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103-B. Draft Planning Commission Minutes for 10/12/10.pdf CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 CITY OF CUPERTINO PLANNING COMMISSION DRAFT MINUTES 6:45 P.M. October 12, 2010 TUESDAY CUPERTINO COMMUNITY HALL The regular Planning Commission meeting of October 12, 2010 was called to order at 6:45 p.m. in the Cupertino Community Hall, 10350 Torre Avenue, Cupertino, California, by Chairperson Paul Brophy. SALUTE TO THE FLAG . ROLL CALL Commissioners present: Chairperson: Paul Brophy Vice Chairperson: Winnie Lee Commissioner: LisaGiefer Commissioner: David Kaneda Commissioner: Marty Miller Staff present: Community Development Director: Aarti Shrivastava City Planner: Gary Chao Senior Planner: Aki Honda Snelling Associate Planner: Piu Ghosh City Attorney: Carol Korade APPROVAL OF MINUTES: September 28, 2010 Planning Commission meeting: Motion: Motion by Vice Chair Lee, second by Com. Kaneda, and carried 4-0-1, Com. Giefer abstained; to approve the minutes of the September 28, 2010 meeting as presented. WRITTEN COMMUNICATIONS: None POSTPONEMENTS/REMOVAL FROM CALENDAR: 2. ASA-2010-03 Architectural and Site approval to allow minor exterior and EXC-2010-07, site improvements in association with a 1,850 sq. ft. addition V-2010-02, TR-2010-38 to an existing light industrial building. Parking exception to John Noori (Apple Inc.) allow compact stalls to be used at an existing industrial 10231 Bubb Road building; Variance to exceed the lot coverage allowance by 3% on the Light Industrial (ML) zoning district. Tree removal request for 12 trees and associated tree mitigation measures at an existing light industrial building. Application has been withdrawn by applicant. ORAL COMMUNICATIONS: None Cupertino Planning Commission October 12, 2010 2 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 Boulevarddate: 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 limited 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; Sheriff’s 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 October 12, 2010 3 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 st 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 Sheriff’s 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 October 12, 2010 4 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. Com. 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 10244 Parkwood Drive: Opposed to the application. Said the noise from the event center and karaoke 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 leaving 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 October 12, 2010 5 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, th the theater has been in business since November 10 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 October 12, 2010 6 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 Glenbrook 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. Com. 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 October 12, 2010 7 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 website; 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: Said he was available to answer questions about the report. Cupertino Planning Commission October 12, 2010 8 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 ¼” 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 locations 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 limit, 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 October 12, 2010 9 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 DJing 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 October 12, 2010 10 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 October 12, 2010 11 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 October 12, 2010 12 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 October 12, 2010 13 Motion: Motion by Com. 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 Com. 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. 3. MCA-2010-04 Municipal Code Amendment to adopt a Green Building City of Cupertino Ordinance.Postponed from the September 28, 2010 Citywide Location Planning Commission meeting; Tentative City Council Date: December 7, 2010 Aki Honda Snelling, Senior Planner, presented the staff report: Reviewed the application for Municipal Code Amendment to adopt a Green Building Ordinance, which will create a new chapter of the zoning ordinance, as outlined in staff report. The goals of the ordinance will be to promote green building practices through design, construction and maintenance of new buildings and also existing buildings undergoing renovation, and would apply to new private development including homes and commercial and industrial property. In January 2010, City Council authorized staff to initiate the public input process to draft the Green Building Ordinance and also to use the Phase II recommendations by the Santa Clara County Cities Association. In May of 2010 a community outreach process was initiated by the city and the city began seeking interested parties to participate in the focus groups. There was an overwhelming response, with two focus group meetings in June and July, and there were Cupertino Planning Commission October 12, 2010 14 helpful suggestions to incorporate into the draft ordinance. The Planning Commission also held a Green Building educational workshop to provide additional information to the focus group members to get more information on LEED, green point rated (GPR) and also the Cal Green Building Code. The draft Green Building Ordinance contains several components, one of which is the scope and applicability of the ordinance which clarifies that this ordinance will generally apply to private