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Appeal of Conditional Use Permit for 33 E. Main StMEETING DATE: 4/21/14 ITEM NO: cos cAjus COUNCIL AGENDA REPORT DATE: APRIL 15, 2014 TO: MAYOR AND TOWN COUNCIL FROM: GREG LARSON, TOWN MANAGER SUBJECT: CONDITIONAL USE PERMIT APPLICATION U -13 -024 PROPERTY LOCATION: 33 E. MAIN STREET. PROPERTY OWNER: EAST MAIN INVESTMENT LLC. APPLICANT /APPELLANT SHAWN LUCCCA PROJECT PLANNER: MARNI MOSELEY. CONSIDER AN APPEAL OF A PLANNING COMMISSION DECISION DENYING APRROVAL OF A REQUEST TO OPPERATE A YOGURT SHOP (YOGURT IN LOVE) ON PROPERTY ZONED C- 2:LHP. APN: 529 -28 -036. RECOMMENDATION: After opening and closing the public hearing, it is recommended that the Town Council adopt a Resolution (Attachment 5) to deny the appeal and uphold the decision of the Planning Commission denying the subject application (motion required). ALTERNATIVES: Alternatively, the Council may: 1. Adopt a resolution granting the appeal (Attachment 6), make the required findings (Attachment 4) and approve the Conditional Use Permit subject to the Conditions in Attachment 7 (motion required); or 2. Continue the project to a date certain with specific direction (motion required) For Alternative 1 above, the Council must determine that the Planning Commission's decision should be reversed or modified and one or more of the following findings must be made: a. Where there was error or abuse of discretion on the part of the Planning Commission; or b. The new information that was submitted to the Council during the appeal process was not readily and reasonably available for submission to the Commission; or PREPARED BY: SANDY L. BAILY, fJZ) Director of Community Development �A f Reviewed by: Assistant Town Manager ?�� own Attorney Finance N:\DEV \TC REPORTS\2014 \33 E. Main- appeal.doe Reformatted: 5/30/02 PAGE 2 MAYOR AND TOWN COUNCIL SUBJECT: 33 E. Main St/U -13 -024 April 15, 2014 C. 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. If the predominant reason for modifying or reversing the decision of the Planning Commission is new information as defined in Subsection (b) above, it is the Town's policy that the application be returned to the Commission for review in light of the new information unless the new information has a minimal effect on the application. BACKGROUND: On February 26, 2014, the Planning Commission considered a Conditional Use Permit (CUP) application to operate a self -serve yogurt shop at 33 E. Main Street. The tenant suite has been occupied by several retail and specialty retail uses, the last being Fromage specializing in cheese and deli items. The space, prior to the earthquake, was occupied by Dolce Spazio who relocated to their current location on N. Santa Cruz Avenue after the E. Main Street building was damaged in the earthquake. The Planning Commission denied the application based on Ordinance 2021. DISCUSSION: A. Proiect Summary The applicant is requesting approval to operate a self -serve yogurt shop with indoor seating. Town Policy considers this to be a restaurant, since the business includes seating and does not offer only pre - packaged food items. A CUP is required for operation of the proposed business. The applicant is proposing to operate from 10 a.m. to 10 p.m. daily with the exception of Fridays when they are proposing to remain open until I 1 p.m. B. Planning Commission On February 26, 2014, the Planning Commission considered the application (Attachment 2). The Commission discussed the merit of the application, but was unable to make the required findings to approve the CUP based on language within Ordinance 2021 discouraging the loss of retail spaces in the C- 2:LHP. The Commission denied the application (5 -0, two members recused). C. Anneal An appeal of the Planning Commission decision was received on March 7, 2014 (Attachment 3). The basis of the appeal is that the Planning Commission did not have the discretion to deviate from Ordinance 2021 and approve the requested application. The applicant provides further justification for the appeal in Attachment 8. PAGE MAYOR AND TOWN COUNCIL SUBJECT: 33 E. Main St/U -13 -024 April 15, 2014 STAFF REMARKS: The Planning Commission denied the application based on language within Ordinance 2021 regarding conversion of retail spaces in the C -2:LHP to a restaurant use. While the application would be displacing a potential retail user, the space was previously occupied by a similar use, and the proposed improvements would not restrict a retail user from easily occupying the space in the future (Attachment 8). As always, the Council should consider carefully the potential impact of the conversion of this space in the downtown. When reviewing a Conditional Use Permit (CUP), the deciding and recommending bodies should consider the information in the applicant's business plan; however, the key consideration should be the explicit proposed use since the business plan can change from owner to owner. The explicit use may be, and is often, defined in the recommended conditions of approval as a "use" condition. The CUP runs with the land, and the deciding and recommending bodies should review applications based on the explicit use as opposed to the applicant or the applicant's business plan. In addition, if the Council finds merit with the application, the Council could amend Condition #3 (new wording is bolded) to limit the use as provided below and could also consider including the following review condition if necessary: APPROVED USE: The approved use is for a yogurt/dessert shop without commercial cooking facilities or equipment. REVIEW: The Planning Commission shall review the CUP one year from occupancy to determine if conditions need to be added or modified to reduce potential impacts. CONCLUSION: Given the circumstances of this application as discussed above, staff recommends the Town Council uphold the decision of the Planning Commission and deny the appeal. ENVIRONMENTAL ASSESSMENT: The project is Categorically Exempt according to Section 15061 of CEQA as adopted by the Town, which exempts permitting an activity where it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment. No significant effect on the environment will occur since the project uses an existing structure with no increase in floor area. PAGE MAYOR AND TOWN COUNCIL SUBJECT: 33 E. Main SVU -13 -024 April 15, 2014 FISCAL IMPACT: None. Attachments: Attachments provided to Council on