08 Attachment 16 -September 28, 2020 Planning Commission Verbatim MinutesLOS GATOS PLANNING COMMISSION 9/28/2020
Item #2, 14225 Walker Street (Market Hall)
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A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
Melanie Hanssen, Chair
Kathryn Janoff, Vice Chair
Mary Badame
Jeffrey Barnett
Matthew Hudes
Reza Tavana
Town Manager: Laurel Prevetti
Community Development
Director:
Joel Paulson
Town Attorney: Robert Schultz
Transcribed by: Vicki L. Blandin
(619) 541-3405
ATTACHMENT 16
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P R O C E E D I N G S:
CHAIR HANSSEN: So then we will move on to Item
2 on the agenda, which is considering approval of a request
for modification to an existing Architecture and Site
Application S-13-090 to remove underground parking for
construction of a commercial building known as the Market
Hall in the North 40 Specific Plan Area. APN 424-56-017.
Architecture and Site Application S-20-12. The property
owner/applicant is Summer Hill North 40, LLC.
This item was continued for a second time from
our last meeting on September 9th to allow Commissioners and
the public to review our Town Attorney's comments regarding
the Housing Accountability Act and this application. It was
also necessary to continue this from our scheduled meeting
on September 23rd due to issues with Zoom and public access.
With that being said, I want to ask if we have
any additional disclosures since our last meeting by
Commissioners for this application? Commissioner Burch.
COMMISSIONER BURCH: I don't know if I have to
disclose this again, but I will be recusing myself due to
my residence's proximity to the project, so I will be
listening in as a resident and neighbor.
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CHAIR HANSSEN: Thank you very much, Commissioner
Burch, and we'll see you back for Item 3, I assume.
COMMISSIONER BURCH: Okay.
CHAIR HANSSEN: All right, so I understand Ms.
Shoopman will be giving the Staff Report for this item,
however we've also asked our Town Attorney to recap the
information in his letter that was distributed with the
agenda for this meeting, and so Ms. Shoopman, do you have
any additional comments about the application before our
Town Attorney speaks?
ASSOC. PLANNER SHOOPMAN: I don't have any
additional comments. It was just to remind the Commission
that there are two separate Desk Items for the meeting:
one, a letter from the Applicant and two; additional public
comments that have been received.
CHAIR HANSSEN: Okay. Thank you very much. And I
assume all the Commissioners have received those items.
Okay, so I will ask now for the Town Attorney to give us a
recap of the information he had in his letter for the
benefit of the public and any Commissioners that wanted
additional information.
TOWN ATTORNEY SCHULTZ: Good evening, Chair and
Commissioners. The Planning Commission at its meeting
requested further analysis of the applicability of the
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Housing Accountability Act for this project and I have
provided that to you in a memorandum that addresses not
only the Housing Accountability Act but also it addresses
our Housing Element and the role of the Planning Commission
in general as to all land use decisions.
By way of background, the approved North 40 phase
one project includes 260 residential condominiums and
rowhouses, ten rental apartments, 49 affordable senior
housing units, one unit for a moderate-income manager, the
senior units, approximately 62 square feet of commercial
space, and a four-story parking garage with 303 parking
spaces. The approved parking garage consists of three
above-level and one below-grade level of parking.
As you review my memorandum it's important to
understand that prior to the approval of the original
project the Planning Commission and the City Council denied
the project. Thereafter the Applicants filed a lawsuit
against the Town asserting that the Town had violated the
Town's Housing Element, that the Town had violated the
state's Housing Accountability Act, and the Town had
violated the state's density bonus laws.
On June 9, 2017 the Santa Clara County Superior
Court issued a decision against the Town. The decision
determined that the findings adopted by the Town Council
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were made under subjective policies instead of under
objective policies that is required by the Housing
Accountability Act.
On September 10, 2017 the Town Council rescinded
its denial of the proposed phase 1 project pursuant to the
court order and approved the project, as I mentioned above
describing the project as approved.
The Applicant is now requesting a modification to
the phase one project to remove the underground level of
the parking for the Market Hall. My legal analysis is that
the Housing Accountability Act is applicable to the
modification of the approved project. The court decision
related to the project required the Town consider the
project under the provisions of the Housing Accountability
Act. The Housing Accountability Act is often referred to as
"California Anti-NIMBY," NIMBY standing for, "Not in My
Backyard."
The intent of the law was to address problems
that the state was having where local governments were
adopting housing standards and policy and then failing to
comply with their own policies when specific housing
projects were at stake. The Housing Accountability Act
requires local governments to approve certain housing
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development projects if they comply with objective general
plan and zoning standards and criteria.
Just an interesting note is that because the Town
denied this project the first time around state legislators
actually amended the Housing Accountability Act and
strengthened it further to require that if a public agency
doesn't comply with the Housing Accountability Act it's
subject to fines and attorney fees are mandatory to the
applicant.
Since the decision required the Town to consider
the phase one project under the Housing Accountability Act
it is my legal opinion that it would to any modifications
of that exact same project. My legal analysis also
concludes that our Housing Element and by-right development
is also applicable to the modification of the approved
project.
State Housing Element law requires the Town to
demonstrate how it plans to accommodate its fair share of
reasonable housing need. To do so the Town must establish
an inventory of sites designated for new housing that is
sufficient to accommodate its fair share of housing. The
Town's Housing Element designates the North 40 for new
housing and establishes by-right development for housing
units on the North 40. By-right development means that if
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the project meets objective criteria, then the project must
be approved.
Based on my review, both the Housing
Accountability Act and the by-right development restrict
the Planning Commission from using subjective criteria for
findings to condition or deny the project. However, it is
important for me to point out that you do not have to or
are required to follow my legal analysis, but if you do not
you should have to find and develop and make findings as to
the reasons that the Housing Accountability Act and our
Housing Elements do not apply to this application.
The other issue I address in my memorandum is the
role of the Planning Commission as it relates not only to
this land use decision but to all land use decisions. Your
role for all land use decisions is in a quasi-judicial
role, which literally means that you're acting as a court
and require land use proceedings to be similar to those
followed in the court proceedings. This requires you to act
like a court for all land use decisions and apply the
Town's local land use regulations just as court requires a
law to be put forth to a specific set of facts of that
case. The law requires you to evaluate the facts and
information and then deliberate and determine how the
Town's applicable standards, ordinance, and laws apply to
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those facts and information you have been provided. You
must then adopt findings of how you progressed from those
facts to our established standards, laws, rules, and
regulations to make that decision.
The legal requirement to make findings linking
the facts to our Town standards is required whether or not
the Housing Accountability Act or the by-right development
is applicable or not. The only difference is if the Housing
Accountability Act and the by-right development is
applicable you must only use objective standards. If it's
not applicable then you can use both objective and
subjective standards that are in our rules, regulations,
and laws, but you simply just cannot ignore and have no
linkage between the facts and our standards, and this is
why I pointed out to you in your last meeting or the
meeting before that that standards such as we need the
parking, or that the cost savings and profit is a strategy
of the developer; or that they stand to make millions of
dollars; or we need to uphold their agreement; or this is a
bait and switch; or it will force visitors, shoppers, and
residents to find other parking.
All of those statements are inadequate and
improper facts and statements to make findings upon.
Although all these statements may be true, they just do not
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provide legal findings that will stand up in a court as
they do not link those facts to anywhere in our standards,
rules, and regulations.
And with that, I'm available for any questions or
comments that you have regarding my memorandum and any
other clarification that you need.
CHAIR HANSSEN: Thank you very much to our Town
Attorney, and it looks like you have a question from
Commissioner Hudes.
COMMISSIONER HUDES: Thank you. Based on the
opinion that you gave us about the Housing Accountability
Act, the requirement for two-thirds residential, is that
based on strictly the Market Hall building or is that based
on the scope of the phase one application?
TOWN ATTORNEY SCHULTZ: That's based on the
project as a whole because that's where it's being
modified. That's just my personal opinion; you won't find
that in case law. There's very little case law that
interprets that. Certainly if you just base it on the
Market Hall I don't believe they make it, or just under it,
but for any project in town that seeks a modification you
don't separate out, you don't piecemeal out a part of it
and say it's only coming in for a height modification. It's
a modification to the entire project, the entire Conditions
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of Approval, and that's why I based my decision on that
it's applicable to the entire project.
In fact, the density bonus is related to the
entire project, so if you're only looking at the Market
Hall it wouldn't take into account all the other
availability of state laws. And also because the Housing
Accountability Act is interpreted by courts very widespread
because of the intent to prevent anti-NIMBYism; that's why
I reached that conclusion. If the position of the Planning
Commission is that it does not apply because of the fact
that the Market Hall and that component of this project
doesn't meet, then those are the findings that you can
make.
CHAIR HANSSEN: Commissioner Hudes had a follow
up question.
COMMISSIONER HUDES: As a follow up to that, does
that have any bearing on whether the parking requirements
are looked at only for the Market Hall building or for the
project as a whole, as you said?
TOWN ATTORNEY SCHULTZ: My opinion is you have to
look at it as a whole. You don't get to use the Housing
Accountability Act to your advantage and then say the
parking only applies to the Market Hall.
COMMISSIONER HUDES: Thank you.
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CHAIR HANSSEN: Do any other Commissioners have
any questions of the Town Attorney? And you also have an
opportunity to ask questions of Staff. I don't see any
hands raised at the moment.
I do have one question for the Town Attorney that
I wanted to ask. We did go over this in our last meeting
but for the benefit of people that might be tuning in for
the first time, we've gotten so many letters from people,
and really heartfelt letters from people in town, talking
about how the developer is reneging on their commitment,
and because there were proposals made in previous
iterations even at the time the application was filed and
approved, where the total amount of parking that was
supposed to be delivered or was intended to be delivered
was more than what they're talking about right now. So, my
question to the Town Attorney is is there any validity to
they're not holding up to their agreement?
TOWN ATTORNEY SCHULTZ: No, there is no
agreement, and in fact our code and the Specific Plan
specifically mention how you ask for a modification and
that's what they've done in this case. The procedure and
process for seeking a modification is available at any time
to any application on any project.
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The only time you have an agreement is if you've
entered into a development agreement with the applicant or
with the developer. Then you're taking it outside of our
standards, our laws, our rules, our regulations, and you
enter into what is called a development agreement, then
that agreement is binding and can prevent an Applicant from
coming back in for a modification.
The other way to look at this project is just to
look at it as if there was no modification, there was no
original project approved, and the project is coming forth
before you without an underground garage, and the question
is without that underground garage do they meet our parking
regulations? Do they have enough parking onsite? The reason
I say that is at least I have not found anything in our
code, in our Specific Plan, or our General Plan that states
that an Applicant will build an underground garage. So,
that's really your only issue tonight is have they met our
parking standards with regard to parking in our Specific
Plan, General Plan, and zoning?
CHAIR HANSSEN: Thank you very much. Vice Chair
Janoff has a question.
VICE CHAIR JANOFF: I have two questions. Just to
follow up on what you just were talking about regarding a
development agreement, can you confirm whether or not there
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is a development agreement in existence for this
development?
