Attachment 41
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APPEARANCE S:
Los Gatos Planning
Commissioners:
Town Manager:
Community Development
Director:
Town Attorney:
Transcribed by:
Mary Badame, Chair
D. Michael Kane, Vice Chair
Charles Erekson
Matthew Hudes
Tom O'Donnell
Laurel Prevetti
Joel Paulson
Robert Schultz
Vicki L. Blandin
(510) 337-1558
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PROCEEDING S:
CHAIR BADAME: We're speed dialing along to our
Continued Public Hearings, which is Item 2, Town Code
Amendment A-15-005; consider amendments to Section
29.10.150 of Chapter 29 of the Los Gatos Town Code to
revise required parking requirements for restaurants.
Ms. Renn, when you have a moment, we'll be ready
for your Staff Report.
VICE CHAIR KANE: Madam Chair, may I interrupt
for just one moment
CHAIR BADAME: Yes, Vice Chair Kane.
VICE CHAIR KANE: When you ask us if we've had
time to review the Desk Items, folks may wonder how did we
get through all that material so quickly, and I would point
out that these are emailed to us in advance, and we have a
complete set of the Desk Items if we printed it and then we
had time to read it, so we don't ignore anybody's Desk
Item; we've had it for a couple of hours.
CHAIR BADAME: Thank you for that clarification.
It's important that the audience know that we do do our
homework.
Ms. Renn, we're ready for you.
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MONICA RENN: Good evening, we're here tonight to
continue your discussion on the topic of decoupling seats
and parking spaces in Los Gatos. The Council did consider
this, and they asked for the Planning Commission's
recommendation. The Planning Commission began their
discussion in January and continued it to today to a
special meeting.
We have a very limited Staff presentation today.
You did receive a Desk Item that has a chart. We tried to
gather some information for you without calling out any
restaurant by name, and Joel and I are both here to answer
any question you have about that, or help the questions
with the conversation.
We do want to point out that the Council is
looking for two things. First, your recommendation on do
you think you'd like to see seats and parking spaces
decoupled? If the answer were yes, what metric would you
recommend is used? If the answer is no, then there is no
second question for you tonight.
That's concludes Staff's presentation.
CHAIR BADAME: Thank you. Do Commissioners have
any questions of Staff? Vice Chair Kane.
VICE CHAIR KANE: I've read the report; I've even
watched some of the hearings. I paid particular attention
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to the verbatim minutes we receive from Town Council, and
your report.
I'm wondering if you could tell me why do we need
this? I mean I've looked at the different numbers. They're
similar, or they're dissimilar, or they're Fire Code. I'm
thinking this must be a naive reaction, but if it ain't
broke, don't fix it. What is broke about our current
language on restaurant seats and parking, other than there
are a lot of allegations nobody pays attention to it?
That's not before us. I want to know as it is written and
as it could be enforced. What is wrong with what we have,
and what, if anything, could make it better?
MONICA RENN: I guess I have two responses to
that.
As far as what is wrong with what we have, I
don't think there is something that is necessarily wrong.
When we started down this road about the different
commercial issues back in September it kind of came under
the auspice of two things.
First, the Council had adopted an Economic
Vitality Strategic Plan in which they grouped together a
couple of things they wanted to see happen, and one of
those things was to open up great opportunity for
businesses to come into Los Gatos, to look at the ability
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to have hybrid businesses, and to look at the ability for
businesses to be flexible in their business model in order
to create opportunity in town. So that was kind of where
this all started.
As we began to talk about different things, it
became apparent that there are a lot of overlaps. One issue
that came up for us was when you talk about seats, the
whole world of seats has changed. When this code was
written seats were either a chair or a booth or a barstool,
and that was essentially all there was. Now there are
couches, there are standing areas, there are all kinds of
other ways that people congregate to eat, to drink, to
visit, whatever it is, and that's just the way the
marketplace works today.
So the conversation that came up was how do we
count a seat? Should it really be about how many people are
safely in a business? How does a business run itself? Or
should it be about how many seats?
I've had several restaurants come to me over the
period of the three years I've had this job to say they can
have 20 seats, but their occupancy is 100, so they could
hypothetically just serve food standing up, and they could
hypothetically serve wine standing up, but as long as food
is available, then they're doing what they're supposed to
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be doing. So is that the atmosphere that we would want to
see happen? And while it was an interesting and kind of a
strong conversation that we had, I thought you know what?
That is interesting. So that kind of started these
conversations about what could we do to be more flexible to
allow businesses to see what fits for them? That would be
one of my responses.
The other would be a conversation that we've had
for a very long time, and people will say it all the time,
probably 90% of our businesses have more seats at one time
during the day or not, so I would also turn that question
around and say maybe it's not working, maybe what we have
in place is not working, because if everybody needs more
seats to be successful, or if everybody needs to look at a
different configuration, is it that possibly what we have
in place doesn't work? I don't know if that answer is yes
or not, but it's just a question that we started to talk
about, and it came up through the Council, came up through
the Policy Committee, and that's just something for all of
you to think about.
CHAIR BADAME: Commissioner Hudes.
COMMISSIONER HANSSEN: Thank you for the report
and the numbers; it's very helpful. A couple questions
about how this would apply.
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How do your comments apply to the downtown versus
other areas in terms of the problems or the issues that
you've seen?
MONICA RENN: As far as too many seats, or as far
as which issue, would you say?
COMMISSIONER HUDES: You just described a
situation in general for the Town.
MONICA RENN: I would say Town -wide.
COMMISSIONER HUDES: Based on that, do you also
think —because I didn't see your recommendation —that there
should be separate standards for downtown from other areas?
MONICA RENN: The interesting thing about
downtown is it's very much like the way traffic looks at a
shopping center. There are very few instances where someone
comes downtown for one thing. Yes, they can come just for
dinner and leave at 7:00 o'clock at night, but it's most
often that people do more than one thing, which is why
traffic and stuff for shopping centers is different.
It's almost if I come down and I have lunch and I
shop, and I've only used one parking space, but that
parking space has now been double counted for two
businesses.
Does it make sense to look at downtown
differently? Maybe. That would be something that you could
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all consider. Obviously with downtown there aren't
necessarily onsite parking like there would be if you were
in King's Court or somewhere else, so it definitely does
make the circumstances different.
CHAIR BADAME: One more, Commissioner Hudes?
COMMISSIONER HUDES: Yeah, just related. How will
any changes made here apply to the North 40, and will these
apply to the North 40 Specific Plan and zone? Particularly
in Phase 2 there's an allowance for a mall kind of a
situation. Are we expecting that this ordinance would apply
to the North 40?
MONICA RENN: I don't believe it does, but I'm
going to let Joel confirm that.
JOEL PAULSON: The ordinance would not apply to
the North 40. The North 40 Specific Plan dictates the
requirements for the North 40 Specific Plan area.
COMMISSIONER HUDES: That's what I thought. Thank
you.
CHAIR BADAME: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: Fairly recently we had
people from the downtown community asking us to put in
modifications to the Valet Ordinance, and the argument was
we're so busy and we don't have enough parking, and
therefore if we have a valet they could take it a little
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bit further away, and so we really need that, and we said
fine, you can have it. Now we're hearing to the contrary.
We're not filling our seats, or maybe if we had more seats
we could fill them. So I'm confused by that.
The Council did give us an ordinance, I guess, on
valet parking. To the best of my knowledge nobody has used
it yet, but I understand they're still thinking seriously.
One of the people I've talked to is talking about an $8 fee
to do that, and I would say if you can't find parking, it's
worth $8. So I'm confused.
Secondly, we've said over and over and over
again, nobody knows how many seats there are in Town. All
we know is what your pieces of paper say, and your pieces
of paper are related to reality, because nobody has ever
gone out to check.
We do know that on many, many nights traffic is
terrible in the downtown, so we're saying we'll pretend
like you're numbers are correct, and if your numbers were
correct what would we do? I guess what I'm worried about is
your numbers aren't correct. Almost every restaurant I've
been in exceeds their Conditional Use Permit, which I don't
mind; it's just that what's the point of going through what
we go through? Then to carry it one step further, amend
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these ordinances based upon facts that we all know are not
correct. What would you do to have the correct facts?
MONICA RENN: Is that a question, or are those
comments for me?
COMMISSIONER O'DONNELL: Well, it ended with a
question.
MONICA RENN: A couple of thoughts on that, and
it goes back to my original comments about seats being
different. Seats are mobile, right? You could go in at
11:00 o'clock when somebody opens and they could be right
on their CUP. All of a sudden they get a party of 12 that
comes in, and seats appear, and they make that 12 work. I
think from my perspective and from a Staff perspective, to
keep things safe you would want the Fire Code, and to keep
things easiest on us and easiest to understand, I would say
you would go with the Fire Code; it allows people to have
the flexibility to accommodate that party of 12 that maybe
has rooms at the Toll House or something. There are a lot
of theories behind it, but I think that really there's no
control over... We could go in four times a day and count,
and the seats could be different.
COMMISSIONER O'DONNELL: It's really not that
sophisticated if you go in and find who has a bar that
ought not to have a bar. You simply go in and count the
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seats and find out there are far more seats than under the
CUP, or far more tables. I'm not saying you should do this
four or five times a day. You can go in any time you want
to and count the chairs and the tables, and you can find
out if they're in violation of the CUP.
Now I'm not trying to get on the businesses,
because it works, but I am saying your numbers are
dependent upon facts that do not exist. The last time we
were here everybody said that's right, we don't check them
unless somebody complains. And yet, we have this chart,
which is very helpful and I appreciate it, but it's...
You know, you're talking about the Fire Code. If
we follow the Fire Code you might as shut the Town down.
The Fire Code is very unusual when it comes to allocating
seats.
The question I have is are you comfortable using
figures that have no idea how many tables and chairs there
are in the restaurants, and it relies only on assumptions
or on use permits that we know are not accurate? Are you
comfortable with that?
JOEL PAULSON: I'll jump in. I'm not sure which
numbers you think are inaccurate. There are the approved
seats with the CUP, which is what's laid out here, and then
there is the issue of whether or not that is how many seats
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the restaurants have, so the information here is not
inaccurate.
Now, whether the reality in downtown is that
there are more seats, that very well could be inaccurate,
and I think we've heard that enough to all agree that it
may be inaccurate. If you start adding seats to some of
these, then some of these numbers will change, and they may
change to actually go lower, and they will get much closer
to fire occupancy code.
We have for instance one business in here.
Business A is currently parked at 15.03 square feet per
seat. Fire occupancy is 15 square feet per seat. So we do
have some businesses that are A) approved at fire
occupancy, and B) that corresponds with the existing seats
that are approved. We have not gone out and counted, but I
would assume that any responsible business owner would
definitely not go... Especially if you're at 15.03, you don't
have a lot of room to add seats.