development projects, including new construction of single family and multi-family residential new construction projects and also non-residential including commercial and industrial projects over 10,000 sq. ft. The ordinance would also apply to remodeling and additions including single family remodeling and additions equal to or greater than 50% of the total existing floor area of single family residences and also would apply to minor and major renovations for multi-family and non-residential commercial and industrial additions and remodeling as well. The ordinance would also apply to mixed use projects where the individual development types would require such compliance. Public buildings would be excluded from this ordinance since most cities address these in separate ordinances and also Cupertino has also adopted a Phase I Santa Clara County Cities Association recommendation which already required that new public buildings over 5,000 square feet be built to meet LEED silver standards. The draft Green Building regulations would apply to projects that submit for building permit on or after the effective date of the ordinance, and staff is recommending that the effective date of the ordinance begin 6 months from the date of the ordinance adoption, which allows for a six months grace period. Any building permit applications coming in within the six month grace period time would not be subject to the requirements unless they were otherwise conditioned by that specific development permit. The grace period would also provide time for the city to disseminate information about the ordinance to residents and businesses. Staff would like to make it clear that demolition permits would not qualify as a building permit. Staff has also included some options for the Planning Commission which is to consider whether to exclude previously approved Planning projects granted prior to the effective date of the ordinance and also to consider allowing exemption from the ordinance for those projects that receive Planning entitlement before the effective date of the ordinance and only for that duration that the planning permit is valid. She reviewed the Reference Standards and Comparison Table of Phase II and Cupertino Draft Green Building Ordinance New Construction and Addition/Renovation as outlined in the staff report. She also reviewed the two options that staff is asking the Planning Commission to look at, as detailed in the staff report. She reviewed the pros and cons of the verification options; fees and deposits; and exceptions, as outlined in the staff report. She reviewed LEED EBOM (LEED for Existing Buildings: Operations and Maintenance) which is a certification project type based upon the actual total building operating performance, as outlined in the staff report. Staff recommends that the Planning Commission recommend that the City Council adopt the proposed draft ordinance, in accordance with the model ordinance with any changes recommended. Walker Wells, Consultant, Global Green: The Climate Action Plan: Ideally what you would have is operational data from the buildings, that is the gold standard; you know exactly how much energy, electricity, gas, water, waste was generated from the building as operated. When you do formal certification, you get a little bit closer to that gold standard because you are looking more at the building as it is completed with construction, and then the city verification is going upstream one level further because we are looking at the building at the building permit stage, so we are looking at is as designed. Cupertino Planning Commission October 12, 2010 15 You could still make projections off the drawings on the energy analysis at the building permit level, but they would be a lesser degree of confidence in those than what you would have based on the final building. That would still be a projection and the only way to actually know for sure would be to require every building that is permitted in Cupertino to do some kind of reporting through Energy Star Portfolio Manager for example. It doesn’t mean you can’t make projections on the Climate Action Plan, they are just going to be a bigger band of uncertainty in reporting those. Reviewed a slide presentation on what the State requirements are for green building. Relative to climate change, the State requires nothing to be done; cities are encouraged to adopt climate action plans and do the accounting but are not regulated to do it. Cal Green goes into effect on January 1, 2011, it addresses planning, energy, water, material conservation, environmental quality. The State is saying that all the green building things that you have been talking about for years, we have decided those are good ideas that should become part of the code; let’s codify as many for them that are cost effective and broadly acceptable. The information in the slide presentation summarizes that at the mandatory level Cal Green is not equivalent to either LEED or GPR; there are complicated optional tiers in Cal Green that not many cities are interested in; but the analysis shows that a commercial building would need to be all the way in the Tier 2 optional level to be considered analogist to LEED;and a residential building would need to be at the Tier 1 level to be analogous to GPR. Aarti Shrivastava: A requirement will be that the drawings be prepared by somebody who understands LEED, doing a peer review, not designing the building for them; and also be certain they understand the points that they are shooting for in the planning stage, because many times when you design the location and the way it is facing, makes a difference as to what points you can get. The process should start