Attachment 06LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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
Charles Erekson
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 6
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
P R O C E E D I N G S:
CHAIR BADAME: Our first public hearing is Item 2,
which is 140 South Santa Cruz Avenue, the Toll House Hotel,
Conditional Use Permit Application U-16-005, requesting
modification to an existing Conditional Use Permit to allow
entertainment before 10:00pm on property zoned C-2:PD.
May I have a show of hands from Commissioners who
have visited the site? Any disclosures from Commissioners?
Ms. Zarnowitz, I understand you’re providing us
with the Staff Report this evening?
SALLY ZARNOWITZ: Yes, thank you. This item was
before you in September as a CUP modification, and at that
time the Commission directed the Applicant to conduct a
noise study at the site to understand the implications of
the request for entertainment. That has been conducted;
that’s in your Staff Report, and further clarification in
an addendum that you also received.
This evening we’re asking that the Commission
consider the proposed modification in light of everything
in the record, including the noise assessment—the Applicant
and also the noise consultant are here this evening also to
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
answer questions—and then forward recommendations on to
Council. Thank you.
CHAIR BADAME: Thank you, Ms. Zarnowitz.
Questions of Staff? Vice Chair Kane.
VICE CHAIR KANE: I just want to clarify, on page
3 of the Staff Report, under Recommendation Item 3 we are
referred to Exhibit 3 for the conditions, and I believe
that that has been renewed or amended and it is now Exhibit
12.
JOEL PAULSON: That’s correct.
CHAIR BADAME: Thank you for the clarification.
Any further questions? Seeing none, I will open the public
testimony portion of the public hearing and allow the
Applicant and their team ten minutes to address the
Commission. If you could state your name and address at the
podium.
JIM GERNEY: Thanks. Hi, I’m Jim Gerney; I’m the
regional vice president and general manager of the Toll
House Hotel. Nice to see you all again, and I just want to
say thank you for making us number one on the list; we were
number seven last time.
At our meeting on September 14th we discussed many
items regarding the Conditional Use Permit of our hotel,
and really the behavior of our business since we purchased
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
in January 2012. I think that that was one of the
prevailing discussions, but what really rang home was that
the community felt that in the years of 2008 to 2011 the
conditional use interpretation had been abused, the Sound
Ordinance had been abused, and therefore there should be no
flexibility in moving forward of any type of discussion
regarding our Conditional Use Permit.
Based upon the feedback that came at that
meeting, and I see many of those people here, which is
great and we want to be open to everybody, but I think we
were asked to do a couple of things. We were asked to reach
out to the community and make sure that everybody
understood what our intentions were, and we were asked to
conduct a scientific sound study.
We did conduct that scientific sound study with
Salter Associates. Alex Salter, one of the principles with
Salter Associates is here, and I’m going to ask when the
time comes for him to come up and explain that sound study,
because the way decibels move, the way that don’t move, and
the way they’re interpreted is really kind of above my pay
grade, so I’m not going to try to address that.
What I really want to address is that our intent
is to move forward and create a level playing field with
other businesses like ours in our community. I think that
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
we are hampered by the inability to have live music
outside. We have a courtyard we just spent $2 million on,
and we do a lot of things out there and they’re quiet and
they’re fine and I get it, but having a reasonable
accommodation that meets everybody else’s business
interpretation regarding sound and use is something that
we’re asking that you consider.
When we did the decibel tests in late September,
one of the things that we realized was that the movement of
decibels happen in different ways depending on what
position the sound was, where you were in location to the
hotel, and I know that there are lots of opinions on that,
and I think that the recommendation of the Planning
Commission was let’s put some science to opinion. We
believe we did that, we believe that we’re going to explain
to you exactly what that science is, and there are still
going to be opinions that differ with the science, and I
understand that.
Our intent is not to create conflict with the
community; it’s to create a level playing field. Whether it
becomes an issue on whether we have live decibel meters in
our place, we make reasonable accommodations; we make some
concessions and compromises along the way. That’s fine.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I’m going to cite an example that happened on
October 29th. I think you’re all familiar with Next Door.
We’re on Next Door, and a Next Door email was blasted on
the 29th that the Toll House was at it again. About 20
emails later we responded by saying the police are at the
Toll House and all is quiet. There’s an impression that
because we have a history of behavior prior to our
purchasing the hotel that we automatically become the
culprit. On October 29th we believe it was somebody else,
and we believe we know who it was, but that’s okay, it’s
not our problem. But the reality is that the subjectivity
of our business as being an at-risk problem is not
reasonable. I think everybody has come up and said since
2012 when we purchased this hotel we have done an admirable
job of accommodating that Conditional Use Permit and been
completely adhering to it.
You know what? Once we move into the sound study,
what I’m hoping that we walk away from today, the original
recommendation on September 14th was to approve to the Town
Council that they approve this recommendation. We walked
away with a postponement. I’m going to continue to press
that based upon what we’ve done, the behavior that we’ve
demonstrated, the outreach we’ve done to the community
really suggests that they’re our partners and we’re not
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
intending to create a compromise. I can’t argue with
opinions, I can only argue with facts at this point. We
have three-and-a-half to four years of ownership of this
property. We’ve had a great relationship; we’ve had no
issues. We’d like to have a level playing field; we’ve done
the homework, and we’ve done the outreach. I believe that
based upon the information that exists in Los Gatos we
deserve the same fair shake as everybody else.
I’d like to move forward into the actual study
that was done. Alex Salter, who is with Salter Associates—I
believe you have his card up there—I’d like to bring him
up. Sally, were you able to put the study on this? I’d like
to bring Alex up to talk specifically about what this study
shows us, and what it means, so that everybody can look at
it and see it the same way.
JOEL PAULSON: It’s the PDF in the middle. Just
double click it.
ALEX SALTER: The best thing to do probably would
be to go to the last page for the map.
As Jim mentioned, in late September we did a
sound study at the hotel where we simulated what an event
would be like. They brought some audio equipment into the
courtyard, we set it up as it would be during an event, and
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
we measured noise levels both in the courtyard and in the
surrounding community.
This map, figure 1 here shows all the measurement
locations. We have the hotel, which is hatched in the
middle, C-1 and C-2 being courtyard monitoring locations,
and then all of the L locations in the surrounding
community.
We simultaneously measured noise levels. We have
both the source levels of the music that was generated in
the courtyard, as well as receiving noise levels in the
community, and what we did is we found how does noise
attenuate to these various locations? Because obviously
music noise will vary, there are certain conditions that
can vary noise levels, but we want to know what is the
amount of noise reduction we get to each receiver, because
that essentially remains constant.
The report summarizes that attenuation in
addition to the noise levels that we measured. We found
that the Town of Los Gatos Noise Ordinance is based on
ambient noise levels that are established in the Town’s
Noise Zone Map, and you are allowed to exceed that by a
certain amount of about 5 dB. There’s also a penalty for
weekend noise, so it needs to be quieter on the weekends.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
We found that it would be achievable to meet this
Noise Ordinance while having music in the courtyard, and as
Jim mentioned, they want to be upstanding citizens in the
community. We’ve discussed monitoring during these events
so that they’ll know what the noise level that they’re
generating is. We established limits in here based on our
measurements of what they should be staying at, and so
they’ll be able to look at that, understand are they
getting close to the threshold because there’s some louder
music or someone else turns it up, so they’ll be able to
monitor that and adjust as necessary.
I think that they have also been willing—and
obviously monitor resources like Next Door that they
receive some sort of information—that there will be someone
onsite that is able to access that information and turn the
noise levels down, adjust as needed, and that’s essentially
the summary of what we did.
CHAIR BADAME: Would you like to talk a little
bit longer? Is the time up, Joel? No, time is not up. You
still have time.
ALEX SALTER: I think that’s about it. I’ll take
questions I guess later on, or if anyone wants to clarify
anything.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CHAIR BADAME: I’ll start with Commissioner
O'Donnell.
COMMISSIONER O'DONNELL: I’m looking at your
report of October 4th, to which this may be attached, and on
page 2 of that you put the measured entertainment noise and
nearby receiver locations, and three of those noise levels
in the third column to the right… Are you there yet? I
don’t want to go too fast. Pardon me? Well, we’ve all got
this, but do you have it before you?
ALEX SALTER: Yeah, I have it in front of me.
COMMISSIONER O'DONNELL: Okay. Perhaps if we
could show that, then other people could see it too. But
anyway, while she’s doing that I’ll just ask; my questions
are very simple.
The location L1 shows a 53 dBA, L5 shows a 54
dBA, L7 a 57 dBA, and L8, and I picked out those because if
I understand it correctly, if you turn to page 3, second
paragraph, it says, “However, with the subtraction of 5 dB
for weekends and holidays, events occurring from 1:00pm to
10:00pm on weekends and holidays should operate at a
maximum level of 69 dBA for C1,” blah, blah, blah.
It looks like, and maybe I’m misreading this, so
you’re indicating the maximum level at 1:00pm to 10:00pm is
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
60 dBA, but do you subtract 5 from that, or is that with
the 5 subtracted?
ALEX SALTER: This table is what we measure, and
so we see the courtyard noise level in the first column,
receiver noise level in the second column. All of these
measures had met the Noise Ordinance for the 1:00pm to
10:00pm weekday condition, but you are correct that there
are some that are above the weekend, which is why on page
3, that paragraph that you cited has a lower maximum noise
level of 69 dBA. So that would bring those noise levels
down within that 5 dB penalty, because if you notice the 57
or the 61, those source noise levels are 72 and 73, so it’s
currently operating at a higher level than what it should
otherwise be on a weekend condition.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: Can we make that bigger? Can
you all see those numbers? Can we enlarge that?
CHAIR BADAME: It’s not possible to enlarge it.
VICE CHAIR KANE: No? Sorry.
COMMISSIONER O'DONNELL: I’m sorry; I was
distracted I guess too by that, but could you go over that
with me again? You’re saying that some of the numbers are
above the weekend code, or not?
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ALEX SALTER: Yes. The measures were done at a
set noise level, and then we measured at the various
receiver locations. There were some adjustments made at
certain times, and that’s why we documented the courtyard
noise level, our source noise level. This table, more than
anything, is indicating the attenuation between the
courtyard, the hotel source essentially, and the receiver
locations.
COMMISSIONER O'DONNELL: That’s Table 2?
ALEX SALTER: Table 2.
COMMISSIONER O'DONNELL: Okay.
ALEX SALTER: So if you look at the courtyard
noise, let’s look at column 1, let’s look at L8, the
highest noise level. That’s 73 dBA. That receiver noise
level is 61, so let’s keep that one at being a worst case.
So that receiver noise level of 61, if we go back to Table
1 on the first page, these are the noise zone limits,
allowable weekday noise, 1:00pm to 10:00pm. Your allowable
weekday noise is 62, so we’re currently okay at 61 at that
location for a weekday, and that’s a source noise level of
73.
