Attachment 03LOS GATOS PLANNING COMMISSION 9/14/2016
Item #5, 140 S. Santa Cruz Avenue
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A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
Mary Badame, Chair
D. Michael Kane, Vice Chair
Kendra Burch
Melanie Hanssen
Matthew Hudes
Tom O’Donnell
Town Manager: Laurel Prevetti
Community Development
Director:
Joel Paulson
Town Attorney: Robert Schultz
Transcribed by: Vicki L. Blandin
(510) 337-1558
ATTACHMENT 3
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P R O C E E D I N G S:
CHAIR BADAME: Item 5, 140 South Santa Cruz
Avenue, D.B.A. location known as the Toll House Hotel,
Conditional Use Permit Application U-16-005, requesting a
modification to an existing Conditional Use Permit to allow
entertainment before 10:00pm on property zoned C-2:PD, APNs
510-45-064 and -065.
May I have a show of hands from Commissioners who
have visited the site? Any disclosures from Commissioners?
Ms. Zarnowitz, I understand you’ll be providing
us with the Staff Report this evening.
SALLY ZARNOWITZ: Thank you, Madam Chair, and we
have a communication that was not included with the last
addendum inadvertently, and that’s been passed out this
evening to you as I give you the Staff Report.
As background, in June of this year the Policy
Committee recommended and Council adopted the Late Night
Entertainment Policy to allow entertainment that complies
with the Noise Ordinance by right before 10:00pm, and the
policy only allows late night entertainment after 10:00pm
with the approval of a separate Late Night Entertainment
Permit.
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The application before you this evening is the
first of several anticipated requests to amend existing
CUPs to come into conformance with that adopted policy.
This site is located downtown on the west side of South
Santa Cruz Avenue, adjacent to both commercial and
residential uses.
The request of the Town Council is to modify the
1994 CUP for the restaurant use which includes outdoor
dining until 10:00pm on the patio and overlooks the hotel’s
central outdoor courtyard. The Applicant is requesting
removal of the condition of the CUP that prohibits music,
entertainment, or amplified sound on the courtyard, and
they’re asking for the addition of a condition stating that
entertainment before 10:00pm, in conformance with the Town
policy regulating late night entertainment, is allowed.
As described in the Applicant’s letter, the
request is being made in order to provide outdoor
entertainment, including music at a low volume and
amplified toasts consistent with the adopted Entertainment
Policy.
This evening Staff is recommending the Commission
consider the merits of the proposed modification and
forward its recommendations on this application to the Town
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Council. This concludes Staff’s report, and we’re here to
answer questions.
CHAIR BADAME: Thank you, Ms. Zarnowitz.
Questions? Commissioner O'Donnell.
COMMISSIONER O'DONNELL: This site has a fairly
long history, and I’ve been around perhaps through all of
it. I’ve heard the neighbors complain repeatedly for
noncompliance, and this then would be noncompliance, but I
guess what I’m wondering is they were objecting to at that
time the Applicant—not this Applicant, but the predecessor—
just ignored the use permit and was having outdoor
entertainment, music, et cetera, and that bothered the
neighbors. Is there any reason to believe that because of
this change in the law by the Council that that’s going to
affect the sound so that the neighbors will not continue to
be bothered? I’m confused how the change of the law is
somehow going to change the nuisance value of the sound.
JOEL PAULSON: I think that’s yet to be
determined, depending on the outcome of this process
through the Planning Commission and ultimately the Council.
If they’re allowed to do outdoor entertainment where
they’re currently not allowed to do that, there will be an
impact, but they will be required, as is required by the
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policy, to meet the Noise Ordinance, so there could be
audible noise that would be heard by the neighbors.
COMMISSIONER O'DONNELL: Staff made a
recommendation, so I assume that you believe that were they
to have this entertainment it either is not going to bother
the neighbors, or they simply comply with the Noise
Ordinance, which I think kicks in at what, 10:00pm?
JOEL PAULSON: The Noise Ordinance is actually 24
hours a day; there are different noise levels.
COMMISSIONER O'DONNELL: Right, but a
significant, I think, kicks in, doesn’t it?
JOEL PAULSON: Correct, it significantly lowers
at 10:00pm.
COMMISSIONER O'DONNELL: So do you have some
belief that if they comply with the 10:00 o’clock
ordinance, but it’s 7:00 o’clock, they don’t have to comply
with it? I guess I’m just wondering what is the basis of
the recommendation that we should go ahead and approve
this?
JOEL PAULSON: The basis is the adopted policy by
the Town Council to allow this by right.
COMMISSIONER O'DONNELL: Thank you.
CHAIR BADAME: Commissioner Hanssen.
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COMMISSIONER HANSSEN: I think one of the key
issues here is this particular property abuts a
neighborhood directly, and it’s not even a house that
separates them, you know, one of the neighbors. Do we have
other restaurants that have this close a proximity that are
eligible for the live entertainment, or have implemented it
successfully without annoying the neighbors?
JOEL PAULSON: Given that the policy was just
adopted in June we don’t have a whole lot of history there.
We also have this evening Monica Renn who may have some
additional input; she’s our Economic Vitality Manager. But
obviously we have commercial business adjacent to
residential throughout town. Any commercial business
currently can have entertainment up until 10:00pm and does
not require any permits, so any of the other adjacent
tenants to this space could have entertainment as long as
they comply with the Noise Ordinance based on the Town’s
policy.
CHAIR BADAME: Mr. Paulson, can you just clarify
the Entertainment Policy, that there is no restriction on
the number of entertainers, so you could have a solo
harpist, a 50-member orchestra, or a ten-member rap group?
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JOEL PAULSON: Technically, yes. Some of those
may be challenged by the Noise Ordinance limits, but
technically that could be possible.
CHAIR BADAME: Thank you. Commissioner O'Donnell
followed by Commissioner Hanssen.
COMMISSIONER O'DONNELL: Just another question,
because I’m just thinking out loud with you. The only music
that I can think of that might be loud in that area is
Number One Broadway, and that’s, I think, all indoors,
however it’s generously applied. So do you get complaints
from the neighbors about the music from Number One
Broadway?
JOEL PAULSON: We did not request that
information from the Police Department, but we can
definitely obtain that information.
COMMISSIONER O'DONNELL: I’m just curious,
because that’s indoors, and if there were complaints, that
would be helpful to know. But if you don’t know, that’s
okay,
JOEL PAULSON: We don’t know. I image there are a
number of neighbors here to speak, and so they’ll
definitely add into it, and then Ms. Zarnowitz may have
some additional information.
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CHAIR BADAME: Ms. Zarnowitz, go ahead and answer
that, and then we’ll have Commissioner Hanssen ask her
question.
SALLY ZARNOWITZ: Yeah, and Monica Renn may speak
to it also, but the last two years of police records, the
police look at a general area, and there’s only one case
where there was a complaint in the general area. When that
was investigated there was no identification of the source,
and so of course Number One Broadway is right next door and
is in the general area anyway.
CHAIR BADAME: Commissioner Hanssen.
COMMISSIONER HANSSEN: Just taking the example
that you guys gave not even two minutes ago, like for
example, Willow Street Pizza, which is a little bit down
the street and not directly in front of a residence, but if
they decided on their outdoor patio to bring in a live
band, they can do that up until 10:00 o’clock.
JOEL PAULSON: Unfortunately, I don’t have their
CUP in front of me. Just to back up a little bit, there are
generally three categories that businesses will fall into.
There are businesses that don’t require a CUP, so they can
do outdoor entertainment up until 10:00pm. On the CUP
front, generally there are Conditional Use Permits that are
silent, which they don’t say it’s allowed or not allowed,
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and so they would comply with the policy. There are a
couple that do allow for entertainment, and some of those
also require them to comply with any adopted policy, and
there are ones such as this is the case, where it is not
permitted, and so those ones where it’s not permitted, they
have to come back through this process to look to the
Planning Commission, and ultimately in this case, as to
whether or not their request is appropriate.
COMMISSIONER HANSSEN: The reason I asked is
because the Applicant themselves said that they’re at a
competitive disadvantage, so I was just trying to validate
that.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: Somebody wrote that this went
up in 1962, or in the sixties at some point, that they
began building the hotel. It was later expanded, and I
wrote down somewhere it was 47 years ago, or whatever the
right number was. Things change over 47 years, and
certainly what’s changed in June of this year is a new
policy which we’ve been asking for for some time regarding
entertainment, because various restaurants want to…
Well, I’m going to ask you the question without
answering it, to the Director of Economic Vitality. What is
the purpose of the new ordinance? What’s changed?
