Attachment 09LOS GATOS PLANNING COMMISSION 1/11/2017
Item #3, 140 S. Santa Cruz Avenue
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A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
Mary Badame, Chair
Kendra Burch
Melanie Hanssen
Kathryn Janoff
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 9
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P R O C E E D I N G S:
CHAIR BADAME: Item 3, 140 S. Santa Cruz Avenue,
the Toll House Hotel. Conditional Use Permit Application U-
16-005, requesting approval for a modification to an
existing Conditional Use Permit to allow entertainment
before 10:00pm on property zoned C-2:PD, APNs 510-45-064
and -065.
Ms. Zarnowitz, I understand you’ll be providing
us with a Staff Report this evening?
SALLY ZARNOWITZ: Yes, thank you, Madam Chair.
The Commission will remember that in June the Council
adopted a Late Night Entertainment Policy to allow
entertainment by right prior to 10:00pm, and then to come
into conformance with this policy in September this
application came before you for a recommendation to Council
as one of several anticipated requests to amend CUPs that
were previously approved with entertainment restrictions.
At that meeting the Commission requested noise
assessment to address concerns of several neighbors
regarding noise impacts, and particularly those related to
violations by a previous owner in 2009.
In November the Applicant submitted the noise
assessment and the Commission continued the item to this
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evening in order to allow the Applicant and neighbors to
meet further.
In December the Applicant met with the neighbors
and has outlined the currently proposed conditions to
address noise, including monitoring and speaker setup,
which are pursuant to the noise assessment, as well as an
additional condition prohibiting percussion instruments and
live bands. The recommended Conditions of Approval have
been revised to reflect those conditions for the
Commission’s consideration.
This evening, should the Commission determine
that the direction has been met, it can recommend approval
to the Council. Should the Commission have further
concerns, they can recommend approval with additional
conditions, or denial.
This concludes Staff’s report, and we are here to
answer any questions. Thank you.
CHAIR BADAME: Thank you, Ms. Zarnowitz. Any
questions for Staff? Seeing none, I will now open the
public testimony portion of the hearing and allow the
Applicant and his team ten minutes to address the
Commission.
JIM GERNEY: Good evening, and welcome. This is
my third visit to this venue. I really have very little new
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to offer other than the community outreach that we
conducted and a meeting that we had with a group of
neighbors on Broadway on December 14th. In that meeting our
expectation was to really try to navigate into is there a
middle ground that we can come to with the conditional use
modification, and we were told pretty much that based upon
the past history the fear of going back to a place, that
really was something that they didn’t want to do. We really
were at an impasse; it was disappointing. One of the
expectations at that meeting was that we were to bring some
compromises to the table, and really our ambition was to
actually come and talk through those.
As Ms. Zarnowitz mentioned, we came back with an
email to them two days later saying that we were happy to
make some very clear modifications and some compromises,
and the three most important of those was to one, have a
monitoring system that we could actually scientifically say
whether we were or were to in compliance. Secondly is based
upon the location of the speakers. We believe that one of
the largest problems in the past history of conflict with
this was that the sound that was used off of the courtyard
of the Toll House Hotel was actually directed towards
Broadway Street, and we recommend that we have all of the
sound actually against our sound wall facing into the
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hotel. We believe that that will actually direct the sound
there and will not reverberate to the extent that it did in
the past and will allow us an additional level of
compromise to allow sound minimization. The third one was
to say this: Percussion is one of the issues that we
believe creates the largest dynamic in sound that creates
risk. We’ll just eliminate it.
We are happy to consider other options at this
point, but we felt that those three options were really
three that kind of put us in a position that going back to
the sound study, for those of you that were not part of
that, when we did that in October we actually reached some
decibel levels on our courtyard that were unacceptable to
us, so we don’t believe that we’d ever hit those levels,
but they were still not discernable at the locations of the
Broadway residences.
Long story short is that we’ve been asked to make
a number of steps and progressions as we started this
process back in June. We believe we’ve met them. We believe
that we’ve actually presented some compromises, and at this
point we believe that when the Town changed the policy in
June our eligibility to apply for that, per the website,
we’ve met all those requirements. I understand that there
are neighbors, and we want to be sensitive to them, and
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they’re here to certainly speak their side of the story,
but our position is that there should be some compromise in
the conditional use that allows us to somewhat enjoy the
policy that exists in this town without compromising the
lifestyles of our neighbors, and they believe that any
compromise is going to be unacceptable.
We’re coming to you and saying that this is our
third swing at this. I would like to receive a
recommendation of approval, but if not, I would like to
also consider that we actually move forward with this onto
the Town Council, because as mentioned in the letter
recently, continuing to require our neighbors to endure
these meetings and come out and do what they’re doing, I
feel bad. Nobody wants to impose a hindrance on anybody,
but we keep coming to these meetings and we end up with
either a continuance or an argument, and I think everybody
understands what the positions are of both sides. We’re
looking for a compromise; they would like none. It’s up to
you to really decide whether or not we are eligible for
some level of compromise and what that might look like, and
a recommendation on that, but at this point I would really
like to try to start moving forward on this.
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CHAIR BADAME: Sir, can you state your name again
for the record, so I can match you up with the speaker
card?
JIM GERNEY: My apologies. Jim Gerney.
CHAIR BADAME: Thank you. Any questions?
Commissioner Hanssen.
COMMISSIONER HANSSEN: Thank you for your
presentation, and I’m really happy to hear that you had a
meeting with the residents; I know that was one of our big
concerns from the last meeting.
Do you remember or recall how many of the
residents attended? I’m sure it was hard to get everyone in
one place and I don’t have any expectations, I just wanted
to know about how many residents came, and I had a follow
up question.
JIM GERNEY: Certainly. Commissioner, we actually
sent a note via the emails that we had at the meeting that
was coordinated by Mr. Lenhart’s house. We ended up having
I think it was five of the residents from five different
locations. We wanted to have individual meetings just so we
could talk to everybody, and Mr. Lenhardt said, “Why don’t
we do everybody at our house? We’ll host the meeting on
December 14th and I will get as many of the residents as
possible.”
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COMMISSIONER HANSSEN: Okay, and that’s probably
a pretty good turnout, given that you tried to pull
everyone together and everyone is busy and it was the
holidays.
I had a question about what you said. It sounded
like there was an impasse at the meeting, so you didn’t
discuss any of these conditions at the meeting; it was
later that you followed up and sent that to them, an email,
is that what I heard?
JIM GERNEY: That’s exactly correct. At the
meeting on December 14th our intent was to go and have an
open discussion about what the expectations were and how we
can really navigate this and to try to be at least as close
to a win/win as possible, and it was shared with us that
the win on their part was no change, and obviously the win
on our part was a moderate change. The discussion was that
there was an ambition that perhaps we brought some level of
compromise ideas to that meeting, but not knowing what the
expectations on compromise were, whether it be decibel,
time of day, type of music, or instruments used.
There is a plethora of opportunities that we may
or may not have been able to bring to the table, and we
really wanted to talk through it, which is why when the
expectation was shared that we actually have some
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compromises, we went back to our kind of home base and said
listen, let’s put something out there.
COMMISSIONER HANSSEN: It sounds reasonable. I
didn’t have an expectation you’d have the sound engineer
that did the study come in again, but the ideas for the
conditions, I know one of them came up at our last meeting
about the percussion, as far as the other ones. Would you
believe that our sound engineer that did the study would
agree that those were good mitigations for reducing the
noise?
JIM GERNEY: Oh, certainly. I mean the sound
engineer was very specific saying that if there was a sound
monitor that shows very specific decibels at any particular
moment, that would achieve the result of determining
whether we were within or were not within the criteria.
The second thing, we did go back to them and said
if we projected sound away from Broadway there’s going to
be some rebound off the building, but it is not going to
have the same effect of projecting sound directly towards
Broadway, and he thought that was probably a good
recommendation.
COMMISSIONER HANSSEN: Okay, thank you.
CHAIR BADAME: Commissioner O'Donnell.
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COMMISSIONER O'DONNELL: Just so I can look at
the whole picture again as I read this, you have a
restriction of up to 36 seats out there, and you cannot
have the sound… It says, “The outdoor seating shall not be
used for banquet, reception, or conference purposes.” So
what is it going to be used for?
