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2004-046- Granting Appeal Of A Planning Commission Decision Denying An Application To Convert A Portion Of A Former Restaurant (Swensen's) To Another Restaurant Use (Cold Stone Creamery) On Property Zoned C-2RESOLUTION 2004 - 46 RESOLUTION GRANTING APPEAL OF A PLANNING COMMISSION .DECISION DENYING AN APPLICATION TO CONVERT A PORTION OF A FORMER RESTAURANT (SWENSEN'S) TO ANOTHER RESTAURANT USE (COLD :STONE CREAMERY) ON PROPERTY ZONED C-2. APN: 510-45-075. CONDITIONAL USE PERMIT: U-04-8. PROPERTY LOCATION: 20 S. SANTA CRUZ AVENUE. PROPERTY OWNER: PARK ROW EAST APARTMENTS, LTD. APPLICANT/APPELLANT.: CATHERINE G. ASBUN. WHEREAS: A. This matter came before Council for ,public hearing on Apri15, 2004, on an appeal by Catherine G. Asbun (applicant/appellant) from a decision of the Planning Commissonand was regularly noticed in conformance with State and Town law. B. Council received testimony and documentary evidence from the .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 Marcy 25, .2004, Addenda dated April 1, 2004 and April 2, 2004, along with subsequent reports ..and materials prepared concerning this application. C. The applicant/appellant seeks approval to operate a Cold Stone Creamery store in a portion of the tenant space previously occupied by Swensen's Ice Cream. The proposed location at Lyndon Plaza would be owned and operated by the applicant/appellant under a franchise agreement. Intended hours of operation are 11.:00 a.m. to 11:00 p.m. daily. The Planning Commission heard the matter on February 11, 2004 and denied the :application for a Conditional Use Permit. D. 'The applicant/appellant believes that the Commission acted in the absence of a specific regulation on formula restaurants. E. Town Council finds as follows: Pursuant to Town Code section 29.20.190, the proposed use of the property is desirable to the public convenience; will not impair the integrity and character of the zone; would not be detrimental to public health, safety or general welfare; and is in harmony with the various elements or objectives of the General Plan and the purposes of the Town Code. Evidence in the record demonstrates that the proposed ice cream restaurant will employ residents of the Town of Los Gatos, will maintain the economic vitality and mix of pedestrian oriented businesses in the Central Business District, and will occupy a currently vacant space and upgrade and existing building. 2. Pursuant to Town Code section 29:20.300, the application presented an issue or-policy over which the Commission did not have discretion to modify or address, but which is vested in the Council for modification or decision; to wit, whether formula restaurants should be subject to additional regulation in light of the introduction of rules regulating formula retail business and personal service businesses in the Downtown area. Council finds that restaurants, which are aheady required to obtain use permits, are sufficiently regulated. 3. The project is categorically exempt from.environmental review pursuant to Section 15301 of the State Environmental Guidelines as adopted by the Town. 4. The proposed use is consistent with the Redevelopment Plan for the Central Los Gatos Redevelopment Project Area (section IV.B). RESOLVED: The appeal of the decision of the Planning Commission on Conditional Use Permit 2 U-04-8 is :granted. 2. The revised Conditions of Approval attached hereto as Exhibit Aare hereby adopted as the Conditions of Approval of this permit. 3. 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 or federal law.. PASSED AND ADOPTED at a regular meeting of the Town Council of the'Town of Los Gatos, California held on the 19`"' day of April,. 2004 by the following vote. COUNCIL MEMBERS: AYES: Sandy Decker, Diane McNutt, Joe Pirzynski, Mike Wasserman, Mayor Steve Glickman. NAYS: None ABSENT.: None ABSTAIN: None a SIGNED: ~~"'°~°-- MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST CLERK OF THE TOWN OF LOS ATOS LOS GATOS, CAL11iORNIA 3 ~~ i TOWN COUNCIL - Apri15, 2004 CONDITIONS OF APPROVAI. 20 S. Santa Cruz .Ave Conditional Use Permit U-04-8 Requesting approval to convert a portion of an existing restaurant (Swensen's) to another restaurant use (Cold Stone Creamery) on property .zoned C-2. APN 510-45-075 PROPERTY OWNER: Park Row East Apartments, Ltd APPLICANT; Catherine'G. Asbun TO THE SATISFACTION OF THE DIRECTOR OF COMMJNITY DEVELOPMENT: Planning Division 1. APPROVAL: This application .shall be completed in accordance with all of the conditions of approval listed below and in substantial compliance with the plans approved and noted as received. by the Town on February 2, 2004. Any changes or modifications to the approved plans and/or business operation shall be .approved by the Community Development Director or the Planning Commission, depending on the scope of the changes. 2. EXPIRATION OF APPROVAL: The Conditional Use Permit will expire two years from the date of approval unless it is used before expiration. Section 29.20.335 defines what constitutes the use of an approval .granted under the Zoning Ordinance. 3. HOURS OF OPERATION. Hours of .operation are limited to 11:00 am to 11:00 pm daily. 4. 'BUSINESS OPERATION. This approval is for a specialty retail/restaurant use that sells dessert products. Any change in the type of business requires modification of the Conditional Use Permit. 5. SEATING. A maximum of eight (8) indoor seats are allowed. 6. TAKE OUT. Take out food shall be served in recycled material containers.. 7. UTENSILS. All beverages and food served on site shall be served on reusable materials. 8. LIVE ENTERTAINMENT. No live entertainment is allowed. This condition does not restrict Cold :Stone employees from singing. 9. LAPSE FOR DISCONTINUANCB. If the ,activity for which the Conditional Use Permit has been granted is discontinued for a period of one (1) year, the .approval lapses pursuant to Section 29.20.340 of the Zoning Ordinance.. 10. ROOFTOP EQUIPMENT. Any new roof mounted equipment shall be fully screened prior to issuance of an occupancy permit. 11. .SIGNS. The exterior business sign(s) shall comply with the Lyndon Plaza Sign Program and shall be compatible with the historic and .aesthetic context of the area. Ni\SHAR&\Adopted Reso-Ords\ColdStone.RES.wpd 4