104-C. Draft PC Minutes 10-12-10.pdfCupertino Planning Commission
WrF T
2 October 12, 2010
CONSENT CALENDAR: None
PUBLIC HEARING:
1. M-2010-02 Modification to a Use Permit to allow entertainment
Alan Parsano (Modena establishments and live entertainment activities to extend
Investment, L P & the hours of operation for these uses to 2:00 a.m. at the
Sunnyvale Holding, LLC) Oaks Shopping Center. Postponed from the July13,2010
21255-21275 Stevens Creek Planning Commission meeting; Tentative City Council
Boulevard date: November 16, 2010
Colin Jung, Senior Planner, presented the staff report:
• Reviewed the application for modification to Use Permits to allow commercial entertainment
establishments and live entertainment activities, and to extend the hours of operation to 2:00
a.m. in the Oaks Shopping center, as outlined in the staff report.
• He noted that the request does not apply to the following uses: liquor stores, drinking
establishments as defined as an activity primarily devoted to the sale of alcoholic beverages for
the consumption on the premises as well as full service restaurants with separate bar facilities,
which remain as conditional uses at the center and elsewhere in the city.
• He reviewed the General Plan policies related to entertainment uses; because of its proximity
to DeAnza College, there was General Plan policy that relates to treating DeAnza as a valuable
community resource, and seek opportunities to integrate future activities into the community.
The other General Plan policy pertains to evening entertainment, 2-92, which states that while
it would discourage such activities from Stevens Creek Boulevard and DeAnza Boulevard,
there is allowance for allowing late evening activities in Downtown Village which is the
Crossroads Area, Vallco Park and also other large properties isolated from residential districts.
The property is considered one of the larger commercial properties in Cupertino.
• Public outreach meetings were held, no residents attended; outreach was also conducted by the
applicant with the existing shopping center tenants. Code Enforcement said that the activities
should be Iimited to indoors only; and they were concerned about the noise impact on adjacent
commercial tenants and would like to see the noise standards applied to at tenant wall. Fire
Department's only concerns were that each occupant met Building and Fire Codes; Sheriffs
office said that the center should adopt a security plan for the center and if there is an excessive
amount of Sheriff activity there, they fund additional Sheriff s services if needed.
• If merit is found with this proposal, staff is recommending a series of conditions relative to
noise requirements; hours of operation; concentration of uses limiting number of entertainment
establishments to four; address security concerns; lease disclosures for new and renewing
tenants; monitoring by way of an entertainment permit from the Director of Community
Development; compliance condition that after one year a use permit review be conducted
relative to the tenant use, and if any complaints received were not addressed, the applicant
would have to appear before the Planning Commission in a public hearing and the permit
would be reviewed and may be modified or revoked. To address enforcement concerns, the
property owner may have to pay for any additional Sheriff enforcement because of
documented incidents in the shopping center.
• Staff recommends consideration of the proposal.
Staff answered questions relative to concerns about noise, security plan and parking.
Shawn Tahere. Applicant:
• Said he agreed with staff s recommendations. He said his goal was to make the Oaks Center a
Cupertino Planning Commission 3 October 12, 2010
livelier center. They have been open for eight months and have had many bookings and not
experienced any problems. The city has given a one year period to see if any problems or
complaints occur which they will need to address.
• The Oaks is a unique center, with 8 acres of land, and they want to make sure they make the
best possible use of the property and not be a good neighbor to the community and nearby
residents.
• He said he was requesting a conditional use permit to allow live music and dancing in the Oaks
Event Center. There are 684 parking spaces in the center which is above 5 per 1000 square
feet and there is plenty of parking on the street. They have agreed with everything the planners
have recommended and are willing to work with the city to ensure a smooth operation.
Com. Miller:
• Said he supported the events center, but questioned what the other establishments would be in
the future as the application was for four establishments with entertainment.
Mr. Tahere:
• Said that the theater is one, Oaks Event Center is the second, at this time he did not know
which the third would be. He assured that there would not be a night club or any activity that
is just liquor related; no karaoke; but family gatherings, high end parties, weddings, and
private parties not open to the general public; no adult entertainment and no 21" birthday
parties. Events have been booked through March of 2011.
Chair Brophy opened the public hearing.