JIM GERNEY: The area that you’re referring to,
Commissioner, is actually the restaurant seating area,
which is the upper patio area, and it’s been discussed in
every one of these meetings that the distinction between
the upper area and the lower area of the courtyard are two
distinct areas, and the Conditional Use Permit defines the
upper seating area of 36 seats and does not specifically
say anything in reference to the lower area.
COMMISSIONER O'DONNELL: So it’s your
understanding that there are no restrictions on the number
of people in the lower area?
JIM GERNEY: My understanding is that we are not
allowed to have amplified noise outside. When we purchased
the hotel in 2012 we were not aware, but very quickly
became keenly aware, of the challenge on the Conditional
Use Permit, and made significant efforts to change the way
to do business to accommodate that. The interpretation that
has been shared with us by the Town of Los Gatos is that
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they are two distinct areas and theoretically the policy of
the conditional use does not apply to the courtyard and
only applies to the upper seating area.
COMMISSIONER O'DONNELL: Just to say it again, if
it doesn’t apply to it, and I’m reading the language now,
it says, “Total seating shall not exceed 130.” Now, does
that apply to both balconies?
JIM GERNEY: The 36 seats?
COMMISSIONER O'DONNELL: No, 130. Condition 2
says, “Total seating shall not exceed 130.” Is that both?
JIM GERNEY: I believe that’s actually the
occupancy permit for our restaurant. I don't know, I don’t
have it in front of me; I’m sorry.
JOEL PAULSON: I think Staff can help you, maybe
prior to closing the public hearing.
COMMISSIONER O'DONNELL: I’m curious as to his
understanding, because he’s running it, and if he doesn’t
know what the restriction is, that’s… You know what the
restriction is, but I’m curious what he’s operating under.
JOEL PAULSON: Okay.
COMMISSIONER O'DONNELL: What do you think you’re
operating under?
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JIM GERNEY: I believe that we are operating
under the Conditional Use Permit that restricts amplified
music on our outdoor area.
COMMISSIONER O'DONNELL: And there are two
specific limitations, one on seating and one on total
people. One is 130 and is 36. You’re telling me the 36 only
applies, as I recall, to the upper?
JIM GERNEY: Correct, and the 130 implies the
restaurant seating, and none of the seating restrictions or
restrictions you mentioned have anything to do with the
courtyard, is my understanding.
COMMISSIONER O'DONNELL: So there is no
limitation in your mind as to the number of people in the
lower area, is that right?
JIM GERNEY: Well, I believe that there is
probably a fire code ordinance on how many people we can
have. I don’t believe there’s any conditional use
restriction in reference to that.
COMMISSIONER O'DONNELL: Thank you.
CHAIR BADAME: I have a question for Staff. Is it
up to us to determine what that outdoor seating area is?
Because it doesn’t say on the CUP whether it’s the upper or
the lower, it just says, “Outdoor seating shall not exceed
36.” So is this an interpretation for us to make?
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SALLY ZARNOWITZ: This is the Town’s
interpretation and the Town’s reading of the Conditional
Use Permit. It’s consistent with other readings of that
that took place in 2011, and the issue before you tonight
is specifically entertainment and only that condition as,
again, outlined in the Council policy.
CHAIR BADAME: Agreed. Commissioner O'Donnell.
COMMISSIONER O'DONNELL: Notwithstanding that, it
would be nice if we understood this, and I guess I’m saying
when you look at the existing Conditional Use Permit and it
says, “total seating…” I take the word total to mean total.
It says, “Total seating shall not exceed 130.” I would
assume that means to the Applicant. Now, I don't know if
that’s what it says, so you’re going to tell me that it
means something and it doesn’t say it, is that right? So
how does one find out what it means and what it doesn’t
say?
JOEL PAULSON: As Ms. Zarnowitz explained, all
the way back to 2011, which I think is one of the
contentions that the neighbors have, how it was interpreted
before and how it has been interpreted is the total seat
count of 130 applies to the restaurant use, which includes
the upper patio area. There is no limitation on seats or
occupants, other than potentially fire occupancy code, for
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the courtyard, and so that total 130 seats is for the
restaurant use in total. So if, for instance, if they put
their total maximum of 36 outside, then they could only
have 94 inside. The total for the restaurant use, which
would be the indoor and that upper raised patio, is 130
seats total.
COMMISSIONER O'DONNELL: But there’s no
limitation on the lower area?
JOEL PAULSON: Correct.
COMMISSIONER O'DONNELL: Except what the fire
code is?
JOEL PAULSON: Fire, correct.
COMMISSIONER O'DONNELL: And have we ever
explored how much noise is simply generated by large crowds
in that area?
SALLY ZARNOWITZ: I believe the noise report
looks at background noise. The noise assessment actually
looked at that and included it in their noise assessment;
and how to stay within the limits of the Town’s Noise
Ordinance, that’s actually in the noise assessment that was
done.
COMMISSIONER O'DONNELL: I don’t recall the noise
assessment assessing a non-existing condition, that is to
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say, a large group of people, unlimited except by fire
code, is that (inaudible)?
JOEL PAULSON: To clarify, I think that the noise
assessment looked at ambient noise that exists, so that
would not account for the instance that you’re accounting
for, and so no, I believe it (inaudible) consideration.
COMMISSIONER O'DONNELL: I’m just trying to get
at if we can tighten this up a little bit. I don’t doubt
your interpretation, but to the reader, it doesn’t spring
out at you what it says.
JOEL PAULSON: Agreed.
COMMISSIONER O'DONNELL: So I’m just trying to
clarify in my own mind what that means. And then it says,
“The outdoor seating,” but that means the restaurant
outdoor seating?
JOEL PAULSON: That is the 36 seats in the raised
patio area.
COMMISSIONER O'DONNELL: So the lower patio area
could have banquets, receptions, and conferences?
JOEL PAULSON: The courtyard, yes. It’s the
courtyard.
COMMISSIONER O'DONNELL: So what’s the advantage
then of limiting with the 36? How does that help anything?
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JOEL PAULSON: I think it’s a smaller area, that
raised patio area, so I’m assuming that when this came
through originally, or when it came back before, they
looked at how many seats could we put out there reasonably,
and 36 probably was that number. That would be my
assumption.
COMMISSIONER O'DONNELL: It has nothing to do
with noise, then?
JOEL PAULSON: It does not.
COMMISSIONER O'DONNELL: Okay, thank you.
CHAIR BADAME: Commissioner Hanssen.
COMMISSIONER HANSSEN: As I was listening to this
line of questioning, and this is more of a question for
Staff, it seems to me that the Conditional Use Permit might
be a bit out of date in terms of the use of the property,
because you have this much larger courtyard area where this
entertainment is going to be held, and then there’s nothing
other than the Town’s Entertainment Policy that applies to
that. It just seems odd that there wouldn’t be anything
other than the fire code when we actually have numbers for
the restaurant upstairs.
JOEL PAULSON: Well, again, I’d reiterate, we’re
solely for the noise, as required.
COMMISSIONER HANSSEN: Right.
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JOEL PAULSON: And so whether or not there may be
additional modifications that someone may want to bring
forward in the future, that is definitely something that
could be done. If there are concerns by the Commission and
they think that there should be some additional limitation
absent fire code, or less than fire code, the problem is we
don’t know what fire code is so I couldn’t tell you where
that starting point is. That fewer people in that area may
be appropriate in this instance, that could be factored
into an additional condition or recommendation to Council
as it moves forward, that that be looked at and that
consideration be given to reducing or limiting the number
of people allowed in that courtyard area.
COMMISSIONER HANSSEN: Or maybe even just know
what it would be. Okay, that’s fine. So it would be within
our purview to ask the Council to consider that in our
recommendation?
JOEL PAULSON: Yes, because as it relates to the
noise and entertainment, that does goes with that topic.
CHAIR BADAME: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: If we believe that the
number of people present outdoors has an impact on sound, I
assume that would be within the purview of what we’re
doing?
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JOEL PAULSON: Yes, which is what I was just
trying to illustrate.
COMMISSIONER O'DONNELL: Okay, but I understood
you to say if we’re simply interested in the condition
which does not relate to noise, that’s not before us, is
that right?