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MONICA RENN: I believe the intent in working
with the Policy Committee and then with the Council on this
is that you’re correct.
One is we’ve been waiting for a long time to have
an Entertainment Policy; several people’s Conditional Use
Permits do say that they must comply with the one that’s in
process; it was in process for quite some time.
Second, it became obvious that when it was
intertwined with the Alcohol Policy it had just so many
issues and became so complicated that the Policy Committee
recommended separating the two, kind of taking the
entertainment as a low hanging fruit, bringing it to the
Council and seeing if we could get a policy established for
the entertainment to allow for that, and given that it’s in
compliance with the Noise Ordinance and the Town Code
already, hypothetically somebody could have that ambient
noise or have patrons at their business making the same
level of noise and be in compliance.
CHAIR BADAME: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: Again, I’m just trying
to remember some of these events we’ve had. For a period of
time Old Town was trying to get some permission to
entertain outdoors, and as you recall they have a recessed
area in the back, and I can’t remember what we did about
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that, but I do remember that the neighbors there were
concerned. I’ve never seen them have outdoor entertainment,
very frankly, and I live on the other side of the freeway;
I’d probably hear it. So what do we do with that one?
JOEL PAULSON: Let me see if as you’re going
through deliberations I can pull the CUP up on my phone, or
otherwise I will track that down.
COMMISSIONER O'DONNELL: Yeah, that would be
fine. If you can’t find it tonight, I’m not trying to put
you on the spot.
CHAIR BADAME: All right, I do have a question
for Staff, and that has to do with Exhibit 4. When I look
at the Conditional Use Permit that restricts the music in
the courtyard it says the permit is issued to the Toll
House Hotel restaurant, so we’re looking at a courtyard and
there may be different entities within this Planned
Development. You’ve got the VERGE restaurant, you’re got
the Toll House Hotel, and I’m not sure if they have a
restaurant within the hotel that’s separate from the VERGE
restaurant, so who does the courtyard belong to?
SALLY ZARNOWITZ: I think the Applicant can speak
to that as well. Technically, the courtyard belongs to the
hotel, but the CUP references the courtyard, so even though
the CUP pertains to the restaurant, it does reference the
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courtyard. That’s part of what I believe the request is, to
clarify that this evening.
CHAIR BADAME: Thank you. Any further questions
for Staff? Seeing none, I will open the public testimony
portion of the public hearing and invite the Applicant and
their team to address the Commission for up to ten minutes,
and if you’ve not filled out a speaker card, if you could
please do so. I’m not sure I identified one in here. I’m
sorry? Oh, yes, here it is.
JIM GERNEY: Good evening, my name is Jim Gerney;
I’m the vice president and general manager (inaudible). I
work for an investment group called MetWest Terra. We
purchased the hotel in early 2012. Shortly after purchasing
the hotel we realized that the entertainment that we were
doing on the courtyard was being challenged, and we went
back and looked at it, and really (inaudible) in the due
diligence of the purchase we were not brought up to speed
on the Conditional Use Permit.
Once we became aware of the Conditional Use
Permit, we immediately ceased and desisted. I have been at
the hotel for four years and I am aware of one incident
that happened at a wedding that was on the courtyard where
“Elvis” showed up and we had to kick him out, but it was
unannounced and unapproved by us.
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I believe that understanding the relationship
between our neighbors and our business has been pretty
paramount for us. We run businesses and we actually want
our neighbors… And a great opportunity is Thanksgiving. We
have a lot of our neighbors bring their families and stay
in our hotels, and they come to our restaurant for Easter,
Mother’s Day, and Thanksgiving brunches where we do 300-500
people on a stint, and a lot of those are local, so our
relationship with the neighborhood has been pretty
important to us.
I feel very confident, Mr. O'Donnell, that we
have a history. Yeah, not mine. I’m kind of proud of the
fact that our history stopped with conflict with our
neighborhood immediately upon our becoming aware of the
Conditional Use Permit. We have never touched it; we have
never challenged it. We have about 30 weddings a year
outside. We do not allow those wedding to do any type of
amplified activity, and that really hurts our business.
We really kind of crossed the road on June 21st.
June 21st, Palacio is doing music right in the back yard of
homes right there on the street next to them, and you know
what? We look at that and we’re like why can’t we be like
them? We have a similar restaurant; we have an outdoor
space. They’re not being offensive. It was a nice Spanish
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type of… It was nice music. I went out myself; I enjoyed
it.
I think that you’re absolutely right, the risk of
understanding what this new ordinance does, it has to be
looked at pretty closely, but there’s a Noise Ordinance
that supersedes it. We have never once in my four years
I’ve been there been challenged once on the Noise
Ordinance. We have never once received conflict with
anybody since I’ve been there on any of the issues involved
with the Conditional Use Permit. I understand the history
goes before my time and before my staff’s time, but I think
we’ve done a pretty good job.
One of the things is since this thing started
we’ve begun community outreach. We’ve got an open house on
October 6th to talk about the $2-3 million we’ve already
spent, as well as the $2 million that we’re going to
continue spending on our meeting space to really enhance
our product that the community may or may not want to use.
I think that the message that we’ve been trying
to send is that, you know what, there’s people here that
are going say hey, 2011 was terrible. I get it, but I
wasn’t here in 2011. I don’t think that holding me
accountable for something in 2011 that was a violation of
an ordinance that is no longer a violation of an ordinance
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needs to be looked at a little differently. You know what?
My petition really here tonight to the Planning Commission
is that you do stick with your approval recommendation and
that we move forward. I mean, we’ve got to continue our
community outreach, we’ve got to continue talking about
what we… Recommendation yesterday was that we do decibel
tests, and that we really look at some alternative ways to
make sure we’re communicating effectively what we’re doing,
and I’m willing to look at anything.
But to be at a competitive disadvantage based
upon an ordinance that exists today is really my obligation
to challenge. I mean, I think I should be given a fair
shake.
CHAIR BADAME: Thank you, Mr. Gerney, for your
presentation. Do Commissioners have questions? Commissioner
Hudes.
COMMISSIONER HUDES: Thank you. I wanted to
understand a little bit more since there has been some
public comment about the impact to the neighborhood. You
stated that you do 30 weddings per year. In the letter
dated June 30th it says your number of weddings has dwindled
to five to seven per year. Which is it?
JIM GERNEY: Well, I’m talking about actually the
indoor wedding ceremonies and receptions. We only are
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dwindling on our outdoor weddings, because we can’t have
amplified ceremonies.
COMMISSIONER HUDES: So your letter is not
correct. It says weddings onsite and…
JIM GERNEY: Ceremonies themselves.
COMMISSIONER HUDES: So what you’re saying is
that you do 30 weddings indoors and you do five to seven
outdoors?
JIM GERNEY: Correct.
COMMISSIONER HUDES: That’s your testimony?
JIM GERNEY: Yeah.
COMMISSIONER HUDES: Thank you.
CHAIR BADAME: Any further questions?
Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I want to understand too
what you need. As I understand it, you don’t have a problem
with the sound when you’re indoors, and apparently you do
have some events, like some weddings, that are indoors, so
that’s not what we’re talking about. We’re talking about
the outdoors, and it would be advantageous and you think
fair were you able to do—I’m trying to figure out what it
is—have amplified sound where people are talking and
they’re introducing people and they’re telling jokes, which
you do at weddings, I understand that, but then sometimes
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at weddings of course you have a band. I’m not trying to
parse this yet, because I’m just trying to understand what
goes on. So conceptually we might have a situation where
there’s a band outside, is that right?
JIM GERNEY: Conceptually, certainly.
COMMISSIONER O'DONNELL: All right, so the scope
of this then would be more than amplified sound of a
speaker. It could be singers. It could be a band.
JIM GERNEY: Which would still be held under the
Noise Ordinance.
COMMISSIONER O'DONNELL: No, I understand. So now
I understand better what you’re proposing.
JIM GERNEY: The other thing, I don't know why in
the past it wasn’t really addressed, but we have 150
guestrooms that surround that specific area that we have to
be sensitive to those paying customers as well, and I
understand that in the past that probably didn’t happen,
but the amount of money we’ve invested in that property to
make it a premium property suggests that we look at it
differently, and I think the behavior of my team and the
hotel since we’ve owned it in 2012 suggests a completely
different posture than what may have happened before.