Joseph Derante, House Counsel for Modena:
• Referred to Section 5 of the model resolution wherein it states that the applicant is required to
have sound insulation to meet city ordinance standards which is 55 decibels to be enforced
against neighboring tenants. If it is not going to be offensive to the tenant, it cannot be
offensive to somebody who is 200 feet away.
• He said the security plan is extensive and as an attorney and house counsel he approved it.
Section 6 includes parking lot security, methods to ensure noise compliance, duration of
security after business closes for evening, prevention of onsite loitering and unruly behavior.
He said he was not aware of any establishment in the community that provides that type of
security; it will also require the approval of the Sheriffs office. It is a demanding condition
which the client accepts, which indicates his interest in maintaining a good relationship with
the neighborhood and community.
• There is a monitoring mechanism, under Sections 8 and 9 neighbors have the right to submit
complaints with a grievance procedure available to redress mechanism with the possible result
of having the client's permit revoked if the complaints have not been addressed and rectified.
It is a situation where it is self enforcement of the resolution because it is in the best interest of
the applicant to ensure that it works according to the permit.
Michael Pavlos, resident of Glenbrook Apts., Cupertino:
• Opposed to the application.
• Reviewed a recent news article about the promotion of a San Leandro events center party that
was promoted through social networking websites; the renter provided a false name and paid
cash for the room. Although there were security officers present at the event checking guests,
a firearm was allowed into the party, the result leading to four gunshot victims, with two
deaths. The article also mentioned a September 2009 event held at Cornerstone Fellowship
Church where hundreds of teens showed up and gunfire erupted. He expressed concern about
the promotion of parties rented out at the event center other locations in the Oaks, especially
Cupertino Planning Commission 4 October 12, 2010
when allowed to remain open until 2:00 a.m. He said he did not see the need for such events
as weddings to have extended hours until 2:00 a.m. as most of those events have children
attending; and most wedding venues go until only 11 p.m.
Said he was also concerned about the proposed modification use permit, and that the late night
activity and late night noise level will increase and negatively affect the community and its
surrounding residents.
Urged a No vote against allowing the modification to the Use Permit.
Paula Rind, Manager and resident of Glenbrook Apartments:
• Note a correction in staff report showing that Coldwell Banker has been vacant for a long time.
The uses in question do face the bedroom apartments which is not acceptable. The Coldwell
Banker site is about 50% glass.
• The parking stalls all face the apartment bedrooms, and tenants will be disturbed during the
night from people coming out of the gatherings. Questioned who the other two tenants will be
in the center and how a plan could be approved before knowing who the other two tenants are.
• She said it is not acceptable to have live music in the back area of the center, because of the
noise it will create in the residential area; it would be better placed in the front area on Stevens
Creek Boulevard.
Cam. Miller:
• Said he understood her concern, but had difficulty reconciling the fact that there had been 20
banquets there with no complaints received about the noise. He said he assumed there were
people parking on the street, and the applicant was allowed to remain open until 2:00 a.m., and
those events had dancing and alcohol served.
Paula Rind:
• Said that an additional concern was the lack of security at the center and the impact it would
have on the apartment dwellers. The apartment complex presently has its own security staff
who walk the grounds until 2:00 a.m. People who have been drinking at the center events will
be wandering around potentially disturbing the tenants of the complex. There is also the risk of
vandalism and break-ins on the apartment complex property.
Ted Hattan, Regional Property Manager, Avery Construction, owners of Glenbrook of
Apartments, also resident of t0244 Parkwood Drive:
• Opposed to the application.
• Said the noise from the event center and karaokc bars would be heard across the street at
Glenbrook. He said they can hear the high school marching band music from across Highway
280, and if they can hear that from 3/4 mile away, they would be able to hear the noise from an
event with 100 guests, dancing to live music or a bar with a live band across the street. The
acoustical numbers everyone talks about would apply if no doors are opened, but with people
Ieaving the building, talking outside, playing their car radios and revving their car engines at
2:00 a.m. common sense dictates that there would be disturbing noise.
• He said when he met with city staff and the applicant at the event center, the applicant said
they used the patio for events. Mr. Hattan said he did not know how they could contain the
noise from the patio, and if a band was put in the event center they would certainly hear it in
Sunnyvale or at the Glenbrook Apartments.