If we were then to take that condition and bring
it to a weekend, we would then need to be at 57, that third
column in Table 1, so that a difference of 5 dB. We’re at
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
61 right now, so we need 4 dB of noise reduction. Go back
to the source noise level of 73, and we need to be at 69 in
order to meet that weekend noise level. That is what we
have cited on page 3 as the maximum noise level that can be
generated.
CHAIR BADAME: Commissioner Burch.
COMMISSIONER O'DONNELL: I’m not finished. Could
I just finish this?
CHAIR BADAME: Yes.
COMMISSIONER O'DONNELL: Maybe I missed it, but
what is being proposed to reduce it to the level it has to
reach?
ALEX SALTER: We’re essentially saying that the
hotel is going to monitor the noise levels that they are
producing and limit the noise levels via a volume control.
COMMISSIONER O'DONNELL: So this assumes that
whatever noise—let’s call it music—whatever music they have
is going to be artificial, i.e. not a band, but something
you can turn the volume down on?
ALEX SALTER: Yes, that is my understanding.
COMMISSIONER O'DONNELL: So if they have a band,
all bets are off?
ALEX SALTER: The study here was based on
amplified music only, not live music.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COMMISSIONER O'DONNELL: I’m just saying I don’t
understand quite how you control sound unless it’s with a
dial, and if it’s with a dial, it’s not a band.
ALEX SALTER: Right, that is how we look at it.
COMMISSIONER O'DONNELL: Okay, thank you.
CHAIR BADAME: Commissioner Burch.
COMMISSIONER BURCH: My question somewhat has to
do with what Commissioner O'Donnell was just speaking
about. What I would like to clarify is there are obviously
different forms of music that can be played and that I
would assume that you would do. Most types of music have
some level of amplification; even an acoustical guitarist
is going to have a microphone. Is it my understanding that
you will have a monitor reading real time dBA, that if you
walk out and you see it’s between 1:00pm and 10:00pm and it
has gone up a couple, that will be immediately adjusted? Do
I understand that correctly? Because I do understand you
couldn’t just turn the music up and down all over the place
to do this; you had a baseline sound study that you did,
which makes perfect sense. I just want to confirm for those
in the audience that there will be real time monitoring
with someone making adjustments as needed.
JIM GERNEY: Yes, I will absolutely confirm that.
I’d also like to kind of address the question that
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Commissioner O'Donnell asked. Live music doesn’t
necessarily mean it is a rock and roll band, it could be a
three-piece jazz ensemble, but all live music is also
adjustable from a sound level based upon the way it’s
amplified. So if we’re doing non-amplified music, it will
have a certain level, but we also understand that there are
levels of amplification that reach thresholds at our hotel
that create problems outside of our hotel that we cannot
exceed. That 69 and 70, the numbers you just quoted; we
know what those numbers are, and we are fully committed to
managing to those numbers to ensure that the noise within
our property does not become problematic within the
thresholds of the Town’s limits.
CHAIR BADAME: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I’m concerned again
about controlling non-artificial sound, because I’ve put on
a couple of weddings for daughters, and you always tell the
bands to be quiet and they never are. How do you control
the sound? It’s all well and good if you’ve got a couple of
violins there, but you probably won’t have a couple of
violins. How do you control the sound of a band?
JIM GERNEY: Well, you can amplify or un-amplify
it. I mean bands do have volume controls on their
amplifiers.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COMMISSIONER O'DONNELL: Assume you have no
amplification, and you have a five-piece band not playing
rock and roll but playing danceable music, and danceable
music is all over the lot. You’re telling me that without
amplification, it’s going to be okay?
JIM GERNEY: What I’m telling you is without
amplification, if it exceeds 69 decibels we’re not going to
be able to put it outdoors.
COMMISSIONER O'DONNELL: Okay, so that means you
just shut down the band?
JIM GERNEY: No, we’re going to have theoretical
types of music that are going to meet or not meet the
expectation of accommodating the provisions within the
ordinance, and if a live band is subject to be at risk than
the 69, we’re not going…
We’ve got four years of absolutely demonstrating
that we’re onboard. This is not something that we’re going
to say, oh, by the way (inaudible), and I think that’s part
of the fear is the day that the lights go out, the lights
go out. I’m here to tell you that we’ve got four years of
accommodation and cooperation.
COMMISSIONER O'DONNELL: Thank you.
CHAIR BADAME: Do you plan on having an employee
that’s dedicated to noise monitoring, or will it be a
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
bartender, a hostess, or a manager that’s busy doing other
things?
JIM GERNEY: Great question. Absolutely not. We
actually have a manager that’s on duty every single
weekend, overnight, that is not specified to be doing any
job other than accommodating the global needs of the hotel
in the absence of the general manager. As the regional vice
president and general manager I’m very often absent from
the property, which is why we have a hotel manager, and in
his absence on the weekends we actually have what we call a
manager on duty. Their job is not to do their normal job,
but to be about the property to make sure the
accommodations of our customers and our business is
accommodated, so we have somebody.
Obviously, every manager that we’ve had and have
on board was part of the sound study, participated in the
going through and walking through this. We really wanted to
make this a holistic experience, so that as people move
forward we’re doing this right. I don’t want to do it
wrong.
CHAIR BADAME: Vice Chair Kane followed by
Commissioner Hudes.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
VICE CHAIR KANE: Let me see if I understand the
mechanics. You’ve picked ten locations to do this study,
and those were residences, L1 through L10?
JIM GERNEY: They were all residences, with the
exception of some of them were the perimeters of our
property, so that we could show as it reached to
(inaudible).
VICE CHAIR KANE: So one or more of them indeed
was a residence?
JIM GERNEY: Eight of them were residences.
VICE CHAIR KANE: And let’s say that L5 was a
residence, and let’s say that that represented number 8522
Broadway, and that’s how you got your data, from a receiver
at that location. Will that receiver be permanent at that
location?
JIM GERNEY: No, we are not…
VICE CHAIR KANE: How would I know then in the
future what the dBAs are coming to that location?
JIM GERNEY: I’ll let Alex address that, but
generally speaking is that the noise traveling from the
courtyard will have the exact same amount of ambient sound
at that location as it did during the test, so the
variations should be the same.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
VICE CHAIR KANE: So it will be an assumption,
perhaps a valid assumption, that if the generation is at X,
which is what it was at this study, then the reception
should be Y, that’s the presumption?
JIM GERNEY: Correct.
VICE CHAIR KANE: What’s the practicality or
feasibility of leaving some of these receivers in place?
JIM GERNEY: You know what? We’ll consider
anything.
VICE CHAIR KANE: That’s good; you’ll consider
it. I don’t even know if it’s practical, but when you take
them out, I’m thinking how do you know what’s landing there
if they’re not there? That’s good; you’ll consider it.
CHAIR BADAME: Commissioner Hudes.
COMMISSIONER HUDES: Thank you. I understand how
you’ve done the study and how you’re going to map the study
to operations; it makes sense to me. I have a question
about the study itself, though, and the locations. This is
potentially for the sound engineer.
I’m looking at locations L1 and L8 on the map,
and it looks to me like location L1 is about one-eighth of
the distance from the courtyard as is L8, and yet, I would
expect to see a lower level, or more attenuation, at L8,
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
considerably more than at L1. Why is it going the other
direction?
ALEX SALTER: Sure, that’s a good question. It’s
really the site topography. L8 slopes up a hill here, so
we’re actually overlooking the hotel and overlooking the
courtyard. I don’t believe we have direction line of sight,
however. L1 being at essentially the same level as the
hotel, you’ve got the structure itself that is shielding
the courtyard noise levels, hence the lower noise level.
COMMISSIONER HUDES: Okay, that makes sense to
me. Is it common to see eight times the distance, and the
sound level actually increasing over that distance in that
amount?
ALEX SALTER: Yes, it all has to do with
exposure. So you’ll have the distance you are from a
receiver, but then also what’s blocking it in your way. You
can be closer technically to a noise source as the crow
flies, but if you have a big wall in your way you would be
ostensibly exposed to lower noise levels than if you had no
wall and were considerably farther.
COMMISSIONER HUDES: So if you look at L8,
there’s another building just to the right of that; it
looks like it’s part of that same property, so that’s
closer. Did you take a measurement there, and is that a
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
residence? I wasn’t able to access that particular
location.
ALEX SALTER: I believe that’s part of the senior
community that’s up on the hill. We did not do a
measurement there specifically. A lot of it is we’re
restricted to areas we can access, some place that has a
structure or tree or something that we can hang a monitor
on.
JIM GERNEY: That was actually a residence that
volunteered to let us use their residence as a sound study.
COMMISSIONER HUDES: No, I’m talking about the
building just to the right of L8.
JIM GERNEY: We asked if we could have access to
over there from The Meadows, and only the residents in the
location of L8 provided us access for the sound study.
COMMISSIONER HUDES: Okay, so question for the
sound engineer. Do you expect the sound level to be louder
at that building that is to the right of L8?
ALEX SALTER: I don’t believe so, mainly because
this being the courtyard here, and then the two buildings
essentially meet, so we’ve kind of got an area in here
where you’ve got more noise coming through, because you
don’t have as much of the structure. If we were to put a
monitor over here, it would probably be blocked a little
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
bit more by this structure, so I think this is essentially
a worse case line of sight down to the courtyard area.
COMMISSIONER HUDES: Okay, thank you.
CHAIR BADAME: Commissioner Hanssen.
COMMISSIONER HANSSEN: I had a question about the
attenuation. You said it means relatively constant, so if
we measured it a month from now or two months from now from
any given location to the courtyard location, the sound
levels should be the same?
ALEX SALTER: Yes, they should be very similar. I
won’t say that they’ll be exactly the same. Wind can affect
noise to a certain extent. The effects that wind can affect
is more over longer distances, so closer in it’s not going
to be as pronounced. It probably won’t be that significant,
but it will certainly vary somewhat. Temperature affects
noise, but it’s on a much, much smaller scale than what
we’re talking about in terms of distance and shielding and
what your exposure actually is.
COMMISSIONER HANSSEN: Getting back to the
question about L8, because it was one of the loudest noise
levels in your study, so you’re saying because it’s
relatively close to the hotel that the attenuation
shouldn’t vary as much in different conditions?
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ALEX SALTER: From a day-to-day point of view,
we’re just talking about the courtyard to L8?
COMMISSIONER HANSSEN: Yeah, because this whole
thing basically is based off of the noise level that would
not cause the variance from the minimum that the Town
requires, and that location was the one that would be in
violation under the current conditions, so if anything
changed to the negative, then it would be more of an issue.