Now, obviously some of the other ones you look
at, they're higher, and so those seats, if you change these
approved seats and say everyone has more seats, all these
square feet per seat dining area numbers go down towards 15
per square foot. Now they may not all hit 15 per square
feet, and we're not here saying that that's the number the
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Planning Commission has to propose. It's really, again,
back to the basic question: Should it be decoupled? I think
it was brought up before by Vice Chair Kane that if we
think the current requirements work, then we could move
forward and that can be the recommendation.
COMMISSIONER O'DONNELL: But what I don't
understand is when you say they are accurate, if you define
accuracy as being what a piece of paper says, then they're
accurate. If you define accuracy as being the real world,
then nobody knows. I mean at best nobody knows.
My personal experience is I've sat up here when
we've granted use permits, and I've gone in the restaurant
subsequently and I know they're in violation, and I don't
care, nice restaurants and all that. But I'm also downtown
when I can always find a parking spot if I walk far enough
and know where I'm going, but I'll just be going around and
around. I think we have a traffic problem, but we don't
have a traffic study that goes to what we're trying to
adopt now.
For example, bars. We have restaurants in this
town represented to us that there would be no bar, and if
you go into those restaurants you'll find there is a bar.
Now, having six or eight seats at a bar that is not
permitted of course isn't counted.
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I guess I'm simply troubled by saying traffic is
a serious problem in Los Gatos. Traffic is related to
numbers of chairs and table; we don't know how many there
are. We're being asked to change this. When I look at the
pattern here, when I look at the required parking based on
seats versus the required parking when we look at square
footage, there's no pattern to it.
I mean if you take A through J and you take
required parking based on seats, A is 23.33. If you went on
the instead of C, square footage, they wouldn't get that
many parking spots; they'd get 15. And then if you take the
bigger restaurant, which is I guess number I, that's a
6,611 square foot restaurant, you look at that, they have
72 required parking spaces. If you use the square footage,
they get 29. So I'm not sure whom I'm helping.
JOEL PAULSON: I'll offer a couple of things. One
is for the parking column specific there are two numbers.
There are two columns: one per 300, and one per 235. The
first five outside the downtown, so that's kind of the
basis on if you took the gross square footage of the suite,
divided that by 235, here's how many parking spaces would
be allocated to that at a minimum.
The last five are the downtown, so you'll notice
onsite parking, for instance, is zero for three of the five
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of those. One has 11 where nearly 50 are required, and the
other one is in a shopping center, and so there are none
allocated. The downtown spaces, and I will clarify that
every one of these restaurants has the required parking r
onsite for the first five, because there are some centers
that have extra parking, and so we keep tables for those,
and they have extra parking and they've decided to allocate
it for this business, for instance, or more than one of
these businesses.
The last five you either have the parking onsite
or you're in the District, and so those are your Parking
Assessment District credits, but all of them meet that
requirement based on the number of seats that they have
approved.
That still doesn't get to your question of how
many are out there, but that's the basis for the original
approval of the CUPs.
COMMISSIONER O'DONNELL: Does it strike you as at
all odd when you say if you simply accept my definition of
the world, it works; if you go out and see what the world
really looks like, we don't know?
ROBERT SCHULTZ: The world looks different every
minute, so I don't think we're going to convince you,
Commissioner, of any of this, so I'm a little bit the
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exercise. Maybe I'd go back to what you said about the
problem out there then. The Council is trying to tackle a
solution. What would be your solution be to that?
You said you don't have a problem with the extra
seats, and I also live downtown and I work downtown, so I'm
in this area. I don't even get in a car all week long, and
so I see different seats... I differ from you. I can go in on
a Tuesday night, and when I go in on a Friday or Saturday
night, there are different seats. They change rapidly based
on how many people are in.
COMMISSIONER O'DONNELL: I do not see what the
Staff has...why it bothers you to say we ought to have some
real facts. Let me finish.
ROBERT SCHULTZ: Which facts do you want?
COMMISSIONER O'DONNELL: Simple real world facts,
the ones we don't want to look at. I was told if we have a
use permit we have no idea whether you're complying with
the use permit unless somebody complains, and then it's
you... Somebody said we go out and look. Now wait a minute.
The argument tonight is please don't step outside
of our numbers. We know they're wrong, or at least some of
them are wrong, but it would take a lot of effort to find
out the right numbers. I think that's the position, and if
that's the case, one way to look at this is simply to look
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at our sister cities and say if it works in Campbell, or if
it works in Saratoga, why don't we just do that? And maybe
that's what we'll end up doing, but I don't know how much
effort it takes occasionally to find out whether a
restaurant complies with its CUP.
I think it almost unfair now, because for years I
have watched what they've done, and they all look around
and say well gosh, nobody seems to care, and I'm trying to
make a living here, and they either add a bar, or they add
some more tables, or they add outside tables, or they add a
wrapping around the outside, none of which was on their use
permit, and how do those seats exist? I don't think we have
a clue.
ROBERT SCHULTZ: Okay, so your answer for Council
is to not approve the decoupling, and to start doing code
enforcement and find out exactly where all the seats are
located and determine which ones are outside their CUP.
COMMISSIONER O'DONNELL: My advice for Council
would be to know the facts before you take action. If you
assume that the facts are not particularly relevant, then
we can say assuming these were the facts here's what we
would do, and with that caveat we can probably make a
recommendation. But I just want it crystal clear that these
numbers, I don't know the degree of accuracy of them in the
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real world. That troubles me, but maybe that doesn't
trouble the Council.
JOEL PAULSON: And I'm not trying to convince any
of the Commissioners. This is based on the facts that we
could gather, which is the approved Conditional Use
Permits, the square footages from the building permits for
the dining areas for these ten businesses, and then doing
some calculations to show you where those are. I'm not
trying to convince you that this is reality from what's out
there on the ground.
COMMISSIONER O'DONNELL: I'm not criticizing you;
I'm just exploring this.
JOEL PAULSON: Okay.
CHAIR BADAME: All right, I'd like to cap on
Commissioner O'Donnell's sister city comments, so referring
to Exhibit 2, Attachment 1, you've provided benchmarking on
seating requirements using certain requirements and certain
jurisdictions.
In looking at what I would call the sister
cities, there are ten of them, and at least eight of them
use square footage. I don't see any that use Fire Code
occupancy with the exception of the last six, which I don't
consider sister cities or even progressive, and that would
be Benicia, Sacramento, Simi Valley, Lompoc, Redding and
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Grover Breach. So is there anybody in the local area that
uses the Fire Code occupancy that you could find?
MONICA RENN: We did benchmarking through a
couple different areas. There is a planning network that we
put an email out to all planners in California; that's why
you got some of the information from far away cities. We
also used the Silicon Valley Economic Development Alliance
and some of the people who belong to that. We tried for
probably four weeks straight with continuous questions and
asking, and this is the information we got.
JOEL PAULSON: I would just offer that maybe
sister is too close, but cousin. Morgan Hill, the seats are
limited to what's required by Fire Code. They have parking
on square footage, but Fire Code limits seats. That's where
we're talking about the delinking, and that's just the
first one I got, just for your information.
CHAIR BADAME: Thank you for pointing that out.
Morgan Hill; I almost consider that apples or oranges, but
Commissioner Hudes.
COMMISSIONER HUDES: I had I think two just
arithmetic questions, so that I understand.
When I look at the column that says, "Square feet
per seat in dining area," and I've been informed that the
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fire occupancy is 15 square feet per seat, is that correct?
Is that a fair comparison?
JOEL PAULSON: Correct.
COMMISSIONER HUDES: So there's only one that's
close, and only one that would be outside of the
permissible, and that's the one at 13.9.
JOEL PAULSON: And the one at 13.9 is a little
bit of an oddity, and I was trying to figure out where that
was. The CUP was approved with 84, but when I looked at the
building permit, the occupancy the area they had calculated
as the dining area was a couple less, and so I think that's
where the number drops below the 15. They couldn't possibly
have even as many seats based on Fire Code for the building
permit. They would have less than the 84 that were
approved. The 84 is based on the 21 parking spaces that
were allocated in the District for that space, so that's an
oddity, frankly, just so you know.
COMMISSIONER HUDES: So I take the average of
that column, or the mean, and I know this is just a sample,
but I get 24 square feet per seat. If we were to go to the
Fire Code, then we'd be increasing the number of seats by
the same percentage that we're going from 15 to 22,
correct? Or from 22 to 15, so we'd be increasing the number
of... If we were to adopt Fire Code we would be increasing
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the number of seats permitted by somewhere around 60%, is
that correct?
JOEL PAULSON: You mentioned 24 and then you
mentioned 22, so I think you said the mean was 24?
COMMISSIONER HUDES: Correct.
JOEL PAULSON: Okay. And so looking at this, then
they're going to occupancy, and you're much more into the
numbers, so I assume from 24 to 15, that change of 9 is
60%. I think it would probably be a little bit less if it's
24 or 22, but it's an increase nonetheless.
COMMISSIONER HUDES: Okay, but that's the
magnitude, 50-60%, something like that if we were to go to
Fire Code?
MONICA RENN: Yes.
COMMISSIONER HUDES: Okay, thank you.
CHAIR BADAME: Any further questions of Ms. Renn?
Vice Chair Kane.
VICE CHAIR KANE: Well, to the Town Attorney. I
wanted to support your motion that we leave things as they
are and enforce the existing language, which seems to be
way out of control, and see if that helps with traffic and
parking.
On the other hand, Ms. Renn, if we did enforce
the language we have, how would that affect vitality? I
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mean Commissioner O'Donnell is okay with the situation,
slippage here and there, but if we actually imposed the
rules that we have, and that says something may be wrong
with the rules, but if we impose the rules that affect
vitality?
MONICA RENN: I think we'd see a lot of
businesses gone. They would leave. They can't cover their
overhead. The cost of the buildings are high, the cost of
food has risen dramatically, and the cost to have
employees. I mean all of the cost of business continues to
rise, and from what I hear the majority of them are
independent business owners, and I think that they would
leave.
VICE CHAIR KANE: Then you are telling me that
our rules are not very good.
MONICA RENN: That's what I said earlier, yes.
VICE CHAIR KANE: And I said if it ain't broke,
don't fix it, and now I'm getting the picture that if we
did what Commissioner O'Donnell had talked about, the Town
Attorney had mentioned that would not be a good thing, so
it is broke.
MONICA RENN: I would also add to that that I
think we've been trying so hard to change our message out
there with current businesses, and always retention is our
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number one thing, attraction would of course be second,
that I think if we started going out and heavy handed doing
a lot of code compliance with all of our businesses, it
would completely ruin the relationship that we're trying to
build. Not saying that they shouldn't be in compliance, but
what I'm saying is as the liaison between the businesses, I
believe from their perspective it would be seen as a
negative thing.