TOWN ATTORNEY SCHULTZ: There is not. There is
not. Town Council during… When we went through the
moratorium on the second phase I think there was a majority
that wants us to pursue that type of an agreement on the
second phase, but for the first phase right now there's no
development agreement whatsoever.
VICE CHAIR JANOFF: So there is no notion that
previously established estimates are numbers that the
developer must be held to?
TOWN ATTORNEY SCHULTZ: That is correct.
VICE CHAIR JANOFF: Okay, so my second question,
if I may, Chair?
CHAIR HANSSEN: Please, go ahead.
VICE CHAIR JANOFF: The fact that we have
estimated and/or changing numbers with regard to the number
of parking spaces is not an objective standard on which the
Planning Commission could deny the Applicant's request?
TOWN ATTORNEY SCHULTZ: I'm not sure I understand
your question. Yes, it's a clean slate and you have to look
at with this modification will it meet our parking
regulations? And all of our parking regulations, I believe
at least, are objective standards. They say exactly how
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many parking spaces you need per square foot, per use, per
what's being proposed out there. Yes, what they provided in
the past, what was in their first application, is not
relevant. What you look at is what is the required parking
under our standards, and I don't believe there's any… There
might be some parking standards that could be considered
subjective within our policies, but for the most part
they're calculated as objective standards.
VICE CHAIR JANOFF: Just to follow up, if I may?
The question was one of the letters received from the
public indicated that because the numbers of parking
provided by the Applicant changed from Exhibit A.11 to
Exhibit 4 and to Exhibit A the assertion from that member
of the public was that because those estimated parking
numbers changed, that that is an objective standard, that
they're not consistent is an objective standard on which we
could deny the proposal, and what I understand you to be
saying is that is not an objective standard?
TOWN ATTORNEY SCHULTZ: That's correct. It is not
what they proposed or what was approved, the question is
what do our rules, regulations, and standards require of
the Applicant?
VICE CHAIR JANOFF: One more question, if I
might? Probably is best for Staff.
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CHAIR HANSSEN: Okay, yeah.
VICE CHAIR JANOFF: Staff, is it fair to say that
the estimated number of parking spaces could remain in flux
until the Specific Plan for the commercial buildout of the
plans in phase one are presented to the Town for review and
approval of the permits, is that correct?
DIRECTOR PAULSON: Ms. Shoopman, you're on mute,
but if you'd rather I speak I'd be more than happy. Go
ahead.
ASSOC. PLANNER SHOOPMAN: Thanks. That's true, we
don't have any proposals for those other commercial
buildings at this time. What we have is the proposal for
the Market Hall. Any other use that came in for those other
commercial components would have to show that they meet the
requirement for that.
VICE CHAIR JANOFF: And even on the Market Hall
we don't have the specific commercial buildout at this time
to know precisely the number of leasable square footage
upon which the parking ratio would be determined, is that
correct?
ASSOC. PLANNER SHOOPMAN: We have estimates of
the uses in the Market Hall from the Applicant. They've
shown a community room, they've shown the bakery
potentially, and they've shown the residential units above.
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VICE CHAIR JANOFF: And could the commercial
numbers change based on a smaller footprint of leasable
commercial space?
ASSOC. PLANNER SHOOPMAN: I believe there's a
possibility of that, and the Director can confirm that.
DIRECTOR PAULSON: Thank you. Through the Chair,
Joel Paulson, Community Development Director.
The footprint for the Market Hall building hasn't
changed. The other pad buildings have changed slightly.
Given our current parking requirements, and these are tied
back to the downtown, if they had some small offices or
something that they proposed in part of either the Market
Hall or one of the other tenant buildings that, again, as
Ms. Shoopman mentioned, they would need to show that they'd
meet the requirements, because for example, parking for
office is parked at a different ratio than the one per 300,
which is most of the other uses that are anticipated for
the phase one of the North 40.
VICE CHAIR JANOFF: Thank you.
CHAIR HANSSEN: Commissioner Hudes.
COMMISSIONER HUDES: I understand that the
original application had certain requests and now we're
looking at an application for the Market Hall. My question
is about the modification to the Market Hall application
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that we're considering now. There was information that was
presented to us on 8/26 which is inconsistent with later
documents. Are we to consider all the information that's
been presented in this application?
DIRECTOR PAULSON: I'm not sure what specifically
information you're looking at. Right now, I think the
latest information is Exhibit A, which has a table for the
Transition District in Market Hall, but I look to Ms.
Shoopman to confirm that.
ASSOC. PLANNER SHOOPMAN: Yes, the most recent is
Exhibit A that was provided by the Applicant from their
letter dated September 21st.
COMMISSIONER HUDES: I understand. This is really
a question I think for the Town Attorney. If we've been
presented with documents as part of this application for
modification along the course of the three or four meetings
that we've had, are we to consider all of that information?
TOWN ATTORNEY SCHULTZ: Yes, you are. That's all
part of the record and you should consider it all, and if
there are discrepancies between documents you should try to
resolve those, and if you can't that could be the basis for
your decision for either denial or approval. So yes, all
documents that have been submitted for the modification are
part of the record and should be taken into consideration.
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COMMISSIONER HUDES: Thank you, Mr. Schultz.
CHAIR HANSSEN: If any other Commissioners have
questions—I don’t see any at the moment—but I did want to
ask a question of Staff. We discussed it at a previous
meeting, but again I want to make sure we're all on the
same page.
The objective standard for parking for this
application, which we're holding onto, is defined where and
can you summarize what it is?
ASSOC. PLANNER SHOOPMAN: It's defined in the
Specific Plan on we're looking at 2.518, Parking
Requirements, and that references the number the off-street
spaces required and references the Zoning Code for that.
CHAIR HANSSEN: So that is the standard for which
you did your analysis when you determined that the
Applicant's proposal to remove the parking garage continued
to meet the parking requirements, because those were the
ones that were set forth in the North 40 Specific Plan,
correct?
ASSOC. PLANNER SHOOPMAN: Correct.
CHAIR HANSSEN: Okay.
DIRECTOR PAULSON: I believe you asked for some
specificity. For the commercial, under what's currently
before you we're looking at the majority of the space at
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the one per 300 square feet, and then the community room at
the one per 590 square feet parking requirement for that
community room. And then the residential parking is laid
out in Table 2-4 in the Parking Requirements, which is half
a space for each senior unit and half a guest space for
each senior unit, and then one space for a one bedroom unit
plus half a guest space, and for two bedrooms or more it's
two spaces plus half a guest space.
CHAIR HANSSEN: Thank you very much. And to
follow up on that, supposing that the concerns of residents
become realized and it turns out that there isn't enough
parking at the end, what can we do to improve the situation
going forward should we decide that we need more stringent
parking standards for further expansion? What can we do?
DIRECTOR PAULSON: I think there are a couple
options there. The first one would be as part of whatever
decision you render that ultimately future direction would
be provided to the Town Council to reconsider the parking
in the Specific Plan so that you could look at the
potential of modifying the parking requirements for later
phases, so that's an option.
I know there's been a lot of comments about
spilling over into adjacent residential areas. We obviously
have parking methods that we can use, whether it's permit
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parking or some other mechanism that could be looked at,
and ultimately I think when we get there, if that does come
to light, then hopefully well before that the Town Council
has decided to take a relook at the Specific Plan and
determine whether or not those parking standards should be
adjusted and go through that Specific Plan amendment
process.
CHAIR HANSSEN: Thank you very much. Commissioner
Tavana has his hand up.
COMMISSIONER TAVANA: Yeah, quick question here.
This is really the Specific Plan, since we're talking about
that. In Section 3.3.2, part D, it says, "Below-grade
parking is encouraged with entries placed at the rear or
sides of the structures whenever possible." I'm wondering
if that could be used as a reason to leave the underground
parking structure and if it's about removing parking and
they want to reduce parking maybe from the third or fourth
level? Could that be used as a subjective standard?
DIRECTOR PAULSON: It cannot. That was actually
brought up at not the last meeting but I think the meeting
before that, by Commissioner Hudes, and that is
specifically in the residential section and that is not an
objective standard. Encouraging something is not an
objective standard.
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CHAIR HANSSEN: I did have one more question on
the parking. It did come to my attention that the way we
look at this thing is based on what the parking code is at
the time that they go for their Building Permit, so I'm
asking Staff, I understand there was a change in how we do
restaurant parking and how that flows through to this
application, so I was wondering if you could just go
through that?
ASSOC. PLANNER SHOOPMAN: The Town Code was
amended for how we deal with required parking for
restaurants. It used to be based on the number of seats in
a restaurant or bar; that's no longer the case. It's based
on the parking requirements just like any other commercial
use; it's one space per 300 square feet and that's the
gross floor area.
CHAIR HANSSEN: So the way this flows through to
the North 40 Specific Plan is… I don't have the plan in
front of me, but my understanding is it refers to whatever
the downtown parking code is that's in place or something
like that, not the number of seats per restaurant. It's
based on whatever the downtown parking code is, or did I
not get that right?
DIRECTOR PAULSON: That's correct.
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CHAIR HANSSEN: Okay. So if it turned out they
needed a few less spots on account of that standard… I
don't know if that's the case, but if they did, that's the
standard we'd be holding them to because we're referring to
the North 40 Specific Plan that refers to the parking code
that we're using downtown. Okay, and I think Commissioner
Badame had her hand up. Go ahead.
COMMISSIONER BADAME: Thank you, Chair. My
question is can we use land use policies within a specific
plan as objective findings?
DIRECTOR PAULSON: I'll start and see what the
Town Attorney has to add, if anything, but ultimately it
would depend on which policy or standard you're using and
what it says. We would have to evaluate that on a case-by-
case basis. If you have a specific one in mind, let us know
and we'll take a look at that.
TOWN ATTORNEY SCHULTZ: Within your General Plan
and Specific Plan there are both many objective and
subjective standards. Most in the Zoning Code are almost
always objective, but you'll find even some subjective
standards within your Zoning Code, so they all have a
mixed… And the issue is whether when you look at that
specific language whether they're objective or subjective.
COMMISSIONER BADAME: Thank you.
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CHAIR HANSSEN: Commissioner Tavana.
COMMISSIONER TAVANA: I have a question, yeah,
about the Traffic Impact Analysis. How many parking spaces
were accounted for in the Traffic Impact Analysis for phase
one?
DIRECTOR PAULSON: Two things to that point. The
parking is not looked at in a traffic impact analysis, and
parking is also no longer a CEQA issue that needs to be
addressed.
COMMISSIONER TAVANA: To follow up that, so the
thorough review of parking access circulation and supply,
it says here at least a TIA should be conducted when
parcel-level development proposals are submitted. Was that
conducted or is that not a requirement, you're saying?
DIRECTOR PAULSON: A Traffic Impact Analysis was
done. I don't have the Traffic Impact Analysis in front of
me but they look at all of those things, but now parking is
no longer a CEQA issue, and to further that we no longer
also use LOS or CEQA perspective, it's now vehicle miles
traveled, which the Town is still trying to go through even
though that is in place as of July 1st of this year.
COMMISSIONER TAVANA: Okay.
CHAIR HANSSEN: Do any other Commissioners have
questions of Staff? Commissioner Barnett.