• He urged the Commission not to approve the application.
Aarti Shrivastava:
• Noted that no complaints have been received about the Oaks Center since the event center
opened eight months ago.
Cupertino Planning Commission 5 October 12, 2010
Sherry Hattan, Glenbrook Apartment resident:
• Opposed to the application.
• A concern other than those mentioned about the event center and the Oaks Center itself, is the
approach that has been taken to give reasons why it should be allowed. She said that after
reading the staff report, it appeared to her that staff has taken the view, that because they don't
live in a low density residential neighborhood, that their comfort and safety is not as important
as a person who owned the home they live in. The report implies that the proposed changes
are okay because the Oaks is isolated from low density residential neighbors; and it also quotes
the General Plan that allows for late evening entertainment activities in the downtown village,
Vallco Park and other large properties that are isolated from residential districts. She said that
517 homes constitute a residential district; and their comfort and safety should not be less
important because they do not own the homes they reside in.
• Asked that the application be denied.
Brian Avery, Managing Partner, Glenbrook Apartments:
• Said the back half of the center is 62 yards from the apartment complex, which is only a
softball throw away. He said there was a disconnect about the current use. During a tour of
the center with Ted Hattan and Planning Commission staff, the applicant said the events end at
11 p.m., followed by cleanup and everyone out of the premises by midnight. Colin Jung, Gary
Chao, and Ted Hattan heard it, so comparing that to live music until 2:00 a.m., he did not feel
they could rely on what the 20 events thus far have been.
• The applicant has said the main reason for the application relates to the events center; however,
this is not a singular application; it has been looked at as four uses, whereas originally it was
the entire center. He said he couldn't believe the application got this far.
• He said he spent $7,000 for a Salter Associates acoustical consultant; who will describe the
sound from the apartment bedrooms, how the dbas are far above what the code enforcement
officer said was the threshold, 55 dba, which the State of California says should be 50 dbas
because of the nature of music. A summary of the dba standards is submitted.
• He said the application should not be approved because there is opposition from the
neighborhood and the applicant may not be the owner of the property in the future. The center
could become a place that sucks in outsiders, increases the need for law enforcement and not
be a good thing for Cupertino. If the Planning Commission are looking for a compromise,
stipulate that the uses be facing Stevens Creek Boulevard vs. the apartment side.
• He said he represented the people who live on the bedroom side, the apartment residents.
Art Cohen, CEO/Owner, Blue Light Cinemas:
• Supports proposal.
• Said that when events are held at the Oaks Center, they do not hear anything in the theaters,
and the doors are open and shut continuously, and they are only 25-30 away from the event.
They do not hear any noise coming into the theater, nor do they hear any disturbing noise
inside the lobby.
• He said anything that brings in more people to the center will help the theater and the entire
community. He said he understood the concerns of the residents across the street; however,
the theater has been in business since November 10t` and if parking and car noise had been an
issue, they have received no complaints. He noted that on occasions, some of the movies do
not get out until 1:30 a.m., people get in their cars and leave the parking lot, and he has not
received any complaints about any noise: He said he was surprised that people would think
that 100 guests or 20 or 30 cars would be an issue.
• Said it would be good for the Oaks Center to have more entertainment, and more people
coming to the center.
Cupertino Planning Commission 6 October 12, 2010
Jennifer Griffin, Rancho Rinconada resident:
• Said it was encouraging to see that some activities were coming back to the Oaks Center as it
was an active center in the past. Relative to the proposed hotel on the property, she said she
assumed it would eventually have its own reception areas, and a restaurant, and how they
control the patrons and tenants of that hotel in the future is being set at the meeting tonight.
• Said she was surprised to see the desire to have music and drinking activities until 2:00 a.m. at
the Oaks, because typically it is a quiet area. She expressed concern about people leaving the
premises at 2:00 a.m. a.m. after consuming alcohol. It is important if this is approved that they
have onsite security, that they make sure the restaurants stop serving alcohol at 1:00 a.m. and
people promptly leave the premises.