VICE CHAIR KANE: But you are saying that they
shouldn't be in compliance. That's the message I just got,
that if they were in compliance, they're in big trouble.
MONICA RENN: I don't know if that's true or not.
That's not what I meant to say.
VICE CHAIR KANE: I thought you said they were
going to shut down.
MONICA RENN: I believe that you would see
several businesses leave, yes.
VICE CHAIR KANE: Additional question. In the
minutes for the Town Council meeting of 12/15 you said that
to get a sense of what the community wanted the Town
Council is asking you to find out about this business. You
contacted or sent out to 230 property owners and businesses
to respond to what do you want and what's wrong, something
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like that, and 14 responses were received? I'm
paraphrasing, but what does that tell you, 14 out of 230?
MONICA RENN: Is that a question or is it a
paraphrase?
VICE CHAIR KANE: Yes.
MONICA RENN: We contacted the people who owned
something in the Parking Assessment District and we asked
them specifically about how they felt as a former Parking
Assessment District owner, if they were okay with it being
decoupled.
VICE CHAIR KANE: You got 14 answers...
MONICA RENN: That's correct.
VICE CHAIR KANE: ...out of 230. What does that
suggest?
MONICA RENN: That suggests that those were
building owners and not business owners.
VICE CHAIR KANE: And they don't care?
MONICA RENN: I can't answer that question; I
don't know.
VICE CHAIR KANE: That would be an assumption,
possibly a safe one. Thank you.
CHAIR BADAME: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I see no reason why we
should have a more restrictive parking rule than our
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neighbors, but I'm trying to figure it out, because if I
look at Campbell, for example, they have one space per four
seats, or it says, "Out of downtown eating and drinking
establishments, no drive -through, one space for three
seats," and so on. And if I look at Saratoga, they have one
space for each 75 square feet of floor area, so that's
different; that's something that's different.
My problem is the numbers don't really tell me
what you're telling me, and I believe what you're telling.
Clearly we have some people who are in business in town who
would be unhappy were we to enforce what we have. Part of
the reason we've been able to have what we have is when
nobody enforces it, nobody complains, and then the people
sitting on this side of the desk can really be tough,
because nobody is going to pay any attention to it. That's
not a very good way to run a railroad, so I guess I'm
saying I'm not against loosening this thing up, but I'm
having trouble figuring out how to do that.
So if we said let's do the same thing Campbell is
going to do, for example, because they always tell us how
great Campbell has done, that is one space per four seats.
Would that make people happy? I mean you're talking to the
people. Do you think that would make people happy?
MONICA RENN: I don't know.
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JOEL PAULSON: And I would run into right now our
current requirements for downtown are one space for four
seats.
COMMISSIONER O'DONNELL: The same as Campbell.
JOEL PAULSON: Correct. Or we have one that's one
space for every three seats if you have a separate bar.
COMMISSIONER O'DONNELL: So Campbell does real
well, notwithstanding they do the same thing we do?
ROBERT SCHULTZ: You're assuming that they don't
have the same problem, that they have a lot more seats in
their restaurants and bars, which they do.
COMMISSIONER O'DONNELL: Well, the people who
appear before us often use Campbell as an example to us. So
let's strike Campbell. Let's pick one of these seats that
everybody thinks is best, that's what we ought to do.
This is very difficult, I think, and I'm sitting
here saying let's make it better for the people in town,
but I'm having trouble figuring out what that means. We
have one space for every four seats, and that apparently is
something that people don't like. You could make it square
footage, and the last time we talked about it we said a
minimum would be 75 square feet. I notice that Morgan Hill
uses 100 square foot, so you kind of drift around.
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At the end of the day —I personally,
notwithstanding my view of whether we enforce the law or
not, set that aside —would like to get to a point where
we're making a recommendation to the Council which would
make the business environment here more attractive, but I'm
not sure what that is, so I'm asking for a little help.
ROBERT SCHULTZ: I'll try to give you the little
help. Maybe go at a different route. You're looking at the
existing CUPs and the existing businesses. Let's wipe the
slate clean and you had no businesses and you were building
a brand new town.
The problem is when you deal with a CUP and seats
that are based on parking you're going to have violations,
you're going to have code problems. When you do it based on
square footage, you make that determination at the front,
how many parking spaces, and your square footage isn't
going to change, you're not going to increase your square
footage, so you're done with your parking requirements, and
you're done with... You get your CUP, and now you're seats
are based on a different...
COMMISSIONER O'DONNELL: But I'm not opposed to
that. I'm just trying to come up with a number. Let's
assume we say we're going to change and take the new Town
approach. I'm not hung up on seats. Square footage is fine.
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-It's a question of how many square feet? This to me is sort
of a question to you (to Commissioner Hudes), and I think
to you. You've played with the numbers. You know there's a
sense of unease with some of the people in town feeling
maybe we're too stringent. So I guess I'm saying how would
one per 75 feet, or one per 100 feet be? I have no sense of
what does that mean? Is 100 feet good? Good being defined
as something that the people who do business in town today,
and will do business in the future, would feel like the
Town really wants us here?
COMMISSIONER HUDES: I looked at the numbers in
the benchmarking requirements and I took an average, and I
came up with one space for every 109 square feet. Did you
do a similar exercise? There's a big range from one per 40
up to one per 200, so it's a big range, but that's the
number that I came up with. Is that similar to what you're
analysis is?
JOEL PAULSON: We didn't do an average of the
benchmarking list from the various square footages. I know
you had mentioned that last time and I don't doubt your
numbers.
COMMISSIONER HUDES: I just did a calculation
based on the numbers in here.
CHAIR BADAME: Commissioner Erekson.
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COMMISSIONER EREKSON: A question for the Chair.
We have people in the audience, some of which may want to
address us, so I kind of had a sense we were moving to the
deliberation stage before we heard the public.
CHAIR BADAME: Thank you, Commissioner Erekson.
You are right on with that, and I suggest that we at this
time invite comments from members of the public. I have one
speaker card, and that will be Michael Strahs.
Ms. Renn, thank you for your presentation. We'll
invite you back up in a few minutes.
MICHAEL STRAHS: Hi there, Commissioners and
Staff. My name is Michael Strahs; I am a Town resident of
the last two years. I'm here this evening though in my
capacity as Director of Development for Federal Realty
Investment Trust, best known in the area for Santana Row.
In the Town we own Old Town Center, and operate King's
Court, as well.
Great respect for Staff. Staff here is very
tough, but very fair. In this case, we would respectfully
disagree with at least parts of Staff's recommendations.
To us, the general decoupling doesn't make a lot
of sense, but it is a little bit nuanced, so let me
explain. In general, we're okay with the decoupling, so
long as two guiding principles are respected, at least from
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our perspective as one property owner, and that would be
that in our estimations restaurants should have more
parking than retail with a greater requirement, and
generally speaking a bigger restaurant should have more
parking than a smaller restaurant. It's actually easier for
a developer and a property owner to understand early on in
the development or re -tenanting process what the parking
requirement will be when it's based on square footage.
So we'd be fine with square footage, and square
footage at least in our experience tends to be more common
in cities, whether they're related to the Town of Los Gatos
as sisters, cousins, or just acquaintances. So generally
we'd be okay with that, but then obviously then the magic
interesting part comes in: What is the metric? But so long
as bigger restaurants have a greater parking requirement
than smaller restaurants, and the requirement is greater
than it is for retail, that seems to be to us the bigger
issue.
CHAIR BADAME: You still have time remaining.
MICHAEL STRAHS: I would just make one other
comment, and that's that at least at Old Town Center we
have I think it's close to 150 of the aforementioned
phantom parking stalls, so we have, at least by the code,
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ample parking for that center. I would comment also that
King's Court is sufficiently parked as well.
CHAIR BADAME: Thank you, Mr. Strahs. We have a
question for you from Vice Chair Kane.
VICE CHAIR KANE: In your experience, what is
that magic number? You are in favor of square feet. Ten,
one hundred? What have you achieved in the past? What is
the right number?
MICHAEL STRAHS: Well, I don't know what the
right number is. All I would say is that to me —and I think
I mentioned this at the January meeting —the most common
numbers that I've seen, or at least a starting point for
restaurants, I would often be 10 per 1,000, which would be
one space for every 100 square feet, and in retail a common
metric, at least for City code, seems to be four.
Now, there are two caveats to that that I didn't
clarify in my last set of comments, and that is number one,
there are often ways to reduce that through shared parking
studies, or actual use studies. It's not a black and white
metric in a lot of places; and number two, I would agree
with Staff's comment that oftentimes downtown areas are
treated very differently than a suburban product. My
experience is more in the shopping malls type of a product
than in the downtown context, but generally we still think
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that restaurants should have greater requirements than
retail.
VICE CHAIR KANE: So you said restaurants, 100,
and then you said retail, four. Can you convert the two
numbers?
MICHAEL STRAHS: Oh, I'm sorry. Retail would be
four spaces for every 1,000 square feet, which would mean
an equivalent number of 250 square feet per stall. That's
just a metric. I mean that's just an example.
VICE CHAIR KANE: Thank you.
CHAIR BADAME: Any further questions? Thank you,
Mr. Strahs. Our next speaker is Jim Foley.
JIM FOLEY: Good evening, Jim Foley, 18400
Overlook.
I've tracked this issue for some time. Generally
I'm supportive of what Staff has put together. I think that
the reality that everybody is really concerned about down
here, and what's occurring downtown, does not reflect at
all what the requirements are and what are in everyone's
CUPs. I don't know if there's a process that people need to
go through to verify that, but I think it's pretty much out
there.
There was a meeting on enforcement —I forget when
it was, a year or two ago —when there was the discussion on
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hiring somebody to go out and actually enforce the use
permits, and this Council chambers was packed with every
single restaurant owner downtown, and they were very
worried of where that was headed, because for the longest
time everybody had been operating under the yeah, we're not
going to look into exactly what you have, and it appears to
be working.
I look at this in more of a global perspective. I
don't know what the numbers are or what the reason is
behind trying to look into these specific square footages
or parking places per seats. It should all be about safety,
in my opinion, so whether that's the fire department or
whoever, whatever governing body and whatever is in place
now as far as safety and occupancy, that should be what
dictates a restaurant and how it can operate.
There are different nuances. You're not going to
be able to apply the same formula to each space. You're not
going to say taking it from 15 to 22 square feet is like a
60% increase. There are limitations within each space as to
where something can go, ADA concerns, and different things
like that.
I also think that if you were to decouple it,
you're not going to see... The state of affairs right now is
kind of in balance, right? So what I'm more concerned about
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are the people out there that are following the rules that
are not taking advantage of what some of their competitors
are, right? They're playing nice and they're playing good,
and maybe they're on the brink of having to leave town
because everybody else is really not playing by the rules.