JOEL PAULSON: So I’ll try to restate this again.
The issue is the courtyard area that does not currently
have a limitation other than fire occupancy code. That is
one of the areas where noise and entertainment is proposed,
and so if the Commission has concerns because of the sheer
number that could be out there and they want to limit that
number to something less than fire code occupancy, then
they could make that part of the recommendation for the
courtyard area, that that be limited in some fashion.
COMMISSIONER O'DONNELL: Okay. I’m sorry for
being dense on this, but I want to make sure I get it
straight. The noise that we’re talking about does not
relate to the outdoor seating which shall not exceed 36, it
only relates to the lower area, is that right?
JOEL PAULSON: It’s the entertainment, and
hopefully not to muddy the waters further, the Noise
Ordinance applies everywhere, whether it’s that upper area,
the indoor area with the doors open, the courtyard without
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entertainment, Noise Ordinance applies no matter what. So
this is to allow entertainment in these areas and outdoor
areas.
COMMISSIONER O'DONNELL: No, I understand that,
but this particular use permit basically says you can’t
have this kind of entertainment and it doesn’t make a
difference whether it is outdoors, you can’t have it. Now,
the Town in its wisdom has changed that, and I just want to
make sure it’s clear. It’s not very clear. So if we say
yes, you may have entertainment until 10:00 o'clock, and
no, you can’t have percussion and all that, I would like it
to be clear, and this use permit is not at all clear. We’re
being told well you can’t clear it up, because that’s a
different matter and we only have sound, but to the extent
that we want to deal with sound I think we can clear up
those matters which might otherwise interfere with our
decision on sound. For example, it isn’t clear to me at all
that when we’re talking about music it will be restricted
to the area which can have unlimited numbers of people, but
if that’s the case, then we ought to say that. So I’m just
suggesting that if we were to pass this, we make it clear.
Secondly, I think it would be nice to know that
the seating shall not exceed 36 in a given area and we
specify that, because this all gets to sound. And the 130 I
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take it you’re saying is both levels. I think you said
that, I don't know. Maybe you said it was just the
restaurant, so 36 outdoors and the balance indoors or back
and forth, but none of that is clear. So if we’re going to
try to, say, because the Council has told everybody in town
yeah, we’re trying to beat Campbell and we want to have
music and all that, so the Town has said that and now we’re
supposed to do something with that, and I’m saying should
we decide to follow the Council’s lead, I sure would hope
we can make it clear.
So I don’t believe that being restricted from the
use permit in general, I would agree with that, but insofar
as it might affect the sound that we’re dealing with, I
think there are a number of things here that ought to be
cleared up. I just throw that out because if you or Counsel
say wait a minute, we’re getting too far afield, I’d like
to know that.
ROBERT SCHULTZ: I’ll be the first to tell you if
you go too far afield, but no, you’re absolutely right. You
certainly have the ability if you have concerns over the
outdoor entertainment and you believe that that could be
mitigated by having a lesser than the fire code occupancy
in that downward area, yes, you can. What you can’t do is
now reopen the 36 outside seating that they have for the
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restaurant and say I think that’s too much, I think 20
should be there, but certainly in the area where they plan
on having outdoor entertainment, yes, you could put
occupancy limits on that.
COMMISSIONER O'DONNELL: Where it says, “Outdoor
seating shall not exceed 36,” I’m not suggesting we change
anything, we just make it clear that that means not outdoor
seating, it means outdoor seating as to a specified area,
and we say that, because you people will not be here
forever, and I sure won’t be, so it might be nice if we
said that.
Secondly, “The total seating shall not exceed
130,” we ought to say what that means too. So that is not
(inaudible) changing it, it’s to follow your interpretation
of what this thing should have said. Then, I think, we can
deal with the sound issue.
So I just want to see if that would fly, and if I
understand Counsel, we could do that.
CHAIR BADAME: Commissioner Burch.
COMMISSIONER BURCH: Do we have any speaker cards
on this item?
CHAIR BADAME: We do, and we’re getting ready for
them. Any further questions for the Applicant? Seeing none,
thank you very much.
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JIM GERNEY: Do I have any additional time left?
CHAIR BADAME: No, you’ll have five minutes to
come back later.
JIM GERNEY: Okay, thank you.
CHAIR BADAME: After the speakers from the
public.
All right, I will now invite comments from
members of the public. Comments are limited to three
minutes. Our first speaker tonight is Tom Richards.
TOM RICHARDS: What am I supposed to say? I
forget. I live at 62 Broadway, Tom Richards.
CHAIR BADAME: Thank you, that’s perfect.
TOM RICHARDS: So let’s see, there’s been
discussion about a number of instruments to be limited
here. I think the bass drums, and there are obvious things
like French horns, trombones, and amplified guitars. But
when we’re talking about 67 to 72 decibels I think it’s
worth mentioning that normal speech… So Commissioner
O'Donnell, if you didn’t have your amplified voice you’d
probably be around 60 to 70 decibels, and we’re looking for
this to be limited to 67 to 72, so it’s not much higher
than you probably speak when you’re a little excited.
But some non-obvious instruments that also exceed
this level include violins, cellos, oboes, flutes,
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piccolos, clarinets, and harps, and that is not amplified.
That’s not if somebody is banging on them, that’s just
their general use and performing music. These aren’t
instruments that you can turn down.
I think they’re looking to play live instruments
there, so I’m not quite sure how overall the sound could be
limited to a level that is roughly equal to somebody
speaking not loudly, but just talking excitedly with a
friend. I think that’s worth thinking through, because I
don’t think that’s really been mentioned and I don’t think
a lot of people have brought what these numbers mean to
real things that we understand, like speaking amongst two
people.
And then when you start talking about it’s not 36
people, it’s 130 or however many people they’ll fit in
their conference, that gets really loud really quickly.
Thank you.
CHAIR BADAME: Thank you. Questions for the
speaker? Seeing none, thank you. Gail Randolph.
GAIL RANDOLPH: Hi, Gail Randolph, 42 Broadway.
I have a background that includes education and
experience with creativity, art, conflict resolution, and
problem solving. I love this stuff; I base my life on it.
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And I was thinking a lot about solutions to the
idea of entertainment in the patio and courtyard of the
Toll House adjacent to the Broadway neighborhood. I
seriously was trying to think about a Win/Win Way, which is
the title of the curriculum I wrote for my school district,
but I keep coming back to the main idea, the big picture.
This whole problem was solved in 1995. Situations
like this were anticipated, and in order to approve the
whole project the CUP was written and the entirety were
approved. It was very specific. We breathed a sigh of
relief and wholeheartedly we embraced the idea and the
reality of a hotel being our next-door neighbor. What
better choice could there be? You know, we had a year’s
long test of the CUP, culminating about 2008, and the CUP
withstood the test.
Now, imagine for a moment that your neighbors had
a major event in their back yard, every weekend, Friday,
Saturday, and Sunday, throughout the year. They had invited
all their friends, and friends of friends, and they
cheered, and they played music, and they had a mike and
they did plays and skits, and they had a good time. You’d
be happy for them for the first few times, and then it
would get old really fast. You wanted to have your family
over and sit in your back yard and barbeque and talk, but
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the neighbor’s activity overrode yours. This is what our
neighbors in the apartment space over there, as well as up
the street a few houses and across the street and up a few
houses there. We all like to live downtown. We accept the
(inaudible) predictable and random sounds of summer jazz,
children playing in the fountains, the fire engine bringing
Santa to the plazz, people coming and going to the post
office, walking to the hardware store. It’s the ordinary
sounds of life in Los Gatos. It’s pleasant and cozy,
really.
Of course I advocate for leaving the CUP as it
is. It’s a good thing.
CHAIR BADAME: Thank you, Ms. Randolph. Any
questions? Seeing none, thank you very much. Michael Verga.
MICHAEL VERGA: I’m Mike Verga at 46 Broadway.
I’d just like to make one comment before I get
into what I was planning on saying, and that is that I did
talk to the Town Council members that put this thing
together, and they’re refuting everything that is coming
out of the Town position right now.
