08 Desk Item
PREPARED BY: SEAN MULLIN, AICP
Associate Planner
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Community Development
Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6872
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 12/15/2020
ITEM NO: 8
DESK ITEM
DATE: December 15, 2020
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Deny an Appeal of a Planning Commission Decision Approving a Request for a
Zoning Consistency Determination and a Conditional Use Permit (U-20-009)
for a Bank (Charles Schwab Community Banking and Investment Services) on
Property Zoned C-2:LHP:PD Located at 35 University Avenue. APN 529-02-
044. Property Owner: SRI Old Town, LLC. Applicant: Amber DeMaglio.
Project Planner: Sean Mullin.
REMARKS:
The following discussion includes several questions asked by Council Members and staff’s
response in italics.
• What are the updated appeal criteria?
Pursuant to updated Town Code Section 29.20.020, an interested person for non-residential
projects is any person or persons or entity or entities who can demonstrate that their
property will be injured by the decision.
Pursuant to updated Town Code Section 29.20.295, in the appeal and based on the record,
the appellant (interested person) bears the burden to prove that there was an error or
abuse of discretion by the Planning Commission or wherein its decision was not supported
by substantial evidence in the record as required by Section 29.20.275. If neither is proved,
the appeal should be denied. If the appellant meets the burden, the Town Council shall
grant the appeal and may modify, in whole or in part, the determination from which the
appeal was taken or, in its discretion, return the matter to Planning Commission. If the
basis for granting the appeal is, in whole or in part, information not presented to or
considered by the Planning Commission, the matter shall be returned to the Planning
Commission for review.
REMARKS (continued):
• What is the definition of a bank? Does the Town use the dictionary definition if there is
no Code definition?
The Town Code does not include a definition of a bank. Traditionally, businesses that
provide investment services have been considered office uses by the Town. The applicant
provided a Project Description (Attachment 1, Exhibit 4), Letter of Justification (Attachment
1, Exhibit 5), and a letter speaking to zoning consistency (Attachment 1, Exhibit 6), all of
which describe the proposed use as a bank and cite the evolving nature of traditional
banking. This application was forwarded to the Planning Commission to determine if the
proposed use is considered a bank.
Staff has reviewed the municipal codes of several neighboring jurisdictions and provides the
following definitions of “bank” to aid in this discussion:
Campbell Not defined.
Cupertino
"Banks" means financial institutions including federally-chartered banks,
savings and loan associations, industrial loan companies, and credit unions
providing retail banking services to individuals and businesses. This classification
does not include payday lending businesses or check cashing businesses.
Gilroy
“Bank” means financial institutions including federally chartered banks, savings
and loan associations, industrial loan companies, and credit unions providing
retail banking services to individuals and businesses. This classification of bank
does not include payday lending businesses or check cashing businesses, and as
a result, the establishment, expansion, or relocation of such businesses is
prohibited.
Los Altos
“Banks (commercial)" means financial institutions including federally-chartered
banks, savings and loan associations, industrial loan companies, and credit
unions providing retail banking services to individuals and businesses. This
classification does not include payday lending businesses or check cashing
businesses, and as a result, the establishment, expansion, or relocation of such
businesses is prohibited.
Los Altos Hills Not defined.
Milpitas Not defined.
Monte Sereno Not defined.
Morgan Hill
Banks and Financial Institutions. A financial institution providing retail banking
services. Includes only those institutions serving walk-in customers or clients,
including federally chartered banks, savings associations, industrial loan
companies, and credit unions providing retail banking services to individuals and
businesses. This classification expressly excludes payday lending businesses or
check cashing businesses, and as a result, the establishment, expansion, or
relocation of such businesses is prohibited.
REMARKS (continued):
Mountain View
Banks and financial services. Financial institutions, including banks and trust
companies; lending and thrift institutions, credit agencies; brokers and dealers
in securities and commodity contracts; security and commodity exchanges;
holding (but not predominantly operating) companies; and other investment
companies; vehicle finance (equity) leasing agencies. See also "Automatic teller
machine."
Palo Alto Not defined.
San Jose
"Retail Bank" refers to commercial and non-profit banks and credit unions which
are primarily focused on in-person customer services such as, checking and
savings accounts, mortgages, personal loans, and debit or credit card services.
Santa Clara Not defined.
Saratoga Not defined.
Sunnyvale Not defined.
• Can the Council debate the bank determination of the Planning Commission or is that issue
resolved?
Yes, the Council may debate the determination of the Planning Commission that the
proposed use is a bank as this is a de novo hearing.
• What is the rubric for determining an appropriate use?
The Town Code indicates that there are uses which can be specified for each zone which, in
practically all instances, will be mutually compatible. In addition, there are other uses which
might be compatible with ordinarily allowed uses if properly located and regulated. These
are called conditional uses. They are listed in Section 29.20.185. However, the listing of a
conditional use does not indicate that the use must be allowed. There will be locations or
instances where a specified conditional use is inappropriate in a zone regardless of the
extent of regulation if the findings can be made.
Sec. 29.20.190. - Findings and decision for Conditional Use Permits.
a) The deciding body, on the basis of the evidence submitted at the hearing, may grant
a conditional use permit when specifically authorized by the provisions of this
chapter if it finds that:
1) The proposed uses of the property are essential or desirable to the public
convenience or welfare;
2) The proposed uses will not impair the integrity and character of the zone;
3) The proposed uses would not be detrimental to public health, safety or
general welfare;
REMARKS (continued):
4) The proposed uses of the property are in harmony with the various
elements or objectives of the general plan and the purposes of this
chapter.
5) A hazardous waste facility proposal is subject to the California Health and
Safety Code, Article 8.7, Section 25199—25199.14 and shall be consistent
with the Santa Clara County Hazardous Waste Management Plan.
• How broadly do we view new information that was not available at the Planning
Commission hearing? In other words, is there a low bar for sending things back to the
Commission?
Section 29.20.295 of the Town Code states:
“If the basis for granting the appeal is, in whole or in part, information not presented to
or considered by the Planning Commission, the matter shall be returned to the Planning
Commission for review.”
In the context of the updated Ordinance language discussion, “information not presented
to or considered by the Planning Commission” anticipated instances with a significant
change in the project description from what was presented to the Planning Commission.
ATTACHMENTS:
Previously received with the Staff Report:
1. November 11, 2020 Planning Commission Staff Report, with Exhibits 1 through 9
2. November 11, 2020 Planning Commission Desk Item, with Exhibit 10
3. November 11, 2020 Planning Commission Verbatim Minutes
4. Appeal of Planning Commission decision, received November 19, 2020
5. Draft Resolution to Deny an Appeal and Approve the Project, with Exhibits A and B
6. Draft Resolution to Grant an Appeal and Remand the Project to Planning Commission
7. Draft Resolution to Grant an Appeal and Deny the Project
ATTACHMENTS (continued):
Previously received with the Addendum:
8. Applicant letter to the Town Council received December 14, 2020