early to prevent huge problems at the building permit stage. Com. Kaneda: Relative to the six month grace period, in the past two years many of the projects that have come before the Planning Commission were conditioned to be LEED silver or similar, and in some cases over the concerns of fellow commissioners who are saying they are not comfortable with this because it is done on a case-by-case basis, there was no policy in place. Now that they are looking to have a policy in place, they are reverting back and telling the people who came before, that they have to do it; but the people who are just coming up now, have six months before they have to do it. He said it seems futile that before they were telling people that they wanted them to do it, and now they are being told it is going to take six month and they have to figure it out. Aarti Shrivastava: Said it was only an option, it is up to the Planning Commission and City Council to determine why they used the six months; because people are being told there is a Green Building Ordinance coming down the line, but they don’t yet know what the rules are. Staff felt as people are planning for their projects, it would be difficult to hit them with it right after adoption because that’s when they know what the rules are. Staff felt that a six month lead time would be ample time for a person to do their homework on building a house or building. Most people who are building non-residential buildings are aware of it because they have gone through some type of planning process. Cupertino Planning Commission October 12, 2010 16 Walker Wells: Relative to the additional cost to build green buildings, the general understanding is that while there doesn’t have to be additional cost in making a green building, there often is, because the result is a better product, things work better and are put together better, cost more money, often because they are delivering a stream of benefits over the time of their use. Green building would be delivering these benefits of reduced utility costs, better living and working environment, more durable building. In terms of the cost, there are three different studies that have each looked at over 100 buildings and found that the cost on average, is about 2% increase in construction costs, the capital cost of construction; and the range would be from 0 to 5; this is looking at buildings from the certified to the gold level. Once you get to platinum, all bets are off because you don’t know which strategies somebody is going to take or how exotic it will be. That gives a sense of the burden that could be placed on applicants. In terms of keeping that toward the lower end of the spectrum of 0 to 5, the idea is always to start early and make green part of the building; it is cheaper than adding it at the end such as solar panels. The soft costs include consultants, either someone with an architectural design firm or a consultant to keep track of all of this information and have it ready to present to the city or US Green Building Council, in the range of $15K to $25K in additional staff time. There is also additional energy modeling, it is done sooner and iteratively and more thoroughly, adding another $15K to $20K; for LEED there is commissioning cost; some of those now become code with Cal Green, that could be another $25K to $50K. The cost for gaining formal LEED certification for most buildings is about $100K minimum. For a multi-family apartment building around $50K, and a house around $5K. This provides a sense of the soft cost, the extra people who need to be retained to make things happen. Relative to the number of points, the GPR is structured as a rating system developed by Build It Green, an Oakland based, non-profit, and you either are or are not green point rated, so they set a minimum threshold of 50 points out of the nearly 300 point options they have. What they do that some feel is overly accommodating is they give points for meeting the prerequisite; they have a prerequisite of 15% better energy performance, improvement aboveCalifornia Energy Code; and two points in their system for every percent that you are better than Title 24 energy codes. By being 15% better than code, you get 30 of the 50 points needed. They have 50% construction and demolition waste recycling as a prerequisite, but you get points for doing more. It is easy to get those 50 points, that is why most of the cities have decided to set a point threshold that is higher than the 50 point minimum. Cupertino has followed suit. The reason there is a distinction between the smaller single family and multi-family is that in the GPR system, you do get points for density and there is some built in benefit to a more dense project with smaller unit sizes; it would help them get towards that 100 point level. There are also some benefits in being close to transit which is not for sure, but more likely with multi- family. Com. Kaneda: Under commercial construction in the SCCA Phase II recommendations, the recommendation was LEED silver for buildings over 25,000 sq. ft. and in Cupertino relaxing that to 50,000 sq. ft. He said San Jose is staying at 25,000 and discussing lowering it below 25,000. He said he had concerns about 50,000 sq. ft. in Cupertino, the only projects they would require to be LEED silver are major developments and his feeling is that LEED certified is not much of a requirement. Walker Wells: One of the ingredients was looking at these costs relative to the costs of the building; the construction cost is 2%, the average increment would go up or down based on how many square feet of construction; roughly $100,000 that you need to go through the LEED process, Cupertino Planning