ALEX SALTER: I’m not sure I completely
understand, but yes, that is sort of the worst case that
sets the maximum noise level, because it is where we
measure the highest received noise level. The attenuation
part of it where we have 12 dB noise reduction, which is
the lowest amount of noise reduction from source to
receiver, that should stay pretty much the same on a day-
to-day basis. It won’t be exact. Some days it may be 13, it
could be 14, it could be 11, but it’s not going to be like
all of a sudden we’re going to have 18 dB of noise
reduction or 5 dB of noise reduction.
And to give you a little bit better sense of the
change in decibels, you generally won’t be able to notice a
change in noise levels until it actually changes more than
3 dB. Generally, the human ear can’t detect a change of one
or two. That’s something that needs to be measured in a
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
laboratory with a sound level meter for it to be something
that is noticeable.
COMMISSIONER HANSSEN: So just because I may not
have explained what I was asking, I think you answered my
question, but L8 was at 61 dB, and then the requirement
from 1:00pm to 10:00pm is 74 or 69, right? And then from
6:00am to 1:00pm it’s 70 and 65, so all I was saying is
because L8 was closest to that, if there was any difference
in attenuation, then we would just want to know how much of
an adjustment they need to make. You don’t have to answer
that part; I just was trying to understand how it worked,
and I think you answered by question. Thank you.
ALEX SALTER: Okay, thank you.
CHAIR BADAME: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: Thank you for being
here; we have all these questions. You used C1 and C2 on
the property, right? And you did that to get the difference
in sound, depending on where you located it, with the idea
being at some point, assuming this would get approved, you
would have a monitor either at C1 of C2, is that correct?
ALEX SALTER: Yes.
COMMISSIONER O'DONNELL: And your measurements
then taken from C1 and/or C2, and following up on the last
question about L8, to the extent that it is higher than the
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
weekend permitted, and therefore it would have to be
reduced, as I recall, is that correct?
ALEX SALTER: The maximum noise level, right,
that varies based on a weekday and a weekend.
COMMISSIONER O'DONNELL: Right, and it’s how
many, almost 3 or 4 dBA higher than the Town ordinance?
ALEX SALTER: Core dBA.
COMMISSIONER O'DONNELL: I guess what I’m
wondering is if I’m a property manager of something and I
wander out and look at the dial at, let’s say, C2, what am
I looking for? What should I see there so I’d be
comfortable that L8 is going to be compliant with the
Town’s ordinance?
ALEX SALTER: That would be on the third page
where we have 74 dBA at the C1 meter location—it’s the very
first sentence—and then in parentheses we have what the
equivalent would be at C2, which is 82. Because there is
essentially an 8 dB difference between the C1 and C2
locations, and that’s due to at C2 you’re closer to the
speakers, to where the noise is (inaudible).
COMMISSIONER O'DONNELL: So you’re saying—and
maybe I’m not understanding, so that’s why I want to repeat
it—if, for example, on the 1:00pm to 10:00pm, if my reading
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
on the weekend were 69 or below, that should be compliant
on all of the offsite?
ALEX SALTER: Correct, if you’re reading 69 at
the C1 location.
COMMISSIONER O'DONNELL: And how close is that
figure? In other words, you said the human ear couldn’t
pick up two or three decibels. If the weekend and holiday
noise is 69, is that a number then that if I went out and
looked at the meter some evening at 7:00 or 9:00 o'clock,
whatever, on a weekend, if it’s 69 or below I can feel
comfortable that all these offsite locations are going to
be compliant?
ALEX SALTER: Yes, based on our study that’s
correct.
COMMISSIONER O'DONNELL: Thank you.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: I’ve driven up to The Meadows
from time to time, and in going up Wood Road and winding
around and getting up there I always felt I was half way to
Saratoga, but in looking at your aerial, the hotel is just
a stone’s throw away. So my question for management, Mr.
Gerney, is you mentioned four years. Now, that means your
shift, four years?
JIM GERNEY: (Inaudible).
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
VICE CHAIR KANE: Okay. In those four years have
you ever gotten a complaint from the folks at The Meadows?
JIM GERNEY: I’m not going to say absolutely we
have not, but I am not aware of any.
VICE CHAIR KANE: I’m just thinking they’d have a
high sensitivity to sound, a retirement community, medical…
JIM GERNEY: And if I just may add that because
they are such close neighbors that we are very actively
involved with them on a day-to-day basis. We have many
business partnerships with them on different levels other
than entertainment.
VICE CHAIR KANE: Second question, if I may?
CHAIR BADAME: Yes.
VICE CHAIR KANE: You held an outreach program on
October 6th?
JIM GERNEY: Yeah.
VICE CHAIR KANE: And you sent notices out RSVP.
How many attended from the neighborhood?
JIM GERNEY: We had close to 200 people attended;
I’m going to guess that. Not a lot from the neighborhood
attended; some from The Meadows, some from the
neighborhood. We pretty much invited anybody that was in
our zip code just to try to flood the whole entire
environment.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
VICE CHAIR KANE: But you had an RSVP on it?
JIM GERNEY: Yeah.
VICE CHAIR KANE: Did you look at the addresses
to see how many were Broadway?
JIM GERNEY: I will defer, just give me a moment
on that? I’m not sure we had anybody attend; I can’t
guarantee that we did. We had plenty attend when we did the
sound test though.
VICE CHAIR KANE: Thank you.
CHAIR BADAME: Further questions? Commissioner
Hanssen.
COMMISSIONER HANSSEN: I heard loud and clear
that you’re more than willing to have a sound monitor,
however, I didn’t see it in our terms and conditions, so if
we were to ask that that be part of the CUP, that you have
a sound monitor as part of this changing of the CUP
conditions, is that agreeable to you?
CHAIR BADAME: Commissioner Hanssen, I would just
like to interject that it is one of the conditions, in
Exhibit 12.
COMMISSIONER HANSSEN: Maybe I didn’t look at the
right number.
JOEL PAULSON: If you take a look at Exhibit 12,
there was additional language added relating to a monitor.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COMMISSIONER HANSSEN: Okay, thanks.
CHAIR BADAME: Further questions for the
Applicant? Seeing none, thank you very much.
JIM GERNEY: Thank you.
CHAIR BADAME: I will now invite comments from
members of the public. Our first speaker will be Larry
Lenhart.
LARRY LENHART: Hello, I’m Larry Lenhart; I live
on 30 Broadway in Los Gatos, California.
I know that the conversations around a decibel
here, a decibel there, are interesting. Mathematically that
makes very little difference when you think about, as you
mentioned, a party and music outside. A loud voice trying
to go above that sound will make an enormous amount of
difference.
And if you look at this facility, it’s not
competitive with any other facility in Los Gatos. It’s a
level playing field. This is the only facility in Los Gatos
with an outdoor open environment surrounded by concrete
that has open sides on each end. This right here is a sound
machine. There’s a reason why years and years and years ago
the Town Council said we cannot afford to let the
retirement communities in L8, we can’t afford all of these
folks that live right next to this sound machine, to be
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
enduring the sound again and again and again. We talked to
the Town Council who actually created the CUP many, many
years ago, and that was their perspective, so the simple
way to manage that process is to maintain the CUP.
As far as the interactions, I think you guys had
both meant the Commission to ask two things: one, the sound
study; and two, outreach to the community. We mentioned a
couple of things.
One, we did get two outreaches from the Toll
House. One was an invitation kind of posthaste to the Jazz
on the Plazz kind of the drinkfest actually, which the
folks on Broadway, we kind of got it late, didn’t go.
The second, I think there was an email or a
letter that was sent by snail mail asking if we could use
your property to do the sound test. There was no other
interaction. There wasn’t any conversations with the
street, there wasn’t any hey, this is what we’d like to do,
is that good, is that bad?
Great example, Number One Broadway has been
terrific with the street. They’ve come out, they’ve met
with us, they’ve walked up and down the streets when
there’s noise, they’ve learned how to shut the… They’ve
been terrific. With the Toll House, there’s been zero. As a
matter of fact, I had a conversation with the Town Attorney
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
31
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
a few weeks ago. We talked about the CUP and what likely is
a violation of the current CUP, and Mr. Schultz asked, he
said, “Look, I think they would like to talk to you. Is it
okay if I share your contact information?” I sent him all
my contact information. Never heard nothing. So there’s a
little challenge from historically managing the details of
a decibel level. The Town Council said that’s impossible,
so let’s put the CUP in place.
And second, we’ve really had no interaction with
the Town. Even you guys have asked them to do that; there’s
been little to no interaction. Thank you.
CHAIR BADAME: Thank you, Mr. Lenhart. I have a
question for you from Vice Chair Kane.
VICE CHAIR KANE: Was your residence one of the
L1 through L10s?
LARRY LENHART: No, it was not. We did not
receive any letter, but if we did, you know, (inaudible).
VICE CHAIR KANE: But you said you received a
letter?
LARRY LENHART: A number of people on Broadway
did receive a letter.
VICE CHAIR KANE: But you did not?
LARRY LENHART: We did not.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
VICE CHAIR KANE: Okay. Did you attend the
October 6th function?
LARRY LENHART: No, as I mentioned, it was a
function for Jazz on the Plazz, and really it was a
drinking opportunity for all the folks in the local
community. I think very few people from Broadway went;
maybe two or three people might have gone.
CHAIR BADAME: Mr. Lenhart, your address is 30
Broadway, so can you tell us how far up the street you are
from the…
LARRY LENHART: I’ll point it to you, and then
I’ll come right back.
CHAIR BADAME: Okay.
LARRY LENHART: So we’re located right here, and
this right here is an open wall, so this actually becomes a
sound cannon that shoots the sound this way.
VICE CHAIR KANE: If you’re going to talk to us,
you gotta get the mike.
LARRY LENHART: Oh, I get so excited up there. So
there’s an open wall on the right side, which I think the
sound person had highlighted, that lets the sound escape
pretty dramatically, so it goes shooting through that alley
and right up into our house, and obviously the other open
area is right up into the retirement community.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
33
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CHAIR BADAME: Thank you. Any further questions
for the speaker? Seeing none, thank you very much. Our next
speaker is Lori Forcier.
LORI FORCIER: Hi, my name is Lori Forcier. Thank
you for allowing us an opportunity to speak. I’m here with
my husband, Brad, and we live at 45 Broadway, which is
represented by L3 on your diagram. I guess there are two
points I’d like the Commission to consider.
One, I look at the level of outreach and
communication over these past few months as a good
predictor of what our relationship will be like going
forward with the Toll House. I liked what Michael Kane said
at our last meeting, that you should listen to your
neighbors and we should work together, and out of that we
did get the sound study, and we did get a letter announcing
the sound study. The event on October 6th was a party that
had been planned at the Toll House that we were invited to
attend, but it was no way an event specifically around this
request from the Toll House.