CHAIR BADAME: Thank you. No further questions.
Thank you very much.
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I will now invite comments from members of the
public. Our first speaker is Michael Verga.
MICHAEL VERGA: Good evening. My name is Mike
Verga; I live at 46 Broadway Avenue.
Recently you may have heard that C.B. Hannegan’s
will most likely be closing. One of the owners, Mr. Benson,
had this to say, and I quote from a local paper. “Benson
said he and Hannegan might be able to manage the rent
increase by adding late night entertainment, a move he said
would probably upset nearby neighbors. ‘Being sensitive to
the fact that we’re right up against the Almond Grove
neighborhood would create all sorts of havoc and not
something we ever intended to do, or will do,’ he said.”
The Toll House, on the other hand, does not show
the same compassion. Quite the opposite. In fact, the
letter that Jason Bogan wrote in his request to allow
outdoor entertainment—and the key here is outdoor
entertainment, the neighbors are not opposed to the indoor
entertainment—very tellingly does not mention the neighbors
at all. I believe we matter.
The truth is the Toll House could parade a
hundred people in favor of their proposal; however, the
reality is a handful of neighbors would bear the brunt of
this noise. How is that fair?
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I lived through the noise of the summer of 2011.
There was nothing fair about it. That summer the Toll House
was applying for a change to their CUP and the Town allowed
them to go ahead and have entertainment during the petition
process. The Toll House had entertainment and claimed the
volume was in compliance. It was not. The amplified sound
could be heard all over our neighborhood. All summer we
were subject to this noise. There were sound meters,
complaints filed, police called; the charade went on all
summer.
I specifically remember one summer evening seeing
the late, great Peter Carter and his wife Denise sitting on
their front steps at 45 Broadway. I went over and asked
them what they were up to. They said the back yard was just
too noisy, that they just wanted to be outside.
Having an outdoor venue bordering a neighborhood
is inappropriate. Where my house is located at 46 Broadway
the sound is bad, but just a few doors down at 30 and 42
Broadway, the amplified sound was ridiculous. The way the
courtyard is situated, it pumps out the sound right to
lower Broadway. I cannot see how anyone, any business,
anybody could impose that noise on someone else. We met
with the Town, registered complaints, talked to Town
Council, and wrote letters. In the end we had over 70 of
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our neighbors sign a letter protesting the noise. Finally
the Toll House quit.
When I heard from a neighbor that the Toll House
was again requesting outdoor entertainment, I just about
wanted to sell my house. It clearly did and would
negatively affect my quality of life if the CUP were to be
changed. I strongly urge you, do not change the CUP. Thank
you.
CHAIR BADAME: I have a question for you; don’t
go away. When the Council revised their Entertainment
Policy, did you provide input to Council?
MICHAEL VERGA: I personally (inaudible).
CHAIR BADAME: Thank you. Our next speaker is
Lori Baker.
LORI BAKER: Good evening, Commissioners. My name
is Lori Baker and I live at 45 Broadway. I’ve been a
resident of downtown for 13 years now, and I’m very
committed to the merchants here and to their success and
economic vitality. I’m actually getting married next month
in Los Gatos, and every vendor that we chose is a Los Gatos
vendor or merchant, and all of our guests from out of town
are staying at the Toll House. We want to be a very good
neighbor to the Toll House, because our back yard is their
property line.
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I have two concerns with this request. One is the
lack of communication. I think Commissioner Kane mentioned
the comment, “Listen to your neighbors.” No one from the
Toll House has approached us about this requested change,
and in fact the only reason I know this is happening is
because of a neighbor making me aware of it. A lot of the
terminology that you all are familiar with, because of the
roles you are in, I’m not as familiar with it as a layman.
So when I see a postcard come in around a CUP change, I
don’t always necessarily know exactly what that means. But
once I did come to find out what that meant, I was
concerned that I hadn’t been notified by my neighbor, the
Toll House. I’m in the middle of a major remodel of my own
home, and one of the things I did straight away was reach
out to all of my neighbors to make sure they understood
what we were doing, going to the Historical Committee, and
I was encouraged by the Town to do that, so I was surprised
to hear tonight the Toll House represent themselves that
they’ve done the same, because I’ve not heard from them.
My second and largest concern is how this noise
will impact my family. I have a ten year old son, a three
year old son, and a one year old son, and we moved to this
house two-and-a-half years ago from Edelen to get a little
bit bigger back yard and to have more space for our growing
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family. I remember reading the disclosure at the time that
the Toll House was not allowed to have music outdoors. We
were aware of the light pollution and the fact that we were
going to be up against the Toll House, but they’ve been
nothing but a good neighbor to date, and like I said, I’d
like to support them and see them be successful, but I have
young children who go to bed at 8:00 o'clock at night and
have homework to do. We have a back yard that we want to
enjoy, and I’m very concerned about what outdoor weddings
will be like for us till 10:00 o'clock on a regular basis
throughout the summer months and beyond, so I’d like the
Commission to consider how this will not only impact my
family, but all the families on Broadway. Thank you for
your time tonight.
CHAIR BADAME: Same question for you from me, Ms.
Baker. When Council revised their Entertainment Policy, did
you consider providing input?
LORI BAKER: I would have been happy to if I knew
that was happening.
CHAIR BADAME: Thank you. Next speaker is Roger
Poyner.
ROGER POYNER: Madam Chair, members of the
Commission, thank you very much for this opportunity to
speak to you. I’m going to read this. I’m also going to put
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it up here, I guess. You’ve asked me to provide 15 copies,
because I didn’t make the 11:00 o'clock deadline this
morning, so these are copies for people to look at. Thank
you, I’ll keep one.
My name is Roger Poyner; I am the president of
the Los Gatos Meadows Residents’ Council.
At our monthly meeting on September 12, 2016 the
Toll House request to have entertainment in their outdoor
courtyard was discussed. Many of our residential units are
close to the courtyard. Any sound from the courtyard is
irritating to many of our residents and interrupts the
quiet enjoyment of living in their apartment. As president
I was given authority to oppose any change in the
Conditional Use Permit that would permit any entertainment
in the courtyard area, therefore, the residents of the Los
Gatos Meadows hereby join in the letter of September 8,
2016, Exhibit G, which is on the other side of my comments,
from our fellow neighbors opposing any change in the
Conditional Use Permit, and endorse their request. Thank
you.
CHAIR BADAME: Thank you. Our next speaker is
Dixie Fisher.
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ROGER POYNER: One quick comment. That is the
Meadows loves Jazz on the Plazz, and we support that
tremendously; we buy tickets and love it.
CHAIR BADAME: Thank you. We love it too.
DIXIE FISHER: My name is Dixie Fisher; I live at
74½ Broadway, and that’s ten houses up the street.
So very conscious that the current—and I’m sorry,
I can’t remember your title—is saying he’s not to blame for
2011. I just want to give you context that when the Toll
House owners violated the CUP previously, ten houses up the
street I was slapped in the face with music when I walked
outside my door, and it wasn’t tasteful music. I also note
that he says the music at Palacio was tasteful. I never
need to hear “Play That Funky Music White Boy” again, and
certainly not at that volume. I don't know if their CUP
could also regulate tasteful wedding music, but I think
that frequently it doesn’t happen.
I used to actually be a planning commissioner
reporter, and I think at that time the newspaper had a
little more resources to report more fully about the
implications. I’m not saying that the Los Gatos Times
Weekly doesn’t do it, but I do read the paper every week
and I did see that the Entertainment Policy was being
revised, and I frankly thought it had nothing to do with
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us, because an Entertainment Policy typically involves
alcohol; I’m now learning that there was this separation,
or whatever.
But we fought to have the Toll House honor their
CUP that was so thoughtfully crafted so many years ago in
the many, many meetings that apparently were held between
the neighbors and the perspective Toll House owners, and
there is absolutely no way that I would have imagined, even
having sat in years of Planning Commission meetings, that
it would just be disregarded some five years later. I
didn’t know that we would have to do this again, and I
wasn’t notified until a neighbor told me.
So I would just please ask that the CUP not be
revised, that it was thoughtfully created, and for a very
good and specific reason.