March 28, 2014: 1. February 26, 2014 Report to the Planning Commission (with Exhibits 1— 5) 2. February 26, 2014 Planning Commission meeting verbatim minutes (23 transcribed pages) 3. Appeal Statement, received March 7, 2014 (one page) Attachments with this staff report: 4. Required Findings 5. Draft resolution denying the appeal and denying the Conditional Use Permit 6. Draft resolution granting the appeal and approving the Conditional Use Permit (includes Exhibit A) 7. Recommended Conditions of Approval 8. Applicant's letter of justification for appeal (one page) 9. Public Comments received through 12:00 p.m. Thursday, April 17, 2014 Distribution: cc: Shawn Lucca, 515 N. Santa Cruz Avenue #C, Los Gatos CA 95030 East Main Investments LLC, 43 E. Main Street Suite B, Los Gatos CA 95030 SLB:MM:ct TOWN OF LOS GATOS PLANNING COMMISSION STAFF REPORT Meeting Date: February 26, 2014 PREPARED BY: Marni F. Moseley, Associate Planner mmoseley(&Ios atQ osca.gov APPLICATION NO: Conditional Use Permit U -13 -024 ITEM NO: 3 LOCATION: 33 E. Main Street (Located on the north side of E. Mains Street east of Highway 17) APPLICANT: Shawn Lucca PROPERTY OWNER. East Main Investment LLC CONTACT PERSON: Shawn Lucca APPLICATION SUMMARY: Requesting approval to operate a restaurant a yogurt shop (Yogurt in Love) on property zoned C- 2:LHP. APN: 529 -28 -036 DEEMED COMPLETE: January 16, 2014 FINAL DATE TO TAKE ACTION: July 16, 2014 RECOMMENDATION: Denial PROJECT DATA: CEQA: General Plan Designation: Zoning Designation: Applicable Plans & Standards: Parcel Size: Surrounding Area: Central Business District C- 2:LHP, Central Business District, Landmark Historic Preservation Overlay None 12,197 Sq. Ft. Categorically Exempt pursuant to Section 15061 of the State Environmental Guidelines as adopted by the Town. ATTACHMENT I isting Land Used General Plan Zoningk/Museum - - - - -- High Density Residential RM- 12:20: F;Park/Museum LHP:PD mercial Central Business District C -2 merCentral ._.... -... - - Burin Business District C -2: C -2:LHP mercial Central Business District C -2 Categorically Exempt pursuant to Section 15061 of the State Environmental Guidelines as adopted by the Town. ATTACHMENT I Planning Commission Staff Report - Page 2 33 E. Main Street/ U -13 -024 February 26, 2014 FINDINGS: ■ As required by Section 15061 of the State Environmental Guidelines as adopted by the Town that this project is Categorically Exempt. • As required by Section 29.20.190 of the Town Code for granting a Conditional Use Permit. • The project is consistent with the Redevelopment Plan for the Central Los Gatos Redevelopment Project area. ACTION: The decision of the Planning Commission is final unless appealed within ten days. EXHIBITS: 1. Location Map 2. Required Findings (one page) 3. Draft Conditions of Approval (one page) 4. Letter of Justification (two pages), received January 16, 2014 5. Development plans (one page) received December 13, 1013 BACKGROUND: The subject site is located on the north side of E. Main Street approximately 250 feet east of Highway 17. The tenant suite has been occupied by several retail and specialty retail uses, the last being Fromage specializing in cheese and deli items. The space, prior to the earthquake, was occupied by Dolce Spazio who relocated to their current location on N. Santa Cruz Avenue after the E. Main Street building was damaged in the earthquake. PROJECT DESCRIPTION: A. Conditional Use Permit The applicant is requesting approval to operate a self -serve yogurt shop with indoor seating. Town Policy considers this to be a restaurant, since the business includes seating and does not offer only pre - packaged food items. A CUP is required for operation. The applicant is proposing to operate from 10 a.m. to 10 p.m. daily with the exception of Fridays when they are proposing to remain open until I 1 p.m. B. Location and Surrounding Nei> hborhood The site is located on the north side of E. Main Street approximately 250 feet east of Highway 17. The property is surrounded by commercial properties to the south, east and west, and the Forbes Mill Museum and parking lot to the north. C. Zoning Compliance The designated zoning for the property is C -2:LHP Central Business District with an Historic Overlay. The C -2 zone allows restaurant uses subject to the approval of a CUP. Planning Commission Staff Report - Page 3 33 E. Main Street/ U -13 -024 February 26, 2014 ANALYSIS: A. Restaurant Use in the Downtown Area In 1996, the Town Council adopted Ordinance 2021 that "intended to discourage the displacement of retail uses by restaurant uses by requiring the Planning Commission to conduct a careful review of all applications for new restaurant uses in the C -2 Zone through the public hearing process." While the application would be displacing a potential retail user, the space was previously occupied by a similar use, and the proposed improvements would not restrict a retail user from easily occupying the space in the future. The Commission should consider carefully the potential impact of the conversion of this space in the downtown. B. Traffic The previous use and the proposed use are categorized as specialty retail by the Institute of Traffic Engineers (ITE), therefore there are no traffic impacts associated with the proposed application. C. Parking The tenant suite has a gross leasable area of 1,092 sq. ft., which would permit a maximum of 14 seats. The applicant's plan currently shows only 12 seats because they miscalculated the parking for the tenant space, but the CUP would permit up to 14. D. General Plan The goals and policies of the 2020 General Plan applicable to this project include but are not limited to: • Policy LU -9.2 — Maintain a variety of commercial uses, including a strong Downtown commercial area combined with Los Gatos Boulevard and strong neighborhood commercial centers to meet the shopping needs of residents and to preserve the small - town atmosphere. • Policy LU -9.3 - Encourage a mix of retail and office uses in commercial areas, except in the Central Business District designation, where retail should be emphasized and office should be limited to upper floors and other areas as defined by the Town Code. • Goal LU -10 - To 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 vitality. • Policy CD -10.2 — Encourage outdoor seating for restaurants /coffee shops when the historic character and quality of the Downtown and adjacent neighborhoods