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Attachment 2 and 3" TOWN OF LOS GATOS ITEM NO: 5 DESK ITEM <os -iil'~.., PLANNING COMMISSION STAFF REPORT Meeting Date: September 28, 2016 PREPARED BY: APPLICATION NO: LOCATION: APPLICANT: PROPERTY OWNER: CONT ACT PERSON: APPLICATION SUMMARY: EXHIBITS: Jocelyn Puga, Associate Planner jpuga@losgatosca.gov Conditional Use Permit U-16-004 50 University Avenue, Suite 180 (east side of University Avenu e, approximately 500 feet north ofW. Main Street) Mark English Architects Sri Old Town LLC Steve Hauck, Wine Cellar Requesting approval to modify an existing Conditional Use Permit for a restaurant (Wine Cellar) to allow for an increase of 60 additional seats, to modify the distribution of existing seating, and to allow entertainment before I 0:00 p.m. on property zoned C -2:LHP:PD. APN 529-02-044. Previously received with September 28, 2016 Staff Report: 1. Location Map 2. Findings (one page) 3. Recommended Conditions of Approval (four pages) 4. Resolution 2005-092 and the Existing Conditions of Approval (five pages) 5. Town Alcoholic Beverage Policy, including Exhibit A (six pages) 6. Planned Development Ordinance 2025 (20 pages) 7 . Project Descriptio n (one page), received August 9 , 2016 8. Letter of Justification (two pages), received August 9, 2016 9. Letter from the landlord approving the allocation of parking (one page), received June 7, 2016 I 0. Policy Number 1-03 Regulating Late Night Entertainment, dated June 22 , 2016 and Council Agenda Report, dated June 13 , 2016 (seven pages) 11. Development Plans, received August 9, 2016 (five pages) Received with this Desk Item Report: 12. Public comment received by 11 :00 a.m., Wednesday September 28 , 2016 I 3 . Conditional Use Permit U-06 -07 conditions of approval (three pages) ATTACHMENT 2 Planning Commission Staff Report -Page 2 50 University, Suite 180/U-16-004 September 28 , 2016 REMARKS : Staff received the attached email after distribution of the staff r eport (Exhibit 12). Additionally, staff has provided the conditions of approval for Conditional Use Permit U-06-07 regulating live entertainment for the amphitheater, pedestrian courtyard adjacent to Steamers, and the wood deck area adjacent to the front parking lot of the Old T own Shopping Center for the Co mmission's information (Exhibit 13). Approved by: Joel Paul son, AICP Community Development Director JSP:JGP:cg N:\DE V\PC REPORTS\20 16\UniversitySOS uit e l 80-d esk .d ocx Planning From: Sent: To: Subject: Linda Matulich <matulichl@aol.com > Wednesday, September 28, 2016 9:48 AM Planning Conditional Use permit Application U -16-004 First, I would like to say that as a resident and merchant, I agree we need to encourage the development of downtown businesses to continue to draw patrons to the downtown area. But, as many of us know the parking downtown has become an issue that cannot be ignored . Old Town already blocks the underground parking lots until 10am on a daily basis so these parking slots are not taken by employees, shoppers and other merchants of businesses in the immediate downtown. The proposed plan asks for 60 additional seats. Calculating that there would be a maximum of four in a car to a minimum of two per car would mean there would be an additional 15 to 30 cars parking in the Old Town parking lots or spilling over to the other lots, which are already at capacity. The streets surrounding the areas are at capacity as well. There used to be guidelines as to how many parking spaces were required for a business to have in order to be able to develop or enlarge their capacity. We need to look at this request and take into consideration the effect it will have on the downtown as a whole . In regards to the music, there needs to be regulation and enforcement of the volume of the entertainment. When Cal Cafe had outdoor entertainment or Old Town has had outdoor music in the past, it could be heard across the street to Elm as well as Mullen and University Ave . This was not muted music, but loud enough to hear the lyrics being sung. As a business in Old Town we have actually received calls from other business and comments from our guests as to why the music is so loud, it is heard across the street and in the residential area of University Ave . Again, I think this could bring customers to our downtown but needs to be properly regulated. Cal Cafe is currently empty. What happens when they open and both businesses decide to have outdoor music at the same time. The close proximity of the businesses needs to be taken into consideration as well. I have walked downtown while Palacio had outdoor music and it could be heard from a block away. As someone who used to live on a street close to the downtown, we could frequently here the music from any outdoor entertainment. This also included Jazz in the Plazz. Can the area surrounding Old Town, as well as Old Town Parking lots, provide enough parking for the request and how will the mu sic volume be regulated? Again, I am not against either of the two items being submitted for approval. I am interested in the size of the reque st and how the music is going to be regulated.I would like the council to consider the request being submitted for sixty additional seats since it can effect the entire surrounding areas of the downtown as well as re sidential area on University Ave. We need to take into consideration all aspects this request may have on the downtown as a whole, as any requests approved now will have an effect on future requests and the development of the downtown and surrounding business area s within the town limits. Linda Matulich EXHIBIT 1 2 l This Page Intentionally Left Blank r' RECOMMENDED CONDITIONS OF APPROVAL FOR: 50 University Avenue Conditional Use Permit U-06-07 Requesting approval to have live entertainment and events in the amphitheater and in patio areas within the Old Town Shopping Center on property zoned C -2:PD:LHP. APN 529-02-044 PROPERTY OWNER/APPLICANT: SRI, Old Town, LLC TO THE SATISFACTION OF THE DIRECTOR OF COMMUNITY DEVELOPMENT : (Planning Division) 1. APPROVAL: This use shall be operated in accordance with all of the conditions of approval listed below. Any changes or modifications shall be approved bytheDirectorofCommunity Development, Development Review Committee or the Planning Commission, depending on the scope of the change(s). 2. EXPIRATION: Zoning approval will expire two years from the approval date pursuant to Section 29 .20.320 of the Town Code, unless the approval has been vested. 3. TERMINATION OF CUP. The Conditional Use Permit shall terminate when there is a change in ownership of the property. 4. PERMITTED USES. This approval applies to the commercial development known as Old Town (APN 529-02-044) and allows certain events to be held throughout the year at the Old Town Shopping Center without applying for a Special Events Permit. Attachment A provides the list of the allowed events. The events are limited pursuant to this Conditional Use Permit and a Special Events Permit is not pennitted for additional events sponsored by Old Town. A nonprofit group may request a Special Event Permit to use Old Town property. 5. LOCATION. All events shall occur on Old Town property limited to the following locations: the amphitheater, the wood deck area adjacent to the front parking lot and the pedestrian courtyard adjacent to Steamers Restaurant. 6. CIRCULATION. No event shall obstruct vehicular and/or pedestrian circulation. 7. VENDORS/PUSHCARTS. Vendors and pushcart operators shall obtain the required business licenses and/or temporary pushcart permit pursuant to Chapter 14 of the Town Code. 8. LIMITATION. Only one event at a time is permitted. No more thaa eight 0'fent days shall be held per month. A maximum of 36 0't'ent days are permitted per ealendar year as defined in Attachment A of these conditions def mes the limitation of the event period. 