonconforming buildings.
When expansion is allowed by section 29.10.245, the following rules apply:
(1) When a building is too close to a property line or a street, any expansion or recon-
struction may not be nearer to a property line than the existing building is to that
property line. Reconstruction may only be allowed if the Building Official determines
that the portion of the building proposed to be demolished has deteriorated to a point
that reconstruction is necessary. The projections listed in subsection 29.40.070(b)
except chimneys and bay windows may project beyond the wall of the expanded or
reconstructed portion subject to the rules of subsection 29.40.070(b).
(2) When a building is too high, the expansion must be within the current height limi-
tations.
(3) When a building covers too much land no expansion is allowed which would increase
the coverage. However, second floor additions are allowed as long as the area of the
second floor does not exceed the area allowed to be covered by the rules of the zone.
(4) Approval can be denied if the expansion would in any way cause a safety problem or
be detrimental to the public welfare.
(5) The expansion must take place either on the zoning plot as it existed on the date the
building became nonconforming or on the existing zoning plot, whichever is smaller.
Supp. No. 3 2028
ZONING REGULATIONS § 29.10.265
(61 The expansion must not impede the orderly development or redevelopment of neigh-
boring property in a manner which will conform to both the general plan and the
current zoning.
7i Approval of the expansion may not be inconsistent with the general policy of phasing
out nonconforming uses.
Ord. No. 1316, § 3.50.115, 6 -7 -76; Ord. No. 1344, 1-171-717; Ord. No. 1789, § IV, 5.15 -89; Ord. No.
1903, § III, 5- 18 -92)
Sec. 29.10.255. Work on buildings.
Except as provided in section 29.10245, no nonconforming building subject to the provi-
sions of section 29.10.200 shall be enlarged, extended, reconstructed or structurally altered,
unless such building is altered to comply with the regulations of the zone where it is located.
Work involving ordinary structural alterations or replacement of walls, fixtures or plumbing
shall be authorized on such buildings when the cost of the work in any twelve -month period
does not exceed fifty (50) percent of the building's value. Value is the estimated cost to replace
the building in kind, and is determined by the Building Official. The provisions of this section
do not forbid the rebuilding or restoration of a destroyed nonconforming building when au-
thorized by the provisions of section 29.10.260.
(Ord. No. 1316, § 3.50.120, 6 -7 -76; Ord. No. 1344, 1- 17 -77)
Sec. 29.10.260. Rebuilding nonconforming buildings.
(a) If a nonconforming single- or two - family dwelling, school or church located in any zone
is destroyed, it may be rebuilt on the same foundation in substantially the same manner as it
existed before its destruction.
(b) I£ a nonconforming multiple - family dwelling located in any zone is destroyed, it may
be rebuilt on the same foundation, with the same number of units, in substantially the same
manner as it existed before its destruction.
(c) If any other nonconforming building is destroyed to the extent of more than fifty (50)
percent of its value, then, without further action by the Town, such building and the land on
which such building was located shall from and after the date of such destruction be subject to
the regulations specified by ordinance for the zone where such land and building are located.
Value is to be determined by the Building Official.
;Ord. No. 1316, § 3.50.130, 6 -7 -76; Ord. No. 1344,1- 17 -77; Ord. No. 1493, 3.17 -81; Ord. No.
1934, § I, 4 -5.93)
Sec. 29.10.265. Nonconforming lots.
The following provisions apply to nonconforming lots:
(1) If the lot is in a residential zone and recognized by the Town as a lawful, separate
nonmerged lot pursuant to section 29.10.070 a single - family dwelling may be erected
if architecture and site approval is obtained.
Supp. No.5 2029
§ 29.10.265 LOS GATOS TOWN' CODE
2) If the lot is in other than a residential zone, it may be used for any purpose alloy+ ed
in the zone.
B) Any rule of the zone including front, side and rear yard requirements maybe modified
by the terms of the architecture and site approval so that the building and its use will
be compatible with the neighborhood.