can be maintained. Planning Commission Staff Report - Page 4 33 E. Main Street/ U -13 -024 February 26, 2014 E. Environmental Review The project is Categorically Exempt according to Section 15061 of CEQA as adopted by the Town, which exempts permitting an activity where it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment. No significant effect on the environment will occur since the project uses an existing structure with no increase in floor area. F. Redevelopment Plan for the Central Los Gatos Redevelopment Project Area The Redevelopment Plan contains a Redevelopment Land Use Map that designates proposed land uses to be permitted in the Central Los Gatos Redevelopment Project Area. The subject property is designated commercial and, per the Redevelopment Plan, shall be used for the general commercial uses set forth and described in the Town's General Plan. The proposed use falls under general commercial uses. G. CUP Findings In order to grant approval of a Conditional Use Permit, the hearing body must make the following findings: (1) The proposed use of the property is essential or desirable to the public convenience or welfare; and (2) The proposed use will not impair the integrity and character of the zone; and (3) The proposed use would not be detrimental to public health, safety or general welfare; and (4) The proposed use of the property is in harmony with the various elements or objectives of the General Plan and the purposes of the Town Code. The proposed use is desirable to the public convenience and welfare in that it provides a use that is not currently available in the immediate vicinity, but may not be desirable in that it displaces a potential retail use. The proposed use could impair the integrity of the zone in that the C -2 (Central Business District) zone should emphasize retail uses. The proposed use will not impact public health, safety or general welfare. The use may not comply with the objectives of the General Plan and Town Code as discussed within this report. If the Planning Commission finds merit with the proposal and chooses to chooses to approve the application, the required findings would have to be made to support the application. H. Public Comments At this time, the Town has not received any public comment. Planning Commission Staff Report - Page 5 33 E. Main Street/ U -13 -024 February 26, 2014 CONCLUSION AND RECOMMENDATION: A. Conclusion The proposed application complies with Town Code, and does not have an impact on parking, traffic, or have late night hours. It would introduce a use that does not currently exist in the vicinity. But according to the adopted Ordinance by the Town Council, the proposed use would displace a potential retail tenant and its impact on the downtown should be strongly considered. B. Recommendation Staff recommends denial of the project because it conflicts with Ordinance 2021. If the deciding body concurs with staff s recommendation, it should deny the application. If the deciding body finds merit with the proposed project and that it is in compliance with Ordinance 2021, it should: 1. Find that the proposed project is categorically exempt, pursuant to Section 15061 of the California Environmental Quality Act as adopted by the Town (Exhibit 2); and 2. Make the required findings as required by Section 29.20.190 of the Town Code for granting approval of a Conditional Use Permit (Exhibit 2); and 3. Make the required finding as required by Section IV.B of the Redevelopment Plan for the Central Los Gatos Redevelopment Project that it meets the uses set forth in the Town's General Plan (Exhibit 2); and 5. Approve Conditional Use Permit application U -13 -024 subject to the conditions contained in Exhibit 3. It should be noted that the Commission must expand the findings noted in Exhibit 2 if the Commission approves the application. Alternatively, the Commission can approve the application with additional and/or modified conditions of approval. Prepared by: Mari F. Moseley, AICP Associate Planner " 1Ml pproved by: Sandy L. Baily Director of Community Development cc: Shawn Lucca, 515 N. Santa Cruz Avenue #C, Los Gatos CA 95030 East Main Investments LLC, 43 E. Main Street Suite B, Los Gatos CA 95030 N:\DEV\PC REPORTS @014\33 E. Main.doc This Page Intentionally Left Blank 33 E. lain Street EXHIBIT ®fAttachment This Page Intentionally Left Blank REQUIRED FINDINGS FOR: 33 E. Main Street Conditional Use Permit Application U -13 -024 Requesting approval to operate a yogurt shop (Yogurt in Love) on property zoned C- 2:LHP. APN 529 -28 -036. PROPERTY OWNER: East Main Investment, LLC APPLICANT: Shawn Lucca FINDINGS Required finding for CEQA: ■ The project is Categorically Exempt pursuant to Section 15061 of CEQA as adopted by the Town, which exempts permitting an activity where it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment. No significant effect on the environment will occur since the project uses an existing structure with no increase in floor area. Required findings for a Conditional Use Permit: ® As required by Section 29.20.190 of the Town Code for granting a Conditional Use Permit: 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 the Town Code if it finds that: (1) The proposed use of the property is essential or desirable to the public convenience or welfare; and (2) The proposed use will not impair the integrity and character of the zone; and (3) The proposed use would not be detrimental to public health, safety, or general welfare; and (4) The proposed use of the property is in harmony with the various elements or objectives of the General Plan and the purposes of the Town Code. Required finding for the Redevelopment Plan for the Central Los Gatos Redevelopment Project Area: e That the proposed project is consistent with the Redevelopment Plan for the Central Los Gatos Redevelopment Project Area (Section IV.B) in that the subject property is designated commercial and the proposed use falls under general commercial uses. NADEVONDINGS\2014\33 E. Maiadocz EXHIBIT 2 This Page Intentionally Left Blank DRAFT CONDITIONS OF APPROVAL: 33 E. Main Street Conditional Use Permit Application U -13 -024 Requesting approval to operate a yogurt shop (Yogurt in Love) on property zoned C- 2:LHP. APN 529 -28 -036. PROPERTY OWNER: East Main Investment, LLC APPLICANT: Shawn Lucca TO THE SATISFACTION OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: Planning Division 1. APPROVAL: This application shall be completed in accordance with all of the conditions of approval listed below, in substantial compliance with the approved plans. Any changes or modifications made to the approved plans shall be approved by the Director of Community Development, the Development Review Committee, the Planning Commission, or the Town Council 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. APPROVED USE: The approved use is for a yogurt/dessert shop. 4. FORMULA RESTAURANT RESTRICTION: If the Town adopts an ordinance or a resolution in the future which regulates formula restaurants, this CUP shall be subject to that ordinance or resolution. 