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Attachment 09LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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: 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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.” LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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? LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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? LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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? LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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? LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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, LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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; LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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, LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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? LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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’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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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 LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 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. LOS GATOS PLANNING COMMISSION 1/11/2017 Item #3, 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 CHAIR BADAME: Thank you.