CHAIR BADAME: Thank you, Ms. Fisher. Don’t go
away; we’ve got a question from Vice Chair Kane.
VICE CHAIR KANE: I appreciate your comprehensive
view of the situation, and the fact that you’ve had a tough
history with this situation. What’s changed is we now have
a new Entertainment Policy.
DIXIE FISHER: Right.
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VICE CHAIR KANE: Can you envision any way that
you could live with such a policy being shared with the
Toll House under certain terms and conditions?
DIXIE FISHER: I mean, this gets personal. I also
practice the Sabbath, and I asked that we please not have
leaf blowers on Sabbath, and so it is hard for me to
imagine any situation on a Sunday where blaring music is
really okay, and it’s a different time period. Number One
Broadway is there and the music is contained, and if I
stand right outside I can hear and enjoy it. It doesn’t hit
me when I step outside my door, so it is the outside issue
and it is the amplification. And the amplification on
Broadway is very odd. There were kids who sat across the
street on a raised porch, and they were whispering to each
other, and I could hear them as if they were next door. So
I mean you get those kind of (inaudible).
VICE CHAIR KANE: Aside from your superpowers.
DIXIE FISHER: No, no, no, but it’s just like you
can’t… Like I’m saying, I get hit with that music ten
houses up, and just the fact that it’s outside and
uncontained, I honestly can’t see how that’s going to be
okay based on what I experienced. I guess if they had
unamplified, cello or violin. I think the amplification has
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a lot to do with it, but I can’t see how amplified music
would work.
VICE CHAIR KANE: Thank you.
CHAIR BADAME: Commissioner O'Donnell has got a
question for you. Oh, no, I’m sorry. Thank you.
COMMISSIONER O'DONNELL: Question for Staff. Was
this matter noticed to the neighbors?
SALLY ZARNOWITZ: Yes, this was noticed as a
public hearing.
COMMISSIONER O'DONNELL: So within what, 300’?
SALLY ZARNOWITZ: Three hundred feet, yes.
COMMISSIONER O'DONNELL: That’s what the law
requires, right?
SALLY ZARNOWITZ: That’s correct.
COMMISSIONER O'DONNELL: So that notice did go
out?
SALLY ZARNOWITZ: Yes.
COMMISSIONER O'DONNELL: I’m not commenting one
way or the other. I just wanted to double check that the
notice went out. Okay, thank you.
CHAIR BADAME: Gail Randolph.
GAIL RANDOLPH: I’m Gail Randolph; I live at 42
Broadway. I’ve lived in Los Gatos since 1971, and in this
present location since 1975.
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When I first moved to Broadway, 140 South Santa
Cruz Avenue was a dirt field and it was zoned commercial,
and so anticipation centered around what could be a good
fit for that space, and in 1983 the hotel was chosen and
built and we were happy to have made that match.
A decade later the Town created an Alcohol Policy
and the Toll House CUP was written, and the courtyard use
was described and now locked in, or so we thought.
Fifteen years after that, between 2008 and 2011,
we were tested. The Toll House showed us their noise on
Friday, Saturday, some Thursdays, and Sundays. Dances,
weddings, large events, entertainment, music, amplified
sound began. For me, the base pounded against my windows
and my body, and I couldn’t go to sleep at night until that
had all come to a conclusion. I couldn’t relax in front of
the TV, because the sound inside my house with the windows
closed was too loud for me to hear the TV. I couldn’t
invite friends over, because it was not so tasteful, and
very loud, and we couldn’t have a conversation anyway.
Totally invasive.
Eventually the neighborhood, the Town, and the
police became involved. A series of meetings and… I can’t
contain all this in three minutes. But the Town ordered the
Toll House to change their CUP to match their action, and
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this was followed by months and years of meetings, and the
Toll House came to understand the thinking of the nearby
residential community and dropped the application.
In the last four years the Town has revised the
Entertainment and Alcohol Policies, and the hotel has
remodeled and is now petitioning to change their CUP
regarding the same things. Since experiencing the noise of
2008 and 2011, we can speak not from imagination but
experience, a huge disturbance to home life and ability to
relax, no sleep until past 10:00, forced sound of unwanted
playlists, several days a week, open-ended, for years and
years, and what this implies, and question mark.
CHAIR BADAME: Thank you, Ms. Randolph. Vice
Chair Kane.
VICE CHAIR KANE: Ms. Randolph, you sent us the
letter that we received on September 12th, and I want to
thank you for that, and in there you talked about the noise
being louder than your TV, and you also said your windows
would shake, rattle, and roll.
GAIL RANDOLPH: I did.
VICE CHAIR KANE: Do you have faith or
understanding that if this project were to go forward that
the Noise Ordinance by itself might give you some relief?
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GAIL RANDOLPH: I can’t be sure. It’s the trust
factor for me. Because I see it spelled out in the CUP, and
yet a lot of it isn’t accommodated. And it goes into some
of the other things listed on the CUP; we’re only talking
about entertainment and amplification tonight. But the
number of people that are allowed to be served on the
patio, there’s a discrepancy. and we talked about the
different—I’m trying to think of the word—but the courtyard
belongs to whom? There’s the patio, which is a different
area, and there’s an indoor restaurant. What belongs to
whom or what? I mean I’ve tried to break it down myself and
really know it before I got up here to talk about it.
VICE CHAIR KANE: Well, I was thinking that a
person whose windows rattled, and I do not doubt that they
did.
GAIL RANDOLPH: Yeah, okay.
VICE CHAIR KANE: We have changed the law and
there’s a possibility that this could be permitted, and I’m
thinking well what if this, what if that? You know, we’ve
got the Noise Ordinance, and what the Commission has done
in the past is put in subsequent reviews, that we would try
something and we’d review it in three months, and then
three months, and then three months, not just one and then
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let it go away. Would that cause you to reconsider your
position?
GAIL RANDOLPH: To be honest, no. It’s the trust
factor, and there’s the time element, because I see how
when something is in place, then they go up another level
sometimes; very often I’ve watched how this works. So I
would think that once they got permission to have
entertainment amplification before 10:00, then they might
want to apply to have it after 10:00, and so where does it
stop?
VICE CHAIR KANE: Thank you very much.
GAIL RANDOLPH: And by the way, my house is 101
years old, and there are other older houses around there.
They’re not all built with soundproofing as part of them.
VICE CHAIR KANE: Thank you.
CHAIR BADAME: Thank you. Commissioner O'Donnell
has a question of Staff.
COMMISSIONER O'DONNELL: Yes. I don’t recall the
dBA. I’m assuming a dBA would be used by the ordinance, but
I haven’t read the ordinance in years. Could you tell me
sort of an orders of magnitude difference between what the
dBA level is before 10:00 versus after 10:00?
SALLY ZARNOWITZ: The general daytime noise
limits, and I believe it’s actually 9:00 to 10:00 that that
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changes to nighttime, that’s 75 decibels measured 25’ from
the source; that’s the daytime, and they’re asking for
daytime. I can give you nighttime.
COMMISSIONER O'DONNELL: What is after 10:00? Or
after 9:00 you’re telling me, I think.
SALLY ZARNOWITZ: Depending on the receiving
zone, so for the source zone being nonresidential and the
receiving zone being residential, it’s 60 dBA.
COMMISSIONER O'DONNELL: From what you’re
reading, sometimes they give an example of that. For
example, they’ll say airplane is, you know, whatever the
dBA is, and so on and so forth. Are there any examples
there?
SALLY ZARNOWITZ: Staff did find an example
coming from the University of California Los Angeles, just
one example. Passenger car at 65 miles per hour at 25’
measures 77 decibels, so that’s somewhat comparable to the
75 decibels at 25’.
COMMISSIONER O'DONNELL: Thank you.
CHAIR BADAME: Luke Lenhart followed by Larry
Lenhart.
LUKE LENHART: Hi, my name is Luke Lenhart; I
live at 30 Broadway, which is on lower Broadway, and I’m
facing the opposite side of the Toll House. I’m currently a
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high school student, and I play water polo, and I study
hard. Currently I’m a junior in high school and I’m
studying hard for my AP tests, SAT tests, and further
studies in order to get into college and further my
studies.
My studies start well before 10:00 o'clock, as
soon as 4:00 o'clock or 5:00 o'clock, 6:00 o'clock, and
being able to study in that sort of time with an amplified
noise would extremely hurt my entire high school career, as
well as my sleep, and just being able to live an enjoyable
life as I’ve lived for the past 15 years as a resident of
Los Gatos.