5. SEATS: The maximum number of seats shall not exceed 14. 6. HOURS OF OPERATION: Maximum hours of operation 10 a.m. to 10 p.m. Saturday thru Thursday and 10 a.m. to 11 p.m. on Fridays. 7. ENTERTAINMENT: Live entertainment is not allowed. 8. TAKE -OUT CONTAINERS: Any take -out food shall be served in recyclable containers. 9. SIGN PERMIT: A Sign Permit from the Los Gatos Community Development Department must be obtained prior to any changes to existing signs or installation of new signs. 10. CERTIFICATE OF USE AND OCCUPANCY: A Certificate of Use and Occupancy from the Los Gatos Community Development Department must be obtained prior to commencement of use. 11. BUSINESS LICENSE: A business license from the Town of Los Gatos Finance Department must be obtained prior to the commencement of any new or change of use. 12. DELIVERIES: Deliveries shall occur at the rear of the building and be limited to the hours of 7 AM to 10 AM. 13. ENVIRONMENTAL HEALTH APPROVAL: The applicant shall submit plans to the County of Santa Clara Department of Environmental Health for review prior to commencement of use. The applicant shall provide a copy of the approval from the County of Santa Clara Department of Environmental Health prior to commencement of use and/or issuance of building permits. 14. TOWN INDEMNITY: Applicants are notified that Town Code Section 1.10.115 requires that any applicant who receives a permit or entitlement from the Town shall defend, indemnify, and hold harmless the Town and its officials in any action brought by a third party to overturn, set aside, or void the permit or entitlement. This requirement is a condition of approval of all such permits and entitlements whether or not expressly set forth in the approval, and may be secured to the satisfaction of the Town Attorney. N:\DEV \C0NDITNS\2014\33 E. Main.docx EXHIBIT 3 OfAttachffient 1 This Page Intentionally Left Blank Letter Of Justification, updated 01/08/2014 ll:G:1i 21 721Z, R)WN OF LOSS GATOE 33 E Main St. Los Gatos CA 95030 PLANNING Di A+ i "ICN' Lucca & Son, DBA Yogurt In Love submit the justification for a new restaurant serving healthy frozen desserts at 33 E Main St Los Gatos Ca. The previous tenant was retail serving/selling specialized cheese and deli items. The prior retail businesses have not survived in this location for the last 13 years. In 1980, before the Loma Prieta earthquake in 1989, Doice Spazio manufactured and served Italian ice cream and coffee at this location. Because of the demand they moved the manufacturing to Campbell and because of damage to the building they were forced to move to their current location in Los Gatos. As the building is currently housed by 3 restaurants, Country Kitchen, Billy's Chowder House and Spinalos, Yogurt in Love would be the last space in this building for the same use. This will bring continuity to the building and neighborhood and preserving the history of the businesses in that location. Yogurt in Love will fill a need for a healthy, low cost family restaurant that will support other businesses in the neighborhood. Currently the only business on that side of Hwy 17 to serve frozen desserts is the 7 eleven on Main St across from the High School. Yogurt in Love feels that bringing a healthy alternative for the high school students will also be a great benefit to them. This business type is not in conflict with any other restaurant providers in the neighborhood. As a matter of fact, Yogurt in Love is a supportive business bringing more foot traffic to the businesses in the neighborhood while serving a product the surrounding restaurants do not provide. Yogurt in Love will be keeping the historic feel of the space with minimal changes to the structure, refinishing of the current brick walls and hardwood floors with a wall to house the yogurt machines for the public. The hours of operation will be similar to the other restaurants in the neighborhood and mostly a to go business. This will be a family owned and family run establishment with Patricia Lucca, Kayla Lucca providing the day to day management and 1, Shawn Lucca providing the supporting management of the overall business. With 2 churches, 2 hotels, 6+ restaurants, Los Gatos High and the Los Gatos - - -hiking trail - nearby, wefeel that our healthy, family friendly-restaurant will be a great supporter of the town of Los Gatos, its businesses and its residents. EXHIBIT 4 ®fAttaclhment I Seating and Parking allowances Actual square feet of the location is 968 Sqft Leasable square feet per the lease agreement is 1092 Sqft Parking Spots allowable, l per 300 sqft. Seats allowable, 4 per Parking Spot 1092/300 = 3.64 Parking Spaces (3 Actual Spaces) 3 Parking Spaces x 4 Seats =12 Total Allowable Seats in this location. 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Main St., Los Gatos CA 95030 1, the undersigned, do hereby appeal a decision of the Planning Commission as follows: (PLEASE TYPE OR PRINT NEATLY) L 14 DATE OF PLANNING COMMISSION DECISION: �it;, Lj . z—(.G ZiJ t4 VA � I ta .0 ?L<' PROJECT/ APPLICATION NO: �7 j —? j — ( j {f l o 0cr;t, ADDRESS LOCH "I "ION: - -- L* £� Pursuant to the Town Code, the'rown Council may only grant an appeal of a Planning Commission decision in most matters if the Council finds that one of three (3) reasons exist for granting the appeal by a vote of at least three (3) Council members. Therefore, please specify how one of those reasons exists in the appeal: The Planning Commission erred or abused its discretion because OR There is new information that was not reasonably available at the time of the Planning Commission decision, which is (please attach the new information if possible): OR 3. The Planning Commission did not have discretion to modify or address the following policy or issue that is vested in the Town Council:_ t [)12 1 Z \ IF MORE SPACE IS NEEDED, PLEASE ATTACH ADDITIONAL SHEETS. IMPORTANT: I. Appellant is responsible for fees for transcription of minutes. A $500.00 deposit is required at the time of filing. 