9. FEE. No fee shall be charged for an event. Request for donations are acceptable for charity/nonprofit events . 10. ALCOHOL. There shall be no alcohol for any event. 11. HOURS OF OPERATION. The maximum hours of the event(s) shall be from 10 A.M. to 9 8 P .M. S0'1en days a week pursuant to the days and months outlined in Attachment A of these conditions. Maximum hours for musical entertainment shall be from 11 :00 AM to 9 8 PM s0'.'en days a week pursuant to the days and months outlined in Attachment A of these conditions. These hours do n ot include setup or cleanup. 12 . NEIGHBORHOOD NOTIFICATION. Old Town shall provide written notice to property owners and occupants wi thin at least 500 feet of the site that they are permitted to host EXHIBIT 1 3 events throughout the year. The notification boundary shall extend up University and Edelen Avenues to Highway 9. A copy of this notice shall be provided to the Town. The notice shall include a local phone number to call if an issue arises during an event. This notice shall be sent only one time and must be sent within 60 days of the approval of this conditional use permit or not less than ten (10) days prior to holding the first event. The noticed area shall be approved by the Town . Old Town shall work with the Chamber of Commerce to provide contact information in the Chamber's newsletters . 13 . SIGNS. A maximum of two on-site temporary event banners are permitted upon approval of a sign permit. One banner may be placed on each side of University A venue on Old Town property. Each sign shall not exceed 12 square feet in area. The banners must be affixed to the building and shall face parallel to the street. The banners may not be erected more than fourteen (14) days prior to the event and shall be removed within twenty-four (24) hours after the event. 14. ONE YEAR REVIEW. Town staff shall review the Conditional Use Permit within one year from approval to determine if there are any problems associated with the Permit and report their findings to the Planning Commission. The Planning Commission may direct that a public hearing be held to review the permit as specified in Section 29.20.310 of the Town Code. 15. AD HOC COMMITTEE. An ad hoc entertainment committee shall be formed consisting of the Old Town Special Events Coordinator and residents of the adjoining neighborhood. The committee shall meet at least quarterly, or as issues arise. Old Town shall maintain a record of complaints and their response or action to these complaints. This record shall be made available to Town staff upon request. TO THE SATISFACTION OF THE CHIEF OF POLICE 16. SECURITYffRAFFIC . The applicant shall contact the Police Chief sixty (60) days prior to an event to determine if additional on site security and/or traffic control is necessary during the event. Depending on the event, the Police Chief may require the hiring of Police Officers at the applicant_'s expense. 17 . NOISE. Amplified entertainment is not permitted. There shall be no amplified, electric or percussive music. Noise levels shall comply with the provisions of the Noise Ordinance as set forth in Section 16 .20 .040 of the Town Code. Attachment N :\DEV\CONDITNS\2007\0LDTOWN .DOC , ., r ( Event Type Use Definition Event Period H ours of Operation General Live unarnplified July through 11 :00 AM to 8:00 Entertainment background music. August and PM There shall be no November and amplified, electric or December. percussion music. Saturdays and Sundays only. Holiday Strolling musicians, One, two-day 10:00 AM t o 8:00 Santa, food event, in November PM sampling, story time or December. and chef demonstrations. Nonprofit Work with nonprofit One-day event, 10:00 AM to 8:00 organizations to twice a year. PM provide receptions, art and craft exhibits, and appetizers. N:\DE V\CONDITNS\2007\oldtown.a.doc LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A P P E A R A N C E S: Los Gatos Planning Commissioners: Mary Badame, Chair D. Michael Kane, Vice Chair Melanie Hanssen Matthew Hudes Tom O’Donnell Town Manager: Laurel Prevetti Community Development Director: Joel Paulson Town Attorney: Robert Schultz Transcribed by: Vicki L. Blandin (510) 337-1558 ATTACHMENT 3 LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 P R O C E E D I N G S: CHAIR BADAME: Item 5, 50 University Avenue, Suite 180, a.k.a. Wine Cellar, Conditional Use Permit U-16- 004, requesting approval to modify an existing Conditional Use Permit for a restaurant, Wine Cellar, to allow for an increase of 60 additional seats, to modify the distribution of existing seating, and to allow entertainment before 10:00pm on property zoned C-2:LHP:PD, APN 529-02-044. May I have a show of hands from Commissioners who have visited the site? Any disclosures from Commissioners? I would disclose that I ate there last night. VICE CHAIR KANE: Did you pay the bill? CHAIR BADAME: Yes, I paid the bill. No, actually, someone else did that resides in my household. Ms. Puga, I understand you’re providing us with a Staff Report this evening? JOCELYN PUGA: That’s correct. Good evening, Chair and Commissioners. The subject site is located on the east side of University Avenue, approximately 500’ north of West Main Street. The existing tenant, Wine Cellar, has occupied the space since 1965. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Applicant is requesting to modify their CUP to permit an increase of 60 seats, to modify the distribution of the existing seating in the restaurant, and to allow entertainment before 10:00pm. The Applicant is proposing a 2,661 square foot expansion to the existing 3,186 square foot restaurant to allow for the creation of the two new private dining rooms with a total of 60 seats, for a total of 200 seats for the restaurant. A portion of the area proposed for the renovation is currently used as storage, electrical, and maintenance area. The remaining area proposed for the renovation is vacant space that was formally occupied by a retail tenant, Borders. The two new private dining rooms would utilize the same existing hours of the restaurant, which are 11:00am to 2:00am Monday through Friday, and 9:30am to 2:00am Saturday and Sunday. The existing and proposed use requires one parking space for every three seats. The existing property has credit for 464 spaces in the Parking Assessment District and provides 199 spaces onsite, for a total of 663 spaces. The proposed use requires 67 spaces and is in compliance with the required parking. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Applicant is also proposing to modify Condition 2 of Exhibit 4, which details the allowed distribution of seating in the existing dining, bar, and outdoor areas. The Applicant is requesting to decrease the number of seats in the bar and dining areas in order to increase the number of seats on the outdoor patio. Lastly, the Applicant is requesting to amend Condition 7 of Exhibit 4, which restricts entertainment. The Applicant is requesting to amend the condition to come into conformance with the newly adopted Late Night Entertain Policy. In conclusion, Staff recommends that the Commission forward a recommendation of approval to the Council, and that the proposed use complies with the required parking and is in compliance with the Town’s Alcoholic Beverage Policy. This completes Staff’s presentation, and we’re happy to assist the Commission. CHAIR BADAME: Thank you, Ms. Puga. Questions of Staff? Commissioner Hudes followed by Commissioner Hanssen. COMMISSIONER HUDES: It talks about expansion and it talks about conversion. Just to be clear, is there any expansion of the envelope of the building? LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JOCELYN PUGA: There is no expansion of the envelope of the building. COMMISSIONER HUDES: Okay, thank you. CHAIR BADAME: Commissioner Hanssen. COMMISSIONER HANSSEN: I had a couple of questions; the first one being what kind of community outreach has been done? There