Alan Takahashi, Cupertino resident:
• Said he supports the proposal, primarily because the City Council needs to strike a balance
between residence and business, or an environment where there is something that will help the
Oaks sustain itself to grow. The shopping center has been in a decline, and staff has done a
significant amount of work to come up with a compromise. There may be more options to
possibly attenuate the noise more, and alleviate some of the concerns of the Gienbrook
residents. If it brings some jobs to the area and economic revival of the Oaks, it is worthwhile.
Dancing and music are important elements of a wedding banquet, and it would reduce the
number of events that could be held if they were not permitted. It is important that the city
supports businesses as well as residents and find a middle ground that both can live with.
David Hollister, Cupertino resident:
• Does not support proposal.
• Said he was confused about the proposal; there has been mention about other activities, and the
applicant claims it is only about the events center, yet there has been discussion about permits
for four other places, music, bars, and drinking. He asked if there was going to be a bar in the
proposed hotel.
• Expressed concern about having events where alcohol would be served, and bars near the
residential area and the potential for patrons to cause problems in the parking lots and in the
area near the residential areas.
Corn. Giefer:
• Clarified that there was not a proposed application for a bar.
Ranjan Desai, Cupertino resident:
• Opposed to proposal.
• Expressed concern about patrons drinking alcohol close to the residential area, and questioned
why a family event would go on until 2:00 a.m. since a family event would have children
present. He said he felt there were other ways to increase the clientele there other than the
events center.
Chair Brophy:
• Com. Giefer's point is to clarify what is and is not being considered tonight; there are concerns
by some of those who are not as worried about the events center, of what powers does the city
have or not have in terms of controlling what kind of facilities go into the Oaks.
Aarti Shrivastava:
• Said the applicant is asking for the live entertainment, including the live band and dancing, and
the Planning Commission can circumscribe and decide what they want to allow. In terms of
Cupertino Planning Commission 7 October 12, 2010
what control the city has to decide what facilities can go in there or not, they have two
measures of control; one to circumscribe and the Council circumscribes what goes in and the
conditions that need to be met. Every use that goes in there would need to adhere to that, and
staff will make sure that happens. The other measure of control is if any of the issues of noise
or security come up and there are complaints, at the annual point, the application will be
brought back to the Commission to be addressed.
Colin Jung, Senior Planner:
• Clarified that the information about the 1:30 a.m. hours is from the Oaks Center wcbsite; the
events may have ended at 11:00 p.m. but they are marketed as 1.30 a.m. The applicant stated
that they have had up to 60 events contracted for 1:30 a.m. end time.
Elaine Chung, Cupertino resident:
• Opposed to the proposal.
• Resides in the neighborhood behind Glenbrook, and said she was recently woken up in the
middle of the night by loud noise and music, and saw about 500 teenagers riding bikes from
the Sunnyvale side crossing the bridge toward Stevens Creek Boulevard. She said she wanted
to support local businesses, and suggested that more community input is needed, and suggested
setting up a website where local residents could provide ideas. She said she was opposed to
the event center being open until 2:00 a.m.
• Geographically, the Oaks Center is a bottleneck. The Commission needs to think about other
options and let local residents provide input.
U Aung Myint, Fremont resident:
• Resides in Fremont, but two daughters rent an apartment in Cupertino and attend DeAnza
College. He expressed concern for his daughters' safety since they attend classes early in the
morning and late at night because of budget cuts. He said he was concerned about the amount
of patrons from the events center; and asked the applicant to withdraw the application and put
the events center at another location.
Gangadhar Andru, Cupertino resident:
• Said although there is revenue associated with the events center, it has its own associated risks.
No one can control the unruly behavior of patrons; the report stated that the police doesn't
have enough resources and they recommended that the establishment have its own security
guards as the police can only take care of the security near the building, but not at the nearby
residences. The live entertainment sounds laudable and innocuous, and when adding the
consumption of alcohol, it is more difficult to control.
• Opposed to the entire proposal; it is not in the best interest of the residents.
Satyamat Jashi, Cupertino resident:
• Said he did not see any assurances that what has not happened in the past six months won't
happen in the future; also there are a lot of loose ends to the proposal, such as four
entertainment venues approved, and knowing what was planned for only two, with the other
two still in question.
• Said he recently moved to Glenbrook because of the culture and good schools. He said
because of the close proximity of DeAnza College, the minds of many young people are being
influenced by the events center. Said he did not approve of the proposal, but left it to the
Commission's judgment to make a decision.