2. Appeal must be filed within ten (I0) calendar days of Planning Commission Decision accompanied by the required filing tee. Deadline is 5:00 p.m. on the 10't' day following the decision.. if the le day is a Saturday, Sunday, or Town holiday, then it may be filed on the workday immediately following the 10 °i day, usually a Monday. 3. The Town Clerk will set the hearing within 56 days ofthe date ofthe Planning Commission Decision (Town Ordinance No. 196') d. An appeal regarding a Change of Zone application or a subdivision map only must be filed within the time limit specified in the Zoning or Subdivision Code, as applicable, which is different from other appeals. 5. Once filed, the appeal will be heard by the Town Council. 6. If the reason for granting an appeal is the receipt of new information, the application iltusually be P turned to the Planning Commission f reconsideration 1� a PRIN'l NAME: SIGNATURE: C� .W DATE: ADDRESS. PHONE: l - C J 'A ' I t „_t4-., *x QFFICIAL USE ONLY * ** DATE OF PUBLIC BEARING: Ck �i ;_I__ $ <�_Cy. IA r2I CONFIRMATION LETTER SENT: Date: Pending Planning Department Confirmation TO APPLICANT & APPELLANT BY: E TO SEND PUBLICATION: DATE OF PUBLICATION: ATTACHMENT 3 This Page Intentionally Left Blank REQUIRED FINDINGS FOR: 33 E. Main Street Conditional Use Permit Application U -13 -024 Requesting approval to operate a yogurt shop (Yogurt in Love) on property zoned C- 2:LHP. APN 529 -28 -036. PROPERTY OWNER: East Main Investment, LLC APPLICANT: Shawn Lucca FINDINGS Required finding for CEQA: ■ The project is Categorically Exempt pursuant to Section 15061 of CEQA as adopted by the Town, which exempts permitting an activity where it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment. No significant effect on the environment will occur since the project uses an existing structure with no increase in floor area. Required findings for a Conditional Use Permit: ■ As required by Section 29.20.190 of the Town Code for granting a Conditional Use Permit: 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 the Town Code if it finds that: (1) The proposed use of the property is essential or desirable to the public convenience or welfare; and (2) The proposed use will not impair the integrity and character of the zone; and (3) The proposed use would not be detrimental to public health, safety, or general welfare; and (4) The proposed use of the property is in harmony with the various elements or objectives of the General Plan and the purposes of the Town Code. Required finding for the Redevelopment Plan for the Central Los Gatos Redevelopment Project Area: ■ That the proposed project is consistent with the Redevelopment Plan for the Central Los Gatos Redevelopment Project Area (Section IV.B) in that the subject property is designated commercial and the proposed use falls under general commercial uses. N: \DEV \FINDINGS\2014\33 E. Main.dmx ATTACHMENT 4 This Page Intentionally Left Blank RESOLUTION 2014- RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DENYING AN APPEAL OF A PLANNING COMMISSION DECISION TO DENY A REQUEST FOR A CONDITIONAL USE PERMIT TO OPERATE A YOGURT SHOP (YOGURT IN LOVE) ON PROPERTY ZONED C -2:LHP APN: 529 -02 -044 CONDITIONAL USE PERMIT APPLICATION: U -13 -024 PROPERTY LOCATION: 33 E. MAIN STREET PROPERTY OWNER: EAST MAIN INVESTMENT LLC APPLICANT /APPELLANT: SHAWN LUCCA WHEREAS, this matter came before the Town Council for public hearing on April 21, 2014, and was regularly noticed in conformance with State and Town law; and WHEREAS, the applicant filed an appeal of a Planning Commission decision to deny a request for a Conditional Use Permit to operate a yogurt shop (Yogurt in Love) on property zoned C- 2:LHP; and WHEREAS, on February 26, 2014, the Planning Commission considered the request for approval of a Conditional Use Permit (CUP) to operate a yogurt shop (Yogurt in Love) on property zoned C- 2:LHP. The Commission denied the application; and WHEREAS, Town Code requires a CUP for restaurant uses; and WHEREAS, pursuant to Ordinance 2021, the proposed use would constitute a conversion of retail space to a restaurant use, which is strongly discouraged; and WHEREAS, pursuant to Town Code Section 29.10.190(a), the hearing body may grant a CUP if the proposed use of the property is essential or desirable to the public convenience or welfare; 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; and ATTACHMENT 5 WHEREAS, Council received testimony and documentary evidence from the applicant 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 for April 21, 2014, along with any and all subsequent reports and materials prepared concerning this application; and WHEREAS, Council finds as follows: 1. The Planning Commission had the discretion to address the CUP application request and did not err in its decision. 2. The proposed use of the property is not essential or desirable to the public convenience or welfare; and will impair the integrity and character of the zone; would be detrimental to public health, safety or general welfare; and is not in harmony with the various elements or objectives of the General Plan and the purposes of the Town Code. These findings are based on the evidence presented in the Council agenda for April 21, 2014, regarding this application. NOW, THEREFORE, BE IT RESOLVED THAT the appeal of a Planning Commission decision for CUP application U -13 -024 is denied. NOW, THEREFORE, BE IT RESOLVED, AND IT IS HEREBY RESOLVED, that 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, held on the 21 st day of April 2014, by the following vote. COUNCIL MEMBERS: AYES: NAYS: ABSENT: ABSTAIN: SIGNED: MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA N: \DEV\P,ES0S\2014\Dmy_33 E. MAIN (APPEAL).docx This Page Intentionally Left Blank RESOLUTION 2014- RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS GRANTING AN APPEAL OF A PLANNING COMMISSION DECISION DENYING A REQUEST FOR A CONDITIONAL USE PERMIT TO OPERATE A YOGURT SHOP (YOGURT IN LOVE) ON PROPERTY ZONED C -2:LHP APN: 529 -02 -044 CONDITIONAL USE PERMIT APPLICATION: U -13 -024 PROPERTY LOCATION: 33 E. MAIN STREET PROPERTY OWNER: EAST MAIN INVESTMENT LLC APPLICANT /APPELLANT: SHAWN LUCCA WHEREAS, this