In the past, when I was experiencing the noise
the Toll House had produced before 10:00 o'clock, and the
amplified sound, my dog was agitated and I couldn’t get to
sleep. I was younger at this time, middle school, and I
couldn’t get to sleep before 10:00 or 11:00 o'clock at
night, and just being able to study before then was really
difficult.
I really recommend that this application be
denied. Thank you for your time.
CHAIR BADAME: Thank you, Luke, for your
comments. Larry Lenhart.
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LARRY LENHART: I’m Larry Lenhart; I live on 30
Broadway, as you guys know. I’ve raised my family there,
lived there for 18 years, and that was my son.
First of all, I’d like to address the physical
locations, and then talk about what areas of the compass
are affected by this event.
If you look at the Toll House in 360°, 240° are
directly into residential community. Of the other 440°, it
hits commercial, but part of that commercial is the Toll
House, so it hits those walls and then goes right back into
the residential, so any amplified sound is actually
accelerated up into Broadway, and so this accelerates it.
That’s mainly why any amplified sound makes such a big
difference.
We talked about the items on the CUP. Two things
we haven’t addressed yet.
One is that it will not impair the integrity and
character of the zone. Well, the zone that we’re talking
about is the most historic area in Los Gatos; it’s the
oldest street in town, and there are areas of the Town
compliance that are specifically restricted on the
historical areas. As a matter of fact, the Town Code
states, “In the historic districts the proposal will not
adversely affect its relationships in terms of the harmony,
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appropriateness to surroundings, and adversely affect the
character, aesthetic interest, or the value of the
district.” This is the most historic area, and we’re going
to definitely affect that for sure.
Also, think about all the Town codes we talk
about, and we always talk about not affecting the value of
the homes. So we look at BankRate.com, the National
Appraiser Society, and Business Insider magazine, and they
will highlight that if there’s any intrusive sound or
obstruction that is inconsistent with the rest of the
neighborhood, the value of that home could be affected by
at least 10%. I talked to a number of real estate agents in
Los Gatos and they confirmed that’s the case, so what we’re
actually going to do is decrease the value of the homes
that are affected by this consistent music and amplified
sound that may happen.
So I just for fun went to Zillow, I ran a math, I
took 10% for the folks that are close and zero to folks
that were farther away, and it would actually degrade the
value of our homes by $4.5 million dollars in aggregate.
That’s a significant impact to the home values of all of
us, our hard savings, and everything we’ve done from that
perspective. Now, we take that $4.5 million and apply it to
a company based out of the state of Louisiana who operates
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the Toll House. It doesn’t sound like such a great idea, so
I hope you do reject the CUP, or withhold our current CUP
that is in place and we fought so hard for. Thank you.
CHAIR BADAME: Thank you, Mr. Lenhart. Gillian
Verga.
GILLIAN VERGA: Hi, my name is Gillian Verga and
I live at 46 Broadway.
One of the problems with this current situation
is that the Toll House has created an adversarial
relationship with its neighbors. I realize that started
back in a time prior to the current management, but quite
honestly, I was very surprised to hear Mr. Gerney say he
had a good relationship with this neighbors. I would beg to
differ.
First of all, there has been zero outreach to
neighbors on this issue at all, and then Jason Bogan’s
letter in the petition, and also Mr. Gerney’s comments
today, were really not about the neighbors. It’s clear that
their need to recoup their remodeling value and expand
their wedding business is more important to them than the
neighbors’ concerns.
In addition, the Toll House currently violates
its CUP on a regular basis, and I think they’ve talked
about that openly today. Condition Three on their CUP
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states that the outdoor seating shall not exceed 36.
Condition Five states that the outdoor seating shall not be
used for banquet, reception, or conference purposes. These
conditions were put in place specifically because this is a
hotel on the edge of a historic residential neighborhood.
However, the Toll House frequently holds wedding
receptions, dinners, corporate conferences, and other
events on their patio, as they’ve been quite open about.
Many corporate events include an evening reception on the
patio. We dropped by last Thursday, Friday, and Saturday
evenings and they were having a thriving reception on their
patio on each of those nights. In fact, last Friday the
patio was set with over 150 chairs.
So clearly they have a pretty thriving business
of holding weddings, receptions, banquets, and conferences
on their patio in violation of their CUP, and if I were a
Planning Commissioner I might be asking why are they not
petitioning to change Conditions Three and Five on their
CUP so that they can be in compliance on these events? Is
it because they plan to just continue violating those
conditions knowing that there will be no repercussions?
Because in fact, what is the point of having entertainment
on your patio if you cannot have a banquet, reception, or
conference on your patio?
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We have a complete lack of trust in the Toll
House. The neighbors don’t believe for an instant that any
entertainment on the patio will be controlled or monitored
by them with the interests of the neighbors at heart.
Therefore, we feel they should be held to their existing
CUP, a CUP that was written for a hotel, a place where
people come to sleep, and not an entertainment venue. Thank
you.
CHAIR BADAME: Thank you, Ms. Verga. We
appreciate the comments. Vice Chair Kane, yes.
VICE CHAIR KANE: I have a question of Staff, if
I may?
CHAIR BADAME: Yes.
VICE CHAIR KANE: I want to make sure I’m reading
the existing CUP correctly. If they’re holding a conference
out on the patio, or a quiet wedding, or a benefit for Jazz
on the Plazz, does that violate their CUP?
SALLY ZARNOWITZ: Mr. Paulson can confirm, but
no, the CUP talks about outdoor entertainment on the
courtyard. It also talks about the use of the patio, which
is the patio outside of the restaurant.
VICE CHAIR KANE: So if there was a corporate
conference out there, or a benefit out there, that would
not necessarily violate the CUP?
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JOEL PAULSON: I’ll try to add a little bit more.
There are two different areas: there’s the patio, which is
the raised area adjacent to the restaurant, and there’s the
courtyard. The CUP as it’s currently written for that
banquet/conference is outdoor seating on that raised patio
area. The courtyard is specifically called out separately
from the noise perspective, and so that’s Staff’s
interpretation on that.
VICE CHAIR KANE: So if the function were on the
courtyard section, not up on the elevated patio, would that
be a violation of the CUP?
JOEL PAULSON: We don’t believe so.
VICE CHAIR KANE: Thank you.
CHAIR BADAME: Do we have any further speaker
cards? Seeing one, come forward. This is our last one
before we get the Applicant. Angelia Doerner.
ANGELIA DOERNER: Angelia Doerner, a proud
resident of the Almond Grove, also in a historical
district.
Everything around downtown Los Gatos is in a
historical district. So setting that aside, the policy is
very liberal. We’re talking about restaurants and hotels
and places with alcohol, but you’ve got to understand that
a furniture store can have entertainment by their front
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door and still be held by the same policy. If they have a
CUP that doesn’t say anything about entertainment, they can
do it without coming to you at all. If they have a CUP… I
can’t imagine they would have a CUP that talked about
entertainment.
But anyway, I really think that it’s important to
set some things in perspective here. When it comes to the
prior noise issues at the Toll House, I could hear it over
by C.B. Hannegan’s. I seriously doubt anyone on Broadway
could hear what goes on in C.B. Hannegan’s now.
I also am surprised about the comment from a Mr.
Benson. I live maybe six or seven houses away from C.B.
Hannegan’s. They do control their decibels; they’re out
there and testing if there’s ever a complaint with the
neighbors. They do have late night entertainment when
someone requests to do it, and I would hope that they even
have more before they get shut down for other reasons than
just the rent.
Anyway, I just really think that we’ve got a lot
of things that are going to be addressed with this. I hate
to think that every single time that there is a band or
something playing downtown that someone is going to be
running to you all or to the Council. This thing was vetted
at the Town Council meeting.
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All I can say is prior history should not be
damaging the new owners of the Toll House. I think they
deserve the respect as a property owner to give them a
shot, see if there is a way that they can set up some
practice situations and let the neighbors hear and
understand each other’s control issues. I just don’t think
it’s fair at all. I think it would be a disadvantage to say
that they’re just not allowed to take advantage of the new
Entertainment Policy based on past history. I will tell
you, if they ever do anything like past history, you’ll be
hearing from me. I’ll be making the phone call from Wilder
and Bachman.