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COMMISSIONER BARNETT: Concerning the question of
whether a land use provision in the General Plan is
subjective or objective, I'd like to suggest LU-13.4, which
states that, "New development on Los Gatos Boulevard shall
be designed to minimize adverse impacts on adjacent
residential areas." Would you consider that subjective or
objective?
DIRECTOR PAULSON: I'd defer to the Town
Attorney, but with the original approval that policy has
been reviewed and determined to be inappropriate, but I'm
not sure if the Town Attorney has any additional input on
that.
TOWN ATTORNEY SCHULTZ: It's for you to
deliberate. If you remember and reviewed the tapes from two
years ago, I'm really not going to decide whether a policy
is objective or subjective, that's for the Planning
Commission to decide. I'm providing you the law. I will
provide the definition of objective and then maybe you can
debate whether that policy is subjective or objective.
Objective means involving no personal or subjective
judgment by a public official and being uniformly
verifiable by reference to an external and uniform
benchmark or criterion available and knowledgeable by both
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the development applicant and the proponent and the public
official.
COMMISSIONER BARNETT: Okay.
TOWN ATTORNEY SCHULTZ: I know that's a lot of
legalize in there, but the big one is it involves no
personal subjective judgment, and if you read that policy
at least you could certainly reach the conclusion that two
people could have a different opinion as to whether there
would be an impact to neighboring neighborhoods and
therefore it would be subject to a personal judgment.
CHAIR HANSSEN: Did that answer your question,
Commissioner Barnett? And Commissioner Hudes has his hand
up.
COMMISSIONER HUDES: Thank you for the
information about the parking. On the Applicant's chart in
the original modification application they have a version
of 3.22 and it refers to parking for non-commercial…well,
for other commercial uses such as restaurant and bar as 100
square feet other than 300 feet. How did those numbers get
arrived at and were they reviewed by Staff?
DIRECTOR PAULSON: Those were assumptions made by
the developer based on the requirements at the time, which
was seats. What I envision they did was they imagined we're
going to have X square footage of restaurant and assume
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we're going to have X square footage of bar. Based on that
square footage and other operations here's a reasonable
metric to use for that so that they were accounting for
that, knowing that the one per 300 may not work in all
those instances, and so they looked at that and made that
assumption. We were aware of that assumption, but
ultimately it was just that, an assumption.
COMMISSIONER HUDES: Okay, thank you.
CHAIR HANSSEN: Do any other Commissioners have
questions of Staff before we go to hear from the Applicant?
Okay. Go ahead, Commissioner Barnett. And for the
Commission, we will have another chance to ask questions of
Staff when we make our deliberations, but I think it's good
to get as many questions out as we can now. So,
Commissioner Barnett.
COMMISSIONER BARNETT: I think this has been
touched on, but it's not clear in my mind which law would
apply, the Town Code relating to downtown parking at the
time the original application was made, and now that the
modification is applied for.
DIRECTOR PAULSON: I believe the Town Attorney
answered that previously and it's what the current
regulations are, but I would look to him to confirm that.
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COMMISSIONER BARNETT: That was my question,
thank you.
TOWN ATTORNEY SCHULTZ: That is correct. the time
of the modification application was filed would be the time
that…the laws that they have to comply with, just as if we
had strengthened and changed the parking or any other
regulation. If they come in for a modification they would
have to comply with it.
DIRECTOR PAULSON: And just for the Commission's
information, that modification was made in 2018, so well
before this application was submitted.
CHAIR HANSSEN: I had just one more follow up
question about the other commercial pads. Right now—I think
this was touched on a little bit earlier—the other pads are
not purchased by a developer or under contract by a
developer, so at the moment my understanding is that the
information that's coming from the Applicant in terms of
parking is estimated numbers only based on what the
possible maximum square footage could be, is that correct?
And we won't know until those developers come in and make a
specific proposal what parking requirements they'll have
specifically? So, that's my question. Is that right?
DIRECTOR PAULSON: I believe the numbers are
biggest on the pads that were in the original Architecture
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and Site, but the Applicant could probably provide
additional information on that. When those additional pads
come in we're going to check them against the parking
requirements and make sure that they still meet that, and
if there is any significant expansion of footprint, for
example, then that's probably something that may generate
the need for a modification.
CHAIR HANSSEN: Thank you very much. That answers
my question. Are there any other questions from
Commissioners before I go to the Applicant? Seeing none, we
will open up the public hearing and first give the
Applicant an opportunity to address the Commission for up
to five minutes, and I think I saw Mr. Keeney in the
attendee's list for Summer Hill.
DIRECTOR PAULSON: Yes, I have allowed Mr. Keeney
to speak, so he can just unmute himself and he will have
five minutes.
MICHAEL KEENEY: Yes, I'm here. Can you guys hear
me?
CHAIR HANSSEN: Yes.
DIRECTOR PAULSON: Yes.
MICHAEL KEENEY: Great. Good evening,
Commissioner Hanssen, members of the Planning Commission,
and Staff. My name is Michael Keeney and I am the
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Development Manager for Summer Hill Homes on the North 40
project.
As we explained at the hearing on September 9th,
the proposed modification for Market Hall is consistent
with the North 40 Specific Plan and the Town Code. Per the
Town Code, Market Hall is required to provide 76 commercial
parking spaces and 50 residential spaces for a total of 124
required spaces. With the proposed amendment Market Hall
will provide 126 commercial spaces and 50 residential
spaces. This is a surplus of 52 commercial spaces, or 70-
percent more than is required.
At our last Planning Commission meeting there
were a number of questions and public comments about the
parking calculations for Market Hall and the Commercial
Transition District as a whole. To help clarify these
questions for the Commission and the community we've
prepared the Transition District Parking Summary, which is
Exhibit A that I think Staff can put up on your screen and
is included in your packet. It was in the Desk Item that we
provided and it was also in our response letter prior to
the hearing. There it is.
This table provides a complete summary of the
parking requirements for the Transition District. Market
Hall is shaded in blue and includes the gross square
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footage based on our proposed design. The items in orange
are the gross square footages for each building based on
what was proposed in the approved A&S plans as shown on
sheet 3.22 of that plan set. The green are the remaining
residential units from the same sheet 3.22. Staff has
reviewed this table and concurs that it accurately reflects
the information included in the A&S approved plans and is
in compliance with the requirements of the Specific Plan.
As you can see from the table, the total required
parking for the Transition District is 273 parking spaces
and as currently proposed there would be a total of 319
parking spaces, a surplus of 46 spaces for the District as
a whole.
There's no obligation in the conditions or the
Specific Plan for Market Hall to provide parking for future
phases. You can see from the Transition District Parking
Summary, with the proposed modification we have provided
more parking than is required by the Town Code and the
Staff Report is found in conformance with the Specific
Plan.
This is the third hearing that the Planning
Commission has held for the proposed modification to Market
Hall. We appreciate the Commission's desire to ensure
public participation and we believe that the Commission and
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the public have had a full opportunity to review and
comment thoroughly on the plans. We respectfully request
that the Commission find that the proposed amendment is
consistent with the Specific Plan and the Zoning Code and
approve this modification tonight.
We are available to answer any questions that you
may have. Thank you.
CHAIR HANSSEN: Thank you, Mr. Keeney. We do have
questions from Commissioners. Commissioner Badame.
COMMISSIONER BADAME: Mr. Keeney, thank you. I'm
looking at sheet A-3 and I just want to ask you, are there
any other modifications to the plans other than removal of
the underground parking?
MICHAEL KEENEY: So, sheet A-3 of our plan set
application, correct?
COMMISSIONER BADAME: Correct.
MICHAEL KEENEY: That's the third floor plan, and
to answer your question there are no other modifications to
the appearance of the building from the outside. There are
some minor modifications internal to the garage to
accommodate mechanical equipment rooms and things like that
that may have been in the basement and are now in areas
where like the ramp used to allow access to the basement,
so there are a few kind of backup house rooms that are
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shifting around, but nothing that's visible from the
exterior.
COMMISSIONER BADAME: Is there an entrance or an
exit on the northwest side that's been removed that
provides ingress/egress to the commercial area, the
Commercial District?
MICHAEL KEENEY: What you're seeing in the as-
proposed drawing…
COMMISSIONER BADAME: Yes.
MICHAEL KEENEY: …is eventually what was approved
in the Building Permit. So, during the Building Permit
process that access point was eliminated.
COMMISSIONER BADAME: So, the only access, the
only ingress/egress is on the east side of the garage?
MICHAEL KEENEY: That's correct, yes.
COMMISSIONER BADAME: And this was previously
approved? If Staff could confirm that.
DIRECTOR PAULSON: This was approved as the
potential for modifications for the garage, that's correct.
COMMISSIONER BADAME: So that's part of this
application, removing that ingress/egress point? That's
what I understand.
DIRECTOR PAULSON: I don't have the Building
Permit plans in front of me and I'm not sure… I'm trying to
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scroll through the plans to see which sheet A-3 you're
looking at, and so I'll look at that, but without the
underground there would be only one ingress/egress point if
the underground is not approved. I'll have to go back and
see if I can dig up the Building Permit plans from when
this was done as part of the original plan check.
COMMISSIONER BADAME: That would be important to
me, because we may have a circulation issue. Thank you.
CHAIR HANSSEN: Do other Commissioners have
questions for the Applicant? While I'm waiting to see if
anyone else has any questions I did have a question for the
Applicant.
In your projections for the entire Transition
District you talked about a surplus of 46 spaces of which
52 are from the parking garage with the Market Hall and
then there would be six spaces that would be needed by the
remainder of the commercial pads. Now, I'm completely
familiar with the fact that we don't actually have
proposals for those pads, but supposing that they did turn
out to be exactly what you had suggested and had estimated
there would be a shortage of six spaces, my question to the
Applicant is how would that work out for those developers?
Yes, we know they'd have to be able to deal with the code
that's in place at the time, but if they really are short
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six spaces would they be able to share space with the
parking garage which does have overages, and how would that
work?
MICHAEL KEENEY: I think, if I understand, you're
saying that with the potential shortfall in the Commercial
District how would we accommodate allowing for some of that
overflow parking within the Market Hall? I think that's
what you're getting at?
CHAIR HANSSEN: That is my question, yes, thank
you.
MICHAEL KEENEY: The Market Hall isn't obligated
to do that, but we're hoping that the developer of the
commercial space in Market Hall will also be the developer
of the commercial pads. The goal is for it all to be
developed concurrently with one developer and then
ultimately one manager of the commercial property that
manages the whole district. So, it's in our interest and in
that master developer/commercial developer's interest to
have some shared parking agreements to make all of that
work. Our expectation would be that we would work something
out with them to accommodate their parking needs.
CHAIR HANSSEN: That makes sense. I mean, I think
it's in everyone's best interest for it to be successful,
so I think that what you're saying is that we can't count
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on it but we can assume that that would be the case. Okay,
thank you.
MICHAEL KEENEY: It's certainly in our interest
to accommodate (inaudible).