matter came before the Town Council for public hearing on April 21, 2014, and was regularly noticed in conformance with State and Town law; and WHEREAS, the applicant filed an appeal of a Planning Commission decision denying a request for a Conditional Use Permit to operate a yogurt shop (Yogurt in Love) on property zoned C- 2:LHP; and WHEREAS, on February 26, 2014, the Planning Commission considered the request for approval of a Conditional Use Permit (CUP) to operate a yogurt shop (Yogurt in Love) on property zoned C- 2:LHP. The Commission denied the application; and WHEREAS, Town Code requires a CUP for restaurant uses; and WHEREAS, pursuant to Ordinance 2021, the proposed use would constitute a conversion of retail space to a restaurant use, which is strongly discouraged; and WHEREAS, pursuant to Town Code Section 29.10.190(a), the hearing body may grant a CUP if the proposed use of the property is essential or desirable to the public convenience or welfare; 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; and ATTACHMENT 6 WHEREAS, Council received testimony and documentary evidence from the applicant 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 for April 21, 2014, along with any and all subsequent reports and materials prepared concerning this application; and WHEREAS, Council has determined that the decision of the Planning Commission was based on Ordinance 2021 which strongly discourages retail conversion to restaurant and that decision was not at the discretion of the Planning Commission to approve. WHEREAS, Council incorporates the findings for approval attached as Attachment 4 to the Council Agenda Report for April 21, 2014. NOW, THEREFORE, BE IT RESOLVED THAT the CUP application U -13 -024 for approval of the CUP is granted. BE IT FURTHER RESOLVED THAT the Conditions of Approval attached hereto as Exhibit A are hereby adopted as the Conditions of Approval for this permit. NOW, THEREFORE, IT IS HEREBY RESOLVED, 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, held on the 21" day of April 2014, by the following vote. COUNCIL MEMBERS: AYES: NAYS: ABSENT: ABSTAIN: SIGNED: MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA N: \DEV\RESOS\2014 \Approve 33 E. Main (APPEAL).docx This Page Intentionally Left Blank DRAFT CONDITIONS OF APPROVAL: 33 E. Main Street Conditional Use Permit Application U -13 -024 Requesting approval to operate a yogurt shop (Yogurt in Love) on property zoned C- 2:LHP. APN 529 -28 -036. PROPERTY OWNER: East Main Investment, LLC APPLICANT: Shawn Lucca TO THE SATISFACTION OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: Planning Division 1. APPROVAL: This application shall be completed in accordance with all of the conditions of approval listed below, in substantial compliance with the approved plans. Any changes or modifications made to the approved plans shall be approved by the Director of Community Development, the Development Review Committee, the Planning Commission, or the Town Council 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. APPROVED USE: The approved use is for a yogurt/dessert shop. 4. FORMULA RESTAURANT RESTRICTION: If the Town adopts an ordinance or a resolution in the future which regulates formula restaurants, this CUP shall be subject to that ordinance or resolution. 5. SEATS: The maximum number of seats shall not exceed 14. 6. HOURS OF OPERATION: Maximum hours of operation 10 a.m. to 10 p.m., Saturday through Thursday; and 10 a.m. to 11 p.m. on Fridays. 7. ENTERTAINMENT: Live entertainment is not allowed. 8. TAKE -OUT CONTAINERS: Any take -out food shall be served in recyclable containers. 9. SIGN PERMIT: A Sign Permit from the Los Gatos Community Development Department must be obtained prior to any changes to existing signs or installation of new signs. 10. CERTIFICATE OF USE AND OCCUPANCY: A Certificate of Use and Occupancy from the Los Gatos Community Development Department must be obtained prior to commencement of use. 11. BUSINESS LICENSE: A business license from the Town of Los Gatos Finance Department must be obtained prior to the commencement of any new or change of use. 12. DELIVERIES: Deliveries shall occur at the rear of the building and be limited to the hours of 7 AM to 10 AM. 13. ENVIRONMENTAL HEALTH APPROVAL: The applicant shall submit plans to the County of Santa Clara Department of Environmental Health for review prior to commencement of use. The applicant shall provide a copy of the approval from the County of Santa Clara Department of Environmental Health prior to commencement of use and/or issuance of building permits. 14. TOWN INDEMNITY: Applicants are notified that Town Code Section 1.10.115 requires that any applicant who receives a permit or entitlement from the Town shall defend, indemnify, and hold harmless the Town and its officials in any action brought by a third party to overturn, set aside, or void the permit or entitlement. This requirement is a condition of approval of all such permits and entitlements whether or not expressly set forth in the approval, and may be secured to the satisfaction of the Town Attorney. NADEV \C0NDITNS\20I4\33 E. Main.docx EXHIBIT A of Attachment 6 This Page Intentionally Left Blank DRAFT CONDITIONS OF APPROVAL: 33 E. Main Street Conditional Use Permit Application U -13 -024 Requesting approval to operate a yogurt shop (Yogurt in Love) on property zoned C- 2:LHP. APN 529 -28 -036. PROPERTY OWNER: East Main Investment, LLC APPLICANT: Shawn Lucca TO THE SATISFACTION OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: Planning Division 1. APPROVAL: This application shall be completed in accordance with all of the conditions of approval listed below, in substantial compliance with the approved plans. Any changes or modifications made to the approved plans shall be approved by the Director of Community Development, the Development Review Committee, the Planning Commission, or the Town Council 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. APPROVED USE: The approved use is for a yogurt/dessert shop. 4. FORMULA RESTAURANT RESTRICTION: If the Town adopts an ordinance or a resolution in the future which regulates formula restaurants, this CUP shall be subject to that ordinance or resolution. 5. SEATS: The maximum number of seats shall not exceed 14. 6. HOURS OF OPERATION: Maximum hours of operation 10 a.m. to 10 p.m., Saturday through Thursday; and 10 a.m. to 11 p.m. on Fridays. 