Draft Minutes 9-8-2009CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
CITY OF CUPERTINO PLANNING COMMISSION
DRAFT MINUTES
6:45 P.M. SEPTEMBER 8, 2009 TUESDAY
CUPERTINO COMMUNITY HALL
The regular Planning Commission meeting of September 8, 2009, was called to order at 6:45
p.m. in the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, California, by Chair
Lisa Giefer.
SALUTE TO THE FLAG
ROLL CALL
Commissioners present: Chairperson: Lisa Giefer
Vice Chairperson: Paul Brophy
Commissioner: David Kaneda
Commissioner: Winnie Lee
Commissioner: Marty Miller
Staff present: Community Development Director: Aarti Shrivastava
City Planner: Gary Chao
Senior Planner AICP: Colin Jung
APPROVAL OF MINUTES: None
WRITTEN COMMUNICATIONS: None
POSTPONEMENTS/REMOVAL FROM CALENDAR: None
ORAL COMMUNICATIONS: None
CONSENT CALENDAR: None
PUBLIC HEARING
1. M-2009-07 Modification to an existing Use Permit
Catherine Chen (U-2004-01) to amend the conditions to
(Cupertino Adobe LLC) allow commercial/office uses where only
20130 & 20132 Stevens retail had been allowed. Tentative City Council
Creek Boulevard. date: October 6, 2009
Colin Jung, Senior Planner, presented the staff report:
• Reviewed the application for a modification to the use permit to allow greater flexibility of
use of the commercial portion of the mixed-use development. The original application was
approved in March 2005 with the condition that limited the commercial spaces to retail uses
only. Currently, the applicant wishes to utilize the vacant space as an insurance office which
currently does not fall within the retail uses.
Cupertino Planning Commission 2 September 8, 2009
He reviewed the general commercial uses included in the General Commercial Zoning
Ordinance, which were outlined on Page 3 of the staff report.
Reviewed the Planning Commission's options which include:
• Approve the modification request and allow General Commercial (CG) uses with
limitations;
• Approve the modification request and allow General Commercial (CG) uses without
specific limitations; or
• Deny the modification request which would retain the requirement for 100% retail use.
Catherine Chen, Applicant:
• She reviewed prior modifications that were approved similar to her request. She requested
that the Planning Commission approve her request for 50% of the building to be used for
retail and 50% for commercial office use. She stated that it was difficult to lease out the
spaces to retail businesses only, particularly in the state of the present economy. She
answered questions about the insurance company office hours and parking requirements for
the tenants.
Chair Giefer opened the meeting for public input.
Vicky Tsai, business owner:
• Supports the application.
• Said that there are many building vacancies on Stevens Creek and she felt it was better to
have a mix of commercial and retail, rather than have vacant storefronts because of the
restriction for commercial use only.
Jody Hansen, Cupertino resident:
• Supports the application.
• Cited a example of a previous exception in 2002 which allowed a dental office to be located
in a space which was originally restricted to retail; stating that the dental office is still
located there and operating successfully.
• She said that Ms. Chen's insurance office would be an asset to the area on Stevens Creek as
it has been a successful business and it is difficult to find good tenants, especially in the
current economy.
Rudy Elbogen, Cupertino resident:
• Supports the application.
• Said she supported the space being used for commercial use as it is in an area where there is
residential and only one other retail store. It is a difficult space to lease out to retail since
there is not a big draw to the public. The insurance office is a stable business which will
occupy the space for a long period of time and be an asset to the community.
Chair Giefer closed the public hearing.
Com. Kaneda:
• Said that historically they tried to keep retail in these areas; is that still the feeling or are
there second thoughts about whether retail is appropriate in this area.
Colin Jung:
• Said they conducted research on use restrictions for many mixed use projects in the city
which are mostly small storefront, commercial spaces, some with parking in front. It
Cupertino Planning Commission
September 8, 2009
appeared that almost literally without exception, there were retail use restrictions on every
one except the Verona project at Stevens Creek and DeAnza, and called for uses that were
pedestrian oriented day and night uses which could be interpreted to mean retail as well.