Anyway, I just wanted to let you know that, and,
you know, hey, there was music Wednesday night out in front
of the furniture store, and it was great; people enjoyed it
walking down the street. If there’s room out there, they’re
going to do it. I hope they don’t do it in front of
SoulCycle, because their music would drive me crazy.
I’ll be holding the decibel monitor out in my
front yard, and if it’s a problem I’ll let the police know,
so there are ways to monitor it, and I just think that
we’re all going to have to be dealing with the major change
to downtown. Thank you.
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CHAIR BADAME: Thank you. Ms. Doerner. I now
invite the Applicant back, Jim Gerney, for five minutes to
add further comments regarding this application.
JIM GERNEY: Thanks. I’d like to start by saying
I’m sorry. You know what? I had nothing to do with 2008 to
2011. I kind of picked up in the aftermath, and I do feel
kind of bad. As a property owner, I would be upset if I had
the same experience.
CHAIR BADAME: Sir, could you address the
Commissioners, please?
JIM GERNEY: Sure, my apologies. I do feel bad.
You know what? I think that our behavior since the new
owners have been on board has been commendable. I think
that if it were not for the change in the Town ordinance,
we would not be here today; we would continue to oblige the
Conditional Use Permit, as I believe we have, based upon
the interpretations that we have had, and we’ve really
looked at this pretty holistically to make sure that we
were being as respectful as possible.
It’s disappointing that we’re experiencing as
much conflict, but two things that I heard that I wanted to
address.
One is did we really do some outreach? It was a
recommendation that came that we should try to look at
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500’. Three hundred is kind of the rule. We walked 500’; we
made sure we were safe. That took us up to number 50
Broadway. So we tried to do outreach to everybody.
We’ve hand walked. We’re doing an event on
October 6th. We really want to make sure that we understand
what the pros and cons are, but we also want to make sure
that if there’s an ordinance that’s going to benefit my
business, I have an obligation to do that. I’ve got
investors, I’ve got people doing it, and I have to do that
so that I don’t step on the toes of the people that are
around me.
But the ordinance is built so that there are
decibel levels, there are zones for those decibel levels,
and we have to adhere to them. I’m going to guess in 2011
those decibel levels were not adhered to. I think
everything you’ve heard said there’s no way decibel levels,
whether it was legitimate or not, were adhered to. I mean
we have that scope on what we can and can’t do.
I think that understanding who we are, what we
want to be as we evolve as a business, that we are not the
same community, we’re not the same business we were in
1984, but the ordinance clearly tells us that the Town is
trying to change in the way it is, but it wants to do it
and be respectful at the same time. I think we can jump
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onboard and we can follow that role. I think that we’ve
already demonstrated a different level of behavior. I’m
counting on you guys in sticking with your approval
recommendation.
CHAIR BADAME: Thank you. Commissioner Hanssen
followed by Commissioner Hudes followed by Commissioner
Burch.
COMMISSIONER HANSSEN: I don't know if I
misunderstood you. I thought you said you did neighborhood
outreach, but then we got testimony even from your next-
door neighbor that they weren’t aware that you did, so I’m
trying to reconcile the two different things I heard.
JIM GERNEY: Anybody that’s between 2 and 50
Broadway, a letter was sent to last Friday, and I’ll answer
that question a little more specifically. With June 31st
being the date the ordinance was changed, by the time July
hit and we looked at our opportunities, and we went and we
came to the Town and we talked about how shall we process
this, when we were given the recommendation on how we
should do it, this process really didn’t even commence
until maybe late July or early August. By the time we
really got the wheels going and getting it on your agenda
and really starting this outreach and planning an event,
yeah, we’re in the middle of… A week ago information was
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sent out. A number of people here have mentioned they
received a letter from Jason, and Jason is our hotel
manager, so we did send out letters.
COMMISSIONER HANSSEN: More generally speaking,
you talked about your concern for the neighbors and you
said you took over this property in 2012.
JIM GERNEY: Sure.
COMMISSIONER HANSSEN: What other neighborhood
outreach have you done other than the letter that you sent
last Friday?
JIM GERNEY: Since we started there we have
become the sole, or exclusive, sponsor for Jazz on the
Plazz, we have a number of other community events we do,
and our staff are involved with the Chamber locally. We’re
pretty active in our community on a number of different
levels, certainly on a business level on partnering with
local businesses that complement each other; and I’d say it
through synagogues and mitzvah events, and wedding
planners, and other things, and that’s a business level,
maybe not a residential level, but I think our key to the
residential interaction has really been to make sure we
didn’t step on anybody’s toes and make sure we didn’t have
any problems violating the Noise Ordinance or Conditional
Use Permit.
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COMMISSIONER HANSSEN: Okay, well, I would hope
going forward that since you are right there on the border
of a residential neighborhood that you would make
neighborhood outreach a regular part of your process,
because you guys need to live with each other.
JIM GERNEY: You know what? I think it’s a great
point, now just tonight, and my attempt to apologize and to
recognize our neighbors. When I got there the neighborhood
outreach was a little intense, based upon our
acknowledgment of what the Conditional Use Permit meant and
our adapting to it. So great point, well taken, and I’ll
follow up on that.
COMMISSIONER HANSSEN: Thank you.
CHAIR BADAME: Commissioner Hudes.
COMMISSIONER HUDES: I had a question about the
modification to the existing Conditional Use Permit that
you’re requesting, and I’m reading on Exhibit 4 that
appears to be the Conditional Use Permit that’s in effect
today, which is February 22, 1995. Is that the Conditional
Use Permit that you said you were made aware of during due
diligence?
JIM GERNEY: Yes, sir.
COMMISSIONER HUDES: So my question is why you’re
not requesting changes to the outdoor seating limit of 36,
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and why you’re not requesting a change that would allow
banquet, reception, or conference purposes?
JIM GERNEY: Certainly, I’ll answer that. It was
mentioned earlier that a banquet seating area represents
the upper seating area adjacent to the restaurant, not the
courtyard, and the interpretation that’s been given to us
is that the courtyard itself, we can’t have amplified sound
anywhere, but the seating restrictions do not apply to the
courtyard, but to the patio.
COMMISSIONER HUDES: Then I don’t see anything
about that in the language here, by the way, but that
refers to seating. What about the use, that “Toll House
outdoor seating shall not be used for banquet, reception,
or conference purposes”? When you have a wedding there, is
there outdoor seating?
JIM GERNEY: Certainly.
COMMISSIONER HUDES: And is that considered a
reception?
JIM GERNEY: No. Well, because we can’t have any
amplified noise of any sort out there, we can have an
ambient sound ceremony outside with no amplification. And
again, I think the distinction of the area of the upper
patio and the courtyard is something that is not clear in
everybody’s eyes, but our challenge and our digging deeper
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into the interpretation of that has led us to believe that
the on upper patio we can seat 36, but can’t have
conferences; the lower courtyard is not, because it’s not
part of the restaurant, it’s not part of that CUP
interpretation, and there is part of the hotel and we can
still do other events as long as they’re not amplified.
COMMISSIONER HUDES: Well, again, I’m reading
here, point five, Outdoor Seating Use, “The Toll House
outdoor seating shall not be used for banquet, reception,
or conference purposes.” It doesn’t talk about balconies,
it doesn’t talk about courtyards, it talks about the
property owner and the location.
JIM GERNEY: Yeah, I guess it goes back to the
actual overall scope of the Conditional Use Permit,
identifying the Conditional Use Permit. But in reference to
the Toll House restaurant in the original opening paragraph
for the conditional use requirements, the actual
conditional use is based on the restaurant, not on the
hotel, because the restaurant has an upper patio, and the
upper patio is designated in the Conditional Use Permit
specifically with seating and use. All areas are identified
with use relative to amplified sound, so we apply the
seating and use to the upper patio; we apply the
amplification to all areas.
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COMMISSIONER HUDES: I appreciate your testimony.
I don’t see anything in the use permit that reflects that.
I’ll have some questions to Staff about that.
JIM GERNEY: Great. Thank you.
COMMISSIONER HUDES: Thank you.
CHAIR BADAME: Would Staff like to weigh in?
JOEL PAULSON: As previously stated, the CUP is
for the restaurant only. The outdoor seating and conference
banquet is that upper level; it is not the courtyard. The
courtyard is the hotel; however, as mentioned, the
amplified sound requirement restriction does also flow to
the courtyard, as referenced in the CUP.