As for the 36 seats that you can put on the
patio, literally you couldn’t put 36 seats on that patio
unless you stacked them practically on top of each other,
and you certainly could not serve dinner or lunch on that
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patio with 36 seats there; it is way too small, it’s about
a 12x30 area.
What I did want to start to talk about is that I
would like to make a few comments about filing complaints
with the Town. Over the years I have attended many Planning
Commission and Town Council meetings, and it has asked on
numerous occasions to Town Staff how many complaints have
you received over this or that particular problem? I have
come to find that the most common answer from Staff is
usually there’s not too many complaints, or very few. I
find that answer usually to be quite misleading.
People have many reasons not to file a complaint.
It takes too much time. I’m already lying in bed and I
don’t want to get up. Maybe someone else will do it. But by
far the most common reason for not filing a complaint is
well, what good would it do? The one and only reason people
do file a complaint is because they feel it might actually
do something, make a difference, that the problem might get
resolved.
I talked to the tenants at 25 Broadway, the
apartment building directly in front of the courtyard,
literally steps away from the courtyard. Did the Town reach
out to investigate any problems the tenants at 25 Broadway
may be having with the Toll House? Did the Toll House ask
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the tenants if they had any problems? No, but I did, and
the tenants, they told me how disruptive the receptions and
conferences can be to their peace a quiet. Do they
complain? No. Why? Well, what good would it do?
The Town has taken the ridiculous position that
the Toll House isn’t even in violation of their CUP, which
is completely refuted by the actual wording of the CUP and
by the members of the Town Council that put the CUP in
place. We spoke with them, but nonetheless, the Town
ignores the CUP. So I ask: What good would it do to
complain? No wonder the tenants at 25 Broadway don’t
complain. All they would get would be excuses, no
resolution. This absolutely makes me and my fellow
residents feel quite concerned about relying on a noise
ordinance and the futility of filing a complaint.
I’ll cut it short here. We don’t have the
resources to fight this like people that are getting paid
to be here, so we’re asking the Planning Commission to
stick up for us. Please do so and hear our complaint, and
don’t change the CUP.
CHAIR BADAME: Thank you, Mr. Verga. Questions?
Commissioner O'Donnell has a question for you, Mr. Verga.
COMMISSIONER O'DONNELL: It would be helpful to
me if you could give me a better description of how you see
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the interpretation today from the way you read the
Conditional Use Permit.
MICHAEL VERGA: Well, there are a number of
reasons. I know from Gail that when the courtyard in the
hotel moved in that they were very, very specific about
that courtyard and how large it was, and how a crowd could
form into that courtyard and how noisy that would be, and
that’s why they limited the outdoor seating area to 36, and
that includes the courtyard. This interpretation that it’s
the patio, to me, is a ridiculous… It’s not only my feeling
that it’s ridiculous, because you could barely fit 36 seats
on the patio, but I talked to Steve Blanton and my wife
talked to Joanne Benjamin, and that’s not true what’s going
on here. That courtyard is the 36 seats, and it was done,
as Gail knows from the history, because they knew, they
were smart enough to realize, as Tom spoke of, that when
you get a crowd into a courtyard, and as the tenants at 25
Broadway have confirmed, the crowd itself is louder. The
crowd itself is louder than Number One Broadway, which has
a live band, but it’s indoors. Anyway, that’s the research
that I’ve done about it.
COMMISSIONER O'DONNELL: That’s helpful to me.
Thank you.
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CHAIR BADAME: Thank you, Mr. Verga. Larry
Lenhart.
LARRY LENHART: I’m Larry Lenhart; I live at 30
Broadway.
I did host the gentleman to come by the house
about three weeks ago, and it was great after three strikes
at the ball that these guys came up and said okay, we’ll
throw in something, we’ll not have drums on the outside of
the patio, which is a great step. I wish we’d had those
conversations a long time ago so we actually could have had
maybe some dialogue that would have worked.
When I thought a lot about it and looked back and
listened to Mr. Verga and other areas, I realized that one
thing that we’re trying to do is we’re trying to pass
something on top of a CUP that’s being wrongly interpreted,
and I don’t think we should do that. I think we should go
back and figure out the right interpretation of that CUP
before we agree to put something else on top of it. I mean
that’s really the rule of law.
As Mike highlighted from that perspective, we did
talk to the Town Council who has actually written that CUP
before, and their interpretation is very different than
what the folks are interpreting it today, and so I’d
encourage us to get that correct before we actually put
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something on top of it, because all we’re doing is putting
something on top of something that is interpreted
incorrectly, and I would implore us to do that.
Great example, the 36 seats. Mike is actually
right. There’s no way that that’s the case. Our belief, and
the way that it’s written, is the Toll House in general has
130 folks in the environment, inside and outside. That
includes the inside, but only 36 people outside, and no
activities outside such as banquets and others. That’s
really how it’s written, and that was the spirit of the
creation of the CUP. Thank you.
CHAIR BADAME: Thank you. Gillian Verga.
GILLIAN VERGA: Hello again. My name is Gillian
Verga and I live at 46 Broadway. I am one of the neighbors
who supported the letter that you have in your packet, and
I’d like to point out two additional things.
First of all, you can see that there are a
handful of residents who have put a lot of time and energy
into this issue. We were here on September 14th for almost
an hour-and-a-half, and again on November 9th for almost two
hours, and now we’re here again, and you can be sure that
if this does go to the Town Council, we’ll be at those
meetings as well. We’re not doing this because we’re paid;
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we’re doing this because it really makes a difference to
the impact on our lives if there is noise on our street.
Second, I’d like to point out that this issue
doesn’t really seem that particularly important to the Toll
House. They were asked to reach out to the neighbors at the
September meeting, and they did not do that. At the
November meeting they were specifically told that they
needed to do outreach to the neighbors. They waited almost
a month and finally reached out right at the beginning of
the holiday season, on December 5th. You know, to be honest,
when somebody says to me, “Oh, I really want to listen to
you,” and they say that after they’ve been specifically
told they have to say that, it doesn’t really feel that
genuine to me. When we did meet with them they honestly did
not offer any particularly creative or new ideas about how
to compromise, and it didn’t appear to me that they had put
much effort into understanding the concerns that we had
expressed at the previous three-and-a-half hours of the
Planning Commission meetings.
When we started this process back in September, I
believed that we could compromise. I believed there was a
way to instate the CUP with entertainment with certain
restrictions. I no longer see that as a viable option. If
the Toll House and the Town had been honest with us about
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how the current CUP is being violated, then that might have
created a basis for discussion and trust. If the Toll House
had demonstrated that they were serious about understanding
our needs and concerns, then we would have been ready to
listen. But they’ve come to the table too little, too late,
and not offering much to us.
This is the third meeting on the subject. I
really hope it’s the last. Outdoor entertainment in the
middle of a residential neighborhood is just a bad idea.
Please deny the CUP change.
CHAIR BADAME: Ms. Verga, you mentioned during
your statements that at one point in time you could have
considered a compromise with certain restrictions. Can you
describe what that might have been?
GILLIAN VERGA: Yeah, actually in the November 9th
meeting I listed out a number of things that I thought were
possibilities. They could have certainly watched the video
to see that.
CHAIR BADAME: Thank you. Lee Quintana.
LEE QUINTANA: Lee Quintana, 5 Palm Avenue. I’d
like to ask if I could see a copy of the CUP; I couldn’t
pull it up on my computer.
My questions have to do with process. My
understanding—and I would love through the Chair to ask
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Staff for correction on this if I’m not interpreting right—
is that because the Toll House has a CUP that restricts
entertainment they need to come in and change that item of
the CUP, but no other portion of the CUP can be addressed.
The Staff Report, I believe, says that music before 10:00pm
is allowed by right, and yet the CUP is now saying yes, but
we’re putting the requirements of entertainment after 10:00
o’clock on it. It doesn’t make any sense to me. Just right
there it would seem like if you have to do that, maybe it’s
not a good idea to have entertainment in the courtyard,
because of the noise.
I do remember the CUP states two amplifiers on
the north wall, but it doesn’t say a maximum of two total
amplifiers, period, on the north wall. It doesn’t have
anything in it that I’m aware of that says how often the
sound has to be monitored, how it’s recorded, how it’s
passed on, how any part of that is implemented. It seems
like there are so many questions on this that it either
should be denied, or it should be continued before all of
the questions that have been raised have been answered.