CHAIR HANSSEN: Absolutely. Do any other
Commissioners have questions for the Applicant before I go
to public comments? All right, seeing none we will now move
to the public comments portion of the hearing, and I see we
have quite a number of people in the attendees, but I don't
know who wants to speak, so this would be the time to speak
on this item. I ask anyone that would like to speak to
limit your comments to three minutes, and as I said
earlier, for any oral comments during the meeting you may
choose to state your name and address or speak anonymously
and do understand that the meeting is being recorded for
the public record. So, Mr. Paulson, can you let me know if
there are members of the public that would like to speak?
DIRECTOR PAULSON: There are. The first speaker
will be Mark Miller. I'm going to allow him to talk. Can
you unmute yourself, Mr. Miller?
MARK MILLER: Yeah. Can you hear me?
DIRECTOR PAULSON: Yes.
MARK MILLER: Great. Thank you for the
opportunity, by the way, to speak. I think I understand the
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Town's needs to comply with the Housing Accountability Act
and the by-right development. But if you'll excuse my
subjective comment for a moment, my neighbors and I already
deal with employees of the carwash overflow and overflow
from PAMF. I can only imagine the overflow, what that would
look like, if insufficient parking existed at the North 40,
and that would be just incredible. And that doesn't even
count the short-cutters that race through the neighborhood
trying to find a way around Park Avenue and Los Gatos
Boulevard.
It's difficult to look at this any other way than
how it's going to affect myself and my neighbors, and my
family obviously. The first question that came to my mind
when I heard the opening comments, I understand there's no
development agreement. Well, why not? Isn't that something
that would protect us? I mean, I would think that there
would be measure in place to protect the residents.
Another thing that comes to mind that… I don't
know where I am on three minutes here, but some comments
were made. I think Mr. Keeney said that there is full
opportunity to review. I'd like to know where I'd review
that, because I'm not aware of it. I didn't see that. I'd
like somebody to tell me where that is. I'm sure it's in
full view somewhere, but I didn't even know about this
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meeting until I was told from some of my neighbors, and so
I have some concerns about transparency here and I want
some assurances that the Town is operating in the best
interests of its residents. That's my comment. Thank you.
CHAIR HANSSEN: Thank you so much for your
comments. And for the benefit of the commenter as well as
other commenters, we're not able to address questions
directly, however we may be able to during our
deliberations talk about the issues that you bring up. With
that, do any Commissioners have any questions for the
speaker? Seeing none, is there someone else that would like
to speak on this item?
DIRECTOR PAULSON: There is. The next person I'm
going to let speak is Mr. Lockridge.
JEFF LOCKRIDGE: Okay, hi, my name is Jeff
Lockridge and I live at the north end of Los Gatos near the
North 40.
I personally have worked hard to get the North 40
to be the best that it can be for the Town, and it's my
understanding that Summer Hill Homes who are currently
building on the North 40 are requesting now, after the
fact, the elimination of underground parking for the
portion under the Market Hall.
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The Market Hall plan included that four-story
parking garage, three above-grade levels and one below-
grade level, and this was approved years ago and designed
to accommodate parking at the North 40. As a resident of
Los Gatos I don't look at the North 40 in phases. It's one
North 40 project. That's why it's called 40. If it was less
than that it might be 20 or 18. Utilizing the current
parking requirements for only the phase one portion of the
North 40 would be irresponsible for the Town to consider
since we know for a fact phase two will require additional
parking.
Summer Hill knew what the project was and what it
included before they signed on and agreed to build it. They
knew it included underground parking. So, just how much
money will they save eliminating what they already agreed
to build? And you can't claim anti-NIMBYism, because we
want it built there, we want more parking built there, not
less parking. Not in my back yard is… It's in my back yard.
Built it in my back yard. So, that doesn't even apply.
Does Summer Hill have to abide by a subjective
versus objective reasoning for any of these changes to
modifications, minimums versus maximums? If you ask me,
maximums should be in place in all cases, because that's
what might be required objectively.
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I realize that senior housing parking
requirements are just one-half space per unit. I also know
through personal experience the consequences that just one-
half parking space creates. It does not represent the
reality of the real parking requirements for senior
housing. I have personal experience of dealing in another
senior development in Los Gatos and struggle on a daily
basis to deal with those irresponsible and unrealistic
parking requirements. I would support pursuing a
development agreement as a Town of Los Gatos application
modification. I think we should apply for a modification
and it should include a development agreement. I'd like to
know if that's subjective or objective.
I think that the modification should be denied.
Thank you.
CHAIR HANSSEN: Thank you very much for your
comments. Do any Commissioners have questions? Vice Chair
Janoff.
VICE CHAIR JANOFF: Thank you. In consideration
of Mr. Lockridge's comments and question for the Town
Attorney, is it possible to enter into a development
agreement after the fact?
TOWN ATTORNEY SCHULTZ: I have never done one
before, but at any time an agreement can be reached. I've
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done many development agreements, but I've never done one
after a project has been approved, but certainly if the
Applicant wanted a development agreement at this point in
time I believe one could be entered into.
A previous speaker asked why a development
agreement wasn't done for phase one? The Council at that
time did not want to enter into a development agreement,
but as I mentioned when we were going through making
changes to phase two they have specifically added language
about a development agreement and the intent is to do a
development agreement on phase two.
VICE CHAIR JANOFF: Thank you.
CHAIR HANSSEN: Do any other Commissioners have
questions of the speaker? Then we will move on and see if
there are any other speakers. I see someone with their hand
up.
DIRECTOR PAULSON: Yes, thank you. I'm going to
allow Barbara Dodson to speak.
CHAIR HANSSEN: Okay, go ahead.
BARBARA DODSON: Can you hear me? Oh, okay. Good
evening.
Obviously it's hard for members of the community
to keep up with Summer Hill's ever-changing story. Summer
Hill submitted an application in which it said it would be
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providing either 330 or 331 parking spaces in the
Transition District. Now in its new Exhibit A it says it
will be providing 319 spaces. Previously Summer Hill
claimed excess of 52 spaces; now the excess is 46. Can
approval really be based on an addendum that contradicts
the original proposal?
I also think it's important to remember that
Summer Hill was party to the original 2016 proposal along
with Grosvenor and Eden Housing. It didn't take over a
proposal that was agreed to by another party, Summer Hill
was party to the original proposal. If it didn't want to
build the garage it should have said so in 2016. Approval
with the three applicants, Grosvenor, Summer Hill, and
Eden, was based on a commitment to include an underground
garage. It's not acceptable now to say well, we really
don't want to do that after all. The notion that there was
no agreement is, I think, debatable, hence the underground
garage was a Condition of Approval and was the subject of
considerable discussion.
Another point, since we don't know how much
commercial space there will be it seems a bad idea to
reduce parking. Parking continues to rely only on
assumptions. Thank you.
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CHAIR HANSSEN: Thank you so much for your
comments and thank you also for all of your written
comments as well. With the amount of research that you've
done we truly appreciate it. I want to know if any
Commissioners have any questions for the speaker? I don't
see anyone with their hand up, so is there anyone else that
would like to speak on this matter? Director Paulson is on
mute and he's talking.
DIRECTOR PAULSON: Thank you for that. I see that
Mr. Miller has his hand up again. We only allow folks to
speak once, however we may have another family member, so
I'm going to allow him to speak just to find out if it's
another family member on the same computer.
MARK MILLER: That is correct.
LISA MILLER: That is correct. This is Lisa,
Mark's wife, and I just had a couple of questions that came
up.
If Commissioner Badame hadn't commented about the
changes being made with no review beyond Staff, how would
anyone know about them? And how many other changes have
been made from the approved set of documents, the
construction documents being used to build the project?
This has been going on for a long time. I don't know, where
is his transparency?
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CHAIR HANSSEN: Thank you very much for your
comments. As I said, we can't directly answer your
question, but we could during our deliberations address
some of the questions with Staff. Are there any questions
for the speaker from the other Commissioners? I don't see
anyone with their hands up. Is there anyone else that would
like to speak on this item?
DIRECTOR PAULSON: Yes, we do have another person
with their hand up. It's looks like Maria Ristow. I'm going
to allow her to talk.
CHAIR HANSSEN: Okay.
MARIA RISTOW: Hi, Maria Ristow. I'm just
concerned that this is even continued from the beginning. I
mean, it seemed like at the first meeting when this came up
there was plenty of residential opposition to allowing this
change, and now as the continuations have occurred there's
more and more data coming up about why we can't just say
build the parking. When we created the Specific Plan, I
think Jeff Lockridge put it really well, this is for the
whole North 40, and so the parking should be considered for
the entire scope of the project.
Going into it, the first developer to go in had
to do all of the traffic mitigation, $12 million for the
entire buildout. I don't understand why when there was a
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plan to build the underground parking that may or may not
be excessive for this part, knowing that cars will be
involved in phase two, knowing that we'll need more
parking, knowing that underground parking is superior to
street parking in terms of aesthetics, why we can't hold
them to this agreement and Summer Hill can figure it out
with the next project. I know whoever—it was probably
Summer Hill—did all of the initial infrastructure, that
they will be able to hold other developers to reimburse
them for what they've done, why can't they figure that out
with the parking garage if they've built excessive parking?
I don't understand why this is even an issue
right now, but I think we need the underground parking.
We'll never be able to go back to an existing parking
garage and dig underground parking again, and I would like
to see this move forward. Thank you.
CHAIR HANSSEN: Thank you for your comments. Do
any Commissioners have questions for Ms. Ristow? Vice Chair
Janoff.
VICE CHAIR JANOFF: Thank you. Not a question for
Ms. Ristow but for either the Town Attorney or Staff. A
couple of people tonight have talked about why Summer Hill
shouldn't be held to the general proposal for the entire
North 40, not just phase one. Would someone please comment
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on that? And maybe this goes back to the Applicant. I don't
fully understand the transfer of the project from Grosvenor
to Summer Hill in its scope, but if someone from Staff
could please comment on why the phase two portion, which is
largely commercial that the phase one underground parking
was to support, why that is not under consideration by the
Planning Commission at this time?
DIRECTOR PAULSON: I'll start, and then if the
Town Attorney has any additional information, but
ultimately our Town Council requires the parking to be
provided on the site or with the project that is before
you. So, they may or may not have overparked it with
anticipation of wanting to build less parking on the phase
two. Whether it's phase 2, 3, 4, 7, whatever number it is,
when any future project comes in they will have to show how
they're meeting the parking requirements for their specific
property. That will be done with every subsequent project
that comes to the Town for review. And then I'd defer to
the Town Attorney as well.
TOWN ATTORNEY SCHULTZ: In very layman's terms,
each project that comes in front of you is analyzed on its
own merits, and with this or any other project there can be
many other parcels around it, but let's say for the North
40 there are other parcels that are much smaller, and if
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they came in with a proposal they need to meet their
parking regulations. We wouldn't say to that proposed even
if it's three or four acres, because there are some parcels
out there that are smaller than this proposed, and if they
came in and proposed a project we wouldn't be able to tell
them you need to do an underground project because there
may be some other future projects. That's just not the way
land use law works. You have to meet the regulations for
your proposed project and not for other ones around there.