Whatever our neighboring cities are doing —I think
I wrote it in a letter to you guys —I don't know what
they're doing. I'm not sure I'm really concerned about what
they're doing as what should we do? When did Campbell put
that into place? Was it ten years ago, or was it last year?
I don't know when they put theirs into place, or the last
time it was looked so.
In my opinion we just need to look at what makes
the most sense, and I think it's getting rid of tying the
seats to parking, letting the businesses succeed, and
sending the message through economic development that Los
Gatos is open for business.
That plays into a lot of the things that may come
before you or the Council soon, and it relates to how
parking and seats are treated in restaurants. I really
don't think that if that happens we're going to have
gridlock in the streets and every parking space is going to
be full. There are a lot of struggles downtown right now.
Maybe on Friday and Saturday night between 6:00 and 8:00
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o'clock it's tough, but the rest of the time we're got a
lot of empty streets during the evenings down there.
CHAIR BADAME: Thank you, Mr. Foley. We have a
question for you. Commissioner Hudes.
COMMISSIONER HUDES: Thank you very much. I
wasn't quite clear on your statement. Are you in favor of
decoupling, or not, and is there a reason?
JIM FOLEY: Yeah, I'm sorry. I'm in favor of
decoupling. I think that what is in place now just doesn't
make sense and it doesn't relate, and I think there are
probably businesses that are suffering because of it. I
think it's also a deterrent to certain new restaurants
wanting to come into town and how they're going to approach
that and do that, from being able to do it, and I generally
just think it doesn't make sense and it should be based on
safety.
COMMISSIONER HUDES: Thank you.
CHAIR BADAME: Commissioner O'Donnell, go ahead.
COMMISSIONER O'DONNELL: Your position then is
it's not based on any impact to traffic?
JIM FOLEY: I'm sorry; it's not based on an
impact to traffic?
COMMISSIONER O'DONNELL: Traffic, yeah. I mean if
it's safety, that's the Fire Code.
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JIM FOLEY: Right.
COMMISSIONER O'DONNELL: I mean I don't understand
how you can say the requirement of parking has nothing to
do with parking or traffic. If it only has to do with
safety we can forget the streets, we can forget the
parking. We can say as long as you can get people out of
the building when it's on fire, the fact that they can't
get to their car is another issue, but can you really
believe that parking and traffic has nothing to do with
what we're doing?
JIM FOLEY: I do. I think the reality down there
right now, the balance that's in place, it is not
reflective of how the code is set up, and there is not
gridlock, and there is not every parking space full all the
time, and there are a lot more seats, a tremendous amount
more seats and tables in those buildings that are on the
chart that Staff has.
I don't think you're going to see an influx of a
tremendous amount of additional seats. I think you're going
to see the code or the ordinances corrected and rebalanced,
and then maybe a few additional seats and tables are
allowed for somebody that needs them, or if a new
restaurant were to come into town into a space that maybe
formerly wasn't a restaurant, I don't think that maybe
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those 10 tables or those 20 tables are going to create
gridlock and a parking catastrophe in Town. I don't think
it's going to be a noticeable change whatsoever.
I think that generally just looking at what has
gone on and occurred, and how a town evolves and how people
function in town over time, this is just my personal
opinion. I'm not a traffic engineer, and I didn't do a
parking study, but my hunch is that you're not going to see
a marked difference in traffic, parking, and the behavior
of what goes on in Town by taking this away.
COMMISSIONER O'DONNELL: Do you know how many
parking spaces there are downtown?
JIM FOLEY: I don't.
COMMISSIONER O'DONNELL: Thank you.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: Could I sum up your remarks to
say that you're in favor of decoupling and replacing that
with Fire Code limits?
JIM FOLEY: Yes.
VICE CHAIR KANE: Thank you.
CHAIR BADAME: I have a question for you, Mr.
Foley. I'm looking at your letter, Exhibit 6, and it
appears that you might also be amenable to square footage
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based on the last sentence of the first paragraph. Is that
correct, or am I not reading that correctly?
JIM FOLEY: Generally from the standpoint of
allocating parking, I'm just not so sure in the downtown
and the way that it functions that retail and restaurant
are so dramatically different, because of how many people
visit different establishments and the way that parking is
set up.
So when you're developing a new building
downtown, it's got some kind of a use associated with it
and there's a parking requirement for how you develop that
and what you have to bill for that. Something along those
lines is fine, and I think that seats in the restaurants
are unrelated; it should just be whatever is safe. A lot of
it just stems from struggles that some businesses are
having downtown, and what are we doing? We're trying to
create some vitality, so take that barrier out, along with
a bunch of other barriers that Staff is working on bringing
up into our current times, some antiquated ordinances and
policies that have been in place for the downtown a long
time, on the precipice of the largest development occurring
in the North 40 that we will have ever seen.
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CHAIR BADAME: Any further questions for Mr.
Foley? Seeing none, thank you, Mr. Foley. Our next speaker
is Maria Ristow.
MARIA RISTOW: Hi, Maria Ristow, 85 Broadway.
I sympathize with Commissioner O'Donnell, because
when I look at the Planning Commission, a lot of the times
you are stuck making a decision based on facts or
ordinances and what you feel is right doesn't matter, it's
the rules you have to follow. I think one of the pieces of
information that's missing, and I'm not sure of the best
way to reach it, is you do actually have facts.
The fact is how many approved seats are there?
But that doesn't tell us how many seats are in each
restaurant right now in actuality, and so we don't know,
did it hit a steady state? Are the restaurants actually
operating where they want to be?
I'm wondering, is there some way to do an audit
of those ten restaurants that we've got listed without code
compliance getting involved, getting somebody from Staff or
Economic Vitality go in there and actually count the seats?
Is the restaurant feeling successful? How many seats are
there right now? And look at that. Are the more formal
restaurants really close to what they were approved at? Are
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the most casual restaurants well above it, but below where
the Fire Code is?
I think there's a way to get that information,
instead of saying we have this arbitrary number and we know
it's not being followed, so we're going to put a new
number, and we won't know if that's followed, and then
you're stuck with these facts that don't meet with reality.
I think an audit would make sense, just to say here are the
restaurants that are doing well. Maybe check with the
owners, see how they're doing. No one is going to get
turned in, but how is the steady state working out?
The other thing I'm wondering about is how does
outdoor seating play into this? That was one thing I was
kind of surprised it wasn't brought up, because if somebody
has a certain number of seats allocated to them, and they
want to put tables outside, often what's happened is
they've got to take seats away from the inside, and that
can be a disadvantage. If you've got neighborhood -serving
businesses where people aren't driving, if they're walking,
who cares how many parking spaces there are?
I never drive to go eat —but I'm weird and I'm
unique, and I'm provincial and I only go places I can walk —
so I don't care if there's parking or not, but my friends
who come and visit do, and they park at my house and walk
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there. But I think there's a component of outdoor seating,
and if we're starting to look at that, we may want to
decouple it from parking spaces if we get to a more
walkable town, but we have to find out what the right
number is, and we can't do that if we don't know where
we're starting.
Then the last thing is ultimately people talk
about a parking shortage, but as Commissioner O'Donnell
said, there are parking spaces; people just don't know
where to look. One of the things the Transport and Parking
Commission is trying to work on is technology that will
tell us which spaces are being occupied. We've got a pilot
program. We're hoping to move forward over time and direct
people to spaces.
CHAIR BADAME: Thank you, Ms. Ristow. Questions?
Seeing none, thank you very much. All right, our next
speaker is Mr. Arzie.
LARRY ARZIE: Larry Arzie, 1800 Overlook, a
property owner in downtown Los Gatos.
The regulations for tying seats to parking are no
hidden secret when you go into the restaurant business in
Los Gatos. You know what you're in for and it's part of
your business plan. To change the regulations puts other
businesses at a disadvantage.
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As it stands, coupling seats to parking fairly
provides parking for both restaurants and retail uses.
That's the way it was designed when the Parking District
was formed. We signed on to an agreement and were assessed
millions of dollars to form the Parking District. To change
the formula at this point gives one party more use of
parking than his neighbor. Making it easier to add seats
without adding or paying for more parking is just not
equitable; it's not a solution for all.
The request for changing the rules comes from
restaurants and landlords to increase their bottom line,
but not for their neighbors. I am a landlord of non -
restaurant uses. What do my tenant and I get for decoupling
seats for parking spaces? The shaft, that's what we get.
More intensification and use of the Central Business
District comes with a price, and it's not called vitality,
it's called less available parking and more traffic. The
regulations work, and until we build a new garage, it's the
only fair thing that we can do.
Decoupling is legalizing cheating. I had a friend
come up to me who just recently opened a restaurant in Los
Gatos about a year ago —I won't mention what it is —and said,
"Larry, I don't understand. The Town has come down on us
and wants us to change our seating." I said, "You know,
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1 just put it in the back room and bring it out later. That's
2 what it's all about in Los Gatos." He says, "Yeah, but when
3 I did this, Staff lead me to believe that it was a wink-
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wink situation, and that's how we operate in town." I'm not
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lying. I'm not making this up. That's Los Gatos, and that's
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how we operate. Thank you.
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CHAIR BADAME: Questions for Mr. Arzie. Vice
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Chair Kane.
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VICE CHAIR KANE: Are you saying it's okay, or
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are you being sarcastic?
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12 LARRY ARZIE: No. There is no other solution
13 until we get a garage going. Now, Mr. O'Donnell wanted to
14 know how do we resolve this. I was mentioning to Maria
is Ristow that we can do what was done in the seventies and
16 place a sundown ordinance on all retailing in Los Gatos,
17 restaurants, bars, whatever, and take away your use permit.
18 Your use permit ends on this day. That's how we got the
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Parking District to begin with, with that threat. That was
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a legal threat to shut us all down.
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Or we could do the same thing with restaurants:
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Come up with a solution or we're going to enforce the
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regulations. That might just get us off our asses and form
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a district and agree to start a new bond issue.
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VICE CHAIR KANE: Come up with a solution, or
enforce the regulations.
LARRY ARZIE: Say it again?
VICE CHAIR KANE: What you said. I'm going to
write it down. Come up with a solution, or enforce the
regulations.
LARRY ARZIE: That's correct.
VICE CHAIR KANE: Sounds like a banner.
LARRY ARZIE: I mean that was the threat that
worked in the seventies, and we fell for it. We didn't get
a single extra parking place, but we fell for it.
VICE CHAIR KANE: Thank you.
CHAIR BADAME: Commissioner Hudes has a question
for you, Mr. Arzie. Don't go away.
COMMISSIONER HUDES: Thank you, and I really
appreciate your point that loosening up the regulations on
restaurants could have a negative impact on retail, and I
appreciate your background and perspective on that.