Gary Chao:
• Said that they do place emphasis on retail, especially along Stevens Creek; more when it is
part of a shopping center.
• The Planning Commission and City Council recently has provided examples of flexibility
where you would place some percentage of a use on the building so that you can still have
and preserve that retail component which amacts the activities and provides the filler; and
they also considered the fact that the other spaces may be hard to rent out and allowed some
flexibility in economic situations like this.
Com. Kaneda:
• Asked staff if there was flexibility of allowing one time usage and reverting it back to retail
when the tenant moves out.
Aarti Shrivastava:
She said that the Commission could, but noted that the applicant is the owner of the
commercial space and would continue being the tenant until she sold the property. She said
staff continues to look at active pedestrian oriented uses as good things, but also look at
situations where it might be reasonable to provide some flexibility.
Gary Chao:
• One other consideration you would have to make is if you would provide some type of one
time use allowance. It becomes difficult to track sometimes; we cannot control the timing
and don't know when that is going to expire; it has to be somehow memorialized somewhere
so that we don't get in a situation that is going to get lost. You could put in a condition
where other uses that you may be concerned with would have to come back and have a use
permit or something similar, as an alternative.
Aarti Shrivastava:
• Said that uses could also be limited; restriction to commercial/office and not daycare or
tutorial centers.
Com. Lee:
• Asked staff to validate the number of parking spaces for retail. The applicant talks about the
number of parking spaces on the site. She said she found only 9; 6 on top and 3 on bottom.
Colin Jung:
• There are a total of 67 parking stalls for Adobe Terrace; 7 on surface, 60 underground. The
parking requirement is 46 for residential, 10 currently for commercial calculated at a retail
commercial rate, leaving an excess of 11 stalls now. He said he did not know whether Ms.
Chen had access to all of those 11, there may be something in her purchase agreement or the
CC&Rs that says she doesn't have access of all of those but that is what the project had built
in over and above what was needed by the uses of the property.
Cupertino Planning Commission 4 September 8, 2009
Ms. Chen:
• Said she had access to 7 on top for surface parking, and 9 underneath. She said she did not
anticipate any parking problems because people did not come all at the same time, and the
most she has seen at once was three.
Com. Miller:
• Said he had no further questions.
• Said he was sympathetic to Ms. Chen's comments; she presented examples of how the city
has been accommodating in the past, and in those particular situations where it is not a larger
center and is the stand alone small shops that have no synergy with other areas; it seems
appropriate to show flexibility and allow other than retail uses to go in there.
• He said he would much rather have filled space that is not retail than vacant space that
doesn't generate any income and looks bad in the city in general. It doesn't present a
favorable image when driving up and down the main streets to see a lot of vacant shops.
• He said he would support allowing the exception which is specifically what was granted the
facility on DeAnza; it seems the right thing to do in this case.
Chair Giefer:
• Said that another issue was how to memorialize those things; one of the issues brought up
was that when Ms. Chen purchased the specific building, the restriction was not readily
available to her, even though she did try to get that information. How should they
consistently memorialize these specific requirements; should it be done in a deed restriction
or how else can it be done.
Aarti Shrivastava:
• Said the City Attorney suggested a deed restriction as the most obvious venue; so if someone
were buying property, they would be able to go through their deed and see those restrictions.
Com. Kaneda:
• If all properties in the city have some kind of zoning on them, restrictions on what you can
and cannot do, is this unusual case or is this just a case where the owner just didn't know.
Aarti Shrivastava:
Said that most projects that have gone through the use permit process, do tend to have some
restrictive requirements, typically the mixed use projects which have a pedestrian oriented or
retail restriction. In looking at other projects too, sometimes neighbors who have issues
come to the meeting and express concerns, and uses are restricted.
Said the property restriction was not unusual to mixed use developments; but unusual in the
sense that if you looked at the base zoning you wouldn't have known, until you looked into
the project details.