Tonight is the first time I’m seeing the results
of the study; nothing has been shared with me. It would
have been an opportunity for the neighborhood to get
together to talk about what the results were, what they
mean, how they would like to enforce and make sure that
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
these decibels were being met for our neighborhood, and
none of that communication has happened. Based on what I’m
seeing tonight for the first time I have new questions
about decibel ratings being higher on weekdays versus
weekends, which leads me to my second area of thought that
I’d like you to consider.
We have three small children, a ten year old, a
three year old, and a one year old; children with 8:00
o'clock bedtimes, children with homework. This back yard is
attached to our kitchen and our family room.
When we did do the sound study there were two
elements that the sound expert mentioned could impact
noise: temperature and wind. It was one of the warmest
nights in September with very little wind, and having lived
in this neighborhood for three years I know there’s a
difference between the offshore and the onshore wind and
what that means just from the sound of the freeway. It was
an extremely quiet night, and when we asked if there would
be a second data point that was more reflective of an
average evening on our street. We were informed that there
would not be, because it was cost prohibitive, which I
appreciate. We don’t want to put an undue burden there, but
I think that’s a realistic concern for us in terms of what
does a sound study really represent in terms of what it’s
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
truly like in our neighborhood most of the time. Most
evenings aren’t super hot some evenings, and again,
consider the fact that we have children, the fact that the
decibel ratings are higher on weekdays when I need to put
them to bed and have homework is a concern for us. Thank
you for your time.
CHAIR BADAME: Thank you. Question from Vice
Chair Kane.
VICE CHAIR KANE: When you say that tonight is
the first time you’re hearing about the decibels, my
question is prior to tonight did you have access to the
numbers on the study? Was it sent to you, or offered to
you?
LORI FORCIER: No.
VICE CHAIR KANE: Were you told where you could
find it?
LORI FORCIER: No.
VICE CHAIR KANE: My second question is tonight
are you provided with the study? Was it in the packets that
were out on the table?
LORI FORCIER: There’s some details around the
agenda, but there is no… All of the things that were
presented on the screen we received for the first time on
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
36
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the screen; I didn’t see any pamphlets handed out or
available outside when I came in.
VICE CHAIR KANE: Okay, thank you.
LORI FORCIER: Thank you.
CHAIR BADAME: Thank you. Next speaker, Tom
Richards.
TOM RICHARDS: Hi, I’m Tom Richards; I live at 62
Broadway. I’m right around L10-ish, I think, on this map,
but again, I haven’t seen it before and I don’t really look
at our neighborhood from this angle very often, so it’s
hard for me to place it.
I just wanted to mirror a lot of the points that
were made. Nobody has reached out to me for my wife. We
have a two-and-a-half year old daughter. I would have loved
to know what the decibels are that they’re trying to
produce, what they think those are. There was a bit of hand
waving I think in terms of what decibels are. I’d like to
see somebody install a knob to turn down drums; I think
that’s pretty hard to do though, drum are pretty loud
things. People talking over drums does get very loud
quickly.
I think my wife and I are both concerned about
the effects of loud noises on our child, getting her to
bed. She goes to bed at 7:30; that’s well before this time.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
37
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
So that just what I wanted to say to support the
rest of the people here, and I share their opinions as
well.
CHAIR BADAME: Sir, thank you. You still have
time remaining, if you like.
TOM RICHARDS: No, I’m good. Thanks.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: Same questions. Did you get the
letter about the receivers?
TOM RICHARDS: I haven’t received anything in
writing. Nobody has come and spoken to my wife or I at our
house.
VICE CHAIR KANE: So you didn’t know about the
receivers?
TOM RICHARDS: I’ve never seen these people
before in my life.
VICE CHAIR KANE: Not the people, but did you get
the letter about the receivers, the sound study that was
going to be done?
TOM RICHARDS: I don’t believe so.
VICE CHAIR KANE: All right, did you attend the
October 6th thing?
TOM RICHARDS: I did not.
VICE CHAIR KANE: Okay, thank you.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
38
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CHAIR BADAME: Next speaker is Gail Randolph.
GAIL RANDOLPH: Hello, Gail Randolph. I’ve live
at 42 Broadway since 1975. The suggested changes are what I
thought I would talk about and why not to change the CUP.
The suggested changes in the CUP are
inappropriate. The use of the property was well thought out
with foresight and settled by conscientious citizens just
like all of us over 20 years ago, and nothing has really
changed in the neighborhood.
There is a lack of trust that they keep their
word on anything. This is not only because of action by
previous ownership, but this owner too. That they haven’t
abided by their CUP right now is my proof that they are not
trustworthy.
I gave permission to study sound on my property,
and to my knowledge they did not. I was available and on
the street at the time. I talked with neighbors, I sat on
my steps with my iPhone decibel meter, and between 7:00 and
7:30 no one came by to interact or test, and by the way, I
could hear the music a little bit, but faintly.
The gin party was not just for Broadway, to reach
out, but for Jazz on the Plazz. Jason was going to announce
the findings for this sound study if they were available,
so I contacted him to let him know that I didn’t drink and
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I don’t have a 1920s outfit, but if business is going to be
mixed in with this pleasure, I would be there. By the way,
I just learned about the sound study result from exhibits
attached to the agenda online.
My other thing is that businesses escalate.
They’re proposed in their most modest form. Let’s take a
family restaurant nearby as an example; great, nice,
welcomed. But then a request comes from customers after a
while that they need to have beer and wine served with the
food. Okay, that happens. Then a few years later it’s
trendy to have drinks and hard liquor and cocktails, so
they added that. Then they built a bigger bar, really
beautiful bar, and added bar furniture, and now they’ve
renovated the whole interior. Oh, darn.
CHAIR BADAME: You’ve got 30 seconds. Keep going.
GAIL RANDOLPH: Thanks; I can do it. They
renovated the interior, so now if you just remove the
tables and chairs from this space, you would have a perfect
nightclub setting. In fact, if you look on their website,
it states, “If Los Gatos had a club house, this would be
it.” These are the kind of baby steps that I see, and I’ve
been there a long time, so I don’t expect anything
different from the Toll House.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
40
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CHAIR BADAME: Thank you, Ms. Randolph. Do we
have questions? Seeing none, thank you very much. Our last
speaker card is Michael Verga.
MICHAEL VERGA: Hi, my name is Mike Verga; I’m at
46 Broadway Avenue. It’s kind of hard to read there, but
all the green areas are residents that I’ve walked to their
houses, spoke with them, and they are in agreement that we
do not want that CUP changed. You can see they’re
surrounding pretty much that pink area where the Toll House
is.
The Toll House just told you that they were in
compliance with their CUP. They are not in compliance with
their CUP, they’re not in compliance with the seating
restrictions, and they’re not in compliance with no
banquets, receptions, and conferences.
My wife and I did our homework. We contacted the
three former Council members that implemented the CUP,
Randy Attaway, Joanne Benjamin, and Steve Blanton, and they
were in disbelief that the Planning Department is ignoring
their hard work. Steve Blanton was very clear there was no
way that the Toll House and the restaurant would be
separated; they were and are one entity. It makes no sense
that they would separate the two, and they didn’t.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
41
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
So what has happened is we have a planning
department that’s playing word games with both you and us
as the residents, and it means that they’re not being
neutral in their administration of this CUP, and because of
that the Toll House is ignoring their own CUP, and what’s
the end result? The end result is that we as residents have
a problem with we don’t trust that the Planning Department
is looking out for our best interests. They seem to be
looking out for the Toll House’s best interests, and
because of that the Toll House has done zero outreach, as
has been indicated by the residents.
They did not come and sit down with us; they did
not listen to our concerns. There is room for negotiation,
but it would require us to trust them, and for them to come
to us and say would you like to work with us; is there
something we can work out? That would be possible, but it’s
not possible when you don’t trust the people that you’re
supposed to be negotiating with, and you feel like they’re
trying to railroad their own agenda without listing to what
our concerns are as residents.
A one-time test that the Toll House conducted one
evening does not take into consideration humidity, wind,
and all the changes of outdoor sound. The sound test was
conducted with nobody in the courtyard. You think if you
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
42
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
had 100 to 200 people in the courtyard that that’s not
going to change things? Of course it’s going to change
things. You’re going to have to turn up the volume so the
people in the courtyard can hear, whether it’s amplified
music, whether it’s a band, whatever it may be.
I don’t believe the Planning Department is
looking out for our best interests as being neutral. I
don’t think they’re being neutral. The Toll House is not
looking out for our best interests, and we’re asking you to
look out for our interests. Thank you.
CHAIR BADAME: Thank you, Mr. Verga. Any
questions? Seeing none, I do have one more speaker card,
and that would be from Gillian Verga.
GILLIAN VERGA: Hello, again. My name is Gillian
Verga and I live at 46 Broadway.
Since we met two months ago essentially nothing
has changed. Yes, a sound test was done, but I think we’ve
talked a lot about whether those results are really
reliable. No outreach was done from the Toll House to the
neighbors. The same neighbors who opposed the CUP change
before still oppose it now, and the Toll House is still
violating their CUP terms by holding events on their patio
on a regular basis.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
43
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
The two documents included in the report to the
Planning Commission as evidence of outreach are laughable.
Outreach is a two-way dialogue, not a letter and an
invitation to a party. I had hoped and expected that there
would be a meeting between the Toll House and the neighbors
where the neighbors could share their concerns and the Toll
House would listen to them and respond. I had hoped and
expected that the results of the sound study would be
explained to the neighbors prior to tonight’s meeting with
an opportunity to raise questions and concerns. I had hoped
and expected that any additional provisions to the CUP
change would have been discussed with the neighbors and we
could have some say in whether they address our concerns. I
had hoped that if our discussions with the Toll House were
not productive that perhaps a neutral party would be able
to help us negotiate some kind of compromise between the
two parties.
Since none of these things have happened, I’m
exactly where I was two months ago with respect to the CUP
change. I recommend that the change be denied and the Toll
House remains allowed to have entertainment indoors only.
That’s all I have.
CHAIR BADAME: Thank you, Ms. Verga. Commissioner
Hudes.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
44
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COMMISSIONER HUDES: Thank you. With regard to
the events that are occurring that you’re aware of, do they
involve music or loud sound?
GILLIAN VERGA: I believe that they have been
adhering to the lack of amplified music in the courtyard,
but they are having larger seating for more than 36 people,
and they are having receptions and banquets in the
courtyard, which is specifically denied by the CUP.
COMMISSIONER HUDES: Okay, thank you.
VICE CHAIR KANE: Have you made complaints to the
Planning Department that perhaps a code enforcement officer
can investigate the complaints?
GILLIAN VERGA: No, I have not.
CHAIR BADAME: Thank you. Vice Chair Kane.
VICE CHAIR KANE: I just want to ask the same
questions I asked before. Did you or your husband receive
written notification from the Toll House regarding the
sound study?