7. ENTERTAINMENT: Live entertainment is not allowed. 8. TAKE -OUT CONTAINERS: Any take -out food shall be served in recyclable containers. 9. SIGN PERMIT: A Sign Permit from the Los Gatos Community Development Department must be obtained prior to any changes to existing signs or installation of new signs. 10. CERTIFICATE OF USE AND OCCUPANCY: A Certificate of Use and Occupancy from the Los Gatos Community Development Department must be obtained prior to commencement of use. 11. BUSINESS LICENSE: A business license from the Town of Los Gatos Finance Department must be obtained prior to the commencement of any new or change of use. 12. DELIVERIES: Deliveries shall occur at the rear of the building and be limited to the hours of 7 AM to 10 AM. 13, ENVIRONMENTAL HEALTH APPROVAL: The applicant shall submit plans to the County of Santa Clara Department of Environmental Health for review prior to commencement of use. The applicant shall provide a copy of the approval from the County of Santa Clara Department of Environmental Health prior to commencement of use and/or issuance of building permits. 14. TOWN INDEMNITY: Applicants are notified that Town Code Section 1.10.115 requires that any applicant who receives a permit or entitlement from the Town shall defend, indemnify, and hold harmless the Town and its officials in any action brought by a third party to overturn, set aside, or void the permit or entitlement. This requirement is a condition of approval of all such permits and entitlements whether or not expressly set forth in the approval, and may be secured to the satisfaction of the Town Attorney. NADEV \C0NDITNS\2014 \33 E. Main.docx ATTA N, 7 This Page Intentionally Left Blank Marni, Here are our points of argument. Yogurt in Love is not a true restaurant. We do not serve any food, we do not prepare any food and everything in our store is self- serve. We are not an ice cream shop, we do not have any workers that will prepare any food for the customers behind a counter. Our yogurt and toppings are prepackaged and made locally. We feel we are a specialty retail establishment like Powell's Sweets. They have open candies that you buy in bulk and the customer fills their bag to the size /weight amount they want. This is exactly how Yogurt in Love will deliver its product, grab a cup and fill it up and put it on the scale. Recent history of 33 E Main St has had it vacant for over 2 years. The last tennet was a specialty retail cheese deli. Formage sold prepacked items as well as cheese by the weight. They often prepared their products to fit a customer's needs or wants and they lasted just over 6 months. Previous to Formage, it was a photography studio that used the space for about 2 years. Other history is vague until you go back to 1980 -1989. Dolce Spazio used to be in this space 1980 -1989 manufacturing and serving its coffee and gelato. Business was so good they had to move its manufacturing to Campbell CA because of limited space and town ordinances that restricted their expansion in this space. The business thrived for over 9 years in this location and it was only because of the Loma Prieta earthquake did Dolce Spazio have to move. The Beckwith building was heavily damaged and it forced Dolce Spazio to move elsewhere in town. Converting from a specialty retail /restaurant back to retail would be very simple if the need we ever to arise. Because of our business model, there is very little construction that needs to be completed. There are no fire hoods and grills that need to be in place. A simple wall that is not load bearing will house the yogurt machines. The wall would be 8 feet high will not be built to the ceiling height of 14 feet. The machines are all self- contained and do not require anything other than electricity to run. All equipment is on caster wheels for ease of movement in and out of the location enabling conversion back to retail simply. We are offering a family owned and operated business that will be a supportive business to the town and its people. A family place where kids are welcome, where hikers from the trail can stop and have a healthy snack. We will be a business that is involved in the town and be a big booster to the Wildcats as we give the high schools kids a place to go after the games. Regards maws. ,('. " ATTACHMENT 8 This Page Intentionally Left Blank f From: noreplV @clyicplus.com [mailto:noreplVl7a ciyicplus.comi Sent: Thursday, April 03, 2014 7:25 AM To: Town Manager; Christina Gilmore Subject: Online Form Submittal: Customer Feedback Form The following form was submitted via your website: Customer Feedback Form Name:: Linda Daane Address:: 156 Highland Ave City:: LG State:: ca Zip:: 95030 Home Phone Number:: 408 - 354 -1201 Daytime Phone Number:: Email Address:: ildaane @comcast.net Please let us know how we are doing or what we can do for you!: I am writing to vote for the new yogurt shop in town on Main St. I think it would be a great addition to our town. My children and I would love it. I'm also glad that is family run. I think Los Gatos should incourage this type of business. Sincerely, Linda Daane cF RECEIVED From: Christina Enneking [mailto:cennekina @me.com) Sent: Friday, April 04, 2014 8:42 AM APR 0 4 2014 To: Council TOWN OF LOS GATOS Subject: Please support Yogurt in Love PLANNING DIVISION I was jogging by where Yogurt in Love is planned to go in downtown Los Gatos and could hardly believe that there permit was being denied /delayed. This is a fantastic business addition to our town, particularly in that part of town so close to the library, and owned by two kind - hearted and well - meaning women. Please support the go -ahead with this business in town, per schedule. We all could use a little extra love :) Kindly, Christina Enneking Town Resident, Small Business Owner and Consultant within the Silicon Valley RECEIVED From: Stephanie Radke [mailto:radkehome@icloud.com) APR 072014 Sent: Sunday, April 06, 2014 2:30 PM To: Council TOWN OF LOS GATOS Subject: Yogurt in love PLANNING DIVISION Hello, I support the new business Yogurt in Love in their drive to open at 33 E. Main St. Please grant them a license and allow them to move into the space. This town does not need yet another nail salon, hair salon, or upscale women's clothing boutique! Thanks, Stephanie Raney Radke 90 Cleland Ave. Los Gatos, CA 95030 (408) 354 -0210 RECEIVED From: Shirley Maxwell [mailto:shirlmax @verizon.netj APR 0 7 2014 Sent: Monday, April 