Eric Yee, Charles Salter Assoc. representing person who created the report:
0 Said he was available to answer questions about the report.
Cupertino Planning Commission
October 12, 2010
Com. Miller:
• Said that the report suggests that the noise level at the apartments is fairly low and consistent
with what is over there presently.
Eric Yee:
• Said he deals with the issue in many cities where there is a finite number limit saying that you
cannot exceed a certain decibel level; often the decibel level is written in what is called the A
structure which is supposed to emulate human hearing; what it fails to do is it does not take
into account any low frequency components. What was found in many projects, is that while
the A scale may be well below 50, the 38 decibels is represented entirely by low frequency
which tends to penalize the frequency, so what is actually 38 dba might actually be 70 linear,
which means that the low frequency energy begins to come through. That is similar to sitting
at a stoplight and someone pulls up that has a very significant stereo system with large
subwoofers, the energy coming through into your car is probably less than 38 but it is very
detectable and very present and it carries over long distances because of the size of the actual
sound wave that has been generating.
• In the report the 74 that is outside of glazing, that is dba, that is the noise assumed at 100 dba
inside the facility coming through the glass and then, what you would do is you would take
that and it begins to attenuate over distance.
Com. Miller:
• The 38 dba is outside the window; what assumption can be made about the noise inside the
window.
Eric Yee:
• Said the single pane is likely 1/8" or 1/a" glass if the noise component that is coming from the
entertainment venue is low frequency; glass is a poor insulator against low frequency noise;
many times it is virtually transparent to the larger sound wave, so 38 outside could possibly be
38 inside. It is difficult to speculate what the noise level is going to be. He said that in some
cities they go out and simulate what is supposed to happen prior to any approval. They go in
and put in the sound source, actually generate and emulate the party, turn on the music, get the
subwoofers going, and go to the Iocations of interest and measure to see if it is audible and
detectable, what the levels are, and determine if it would considered an offensive level. A
tjord pme is difficult because it is a subjective standard which is not usually written into a city
standard and it creates a lot of difficulty because of that, but we do like to say that it is audible,
so just because you meet the ordinance Iimit, doesn't preclude you from receiving complaints.
Com. Miller:
• Asked if there was a way to limit the level inside the building so that the attenuation would be
more significant at the apartment.
Eric Yee:
• Said if it is pre-recorded music, such as a DJ who comes in with his equipment, there are ways
to impose limits on the DJ, whether he listens to those standards is difficult to enforce.
Electronic limiters can be placed on their system so they can't go over a certain point, but if
they bring in their own system, it is difficult to put that limit on them.
• Relative to double pane glass vs. single pane, the type of noise attenuation one would expect if
there was double pane glazing on either the apartment or the center, he said the attenuation
would go up slightly, with dual paned assembly. Single pane glass is about 20 dba attenuation;
dual glazed assembly can range anywhere from 26 to about 33 depending on manufacturer;
Cupertino Planning Commission 9 October 12, 2010
and to get more attenuation out of it, especially in the low frequency end, one would have to
take one of those panes and make it a laminate system whereby you take two pieces of glass
and put a gel coat in between, and that becomes part of the window, as dual pane assembly.
Com. Kaneda:
• If you were on the other side of the table, working for the company that is putting in a use like
this, what kinds of things could they do to attenuate the noise at the inside the facility and how
much could they reasonably get that noise level down before it goes through the walls. There
are two problems; one of the sound propagating across into the apartments and there is the
potentially greater problem of adjacent tenants within the property which according to
calculations are above code.
Eric Yee:
• In order to make the event center comply with the city noise ordinance, he said he would
conduct a real world test, to have actual documented information, measurements; it would be
done both with music and with the loud speaker that puts out broadband noise to do it by third
octave. Measurements would be taken in the space to get a source and at the adjacent spaces
to get the receive; and given that information there are two choices. The amount of noise can
be limited by putting out by the speakers, which is practical for Wing and for prerecorded
music. For live music and bands, it is harder to control because you don't have control on
volume dial on the guitar player; the other option is to look at the weak links in the building, is
it coming through the glass, the doors, are the walls not adequate. They would then look at
proposing ways to either improve the glazing, improve the wall construction, if necessary look
at the ways the doors open into the space, there are design measures such as vestibules or poor
man's sound track where you have a real acoustically absorbed buffer space between where the
actual event is taking place and the doors so that the sound is attenuated before it gets to that
point, so when you do open the doors you get less noise than the actual noise that is going on
in the space. There are many options to work the solution so that it can meet the code.