GILLIAN VERGA: Yes, we received the letter, and
I emailed Jason and said he could use my house as part of
the sound study.
VICE CHAIR KANE: And did they?
GILLIAN VERGA: And they did, and in fact, our
house was the location for the ambient sound meter.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
45
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
VICE CHAIR KANE: Second question. Were you able
to attend the October 6th function?
GILLIAN VERGA: Yes, I did; I went to it. As
everyone here has mentioned, it was a party for Jazz on the
Plazz. There were maybe a couple of hundred people there—I
don’t really know, I’m not good at counting—but it was a
party. The sound study results were posted on a board in
the corner. I actually had a conversation with someone
there about how the decibel numbers that are listed on the
chart are lower than a regular conversation, and we pulled
out our phones and our sound meters and spoke into that and
got 85 decibels, so I don’t really understand how it all
works. There was certainly no discussion at that event
about the issues around the CUP change, and in fact I think
it would have been really inappropriate to try to bring
that up at a party like that.
VICE CHAIR KANE: I’m not saying it’s your
responsibility, I’m just wondering if you or any of the
neighbors you know ever requested a meeting with the Toll
House to air your concerns?
GILLIAN VERGA: I have had a couple of
conversations with Jason, and I told him that I could not
represent the neighborhood myself personally, because he
would say things to me like, “Our intention is not to
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
46
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
bother the neighbors, and our intention is to keep the
noise quiet,” and I said, “You need to talk to the
neighbors as a group. You cannot assume that I’m going to
pass that information on to the neighbors. It’s not my
place to do so,” and I recommended to him that he reach out
to everyone who spoke at the last meeting.
VICE CHAIR KANE: Thank you.
CHAIR BADAME: Any further questions? Seeing
none, that was our last speaker card, so thank you very
much. One more. Rod Teague.
ROD TEAGUE: I don't know why I feel compelled to
speak tonight on this subject, but I live in Los Gatos and
I’m a musician. I’ve been playing music in Los Gatos for
about 15 years, and I do empathize with the residents.
I used to play at Toll House. I play Spanish
guitar, and I play flamenco style guitar. I’ve played Dio
Deka, I still play at Testarossa, Wine Cellar, the list
goes on, and I do notice there’s always a trend that
happens that percussion, as much as I love music and I love
percussion, it causes problems with residents and
neighbors, and when you have cymbals and loud drums you
tend to get lots more complaints.
I guess what I’m trying to get to is don’t throw
the baby out with the bath water. There are hopefully
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
47
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
solutions that work for the residents as well our
businesses, which we want to prosper. I can’t imagine if we
threw out all the CUPs, because obviously that’s there for
a reason, but I just hope that you would consider other
things in the ordinance that maybe exclude things like loud
cymbals or large drum kits, and oftentimes that does the
job. I’ve played at several venues, between especially here
and Saratoga, that have banned their music because of… And
it comes down to the drum kits, or a DJ comes in with
really loud music. So anyhow, that’s all I have to say.
Thank you.
VICE CHAIR KANE: I have a question for you. So
Old Town has a CUP that allows unamplified background
music. “There shall be no amplified electric or percussion
music.” Is that something that you can see for the
courtyard area of the Toll House, based on your testimony?
ROD TEAGUE: I mean absolutely, I think you can
play… If you want to have a loud… I’ve been to the Toll
House when there were large groups playing with heavy
percussion, and it weighed on me that neighbors are
probably going to get tired of this real quickly, and there
is a solution in between there where you could eliminate
that. Acoustically it’s difficult, because for me, my rule
of thumb, once you’re playing and you get into a crowd of
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
15 or 20 people, it defuses the music to where you almost
can’t hear it, so you do need amplification. Does that
answer your question?
VICE CHAIR KANE: Yes, it does. Thank you very
much. So you are saying it needs amplification?
ROD TEAGUE: It does, yeah. I think you do in
that type of space, but I think there are ways to do it
that still has that musical vibe and draws people without
tipping the scale and creating a problem, and usually the
core of that problem from my experience is it always comes
with a big, heavy drum kit. You can play percussion on
hand, you can play timbales, or you can play a doumbek or
something that has nice live percussion and has that vibe,
but it doesn’t carry like a large…especially cymbals, so
who knows? Maybe there’s a way to consider some of those
things.
CHAIR BADAME: Thank you for your comments.
ROD TEAGUE: Thank you.
CHAIR BADAME: That was our last speaker card, so
I will now invite the Applicant and his team back to the
podium for five minutes to further address the Commission
on this application.
JIM GERNEY: Thanks again. I appreciate you guys
taking the time and inviting us back. I think that the
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
49
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
information that we heard from the sound study, as we
thought, I mean the interpretation of science still has
some personality and some subjectivity to it, and if I
lived in those houses I would probably be more subjective
than objective, so I understand where they’re at.
We were just talking amongst ourselves and I
think Rob brought up a good point, which was is a live band
different than a DJ, different than a cellist? Yes, we all
agree there is. Is there a way to find a compromise that we
can figure out that we cannot have a live band with
percussion? We might be able to have a DJ; we might be able
to have live acoustic music that would complement a
wedding.
I think obviously measuring the sound, having a
permanent device to do that, having a person that
understands how to read that device and be responsible for
that on a daily basis when we have events, is pretty
important to everybody around here.
There’s one point I just want to touch on. I was
a little disappointed, because I’m not the best outreach
guy. I mean, you know what, and I’m not sure Jason… He’s
probably better than me, but maybe not the best, but when
we sent those letters about the sound study we went out and
we really tried to reach some people, and I believe that we
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
50
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
actually got some very specific neighbors that reached out
to us that were here at this event on September 14th that
said okay, let’s check you out. What I heard tonight was we
did nothing.
I’d like to say we did something. Maybe we didn’t
do as much outreach as we should have, but I would also
like to share that on the event of the night that we did
the sound study I personally was out on the street, on
Broadway, and the people that said we weren’t there we
talked to. I don’t want to challenge this. I mean, again,
is the expectation met that we did as much as we should
have? I’m not going to challenge that. We did what we
thought we were given direction to do. We were given
direction to complete a sound study and to reach out to the
community. We reached out in letters.
I believe you all have a copy of the letter that
we sent to the community indicating that at the reception
on October 6th we were prepared to present the entire sound
study. We had it enlarged on a large flipchart, on a large
poster board. Anybody that came in could come look at it;
we had people standing by to explain it. And again, I don’t
think there was a lot of interaction in that. There was
certainly a lot of interaction on the night of the study.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
51
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
But based upon the information that we received,
yeah, we did not have an event planned for October 6th on
September 14th when we were at this Commission meeting. On
the 15th we wanted to move very quickly; we went into
action. We obviously contacted a sound specialist. We got
them into high gear to do this; we moved quickly. We
decided that October 6th would be a date that we could host
a community event. No offense, but I’m not pulling out all
the stops and doing some things and not having anybody show
up. Yeah, I invited everybody I could. We invited everybody
that was in our area. Whether they received, chose, or
chose not to attend, I can’t control that.
I believe that we did the requisite amount of
outreach that we were prescribed to do. I believe that
we’ve done all of the technical studies that we were asked
to do. I believe that those studies and our behavior
suggest that we are no different than any other business in
Los Gatos, and that the Sound Ordinance that applies to
others should apply to us, including the live music.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: The October 6th event, was it a
Jazz on the Plazz event?
JIM GERNEY: It started out as being a community
event. We got probably 40 responses from our immediate
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
52
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
area, but we really wanted to open it up, so what we did is
we went to the jazz group and invited them.
VICE CHAIR KANE: You invited members of the Jazz
on the Plazz staff?
JIM GERNEY: And their local community base, yes.
VICE CHAIR KANE: Is there any reason I didn’t
get that memo?
JIM GERNEY: I think you did.
VICE CHAIR KANE: I don’t…
JIM GERNEY: My apologies.
VICE CHAIR KANE: I have a question about self-
monitoring. The courtyard is right below the hotel, and all
the guestrooms are what, three or four flights up? Do you
get complaints from those folks about music or noise coming
from the courtyard?
JIM GERNEY: No, we don’t, because we don’t have
music in the courtyard.
VICE CHAIR KANE: An event in the courtyard,
something that these other people hear, do people in the
hotel hear it?
JIM GERNEY: Absolutely they hear it. The events
that are being referred to at this point might be an
outdoor wedding where the actual ceremony is being done
without any type of amplified anything, with no music, with
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
just a minister, or maybe a luncheon, and those events,
generally no, we don’t get much feedback on. No, we’ve not
had any issues.
But I think a point that was brought up at the
last one is that we have a responsibility, at a $250 to
$300 price point, we’ve got to be sensitive to those
customers.
VICE CHAIR KANE: Thank you.
CHAIR BADAME: Thank you, Mr. Gerney.
Commissioner Hudes followed by Commissioner Burch.
COMMISSIONER HUDES: Question for the sound
engineer. Some of the testimony that we heard from
residents talked about a baseline music level and then
conversation on top of that music level. How many dbs would
you add for conversation at an event, and what would the
resulting sound level be?
ALEX SALTER: Generally, face-to-face
conversation in a normal level is somewhere around 60 dBA.
I mean we’re talking it could be maybe 50 or 100 people at
these events. It’s hard to predict, because are all those
people talking at the same time, and how loud are they
talking? Generally there will be some crowd noise in there,
but we would probably need to do some additional studies to
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
54
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
really quantify in this particular venue what would crowd
noise add to it.
COMMISSIONER HUDES: So is that additive, the 40
to 60 dBA for conversation? Do you take the 40 number and
the 60 number and do you add that up to the 74 or whatever
that number is?
ALEX SALTER: No, it’s not arithmetic, it’s
logarithmic.
COMMISSIONER HUDES: Thank you; that was my
understanding. So what would that number be?
ALEX SALTER: Let’s take two noise sources at 60
dBA. It would be a 3 dBA increase, so the resulting noise
level would be 63 at a noise level that we’re measuring in
here where you have noise levels in the 70s for the music.
I should also make it clear, what we did was not
necessarily blasting music as loud as we could, so there
are obviously going to be some limitations to the amount of
noise that we can produce for these neighbors, for the
guest rooms, so we did this at what is a reasonable level
that we would expect to want to have the music noise level
be at.
COMMISSIONER HUDES: If I may? Is there a margin
that you think might make sense to apply? Because your
numbers are right up against the ordinance. When I look at
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
55
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
your maximum numbers, that gets you to the maximum in the
ordinance, and it doesn’t account for anything. Is there
any reasonable margin in your opinion as an engineer that
would be something that might make sense to account for
other kinds of noise other than the music that emanating
from one particular place that’s near that sound monitor,
but you’ve got conversation, you know, people enjoying
themselves at a wedding going on across that courtyard, is
there a margin that you might think about?