Now, the way this was supposed to be proposed and
it was going to supposedly work would be as yes, they were
overparked and they were going to be providing parking for
phase two, and what would have happened is when phase two
would have been developed they would have been able to use—
let's just assume numbers, I'm just throwing out numbers—
there were 400 parking spaces required because of the
parking on phase two. They would have been able to use and
get a parking agreement with phase one and, let's say,
provide only 300 spaces because they had 100 spaces in a
shared parking agreement. That no longer will be available,
so phase two now will have to develop their own parking to
meet all the regulations and they won't be able to do a
shared parking agreement with phase one.
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But if the comments are that this overparking was
going to be used by phase two and phase two was still going
to have to meet all of its parking regulations, that's not
the way it was going to happen. They would have used a
shared agreement to use these parking spaces.
So yes, (inaudible) of now will on any future
development and there won't be that ability to do a shared
parking agreement with phase one because those extra spaces
have been eliminated for the most part.
VICE CHAIR JANOFF: A quick follow up, if I may?
CHAIR HANSSEN: Go ahead.
VICE CHAIR JANOFF: Given the history of the
North 40 when there was sort of a master plan for all 40
acres, under that vision there was the sharing of the
parking obligation as a notion. But since that larger 40
acres is no longer what's being developed, or we don't have
plans for it, we don't know at this point whether that will
be commercial or housing or if it's ever developed at all,
so we are not, practically speaking, even though the
promise of a lot of parking sounded pretty great to a lot
of residents in town, that is no longer a consideration for
tonight.
TOWN ATTORNEY SCHULTZ: That is correct. We have
no application in the process. We don't know if because of
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the climate changes and everything happening with brick and
mortar, it might not even be commercial. A project could
come forward that states that they want to enter a
development agreement to supply additional housing and
they'd still have to meet the requirements for housing but
there wouldn't be any commercial parking requirements.
So, at this point in time we don't know, or it
could be that they want to do even more commercial than is
even allowed in our Specific Plan and then have to provide
additional parking, which this underground would have been
able to help out on that phase two, but instead might
require an underground parking on phase two.
CHAIR HANSSEN: Commissioner Hudes.
COMMISSIONER HUDES: Thank you. We don't have an
application for phase two, but I just want to verify we do
have an application for phase one that was submitted on
8/1/2017, is that correct?
DIRECTOR PAULSON: 8/1/2017?
COMMISSIONER HUDES: Or it was approved on
8/1/2017.
TOWN ATTORNEY SCHULTZ: It might have been.
That's about the time when it was approved.
DIRECTOR PAULSON: By the Council? The Council's
original approval?
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COMMISSIONER HUDES: Correct.
DIRECTOR PAULSON: Yes.
COMMISSIONER HUDES: Okay, and that approval has
parking requirements noted in it, correct?
DIRECTOR PAULSON: The parking requirements for
the Specific Plan have not changed. The parking for the
restaurant and bars, and Ms. Shoopman mentioned earlier,
has changed, so there is no correlating piece for the
Specific Plan. So, now we're under the new modification,
and as the Town Attorney mentioned before, we would use the
parking requirements that are currently in place.
COMMISSIONER HUDES: Thank you.
CHAIR HANSSEN: I want to remind the Commission
that we're still in public comments, so we're only able to
ask generally questions of the people that spoke, but I
allowed it; it's fine. Are there any other members of the
public that would like to speak on this matter?
DIRECTOR PAULSON: Yes, Ms. Quintana has her hand
raised. I'm going to allow her to speak.
CHAIR HANSSEN: Go ahead.
DIRECTOR PAULSON: We have a similar issue we've
had with her in the past. I'm going to have to move her up
into the panelists and let her speak, so hold on one
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second. So, Ms. Quintana, if you unmute yourself then you
can go ahead and speak.
LEE QUINTANA: I'm unmuted. I just want to add
one thing to the discussion and that's just to… Excuse me.
My recollection of the changes to the parking is they were
the result of the fact that downtown businesses felt that
there should be equity in the parking requirements between
downtown and the North 40 and that the North 40 was being
required to supply more parking than was required downtown
and therefore was putting downtown at… (Audio cuts out.)
CHAIR HANSSEN: Okay, was there anything else? I
see she's on mute now.
DIRECTOR PAULSON: Now try it.
CHAIR HANSSEN: Okay. Ms. Quintana, I'm assuming
your comments are completed, because you're on mute right
now.
DIRECTOR PAULSON: Okay, I'm going to move her
back to attendees. She hasn't unmuted.
CHAIR HANSSEN: All right, do any Commissioners
have questions of Ms. Quintana? All right, and then
Director Paulson, do we have anyone else that wanted to
speak in public comments?
DIRECTOR PAULSON: I don't see anyone else with a
hand raised. If you would like to speak on this item,
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please use the raised hand feature. Just give it a couple
seconds here. I do not see anyone with their hands raised,
Chair.
CHAIR HANSSEN: Okay. As the Commission knows and
the public knows, we've received quite a number of written
comments as well, but since there is no one else that has
raised their hand to speak in the hearing tonight I will
now invite back the Applicant to address the Commission for
up to three minutes.
MICHAEL KEENEY: Thank you, Chair Hansson. We
wanted to clarify one thing that came up. Commissioner
Badame was asking about the secondary access point to the
garage and we were able to go back and double check on the
history of that from our perspective. The elimination of
the second access point to the garage that was shown in the
original A&S approval was done during the schematic design
in coordination with Planning and the Building Department
in the Spring of 2018. It was done at the discretion of the
Director of Planning, as is consistent with the Town's
policy.
There's still a loading area in that location and
the Building Permit that we have been issued for the
building includes that modification. The modification to
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eliminate the basement has no relationship to how that
access point would be implemented going forward.
With that, we'd like to thank Staff and the
Commission for taking the time to review our proposed
modification, and we're available to answer any questions
you may have.
CHAIR HANSSEN: Thank you very much. Are there
Commissioners that would like to ask the Applicant
questions? Commissioner Hudes.
COMMISSIONER HUDES: You mentioned that you have
a building. When was that permit issued?
MICHAEL KEENEY: I don't have the exact date in
front of me, but I believe it was in January of this year.
COMMISSIONER HUDES: Okay, thank you.
CHAIR HANSSEN: All right, do any other
Commissioners have questions of the Applicant? I do want to
remind the Commission that once I close the public hearing
we won't be able to ask questions of the Applicant,
although we can ask questions of Staff. It doesn't look
like anyone else has any questions for the Applicant, so
then I will close the public hearing and then we will move
to having questions from the Commission. Normally we would
say questions or comments from the Commission or a motion,
but I would prefer if we could have a discussion about the
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application before we get to the stage of a motion so that
we can kind of see where the pulse of the Commission is.
That being the case, I'm going open it up to questions or
comments or questions of Staff from the Commission.
Commissioner Badame.
COMMISSIONER BADAME: This is probably for Staff,
but I'm concerned about the Building Permit that was issued
and that was in advance of the potential loss of this
parking, and now with the loss of parking should this
proceed we've got an ingress and egress issue that impacts
the rest of the development that's supposed to be a fully
integrated project. It concerns me with the circulation
patterns throughout this development that might affect
traffic going through the residential area and backing up
to Los Gatos Boulevard. Is that something that we can
revisit or make a finding on tonight?
DIRECTOR PAULSON: I'm not aware of any objective
standards related to circulation. I know we have looked at
it, and I'll have to try to go back through my emails. We
looked at other parking garage situations, whether
underground or otherwise. We looked to see whether or not a
certain number of spaces, whether there was a relationship
to what was appropriate for one versus two. Obviously, a
lot of that has to do with site configurations, as was
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mentioned. There have been modifications from the original
conceptual A&S approval that was done. This was one of
those modifications that was permitted and understand if
you are aware of an objective standard relating to
circulation and you want to use that as a finding for
denial or otherwise, then that's perfectly fine, as I
believe the Town Attorney mentioned before.
COMMISSIONER BADAME: Thank you.
CHAIR HANSSEN: Commissioner Hudes.
COMMISSIONER HUDES: The Building Permit that was
issued, did that contain underground parking?
DIRECTOR PAULSON: I'm sorry, I think Mr. Kenney
misspoke. The Building Permit I don't think has been issued
for that building. We have issued Building Permits for some
of the models. They have a Building Permit in currently
that's been in plan check, I believe it's ready to be
issued, and it does include the underground parking. So,
currently the plans that we've been reviewing include the
underground parking.
COMMISSIONER HUDES: I wasn't clear. What permits
have been issued?
DIRECTOR PAULSON: There have been a number of
infrastructure permits issued, grading permits issued, site
improvements issued, offsite improvements issued, three of
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the models—they're basically building one of each building
type for the residential component—and I believe they've
also picked up their model trailer and parking lot permit.
COMMISSIONER HUDES: So, of the Building Permits
that have been issued that are relevant to this building,
did they include permits for underground parking?
DIRECTOR PAULSON: One second, I'm just trying to
go back through an email here real quick, because I think
they did get issued the permit, and I want to say it was in
June maybe. That one actually has been issued and I believe
it's been paid for, and that one does include the
underground parking. So, what's approved now, if they
ultimately get approval to remove the underground parking,
then they will have to come back and submit a revision to
the Building Permits and go through that process to make
those modifications.
COMMISSIONER HUDES: Thank you.
CHAIR HANSSEN: Do any other Commissioners have
questions for Staff or comments on the application?
Commissioner Barnett.
COMMISSIONER BARNETT: For Mr. Schultz. Do you
have a comment on the point that was raised about the
Housing Accountability Act not applying because additional
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parking is being requested? In other words, the comment was
that this would actually facilitate housing.
TOWN ATTORNEY SCHULTZ: No, I don't. I'm looking
directly at the Housing Accountability Act that just talks
about mixed-use projects and housing projects and that you
have to apply objective standards, and in this case it's
parking, and so you apply your objective standards to it.
You can't then take a subjective standard that
you want more parking than what's in your Specific Plan or
your Parking Zoning Ordinance and say you want more even
though you've already agreed to what the parking
requirements were. So, although yes, the more parking the
better, I think no one disagrees with that, the problem is
why the Housing Accountability Act was formed, so that
towns and cities cannot change in the middle of a project
coming in when people object to it to deny that project.
In this case you need to concentrate on the
parking regulations and whether they meet those or not.
That's what I would suggest as opposed to a subjective
standard as to whether more parking is better and will be
better for this project.
CHAIR HANSSEN: Do Commissioners have additional
questions of Staff or would you like to make comments on
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the application? Commissioner Hudes and then Commissioner
Badame.
COMMISSIONER HUDES: I have some lengthy comments
and some analysis that I've done, and don't have no more
questions of Staff though, so perhaps Commissioner Badame
should go first.
CHAIR HANSSEN: Okay, so I will give the floor to
Commissioner Badame.
COMMISSIONER BADAME: All right, I was just going
to make my comments. The Specific Plan was meant to be an
integrated project. It's supposed to be integrated with
roads, water, PG&E, and residential and business flow.
Right now, we've got a modification in parking, but we also
have a modification that we weren't aware of, a reduction
in the access point for ingress and egress to the
Commercial District, so that kind of closes that off and
isolates it.
To me, I'm concerned with circulation, because
now you're going to overburden the residential and
Transition District; you're going to have business traffic
that goes out through the residential neighborhood and goes
out to Los Gatos Boulevard.