(Ord. No. 1316, § 3.50.140, 6 -7 -76; Ord. No. 1344, 1- 17 -77; Ord. No. 1756, 8 -1.88)
DIVISION 6. HOUSING ASSISTANCE PROGRAM
Sec. 29.10.3000. Intent.
This division is adopted to meet housing needs shown in the housing element of the
general plan.
(Ord. No. 1316, § 3.90.010, 6 -7 -76; Ord. No. 1430, 6 -4 -79)
Sec. 29.10.3005. Below market price program— Established.
This division establishes the below market price program (BMP).
(Ord. No. 1316, § 3.90.100, 6 -7 -76; Ord. No. 1430, 6 -4 -79)
Sec. 29.10.3010. Same— Intent.
The below market price (BMP) program requires construction of dwellings that persons
and families of moderate income can afford to buy or rent, and assures to the extent possible
that the resale prices of those dwellings, and rents if they are rented, will be within the means
of persons and families of moderate income.
(Ord. No. 1316, § 3.90.105, 6 -7 -76; Ord. No. 1430, 6 -4 -79; Ord. No. 1685, 6 -2 -86)
Sec. 29.10.3015. Application.
This division shall apply to all multiple - family dwelling projects, residential condominium
projects and to all residential planned development projects (division 2 of article VIII of this
chapter) either approved after July 4, 1979, or whose approval includes a condition requiring
construction of BMP dwellings. Projects in the R -1 and HR zones are excepted from BMP
Supp. No.5 2030
EXHIBIT B
CONDITIONS OF APPROVAL FOR
CONDITIONAL USE PERMIT APPLICATION U -93 -14
258 UNION AVENUE
TO THE SATISFACTION OF THE PLANNING DIRECTOR:
1. Permitted hours of operation are as follows:
Sunday through Thursday 11:00 a.m. through 10:00 p.m.
Friday and Saturday 10:00 a.m. through 12:00 midnight
2. No five entertainment is permitted.
3. No amplified music shall be permitted that can be heard from outside the
building.
4. The operators of the facility shall patrol the parking lots and areas behind the
building during the evening hours to insure that people and vehicles not belonging
to customers or employees do not congregate in these areas.
5. All driveways, parking areas and loading areas shall be paved.
6. All areas of the property not specifically designated for driveways, parking areas
or loading areas shall be landscaped.
7. No outside seating shall be provided.
8. All meals served on -site shall be on re- usable utensils.
9. Any take -out food shall be served in recyclable containers.
10. The tenant shall monitor the sidewalk area in front of the business and dispose
of any fitter which is in the vicinity.
TO THE SATISFACTION OF THE POLICE CHIEF:
11. Six months from the date of this approval, the operator shall hold a meeting
with representatives from Alcoholic Beverage Control or the Los Gatos Police
Department for the purpose of employee training on licensed service of alcoholic
beverage to the general public. If it is determined that there are problems connected
with the service of alcoholic beverages, they must be resolved within a time frame
acceptable to the Police Chief.
12. Uniformed Private Security Guards may be required in or around the premises
by the Chief of Police if a need has been determined and the problems are not
resolved by the licensed operator.
13. Alcoholic beverages may be served only in conjunction with meals and no
alcoholic beverages may leave the premises. A meal shall be defined as a
combination of food items selected from a menu which would constitute a normally
accepted "meal' (breakfast, lunch, dinner or brunch). Appetizers or snacks such as
popcorn, nachos, pretzels, potato skins, relish trays, etc. (served hot or cold) will not
be considered meals.
TO THE SATISFACTION OF THE SUPERINTENDENT OF PARKS,
FORESTRY AND MAINTENANCE SERVICES:
14. A concise landscaping plan shall be submitted including a plant legend of
material to be planted including type, size and species of proposed landscape plants.
Town approved trees shall be planted along the back and side property lines to
screen the site from adjacent properties.
15. Newly planted trees shall be double- staked using rubber tree ties.
16. A five -year tree maintenance agreement shall be entered into for the protection
of existing and newly planted trees.
TO THE SATISFACTION OF THE FIRE CHIEF:
17. The applicant shall request a fire and life safety inspection to be conducted for
the building. Contact Michele Odens at 378 -4010 X20.
ii