But I wanted to look at the CUP conditions
because I remember reading that one of the conditions was
that the courtyard could not be used for banquets,
conferences, et cetera, that it would be open to the
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general public, which if I understand this correctly, that
would not be the case if this were to go through. But I
don’t have the CUP to look at.
CHAIR BADAME: Ms. Quintana, I actually have a
copy of the CUP. I don't know if Staff would like me to
share it, or I can read a couple of the sentences that you
might be referring to. I believe your time is almost up, so
it’s got to be very quick.
LEE QUINTANA: Okay, it’s number 7, and the
replacement for the number 7, but I think…
CHAIR BADAME: Number 7 says, “No music,
entertainment, or amplified sound shall be allowed in the
courtyard,” and actually the time is up. Any questions for
Ms. Quintana? Seeing none, thank you.
The Applicant is invited back for five minutes to
address the Commission.
JIM GERNEY: Thank you, again. I would like to
just try to give my spin on a couple of the things that
were discussed tonight.
The interpretation of the Conditional Use Permit
is actually not part of this discussion. We’ve gone back to
this, but really, the transparency of our business to try
to work with everybody, to try to understand that on June
21st, when the policy changed, we came forward and said
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should this not apply to us as well, and we began the
process.
There have been a number of discussions about
whether or not our outreach met or did not meet the
requirements or expectations. I would like to clarify one
very specific point.
It was mentioned that our October 6th event, that
was really a Jazz on the Plazz event. Actually, it was a
catalyst from the September Planning Commission meeting
where we actually invited via snail mail, Next Door, and a
number of different venues, and our intent was to try to
get as many of the Broadway neighbors as possible; and when
we were hosting an event obviously we didn’t want to have
an event that very few people showed up at, so we expanded
our invitation list to many more, and obviously it was all
Los Gatos residents, but our intent was really to try and
bring forward what our courtyard was and who we were.
One of the things that came up was that—and this
goes back, for those of you that have been through all
three of these meetings—in 2012 when we purchased the
property and became aware of the Conditional Use Permit, we
have obliged for four years now, almost five, and we’ve
been very respectful of the noise and our use of that
space.
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But on June 21st when the policy changed, we
believe that policy should apply to us as well. There are
noise ordinances that apply to those; I believe that those
should apply to us just like anybody else. I believe that
all the restrictions that are in place legally that apply
to everybody else should apply to us, and we’re willing to
put additional conditions on it that would apply to us
only. But by having a policy change, and on the website
specifically identifying that a modification to your
Conditional Use Permit is all that’s required in order for
you to be eligible for a policy change, doesn’t really
apply here.
I understand that there are much more, I don't
know, cosmic opportunities, but because we’ve been good
neighbors… I mean we went back and we asked the Town to go
back and look at, let’s go back two years, how many
complaints have they had regarding noise for the Toll House
Hotel, and the answer is zero. How many issues have we had
at the Toll House Hotel that have involved the police? The
only events that are registered are ones that we recorded
when we had incidents inside the hotel where we needed
police assistance. There has never been an outside, in my
experience in the four years-plus that I’ve been there,
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where there’s been any noise or interaction with the police
or any law enforcement regarding activity in the building.
There is a question as to whether or not we’ve
demonstrated good faith. There are a lot of questions as to
whether or not we comply or don’t comply with the policy.
There is a lot of discussion as to whether or not we’ve
done our due diligence based upon the request of this
group. You know what? I find myself a little dismayed that
I absolutely respect the position of our residents, but I
also believe that there’s a very clear parameter on how
this policy is to be enacted, and I’m frustrated that we’re
not allowed to enact the policy, just as any other business
in this town, within the parameters that are legally
guided. We know what they are, we’ve done $20,000-plus
worth of investment to make sure that we’ve met the
criteria of what the Planning Commission has asked, and we
find ourselves being told that this is a resident versus
business and we have a policy that says what we can and
can’t do. Why can’t we operate within the boundaries of the
policy and the laws that exist, just like any other
business?
CHAIR BADAME: Thank you, Mr. Gerney. Questions
for the Applicant? Commissioner Burch.
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COMMISSIONER BURCH: On the new Conditions of
Approval that we have in front of us, one of the items says
that, “The owner shall implement at their cost all
recommendations identified by,” the noise assessment, which
I assume this is the paragraph that also includes the
monitoring. Because it’s been a little while, what is your
understanding of what kind of monitoring they’re requiring
that you do based on the Salter study?
JIM GERNEY: We went back to the sound engineers
and there is a specific model, and I’m sorry I can’t quote
it right here, of a decibel meter that we can put in very
specific locations that scientifically cannot be
challenged, will determine what point the sound decibel is
at at that location, and exactly what the sound decibel
would be at locations throughout the sound study that were
done, and therefore we can determine that at what sound
decibel we are at as to whether or not we are within or not
within the decibel requirements of the ordinance.
COMMISSIONER BURCH: May I ask a follow up
question based on that?
CHAIR BADAME: Of course, Commissioner Burch.
COMMISSIONER BURCH: So then based on that, these
monitors would be set in place around the courtyard or in
various locations. So let’s say that there was an event
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going on, and my understanding, and I want to be sure it’s
your understanding, the cap on the noise level, if you’ve
got a group of noisy people in there, their volume alone
might mean you don’t ever get to turn the music on, because
they alone are loud, because the sound is the sound. What’s
producing the sound doesn’t matter; the cap is the sound.
So let’s say you do happen to have an event and
people get loud, and the Town gets a call from the
neighbors, your understanding is that someone can walk
over, look at this monitor, go oh my gosh, yes, we are
over, cut the music, or we’ve got to do something to
eliminate noise here immediately, and that that is how this
would be monitored within your own facility, and that is
something that if our compliance officer was called, they
would have access to this monitor to be able to look at it
and say yeah, you were over, and that’s one ding, and you
have to bring the volume down. I just want to make sure
that you understand what my interpretation of this is.
JIM GERNEY: Actually, my interpretation is a
little more aggressive than that. I think that because we
have a significant amount of leadership that’s on the
property that we would actually be logging this meter on a
regular basis to show that we are actively checking that
monitor, not waiting to think that are we over, are we not?
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If we can be checking this periodically, whether it be on a
half-hour or hourly basis, based upon the activity of the
thing.
But you’re absolutely right, Commissioner, it
doesn’t matter what the activity is on the courtyard, sound
is going to be sound no matter what type of sound is
created, and the decibels, whether they be combined or
independent, are going to create a certain decibel level,
and with us monitoring we’ll be able to prevent any
violation of the existing ordinances.
COMMISSIONER BURCH: Okay, thank you.
JIM GERNEY: You’re welcome.
CHAIR BADAME: Commissioner Janoff.
COMMISSIONER JANOFF: Question regarding the
sound study. On the day that that was conducted, were the
neighbors made aware that that was the case, and did the
neighbors have an opportunity to provide any input from
their back yards, saying wow, I don’t hear anything, or
wow, I hear a lot? Was there any kind of collaboration on
that study with the neighbors?
JIM GERNEY: That’s a great question, and
unfortunately at the last two meetings we actually
discussed that. We actually went out with the sound
engineers to the neighborhood. We were fortunate enough to
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have one of our neighbors, that are present, volunteer
their property to actually put a sound meter on, and when
we conducted the sound test we were out at that location on
Broadway, standing there measuring the decibels on our
courtyard. I’d like to share that the decibel levels on the
courtyard in our opinion were in excess of what we would
ever do, because they would insult the customers in the
guestrooms adjacent to the courtyard, and it was not
discernable at the locations that were described.
COMMISSIONER JANOFF: And is that true generally
that the neighbors had no feedback regarding the sound
study at that time, other than the incidence you’re
describing where you were there and the neighbor said I
don’t hear much? Was that just the one neighbor?
JIM GERNEY: No, there was some pretty intense
dialogue that the historical behavior of the hotel prior to
our purchasing it had kind of left a stain that could not
be erased on how the hotel, the previous owners, had
behaved, and not monitored, and not adhered to any type of
decibel ordinance management, and the fear of going back to
that risk was too great to move forward with any compromise
on the existing Conditional Use Permit. And I agree with
that. You know what? What’s funny is we had not challenged
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it, based upon that reality. Had the policy not changed on
June 21st, we wouldn’t be here.