Com. Miller:
• Said that after speaking with staff, his first response was a deed restriction; however, after
further reflection, he was not certain it was a good idea. It makes sense if they are certain
they are never going to want to change it for some unknown reason, and the obvious good
example is landscaping which is for screening for one neighbor vs. another or landscaping
for commercial. However, people are coming in for exceptions for these types of
applications and it is to some extent a function of the economy and also of what is changing
in Cupertino, and by putting it in the title, it makes it a lot more difficult to change and he
said he was hesitant to do it at this point.
Cupertino Planning Commission
September 8, 2009
Vice Chair Brophy:
• Said that once again, they are seeing another failed attempt of the city trying to force retail
uses onto sites that simply won't work, and hopefully it won't continue in the future. In the
meantime, they have to clean up the problem.
• He said he did not feel the issue was a result of a bad economy; the project has been open for
several years, during a good economy, just as Velagio and Metropolitan, so to say that this
site has a problem because of a cyclical issue just doesn't comport with the facts. He felt the
best way to deal with the existing ones that have to be cleaned up is to get the spaces filled
up and not do this anymore. He proposed Option 2, since they did not know what the future
of Max Muscle Shop was; it is only 2400 square feet that is in question, and he would rather
see the space reverted to allow General Commercial uses as well. Relative to the issue of
deed restriction, a potential solution is to put it in the deed restriction saying that this
property is zoned under a Planned Development Ordinance in the City of Cupertino and that
any purchaser should check with the city to find out what the restrictions are under the
Planned Development, rather than listing the specific restrictions.
Com. Kaneda:
• Said he was sympathetic to the city's attempt to get retail in, because he felt some of the
things that the city has tried to do are longer term and sometimes cause tension between what
is happening in the short term and what is happening in the longer term. Relative to this
particular site, he said he agreed with the other commissioners that the site is so landlocked
from other retail that it will be years before the building could have viable retail; and even in
a good economy, it would be a challenging place to keep retail going until the rest of the
neighborhood develops much further.
• Said he agreed with Vice Chair Brophy and Com. Miller.
Com. Kaneda and Com. Miller:
• Said they would support either 50/50 or General Commercial.
Chair Giefer:
• We agree that it is not correct as it is; and are open to options, which the applicant is as well.
Com. Lee:
• Said it is difficult for retail to do well if it is not in a corner location; the subject space is in
the middle of the street so it is more difficult; there is only one area of ingress/egress access
and it is a narrow space. She said on a site visit she spoke with the owner of Max Muscle,
and he said one of the reasons it could be difficult is because by the time you drive Stevens
Creek you already passed the entrance to the parking lot. It is a unique site because there are
23 condos in the back and sometimes people use some of the 7 surface parking spaces
dropping people off during the day; sometimes parking can be an issue.
• She said she did not feel it was detrimental to their long term vision goal to have part of this
location be non-retail; hence she was open to 50/50; would prefer it to be 51 % retail and
49% commercial. She expressed concern that if in the future Max Muscle doesn't do that
well, if they open it up to General Commercial then the space may become a 2500 square
foot child care facility or similar. She said she was okay with commercial/office which
would include real estate, travel agents and insurance, 49%.
Cupertino Planning Commission
September 8, 2009
Vice Chair Brophy:
• Said that relative to the 50/50 vs. 100% the reason he was arguing for 100% when even the
applicant isn't asking for that is his concern for what happens if and when Max Muscle
decides to relocate to another location. It is a very difficult site to find another retail and
should that happen, there is the likelihood of the applicant coming in saying the space has
been vacant for 5, 12, 24 months and can it be changed again. He said they should
recognize that this space should never have been built, should never have been limited to
retail space, being only 2400 feet with no connection to retail space on either side. He
recommended cleaning up the situation now.
Chair Giefer:
• Said that Vice Chair Brophy's comments expressed her opinion also. It is such a small
space; they need to provide flexibility; there needs to be a retail presence and have it tie in.