CHAIR BADAME: Commissioner Burch.
COMMISSIONER BURCH: A couple questions to see
how amenable you would be. You are right next to
residential, and I’m going to be pretty sympathetic to the
whole homework situation. If moving forward we were to
frame this up in a way that said no music Monday through
Thursday, would that be amenable to you?
JIM GERNEY: I’m open to almost any compromise at
this point, as long as I can become a little bit more like
other restaurants in Los Gatos.
COMMISSIONER BURCH: Right, and I can’t imagine
people putting on a banquet on a Tuesday.
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JIM GERNEY: We do have actually ceremonies, like
celebrations of life.
COMMISSIONER BURCH: Oh, I guess that’s true.
COMMISSIONER BURCH: And would you be amenable if
we wrote something into this as far as, like Commissioner
Kane had mentioned, some check-in points like every three
months for a year, or something like that?
JIM GERNEY: Love the idea.
COMMISSIONER BURCH: Okay.
JIM GERNEY: Yeah, I want to be an open book
about this.
COMMISSIONER BURCH: Great, thank you.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: I tried very hard to put this
in the form of a question. Given what you’ve heard tonight,
would you reconsider your view of the quantity and quality
of your outreach? Would you reconsider 300’ as a standard
by which we’re recused from a case, as opposed to checking
out the entire street? Because I’m thinking that’s what you
and I have heard tonight. Would you consider giving it to a
local Staff person to make thoroughly sure that the
outreach is effective? This is a different situation, is
what I’m hearing.
JIM GERNEY: Sure.
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VICE CHAIR KANE: There’s history here that you
may not have been aware of, and so you just walked into a
hornet’s nest. Did you know that? I’ve got to make it a
question. My question is would you reconsider the quality
and quantity of your outreach?
JIM GERNEY: One hundred percent, yes. As I
mentioned, we are scheduled to do an open house on October
6th, specifically to reintroduce people into the new
investment that we have. But I think that if we were able
to do sound studies, talk about what the decibels are, talk
about what this is doing; I mean I want everybody’s input
in this. You know, it’s funny, the feedback in 2011 was far
less than hospitable, and before my time, and I get why.
It’s been hard to try to crack that egg and get back into
the game, back into the sandbox, but I’d love to do it;
anything, any recommendations.
VICE CHAIR KANE: Thank you.
CHAIR BADAME: Any further questions? Seeing
none, thank you.
The public testimony portion of the public
hearing is now closed. Do Commissioners have questions,
comments, or a motion? Commissioner O'Donnell has his hand
up first.
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COMMISSIONER O'DONNELL: I look at this that the
Town passed an ordinance that does not specifically speak
to a use permit that has its own condition; it is a general
ordinance. I don’t feel constrained by that ordinance, but
let me also say this. I don't know if anything can be done,
I really don’t, but I do think before we would say we’re
going to experiment, we’re going to find out for six months
or three months or a year, if that were to be the condition
I would like to see upfront a study; a sound expert could
do it.
I find, for example, that 75 dBA would be very
annoying to me if I listened to that all day, and yet, our
ordinance says all day long you don’t violate the Noise
Ordinance unless you’re 75 dBA and above. I also know that
nobody really enforces that, because you’d have to have a
big staff. The cops don’t enforce that, and that’s not
their job; they get calls at night when it’s real noisy.
So if we were to try to work out something I
would personally want to see something from a sound expert,
which would give me some comfort that we could do this,
because at the moment I find some of my fellow
commissioners would like to work something out, and
certainly I’m not against that, but I am more sympathetic
with the simple statement that I’m not in favor of changing
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that use permit. My experience is that, as I said before, I
live virtually downtown, and I have enough trouble with the
freeway, but 75 dBA is a pain.
So I would like to find out what the noise level
would be were we able to try to implement some change to
the use permit that said based on the study, here’s what
you're going to do, as opposed to saying let’s give you a
year and we’ll check it, because I think that would be
unfair to the homeowners if they had to put up with that
for a year and find out they were right to start with.
I just throw that out before people come up with
a motion, because I would not support today a change in the
use permit. I would be sympathetic and receptive to trying
to do something that would both satisfy the needs of the
hotel while not affecting adversely the neighbors. I don't
know that there is something that could be done, but I know
that I don't know enough to be able to do it.
CHAIR BADAME: So, Commissioner O'Donnell, can
you just clarify then, you may be leaning towards a
continuance to get more information from Staff regarding
noise studies?
COMMISSIONER O'DONNELL: In the course of my
career I have had noise problems where we did hire sound
people, and you can at least have an educated estimate of
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where you’re going; we don’t have that. I don’t question
for a moment the good faith of these folks out here, but I
do know that the history isn’t good, but that wasn’t their
fault. But even with good faith, we don’t know…
Let’s assume they comply, and let’s assume that
they never go above 74 dBA. What does that mean? If I live
at 50 Broadway, or whatever the address is, and I’m trying
to do my homework or whatever I’m trying to do, what’s that
going to be like? I would like to know that before we
simply take this out and say let’s give them a year to find
out what it’s like. Because we still won’t know. If the
study comes back and says they’re never above 74 dBA, what
does that mean? So if that means that it’s very annoying if
you have to listen to that four or five hours a night, I’d
like to know that.
So, yes, I would consider continuing the matter
if the Applicant were willing to give us some guidance on
this by a recognized sound expert. So yes. That would be
the answer is yes.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: Just to clarify, I didn’t say
one year, I said every three months for a period of a year
or so to put some integrity in hearing the motion.
COMMISSIONER O'DONNELL: I wasn’t (inaudible).
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VICE CHAIR KANE: That’s what I’m thinking of, a
staged test; we’ve talked about it before.
I have a question for Staff. In addition to what
Commissioner O'Donnell said in terms of considering a
continuance, would it be appropriate as part of the testing
to decide decibel levels and that sort of thing to give the
Toll House an opportunity to come up with a plan? Not a
letter of nice, but a plan with people and contacts and
phone numbers, and an understanding from Staff what their
responsibilities are, what they could do about baffles and
chambers or deflecting sound; they know their business
better than I do.
But I’d like to see a plan that would be viewed
as a promise of commitment regarding a special
circumstance. This isn’t Gardino, this isn’t Chicago Steak
and Fish, this is a bar/restaurant noisemaker on the edge
of Broadway, which is a very historic district, as are many
others, that has a bad history, and that I think here is
more salient than anything else. They have been lied to and
cheated and terrible things, and I think there needs to be
a plan of outreach going forward, of promises, of
commitments, consistent with the Town’s ordinances, but
something from them to residents to include a contact
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person and whatever else. I’d like to add that to
Commissioner O'Donnell’s consideration for a continuance.
CHAIR BADAME: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I’m going to make a
motion, and then it can be discussed, but I’ll put
something on the table if I can get a second.
I would move that we continue the matter to a
date certain to allow the Applicant to perform a relevant
sound study by a certified consultant.
That sound study should tell us what the sound
level would be, and you want to take a worse case, you want
to talk about an orchestra or a band or a wedding outdoors,
and whatever that is, and hopefully it’s going to be 74 dBA
or less. I would like it to relate that to what that means,
because I don't know, but I have a feeling that if I listen
to a car going by at 65 miles an hour all day long, I’d
either go deaf or go nuts, so it doesn’t make me feel
better to know that it’s only 75 dBA. So if there were a
sound study, and I’ve seen these before, they will relate
the dBA to common sounds; that would be helpful.
This is not a guarantee that by doing a sound
study, for example, that would convince me to change this
use permit. On the other hand, without that kind of
evidence, I’d find it very hard to tell people don’t worry
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about it, we’ll check it for three months or six months or
whatever. So my motion would be that we do that.
As far as the outreach is concerned, I would
leave that till after they came back with a study, if they
do. Are there some comments you wanted to make?
JOEL PAULSON: I was just going to offer that
previously you’re referencing the 65 mile an hour car, so
that’s a threshold that gets you to 75 dBA. I don't know if
there are other things on that list that you have that
relate to music and bands.
COMMISSIONER O'DONNELL: We don’t know, however,
what the noise level would be offsite. Let’s pick 50’,
100’, whatever. So, yes, we now know we have one thing that
was 75 dBA. I’m hopeful that the sound that the neighbors
would be exposed to wouldn’t be 75, wouldn’t be 74 dBA, it
would be down somewhere where the sound expert says that’s
like this and everybody says oh well, that’s not bad.