CHAIR BADAME: Any further questions? Seeing
none, thank you very much.
JIM GERNEY: Thank you.
CHAIR BADAME: The public testimony portion of
the hearing is now closed. Do Commissioners have questions,
comments, or a motion? Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I have a question of
Staff, and you folks can sort out who should answer it.
Would you explain to me again, when the Town changed the
rules, so to speak, the idea was, if I recall correctly,
that it was a blanket change. Now, that would not affect an
existing condition in a use permit, which is why we’re
here, but if one didn’t have a use permit restriction, then
without anything further that would that mean that person
could have entertainment up to 10:00 o'clock?
SALLY ZARNOWITZ: That’s correct, within the
Noise Ordinance, yes.
COMMISSIONER O'DONNELL: So if I understand the
Applicant here is saying everybody… Well, arguably many
people in town are going to be treated differently than
we’re treated, and that’s because we have a restriction
that they don’t have, and because they don’t have the
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restriction, suddenly without having to go get permission,
they have permission, is that what it is?
ROBERT SCHULTZ: Correct, but we certainly knew
this was an issue that would come up, that there were three
types of Conditional Use Permits that were issues: ones
that allowed for entertainment, ones that specifically said
you can have entertainment, and other ones that said you
can have entertainment once we get done with the policy.
So for those ones that specifically said there
was no entertainment in their CUP, some of them I’ve just
been blanking, it might not have been a community
compatibility issue, it might have just been stuck in there
because that’s what we were doing at the time was just
denying entertainment if they weren’t allowed.
But there are ones, and specifically this one,
that there are potentially compatibility problems with the
neighborhood, so just because the Council has enacted an
ordinance that says you can do entertainment before 10:00pm
does not mean that your hands are tied and you can say oh
my gosh, we have to allow it.
COMMISSIONER O'DONNELL: Getting back to the
other issue, then it wouldn’t be fair to say you’re
treating us differently…
ROBERT SCHULTZ: No.
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COMMISSIONER O'DONNELL: …because from day one we
said if it were the case that one had the restriction for a
good and sufficient reason unrelated to a general rule,
then we’re to visit that and decide whether that good and
sufficient reason exists, or whether it could be
conditioned, so I just wanted to see (inaudible).
ROBERT SCHULTZ: And to look at it even in fact
if a new applicant comes forward with a new restaurant
entertainment component and says he wants to do
entertainment before 10:00pm and wants to follow that
policy, this body or Council could certainly put a
condition in their specific CUP that does not allow
entertainment before 10:00pm.
COMMISSIONER O'DONNELL: Thank you.
CHAIR BADAME: For the Commission’s reference,
Exhibit 7 has the policy regulating entertainment, should
you be inclined to look at it.
Any further comments? Commissioner Hanssen.
COMMISSIONER HANSSEN: I didn’t bring my policy
with me, so I had a question about that, it’s a quick one,
and then I had another question about the Noise Ordinance.
The Entertainment Policy allows outdoor music
seven days a week?
SALLY ZARNOWITZ: Before 10:00pm, by right, yes.
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COMMISSIONER HANSSEN: There’s no restriction on
what days it is or anything like that? Okay.
Relative to the way this works, and this works
for anyone that’s doing this, they’re allowed to have
outdoor music and entertainment until 10:00 o'clock.
They’re always subject to the Noise Ordinance?
SALLY ZARNOWITZ: That’s correct.
COMMISSIONER HANSSEN: And then there isn’t any
requirement because of the by right for anyone else to be
monitoring the noise, is that correct?
SALLY ZARNOWITZ: That’s correct.
COMMISSIONER HANSSEN: So if someone were doing
it, they would be doing it voluntarily?
SALLY ZARNOWITZ: Correct, unless it’s written
in…
COMMISSIONER HANSSEN: Unless it’s written in the
CUP like or…
SALLY ZARNOWITZ: …again, as our attorney noted,
in a CUP specifically.
COMMISSIONER HANSSEN: Okay, and didn’t know
this; I don't know enough about monitoring devices. Are
there monitoring devices out there, or do you know, that
would retain the history? Because I thought about the
question that came up where the Applicants, supposing we go
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forward, that they’re monitoring this, but then we need to
have a compliance officer come out and verify. Is it just
real time data, or is there availability for tracking these
things? Because I think if it was possible to move forward
with this, that would be really an essential part of it for
me, that you could go back and have the proof of what
happened that anyone could look at.
SALLY ZARNOWITZ: That could definitely be in a
recommendation to Council.
JOEL PAULSON: We don’t have that information,
whether or not that type of device exists, but that clearly
could be part of the direction, and then it would be on the
Applicants to try to justify or show what there are, or if
there are not, those types of devices, and how that would
work.
CHAIR BADAME: Commissioner Burch.
COMMISSIONER BURCH: A few times it came up that
the hotel is violating its existing Conditional Use Permit,
so I did want to re-ask the question, do we know of any
current violations, or any violations, that have occurred
in the last two or three years?
SALLY ZARNOWITZ: We researched calls for service
relating to noise over the last two years in the area, but
didn’t find any related to this hotel, other than the one
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mentioned where the hotel called about a specific, I guess,
perhaps a guest, someone inside the hotel. So that’s
confirmed, yes, with the police department.
COMMISSIONER BURCH: Thanks. Can I ask another
question, please?
CHAIR BADAME: Commissioner Burch.
COMMISSIONER BURCH: Based on the conversation
that Commissioner O'Donnell had had earlier, and taking a
look at the Conditions of Approval, were we to move forward
would we be able to take Items 2, 3, and 5 and tighten up
the language on those, as Commissioner O'Donnell requested,
clarifying what those locations are defined as? Item 2 is
the total seating, Item 3 is outdoor seating, and Item 5 is
outdoor seating use. So if we are to move forward, are
those items that we could ask to be clarified so when we’ve
all retired and moved on it’s clear in here which those
areas are?
JOEL PAULSON: That can be part of your
recommendation, and Council could make that ultimate
determination. Again, back to 2011, when this was last
before the Commission, that interpretation I think even
goes before that, how Staff is currently interpreting it,
so it’s not something we just made up whimsically; this has
been how we have been interpreting this for many years. But
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those can be part of the recommendations, and then we’ll
look deeper into whether or not it crosses that border of
we’re asking for entertainment. The 130 applies to the
indoor restaurant as well, we’re talking about outdoor
entertainment in this instance, so is that crossing a
boundary?
COMMISSIONER BURCH: Sure.
JOEL PAULSON: But those can be part of the
recommendation.
COMMISSIONER BURCH: Okay, thank you.
CHAIR BADAME: Commissioner Hanssen.
COMMISSIONER HANSSEN: A question related to
that. One of the issues seems to be that the residents feel
that the existing Conditional Use Permit was to be
interpreted in a certain way, and they talked to the
previous Council members, and then Staff has an
interpretation that they’ve been following for years. My
question to Staff is the existing management of the Toll
House, though, has been following your direction and has
not been committing any violations based on your
interpretation of the CUP, is that correct?
SALLY ZARNOWITZ: That’s correct.
COMMISSIONER HANSSEN: Okay.
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CHAIR BADAME: I will provide my input, and my
position hasn’t changed from the last hearing. There are
too many variables with the sound study, the monitoring
that goes along with it, and the code enforcement that gets
done in town. We may have hired a code enforcement officer
to work evenings, but they can be cut with budget cuts, so
enforcement could be a problem.
I believe that the CUP was carefully crafted at
the time with the residential neighborhood in close
proximity, and that it considered that quite carefully and
specifically in excluding outdoor music.
Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I may be wrong, but my
experience with sound studies is that you can have a piece
of equipment that will when it records keep a written
record, so I think that is certainly, from my personal
experience, something that exists, so that could be done.
My problem here is that none of us were present
at the creation, i.e. when the use permit came into being.