ALEX SALTER: I think that the crowd noise and
whatever other noise is generated is essentially in this
overall noise level that is being monitored, and so whether
it’s 74 or whether it’s 69, whatever the noise level is
that’s being generated in the courtyard and that’s being
shown on the sound level meter, it would be measuring all
of the noise, so it will be measuring the noise, and it
will be measuring the crowd noise.
It brings up some questions of do you tell people
to quiet down? Is the crowd noise subject to the Noise
Ordinance? In my experience, we deal with this in the City
of San Francisco and other cities around the Bay Area where
it’s a gray area of is it a free speech thing where is
crowd noise subject to a noise ordinance, because a lot of
noise ordinances are written specifically for certain types
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
56
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
of sources, whether it be mechanical equipment, fixed
source, amplification, music, anything.
So I think that brings in other aspects of it,
but I think the important part is that the noise monitoring
that would occur is measuring all of the noise that’s
generated in the courtyard, so if they go over and they see
it’s 75 on a weekday, or it’s 70 on a weekend, or we’re one
dB above what we need to be at, so we need to either reduce
the amplified music, which would have some effect on the
crowd noise too, just psychologically, or figure out some
way to quiet the noise.
I think it’s also reasonable discussions we’ve
had about percussion, cymbals, drum kits, things like that.
Certainly those are things that don’t necessarily need
amplification or are inherently loud, but I think we’ve
shown in this study that a certain degree of amplification
can still be compatible with the surrounding community in
regard to the Noise Ordinance.
CHAIR BADAME: Commissioner Burch has a question,
then I’ll go right back to you, Commissioner Hudes. Okay,
all right, go ahead and finish up, Commissioner Hudes.
COMMISSIONER HUDES: Thank you. My question was
for management. It seems as though there are some ideas
that have been put on the table here. It seems as though
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
57
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
residents don’t feel that there has been as much
interaction in the meeting, in the outreach. Are you open
to having another meeting with the residents to explore
options?
JIM GERNEY: Yeah, sure I am.
COMMISSIONER HUDES: Okay, thank you.
CHAIR BADAME: Commissioner Burch.
COMMISSIONER BURCH: In that same vein as we look
at this, if there were some limitations written into this,
such as the percussion that was a very good suggestion, to
where when you had customers who were looking at booking
various types of music you would say sure, but the
following are not permitted, such as percussion or
whatever, would you be open to that?
JIM GERNEY: Yes, I would.
COMMISSIONER BURCH: Thank you.
CHAIR BADAME: Any further questions? Seeing
none, thank you very much.
JIM GERNEY: Thank you.
CHAIR BADAME: The public testimony portion of
the public hearing is now closed. I’ll look to the
Commissioners for questions or comments. Commissioner
O'Donnell, you can go first.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
58
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COMMISSIONER O'DONNELL: I have a question of
Staff and perhaps the Town Attorney, whoever feels they
want to field the question.
What kind of ignited this use permit application
modification was, I believe, the recent ordinance, as I
understand it, passed by the Town basically, I think,
saying that downtown entertainment, music, whatever, is a
matter of right. Now, it so happens that this particular
use is not a matter of right, arguably, only because they
have a use permit. In other words, as opposed to everybody
else in town that doesn’t have a use permit, they can go
ahead and have music and if they violate the Town’s Noise
Ordinance they can be cited.
So I guess what I’m curious about is I don't know
the extent of our ability. It seems to me that we have
jurisdiction and the ability to say we like the use permit
the way it is, or would you accept the modification to the
use permit? Personally, I wouldn’t like to let go of the
use permit, but I guess I’m saying that because everybody
else that doesn’t have a use permit is just kind of home
free, the only reason these people have a use permit is
because historically they were there when the Town didn’t
have this brand new ordinance.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
59
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
So I guess I’m saying my understanding—and this
is the question—they have a use permit, it is not
superseded by the new ordinance, and therefore we can deal
with that use permit as we could normally deal with any use
permit, is that correct?
JOEL PAULSON: That is correct.
COMMISSIONER O'DONNELL: Long question, short
answer. Thank you.
ROBERT SCHULTZ: Want to hear a longer one from
an attorney?
COMMISSIONER O'DONNELL: A longer one? Go ahead.
ROBERT SCHULTZ: We have three CUPs with
different requirements. The first one is a CUP that might
not have anything at all written about entertainment. The
second set we have are those that said when we adopt an
Entertainment Policy you will follow that Entertainment
Policy for whatever it was, and those are more of our
recent ones that we did, because we saw that we were going
to do an Entertainment Permit. Then the third one is like
this one that said no entertainment.
So how we’ve dealt with all three of those is the
CUPs that didn’t have any regulation whatsoever about
entertainment, and they have to follow our Entertainment
Policy, they have to follow it; they also have to follow
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
60
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it. But the ones that specifically had for any reason a CUP
that has a no entertainment allowed have to come in for
that modification, and this is one of them, because it had
that. Even though Entertainment Policy might allow some
businesses to have entertainment, that still allows you to
restrict it because of certain issues that you feel should
not allow for entertainment. So you still have the ability,
even with our Entertainment Policy, to deny a business the
ability to have the entertainment because of other facts
and evidence that you take into account.
COMMISSIONER O'DONNELL: Just follow up for one
second? What other facts? In other words, if we’re talking
about entertainment, are you saying that if we look at the
entertainment and believe for some reason that that
entertainment, noise level, whatever, is unreasonable, then
notwithstanding the ordinance we can say no, you can’t do
that?
ROBERT SCHULTZ: No, if you’re going to allow it,
it just has to comply with our Noise Ordinance, but if you
feel that because of the community, because of other issues
that are involved, that it just could not meet its noise
requirements based on evidence, then you can deny an
entertainment.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
61
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COMMISSIONER O'DONNELL: So you make a judgment
that there’s no way these folks can do that, and therefore
I’m going to deny what? What do I have before me that I can
deny?
ROBERT SCHULTZ: You don’t allow for the
entertainment. You don’t allow for the clause to be
removed.
COMMISSIONER O'DONNELL: So if somebody comes in
and wants to open a restaurant or whatever in town and they
decided they want to have a, you know, what everybody tells
us, a small group or whatever, we have no evidence one way
or the other. Do you understand correctly the Town
basically says unless you have evidence to the contrary,
then go ahead and do it?
ROBERT SCHULTZ: Yes.
COMMISSIONER O'DONNELL: So the hypothetical you
were giving us seems very impractical, because you’re
saying if somebody comes before us and we have reason to
know that they can’t comply with the Noise Ordinance, then
we could turn them down?
ROBERT SCHULTZ: Yes.
COMMISSIONER O'DONNELL: Okay, thank you.
CHAIR BADAME: Vice Chair Kane.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
62
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
VICE CHAIR KANE: Counselor, how many
establishments similar to the Toll House have a CUP that is
no, zero, zip, zilch, entertainment of any kind?
MONICA RENN: Approximately 16 CUPs that have a
prohibition for it.
VICE CHAIR KANE: So that I can figure out what’s
fair, why would those 16 have no E, and do they have no Es
for situations similar to this?
MONICA RENN: There was a period of time where
the condition became standard that somebody could not have
entertainment; some of those places are like Chipotle, for
example, on Los Gatos Boulevard. It was just a standard.
They didn’t ask for it, we didn’t do any findings, we just
put it in their Conditional Use Permit, because it was a
kind of form that we were using, so several restaurants
have that provision just as a standard. There was no
evidence for or against it or maybe even an ask for it.
Sometimes when somebody doesn’t ask for it, then we just
use that standard condition and prohibit it.
VICE CHAIR KANE: Back to what Commissioner
O'Donnell was saying; it just makes me think of a zero sum
game of some sort. If they did get a CUP number two, which
is follow the policy, then the Noise Ordinance would govern
what happens, and if they go above a dB they’re cited,
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
cited, cited, lose it and they’re done. So I’m asking you
where is the downside to requiring them to do what
everybody else has to do, which is supposed to protect the
neighborhood, and if they don’t, then they lose it, is that
correct?
JOEL PAULSON: That’s correct. So ultimately if
it became an issue where there were multiple violations,
then it could be set for a modification or revocation of
the Conditional Use Permit, which is permitted under our
Town Code currently.
VICE CHAIR KANE: So we’ve put other things on
trial basis, and we might not even have to do that in this
case, because it’s self-contained. If they blow it, they
lose it. Thank you.
ROBERT SCHULTZ: So not only do we have the
requirement in the recommended from Staff about using the
dBA that they will monitor inside, even with that monitor,
let’s suppose they’re monitoring inside and they’re within
their range, if in fact from their property line they’re
exceeding the dBA in our Noise Ordinance they are in
violation and will be cited. If you didn’t understand that
part of it, it’s not just because now they’re monitoring
inside they can do whatever they want outside.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
64
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
VICE CHAIR KANE: My last question is with
respect to that zero sum and the level of dBs that would be
violated. Would it be practical, fair, and honest to put
them under the liability of that dB and expect them to have
the desired result with respect to business? Is the dB so
low that it’s not practical? Are we looking at a bigger…
Does it make any sense to do this in the first place?
JOEL PAULSON: That’s ultimately a business
decision for the Toll House.
VICE CHAIR KANE: Okay, thank you.
CHAIR BADAME: Commissioner Erekson.
COMMISSIONER EREKSON: This is a question I think
probably for Mr. Schultz. I’m trying to understand how to
think about this issue with respect to the new ordinance,
and I guess it seems to me—unless I’m missing something and
I frequently do, so I’m open to being educated—why isn’t
the question simply be should this CUP remain in effect, or
should this CUP be revoked or eliminated, whatever the
right verbiage, and then if it is, then the new ordinance
would apply. Why isn’t that the simplicity of the question?
So I’m trying to understand under what basis would one be
able to modify an existing CUP, because if you
grandfathered existing CUPs, why is there an ability under
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
65
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the ordinance to modify an existing CUP? Do you understand
the question I’m asking?
JOEL PAULSON: I’ll try. I think it gets back to
the three scenarios that Mr. Schultz expressed earlier. We
have some Conditional Use Permits that don’t have any
prohibition of entertainment, so they comply with the
policy and they don’t have to come through any
modification.
For one like the Toll House, they specifically
have a condition of approval that states that they cannot
have any outdoor music, and so if they want to be able to
have the benefit of complying with the new policy, then
they have to come through and modify the use permit. I
think your initial comments, from a simplistic view it’s
either… You expressed that you want to recommend that they
be allowed to modify their CUP, or that they not be allowed
to modify their use permit and the condition remains and
they would not be allowed to have outdoor entertainment.
But looking at you, I’m assuming that didn’t answer the
question you were looking at.
COMMISSIONER EREKSON: Maybe I’m trying to be too
simplistic. I mean I don't know on what basis one can… Can
someone voluntarily give up their CUP?