I wanted to come back to the point that you made
about people not complying. It seems as though you could
have noncompliance either the way it's structured now, or
with decoupling. Decoupling meaning having separate parking
spaces per square footage and separate seats per square
footage. Is there a reason that you think decoupling would
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lead to more noncompliance, or could it exist in either
one?
LARRY ARZIE: It can exist in either one, because
we're not going to take a tally of what the seats are.
Forming a new parking district will make sure that we
measure and count tables and chairs, and that will give us
a correct basis for our assessment for the new district.
The last time we measured and did it as number count was
before we built the last garage.
But basically, no, you're going to accomplish
nothing more than the status quo by decoupling, and those
who can cheat, cheat.
COMMISSIONER NUDES: Thank you.
CHAIR BADAME: Any further questions? A11 right,
I am going to invite Ms. Renn back up to the podium for
additional comments and for possible questions from
Commissioners. Does anybody have questions of Ms. Renn?
Commissioner O'Donnell.
COMMISSIONER O'DONNELL: You've heard what I've
heard, and I'm still wrestling with it. If we, for example,
with the best of intentions, were to change it to
"arguably" make it more lenient, and we don't know how many
people are presently significantly in violation of what it
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is, one could argue that you're not increasing it for them,
because they're already up there anyway?
I guess what I'm worried about is I hear retail
saying don't hurt us, and I certainly agree with that. We
come back to the same problem, and that is I hear
restaurants saying we're all hurting, and yet they're the
same people that wanted valet parking because there wasn't
enough parking; that always strikes me as odd.
So I guess I'm wondering if we were to take the
square footage and we were to say either that... I like 100,
it's a little bit rounder than 109, but whatever it is, 120
square feet or something. It isn't clear to me if maybe
that would be good for restaurants. I don't know, maybe it
would be. I don't know that it would be bad for retail.
It's interesting when you've got retail saying,
perhaps, don't change anything, and you've got restaurants
saying change everything. There's no way in the world we're
going to say the Fire Code is the law, that's it. I just
can't believe we're going to do that, so I think if we want
to "help" people, we need a square foot allocation.
Now, you've read all this work you've done; it's
a lot of work. Do you have any opinions on —take a number-
100 square feet, 150 square feet? Do you have any opinions
on what would be perceived, or what you would believe would
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help restaurants in Los Gatos —and we'll deal with retail in
a minute —because we assume for the moment the people
speaking for restaurants think this is a general and
universal problem, and we know what we presently have with
100 or 150, but let's say 100, would that be a looser
number, in your opinion?
MONICA RENN: A hundred would actually be more
restrictive that what we allow right now, so no, it would
not be looser in my opinion. What I'm after —I'm not after
anything personally, obviously —but I would say I'm working
under the goal or the thought that we're looking for
greater flexibility and greater opportunity. With that
said, 100 becomes more restrictive, so I would anticipate
looking at a number less than that.
COMMISSIONER O'DONNELL: Okay. At what number do
you see it being one, less restrictive, and two, therefore...
I mean you've got a break even point that's neither more or
less restrictive, it's the same, but if for the moment we
say we're trying to be restrictive, when do you get to less
restrictive on a square foot basis?
JOEL PAULSON: I'll jump in just quickly, because
there are a lot of variables. As you can see, even just
through these numbers there are a lot of variables.
Depending on the square footage you have, those things can
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change. I don't know that there's a magic bullet number. I
know Matthew had given you the mean, or the average —I can't
remember which one it was —of 24 for these ten samples. So
24 is less restrictive then the 40 that we had in the
chart. The absolute least restrictive is Fire Code for
seats. So then we get to the mean or the average, which is
24, so that's a little bit more conservative than the 15,
but even as you look through this chart you'll have some
people that that would be an advantage for, and some people
that that would be a disadvantage for.
It's tough to say what the perfect number is,
because it actually is different depending on the cases.
That is a challenge, and I wish I had a perfect number for
you, but starting just with 15 being the least restrictive,
24 with the average being less restrictive but will allow
potentially for additional seats in some areas, even when
you get to the 40 that's in this chart that you have,
that's more restrictive than what we currently have today.
The 40 gets to the traffic and your parking concern, so
it's not actually providing flexibility, but it's providing
a metric that is square footage rather than...
COMMISSIONER O'DONNELL: Let me just add that I
often (inaudible) Staff as a recommendation. Clearly
apparently you don't have a recommendation tonight. But
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since "decoupling" is the word of the evening, it's all
well and good to talk about decoupling, but if you don't
know what you're decoupling to, and when you can say well,
that would help some, but it wouldn't help the others,
we've now spent some time on this and I've tried to think
about it.
And again, forgetting retail. Just for the moment
forget retail and just focus on the restaurants. It's very
difficult to know what one can do, because we know some
people would be benefited by it and some people wouldn't,
and we also know if it's not enforced, heck, we've got the
best system going. We tell them whatever we want to tell
them, and they ignore us and they do what they want to do,
and then they complain about it. I mean I find that
amazing.
JOEL PAULSON: And I just offer —which we talked
about earlier —that even at the Fire Code occupancy for the
dining area, we have a number of businesses that are
already there, and two of them are on this chart. So no, it
wouldn't be an advantage for those people, but that would
provide the greatest flexibility for those who would be
able to take advantage of that.
COMMISSIONER O'DONNELL: All right, thank you for
that help.
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CHAIR BADAME: Commissioner Erekson.
COMMISSIONER EREKSON: For me, before I can come
up with an answer I have to really understand the question
very well, so I've been trying to figure out what's the
question. I want to try something and see. I mean I
appreciate your answer earlier to the question, but I'm
going to try to restate it potentially in a different way.
This is going to be a question, but I'm going to
do a description with a question of is this a reasonable
statement of the problem? So I'll ask the question, but I
have to state the problem.
We're faced with an industry, the restaurant
industry, or the food and beverage industry —I guess I'll
make it broader —that has changed, and potentially using the
word seats is the wrong terminology, because that's, I
believe, ground in an old understanding of having a
restaurant where people came in and sat down at a table or
sat in booths and ate. That's where the origin of that came
from, so the use of the word seats is probably outdated. So
we're face with that industry has changed, first.
We've been trying to reconcile three metrics, or
maybe four metrics, or measures: the Fire Code occupancy,
the CUP approved seats, the elusive existing seats, and
then I would suggest a fourth one is what is the
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appropriate maximum number of customers that should be
allowed in a restaurant at a particular time? I obviously
did not use the word seats intentionally.
So we've been trying to reconcile those four
things, with two of them being elusive to us: the existing
number of seats, and what is the appropriate number of
maximum customers that the Town should allow The Town could
take the easy way out with the Fire Code occupancy, or
could choose to set something that's lower than that. We've
been trying to understand how that relates to the vitality
of the individual businesses that are trying to operate
food and beverages in this town, and they might argue to
take the Fire Code occupancy, because that allows them to
have a maximum number of people. I might say to them they
need to be sure there's adequate parking and that they
don't have traffic issues, and so simply using the Fire
Code occupancy might not be the best number for their
vitality —but that's an arguable question —but when we set
that maximum number, how that affects their business
vitality.
Then we're trying to balance that with traffic
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issues and with parking, and with the fact that in the
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downtown area right now we have a static amount of parking,
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and what the implication of allowing greater use, a greater
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number of customers, would have for other uses in the
downtown area. We're trying to figure out how would that
affect them?
It seemed like to me those are all of the things
that we're trying to figure out, and then we also have to
figure out how we set maximum number of customers and how
we set parking requirements; those are ultimately the two
things that need to be set. Is that reasonable? I tried to
figure out what all the variables are that are affecting
this, and then what ultimately we need to decide. I'm not
sure we can come to an answer. Until I can clearly
understand the question, I don't have a chance of figuring
out an answer. So is that a reasonable statement of the
problem?
MONICA RENN: I would say that's a reasonable
summary. The question I see is just do you have a
recommendation for decoupling? Maybe you don't say yes or
no, but I think that's really the question. I know that all
of these things play into it, but really what we need to
get to is a recommendation of a yes or no on the
decoupling.
CHAIR BADAME: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: Can I ask a question of
Joel? I don't remember what the parking requirement is for
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the North 40, but there's an awful lot of land out there,
and I'm sitting here thinking parking will not be as big a
problem in the North 40 built out as it is downtown right
now. Is that a wrong statement?
JOEL PAULSON: No, that is a fair statement.
COMMISSIONER O'DONNELL: Okay, so the worse the
parking gets downtown, the more the downtown hurts itself
vis-a-vis the North 40, and everybody is worried about the
North 40. The way you solve that problem is to make parking
intolerable down here, so everybody wants to go to the
North 40.
I guess I just throw that in, because one of the
things we have to take into consideration is we are not
living in a vacuum. We have the North 40, and I don't care
what you do with the parking here, the consumer is going to
go where they can park. They don't care whether you're full
in your restaurant or not, they're not going to go to your
restaurant if they can't park, so I just want to throw that
in. The consumer is not represented here this evening, and
that's part of our job that it is.
I've listened to Staff, and Staff says
decoupling, but then you try to figure out what that means
and where you're going to go, and I haven't heard one
credible answer. We have clarity, and that is if you want
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to go to the Fire Code, and we've already heard that
apparently somebody is in violation of the Fire Code as we
sit here, which I find somewhat frightening.
I think the Fire Code is crazy for the Town to
use in trying to decide parking. It doesn't make any sense
to me at all. But as I sit here also, and I say I think
Staff is wrestling with a real problem and I don't think
you folks have said we've got the answer. And that's fine;
Staff doesn't have to have the answer. But on the other
hand, we don't have the facts. Nobody has the facts, and we
can simply deal with the numbers we have before us, but
then I'm told well no matter what you do, somebody is
already in violation of it, or will be in violation of it.
I go back to what Vice Chair Kane said
originally. It isn't so much of if it ain't broke, don't
fix it, it's if you don't understand it, it's like the
first thing, physician, do no harm, and I don't know if we
make it better by doing something if we don't understand
it.
ROBERT SCHULTZ: I'm going to go back to my
scenario, because I think it really does separate it, and
because it seems the whole discussion is the current
businesses, whether they're in violation and how many seats
they have and don't. Go back to the situation. When it
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comes in front of you right now, the business, and you see
the plans in front of you, the game is on by them. They
show you where the restaurant is, they show you where the
seats are, and they match up the seats to the amount of
parking and you know it, you've seen it. They show the
tables 10' apart from themselves, and show three tables and
go this is our seating arrangement.
So, that model does not work in any town and
city. You can say Campbell is working. It's not. They're
not seating their seating requirements, because it's
happening. The developers and the applicants know that, and
so we can enforce it and go one -by -one. In my opinion,
they'd probably go, "I'11 take the hundred dollar fine by
having the extra seats in here. Come fine me the hundred
dollars, and maybe you won't catch me that night and maybe
you will," so it's just a game they'll play.