In another 10-15 years, retail may dominate and they may get that completely walkable
frontage they want along Stevens Creek but you have to have a certain amount of density
which the community does not support today. She was hopeful that Ms. Chen's business
grows and at some point she will need the space Max Muscle is in, and will be able to
expand. If the retail space needs more square footage and it makes sense for her to move out
because she can get more money for the square footage than the business she is generating,
either way she would rather give the owner flexibility on this space today to be more
efficient in the future and also retain the city's vision. She said she believed it would
happen, it is just a matter of when, and presently the market indicates that they want more
commercial uses.
• Said she supported allowing 100% commercial or retail and choosing Option 2; she
supported the language Vice Chair Brophy suggested to include as a deed restriction, not the
specifics, but just saying that there are deed restrictions and that they need to check with the
city on the specifics for that.
Com. Kaneda:
• Said he supported the language that would provide some type of warning that they need to
check something without actually putting the specifics into the deed restrictions.
• Clarified that they were suggesting a deed restriction but the wording is not "that you must
do" but will be to "check with the City on what the current requirement is."
Motion: Motion by Vice Chair Brophy, second by Com. Miller, to approve Application
M-2009-07, with the following modification: Page 1-5 language in bottom
paragraph, delete words "restrict a minimum of x% of the commercial building
space to only retail use, the remaining percentage or less of xx..." and replace
with "the City Council action letter pertaining to Application U-2004-01 is
hereby modified to allow that the commercial building space may be used for
General Commercial."
Chair Giefer presented a friendly amendment to Condition 2, add "a covenant
shall be recorded on the property that will notify potential owners of the
property that the property is in a Planned Development zone and the potential
property owner should check with the city on the allowed land uses"
Vice Chair Brophy and Com. Miller: Agreed to friendly amendment.
Vote: Motion carried 4-1, Coms. Miller, Brophy, Kaneda, and Chair Giefer
voted Yes; Com. Lee voted No.
Cupertino Planning Commission 7 September 8, 2009
Com. Lee stated her reason for voting no was that she wanted to leave half for retail use.
She expressed concern that the entire building might become a child care facility or
personal service establishment.
2. DIR-2009-20, EXC-2009-07 Director's Minor Modification to allow the
Gordon Bell installation of a personal wireless communications
(Cupertino Loc-n-Store, Inc.) facility consisting of 3 panel antennas and 3 microwave
10655 Mary Avenue dishes to be affixed to a proposed extension of an
existing PG&E lattice tower and a base equipment
cabinet. Height Exception to allow 3 panel antennas
to be mounted at a height of 149 feet and 3 microwave
dishes mounted at a height of 148 feet where 55 feet is
the maximum height allowed. Planning Commission
decision final unless appealed.
Colin Jung, Senior Planner, presented the staff report:
• Reviewed the application for Director's Minor Modification to allow construction of a
personal wireless service facility; 3 panel antennas, 3 microwave dishes mounted on a rack
affixed to an existing PG&E lattice tower, and a base equipment cabinet; and a request for a
149 foot Height Exception for the panel antennas and 148 feet for the microwave dishes, as
outlined in the staff report.
• The justification for the height exception request is they are asking for the heights because
the technology of this system is a broadband high speed Internet access service being started
up in the Bay Area and several other locations. The technology is being developed by
connecting all of their cell sites through microwave communications and not through land
lines; it is important for them to have the microwave antennas because the communications
are straight line of sight, that they be able to see over everything else. Every application
received on a preliminary basis has been on top of PG&E lattice towers or on very tall
buildings here in Cupertino, so they need the extra height to make sure all of their sites are
connected. PG&E is requesting that the applicant apply for 12 foot extensions rather than 6
foot extensions because they want to be able to accommodate co-locations of other antennas
on their towers without having to go up there and change it out when they get another
request or interrupt a service of the carrier in situations where they would need to ask for a
slightly taller extension. The referral was sent to the designated TIC commissioners, and one
who responded was supportive of the project. Notices will be sent to those property owners
within 1000 feet of the property.
• Staff's recommendation is to approve the Director's Minor Modification and the Height
Exception per the model resolutions.