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
66
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
JOEL PAULSON: This wouldn’t be giving up their
CUP. You’re strictly looking at the provision related to
entertainment. Voluntarily if a business goes out of
business, and it’s out of business for a year, then they
lose their CUP.
COMMISSIONER EREKSON: So we’re modifying the CUP
for only the portion that relates to entertainment, which
then would make the new ordinance apply to them?
JOEL PAULSON: Correct. They have a specific
restriction currently under their Conditional Use Permit
that does not allow them…
COMMISSIONER EREKSON: So the simplistic question
then is do we think they should be allowed to have the
right that they would have under the Entertainment Policy
if they were building a new building or this didn’t have
something, or there are some findings that we could find
that would suggest to us that we should continue the
present restriction that puts a larger burden on them than
the new ordinance would, in the same way that the Town
could hypothetically find those same findings on someone
who doesn’t presently have a Conditional Use Permit that
restricts them from having it?
JOEL PAULSON: That’s correct.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
67
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COMMISSIONER EREKSON: Okay, got it finally.
Thank you.
CHAIR BADAME: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: Part of the reason I may
be thinking differently about this, one argument goes you
should level the playing field, and we’ve heard that this
evening, which suggests that these folks are being treated
differently and somehow wrongly than others. But listening
to your three choices, it seems to me that in fact whatever
everybody else is doing, these folks have a use permit, and
we could say that’s your use permit, that’s it.
Or, and this is solely I think the discretion of
us tonight and the Council ultimately, to say you make an
argument that this is hurting your business, and we’re
sympathetic to that. On the other hand, we’re very
sympathetic to the neighbors and we’re not comfortable with
what the study shows. You could again say well we’re going
to impose a level which is I guess—and this is the
question—lower than the Town’s limitations.
In other words, if you leave it alone, we don’t
have to worry about the limitations, because they can’t
have outdoor music. If we say well, we’re uncomfortable
with just saying no to you, but we don’t like the dBA level
set in the Town, so we’re going to set a new and different
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
68
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
and lower, the question is can you do that? I’m not saying
we should do that, but I just want to know if you could do
that.
ROBERT SCHULTZ: Our Noise Ordinance has
standards that have been set, and so no I don’t think we
should change those from the outside. If you feel the ones
inside need to be changed per their business that aren’t
low enough, then that might be where you might… If you need
more of a buffer, which I think are some of the questions
Commissioner Hudes was saying, but from an outside
everybody has to comply with the same whether you’re
residential, whether you’re…
COMMISSIONER O'DONNELL: Outside and inside, you
mean in the building and outside the building?
ROBERT SCHULTZ: Yes, the two inside, what
they’re going to monitor, and apparently if it goes over or
gets close they’re going to have to find a way to reduce
their sound.
COMMISSIONER O'DONNELL: I thought their two
monitors would in fact be outside in the outside area.
ROBERT SCHULTZ: Outside area; that’s their
outside, but within their property.
COMMISSIONER O'DONNELL: That’s all we’ve been
talking about tonight.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
69
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ROBERT SCHULTZ: Right, within their property.
I’m sorry.
COMMISSIONER O'DONNELL: Thank you.
ROBERT SCHULTZ: But I would also say that no, we
regulate any noise, and I think one of the speakers
mentioned just that there was crowd noise. We can also cite
for just crowd noise.
COMMISSIONER O'DONNELL: The only reason I ask is
gives us an interesting dilemma. We either say nothing,
we’re not going to do anything, because we can’t control
it, it doesn’t look to us like the neighbors are going to
be happy if we simply say we’re going to impose on you…
We’re not really imposing it; it’s already imposed on you,
the Town ordinance. So if we’re between a rock and a hard
place on that, it just seems odd to me that you can’t say
let’s split the baby kind of thing, but you can’t if you
can’t say notwithstanding the Town’s level is here, the
neighbors are saying that’s not going to be good for us, so
we can say no to everything, or we could impose a lower
level, and you’re saying no, you really couldn’t impose a…
You can leave it alone, but you can’t come up with your own
dBA levels. Is that right? Okay, thank you.
CHAIR BADAME: Commissioner Hudes.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
70
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COMMISSIONER HUDES: Just to clarify what I
understand the proposal is on the draft modified
conditions, it’s to allow entertainment, which is not
currently allowed, and to make it subject to the monitoring
that’s in this report, including C1 and C2 at a internal to
the property location at the specified dBA levels that they
will follow at location C1.
SALLY ZARNOWITZ: That’s correct, and the
condition is actually written such that they could choose
between C1 or C2 based on what’s feasible, and either one
of them would have to follow the noise assessment.
COMMISSIONER HUDES: Coming back to the previous
discussion about where we have latitude, it sounds like we
don’t have latitude to come up with a different dBA level
for the neighborhood, but we could come up with, and in
fact we have proposed, a different dBA level for monitoring
on the site, and we have flexibility in terms of whether
it’s the numbers that are in this report or other numbers
if there are findings that we could make, is that correct?
Okay, thank you.
VICE CHAIR KANE: So it would be safe to say that
a prior Council at some point in time made findings to
restrict the entertainment. That being said, we could honor
that decision on a prior Council and not change anything.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
71
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
We don’t know what those findings could be, unless they
were related to…
JOEL PAULSON: That’s definitely an option. You
can either make a recommendation of approval of the
modification, or recommend to the Town Council denial of
the modification, or recommend approval with some further
recommendations. I think before it was discussed whether
percussion and cymbals should be prohibited.
ROBERT SCHULTZ: And I think Commissioner Erekson
gave a great example. Even though with our Entertainment
Policy that allows for entertainment before 10:00pm without
an Entertainment Permit, and after 10:00pm with, before
10:00pm you have to comply with the Noise Ordinance.
If a new CUP came in for a new restaurant or a
new nightclub or anything of that nature, and they want to
have entertainment before 10:00pm, but because of
neighborhood compatibility issues or there are health and
safety issues, you can still deny the Entertainment Permit.
You still have that ability to deny it and not allow it
based on the evidence and the facts from the hearings. And
you do that, even though there are many things that we
allow regarding delivery trucks, regarding all sorts of
noise issues that you put conditions on even though they’re
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
72
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
not found elsewhere or might be contrary to what our
ordinance says.
CHAIR BADAME: Commissioner Hanssen.
COMMISSIONER HANSSEN: Have we ever done
something like this where the change to the CUP was done on
a trial basis? Because of the sensitivity with the
neighborhood, and also the fact that the way that this
would work is that we’re supposed to rely on the
attenuation from the hotel to any location in the
neighborhood, and we heard testimony that temperature and
wind could potentially change that, so it could be that the
result doesn’t turn out the way you want and the neighbors
are going to hear more noise than they wanted to. I suspect
some of those neighbors would get the dB thing on their
phones and check it out, so that if we did it for a
temporary amount of time and we could hear what the results
were, and because of the sensitivity that would certainly
be a compromise sort of position.
ROBERT SCHULTZ: And you’ve done that with past.
It’s more of a review period and determination.
COMMISSIONER HANSSEN: So you can do that just
for one specific… We’ve done that for a specific condition
on a CUP?
ROBERT SCHULTZ: You’ve had a review hearing.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
73
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COMMISSIONER HANSSEN: Okay.
CHAIR BADAME: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: Since we’re measuring
essentially onsite, and we’re measuring with a monitor
which is in the area where the noise will be coming from,
it would appear that the wind, temperature, all that stuff,
will have little or no effect, whereas the sound leaving
the premises will be attenuated by the changes in climate,
all that kind of thing. So the measurement then will not be
valid if in fact the conditions are such offsite that, as
it was testified, it affects the carry of the sound. The
only reason I say that is it’s very nice to say why don’t
we try this for a year and we’re going to measure it
onsite, and the answer to me is because I don't know what
it’s going to be offsite. If everything is perfect, what’s
onsite as modulated for offsite, because we did these
measurements, should work fine. But rarely is life perfect,
so we won’t know what it is. Then somebody suggested we put
monitors at certain places offsite, and I don't know how
complicated that gets, but I’m just saying I don't know how
exact a science this is.
SALLY ZARNOWITZ: Just to note that the project
would be, or the business is, subject to the Noise
Ordinance, which is looking at how that affects the
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
74
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
offsite. It’s just that measuring it onsite is supposed to
mitigate the offsite, but it’s still subject to the Noise
Ordinance.
COMMISSIONER O'DONNELL: I can just tell you from
my personal experience of having lived in this town for an
awful long time, rarely does anybody ever stop loud noise.
I happen to live right by the high school, and I assure you
there are a lot of violations. I don’t care, because they
aren’t that bad, but I’m just saying our Noise Ordinance
enforcement is limited by the number of people we have. I’m
not criticizing Staff to say that’s pretty hard, so you
really want to make sure you’ve got a way of doing this
without relying on picking up a phone and calling the
police department or something. Anyway, that’s just off
this site, okay.
CHAIR BADAME: Commissioner Erekson.
COMMISSIONER EREKSON: I’m going to try a motion,
if that’s okay with the Chair.
CHAIR BADAME: Yes, it’s okay with me.
COMMISSIONER EREKSON: I will move to deny the
request for modify the existing Conditional Use Permit to
allow entertainment before 10:00pm on property zoned C-
2:PD. I do that with some concern about the economic
vitality of the downtown, but I would say this seems to me
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
75
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
to be a situation where there are neighborhood
compatibility issues and sensitivity issues since it is
located in a particular location in town where there are
both individual residences and multi-dwelling residences
that would cause me concern if it were in a location where
it was completely commercial, and I would say that would be
something I would take into consideration if it was a new
establishment that was (inaudible) under the Entertainment
Policy. I think we have both the wisdom of the Council who
adopted the present CUP, and we’ve had significant public
testimony that would support the conflict with the
neighborhood compatibility, and we need to be sensitive to
that neighborhood compatibility.
CHAIR BADAME: I will second that motion.
Discussion? Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I’m going to say two
things.
One, I agree with the motion, but I like the
suggestion that was made I think by at least two of the
Commissioners that before we deny something we might allow
time, and there was a suggestion made by the people who
live in the area that nobody sat down with them, and the
suggestion was maybe sitting down with them could produce
something.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
76
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Secondly, I heard from the Applicant who said I
think to Commissioner Hudes that they would be willing to
do that.
So I guess my only thought is I’m going to vote
against the motion, not because I disagree with it, but
because I think it may be premature. It may be that if time
is allowed for them to talk to each other, we might get a
solution short of telling them no entertainment at all. I
just say that in case anybody else would like to give them
some time.
CHAIR BADAME: Commissioner Burch followed by
Vice Chair Kane.
COMMISSIONER BURCH: I also will not be
supporting the motion for a couple of reasons.