Aarti Shrivastava:
• Confirmed that the dba does not exceed the levels; the noise ordinance states 65, the night time
level is 55 dba and there are conditions for putting in sound insulation similar to what the
engineer was discussing.
Colin Jung:
• Pointed out the noise ordinance addresses the noise at the property line; it doe not at this point
address noise between commercial spaces because that is not a property line.
Alan Parsano, Consultant for the owners, and Modena LLC:
• Supports the change to the Use Permit.
• The owners of the center are very concerned about choosing their tenants; they are concerned
about the image of the center and would like to keep the customers and tenants and also the
neighbors happy. That has always been their goal; they are local people. If there is any live
music activity, it is under the condition by city staff, according to Condition No. 9; staff shall
conduct a Use Permit review after one year.
• If complaints are received related to tenants that apply under this Use Permit and the
complaints are not addressed immediately by the property management, the Planning
Commission will hold a public hearing at which time the approval for live indoor
entertainment may be modified or revoked.
• Said that the applicant did not want inebriated patrons wandering around their parking lot at
1:00 or 2:00 a.m., did not want to cause disturbances for the neighbors; and did not want a
Cupertino Planning Commission 10 October 12, 2010
flashy Las Vegas type environment to bring into the old center; or to create an unsafe
environment for the existing customers and tenants. The applicant is concerned with the image
of the center and wants to keep their good relationship with the city and neighbors and not lose
their existing tenants.
Said he supported the proposal.
Nat Nataraj, Cupertino resident:
• Said he heard the applicant's remarks, and in all due respect to his best intentions, there are
some aspects of the crowd that cannot be controlled; so rather than take a reactive measure of
evaluating the situation after a year, why not be proactive and give it serious consideration to
whether they want to approve the application at this meeting.
• He said he did not support the application.
Chair Brophy closed the public hearing.
Com. Miller:
• Asked staff what other Cupertino establishments are open until 2:00 a.m., and if there have
been any major complaints that the police have reported to the city regarding those late hours.
Aarti Shrivastava:
• Said there may be some uses at Vallco or on DeAnza Blvd., and also Sabatini's and the movie
theater; not certain of Blue Pheasant closing time; BJs was offered to stay open as late as they
want, and they declined; they likely close at 12 midnight; Paul and Eddy's is open until 2 a.m.
Chucky Cheese has put in noise insulation, which is also done with music studios. There are
examples in town where individual noise in the tenant spaces may exceed the city's noise
limits, but they have put in insulation.
Gary Chao:
• Said staff would check with Code Enforcement staff, but have not had any recent issues with
those establishments.
Chair Brophy:
• Asked if the applicant had an additional entertainment venue approved, how would it be
handled in terms of processing and review.
Aarti Shrivastava:
• It would have to meet the conditions of the Use Permit; there is a resolution with a list of
conditions; in addition the Planning Commission may choose to tightly limit the type of
entertainment uses and when they come in to put those new uses in, staff will not only check
the parking availability, and other city standards, but will also make sure that all the other
conditions are met.
Vice Chair Lee:
• Said that residents did not want a night club associated with the modification, nor a pool parlor
or arcade. The applicant said he would accept some restrictions. She said another option
would be to limit the ancillary live music and dancing with banquets, so that it wouldn't be
live music and dancing at a restaurant, just at the event center. She said the event center is
small, 23,400 square feet and she did not know how much space a band takes, and noted that
some weddings have strings, and violin rather than a live band. Recorded music would be
louder than strings and a small amount of dancing.
Cupertino Planning Commission 11 October 12, 2010
Com. Giefer:
• Said they had a concern with neighbors who are concerned about the potential of what might
happen here, vs. what they have heard the intent is, and what is happening by code. She said
they could limit the type of commercial entertainment establishments that can be approved, but
common sense says to put them on the Stevens Creek side. If and when new entertainment
venues come onto the site, add the condition that they face Stevens Creek as opposed to the
residents, under Section 5 of the model resolution.