07, 2014 6:50 AM To: Council TOWN LOS GATOS PLANNING DIVISION Subject: Yogurt Shop I'm having a hard time figuring out why the town of Los Gatos is against a Yogurt Shop being opened on Main Street. Its the perfect spot for several events in Los Gatos, plus high school kids just might have a frozen yogurt instead of the unhealthy foods being sold at 7 -11 across the street from the high school. If Los Gatos can have a gun shop, we certainly could have a second yogurt shop instead of another retail store. Thank you for listening. Shirley Maxwell From: Dolores Ridgely [mailto:mdridee505@gmail.com] Sent: Tuesday, April 08, 2014 9:29 AM To: Council Subject: Yogurt shop Yes, A yogurt shop would be an excellent fit on main street. It would fit in perfectly along the restaurant Row. I hope you can approve it. Sent from my iPad. Dolores Ridgely, High St. Los Gatos. RECEIVED APR 08 2014 TOWN OF LOS GATOS PLANNING DIVISION f� RECEIVED From: mitsuNdkomcast.net [mailto:mitsuNcDcomcast.net] APR 14 2014 Sent: Saturday, April 12, 2014 7:50 PM To: Council TOWN LOS �.. PLANNING G CIVI SO'+ Subject: yogurt shop We support the yogurt shop that wants to locate on East Main St. - it would be a nice addition to that section of businesses. - Evelyn & Iry Mitsunaga From: Laura Czinski [mailto:lczinskiPmac.comj APR 16 2014 Sent: Tuesday, April 15, 2014 6:22 PM TOWN OF LOS GATOS To: Council PLANNING DIVISION Subject: Love Yogurt The main st site that is a potential tenant for a yogurt shop would be a good addition to our town. I have lived here for 26 years and have seen a lot of vacancies in store - fronts. Rather than leaving the old Fromage site empty for numerous years, I think the yogurt shop would be great for high school students as well as families to walk to for a special treat. I remember before the earthquake when the Gelato store was near this site. It brought tourists to main st as well as locals. I look forward to the opening of the Theater next month and having a yogurt store along the way would make the walk an event! Please consider approval, Laura Czinski 26 Loma Alta Ave Los Gatos RECEIVED From: Kelly D. Conway [mailto:kellv@strikemarketing net APR 16 2014 Sent: Wednesday, April 16, 2014 12:07 PM To: Council TOWN OF LOS GATOS Subject: Main St. Yogurt shop PLANNING DIVISION Dear council members, While walking along Main St. recently I was drawn to the handmade posters placed in the windows in a building on Main St. that told the story of two people's plan to open a Yogurt store and the fact that their application had been denied because it was a space that was deemed by the city to be used for a retail business. The posters told a story of a seemingly well thought out plan to operate a business and feels like it could have the potential to be profitable and have some longevity in the site. That is certainly contrary to the success that small retail operators are experiencing over the past 15 years I have witnessed by having my business located in downtown. In nearly every block on Santa Cruz Ave and Main small retailers have gone out of business for a variety of reason but food and certainly establishments serving alcohol seem to thrive. As an aside 1 noticed yet another application to serve liquor posted in a space in the 300 block of Santa Cruz which even though it seems to be a wine oriented establishment is it really necessary to have another Rootstock... I'd appreciate the Council granting an exception to the parties who want to open the yogurt store because they do seem to have a real Love for Yogurt and Los Gatos and it should fit in nicely to what has become restaurant row on that side of Main St. Best regards, Kelly D. Conway General Manager Strike Marketina G ; .. :11 :: •: This email is to confirm my support for the two business women who have plans to open a frozen yogurt shop at 33 E. Main St., in Los Gatos. I moved to Los Gatos from Tucson, AZ, in 2012, so that I could be closer to my aging mother, who has lived in Los Gatos since the late 1970s. I did have my favorite self - serve frozen yogurt shop in my former neighborhood in Tucson, and have missed having a local self -serve frozen yogurt shop since I moved to Los Gatos. 1 rarely drive in the downtown area, since it is easier for me to walk there to complete errands for myself and my mom. I was thrilled to learn that these two business women had plans to open a yogurt shop along one of my frequently traveled routes. I do hope that some agreement can be reached so that these women can successfully open their business. 1 have a strong hunch that their product will be in high demand, especially as we head into summer. I know that I would be a regular customer, and so would the rest of my family and any friends who come to visit me. Thanks your consideration. Marlena Hood RECEIVED From: Marlena Hood [mailto:mrhonherlap@vahoo.com] Sent: Thursday, April 17, 2014 8:52 AM APR 17 2014 To: Council Subject: Would love some frozen yogurt TOWN OF LOS GATOS PLANNING DIVISION Honorable Council This email is to confirm my support for the two business women who have plans to open a frozen yogurt shop at 33 E. Main St., in Los Gatos. I moved to Los Gatos from Tucson, AZ, in 2012, so that I could be closer to my aging mother, who has lived in Los Gatos since the late 1970s. I did have my favorite self - serve frozen yogurt shop in my former neighborhood in Tucson, and have missed having a local self -serve frozen yogurt shop since I moved to Los Gatos. 1 rarely drive in the downtown area, since it is easier for me to walk there to complete errands for myself and my mom. I was thrilled to learn that these two business women had plans to open a yogurt shop along one of my frequently traveled routes. I do hope that some agreement can be reached so that these women can successfully open their business. 1 have a strong hunch that their product will be in high demand, especially as we head into summer. I know that I would be a regular customer, and so would the rest of my family and any friends who come to visit me. Thanks your consideration. Marlena Hood From: Mike Verga [mailto:mikevergaCcDyahoo.com] Sent: Wednesday, April 16, 2014 7:31 PM To: Council Subject: Let them eat yogurt!!!! Please allow a yogurt store to go in on Main street!! It is NOT another place selling alcohol ! I! Let them sell yogurt so we can EAT YOGURTI I I! Sent from my iPhone RECEIVED APR 17 2014 TOWN OF LOS GATOS PLANNING DIVISION