By decoupling the seats to the parking and
instead putting it in the square footage, that allows that
calculation when it comes to you. Don't look at the past
ones. A new one comes to you, you know exactly how much
parking they have to do, and you're done with it. You're
done with the assignment of the parking.
Now, the next question is what's that magic
number for the square footage? I don't know that. I do
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respect the comment that said certainly restaurant has to
be higher than retail. I think we all say restaurants use
more parking than retail, and that's the magic number you
can look at. Maybe you don't have enough information for
that, but that's I think the situation we're trying to fix:
the model that currently works. Time and time again
applicants come in —I can name ten of them in the last two
years —where when you look at where their seating is going
to be, you can just say that that's not going to be what
turns out. That's what we're trying to eliminate.
COMMISSIONER O'DONNELL: Let me just respond by
simply saying that we're going to take the rule as it is,
and if people have more seats than they should, we're going
to ignore that. And then we say, but going forward we're
going to have an easier role. We're not going to go figure
out how these people back there will be 98% of all the
restaurants in town for the foreseeable future, but the 2%
coming in, we're going to have a very simple formula and
they can all figure it out, and then we're not going to
enforce it.
What we've got now is a situation where it's
everybody does their own thing. They ignore whatever the
heck we did, and they know what's best for them to make a
dollar, except they come here and tell us because of our
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restrictions they're having trouble making that dollar.
That's the whole thing I find very, very confusing, and
that's why I say I have not yet heard a good solution to a
problem which I think one speaker said is almost
restaurant -specific. When we look at your numbers, it's
clearly restaurant -specific.
So yeah, we could decouple it and we could come
up with a number, whatever that number is, forty square
feet, whatever you want, but it apparently is only going to
apply prospectively, not retroactively. I don't know how
many restaurants we get a year, but you've got to believe
that 90% of all the restaurants we have are going to be 90%
of the restaurants we have for quite a while, so part of me
wants to wait and see what happens with the North 40,
because I haven't heard a good solution yet. We could pick
a number. We could put a dartboard up there and put square
footage down and hit a number. I don't understand how that
makes it better.
CHAIR BADAME: Thank you, Commissioner O'Donnell.
I'd also like to wait for the parking garage that we hope
comes to North Santa Cruz Avenue. But along with the
comment I just made, I know Vice Chair Kane, followed by
Commissioner Hudes, had their hands up, and then
Commissioner Erekson, so in that order. Vice Chair Kane.
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VICE CHAIR KANE: The Town Attorney underscored a
salient point that I think, gentlemen, we need to keep
sight of. Fellas, Commissioners.
COMMISSIONER O'DONNELL: We're hanging on your
words.
VICE CHAIR KANE: This applies only for the
future, as Commissioner O'Donnell just said, so if we put
something restrictive, and actually enforce it, then
restaurants may not want to come in, and that would
preserve spaces for retail. So that might be the retail
side of the argument.
But it is only going forward. It doesn't at all
address what's going to be red circled or grandfathered,
which is 100% of what we have right now. I'm as confused as
Commissioner O'Donnell and on a number of points.
Cynically, it doesn't matter what we come up with if folks
don't comply with it. It doesn't matter how many stalls you
have in the barn if the horses don't have to come in. I
think Yogi Berra said that, or if he didn't, he should
have.
That may not be before us, but Counselor, isn't
that the issue? This applies to new stuff, not to the 1000
of the stuff we have, which is allegedly way out of
compliance.
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ROBERT SCHULTZ: That's correct.
VICE CHAIR KANE: And Mr. Arzie says if you do do
this, you've got to remember there are, his word was
"cheaters," and what he was saying by that is the people
who do comply are getting hurt, and the people who don't
comply are having more fun. To me, maybe that's not what
Town Council asked for or what you're talking about
tonight, Ms. Renn, but I just think that's the most
important point before us. Are we hypocritically coming up
with news laws, and the old laws aren't complied with? And
why should we think the new laws are going to be complied
with?
14 ROBERT SCHULTZ: Because the parking is assessed
15 at the time of your application by a square footage, and so
16 there's a calculation made and that's how many parking
17 spaces you have. Then you're regulated elsewhere by the
18 number of seats. If you look at the examples in Palo Alto
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and other areas, they don't count seats. You figure out the
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calculation per square footage, and you can be more
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restrictive than we already are.
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There are two issues. There's one for economic
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development and vitality and all those things to make
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business prosper, but I'm looking at it more from a legal
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and a code enforcement standpoint, and doing seats per
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parking is an antiquated, out of date, way to establish
your parking requirements.
VICE CHAIR KANE: That was going to be my
comment. I think I heard you earlier say the CUP
methodology that we have right now is grossly out of date,
and we ought to come up with some sort of a square figure
number. Which one?
CHAIR BADAME: That's the dilemma. That's the
conversation.
ROBERT SCHULTZ: We currently have 300 square
feet for retail, so certainly in my mind it has to be below
that number.
VICE CHAIR KANE: And what about restaurants?
ROBERT SCHULTZ: That's what I mean; that's for
restaurants. It has to be below the square footage for
retail.
VICE CHAIR KANE: So 200?
ROBERT SCHULTZ: It could be 200, it could be
100, or it could be 50, whatever. I don't know that answer;
I really don't.
CHAIR BADAME: All right. Commissioner Hudes.
COMMISSIONER HUDES: Conceptually, when I think
about this and my responsibilities as a Planning
Commissioner and looking at land use, I think there are
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some things we need to balance, and I think we need to
balance the vitality of the downtown. Not looking in the
rearview mirror, but looking ahead toward significant
development in the North 40 that is going to threaten the
viability of downtown.
I think within downtown we also have to look at
the balance between retail and restaurants, and I think
that the best we could do is no harm, meaning let's not
disturb the existing situation so that we end up with a lot
of restaurants driving out retail, or vise -versa.
When I look at this I think there is a lot of
value in providing a more objective standard that we have a
chance of enforcement going forward that allows the
downtown to thrive. Now, the issue is we're trying to come
up with a number without the data that I would love to
have, but we have to I think put a stake in the ground
without that.
Conceptually, where I am is that I think it makes
sense to decouple. I think it makes sense to start with a
number like one space per 150 square feet, and I know other
communities that we looked at are at one space per 100
square foot on average, but I think that we don't want to
constrain our downtown at this time when there is this
possibility of threat from the North 40. So for me, I'm
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thinking 150 maybe, and certainly not 100, maybe 120; but
I'm thinking about 150.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: You said 150 on restaurants,
300 on retail, is that what you said?
COMMISSIONER HUDES: Only talking about
restaurant on the 150.
VICE CHAIR KANE: Well, what would you do with
retail?
COMMISSIONER HUDES: I think I would leave it at
the 300.
VICE CHAIR KANE: I just wanted to clarify those
two numbers, because I want to ask you, are you prepared to
make a motion?
COMMISSIONER HUDES: I'd like to hear from
Commissioner Erekson, because I know he wanted to weigh in
on it as well.
CHAIR BADAME: Commissioner Erekson.
COMMISSIONER EREKSON: I'd like to introduce a
motion for the Commission. I would move that the Commission
make a recommendation to the Town Council to amend the code
that we've been talking to unlink seating from the parking
requirements for restaurants; and that the Commission
continue this item to a future Planning Commission meeting;
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15 CHAIR BADAME: Do we have a second? Seeing none,
16 the motion fails.
and ask the staff to provide us a specific recommendation
for the metric that should be used to set the maximum
number of customers that a restaurant would have in town,
and what standards the Town should use for calculating
parking requirements for —I guess I would generalize —food
and beverage establishments in town; and that the staff
when preparing those recommendations for our consideration
would take into consideration everything they've heard and
give us their best professional analysis of the situation,
and they gather whatever information they need to make a
professional recommendation to us; so that we can be
informed by their analysis and everything that we've
discussed.
17 I have a quick question for staff before
18 Commissioner O'Donnell speaks. Would it be
p possible for
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staff to even provide these studies that Commissioner
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Erekson was referring to?
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JOEL PAULSON: Well, if by studies you mean going
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out and counting restaurants for some of those, potentially
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parking, what basis we would have for parking for
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restaurants and some of the other metrics for how many
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customers they would be allowed, some of those things, I
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think customers goes to occupancy. So that would be, again,
a similar starting point for seats based on parking, that
the one for 15, that's the maximum customers that can
safely be in there pursuant to Fire Code.
We can definitely come back with some stronger
recommendations on these various items. I think our initial
recommendation was to use the Fire Code for seats.
Obviously there were some conversations about changing the
parking requirement for restaurants, which Commissioner
Hudes was speaking to, making that stricter than the
retail, which makes sense, and that it's what metric we use
for the seats, and so coming back with some additional
information is possible.
I think just from a clarification standpoint, if
it had gone forward with a second and then to a vote, it
was recommending that it be decoupled, but it sounded like
there was still work to be done before we could send that
to Council, which is fine, and so that would be going to a
date certain.
CHAIR BADAME: Okay, thank you. I'm looking to
Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I really have two
questions.
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One, when I heard the Town Council talk, one of
the things they talked about was when people come in and
they want to put a restaurant in, and they have to pay a
parking fee, and the parking fee is set based upon whatever
the ordinance tells us it is. Now, does that only apply to
downtown?
JOEL PAULSON: I think you mean the traffic
impact fees?
COMMISSIONER O'DONNELL: I don't know, I was
responding to what he was saying.
ROBERT SCHULTZ: That's a whole nother...
COMMISSIONER O'DONNELL: So it's just a traffic
fee?
ROBERT SCHULTZ: Yeah. That's a whole nother
discussion, and that's where this parking per seat comes
in. It can still happen with square footage, but at least
you have a defined amount. What happens is they know how
many parking spaces they have; it's grandfathered in in the
downtown. Then they realize how many seats they can have,
so then they don't have a bar under your scenario to show
they're meeting the seating, and then they put the seats in
afterwards.
If it's done by square footage, it's done, and
they're either going to be able to make that square footage
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and have the parking, or they're not going to be able to
have it and can't do it. In those scenarios, most
jurisdictions then have what's called parking in lieu. We
had the Assessment District where you could buy the parking
to put in, and the goal is that money is to be used for
providing parking, and that doesn't always happen. But
usually you can just do a parking in lieu fee, what many
jurisdictions have, but we don't have that
COMMISSIONER O'DONNELL: But the traffic fee you
also now just talked about only occurs if in fact a study,
I guess, shows an impact, or just in general?
JOEL PAULSON: It occurs whenever there's a
change of use that has a higher traffic generation rate.
For instance, if an applicant came in and wanted to
increase their seats —they had the parking, met all of our
codes —above and beyond what they were originally approved
for, then they would pay a traffic impact fee based on
those number of seats and that traffic that would be
generated by that.