So I say that, but I think I need a second before
we bother with any more time on my motion.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: I’ll second the motion, but it
seems we need to get a nod from the Applicant that they
want a continuance, or they want an up or down. Do we need
that?
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JOEL PAULSON: You don’t need that, but this is a
recommendation; those could be made into a motion, whether
it’s denial or approval for the recommendation (inaudible).
VICE CHAIR KANE: I have other comments to make,
but I’ll second the motion.
CHAIR BADAME: Commissioner Hudes.
COMMISSIONER HUDES: I’m generally supportive of
the motion. I do have a concern, and that is that the
Conditional Use Permit runs with the property, with these
APNs, correct? And so while we may have good intentions of
this particular owner now, this may be here 30 years from
now, and so I’m concerned that the way it’s written
currently, having outdoor seating for wedding receptions is
not permitted. I’m wondering if it’s possible to be more
specific about where outdoor seating is or is not permitted
on balconies or courtyards or things like that, because I
don’t see any language about that in the CUP as it’s
written now?
JOEL PAULSON: The policy specifically, since
they have only opened up for entertainment, that’s the only
condition that can be looked at. If you want to make as
part of a recommendation to Council that they provide some
more clarification or that they confirm Staff’s
interpretation, that’s fine, but none of the other
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conditions can be opened up as part of this current
process.
COMMISSIONER O'DONNELL: Let me make this
comment. It seems to me that if you were to approve some
entertainment use there, while you don’t have a right to
change other things… Well, we’re not talking about the
ordinance at the moment, we’re talking about the use
permit, but to the extent that somebody wants to amend the
use permit, I don’t believe that’s covered by the
ordinance.
The ordinance doesn’t speak about modifying use
permits. If they did, they could have said this applies not
only to people that don’t have these permits, it applies to
people that do have these permits. Whether that would be
legal or not, I don't know, but they didn’t do it. So if
somebody comes to me and says I want to modify my use
permit by removing that condition, and I say ultimately you
may do so, so long as the facts we understand to be this
are the case, and if they say yes, that is the case, then I
think that speaks to Commissioner Hudes’ point. You’re not
trying to rewrite the use permit, but you are trying to
understand what they’re asking for. Unless the Council said
we intend this to apply to existing use permits, which it
certainly isn’t on the face of the ordinance, I think we
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have a right to say you want us to remove that condition,
but we have to know what the impact is, and assuming
therefore… I’m not writing it now, and I don’t want to
write it now.
I think we need more information, and I think we
possibly could get to the clarification. I’m prepared to
accept the Staff saying we have always interpreted it that
way, notwithstanding an argument could made to the
contrary, and certainly the owners have relied on that and
I would not seek to walk back on that. The world would be a
lot simpler if we had a better drafted use permit, but
enough talking for me.
SALLY ZARNOWITZ: The policy does specifically
state that if these use permits are opened up to address
this issue, that is the only issue that can be considered
by the decision makers.
I’d like to just piggyback on that for one
second, which is the Council is the decision maker in this
case, so this evening the issue before you is a
recommendation to Council. You could make a recommendation
that includes your concerns.
COMMISSIONER O'DONNELL: Well, my recommendation
now would be no, so rather than give a recommendation of
no, we’re giving them an opportunity before we make our
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recommendation to give us something to hang our hat on, and
we can clearly do that.
CHAIR BADAME: Commissioner Hanssen.
COMMISSIONER HANSSEN: Supposing that this
process could continue the way it’s been moved and
seconded, the one thing that would be really important in a
sound study I think was we had a lot of testimony from the
neighbors about the way that sound actually gets amplified
in that particular neighborhood, so a generalized thing
about what does 75 decibels mean isn’t going to be as
relevant as what does 75 decibels mean if you’re in 45
Broadway or you’re five houses down. I think that’s the
kind of thing that I would be looking to hear about versus
generalized.
COMMISSIONER O'DONNELL: As the maker of the
motion, maybe I wasn’t clear. A sound study is a sound
specific study of the site and the noise emanating from the
site. It isn’t a theoretical discussion of sound.
COMMISSIONER HANSSEN: Okay, thank you.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: I just want to add, whatever we
decide on with this sound study, it would behoove the
Applicant to the extent possible, Mr. Bogan, to identify
your neighbors and involve them in whatever you’re doing.
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CHAIR BADAME: Well, I would like to just add a
comment. We can get the study, and I’d be in favor of
continuing it, and we could find out what 75 decibel levels
may sound like, but there are different types of music, and
different types of music can be annoying and a nuisance to
one person over another. It’s just like beauty is in the
eye of the beholder.
COMMISSIONER O'DONNELL: In reason, I absolutely
agree with you. But what I guess I’m saying is if one has a
conversation outside of my condominium, a normal
conversation, that shouldn’t bother me, a normal level
conversation, even if they’re using profanity or whatever.
To the extent that it becomes louder, then the conversation
itself would bother me, and if they were using profanity or
whatever, it might bother me more. So I don't know what
this noise would be. It is conceptually possible that no
matter what they play, if it’s low enough it’s not going to
bother you. This may be a wild goose chase, and if the
Applicant says I don’t mind doing it but it doesn’t make
any sense, they can just tell us, and then we’d have to
decide. So if this sounds like it’s too fanciful, tell me.
CHAIR BADAME: Well, are we looking for a nod
from the Applicant then, if they are amenable to coming
back?
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COMMISSIONER O'DONNELL: I would kind of like to
know how the Commission feels first.
CHAIR BADAME: Well, my comment was that I would
be supporting the motion that you made.
COMMISSIONER O'DONNELL: Okay, well that’s three
of us, I think, that I’m aware of, or four.
CHAIR BADAME: Commissioner Burch.
COMMISSIONER BURCH: I’ll be quick. I probably
have been privy to way too many sound studies based on what
I do, so I can reassure everybody that there is going to be
a central point, the source, and then they go out in a
radius. You also need to remember that this is 75 decibels
at 25’ from the source, which is basically going to be from
one side of the courtyard to the other, and then what they
will do is they will measure in increments out as far we
designate. So Joel could tell them I want it 500’ away, or
1,000’ away, and they will continue making radiuses that
tell you that if it’s 75 decibels at 25’ from the source,
it’s going to X decibels at 200’ from the source.
These sound studies are quite thorough, they’re
quite accurate, and they will also give you that equal to
listening to somebody whisper in the room next to you type
of thing, so I think that that would be very helpful. I
will support that motion. You can usually get them very
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quick. I think we could do this quite quickly and have this
resolved.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: In addition to community
involvement, could we have a Planning Commission
representative in on the sound study? I’m sorry, let’s move
on.
CHAIR BADAME: Commissioner Hanssen.
COMMISSIONER HANSSEN: I just wanted to weigh in
that I wouldn’t be comfortable approving this kind of
change to a CUP, especially one this close to a residential
neighborhood, without having a sound study. So if we can’t
do this, then I still wouldn’t be comfortable making a
recommendation to do it.
VICE CHAIR KANE: All right, I think we’ve gotten
our comments, so I am going to call the question. All in
favor? Passes unanimously.
JOEL PAULSON: We need a date certain though
would be helpful.
VICE CHAIR KANE: All right, so looking for a
date certain to add to the motion.
COMMISSIONER O'DONNELL: I’m going to suggest 60
days, and if the Applicant doesn’t like that, it’s too
short, a nod of the head, we can make it longer. I’m trying
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to make it short for you. We can make it 30 days. Thirty
days, then. Let’s make it 30 days. You can always come back
and ask for a further extension.
VICE CHAIR KANE: Well, the reality is we have
three meetings between now and January.
COMMISSIONER O'DONNELL: Yeah, that’s true. Staff
will have to tell us the first available date.
JOEL PAULSON: The first one currently
realistically looking at the continued items from previous
meetings is technically November 9th.
COMMISSIONER O'DONNELL: Well then, let’s move it
to November 9th.
CHAIR BADAME: All right, so does the seconder
accept that?
VICE CHAIR KANE: Yes.
CHAIR BADAME: All right, I’ll call the question
again. All in favor? Passes unanimously.
Mr. Paulson, this is a motion to continue, but
are there appeal rights on the action of the Commission?
JOEL PAULSON: There are not.
VICE CHAIR KANE: Thank you.
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