are quite a few residences on University, and we didn’t see any letters from people in the community with the potential of there being music outside and whatnot, so I just wondered what neighborhood outreach had actually been done? JOCELYN PUGA: Staff isn’t aware of any outreach that the Applicant has done, but they can certainly speak to that. COMMISSIONER HANSSEN: Okay, so we can ask them about that. Then I had a question about parking. Even after having been on the Transportation and Parking Commission, and Chair yet, I still don’t understand the Parking District. I think it’s just probably a clarifying question. The property owner has 199 spaces onsite, and then they have their share of the Parking Assessment District, which is 464 spaces, but my questions is, is that 464 total or LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what they have left that they haven’t given to other people already? JOCELYN PUGA: That’s 464 total. COMMISSIONER HANSSEN: What kind of record keeping happens with their allocation of it? How do we know that they have 20 spaces to give out of that 464? JOCELYN PUGA: Staff worked with Federal Realty. They provided us with all of the existing tenants, the square footages, and Staff created a parking table for the site. They have an excess of 193 parking spaces; my math may be off on that. COMMISSIONER HANSSEN: They have 193 left over from their share of the Parking Assessment District. I ask because one of the comment letters we got was about parking and it always being full, so I just wanted to make sure we had done our homework on that. JOCELYN PUGA: And that’s a correction. It’s 152 parking spaces extra. COMMISSIONER HANSSEN: That they had left out of their 464 to give to new applications, okay. CHAIR BADAME: Commissioner O'Donnell. COMMISSIONER O'DONNELL: I have two questions. One relates to the parking across the street. Both sides of the street are owned by Federal Realty, is that correct? LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 What time does the downstairs parking close across the street? JOCELYN PUGA: I can’t answer that question. The Applicant, when they speak, may have that information for you. COMMISSIONER O'DONNELL: Part of the reason I ask is I’ve eaten over there. I’m not out until 2:00 o’clock in the morning, but certainly they seem to be open till 10:00, which is more like my bedtime. I want to know what time they close, because if these folks are open till 2:00am, it would be helpful if that parking across the street is open around the same time. Secondly, just to confirm, the amplified music we’re talking about here is outside and inside? JOCELYN PUGA: That’s correct. COMMISSIONER O'DONNELL: Because recently we had the same question arise over the block, and we’ve required that they do a sound study, because the neighbors for years now have objected to illegal amplification, and they’re worried they’re going to object to any kind of amplification. The letter we received—I think it was today— from Linda Matulich was a very, very good letter, and it raises that question that I have. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The reason I’m saying that now is I take it when the Town Council approves the new regulations here, nobody really knows what the sound will be, except that we have a Sound Ordinance that is stricter after 10:00pm, as I recall, than before 10:00pm, but it’s not self-executing; it requires somebody with a sound meter to check it out. Can I find out how many people we have in the Town do those kinds of things? ROBERT SCHULTZ: I have my own sound meter. COMMISSIONER O'DONNELL: Is code enforced at 10:00? ROBERT SCHULTZ: Code Enforcement has theirs, and has two, so that’s probably where the three major ones are. The police might have another one. I can say without a doubt that amplified music, even though they are allowed to do that, they would not be able to outside—no one would— without violating our Noise Ordinance any time of the day or night. It’s not going to pass. Our Noise Ordinance is very strict as to the decibel levels. COMMISSIONER O'DONNELL: You’re confusing me. If I understand you correctly you’re saying what they’re asking for, if they do it, they’ll be in violation of our Noise Ordinance. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ROBERT SCHULTZ: The Entertainment Policy before 10:00pm is by right, and it says you can have entertainment; it doesn’t really differentiate between amplified or non-amplified, it just says you need to comply with our Noise Ordinance, and I can tell you, amplified music won’t comply with our Noise Ordinance outside; you’d have to be inside for amplified music. CHAIR BADAME: Isn’t there a certain decibel level? ROBERT SCHULTZ: Yes. CHAIR BADAME: So it would not matter what exceeds that? ROBERT SCHULTZ: Yes. COMMISSIONER O'DONNELL: Refresh my recollection. We do know that with the new ordinance—whether “ordinance” is the right name for it—that we have factual situations, one of which was if the existing use already had a restriction on amplified sound, and remind me, does this have that restriction? JOCELYN PUGA: It does have a restriction on amplified music. COMMISSIONER O'DONNELL: Therefore it did seem to me on the last matter we had that that means we will not violate the policy if we say no, is that correct? LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAIR BADAME: That is how I understand it. JOEL PAULSON: If the Commission is concerned about outdoor amplified music, then that could certainly be part of your recommendation, that that not be permitted. COMMISSIONER O'DONNELL: Okay, thank you. CHAIR BADAME: Commissioner Hudes. COMMISSIONER HUDES: I’m trying to make sense out of the document Exhibit 13 in the Desk Item 5, so maybe you could orient me to this. This seems to be a Conditional Use Permit for the entire Old Town, and it refers to some things, and I’m trying to understand how that applies to this particular application. A couple of things to point out in here, it talks about how many events at a time can be held, but also on 17, it says, “Noise: Amplified entertainment is not permitted. There shall be no amplified electric or percussive music.” So how does that relate to the discussion we’ve had, and how does this document relate to what we’re considering? JOEL PAULSON: That document was provided because I had a recollection that I couldn’t confirm or deny when I met with the Chair and Vice Chair, so we wanted to provide that to you for background information. That is a Conditional Use Permit for Old Town as a whole, so that does have the provision in there that no amplified sound is LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 permitted. It also specifically relates to the amphitheater, which is in the back, and the patio area next to Steamer’s, and then also the wood deck adjacent to the parking lot on the opposite side. So we just really wanted to provide that to you for background information. Again, if the Commission is concerned about entertainment outdoors, then that can be part of the recommendation, that that not be permitted as it moves forward to Council. COMMISSIONER HUDES: I guess does the Applicant need to fall under Point 17, which says, “There shall be no amplified electric or percussive music.” JOEL PAULSON: That CUP does not apply to the specific space. COMMISSIONER HUDES: So it applies to the common areas or the other areas within Old Town, but not to the space? JOEL PAULSON: Correct. CHAIR BADAME: Let me just say something very quickly. I appreciate Commissioner O'Donnell’s earlier concerns; I share those. I would like to commend the letter that we got, Exhibit 12, from Linda Matulich. It actually addressed a few concerns that I had that I was going to bring up, that I’m sure that we’ll have a lively discussion on. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But real quickly, since this expansion will go into part of the space that was occupied by Borders, which was a retail space, does Ordinance 2021 come into play at all? JOEL PAULSON: Frankly, we hadn’t thought about that. That’s an interesting point. Ordinance 2021, you can use that as part of your discussion. That’s a great point. Thank you. CHAIR BADAME: All right, so I will just remind the Commissioners that Ordinance 2021 discourages replacement of retail use with restaurant use, so the expansion of Wine Cellar would be going into an area that was occupied by retail. JOEL PAULSON: I would just offer that obviously the space they’re going into wasn’t Borders retail component, it was the storage for Borders, so just to have that distinction. ROBERT SCHULTZ: It would be impossible for that space underneath to be taken by retail, I guess, that would be successful, because you are underground. Borders used it just as its storage area. CHAIR BADAME: Commissioner O'Donnell. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER O'DONNELL: The new restaurant that’s going to open where the California Café was, will that be operating under an existing use permit? JOEL PAULSON: Correct. COMMISSIONER O'DONNELL: And does that use permit—we just kind of discussed it—prohibit outside amplified sound? JOEL PAULSON: We’ll have to take a look at that. We can probably pull that up on the Town Attorney’s iPad. COMMISSIONER O'DONNELL: If you can’t find it right now, it’s okay, but one of the points that was made here was if you have two of these users having amplified sound, one is going to be in violation of the Noise Ordinance and the other is going to be in violation of the Noise Ordinance, and together they’re going to have wonderful music. CHAIR BADAME: It can be dueling banjos. That’s entertainment. Commissioner Hanson, and then followed by Vice Chair Kane. COMMISSIONER HANSSEN: I just had a couple of process or numbering questions that were in our packet. First of all was the Conditional Use Permit application number. The one that we’re being asked to approve is U-16-004, but the one that was approved in LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Resolution 2005-092 is for Conditional Use Permit U-3-7. Do we normally change the number of the use permit when we modify it? Okay, so that’s one question. Then on Exhibit 2 where is says, “Required compliance with the Planned Development Ordinance 2234,” it says, “The Conditional Use Permit is in conformance with Planned Development Ordinance 2025.” Which one is it? It says two different numbers. JOCELYN PUGA: That’s a typo. It should be Ordinance 2025. COMMISSIONER HANSSEN: So our findings should be that it’s in compliance with the PD Ordinance that’s in place for that property, 2025? JOCELYN PUGA: It is, and it’s also included as Exhibit 6, for reference. CHAIR BADAME: Vice Chair Kane. VICE CHAIR KANE: We are recommending to Town Council approval or disapproval of the request for change in the CUP. Will that recommendation or the action of the Town Council itself result in a resolution? JOEL PAULSON: The CUPs, we haven’t had one up there for a while… VICE CHAIR KANE: I’m looking at 2005-092, “Resolution Town Council approving request to modify a LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CUP.” It goes on and on and on. But the reason I’m asking is because the resolutions seem to be multifaceted and quite comprehensive, and we’re bringing up concerns tonight where I think we should articulate suggested bullets or items for that resolution, instead of saying yes or no. I found a bunch of them in that letter from Linda Matulich, who everyone is referring to—we’ve got to find out what she does—and one of the things she said was, “If we approve this and the new establishment going where California Café was, are they going to be playing acoustical guitars and making noise at the same time?” What occurs to me is since we’ve uncovered the original 2007 CUP for Old Town, we could have three bands operating simultaneously about three feet apart from each other lawfully, unless the ordinance covers such a condition with restrictions, conditions, or whatever. I can’t really put my finger on Linda’s letter. CHAIR BADAME: It’s Exhibit 12. VICE CHAIR KANE: Thank you. CHAIR BADAME: I believe it’s just a new policy, so it doesn’t have restrictions. VICE CHAIR KANE: It’s a one-page letter. CHAIR BADAME: I have it. What is your question? VICE CHAIR KANE: She makes reference to… CHAIR BADAME: The close proximity… LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VICE CHAIR KANE: “But as many of us know, parking is a big issue. Old Town already blocks the underground parking lots until 10:00am on a daily basis, so these lots are not available to employees, shoppers and others.” I know you’re not her, and I don't know if she’s present or not, but what does she mean, “Old Town already blocks the underground parking lots”? Do you have any idea? JOEL PAULSON: Getting back to Commissioner O'Donnell’s previous comment or question, which was do they close down the underground parking at some certain time, it sounds like they must close it at some certain time and then they don’t reopen until 10:00am; it’s their private parking lot. So the underground parking garage doesn’t open until 10:00am, is what Ms. Matulich is saying. VICE CHAIR KANE: Who blocks it? JOEL PAULSON: The property owner. VICE CHAIR KANE: They can do that? JOEL PAULSON: It’s their property. CHAIR BADAME: It’s their property. VICE CHAIR KANE: You should look into that. It doesn’t make any sense at all. CHAIR BADAME: I have a question for Staff. The Staff Report, page 3, the prior denial for entertainment was based on the Applicant’s inability to compromise, and LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you say to refer to Exhibit 4. I’m used to Council and Planning Commissioners making findings, not let’s make a deal and let’s negotiate. They obviously had to have made some findings at that time that had to do with the Conditional Use Permit findings, would that be correct? And those same findings would probably apply today? JOCELYN PUGA: That language was taken from the resolution directly, page 2 of Exhibit 4. We don’t have the minutes for that Town Council meeting to understand what that conversation or how that came about; we just have the Staff Report and the resolution, which Staff reviewed and researched to include that in the Staff Report. CHAIR BADAME: So then would it be reasonable to conclude that the Council in 2005 made specific findings to deny based on Section 29-20-190 of the Town Code? JOEL PAULSON: We would hope that they made specific findings; I can’t confirm that. What we can do if this moves forward to the Town Council is we can go through the Clerk’s files and get their probably at that time action minutes and see if there is any further clarification as to the action that was taken back then. CHAIR BADAME: A couple of other questions real quick. Page 4 of the Staff Report refers to Exhibit 11 for Entertainment Policy. Should this have been Exhibit 10? LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JOCELYN PUGA: I’m sorry, where were you referencing? CHAIR BADAME: Page 4 of the Staff Report refers to Exhibit 11 for Entertainment Policy. Should this have been Exhibit 10? JOEL PAULSON: Yes. CHAIR BADAME: A couple of other things. If the CUP modification is granted and you have the two new dining areas described for private events, could they essentially be D.J. and dancing on a nightly basis if we approve the application as is? JOCELYN PUGA: Yes, the Entertainment Policy permits that as a use of entertainment. ROBERT SCHULTZ: Before 10:00pm. After 10:00pm they would need an Entertainment Permit to allow for a D.J. after 10:00pm. CHAIR BADAME: A couple more questions, if the Commissioners don’t mind. Should the CUP be granted and noise complaints follow, can you walk me through the process of regulation and enforcement? ROBERT SCHULTZ: Our Noise Ordinance specifically states that the first time there is a noise violation a warning is given, and then the second time is a fine of $100. It goes up to $250, then to $500, and then to $1,000. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Probably at some point in time during that period though, if there were repeated violations, there would be discussions with the homeowner. Our Code Enforcement Policy talks about voluntary compliance and working with homeowners and businesses, so we’d probably work out a solution to that to make certain that they were not violating our Noise Ordinance, and you’d be able to do that by knowing what that level is. Our Entertainment Policy discusses requiring, if there is this type of thing, of actually having them obtain equipment so that they can monitor it themselves and know exactly what that level is, if in fact that situation occurred. CHAIR BADAME: What would happen if the Town got a complaint, and it’s loud, and maybe a dispatcher can even hear it in the background, and when the Code Enforcement officer goes out, all of a sudden the music gets turned down. Do you take the word for it? What’s the documentation? ROBERT SCHULTZ: The best would be having sound meter readings, but we could also write a citation just based on if it was that loud and the dispatcher could hear it from City Hall all the way—in this example—from Wine Cellar, we could base that on the ability that it had to be over the dB level. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAIR BADAME: I would say the dispatcher over the phone, not necessarily from City Hall. Further questions from Commissioners? Vice Chair Kane. VICE CHAIR KANE: I’m guessing in part it may not be relevant, but the request we have here is as a result perhaps of the new Entertainment Policy? JOEL PAULSON: I’ll provide a little clarification. The request we have here is to expand the restaurant, add 60 seats, and modify the allocation of their distribution of those seats. Because the Late Night Entertainment Policy was adopted Staff recommended that they ask for that. They may be more than happy to either stick with what they have from an entertainment perspective, or be restricted to just indoor. Those are things that you can work through with the Applicant, but they had not originally requested a modification to the entertainment condition. VICE CHAIR KANE: The reason I asked is should we anticipate more applications consistent with the pro- economic vitality expressed clearly in the new Entertainment Policy, and if we should, then we should be real careful on the recommendation we give on this application. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JOEL PAULSON: That’s clearly possible, and to go back to the previous question about California Café, they do not have a condition that restricts entertainment, so they can use the Entertainment Policy that currently exists and they do not have to come back for modification, so that is possible. I don’t believe we have any other current ones that I can recall in the pipeline, but I would imagine that it would be limited to that list of CUPs that specifically have conditions relating to entertainment. VICE CHAIR KANE: And remind me, none of those currently provide for amplified music; they’re mostly acoustical. They’re all acoustical or other, but none of them are amplified right now. JOEL PAULSON: I’m not sure that’s accurate. We’d have to take a look. VICE CHAIR KANE: I can’t think of a place where we’ve got amplified music outside. JOEL PAULSON: Outside? That may be a different conversation. VICE CHAIR KANE: (Inaudible). JOEL PAULSON: Yeah, that could very well be. VICE CHAIR KANE: My last is Commissioner O'Donnell mentioned we had a somewhat similar case recently as we had a whole lot of concern from the neighborhood. On LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this item, other than Linda’s famous letter, have we received any letters of protest from the community? JOCELYN PUGA: That’s the only public comment we received on the application. VICE CHAIR KANE: And hers isn’t even negative, it’s I’m not sure about this, but I sure hope you enforce the Noise Policy, et cetera, but we have nothing from anybody saving please don’t do this? JOCELYN PUGA: No, we have no other public comments. VICE CHAIR KANE: Thank you. CHAIR BADAME: Commissioner O'Donnell. COMMISSIONER O'DONNELL: Just so I understand the impact of the new ordinance, as you said, there are three possible situations, but lumping the first two together, for example, at Old Town the new restaurant for where California Café is, under just the ordinance they wouldn’t have to do anything, they could have amplified or acoustical music outside up till 10:00, is that right? JOEL PAULSON: Correct. COMMISSIONER O'DONNELL: So just by happenstance in a sense, the Applicant tonight has a use permit that says they can’t. JOEL PAULSON: Correct. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER O'DONNELL: I can imagine there will be a lot of unhappy people that happen to have a restriction versus people that never even thought of it and don’t have a restriction, so that’s the inconsistency that can exist? JOEL PAULSON: Correct. COMMISSIONER O'DONNELL: Okay, thank you. CHAIR BADAME: I would just like to point out, maybe you can clarify for me, I believe this is a Council policy rather than an actual ordinance, is that correct? JOEL PAULSON: That’s correct. CHAIR BADAME: So being that it’s a policy and not an ordinance, explain the difference if there were possibly to be some amendments made to the policy. JOEL PAULSON: If there are amendments made to the policy, then applicants or property owners would have to abide by whatever has changed. CHAIR BADAME: But what would be the process for a policy amendment as opposed to an ordinance amendment? ROBERT SCHULTZ: An ordinance takes an introduction and second reading, and a policy can be changed at one meeting. CHAIR BADAME: Commissioner O'Donnell. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER O'DONNELL: I apologize, you may have asked this and unfortunately I was talking out of class, but what is the effect of a policy versus an ordinance? In other words, we’re aware of the policy. Does the policy nevertheless have a binding effect on the Planning Commission? ROBERT SCHULTZ: Yes. COMMISSIONER O'DONNELL: Okay, thank you. CHAIR BADAME: One last question, back to that regulation and enforcement, because I’m interested in that field for a number of reasons, where would one take the measurement if there were a noise complaint, from the property line? For example, at Old Town, where would you take that measurement? ROBERT SCHULTZ: From our Noise Ordinance it’s taken from the property line. In this case it would actually be taken probably from the tenant space, not from all the way out, it would be taken from the tenant space. That’s why it’s very difficult in this situation that would allow and meet our ordinance for entertainment outside. It would be very difficult, it would be a very low plane to make that dB; it’s not easy. For example, I’ll give you the differences. I know Toll House is in there. They have to comply with 61. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 You’re allowed 8 dBs over that, so that can go to 68 dB. Because we did a contract, Jazz in the Plazz allows for 98 dBs; 300’ from the park is where we measure, because we knew there were going to be exceedances. So they have 98 at 300’, whereas this business is going to have to comply with 68 dB right next to the microphone. COMMISSIONER O'DONNELL: Just for the record, I happen to live maybe 500’ or 1,000’, and when they have music on the lawn here, I don’t want to know what the dB is, but very loud, very loud. ROBERT SCHULTZ: We knew that it was incapable of meeting our Noise Ordinance, because it is very strict, so we wrote a contract to allow for it so you didn’t have a concern of being in violation of the Noise Ordinance. COMMISSIONER O'DONNELL: It is interesting. We now have a policy that is incapable of compliance. That’s really kind of neat. ROBERT SCHULTZ: I would say there are some that can. Palacio, which you could have farther back in the patio area, they’ve been having a little bit of jazz, and since it’s farther back a measurement there is very close to being allowed very low. COMMISSIONER O'DONNELL: You’ve heard the testimony, and I’ve heard them, on Palacio, not only the LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sound of the music but the language used, so this is a very interesting policy. CHAIR BADAME: Commissioner Hanssen, did you have your hand up? COMMISSIONER HANSSEN: I did. That was part of my question. I remember talk about Palacio in the last hearing, and then it came up again tonight. Is there any other restaurant that is currently doing outdoor music? Right now what we’re struggling with is not having a lot of feedback on that, and then once you make the change to the CUP its permanent. JOEL PAULSON: I’m not aware. Unfortunately, Monica Renn wasn’t able to be here this evening. I will throw in that when the Council initially adopted this policy they requested a review, and that review will be taking place next Tuesday at the Council meeting, just for the Planning Commission’s information. But other than Palacio, which I’ve heard of, I’m not sure. What I would say is that there are a number of restaurants, and it could even be just a regular retail establishment of a personal service business that could do outdoor entertainment up until 10:00pm, as long as they comply with the Noise Ordinance. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER HANSSEN: As far as we know, the only people that have complained is about the Palacio at this point in time? JOEL PAULSON: I’m not even sure that we’ve received complaints to either police or Code Enforcement. COMMISSIONER HANSSEN: Officials, yeah, okay. JOEL PAULSON: Correct. ROBERT SCHULTZ: There have been no complaints to Code Enforcement or to police. COMMISSIONER O'DONNELL: That’s true, but there was testimony at the Toll House by a person speaking against the Toll House citing that she lives apparently, or did live, near the Palacio. She testified one, as to the volume of noise, and two, as to the language used, which I understand was rap music, and unfortunately I suppose most of us are aware of some of the language of rap music, so that’s in the record, but you’re right, that was not a formal complaint. CHAIR BADAME: All right, any further discussion? Seeing none, the Applicants have been waiting patiently, so I will now open the public portion of the hearing and allow the Applicant and their team ten minutes to address the Commission. I have cards for Mark English, Steve Hauck, and Lisa Hauck-Alvarez as the applicants. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STEVE HAUCK: We’re not interested in doing outdoor music, so hopefully that helps you sit down a little easier over there. COMMISSIONER O'DONNELL: Thank you. STEVE HAUCK: You’re welcome. I’d just like to open by saying we appreciate the opportunity to present this formally to all of you tonight, and we really appreciate the great job that the Staff did putting this together. I’m sure it took a lot of work, so great job, thank you. I’m not sure exactly, but I think you all know what our business plan is. Many of you have eaten at our restaurant in the past, and hopefully you enjoyed it. If you didn’t, I’d like to hear about it. We would like to incorporate some adjacent spaces into our business to better accommodate a lot of the calls that we receive for banquets, corporate, private, and so forth. You kind of got me with all this discussion earlier. You woke me up a bit, so thank you for that. I’d just like to remind everybody that the center has lost two restaurants in the past that it reopened with after 1997 and the remodel, and that is the Borders café and Oakville Grocery, so those got swallowed up into retail, and I just wanted to remind you of that. I don't LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know if there is also a reverse ordinance that prevents restaurants to become retail, is there? No, okay. All right, just wanted to clarify that. Also, it seems that the intent—and correct me if I’m wrong—of the retail to restaurant—is it an ordinance, what is that?—was to prevent desirable street front retail from becoming a restaurant, so that would kind of change the character of the Town potentially, and I understand that and I can appreciate that, but I don’t think that’s the case here. I would also like to say I appreciate Steamer’s letter. I recognize that they are competition for us, but it seems we have a pretty amicable relationship. We also, I’m sure, have the same concerns about parking and so forth. It just is kind of ironic that they’re probably one of the first violators of the outdoor music… For years they played music right on the sidewalk blasting out, (inaudible) and so forth, but now they can’t because they don’t really have a space to accommodate it, so I appreciate that they’ve kind of changed their mind about that, because it’s a bit annoying to me as well. Lastly, with respect to the Sound Ordinance, it seems that the only people that really violate the outdoor LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sound ordinance is coming on City property, which is a bit ironic, but everybody enjoys themselves and has a good time, so I guess it works, right? As far as parking, what I’ve noticed over the last 15 years since we reopened is it’s a lot less congested than it used to be. Fifteen years ago I had to park at the baseball field to get to my store anywhere close to a weekend, and now you can pretty much park wherever you want, so I don't know if there’s a slow down, or if a lot of people are taking Uber, or where their business is coming from. In addition to that, as far as banquets and so forth, I see a lot of buses coming in—a lot of corporations have their own busing, and if they don’t they rent a tour bus—and they drop people off. I’ve seen it consistently going into the California Café when they were in business; hopefully that’s not why they went out of business. Then also with the invention of Uber and Lyft and so forth a lot of people are actually getting rides if they plan on going out for the evening and having a few drinks. They don’t want to drive home, especially if they’re local, so they just an Uber, get a ride to our place, enjoy themselves, and get a nice ride home. Do you have anything to add? LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 LISA HAUCK-ALVAREZ: Yeah, I actually just wrote it down; I’m just going to read it. I handle all the special events at the restaurant. I’m Lisa, Steve’s sister. I’m one of the owners of Wine Cellar as well. I handle all the special events, so I get requests constantly for private rooms; that they want to come to us to have a private room, not because they’re just looking for a private room in general. I feel like we haven’t been able to accommodate that except for within the restaurant space, which isn’t always nice for the other patrons that are coming, so we feel this addition would be an asset not only to the people of Los Gatos, but also to promote Los Gatos to people outside of the Town, because when you have a banquet like that maybe the people that booked the banquet are familiar with the restaurant, but not often their guests. They have never been to the restaurant or to the Town of Los Gatos, so it’s also bringing business into the Town. CHAIR BADAME: You still have time remaining. Mr. English? MARK ENGLISH: Mark English, architect. We don’t have much architecture to talk about yet, but I did want to characterize the spaces in the back that we are looking to convert. Dining space 3 is really a half-level submerged in LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 relation to the street and the homes across the street, and dining room 2 is completely surrounded by crawl space and mechanical space, so those are spaces that a retail outlet would never be able to use. As a best and highest use it would always be storage, or this much better use. Thank you. CHAIR BADAME: Thank you for the clarification. Commissioner O'Donnell. COMMISSIONER O'DONNELL: I wanted to ask you a question about the parking. Do you know what time the underground parking across the street closes? LISA HAUCK-ALVAREZ: Yes, I do. 6:00am. COMMISSIONER O'DONNELL: It closes at 6:00am? So it’s really only closed from 6:00am till 10:00am? LISA HAUCK-ALVAREZ: Yes. COMMISSIONER O'DONNELL: Well, that puts that issue to rest. Thank you. CHAIR BADAME: Commissioner Hudes followed by Commissioner Hanssen. COMMISSIONER HUDES: Did you have a chance to review the letter from Linda Matulich? STEVE HAUCK: Yes, that’s the one I referred to as Steamer’s. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER HUDES: Right, okay, and because this came to us a bit late, I’m wondering if you had any specific comments to that letter? Because I don’t think there was time for you necessarily to respond to it. STEVE HAUCK: Well, I thought I kind of covered that earlier when I said that we have no intention of playing outdoor music, which was her primary concern. Parking, we all share. The landlord paid for that parking, the parking is being utilized by the existing spaces, and we’re just converting it to restaurant from its existing space, so that parking already basically has been or is already allocated to those additional spaces that we’re incorporating. COMMISSIONER HUDES: Okay, thank you. CHAIR BADAME: Commissioner Hanssen. COMMISSIONER HANSSEN: I wanted to ask you about community outreach. Given what you said about not doing the outdoor music, that would certainly take away a lot of the objection from the neighbors. But you are close to quite a number of residents, and any time you do an expansion you would think you would want to make sure that the people knew about it, and since it wasn’t part of the Town’s process to do that, could you comment if the neighbors are aware of your plans? LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STEVE HAUCK: Yeah, we’ve had a few neighbors come into the restaurant recently and say that they’re in full support of what we’re doing. I didn’t ask for a letter from them. I could have, but I haven’t heard anything negative thus far. I have spoken with the closest neighbor. I don't know his last name, but his first name is Dick; he has the corner property right there on Edelen Avenue and he seemed to be in favor of it as well. I walked him through the whole project, and he’s in the real estate business and he could appreciate it. Also, we know that the Mayor is on Edelen, so I’m sure she’ll have a few comments as well. COMMISSIONER HANSSEN: Okay, that’s fine. CHAIR BADAME: Commissioner O'Donnell. COMMISSIONER O'DONNELL: Question to Staff. I assume a notice went out as required by law, but what is it, 300’ or 500’? JOCELYN PUGA: Yes, we notice properties within 300’. COMMISSIONER O'DONNELL: So there was notice given within 300’. Thank you. CHAIR BADAME: I have a question for you, the Applicant. The basement dining area, will there be ingress LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and egress for the patrons to the rear parking lot, or to the exterior auditorium space? STEVE HAUCK: Yes. CHAIR BADAME: Yes? So if you have indoor music and you leave the doors open and people are going in and out to the parking lot, which is right next to the residential street, that could create a problem with the noise as well. STEVE HAUCK: Those would be used as emergency exits, so they could be used to enter mainly by staff or deliveries on the corner that’s adjacent to Edelen and Mullen, so that’s a corner kind of stairwell, emergency stairwell. We might use that as owners to enter or exit the space in the evening when we leave just to kind of mix things up in case we have a shady character hanging out there waiting for us. The entrance or exit that would face the amphitheater, I suppose, yeah, people could use if they had either a walker or wheelchair; they could use that ramp to get up or they could use the elevator that’s also in the common area, to access the front lobby. CHAIR BADAME: I would be concerned. You’ve got a restaurant, a bar, and music, which is kind of the combination that makes for a lively atmosphere, and if you LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have somebody that has too much to drink in that area, they might want to just stumble out that exit door, because rear parking lots are a little bit more private, and there you have the issue of hygiene with vomiting and urinating, et cetera, and that would concern me and the neighbors. STEVE HAUCK: That would concern me too, because I’d be the one having to clean it up. If they stumbled out the door then they would have to stumble up the stairs or up a ramp just to get anywhere close to Mullen Avenue. Those doors would probably be closed, used as an emergency exit. It was always encouraged by the Town for Old Town Center to be using that amphitheater for something rather than just a piece of concrete that sits back there. We may choose to do a wedding or something like that, an event, a dance recital, whatever, and incorporate that into our event room. I think that would be great for the community, and I don't know anything about vomiting. CHAIR BADAME: I’m just saying if somebody had too much to drink, and sometimes that happens at weddings; it’s very festive and sometimes people get out of control. Commissioner O'Donnell. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER O'DONNELL: I understand the relationship of your restaurant to the amphitheater. Did you have some legal right to that? LISA HAUCK-ALVAREZ: Common area. COMMISSIONER O'DONNELL: So it’s a common area for everybody in the center? STEVE HAUCK: We would have to go through the landlord to get permission to use it, but yes. COMMISSIONER O'DONNELL: Okay, because I almost have never seen it used. STEVE HAUCK: That’s right. COMMISSIONER O'DONNELL: I was just curious. STEVE HAUCK: So this could be a good opportunity to actually utilize something. COMMISSIONER O'DONNELL: The general use permit then would cover that particular piece of property? JOEL PAULSON: Correct. COMMISSIONER O'DONNELL: Okay, thank you. CHAIR BADAME: Any further questions for the Applicant? Seeing none, thank you very much. All right, I have one speaker card, so I will be inviting Steve Chen for three minutes, and if you could announce your name and address when you step up to the podium. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STEVE CHEN: Good evening, my name is Steve Chen, I live at 118 Edelen Avenue; it’s within the 300’ of Wine Cellar, so I did get the card, which is part of the reason I am attending this session. My wife and I and our families eat at Wine Cellar a lot and we enjoy the food there and the restaurant a lot. We’ve lived at Edelen for 25 years, so we were part of that process when Old Town was struggling through that whole remodel, and we do need businesses for the community, so I know we need a balance, a tradeoff. You can’t have a vibrant town without vibrant businesses, and that’s why we live in downtown, so we need to make some reasonable tradeoffs; that’s the way I always feel about it. We live in downtown because we like to walk to dinner, and so that comes with certain tradeoffs. We fully support the application to expand. We think it’s a reasonable tradeoff. That space down there, if you’ve seen it, will never, never be retail, so there is no real compromise that you’re making on the space. I think since there’s no intent on the noise, that would be the only concern of the neighbors, but since there is already a process and rules in place, I don’t really see any problems. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I did chat with a couple of the neighbors, including Dick, and we just heard about the remodel, so part of the reason of coming was to see what it actually was, because we weren’t sure exactly how they were going to add 60 spaces, but at least the ones that I talked to supported the effort. CHAIR BADAME: Thank you. Questions? Seeing none, thank you. Next speaker card is Michael Straits. MICHAEL STRAITS: Hi, Commissioners, Michael Straits. I’m with Federal Realty Investment Trust. Just wanted to express the shopping center owner’s support for this application. That’s it. CHAIR BADAME: Any questions? Seeing none, thank you. All right, the Applicant is now invited back for five minutes to add any further comments regarding the application. STEVE HAUCK: I just want to reiterate that I appreciate being able to formalize this application in front of all of you, and again say thanks to the Staff for doing such a wonderful job preparing it. There’s a lot of detail in there and we appreciate all your care in putting it together. That’s it. CHAIR BADAME: Commissioner Hanssen. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER HANSSEN: I had a question for you relative to your comment that you made at the beginning of your original testimony. You weren’t interested in outdoor music, so would you have an objection if we put that as a Condition of Approval? We’re going to make a recommendation to Town Council. STEVE HAUCK: No objection to that whatsoever. Also, I can’t say that this is a direct quote, but I do remember having a conversation with the Mayor some years ago when we were first applying for some entertainment modifications, and she said, “You know what? I don’t care what you play down there. You’re in a basement. We’re never going to hear you, and if we do, we’ll let you know about it.” But that was the kind of thing, she said, “I don't care if you play rock music. I don’t care what’s going on down there. If we can’t hear it, who cares? You’re not breaking any laws.” So that was what I got from Mrs. Spector. CHAIR BADAME: Thank you. Any further questions? Seeing none, thank you very much. The public testimony portion of the hearing is now closed. Commissioner O'Donnell has a question for Staff. COMMISSIONER O'DONNELL: Two things. One, the policy of converting retail to restaurant use versus what LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we provide on page 6 of the report concerning the Redevelopment Plan, because that says this conversion is consistent with the Redevelopment Plan, because the restaurant is deemed to be a commercial use. I guess I just need a little guidance. Would you refresh my recollection on the question of conversion from retail to restaurant use? JOEL PAULSON: I think as the Town Attorney mentioned before, and was mentioned I believe during the testimony as well, the intent of that is to ensure that street frontage retail businesses aren’t pushed out by restaurants from a conversion perspective. I think you’ve heard testimony this evening, and Staff would not disagree, that this space is not a retail location, and I believe that it could be found that Ordinance 2021 in this particular instance does not apply, but if the Town Attorney has any additional information. ROBERT SCHULTZ: On top of that ordinance, 2021 wasn’t a complete prohibition; it just says it strongly discourages the transfer from retail to a restaurant. In this case I think there are findings that you can certainly make that it’s not in violation of the policy. CHAIR BADAME: All right, again, the public testimony portion of the hearing is closed, so I look to LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Commissioners for any further questions, comments, or a motion. Commissioner O'Donnell. COMMISSIONER O'DONNELL: I’ll make a motion, unless people have comments for questions. If they don’t, I will make a motion that we find that the proposed project is categorically exempt pursuant to Section 15301 of the California Environmental Quality Act as adopted by the Town, and we would make the required findings which are set forth in Exhibit 2, which are required by Section 29-20-190 of the Town Code for granting a Conditional Use Permit. We make the finding that the project is in conformance with the Planned Development Ordinance 2025, and we would make the required finding as required by Roman IV(b) of the Redevelopment Plan for the Central Los Gatos Redevelopment Project, that is meets the use set forth in the Town’s General Plan, we recommend approval of the Conditional Use Permit U-16-004 to the Town Council with the condition contained in Exhibit 3, in development plans in Exhibit 11 We would also note the response to my recent question of Staff, including the Town Attorney, on why this does not violate the policy of converting retail to restaurant, and in particular the Attorney’s comment that specific findings could be made, and I think in this case would be made, that even if the policy applied, which LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 apparently it doesn’t, this use appears to be something that should be done based on the facts we’ve listened to and our knowledge of the center. CHAIR BADAME: Vice Chair Kane. VICE CHAIR KANE: I’ll second that motion. Would the maker of the motion allow for line items, things that the Council should consider that we’ve learned tonight? COMMISSIONER O'DONNELL: Let me suggest this, and I’ll ask whether this would satisfy you. This would be sufficient to satisfy the Applicant, which I’d like to keep as simple as possible. If we would also like to ask the Town Council to address some other issues, I would suggest we follow up after this motion with that request. I don't know if that’s acceptable to you. VICE CHAIR KANE: No, it’s acceptable. Or we can submit the minutes. COMMISSIONER O'DONNELL: All right, so I would like to leave the motion, at least at the moment, as made. VICE CHAIR KANE: That’s good. CHAIR BADAME: Did we have a second? Vice Chair Kane. I have a question with regard to your motion. So you’re not putting a restriction on amplified music? COMMISSIONER O'DONNELL: That’s because I forgot. Good point. The motion should specifically say the LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Applicant is not asking for amplified music outside, and none is to be implied; therefore we are not granting the right to have amplified or acoustic sound outside. Thank you very much. CHAIR BADAME: Does the seconder approve of that as well? VICE CHAIR KANE: Yes, and the Applicant said there would be no music outside, correct? JOEL PAULSON: I could just offer that what Staff will do, if this is okay with the maker of the motion and the seconder, is Condition 7 as currently written would start with, “Indoor entertainment before 10:00 is permitted pursuant to the policy,” so outdoor would not be permitted. VICE CHAIR KANE: Good. CHAIR BADAME: Any further discussion? I would just make the comment that based on the testimony provided by the Applicant with the conversations that he had—you do have a very nice restaurant, by the way—that I would be supporting the motion. Commissioner Hanssen. COMMISSIONER HANSSEN: I just wanted to comment that especially now that they don’t want to have outdoor music, I support the application as well and I think it’s a good use for the space and good use for the Old Town Center. LOS GATOS PLANNING COMMISSION 9/28/2016 Item #5, 50 University Avenue, Suite 180 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAIR BADAME: All right, any further comments? Seeing none, I will call the question. All in favor? Passes unanimously. Mr. Paulson, are there appeal rights of the actions of the Commission on a recommendation that we are making to Town Council? JOEL PAULSON: There are not. Thank you. (END)