COMMISSIONER O'DONNELL: But with square footage
that's never going to change, I mean unless they change the
building, so whatever the square footage is, they're going
to pay... Well, I don't know what they're going to pay on a
traffic study.
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JOEL PAULSON: There are two metrics that can be
looked at for traffic, and that's trips per seat, and trips
per thousand square feet of gross floor area. After talking
further with the traffic engineer after our last meeting,
most of the time he uses the seats, so the approved seats
is really what the traffic fee gets based on, and so that's
where there is an opportunity if someone came in, for
instance, and asked for additional seats. They would have
to pay to delta from what was previously approved and
occupied...
12 COMMISSIONER O'DONNELL: But when the new person
13 comes in, the only thing they tell you is how many square
14 feet they're going to have and there's going to be a
15 restaurant, and you don't really care how many seats
16 they're going to have under that scenario. How do you set
17 the fee?
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JOEL PAULSON: Depending on where you go, you
have two things. I'll try not to be confusing with a lot of
different conversations going on, but you have how much
parking should be required for the square footage of the
tenant space. Staff's proposal was to use the same one as
retail, which is one per 300 square feet. That would
generate your parking requirement.
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There are other metrics that could be used. The
one per 150, one per 100, one per 200, so there we have the
parking. So then if we decoupled the seats for parking and
said, let's just use 40 for instance, just for discussion
purposes, one per 40 square feet, we would take the dining
area of that proposed restaurant, divide it by 40, and that
would tell you how many seats you could have. Those seats
would be multiplied by the average daily trip rate, and
then that's how the fee would be derived for a traffic
impact fee. You still would be getting a seat count that
would just be based on that one per 40, or one per whatever
number, 24 or 15.
COMMISSIONER O'DONNELL: Even though we've said
maybe there won't be any seats, maybe the people are going
to be standing? That's one of the things we were very
concerned about. So now to set the fee we're going to
pretend like there are seats, is that it?
ROBERT SCHULTZ: Or another subsequent would be
to change the traffic fee based on that 1,000 per square
feet.
JOEL PAULSON: Hypothetical: Someone comes in
with a restaurant, no seats, zero seats. We would use the
1,000 square foot gross traffic generation rate to
calculate that fee.
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COMMISSIONER O'DONNELL: I had one other
question, and that was earlier on this evening I thought I
heard you to say if you used 1,000 square feet for a
restaurant that would be more stringent than what we
presently do, is that correct?
JOEL PAULSON: That's correct. The one per 40
square feet for the dining area is more restrictive than
what we currently have. The higher number you do, the more
restrictive it is.
COMMISSIONER O'DONNELL: Retail was one per 300?
JOEL PAULSON: In downtown, correct.
13 COMMISSIONER O'DONNELL: So if we were to use one
14 for 200, for example, it would be considerably more
15 restrictive than we presently have, and that certainly
16 shouldn't make the folks that are pushing this happy.
17 JOEL PAULSON: That's correct.
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COMMISSIONER O'DONNELL: It's for new the people.
JOEL PAULSON: It is for the new people.
COMMISSIONER O'DONNELL: Even the people that
aren't going to be impacted, arguably. We've heard from
some representatives of the downtown restaurants this
evening, and one of the arguments is we should use the Fire
Code. Well, that's a lot less than 100 square feet, and so
if our solution to this problem is to say 200 square feet,
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I'm not sure what we've accomplished. If somebody wants to
say 40 square feet, at least you're less restrictive than
you are now. Some of these people are not in compliance
with the 40 square feet, is that right?
JOEL PAULSON: Currently the 40 square feet, the
list of the ten samples, they all comply with 40. The
highest is 37.33, so that's why I tried to explain before,
from an impact perspective, just seats to square footage,
the higher the square footage per seat the more restrictive
it gets, and even one seat per 40 square feet is more
restrictive than we currently have.
COMMISSIONER O'DONNELL: And the Fire Code was 15
square feet?
JOEL PAULSON: Correct.
COMMISSIONER O'DONNELL: Okay, thank you very
much.
CHAIR BADAME: Commissioner Hudes.
COMMISSIONER HUDES: Just to clarify, Joel, in
terms of the way that you are framing this, there are
really two numbers. The first number is the number of
spaces per square feet in the restaurant.
JOEL PAULSON: For parking.
COMMISSIONER HUDES: For parking. One parking
space per square feet.
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JOEL PAULSON: Correct.
COMMISSIONER HUDES: The second number is the
number of seats per square feet in the dining area.
JOEL PAULSON: Correct.
COMMISSIONER HUDES: I appreciate Commissioner
Erekson's explanation. Does that change anything where he
described maximum number of guests versus seats? Do you
have a preference between those two?
JOEL PAULSON: Frankly, I don't know of any
jurisdictions that use maximum number of customers in that
instance, but that doesn't mean that we can't look into
that and see if there are others. I think for me it gets to
the bottom line of the maximum is one per 15 square feet,
because that's the maximum people, whether they're sitting
or standing, that could occupy that space in the dining
area or bar or eating establishment.
COMMISSIONER HUDES: In my mind, if we move to
decoupling we need to address both of those sets of
numbers.
JOEL PAULSON: Correct.
COMMISSIONER HUDES: Okay, thank you.
CHAIR BADAME: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: Assuming for the moment
that we're ultimately going to come up with a motion, and
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I'm not sure that's the case, it sounds to me like if one
wanted to address the concerns of what I'll call the
restaurant —industry is too big of a word —but industry group
here in town, you've got to be like 40 square feet or less,
otherwise why are we going through this exercise? And I'm
not saying we should go through this exercise, but if we
were to try to address the problem, we'd say 40 square feet
or less. And then to address retail, of course, I guess
that addresses retail too. If you're talking about square
footage, how does that apply to retail?
JOEL PAULSON: We are proposing that retail stay
the same. For downtown it's one per 300 square feet;
outside downtown it's one per 235 square feet. Staff's
initial recommendation was that parking be based on the
same retail component, which is the one per 300 for retail
as well as restaurants, and so it would have no change
there. As you start lowing it, then yes, it's more
restrictive than we currently have from the parking
perspective.
COMMISSIONER O'DONNELL: And the final comment
was since we arguably are not in compliance in many
instances —and I'm not making a moral judgment on that, we
just aren't —I don't see any point in simply memorializing a
more stringent standard when in fact people are not in
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compliance with the lesser. I guess they're all arguably in
compliance with the 40 square feet or thereabouts. So if we
were to say we're going to be the good guys and make it 100
square feet, we're merely raising the number of people who
are not in compliance, and I don't know how that helps
anybody. Okay, thank you.
CHAIR BADAME: Commissioner Hudes.
COMMISSIONER HUDES: I'm going to venture a
motion to decouple, to require one parking space per 150
square feet for restaurants, to leave retail as is —so there
are two different numbers in different areas; I don't think
we need to address that —and to require that the maximum
seats are one per 22 square feet of dining area. In no case
said seating should not exceed the Fire Code. Do I need to
make further findings with that motion?
CHAIR BADAME: I'm sorry; can you repeat your
question?
JOEL PAULSON: (Inaudible) recommended in the
plan.
COMMISSIONER HUDES: Okay, thank you.
CHAIR BADAME: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I'd kind of like to have
that motion either read back or restated. It's a mouthful
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for me, and if we're going to vote on it, I'd like to
understand it a little better. So which would be easier?
COMMISSIONER HUDES: I'd love to hear Joel read
it back.
JOEL PAULSON: Sure. The motion was to recommend
decoupling parking from seats, require that the parking
requirement for restaurants be one space per every 150
square feet of gross floor area, and that the maximum
number of seats for the restaurant will be determined based
on one seat per every 22 square feet of dining area.
COMMISSIONER O'DONNELL: I don't follow that I
guess is my biggest problem, so I don't understand the two
numbers then. Could you help me?
COMMISSIONER HUDES: Sure. I think when you get
to decoupling, then you have to actually provide both
numbers.
The first number is the number of parking spaces
required for a certain square footage, and that relates
back to the traffic assessment.
The second is the number of seats per square
footage of dining area, and where staff has recommended
going with Fire Code, which is one per 15. They've also put
a column in the chart of one per 40, which are pretty far
apart. I think the number more appropriate is closer to
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what I think the average is for the actual approved seats,
and I ran the numbers on that, and the average on that is
about 22 to 24, so I chose arbitrarily 22.
COMMISSIONER O'DONNELL: So the first
calculation, you take the square footage and you say based
on that square footage so much parking is required?
COMMISSIONER HUDES: Yes.
COMMISSIONER O'DONNELL: And the second number
you use you say so many seats are allowed, notwithstanding
we may not have any seats?
COMMISSIONER HUDES: Yes.
13 COMMISSIONER O'DONNELL: So it doesn't speak to
14 the issue of what if we don't have any seats?
15 COMMISSIONER HUDES: It doesn't.
16 COMMISSIONER O'DONNELL: So that would by default
17 go to the Fire Code?
18 COMMISSIONER HUDES: Yes. I also included in my
19
motion that in no case should the Fire Code be exceeded.
20
CHAIR BADAME: Do we have a second? Vice Chair
21
Kane.
22
VICE CHAIR KANE: I'll second that.
23
CHAIR BADAME: All right, discussion. I will not
24
be supporting that motion. I'm looking to the Planning
25
Commission Staff Report dated March 16, on page two at the
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lower portion of the page, concerning traffic impacts, and
it appears that that ratio will create additional traffic
impacts.
VICE CHAIR KANE: To the Chair, what ratio, the
40?
CHAIR BADAME: The Staff Report says 40.
VICE CHAIR KANE: Then the maker of the motion,
can we amend that to 40?
COMMISSIONER HUDES: The issue is that if we went
with 40 the approved seats would be very, very different
from what we would allow in the future. I looked at the
number, and again I came up with the difference between the
allowed seats at 40 and the approved seats, you can see
that. So it would be 26 as compared to 70 for one. The
number of seats allowed under the new measure would be
about half of what we've currently approved, based on my
reading of that, which is why I'm recommending a less
restrictive number.
I understand that there will be potential parking
issues, but I also think that some of that kind of
regulates itself. I also want to really protect the
downtown against the onslaught of restaurants and other
businesses in the North 40, and I think it will force the
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issue on providing additional parking to level the playing
field between the North 40 and the downtown if we do that.
COMMISSIONER O'DONNELL: Could we hear from Staff
on the point you raised from that report?
CHAIR BADAME: Certainly.
JOEL PAULSON: Thank you, I was going to offer to
step in. When Staff looked at the per seat trip generation
versus the trip generation for 1,000 square feet, we ran a
calculation that said how many of the per seat traffic does
it take to reach the per 1,000 square feet, and then divide
that by a number of seats, and then you end up with the
number, the highest of which, the most conservative of
which, was almost 40.