• In terms of the existing use for the events center, the neighbors' concerns were heard, but the
reality is there haven't been any complaints except for the bicycle riding late one evening, that
was not related to the events center. It is a good compromise, the controls are there; it sounds
like the city's Planning staff has thought that through in terms of how they are going to
monitor what type of additional uses might go into the Oaks.
• Said she supported the application with the two entertainment venues presently there; and
would like a condition added that if there are two additional uses, they face Stevens Creek; so
that the neighbors know the way it is today is the way it will be.
Com. Kaneda:
• Said he heard many concerns about late night uses, but the shopping center has late night uses
already, and no complaints have been reported, including two different tenants that are open
until 1:30 a.m. regularly. If there problems with the uses ending at 1:30 a.m., they would have
heard something. One concern expressed by a Glenbrook resident turned out to be a large
group of people riding bikes in the late night hours. Concerns about alcohol consumption are
valid concerns; however, the property already has a permit for sale of alcohol, which is not the
topic on the agenda; the topic of discussion is a request to allow live music and dancing at the
events center.
• Said they heard a presentation by an acoustics consultant on the noise issues; and looking at
the calculations, they say it is fine; the apartments' consultant's calculations also say it is fine.
He said he believed what the consultant said that long wave low frequency noise carries.
• The actual calculations that he produced are significantly lower than the allowable decibel
levels according to city codes, in the neighborhood of 60% lower than what the venue .is
allowed to produce. He said he was still concerned about noise if there is live music and there
is proposed verbiage to have the owner do acoustical analysis and try to attenuate the sound.
He said he felt it was important.
• He said he was comfortable that if there is a problem after the fact, and the Commission did
make a mistake, they could revoke the permit, rather than have to live with the mistake.
• Said that the last issue is the vacancies existing at the center, which is not good for Cupertino.
He said he would like to do things that will the support the shopping center thriving.
• He said he supports the application.
Com. Miller:
• He said as an engineer he was analytical and open to evaluating evidence, but there is no
evidence of problems with the center today.
• There have been applications presented to the Commission, from centers that had numerous
code violations and they wanted to expand their operations. It is easy to look at them and tell
them to clean up their act, and show they can be a good neighbor and then return. This is the
case of someone who is a good neighbor and yet the residents are concerned about what might
happen as opposed to what is real and what isn't real. As Com. Kaneda suggested, if in fact
this does become a problem, the remedy is clear, they come back to the Commission, present
the evidence and the Commission will fix the problem.
• He said many limits could be put on the establishments, such as limiting late night hours to
Friday and Saturday night; alcohol service stopping some time prior to closing, perhaps 1:00
Cupertino Planning Commission 12 October 12, 2010
a.m. or 1:30 a.m. to give people who have been drinking, an opportunity to sober up. Someone
made a point that preference is given to residents of low density areas and not as much
preference to residents of high density areas; which is not the case. The issue is one of
property rights; the residents of Glenbrook have certain property rights that go with the zoning,
and the owners of the shopping center also have property rights that go with that zoning. One
of their rights is that from the start, this was zoned for entertainment; so they have a right to try
that out and exercise their ability to be a successful center. As a number of people have pointed
out, this center has struggled from the beginning; it would be good for the city if this was more
successful. At the same time we want to observe the residents' property rights and it is always
a balancing act.
It is a very difficult decision at the Commission level, when they try not to give everything to
one side and nothing to the other side, it is always a compromise and for that reason they are
often unpopular in their decisions because nobody gets what they want and they all walk away
unhappy. The Planning Commissioners get the blame.
Said he supported the application; and liked the idea that they could revoke it at any time and
there will be an automatic review after one year. The fact that the applicant did not have
anyone moving into any other space in the immediate future would allow a period of time
when they could evaluate it without having to deal with chasing a number of new businesses
out. He said it was incumbent on the neighbors to give Mr. Tahere an opportunity to
demonstrate that he is going to continue to be a good neighbor.