At that time we were a lot stricter, I think, on this whole
area, and I think the Council after looking at various
economic matters, and I’m not criticizing at all, after
serious consideration, said we’ve got to change our overall
policy, and they did. But they also said, however, if you
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already have a restriction, that doesn’t override that
restriction. So the question I think before us is, we don’t
have to worry about treating these people differently, we
just have to decide whether the restriction is a reasonable
one that if we were to soften to change or get rid of it,
from a use permit standpoint, is that a wise thing to do?
Now, I’m kind of troubled, because when it goes
up to the Council they might say we think the people ought
to be able to have this, and just do it. We have an
opportunity at the moment, perhaps, to tighten up that
portion of the use permit that relates to that, which I
think could be helpful.
If we, on the other hand, say these people that
live there rely on the fact that there isn’t any
entertainment, and that’s not an unreasonable position, so
if we say we’re just going to go with that, then we don’t
have the opportunity to tighten up on a recommendation.
We could, on the other hand, I think for the
records sake, say even if we were to say we would recommend
denial of the request for modification, however, should the
Council determine to grant it, we would suggest to the
Council they look at, and you, for example, had said
certain paragraphs, which I agree with, and anything else.
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This is a difficult one for me, because I
certainly think that the hotel has been more forthcoming
than many people would be. I think that the residents say
this is really going to upset our lives, and I believe
that, so it’s a tough problem.
So I’m just going to throw that out, and I’m not
going to personally reach a conclusion yet, because I’d
sure like to hear some of my fellow commissioners weigh in.
CHAIR BADAME: Commissioner Burch.
COMMISSIONER BURCH: I’ll weigh in on my thoughts
on this. I’m actually inclined, with some tightening of
some language, to follow Staff’s recommendation of
approval, and I will tell you why.
I’ve probably had the benefit of being involved
in a lot more sound studies than most people, and I happen
to know that 69 decibels is about the equivalent of a
vacuum if you’re standing right at it. That’s pretty much
your equivalent that you’re looking at, and obviously the
sound dissipates as you move away from it.
I do know based on conversations that we’ve had
that the old owners clearly took what the Town had asked
for and said we don’t care, and we all have heard about it;
some of us experienced it. But I do feel that if someone
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else has purchased it and is attempting to make things
right, they should be allowed to do so.
And by putting in place a monitoring device—I
would probably also look for some feedback from my fellow
commissioner—and having perhaps some type of checkpoint, I
guess the way I keep framing this up in my mind is what we
did with the school and the traffic, that we said that in a
certain amount of time you’re going to turn over all of
this monitoring that you’ve been doing and we are going to
have an opportunity to review it, and if at that time you
have continually blown by the noise, we’re revoking this. I
feel like there should be an opportunity given, and if the
hotel cannot meet the opportunity, well, then the
opportunity is gone.
I feel that there definitely is some tightening I
would want in here, not only with the seating, which I
actually just think is for future… We will all eventually
retire, and if this comes up in 20 years, we want people to
know what we were thinking.
I am also going to want on the noise assessment
the monitoring clarified on the type of device and what our
expectation will be about reports given.
I also would look to my fellow commissioners for
some feedback. I do not feel that noise should be allowed
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that late Monday through Thursday. I’m going to be
sensitive to those that live adjacent that have children.
Homework and things that go on, no matter what your best
intentions are, if that keeps a small child up or if you’ve
got a toddler you’re trying to get in bed, that’s a
problem. But most events and weddings and things are going
to happen on the weekends anyway, so I would look to my
Commissioners for comments on those.
But if that kind of language could be tightened,
clarified, and we could have some type of a limit set on
reporting back to us, I would be inclined to recommend
approval.
CHAIR BADAME: Commissioner Hanssen.
COMMISSIONER HANSSEN: Thank you, Commissioner
Burch, because you said a lot of the things that I had on
my mind.
When we had the last hearing I think I said that
this is a tough problem, as Commissioner O'Donnell said, to
balance the needs of the residents versus the economic
vitality consideration. I’m generally inclined, if we could
tighten up the conditions, to move forward with a
recommendation to Town Council, because I think that the
Town did pass an Entertainment Ordinance and I have to take
faith in the fact that the Town Council thought through
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where a lot of the places are that might have
entertainment, and the Toll House is one of them, and they
did already, because of the way the ordinance is written,
anticipate that there are people that had CUPs prohibiting
it that would be coming and asking for it, and so I have to
take faith in that.
Then the second thing is the Noise Ordinance. I
have to also take faith in the fact that the Noise
Ordinance is set at a level that is going to not disturb
the residents, and if that’s not the case, then we need to
revise the Noise Ordinance versus turning down requests of
restaurants that that’s their business, to offer the
entertainment.
Relative to moving forward with this, I think it
would be absolutely essential to have some kind of
monitoring history that could be accessed by the Town,
because it’s like the fox guarding the henhouse if the
Applicant only is looking at this data and we don’t have an
opportunity to look at it. Then I don’t think it really
holds true to what we’re trying to do for the residents, so
there would need to be access by Town available, and there
would need to be some monitoring history. Like I said
earlier, I’m assuming there’s a device that could port the
data to something and it could be shared with people, so
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that a few months down the road… And I do like the idea of
having like a 6-month of 12-month checkpoint to see.
I had also thought about the weekdays. I remember
a couple of the residents talked about having small
children, and at least for considering this as a trial
period more or less, since there’s a checkpoint, maybe
starting out small with just weekends, see how it goes,
check the levels at the checkpoint, and then if everything
seems okay, then it certainly could be expanded.
Last, the existing CUP, clearly there’s a huge
disconnect in interpretation of what it means, and so even
though we’re not really being asked to consider this, I
consider this an opportunity for us to clarify this,
because this is the document that’s going to be going
forward after we’re all gone, unless it gets modified
again, and so I think it’s important to be very clear as to
where and how much seating there can be. The courtyard is
not even mentioned in there, and I think it needs to be
incorporated, because that’s where this entertainment is
going to be, and it needs to be added in there in terms of
where entertainment can or cannot be allowed and how many
seats are allowed.
CHAIR BADAME: But it does say no entertainment
or music in the courtyard.
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COMMISSIONER HANSSEN: Oh, you’re right. Well, we
wouldn’t be changing that, but we would also want to
consider the seating as well and how many seats there could
be.
CHAIR BADAME: Understood. Commissioner Janoff.
COMMISSIONER JANOFF: I’m new to this, and
appreciate the opportunity to weigh in.
If the Toll House had existed prior to the
neighborhood I think I would feel differently, but because
the neighborhood was there first, and for a long, long time
there first, and the commercial facility comes in in such
close proximity to the neighborhood, it concerns me that
the Noise Ordinance would be applied the same as
establishments that are not in such close proximity to a
neighborhood, so I’m concerned about that.
I’m also concerned about the notion that there
could be seven days a week entertainment noise. I’m also
concerned if we reduce that to just the weekends how I
would feel if I were in that neighborhood and had
entertainment of varying kinds every weekend. Sound is
sound, noise is noise, and good noise is different from bad
noise. I mean people have all different kinds of standards
with regard to what’s pleasing and what’s not, and I think
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this is a difficult situation because of that, so I would
be not in favor of approving.
CHAIR BADAME: I do respect the Town’s new
Entertainment Policy, however, they did leave the CUPs
open. It wasn’t a given; they would have to come before us
as a case-by-case basis, so that’s what we’re doing here,
just as we recently did with Wine Cellar, for which we did
not approve outdoor music and entertainment.
I’m also concerned that ownership and management
changes, and then we’re back to problems that could happen
again with the neighborhood, and then enforcement issues.
So those are concerns that I will share with the
Commission. Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I think we probably are
at a point of needing a motion, because it looks like to me
it’s going to be pretty close, and we might as well find
out which way close is, so I’m going to make an attempt at
a motion and see if I can get a second. But also, I want to
say that the motion may not be complete, and I look to my
fellow commissioners to help me with that, because there
are a number of things that we would recommend.
This is very difficult for me to do, because I’m
very empathetic with the neighbors, but I would like to
think that the result of the motion I’m about to make would
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make the situation more firm, more enforceable, and so
that’s why I’m going to make a motion to modify the
Conditional Use Permit.