Again, I've got concerns about circulation and
linkage with the rest of the other districts within the
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project. Some of this violates our objective findings that
I can make actually, and that is to provide linkage with
vehicular circulation, minimize traffic impacts through the
site design and access, and the park once design. Those are
my comments for now.
CHAIR HANSSEN: Thank you, Commissioner Badame.
Commissioner Hudes, did you want to make your comments? You
said you also had something you wanted to share with the
Commission?
COMMISSIONER HUDES: Yes, and I think Ms. Armer
has a copy of a PDF of it. I believe I'm not permitted to
share my screen. Before I even get into this I want to just
make it clear that I don't believe that the project meets
the objective standards for the parking requirements. The
North 40 Specific Plan, as far as I can tell when I read
it, requires 392 parking spaces for the submitted
application. Eliminating the underground parking will
eliminate 127 of those spaces, leaving 319, which is 73
spaces less than what is required by the Specific Plan,
therefore the application doesn't meet the requirements of
the Specific Plan, and I believe these are all objective
standards.
Before I get to explaining the spreadsheet I also
want to distinguish clearly between required parking and
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provided parking. The Applicant has been clear on one thing
through their correspondence on this modification and that
is the number of spaces that they would like to provide or
eliminate, and that is they'd like to provide 176 in the
garage. However, the application from the 8/26 hearing
through today is inconsistent on a number of other matters
which are necessary to evaluate whether the request meets
objective standards.
Number one, the number of spaces that will be
provided outside the parking structure is different. In
different documents the Applicant has represented 155
spaces and a 143 spaces. I looked at the plans that were
submitted and I counted 150, so there are discrepancies in
terms of how many parking spaces are provided outside of
the garage.
Number two, the number of spaces required in
order to meet the uses in the Market Hall and how many
spaces are required to meet the uses in other buildings in
the Lark and Transition Districts as set forth by the North
40 Specific Plan, these requirements form the basis of the
objective standards by which the application must be
evaluated.
So, due to these inconsistencies I created a
spreadsheet to try to summarize the required and provided
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parking. Unfortunately, I can't zoom in, but Ms. Armer,
maybe you could make it a little bit bigger in terms of
that top portion. Yeah, thank you, that's great.
When I read the application that was deemed
complete when it was approved by the Council on 8/1/2017
they appeared to be 104 spaces over the requirement.
However, there were some errors in that when I checked it
against consistency with the application itself and with
the Specific Plan.
Primarily the 285 that were required was based on
net leasable space, not on gross square footage. The
ordinance clearly states that gross square footage is the
requirement in downtown. That's the ordinance that has
changed, but it's been consistent. It's Code of Ordinances
29.10.150(b). The correct number, as I'm looking at it, is
345 required.
The other thing that I believe was incorrect is
that there were 47 spaces provided for affordable senior
including guest, and those, again, came from counting the
spaces on the rooftop parking. There are three additional
spaces but they are on a different level and therefore they
can't be gated and regulated for senior parking, and the
Applicant has represented in previous testimony that the
senior parking will be gated, so I made a small adjustment
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that is to deduct three provided affordable senior and add
them to the commercial number in blue, the 387. In this
case when you use the gross versus the net you come up
actually as 39 spaces under.
So, that was the application that we reviewed…
Actually, the Planning Commission didn't review this, but
the Council did, and approved it on 8/1.
Then we have varying versions of what we've seen
on this application. Ms. Dodson provided an analysis in
test form that I translated into this spreadsheet that
shows required provided and over/under and I came up with
23 under in that analysis.
The Applicant has now modified their application
with an Exhibit A, which is inconsistent with other
materials that they provided, and if you could maybe zoom
out a little bit so we can see the green boxed area, I
believe the correct number—and that's what I stated in my
opening—is that when you look at the requirement, the
requirement is 323, and that puts the total required at 392
and an underage of 73.
I want to explain that, but I also just want to
comment that if you slide over a little more on the
spreadsheet you can see that even if the 285 were used,
which I don't think is correct but they were both in the
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application that was submitted so they're inconsistent with
each other, they would still be 35 under in total.
So, now maybe you could go to the bottom of the
spreadsheet, the numbers that are there. Actually, just go
down a little bit more. I want to just describe one other
thing I did. I tried to do a sanity check, and if you look
right in the middle in the red boxes it shows that between
the approved A&S on 8/1 and the modification on 9/23 the
square footage of what was requested decreased a bit. I
believe they are not providing some of the restaurant or
there's been a reconfiguration of the Market Hall, and so
there was a change of about 8-percent, but the required
parking in the application that they presented on 8/26 they
said required 285 and then they reduced it on 9/23 to 204,
and so that's a 28-percent increase and that's the sanity
check that I looked at and I said this isn't just about not
providing spaces that they might have wanted to for some
future use, this is about a drastic reduction in what they
are saying is required between the application they
submitted, that we reviewed, on 8/26/2020 that had that 285
number in it, and what we reviewed on 9/23/2020.
Now, if you could go to the bottom of the
spreadsheet. Keep going to the next page, please. Okay,
that's good. Just go up slightly. I just want to be able
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to… Yeah, okay. So, this is an analysis of the requirements
as I read them.
The application that was submitted and deemed
complete on 8/1/2917 by a group of applicants said that
they've now reduced it slightly to 20,760 square feet for
the Market Hall and 2,772 square feet for the community
room, and those are based on current downtown requirements
that would yield 70 spaces for the Market Hall and 5 spaces
for the community room.
However, the retail restaurant and bar tavern
that are part of the what is approved, that is what was
deemed complete and approved is for 24,611, 12,591, and
2,916 square feet for other commercial outside of the
Market Hall and that results in 83, 126, and 39 spaces for
a total of 248, and so when you add 75 in the Market Hall
and 248 outside you come up with 323. That's the basis that
I've used for calculating what's in the upper spreadsheet
that I marked as correct.
There are a number of other issues and
inconsistencies in the material that we've been presented
with, but I wanted to maybe just pause here and see whether
there were questions of this part of it.
CHAIR HANSSEN: Commissioner Hudes, I thank you
for all the analysis you've done. I can't speak for the
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rest of the Commission but I know for me personally, for me
to be able to absorb all this information I would need a
lot more time than the five minutes that we've been given
to get it, and I also think we would need to give Staff a
fair opportunity to respond, because they're saying that
they are in compliance, and so in order for me to make a
finding that your logic is correct I would want to hear
from Staff after they have had a chance to review the
material.
So that's my feedback, but I do see that you've
put a lot of time and effort into this, but again, I
couldn't possibly really do this without spending quite a
bit of time looking through the numbers and seeing if that
made sense, and I would also want Staff to do the same
thing. So, I don't know if other Commissioners have
questions.
VICE CHAIR JANOFF: I do. I have my hand raised.
CHAIR HANSSEN: Vice Chair Janoff.
VICE CHAIR JANOFF: Thank you. Commissioner
Hudes, question for you. I'm looking at the spreadsheet and
I see that under Restaurant and Bar Tavern on both examples
you're still using the one to 100 parking ratio or the one
to 75 parking ratio, so it's counting seats, not the
current code which is one to 300, and if you take that into
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consideration, that 126 anyway under the restaurant would
be reduced by two-thirds, which significantly reduces the
323. Can you comment on why your spreadsheet doesn't use
the current requirement, which is what Staff has said is
applicable at this time?
COMMISSIONER HUDES: Sure. The simple reason is
that we're not looking at a modification on that part of
the application, we're looking at a modification to the
Market Hall, and so if you look at the one that has the
blue, 20760, that's what complies with current. There's no
conceivable reason why the restaurant of the application
that was deemed complete and approved would not use the
code that existed at the time when it was deemed complete.
If there were a modification request or if there were an
application for those things, they could be considered.
Perhaps the code might be different at that time.
VICE CHAIR JANOFF: It's my understanding that
the restaurant, which is approximately 13,000 square feet,
is in the Market Hall, so the one to 300 ratio for the
project before us should apply, should it not?
COMMISSIONER HUDES: I believe that there is an
elimination of the restaurant and that the Market Hall…
There was, I believe, restaurant in the Market Hall and
restaurant outside, and the large part of it is outside the
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13,000 square feet in buildings A, B-2, and C, buildings
that are not in the Market Hall. There was, I believe,
about a 2,000 square foot area of restaurant in the Market
Hall itself.
VICE CHAIR JANOFF: But even so, if we're
adhering to current code, whether it's in the Market Hall…
I mean, these numbers don't reflect only the Market Hall,
you're talking about the whole commercial area, so we, I
believe, should be using the one to 300. I am not clear on
the rationale for using what is not currently code or what
wouldn't be… Presumably the code won't change between now
and when permits are issued.
The way I see it is these numbers are overstated,
which is consistent with the initial sheet A.11, and the
subsequent clarifications were provided with the current
code of one to 300. From my understanding, I don't believe
this information that we're looking at right now is
accurate.
COMMISSIONER HUDES: Well, again, I would say
that we're not looking at a modification for any other
buildings. The only application in front of us now is for
one building, and I think that you can decide whether you
should apply current code or code at the time when the
application was approved for that, but even if you do there
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is no application, there is no correspondence that says
that the restaurants won't be built and that they have to
be modified from the parking that was required from them
and made part of this application only three weeks ago.
VICE CHAIR JANOFF: I'm still confused, because
my understanding from everything Staff has said is that the
requirement for parking will be calculated based on the
plans under review for permit, not based on a proposal from
before, so how would we hold… You know, if I'm building a
house and I decide to change the square footage, why would
I be held to something that was previously agreed to when
my plans are changing?
COMMISSIONER HUDES: To be clear…
VICE CHAIR JANOFF: Because this (inaudible)
permanent yet.
COMMISSIONER HUDES: …we are only looking at an
application for the Market Hall, so the balance of it must
be consistent with the approved application for it, and the
approved application for it says that they're going to need
a total of 248 spaces for that. The Applicant themselves
said that they don't know exactly what's going to be put
there, but they put forth 3.22 in their application on 8/26
representing that that was what was required. I don't
believe they have any way that they can represent those
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buildings, because their application is not for those
buildings. There was an approval of an A&S for those
buildings.
CHAIR HANSSEN: Commissioner Hudes, I can't see
the whole screen right now because I have part of Zoom up
and everything and I was trying to move it around a little
bit, but I want to take one thing at a time. Are you saying
that the Applicant doesn't have enough parking for the
Market Hall?
COMMISSIONER HUDES: I'm saying that when we
evaluate the Market Hall, as the Town Attorney said, we
have to evaluate it in the context of the parking for the
phase one, but as a standalone.
CHAIR HANSSEN: I asked a question, are you
suggesting that the Market Hall is not in compliance, and
then I'll take the other (inaudible).
COMMISSIONER HUDES: Yes, Market Hall is not in
compliance when you look at the total requirements for the
phase one application.
CHAIR HANSSEN: So, I think we're going to end up
having to go back and talk to Staff about this, but my
understanding was that the Market Hall itself was in
compliance and then everything else is an estimate that we
don't really know yet, because they don't have developers
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for those other commercial pads, and there is an estimate
based on because they are building the pads for them, but
until a commercial developer comes in we're not really to
know.
