04 Desk Item - 42 Elm Street~pW 0
!ps°'pSpS COUNCIL AGENDA REPORT
DATE: JUNE 4, 2007
TO: MAYOR AND TOWN COUNCIL
FROM: ORRY P. KORB, TOWN ATTORNEYOV/
MEETING DATE: 06-04-2007
DESK ITEM:
SUBJECT: RESOLUTION GRANTING AN APPEAL OF A PLANNING COMMISSION
DECISION DENYING A REQUEST TO OPERATE A RESTAURANT ON
PROPERTY ZONED C-2; APN: 529-03-035; CONDITIONAL USE PERMIT U-
07-24. PROPERTY LOCATION: 42 ELM STREET. PROPERTY OWNER:
MIKE COBLER: /APPLICANT/APPELLANT: SUH CHUNG KIM
Paragraph D. of the proposed resolution was modified to remove references to types of food
products that are proposed to be sold in the high turnover/sit-down restaurant and paragraph G.i.
was modified to state that the impacts of the CUP would be lessened by the elimination of
alcohol sales, wine tasking and the reduced hours of operation.
Attachment: Proposed Resolution
ORRY P. KORB, TOWN ATTORNEY
OPK:LMB/wp [N:WTY\Reports\Report 42 Elm Street.wpd]
Reviewed by: Town Manager lv"_ Assistant Town Manager Clerk
Finance Community Development
Rev: 6/4/07 12:18 pm
Reformatted: 7/19/9
Fileff 301-05
RESOLUTION
RESOLUTION GRANTING AN APPEAL OF A PLANNING COMMISSION DECISION
DENYING A REQUEST TO OPERATE A RESTAURANT ON PROPERTY ZONED C-2
APN: 529-03-035
PROPERTY LOCATION: 42 ELM STREET
PROPERTY OWNER: MICHAEL COBLER
APPLICANT/APPELLANT: SUH CHUNG KIM
WHEREAS:
A. This matter came before the Town Council for public hearing on May 21, 2007, and
was regularly noticed in conformance with State and Town law.
B. Council received testimony and documentary evidence from the applicant/appellant
and all interested persons who wished to testify or submit documents. Council considered all
testimony and materials submitted, including the record of the Planning Commission proceedings
and the packet of material contained in the Council Agenda Report dated May 11, 2007, along with
any and all subsequent reports and materials prepared concerning this application.
C. The appeal concerns a Planning Commission decision denying a request to operate a
restaurant on property zoned C-2.
D. The application was considered and denied by the Planning Commission on
April 11, 2007. The previous tenant at the project site (Caf6 Rouge) received approval for a
Conditional Use Permit on August 21, 2006 for a high turnover/sit -down restaurant. The
Conditional Use Permit allowed for beer and wine service with meals, wine tasting, hours of
operation from 6:00 AM to 1:00 AM seven days a week, alcohol service and retail sales limited
between the hours of 11:00 AM to 11:00 PM, and outdoor seating. The applicant/appellant desires
to modify this Conditional Use Permit to operate a high turnover/sit-down restaurant, while
discontinuing all alcohol service, wine tasting, and retail alcohol sales and reducing the hours of
operation to 10:00 AM to 9:00 PM. Although both the approved and proposed restaurants are
classified as high turnover/sit-down restaurants, the operation of the approved and proposed
restaurants was determined to be substantially different. The Commission denied
applicant/appellant's request to modify the Conditional Use Permit because it was concerned that
there was a saturation of restaurants selling dessert products in the downtown area including frozen
yogurt, ice cream, and gelato. The Commission felt that to approve additional shops would be
inconsistent with the General Plan goal of providing a mix of commercial uses.
E. The applicant/appellant claims that the Planning Commission erred or abused-its
discretion in that the findings could be made to approve the Conditional Use Permit and the
application is consistent with the General Plan and that the Commission failed to collect adequate
Planning Department Policy information regarding the proposed business.
F. The decision of the Planning Commission was incorrect and is hereby reversed.
G. Council finds as follows:
The request for a modified Conditional Use Permit on the applicant's
business premises promotes policies and strategies of the General Plan including: L.P.1.3
(encourage economic and social activity consistent with a small-scale, small town atmosphere and
image); L.P.5.1 (maintain a variety of commercial uses to meet the shopping needs of residents
and to preserve the small-town atmosphere); L.P.5.2 (emphasize retail uses in the Commercial
Business District); L.P.5.5 (encourage the development and retention of locally-owned stores and
shops); L.G.6.2 (preserve downtown Los Gatos as the historic center of the Town with goods and
services for local residents while maintaining the existing Town identity, environment and
commercial viability). Council notes that the use, a high turnover/sit down restaurant, is essentially
the same as that which was previously approved, but with a lesser impact resulting from the
elimination of the permit to sell alcohol and conduct wine tasting and the reduced hours of operation.
ii. Pursuant to Town Code section 29.20.300(b)(3), the decision involved an
issue of policy over which the Planning Commission did not have discretion to modify or address,
but which is vested in Council for modification or decision; to wit, whether it is appropriate under
the policies and rules of the Town, including the General Plan and Zoning Code, to regulate the
concentration of businesses within a common zoning use category, such as high turnover/sit down
restaurant, by distinguishing their particular product, such as dessert. Council finds that it is not
appropriate to do so.
RESOLVED:
1. The appeal of the decision of the Planning Commission on Conditional Use Permit
application U-07-4 is granted and the application is approved, subject to the conditions attached as
Exhibit "A" hereto.
2. The decision constitutes a final administrative decision pursuant to Code of Civil
Procedure section 1094.6 as adopted by section 1.10.085 of the Town Code of the Town of Los
Gatos. Any application for judicial relief from this decision must be sought within the time limits
and pursuant to the procedures established by Code of Civil Procedure section 1094.6, or such
shorter time as required by State and Federal Law.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los
Gatos, California on the day of June 2007, by the following vote.
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
ATTEST:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
CLERK ADMINISTRATOR
TOWN OF LOS GATOS, CALIFORNIA