The sound levels that were set were very
specific, they were carefully selected, and what we have in
front of us—and again, perhaps I just have the benefit of
understanding sound studies maybe unfortunately too well—is
a document that proves that those levels can be controlled
and that they can be controlled onsite, and that we can
have a secondary offsite monitoring where, as Sally stated,
that if it is too loud there will be a call, it will be
checked, they will be fined, they will be subject to what
any other business that would come in and have this
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
77
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Entertainment Policy associated with their business would
be subject to.
I also agree with Commissioner Hudes on the
statement that it sounds like perhaps a little bit more
work needs to be done within the neighborhood, and I would
prefer more to see something that was so well worked out
for the economic vitality, something that I feel can be
controlled, be tried out for a period of time, and I would
like to see significantly more work between the business
and the neighborhood. I would like to see maybe some
limitations on the music styles that were in there, as we
discussed, but it sounds like that was agreeable.
So before we just make a sweeping no, I just feel
that there is some opportunity here to find a good middle
ground that would benefit all.
CHAIR BADAME: Vice Chair Kane is next.
VICE CHAIR KANE: I won’t support the motion. I
don’t support trial, because I think all of that is
internal to what we have in front of us. I would imagine
that they’ve got the smarts to move heaven and earth to get
what you want and to keep it, because if you don’t, they’ll
take it away from you. Is it really that simple to me? I
like the Staff recommendation; I think it’s adequate, it
covers all points, and if they violate it, they lose it. If
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
78
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
they don’t violate it, then we’ve got some economic
vitality issues that are good for the Town, a function that
is desirable.
You might offer quarterly dinners, get me, to
review how it’s going, to review the number of complaints
you have or haven’t had. As I said earlier, move heaven and
earth. But if you end up getting this thing, do all you can
to keep it, because if you don’t, they’re going to take it
away.
CHAIR BADAME: Commissioner Hudes followed by
Commissioner Hanssen.
COMMISSIONER HUDES: One point of clarification
for me in terms of where I come down on this, when the
original Conditional Use Permit was written, and I am very
strong on supporting the thinking that went in there, was
there a Noise Ordinance in place, and if there was, was it
different than what we have today?
JOEL PAULSON: There was a Noise Ordinance, and
it probably wasn’t much different, if at all, than what we
have today. I don’t have all of the background, but this
goes back to the Alcohol Policy that hadn’t been modified
and has a provision that discourages entertainment until we
had an Entertainment Policy. We finally, after years of
working through that process, come to a policy that was
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
79
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
adopted, and so that’s why they have been afforded the
opportunity to come before the Commission and the
Commission will be making a recommendation to the Council.
COMMISSIONER HUDES: So there was a Noise
Ordinance, but there wasn’t an Entertainment Policy?
JOEL PAULSON: Correct.
COMMISSIONER HUDES: Okay. And just to add my
comments, I certainly am not comfortable about approving
this change at this time. On the other hand, I think there
is the possibility of coming to agreement with the
neighbors that isn’t totally exhausted, and I would rather
see that process take its course before denying the
request.
Specifically there are three things that I think
need to be discussed with the neighbors. Number one, a dBA
margin to account for sound across the courtyard,
potentially reducing the numbers that are in here to
account for that; number two, eliminating percussion
instruments; and number three, considering the possibility
of making it acoustic instruments only. I know those are
not in the motion, but those are the things that I would
like to see explored further.
CHAIR BADAME: Commissioner Hanssen.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
80
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COMMISSIONER HANSSEN: I too don’t support the
motion for denial. I’m concerned about the neighbors, and
do think that at a minimum and for good business purposes
that there should be some actual real outreach with only
these neighbors to talk about all these issues.
I think this is a very good sound study, but it
did have the limitation of when it was done, and also I
think it’s fairly complex, and I think it would be a really
difficult thing to put this into an approved CUP and say
that the neighbors hadn’t had a chance to really digest it,
and so I do think that there ought to be a conversation
between the Applicant and the sound engineer and
neighborhood so that they could understand the study and
understand what impact it really might have on them and how
that works, because they’re just numbers and they may not
have seen this. So I think that if I were to rethink this I
would want to continue it to do that.
The other issue that came to mind is we just had
our hearing at the General Plan Committee about the North
40, and so much of the testimony that we got… And granted,
there isn’t any application that’s going to be implemented
at this point in time, but the potential for all these
businesses in the North 40 that don’t have CUPs, and then
having downtown not being able to compete with that, and
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
81
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
especially a hotel that relies on events to support its
business, I feel like there has to be some kind of
compromise in there to let them have their business and be
competitive with others, so I would be more in favor of
doing some kind of continuance to give the Applicant a
chance to work things out with the neighbors so that we
could come back and hear this again.
CHAIR BADAME: All right, I’m about ready to call
the question, and I know what the answer is going to be,
but I would just like to make the comment that the
residential neighborhood pre-existed before the hotel.
But I will call the question. All in favor of the
motion that Commissioner Erekson made? Fails 5-2
VICE CHAIR KANE: (Inaudible).
COMMISSIONER O'DONNELL: (Inaudible).
CHAIR BADAME: All right, anybody no? It’s
getting late. Vice Chair Kane.
VICE CHAIR KANE: I’d like to try a motion
incorporating points that have been made by Commissioner
Hudes and myself, so I’m going to use the Staff format.
I make the motion to make recommendation to Town
Council to approve CUP application U-16-005. I find the
proposed project is categorically exempt pursuant to
Section 15301 of CEQA as adopted by the Town, which is
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
82
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Exhibit 2. I make the required findings as required by
Section 29.20.190 of the Town Code for granting approval of
the CUP, which is also Exhibit 2 of this report, and
recommend approval of CUP Application U-16-005 to Town
Council, with the conditions contained in Exhibit 12
attached to this report and the plans contained in Exhibit
6.
Now, if all of that doesn’t cover the following,
I’d like to add a recommendation subject to the approval of
the Community Development Director that there be one or two
permanent speakers in the neighborhood to increase the
ability to monitor the sound, and moreover, to add to the
credibility of the study, because if the neighbors hear
loud noises and the thing inside the courtyard said no,
it’s not that loud, we’ve got to build some trust here,
we’ve got to build some credibility, so it might be worth
the money and the effort to have one or two out there
monitoring that sound to make sure that the neighbors are
respected and are provided for.
Also, I want to add what Commissioner Hudes, if
you want to help me on this, what he said about the dBA
margin, what he said about eliminating percussion, and I’ll
leave it open, subject to the approval of the Community
Development Director, add the requirement that we’re
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
83
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
talking about acoustic music only, and I’m not sure that’s
necessary. Okay, I’m going to pull that out. That’s out.
I’m back to dBA margin and eliminate percussion, because it
is what it is. If they go above the dBs, it doesn’t matter
if it’s Mel Tormé or Joe Cannon—where did that come from?
Anyway, the dBs will speak for themselves, they comply or
they don’t, and I would again say talk to me later. I mean
buy dinner, do something. There are a lot of unhappy people
over here. That’s my motion.
CHAIR BADAME: Okay, we have a motion. I’m
looking for a second. Commissioner Burch.
COMMISSIONER BURCH: I will second the motion.
CHAIR BADAME: All right, any further discussion.
Commissioner Hudes.
COMMISSIONER HUDES: I appreciate the spirit of
moving this forward and of providing some vibrancy in the
downtown, but I am not at a point where I can support it
yet, because I don’t think that the considerations of the
neighbors have been taken fully into account, and while I
am sympathetic to the Applicant who wants to move the
project forward I think there is some indication that the
Applicant is actually willing to do another round of
discussion with the neighbors, and that potentially that
feedback hasn’t really come through and hasn’t been two-
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
84
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
way, so I’m not going to support. I would prefer to see
another round of discussion between the neighborhood and
the Applicant.
CHAIR BADAME: Commissioner Burch.
COMMISSIONER BURCH: If I may, just as a
reminder, obviously we are not the last word and this is
going to go in front of Town Council, and your comments
would be taken very, very seriously. As far as moving
forward, perhaps what we do is I would ask Commissioner
Hudes if he would be comfortable in adding to the motion
that proof of outreach, and I mean viable outreach, be
provided at the Town Council meeting as part of their
consideration of approval?
CHAIR BADAME: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I’m not going to support
the motion, because there’s no reason why we shouldn’t send
it back and let them talk. Both sides have said they’re
willing to do it, and we seem to be in a hurry, and they
don’t seem to be in a hurry. I just can’t think of any
reason why if people are willing to talk to each other we
shouldn’t let them talk to each other, so I will not be
supporting the motion.
CHAIR BADAME: Commissioner Hanssen.
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
85
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COMMISSIONER HANSSEN: I want to echo the same
concern. I think that the Applicant and the neighbors need
to talk to each other before we send it on.
CHAIR BADAME: All right, we have a motion and a
second, and I need to call the question. All in favor?
Opposed? Fails, and that would be 2-4 in favor, and that
would be Commissioner Burch and Vice Chair Kane, the rest
of us opposed. Commissioner O'Donnell is ready to make a
motion.
COMMISSIONER O'DONNELL: Really the third motion
that we’ve talked about. This motion would be simply that
we continue this matter to a date certain with the request
of both the Applicant and the neighbors, and I stress it to
both sides, it takes two sides, to use the intervening time
between now and the date certain, which we haven’t selected
yet, to see if they can’t work out some kind of settlement
that can help us. You can see that our hands are not as
free as they would like to be. The easiest thing for us to
do, but perhaps not the most equitable thing to do, is
simply to say no or yes. I think we can do a lot better
than that; at least I’m hopeful we can. There’s no
guarantee that any side has to agree on any compromise, but
you both have expressed willingness to do so, to talk about
it, so my motion would be we continue the matter for
LOS GATOS PLANNING COMMISSION 11/9/2016
Item #2, 140 S. Santa Cruz Avenue
86
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
purposes of these discussions until what date would the
Staff suggest?
JOEL PAULSON: Well, we don’t have a good
suggestion. January’s agenda is already pretty full. Many
of those are tentative, but the earliest we could do it
would be January 11th.
COMMISSIONER O'DONNELL: All right, the date
certain would be January 11th.
CHAIR BADAME: Commissioner Hudes.
COMMISSIONER HUDES: I’ll second the motion.
CHAIR BADAME: All right, any discussion? I will
call the question. All in favor? Vice Chair Kane, did you
have your hand up?
VICE CHAIR KANE: I’m waiting for opposed.
CHAIR BADAME: Okay, I have a second. All in
favor? Opposed? Passes 6-1. All right, Mr. Paulson, since
this is a recommendation to the Town Council, are there
appeal rights of the actions of the Commission on this
item?
JOEL PAULSON: Given that the Planning Commission
continued the item, there are no appeal rights.
CHAIR BADAME: Thank you.