Gordon Bell, Bell & Associates, Agent for Clearwater:
• Explained that the technology was different in that they are not using Tl lines for their
connections to their facilities; every site is connected and linked to other sites for
communications. Clearwire is in the process of launching 1,000 sites in the Bay Area and
Clearwater has been assigned about 100 sites in the Silicon Valley area; currently there are 8
vendors working in this area to bring the network up on line. The sites go all the way up
through San Francisco and to the North Bay Area at the present time. They are looking at
about 6 applications currently in the Cupertino area; each of the sites are actually linked to
one another by the lines of sight for the microwave dishes. He illustrated the location of the
other sites.
Cupertino Planning Commission
September 8, 2009
Said they are trying to promote a network that is self-reliant; planning for future growth by
having connectivity with a number of microwave dishes to each site which may eventually
link to other sites. Clearwire is a subsidiary or affiliate of Sprint/Nextel; they are opening up
4G technology, currently using 3G technology for cell phones and data transmission; 4G
allows faster transmission speeds for wireless services and voice. Their footprint follows
Sprint/Nextel footprint, in that they are trying to co-locate in every instance possible and co-
locate with Sprint/Nextel; they are able to share their equipment shelters, their cable runs,
mounting brackets and sometimes they have vacant spaces on their antenna rays.
Applicant answered Commissioners questions about coverage.
Chair Giefer opened the public hearing.
Appala Patnala, Cupertino resident:
• Opposed to the application.
Said he was concerned about the radiation associated with the radio waves emitting from the
dishes. He read a statement, stating that there is a growing number of scientific studies
linking cell phone cell towers to health related illness issues such as headaches, dizziness,
loss of memory, lack of concentration, sleep disorders and depression as well as cancer.
• Said that another concern was that all of the facilities' height were 55 feet whereas this
particular one would be 150 feet, three times the height of other wireless facilities. He said
on behalf of the homeowners of Casa DeAnza they were concerned about the radiation effect
not only for the wildlife living there but the seniors in the complex and also young children.
Chair Giefer closed the public hearing.
Chair Giefer:
• Asked staff to confirm what the Planning Commission can consider in their deliberations
about cellular antennas.
Colin Jung:
• Said that the Federal Telecommunications Act of 1996 states that if a facility meets the
federal safety guidelines for radio emissions, local agencies such as the City of Cupertino are
not permitted to regulate on the basis of its environmental effects.
Said that there was no RF report for this particular facility; staff felt one was not necessary
since they have approved at least 4 or 5 applications for cell sites at this particular area. He
pointed out that the facility was 3 times taller than most of the other facilities; it is 150 feet
tall, hence the radiation exposure itself is going to be 9 times less than what would normally
be expected. There is a copy of an RF report that Mr. Bell submitted on a different site
which will be reviewed by the Planning Commission and the RF report is for a similar
facility, same equipment, and that particular facility was measured at 50 feet and the ground
level exposure was .09% of the federal standard.
Com. Miller:
• Said the residents are concerned about health issues, but the subject tower is so far away and
so high up; staff pointed out that it is proportional to the inverse square, meaning falls off
very rapidly. The other ones discussed were within 150 feet; this is well over 400 feet away.
• He said he did not feel there were any health issues related to the proposed tower; it is
located by the highway away from residents.
Supports the application.
Cupertino Planning Commission 9 September 8, 2009
Vice Chair Brophy:
• From an aesthetic issue, even though they are talking about 149 feet for the tower, they are
talking about adding an additional 11 feet and it will not have a significant aesthetic effect,
especially in this location.
Com. Kaneda:
• Said he agreed with Coms. Brophy and Miller.
Com. Lee:
• Said it was the Commission's responsibility to ensure the location helps preserve the
aesthetics; they want to look at health; the RF levels are below, they are acceptable and they
want to provide telecommunications to the residents and locate the towers on existing
structures that are in non-residential areas, and this application does that.
• Supports the application.
Chair Giefer:
• Supports the application.