Then I would also echo Vice Chair Janoff's
comments that if we're going to try and go down this path
of looking at the whole thing holistically it should be
accurately reflecting the standard that they're going to be
held to for restaurants, which was changed a couple of
years ago.
So, I guess that's where I would stand on the
thing is that I'm not 100-percent certain that the
direction we got from Staff was that we should look at the
whole thing, because we don't have proposals for the rest
of the commercial yet, but maybe we can ask that of Staff.
But let me see if any other Commissioners have questions on
what you've presented so far.
VICE CHAIR JANOFF: Could I just ask that perhaps
we go back to gallery view and take this spreadsheet off so
we can see everyone? I can't see most of you. Thank you.
CHAIR HANSSEN: Do other Commissioners have
questions of the analysis that Commissioner Hudes provided?
If no, I'm going to ask Staff if they could comment on how
we should look at this, because if I'm interpreting this
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correctly the issue that is on the table is that if we look
at our best guess right now, according Commissioner Hudes'
analysis they will be short on parking holistically for the
Transition District even though they might not be for the
Market Hall itself. So, if we could prove that, that there
would be an objective standard that says what that parking
would be, I'm trying to understand from Staff's
perspective. So, Commissioner Hudes, before you talk I just
wanted to hear from Staff.
DIRECTOR PAULSON: Though ultimately I think the
Town Attorney mentioned earlier, I think where Commissioner
Hudes' analysis is going is that he's looking at the Market
Hall parcel individually, so that would be only the Market
Hall, the community room, and the senior affordable. I
don't see his table, but I believe it's 74 for Market Hall
when you're looking up the community space and Market Hall,
and another 50 for the residential, which is 124, and the
parking garage provides 176. But I know there was a lot
more analysis that Commissioner Hudes did, I'm just taking
it down to that specific question.
CHAIR HANSSEN: Thank you, and I know you weren't
finished, so ahead, Commissioner Hudes.
COMMISSIONER HUDES: I just wanted to clarify.
I'm not suggesting that we look at the Market Hall by
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itself. I cannot. The Market Hall must comply with the
parking requirements with the entire Specific Plan, and
actually the Market Hall is in the Transition District and
it… The application is for a single building. The
application has to be in compliance with the Specific Plan,
and the Specific Plan is for the entire 44 acres. It is
broken into districts and modifications to the Market Hall
must be in compliance with the Transition District, which
is where it is, and there are other buildings in the
Transition District, so we have to look at the requirements
for the Market Hall in the context of the Transition
District. I hope that clarifies.
DIRECTOR PAULSON: It definitely clarifies. I
think from my standpoint it's once you look at the entire
Transition District, that's where Staff comes up with their
numbers, because we used the one per 300. We no longer use
the one per 100 or one per 75.
I'm not sure if the Town Attorney has any
additional input on that component, but I think he'll also
say that if the Commission disagrees with that, that's
perfectly fine, you can make that part of your findings and
we can move forward from there.
TOWN ATTORNEY SCHULTZ: I think that's correct.
You guys are doing exactly what you're supposed to be
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doing, you're deliberating, and these are objective
standards and how you implement those.
My only concern is, as I said earlier, if you
look at the graph that's been provided you do base your…
You say based on 8/1/2017 requirements, and you do need to
base it on your current regulations that apply to this
modification. It's the same as if you came in with your
home was built five years ago and you want to do a remodel
for it, we would not apply the modifications that were in
effect five years ago; we would look at the new
regulations, whether that was setbacks, whether that was
your garage driveway.
In some instances, and let's say instead of this
going where you're using the 100, let's say we took retail
down to 100, so it was not to the benefit… In this case
when we redid our parking a few years ago, it is to the
benefit of the Applicant in this case, but if it had been
the other way and had been not to the detriment of the
Applicant and it was requiring more parking, the Applicant
wouldn't be able to sit here and say I want to apply the
old standards. So, that's the issue I'm having is you need
to apply the parking universally as it now exists and not
as half as it exists and half as it doesn't.
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CHAIR HANSSEN: So Commissioner Hudes, Vice Chair
Janoff had her hand up before you did, so I was going to
just see if she had a comment, and then I'll go back to
you.
VICE CHAIR JANOFF: Yeah, thanks. I think the
Town Attorney is describing the issue I have with
Commissioner Hudes' calculations. I can see that the
current matter before us, just Market Hall parcel, is
consistent with providing a surplus of parking, and if we
take the entire district into consideration then we must
apply the current standards to that even though the numbers
that the Applicant provided were a different standard.
We can't have it both ways. We either consider
the Market Hall on its own to today's standards and per
Staff and per the calculations we see that they meet and
exceed the parking requirements. If we're going to broaden
it to include the other parcels, we have to apply the same
criteria, otherwise we have an consistent basis upon which
we're making this conclusion.
CHAIR HANSSEN: Thank you, Vice Chair Janoff.
Commissioner Hudes.
COMMISSIONER HUDES: I believe I asked the
question before, that this is an application for a
modification to the Market Hall, and that there is an
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approved application that was approved on 8/1/2017 for
those other buildings, and that's why I'm using the numbers
for those other buildings that were approved. If there were
applications for modification to those other buildings I
would say we might find that there are other numbers that
might apply, but that's not before us. What's before us is
the Market Hall. It has to fit with the requirements of the
Specific Plan and there is an existing A&S application
that's been approved that is not being requested to be
modified, and that's for those other buildings.
CHAIR HANSSEN: Vice Chair Janoff.
VICE CHAIR JANOFF: I don't want to monopolize
the Commissioners' time if there are other questions, but
again, my understanding is that the numbers are estimates
only and once those applications come forward to Planning…
There's an approved Architecture and Site Application, but
the actual Building Permits haven't been approved, and when
they are considered those Building Permits will be
considered under current code. It may change in the future
when those are considered, but if we're applying today's
standards then we have to consider that that number, that
the one to 300 ratio must be for the entire district. I
think we're really running down a very inconsistent and not
a well rational… It doesn't make sense for me to consider
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one one way and another another way when you want to
combine them but you want to keep them separate. I think
that's not consistent.
CHAIR HANSSEN: Thank you for your comments, and
I agree. Commissioner Hudes.
COMMISSIONER HUDES: I would like to move on, but
I would not characterize anyone's comments as well thought
out or not. I'm simply trying to apply what has been
approved and what is being asked to be modified. I have
some other issues with the application that I'd like to
mention.
The Exhibit A table doesn't distinguish between
residential and commercial parking for provided parking.
It's not clear whether the needs for residential and
commercial will be met. While the application on Exhibit A
represents gross square footage, the other table that was
provided and used represents net square footage, and that
does not meet the Code of Ordinances. I'm not referring to
the Market Hall, I'm referring to the buildings.
The other inconsistency is that the parking
requirements that were noted on 3.22, which is part of this
application still, these (inaudible) haven't been
reconciled. It does not round up the parking spaces as is
required by the Code of Ordinances. So, the 29.10.150(b)
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requires rounding up to the next whole number for each of
the uses.
The other information is that 322 is inconsistent
with Exhibit A, and they have to be consistent. If the
Applicant wants to move forward with the parking proposed
on Exhibit A, then the application for the rest of phase
one has to be revised so that they are consistent.
Otherwise, a new application is required.
And with the Applicant offering different numbers
on this application for modification between August 26th and
then, they also submitted a letter dated 3/13/2020 as part
of this application with inconsistent numbers and
information. It includes a bakery and different square
footage for the commercial use. These things are
inconsistent with each other, and in light of that I find
that I can't evaluate whether these are consistent with our
objective standards. I've never seen an application where
the Applicant puts in new numbers and then doesn't
reconcile or explain why the old numbers don't apply. We
are still left with exhibits from 8/26 that are
inconsistent.
There are ways to resolve this. We could try to
make a decision on the fly. Perhaps Staff could develop a
chart, but since Staff has not provided a chart of their
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own, they've simply forwarded the Applicant's chart to us
when discrepancies were pointed out by the public, then I
would suggest another alternative would be to have an
independent auditor look and count these spaces. There's
been no reconciliation about whether there are 155 external
spaces or 143. I counted 150. There are many
inconsistencies with what's in front of us, and I can't see
how we can make a finding that this is consistent with the
objective standards with the number of inconsistencies in
the material that's been put in front of us. These
inconsistencies, by the way, have been pointed out by the
public, and they're obvious, they're staring at us, and
that's why I spent so much time trying to reconcile things,
but there are still inconsistencies in the documents that
we're being asked to decide on.
CHAIR HANSSEN: Commissioner Badame. Yeah, go
ahead.
COMMISSIONER BADAME: I actually like the idea of
an independent auditor doing a study. I'm looking at the
original Conditions of Approval for this project, and under
Condition 162 it talks about future studies and it says,
"Any post-project traffic parking counts, air quality
studies, or other studies imposed by Planning Commission or
Town Council, shall be funded by the Applicant." So, I
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would go for A, an independent study if a motion passes by
the majority of the Planning Commission to order such one.
CHAIR HANSSEN: Thank you for your comments.
Thank you for Ms. Dodson for writing up a very detailed…in
a couple of different letters with a lot of analysis and
everything. It was in our addendum or the Desk Item that
the Applicant has responded to address what the perceived
inconsistencies were between that (inaudible). The
Applicant hasn't had a chance to look at your document,
Commissioner Hudes, to be able to respond to that, and I
think that there is enough disagreement about whether or
not we should be adjusting this thing to the current code,
which we are using restaurants based on the 300 square
footage, so I'm kind of in a situation where I mean I see
that the Commissioners are torn on where to go with this
thing, so I think we're going to have to do something, but
I would like to hear from the other Commissioners.
Commissioner Tavana.
COMMISSIONER TAVANA: I'd have to agree
(inaudible) with a lot of what Commissioner Hudes said and
with the recommendation by Commissioner Badame about
implementing an independent study of sorts.
I'm of the opinion parking standards are a
baseline and should be considered on a case-by-case basis,
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even more so with a large development project. I have
serious concerns about traffic flow and circulation as a
result of this project in general, but especially with the
reduction of even more parking, so I think an independent
study stating the reduced parking will not have an impact
on the health and safety of the residents and showing that
there is enough parking for this particular project, even
though we do meet current standards with the parking
requirements.
DIRECTOR PAULSON: I'd just offer that you
probably want to think about reopening it for the
Applicant. I can't imagine we're going to do an independent
study. If we were sitting here talking about 45 spaces
differential and they still met the requirements, I think
we'd be having the same conversation. Ultimately, we can't
keep continuing the item. It sounds like there are concerns
of the Commission, that's pretty clear, so I think it's
important that we take the comments into consideration and
decide whether or not there's enough evidence from your
standpoint to take an action. Then I'd defer to the Town
Attorney if he has any additional input on that component.