Any additional seats —and I know we've had this
conversation before —could potentially add traffic. The
question is when they come in they'll be paying for what
those seats are, so they'll be paying a higher traffic
impact fee. The question is, is it a significant impact or
not? No traffic impact is one per 40, because those equal
whether you're using per seat or per 1,000 square feet.
But there is the opportunity for a per seat
number to be used less than that, they would just have to
pay that traffic fee; it doesn't trigger a significant
impact. The significant impact triggers, and you see this
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in your Mitigated Negative Declarations and your EIRs, they
do a traffic study, it generates thousands of trips, and
we've got to do these mitigations. These mitigations either
meet all of those and make them less than significant, so
they're still not significant impacts but they're still
impacts, or there is a point where you just pay traffic
fees, and so you've mitigated that impact.
COMMISSIONER O'DONNELL: If we set the number too
low, are we triggering an obligation on our own part to
satisfy CEQA? We're recommending, we're not adopting, but
if we were to recommend the adoption of an ordinance that
in and of itself might have a significant adverse impact on
the environment, then we would trigger CEQA.
JOEL PAULSON: I would recommend that if this
motion goes forward and passes, that the direction for
Staff would be to clarify that prior to Council taking
action, and so we'd make sure that that is clarified.
CHAIR BADAME: All right, so we have a motion and
a second. Is there further discussion? Commissioner
Erekson.
COMMISSIONER EREKSON: I'm trying to be sure I
understand where the 22 came from. It was the arithmetic
average of the sample that we were given, is that right?
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COMMISSIONER HUDES: Yeah, it was the equivalent
to the approved seats of the ten businesses that were
sampled. So if you looked at the ratio of approved seats
per square footage, it came out to 22.
JOEL PAULSON: That is the next to last column in
Attachment 7. The square feet per seat in dining area, the
average of that is 22.
COMMISSIONER EREKSON: So we use an average of a
non-random sample, is that correct?
JOEL PAULSON: Yes.
COMMISSIONER EREKSON: That was a rhetorical
13 question.
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CHAIR BADAME: Commissioner Erekson.
COMMISSIONER EREKSON: I can't support a motion
16 which is generating a metric based a non-random sample.
17 Using a metric based on a non-random sample is as good as
18 pulling a number out of the air, so while it might be the
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right number, there's no evidence from public testimony,
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testimony of my Commissioners, or the Staff that would give
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me any confidence in that number.
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CHAIR BADAME: Commissioner O'Donnell.
23
COMMISSIONER O'DONNELL: Let me say this, I think
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that comment is well taken. On the other hand, I think the
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motion attempts to solve what I almost felt was an
unsolvable problem earlier, so it gives me some optimism.
Let's assume for the moment that the motion
doesn't pass, because for example if I don't go for it,
it's not going to pass; simply by counting, that's all, not
because of me. But it's possible we could take the motion
and ask Staff to deal with the motion, because the one
concern over here is the random aspect of it, but another
concern over here is a concrete example which is unrelated
to mathematics as such, but it still is to me a good
attempt to deal with the problem.
But I'm not going to support the motion as it is,
but I'm certainly not rejecting it out of hand. I'm
wondering, if it fails whether it would be... This is
really to Staff, to say could you be helpful in dealing
with the spirit of that motion and try to help us to adopt
something like that which would one, deal with the
randomness, and two, deal with the Chair's concern from the
prior report?
CHAIR BADAME: The maker of the motion has his
hand up.
COMMISSIONER HUDES: I have an idea. I'm not sure
of parliamentary procedure on it, but I would be more
comfortable if we didn't have all of these moving numbers,
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1 and so I would be more comfortable to have the motion not
2 be a recommendation to Council, but to be a working point
3 for Staff to use and come back to us to tell us with a
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little bit more certainty than we have now what the impacts
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will be, whether they will trigger CEQA, and whether it's a
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viable solution for the Town.
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ROBERT SCHULTZ: My suggestion would be this,
because Council does want to get this back, is if there is
agreement at least to the decoupling I would say then the
recommendation should be there's not enough information to
establish what that square footage would be and let that go
to Council. Let's see if there's a majority that even want...
They're going to have the same discussion you had, and they
might not want to do any of the decoupling either, and let
them decide whether they want to bring it back here or want
to use that square footage and not dwell too long on it.
COMMISSIONER O'DONNELL: The question I have is
whether we should adopt a motion that talks about
decoupling if we don't know what the result is. In other
words, I could not support a motion to decouple and say
okay, that's it; go decouple. I would like at least to have
a suggestion.
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ROBERT SCHULTZ: Then I think that should be the
motion. You don't have the ability to make a decision, and
move it on to Council.
JOEL PAULSON: Through the Chair, I'd offer one
other opportunity would be the 150 for the parking, and
then the... If you use the 40, we've established that that
clearly is going to be less seats than we allow now, so
you're not going to have a traffic impact, you're not going
to have a parking impact, you're not going to have a CEQA
impact. That that moves forward, but with the additional
direction that Staff provide Council some additional
information on if that number is lowered, when does it
trigger CEQA? When does it trigger these other impacts? So
whether or not there is actually support from three or more
of you for that kind of avenue, at least at the 40 there
are not the impacts that we've been discussing.
CHAIR BADAME: Thank you, Mr. Paulson. We do have
a motion and a second, so I think we need to carry through
with the vote before we proceed any further.
All in favor? Opposed. Fails. Commissioner Hudes,
Vice Chair Kane in favor. Commissioner Erekson,
Commissioner O'Donnell, Chair Badame opposed.
COMMISSIONER O'DONNELL: Could I ask one more
question of Staff?
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1 CHAIR BADAME: Commissioner O'Donnell.
2 COMMISSIONER O'DONNELL: Arguably the 40 feet
3 would not be violated by the numbers we have on our chart,
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is that right?
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JOEL PAULSON: Correct.
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COMMISSIONER O'DONNELL: Okay. I will attempt a
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motion, and I say it with great fear.
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VICE CHAIR KANE: I will not be supporting that
motion.
COMMISSIONER O'DONNELL: All right, then, I'll go
with courage. I would move that we recommend that it be
decoupled, and that 40 square feet be the number in place
of the number in our prior motion, but that the original
figure, and I think you used... What was the first figure?
COMMISSIONER HUDES: Twenty-two.
COMMISSIONER O'DONNELL: No, no, the first figure
in your motion.
COMMISSIONER HUDES: One space per 150 square
feet.
COMMISSIONER O'DONNELL: That number would remain
the same. So it's really his motion, simply altering the 22
feet to 40, which it will therefore not be dependent upon
any random sampling. I think that's the motion. I mean I
think that's complete.
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CHAIR BADAME: Do we have a second? Motion fails.
All right, would anybody like to try another motion?
VICE CHAIR KANE: To get that motion I'd look to
the Commissioners to say where did we think the fault in
that motion was? What do we want?
CHAIR BADAME: I think we're all having trouble
coming up with a number, and there are a lot variables in
even trying to come up with a number. We just simply don't
have enough information. Commissioner Hudes.
COMMISSIONER HUDES: I think that really is the
weakness, and so that's why I suggested that we provide
those numbers to Staff, for Staff to analyze those numbers
and come back to us, not to keep all of these variables
open, but to recommend decoupling, and recommend that Staff
come back to us to understand the impact of one space per
150 square feet for restaurants, and one seat per 22 square
feet in dining, and to see whether that triggers a CEQA
issue or not.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: Mr. Paulson, does that require
a motion, or can we continue it with that request?
JOEL PAULSON: It would be continuing to a date
certain with direction to Staff.
VICE CHAIR KANE: Does that take a motion?
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JOEL PAULSON: Yes.
CHAIR BADAME: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: Did I misunderstand?
We're having a somewhat special meeting. I had assumed that
was because the Council wanted to get this sooner than
later.
JOEL PAULSON: We were in the idea of getting a
recommendation, yes; that's why we had the special meeting.
But if the Commission doesn't feel comfortable, then the
item can be continued; we can gather additional
information.
COMMISSIONER O'DONNELL: My only point that I
would address to my fellow commissioners would be that I do
think it ought to go to the Council sooner than later,
because some of these questions we're wrestling with are
virtually unsolvable, at least with the information we now
have. But that's what I thought, since I thought
Commissioner Erekson's objection to the original motion was
the randomness of the sample, so by removing that
randomness of the sample I hoped to address his concern,
and by keeping really the guts of the motion, which was
supported by the seconder, Vice Chair Kane, I hoped to
satisfy him. Apparently I satisfied neither.
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But it does appear to me that assuming those were
the two objections, we ought to be able to come up with a
motion which would not do violence to our lack of
knowledge, because it would basically say we're using a
number that I think we can be comfortable with in the first
instance, whether it's 150 square feet or 200 square feet,
and on the 40 square feet, that is simply a number which is
not random, it is a number which would satisfy the existing
numbers on the chart, so that comes out of reality.
Now, if somebody can come up with... Obviously if
we can't come up with a motion, we can't come up with a
motion, but I throw that out, because I'd like to know what
is wrong with that proposal.
COMMISSIONER HUDES: My concern is that the
number 40 is too restrictive to the downtown, and we'll be
essentially locking down too much of a restriction on
downtown that is out of keeping with the data that we have
on the approved seats, at least these ten businesses, so it
would actually be just about twice as restrictive as the
reality of approved seats.
COMMISSIONER O'DONNELL: That's not what Mr.
Paulson said, if I understand it correctly.
JOEL PAULSON: That is correct. The 40 is more
restrictive, because the goal there is that has no impacts,
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and so once you get to the 40, and I think the second piece
2 potentially is to add direction that the Council should
3 consider maybe a lower number, but with the potential CEQA
4
impacts, the traffic impacts, the parking impacts in mind
we should make it either to Mr. Hudes' previous number,
below that number, or somewhere between.
CHAIR BADAME: Vice Chair Kane.
8
VICE CHAIR KANE: Commissioner O'Donnell, make
9
your motion again. You know, we're sending a recommendation
io
to Council, and they're going to read the transcript and/or
12 see the tape of what we've been struggling with. One would
13 hope they'll struggle with the same thing, and maybe they
14 can get better data. But our recommendation is the number
15 you used earlier, and to check the numbers out, to vet the
16 whole question.
17 COMMISSIONER O'DONNELL: I have another thought.
Maybe if we made the motion even more general, which is to
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say we recommend decoupling if the answer to these
s
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questions can be satisfied, and here we could use the two
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numbers you used. If, for example, the 150 square feet and
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the 40 square feet, it's just numbers that seem to satisfy...
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The 40, for example, may be too high, and we're saying that
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may be too high, but it is a number of them to consider,
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