Motion: Motion by Com. Lee, second by Com. Miller and unanimously carried 5-0
to approve Application DIR-2009-20 and EXC-2009-07.
Final decision unless appealed within 14 calendar days.
3. DIR-2009-21, EXC-2009-08 Director's Minor Modification to allow the installation of
Gordon Bell (PG&E) a personal wireless communications facility consisting of
PG&E Substation at terminus 3 panel antennas and 3 microwave dishes mounted on an
of California Oak Way extension to an existing PG&E lattice tower. Project also
includes an equipment cabinet located at ground level
underneath the lattice tower to house base equipment. Height
Exception to allow 3 panel antennas to be mounted at a height
of about 158 feet and 3 microwave dishes mounted at a height
of about 157 feet on a PG&E lattice tower extension where 55
feet is the maximum height allowed. Planning Commission
decision final unless appealed.
Colin Jung presented the staff report:
• Said the application was similar to the previous one, but a different location, on a different
tower.
Reviewed the application as outlined in the attached staff report. Applicant is requesting a
height exception since they need the extra height to maintain their network connectivity of
sites which uses microwave communications, not land lines. The tower extensions will
contribute 4% to the tower height. He noted that the TIC Commissioners had no
comments on the application.
Staff recommends approval of the Director's Minor Modification and the Height
Exception per the model resolutions.
Gordon Bell, Applicant:
• Said that the original location was in a residential area and Clearwire opted for an area in
the non-residential zoning. He said it was an example of their attempt to make every effort
to locate the towers in non-residential areas where there may be visual impacts.
Cupertino Planning Commission 10 September 8, 2009
Com. Lee:
• The application is several hundred feet away from residents; they need to look at aesthetics
and aesthetically there is already a big lattice tower, so it would contribute minimally to
the height; the setbacks are exceeded.
• Supports the application.
Com. Kaneda:
• Similar to previous application; further away from residents.
• Supports the application.
Vice Chair Brophy:
• Supports the application:
Chair Giefer:
• Supports the application.
Com. Miller:
• Supports the application.
Motion: Motion by Com. Miller, second by Com. Kaneda, and unanimously
carried 5-0 to approve Application DIR-2009-21 and EXC-2009-08.
OLD BUSINESS: None
NEW BUSINESS: None
REPORT OF THE PLANNING COMMISSION:
Environmental Review Committee: No Meeting
HOUS1nE Commission: No meeting.
Monthly Meeting With Commissioners: No report.
Economic Development Committee: No meeting.
Chair Giefer:
• Asked the Commission if they wanted to agendize or have more formal discussions on
how to memorialize when there are specific conditions on mixed use properties; or is the
way it was handled this evening a good example to follow when moving forward.
Com. Kaneda:
• Said he supported Vice Chair Brophy's suggestion as it was a flexible way to put verbiage
into a place where at least the property owner has some type of heads up that there may be
some issues they should check on before they make their purchase.
Com. Miller:
• Agreed it was a good solution.
Cupertino Planning Commission 11 September 8, 2009
Chair Giefer:
• Suggested that staff go back, and consult the City Attorney, and if everyone is satisfied
with that, report to the Commission, to have an understanding of how to avoid any
confusion when moving forward.. The main issue is to make sure that whoever purchases
a commercial property on city PD areas, specifically understands they need to go in and
review whatever conditions might be associated with that property.
REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT:
Housing Element: Reported that they received a letter from HCD who had several questions
about the sites; staff is preparing a response letter; this is new and they are taking a hard line
on individual site selection to make sure they do support housing.
Lehigh Quarry Permit: Info for the public who are following the Lehigh Quarry permit for
renewal; the Bay Area Air Quality Management District is seeking input at Quinlan Center in
September; consult their website. Every five years the permit is renewed to ensure they remain
in compliance.
Adjournment: The meeting was adjourned to the next regular Planning Commission
meeting scheduled for September 22, 2009 at 6:45 p.m.
Respectfully Submitted:
Elizabeth Ellis, Recording Secretary