First, the motion would find that the proposed
project is categorically exempt pursuant to Section 15301
of the Environmental Quality Act. We would make the
required findings as required by Section 29.20.190 of the
Town Code for granting approval. When I say we would make,
we would recommend that, I guess, they would be made. We
would recommend approval of the CUP application to the Town
Council with the conditions contained in Exhibit 14 and the
plans contained in Exhibit 6; and in addition to that, that
the monitor required as proposed by the Applicant would
keep a written record, and that record would be accessible
to the Town upon request for a period of, and I’m just
going to say a year; that the Conditional Use Permit be
made clearer in, for example, paragraph 2 where it says,
“Total seating shall not exceed 130,” so that 130 applies
to the restaurant and the upper patio; that 5 was the
outside seating use, “The outdoor seating shall not be used
for banquet, reception, or conference purposes,” and my
understanding is that applies to all outdoor matters, both
the patio and the courtyard; in addition to that, that the
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entertainment be limited to Friday, Saturday, and Sunday.
Let me see if I’m forgetting something else here.
CHAIR BADAME: Commissioner Burch would like to
state something.
COMMISSIONER BURCH: Just jumping in, because you
asked for help. My understanding on number 5, outdoor
seating use, that it’s not used for banquet, reception, or
conference use, was only for the upper patio, that the
lower courtyard does not have that limitation, based on
what Staff told us earlier.
COMMISSIONER O'DONNELL: Well, I understand that,
and so I ask this question: If we’re going to have an
effective sound ordinance, I would like the sound to apply
to that area, so that’s true, you could keep 5 in existence
as to only the patio, but the sound we’re talking about
would apply to all outdoors.
COMMISSIONER BURCH: Correct. Yes, absolutely.
COMMISSIONER O'DONNELL: Oh, the other thing was
a suggestion was made that we have a trial period, which I
think is a good suggestion. I would like the modification
to have a period of one year, and I’m pulling that out of
my hat, where it could be reviewed to make sure that what
we’re asking for is in fact complying, so that we wouldn’t
have to revoke this modification, we’d have to see whether
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it’s being complied with, and if it’s not being complied
with, the modification would expire. That’s my
recommendation. I don’t want to make it taking away any
kind of vested right.
COMMISSIONER BURCH: Can I ask you a question?
COMMISSIONER O'DONNELL: Yeah, just one other
thing. I think we ought to make clear what the patio is
versus what the courtyard is; that doesn’t jump out at you
at least from this portion of the use permit.
You had a question?
COMMISSIONER BURCH: I did. So as far as the one
year, can we be very clear that it will come back to the
Planning Commission, and what they will come back with is
one year’s worth of weekend sound data. It’s a pretty
simple report; it just has dates, times, and then it gives
you decibels at certain hour points or something, you can
set that, that it’s every hour between 1:00 and 10:00 or
something, but that we would actually be given that full
report for us to look to, because my interest is also in
assessing the delta between summer and winter and what
(inaudible).
COMMISSIONER O'DONNELL: And with that a Staff
Report on the data given us, because I’m going to respect
the Town’s view of looking at that, and I think it is
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critical that we clarify this, because I think one of the
comments was made that they talked to a couple of former
Council people. My experience is you really don’t go back.
It’s like the legislature. You don’t go back to the
legislature and say what did you mean? In fact, my
experience with law is you can’t do that, because we don’t
care what you meant, it’s what you said, and then we’ve
been interpreting this for a number of years, and whether
the interpretation was initially right or wrong, I think it
should now be respected, and as I say, I don’t believe the
testimony of two former Council people, notwithstanding how
good they are, would be admissible for any purpose to
override what you folks have been doing.
So that’s the motion, except there’s another
suggestion?
CHAIR BADAME: Commissioner Hanssen.
COMMISSIONER HANSSEN: I just had a question.
When you were going over 2, 3, 5, and 6 I kind of got a
little bit lost as to what your intent was, so in order to
consider your motion I wanted to make sure I understood.
My idea of how it was going to be is that there
would be a definition of total seating, outdoor seating,
and then there would be a number attached to each of those,
and that the courtyard either would be separate from the
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outdoor upper patio seating or included in that, but it
needs to be specified.
COMMISSIONER O'DONNELL: Right.
COMMISSIONER HANSSEN: And further that number 5,
if the courtyard was included in Condition 5 as written,
then they couldn’t obviously have entertainment, so…
COMMISSIONER BURCH: That’s struck (inaudible).
COMMISSIONER HANSSEN: Okay, it’s struck.
COMMISSIONER BURCH: Yeah, (inaudible).
COMMISSIONER HANSSEN: Well, number 5 says, “The
outdoor seating shall not be used for banquet, reception,
or conference purposes.” If the courtyard definition is
moved under outdoor seating, then it’s not going to be in
compliance from the get go, so maybe it’s a separate one,
but yeah.
COMMISSIONER O'DONNELL: I do want to clarify
that, and you’re raising the point that it ought to be
clarified.
COMMISSIONER HANSSEN: Yes, yes.
COMMISSIONER O'DONNELL: So let’s see if we can
clarify that.
COMMISSIONER HANSSEN: Yeah.
CHAIR BADAME: Commissioner O'Donnell.
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COMMISSIONER O'DONNELL: My understanding is the
outdoor seating restrictions not exceeding 36, and
notwithstanding the comments, which I don’t doubt may be
reasonable, but it’s Staff’s opinion that that restriction
of 36 applies to the patio, which is the upper piece.
JOEL PAULSON: Correct.
COMMISSIONER O'DONNELL: So whether that’s
feasible or not, one can object that you couldn’t do it,
because it would be less. So it should be clear that the
outdoor seating in that paragraph number 3 relates to the
upper patio only. Then 5, which is outdoor seating use, the
testimony, as I understood it, was that only applies to the
patio is Staff’s belief, so that would not apply to the
courtyard, so that’s what I think Staff has interpreted
that for some time.
COMMISSIONER HANSSEN: So then there probably
needs to be one more item in here that says the courtyard
is… I mean it’s by not referring to it; it’s probably
permitted by omission, but to specifically say the
courtyard has a seating capacity of this and outdoor
receptions and banquets are permitted.
COMMISSIONER O'DONNELL: Well, we have been told
that we don’t know, because we don’t have the fire code
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with us. The Town has no Town limitation, but the Town
recognizes it is subject to the fire code.
COMMISSIONER HANSSEN: Right. Well, since we’re
just making a recommendation to Council, I think it
certainly would be prudent to consider what number might be
appropriate, whether it’s the fire code or some number like
that.
COMMISSIONER O'DONNELL: I think if you merely
say, “In compliance with all applicable codes, including
the fire code,” you’re covered, because that also may
change from time to time. So I would agree with you, but I
would suggest we do it that way.
COMMISSIONER HANSSEN: Okay.
COMMISSIONER O'DONNELL: Now, is there anything
else we’ve forgotten? Because we’re doing two things. One
of the things is we’re trying to do is clean this thing up,
and I say that only insofar as somebody is going to try to
figure out the sound we’re now talking about, and it really
helps if you know what the use permit means.
So that’s the motion, and I certainly look to
Staff to try to figure out what we’ve been saying, and I’m
sure they will.
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JOEL PAULSON: Yeah, and the Council will get
verbatim minutes, and so they’ll have the benefit of
reviewing all of this, and then they will take (inaudible).
COMMISSIONER O'DONNELL: We don’t have a second
yet.
JOEL PAULSON: That’s correct.
CHAIR BADAME: Well, we might. Commissioner
Burch.
COMMISSIONER BURCH: I was going to second that.
COMMISSIONER O'DONNELL: Okay. Well, I just
didn’t want Staff to assume a second had been made.
CHAIR BADAME: So we have a motion to recommend
entertainment outdoors with the modified Conditions of
Approval that hopefully were clear to everybody. We have a
second by Commissioner Burch. Any further discussion?
Seeing none, I will call the question. All in favor?
Opposed? Passes 3-2, Commissioner Janoff and Chair Badame
opposed.
Mr. Paulson, are there appeal rights on the
actions of the Commission on this item, even though it was
just a recommendation?
JOEL PAULSON: There are not appeal rights. This
will be forwarded to the Town Council and they will
consider the Planning Commission’s recommendation.
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CHAIR BADAME: Thank you.