TOWN ATTORNEY SCHULTZ: I agree in that we've
continued this three times and the Applicant is entitled to
a decision. You could open up the public hearing for the
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sole purpose to see if the Applicant would want a
continuance to do an independent review of the parking. It
would not be as to whether the circulation or whether
there's a public health and safety issue or the issues
raised by Commissioners, it would only be, again, of
whether they meet our parking regulations. That's really
what the objective standard is. It's not a minimum that you
can apply on a case-by-case basis, that's not the way land
use decisions work. But if you wanted to do that you could
open it for that.
Otherwise, I believe there's evidence in the
record for either a motion to approve or a motion to deny
based on the parking regulations that have been provided to
you through Ms. Dodson and through Commissioner Hudes, if
that's the will of the Commission.
CHAIR HANSSEN: I do think that the Applicant has
done a lot of address the questions of Ms. Dodson, and like
I said , he hasn't had a chance to look at the documents
from Commissioner Hudes, nor have we. I think it would be
prudent to bring the Applicant back, and I concur with the
Town Attorney's comment that we're not in a position to go
back and reopen this thing and say is this thing going to
have an impact? We're not doing an Environmental Impact
Report basically is what was suggested, and this has to be
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only whether or not they're in compliance with… If we go
down this road it can only be about whether their numbers
add up in terms of what our standards are today. Vice Chair
Janoff.
VICE CHAIR JANOFF: Thank you. I, too, developed
my own spreadsheet, Commissioner Hudes, with the purpose of
not trying to track the logic and numbers that Ms. Dodson
provided, which we all agree is an exhaustive and
interesting study. I went back to the numbers on A.11, I
pulled the actual square footage, ran it through a couple
of different scenarios to come up with what seems to be the
required square footage. I'm convinced that any way we look
at these numbers, whether we have an independent auditor
come in or we have Staff go back and confirm numbers on the
entire district with the Applicant, based on my
calculations, using the one to 300 current code, they made
it.
In one scenario they proposed 300 and provide
331. In another they proposed 198 and they're still at 331.
In the one, Exhibit A, they're required 272 and they're
proposing 319. Any way I look at it… And mind you, I really
want as much parking as we can possibly get. I'm trying to
be super conservative and say listen, according to the
numbers that they're providing for the gross square
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footage, they're still over the District, they're over the
required number of parking spaces.
We can go back and run the numbers again and
again. I don't believe they're going to come up with any
different answer. I'm not in favor of an independent
analysis. I think we've got the information in front of us
if we choose to think of it according to the current code.
I would be prepared to make a motion, but we haven't heard
from all the Commissioners yet.
CHAIR HANSSEN: All right, thank you, Vice Chair
Janoff. Commissioner Barnett.
COMMISSIONER BARNETT: I spent a tremendous
amount of time looking at the numbers. Like Commissioner
Hudes, I'm confused, I don't think I can make a decision on
a matter of this importance without having a reconciliation
by an independent auditor or CPA.
CHAIR HANSSEN: Okay, I guess I have an issue
that is bothering me. I have confidence in our Staff to
look at the numbers, and to me the issue that we have is
what standard we're applying when and whether or not we
hold them accountable for the entire…including the
estimated parking of the Transition District, because I
haven't heard anything that said that they aren't going to
meet the numbers for the Market Hall.
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As far as the rest of it, again, it's estimates,
and so I think I don't mind having another look at this,
although I'm conscious of not dragging this out for the
Applicant, but I think we have to think about… An
independent auditor seems like a bit much. I have
confidence in our Staff to look at this, if it's the will
of the Commission, to have one more look at the numbers,
but I think it's a lot to ask.
Having said that, I don't have a problem with
reopening the hearing to hear from the Applicant and then
we maybe can go from there. I don't think anyone on the
Commission hasn't commented at this point, so is Mr. Keeney
still here?
DIRECTOR PAULSON: I will look to see if they're
interested in speaking. Hold on one second. He does have
his hand up. I'll allow him to talk.
CHAIR HANSSEN: Okay, Mr. Keeney.
MICHAEL KEENEY: Thank you, Chair Hanssen and
members of the Commission. We appreciate you taking the
time to consider this.
This is our fourth hearing now and we're ready to
start construction on this building. We really don't see
the need for additional delays. The application was
originally (inaudible) contemplated based on coordination
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with Staff for Market Hall alone. If you look at our Letter
of Justification, which is the original application, those
numbers have not changed. It's 124 parking spaces required,
176 provided. That hasn't changed throughout the entire
process. As the process evolved it's accurate to say that
we were asked to start to look at some of the other
properties in the District, and we've done what we could to
clarify that. I realize it's confusing, but Exhibit A is
something that we've prepared in coordination with Staff
and with their help. I think that they will tell you that
it's an accurate reflection if you make the assumption that
the gross square footage for Buildings A-1, A-2, B-2, and
C-1 are based on sheet 3.22 from the Architecture and Site
approval.
And we don't know exactly what those square
footage will be, so to Commissioner Janoff's point, those
might shift a little bit and they'll have to comply with
the code when they're submitted, but those are as accurate
as we could get at this time based on the information
available and using the current code requirement for the
parking ratio of one per 300.
So, I don't see the need for an audit. While
there are a lot of numbers, once you get it distilled down
and clearly identify the sources of these pieces of
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information I think all the data is there and I think
Staff, as Chair Hanssen said, is more than capable of
analyzing that. We would prefer a decision this evening and
would not like a continuance if it can be (inaudible).
CHAIR HANSSEN: Based on what I heard, and feel
free to add in comments from… The rest of the Commission
can make additional comments.
My assessment of where the Commission stands
right now is that I believe Vice Chair Janoff and I both
are comfortable with the numbers more than the rest of the
Commission is, and I heard concerns from every other
Commissioner beside us, so we could try to make a motion
and see if given the comments that have been made by Staff
and the Applicant that the rest of the Commission could get
comfortable.
We could also have somebody, a Commissioner, if
they feel like they are comfortable making the findings for
a denial with an objective standard, that's certainly an
option that we could put forth.
Or the third option is we could continue it with
a motion to do some kind of follow up based on the numbers
that Commissioner Hudes provided.
So, I'm going to put those out there as options,
and I don't know if anybody has a strong feeling about it,
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but I was hoping we could get to some kind of decision
tonight. Okay, Commissioner Hudes.
COMMISSIONER HUDES: If there's further
discussion, I'll wait, but otherwise I'm prepared to make a
motion.
CHAIR HANSSEN: Well, I think Vice Chair Janoff
was also prepared to make a motion, but we can go ahead.
Vice Chair Janoff, you had said first that you were going
to make a motion, and so do you want to have Commissioner
Hudes make his motion or do you want to go ahead with
yours?
VICE CHAIR JANOFF: Thank you. My motion would be
a motion to approve this project based on comments I've
already made. I don't believe that motion would pass given
the concerns of the other Commissioners, and so I will
defer my motion to one the Commissioner Hudes would make.
CHAIR HANSSEN: Okay. I think that's fine. So,
Commissioner Hudes, if you'd like to make a motion, go
ahead.
COMMISSIONER HUDES: Thank you. I have no idea
where this is going to go, but I want to make sure all of
the points are on the record.
I would move to deny Architecture and Site
Application, the application to modify Application S-13-
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090, because I cannot make the required finding that the
project complies with the North 40 Specific Plan Exhibit 2,
and I and cannot find that the project meets considerations
as required by Section 29.20.150 of the Town Code for
granting approval of an Architecture and Site Application,
and the reason for that is that the North 40 Specific Plan
for the Transition District requires 392 spaces for the
submitted application and eliminating the underground
parking will eliminate 127 spaces, leaving 319, which is 73
spaces less than what is required by the Specific Plan,
therefore the application does not meet the requirements of
the Specific Plan, and I believe these are all objective
standards.
In addition, there are other reasons why it
doesn't meet the North 40 Specific Plan and General Plan.
First of all, the application in front of us is
inconsistent with itself, and the numbers that have been
provided have inconsistencies and cannot be evaluated on
that basis. The inconsistencies that I would point out are
the provided outside parking spaces, the use of documents
that contain net leasable area versus gross square footage,
the failure to round up the numbers as required by law.
I would also say—I've already covered that
they're inconsistent—that three of the senior affordable
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spaces are not secured, although the Applicant has stated
that they will be secured and that security is required in
order to meet the requirements of the plan.
I would also comment in support of that the
application has to be evaluated in the context of the
Specific Plan and in the context of the A&S application of
August 1, 2017 that's approved, and that the Housing
Accountability Act, if it in fact applies, because to reach
the two-thirds housing criteria then the entire District
needs to be used for the parking evaluation.
There's also another question that I have that's
not part of the findings but that is something that I think
would need to be looked at, and that is whether the EIR is
applicable and whether the project meets CEQA requirements
as the TIA portion of the EIR, which does talk about
parking, was analyzed with the 2017 Parking Ordinance, not
with the current ordinance, so we don't know whether the
EIR is being met with the application for that portion that
would follow current law. So, that's my motion.
CHAIR HANSSEN: All right, is there a second?
COMMISSIONER BARNETT: Second the motion.
CHAIR HANSSEN: So, Commissioner Barnett has
seconded the motion. Are there any comments by
Commissioners before we vote on the motion?
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I'm going to comment that I'm not comfortable
with the denial. I think that we're talking about apples
and oranges in some cases with the numbers and I don't
agree with having to look at the EIR. I agree with Vice
Chair Janoff that any scenario we look at, that if you're
using the current code with the restaurant parking, which
is what we would hold them or any other Applicant to, they
would still meet the parking requirements.
Having said that, I'm not opposed to having
another look at the numbers, but I'm not comfortable with
there's evidence to deny it, so I will be voting against
the motion. Vice Chair Janoff.
VICE CHAIR JANOFF: Thank you. And I echo the
comments of the Chair. I'm comfortable having run through
the numbers. I think it was the intent of the Applicant to
be clear in the exhibits that were put forward. They were
also reviewed by Staff. I agree with the apples to oranges
comment, but I think the apples to oranges comment that
we're struggling with has to do with the ratio and parking
requirements being inconsistent, and I think that when it
comes down to the actual application, once it gets in front
of the permitting body in the future they will see that
there's sufficient parking being provided, so I will not be
supporting the motion.
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CHAIR HANSSEN: Are there any other comments
before we take a vote? Seeing none, I will do a roll call
vote, and I will start with Commissioner Badame.
COMMISSIONER BADAME: Yes.
CHAIR HANSSEN: And Commissioner Barnett.
COMMISSIONER BARNETT: Yes.
CHAIR HANSSEN: Commissioner Tavana.
COMMISSIONER TAVANA: Yes.
CHAIR HANSSEN: Commissioner Hudes.
COMMISSIONER HUDES: Yes.
CHAIR HANSSEN: Vice Chair Janoff.
VICE CHAIR JANOFF: No.
CHAIR HANSSEN: And I vote no as well, so the
motion passes 4-2. Director Paulson, are there appeal
rights for this motion?
DIRECTOR PAULSON: Thank you, Chair. There are
appeal rights. Anyone who is not satisfied with the
decision of the Planning Commission can appeal the decision
to the Town Council. Forms are available online. The appeal
must be filed within ten days and there is a fee for filing
the appeal.
CHAIR HANSSEN: Okay, thank you. Thank you,
Commissioners, and thank you to everyone in the public for
testifying and providing their comments.