Chair Brophy:
• Said he agreed with Mrs. Hattan that the language in the General Plan about differentiating
between single family and multi -family residential areas in terms of the impact is offensive,
and he hoped that when the annual update is done, they look at that language.
• Said it is obvious that the center has been in need of upgrading for several years and to the
extent Mr. Tahere is trying to bring in more tenants, it is a positive sign and the Commission
wants to support him to the extent that it can be done without adversely affecting the
surrounding residents.
• The event center has been operating for several months with a number of events without any
objections, and that speaks in favor of the applicant. While there may be no doubt that Mr.
Tahere is concerned for the complex, it is the duty of Planning Commission to look at this
regardless of who the operator is, because as pointed out, there could possibly be a different
owner in six months. As such, the language and anything approved has to be viewed as
covering the current owner as well as any future unknown owners.
• Relative to parking, while it is true there is a parking problem in this neighborhood on flea
market days and other events at DeAnza and Memorial Park, the Oaks Center has an excess of
parking more than any other center in the city. He said he did not foresee that any events being
held at the Oaks would cause reason for people to want to park beyond the grounds of the Oaks
or Mary Avenue.
• Relative to the Use Permit review process, it is important to include a way on an annual basis
to handle complaints if they are not remedied by Mr. Tahere or any future owner, which would
be to revoke the use permits.
• Additional conditions to add to the ordinance include the points raised by Vice Chair Lee
where she suggested a list of non -eligible uses such as arcades, night clubs, billiard/pool halls,
all of which the applicant is comfortable having as non -acceptable uses. He also agreed with
Com. Giefer that the condition that any uses beyond the event center be located on sites that
are on Stevens Creek Boulevard.
Cupertino Planning Commission 13 October 12, 2010
Motion: Motion by Corn. Miller, to approve Application M-2010-02 per the model
resolution with the following additions/corrections: (1) Add the uses that Chair
Brophy suggested to be eliminated; (2) The suggestion by Cam. Giefer to limit
any other uses to the Stevens Creek side other than the two present today; (3)
That no alcohol be served after 1:30 a.m.
Mr. Tahere:
• Said he did not object to excluding the side with Coldwell Banker because of the neighbors'
concern; but he did not favor the condition that they follow along Stevens Creek Boulevard
because what they are concerned about is only that part of Coldwell Banker.
Com. Kaneda:
• Suggested they add a condition that requires acoustical analysis; if they put in something
facing the apartments and it is designed correctly, there shouldn't be an issue.
• The bigger issue is not which direction it is facing, it is making sure that you are not going to
spill the noise out, and the way to do that is to face everything so the noise is going in the other
direction. They could also be told to design a building or design an interior that doesn't let the
noise spill out everywhere.
Com. Miller:
• Following discussion with the applicant, he agreed that 1:30 a.m. would be the time to stop
serving alcohol to patrons, with the patrons leaving by closing at 2:00 a.m.
• No entertainment will be permitted in the building that faces Mary Avenue.
Aarti Shrivastava:
• Summarized discussion, to approve M-2010-02 according to the model resolution, with the
following corrections: no night clubs, pool halls, billiard halls, arcades; other than the two uses
Sabatini and the theater, no new entertainment uses in the 600 and 700 number building along
Mary Avenue, and no alcohol served after 1:30 a.m.
Motion was seconded by Com. Kaneda and unanimously carried 5-0-0.
Chair Brophy declared a recess.
Cupertino Ordinance. Postponed from the September 28, 2010
ocation Planning Commission meeting; Tentative City Council
Date: December 7, 2010
Aki Honda Snelling, Senio ner, presented the staff report:
• Reviewed the application fo-74o4cicipal Code Amendment to adopt a Green Building
Ordinance, which will create a new effRpter of the zoning ordinance, as outlined in staff report.
• The goals of the ordinance will be to p to green building practices through design,
construction and maintenance of new building d also existing buildings undergoing
renovation, and would apply to new private developmen uding homes and commercial and
industrial property.
• In January 2010, City Council authorized staff to initiate the public process to draft the
Green Building Ordinance and also to use the Phase II recommendations a Santa Clara
County Cities Association. In May of 2010 a community outreach process was im by the
cityand the an in interested parties to participate in the focus groups. The
an overwhelming response, with two focus group 1ULUCOLUIgs f1l Rate,