Commission October 12, 2010 17 is a fixed number. It is paid whether it is a 5,000 sq. ft. building or a 50,000 sq. ft. building, so there is some sense of the cost of the certification relative to the cost of construction and to have it not be too onerous. He said they ended up with a 1% cost and thought that increasing it beyond that may be too much of a burden. That was part of the rationale. Com. Kaneda: Relative to the commercial renovation category, the idea of selecting three of the four systems if doing a major renovation, HVAC building envelope, hot water or lighting; in the SCCCA Phase II recommendations, the requirement was 2 of the 4 systems plus HVAC. He said he was involved in the discussions at the Cities Association and the thought behind that was that a big part of when going for the LEED certification relating to energy, it is almost impossible to get those energy points without the HVAC; if you do a major renovation but don’t touch the HVAC, it is really hard to get the points you are going to need because there is very little you can do on the energy side. Walker Wells: Said they spent a great deal of time working on how to structure it so it would be fair. If the requirement was imposed on someone, they would be able to achieve it given the extent of the scope of their project and remodel. Another way to organize it is to say for projects that are modifying or replacing HVAC, it is that plus one of the other two things instead of three of the four. He said it could be a suggestion for an amendment, and the Planning Commission may want to formally propose. Walker Wells discussed LEED EBOM: Said they have had many discussions about how to make sure the ordinance would address remodels and tenant improvements given an understanding and looking back at permit history and seeing what comes in over the counter, and understanding that’s a lot of what gets done in the city. There aren’t many new buildings being built either residential or commercial, and certainly not now in the present real estate development climate. In considering this, they came up with the issue discussed, of how to define a project of sufficient scope, and is it HVAC and domestic hot water, etc., but the new idea emerged of saying, why not give people the option of taking the entire building through the LEED Existing Buildings: Operations and Maintenance program proactively; and that would be a strategy through which they would then not be required to bring every individual small tenant improvement to the city for certification. It would seem like it would be cost effective and time efficient on the part of the applicants; and it may get a bigger impact quicker by giving people that option because they may decide to take the whole building through the process ahead of time, instead of the nickel and dime strategy over time. He said he felt it was exciting, and innovative, and a breakthrough in the ordinances that has come out of the process in Cupertino. Com. Kaneda: Said the EBOM program was worth further discussion. Walker Wells: Relative to the degree of difficulty of going from GPR 50 points to GPR 75 points, he said it was not difficult; the easiest strategy would be to improve energy performance beyond the 15% better in Title 24; it would not require you to put up something expensive such as solar panels. To get to 20% energy efficiency, install a very low flow shower head, instead of low flow, put in a dual flush toilet, landscaping is a good place to garner points; putting in low water landscaping, drought tolerant plants, irrigation system designed to give them the right Cupertino Planning Commission October 12, 2010 18 amount of water. In GPR there are a number of credits for materials choices, type of carpet, type of paint, the type of flooring, cabinetry, and counter top materials. Aki Honda Snelling: Said the LEED EBOM is not reflected in the draft ordinance. Walker Wells: It would be an alternative that they could consider; the way the ordinance is structured, it doesn’t spell out the individual LEED products; an applicant could go through the spectrum of LEED options and say that existing buildings for operations and maintenance could be a good fit and they would rather do it than have to do the future TIs. It is included by default in a way that the ordinance is structured because it is part of LEED and LEED is referenced. He agreed that they haven’t provided as much clarity on how it would actually work as they have for other parts of the ordinance; but potentially staff could have that as any option to offer a building owner. He could or could not choose to use it. Said it would be as simple as adding a footnote, saying that applicants choosing to use LEED for existing buildings must achieve that at least at whatever level; if considering silver; and include credit, materials and resources 3 in their certification; and that would be the one clarification of how the different LEED products would be applied. Chair Brophy opened the public hearing. Jennifer Griffin, Rancho Rinconada resident: Said she was concerned about sacrificing items such as floor area ratio, increased density in housing, and compromising parking as incentives for builders to achieve certain levels of certification. She said she felt they were completely separate, and are hot button controversial items for the city, and could require as much as years of studies to come up with acceptable standards for the city. Said she was not willing to compromise and have those hard fought-over items in the city dangled in front of builders as incentives to have them reach certain building standards. In a perfect world it would be wonderful to be able to do that, but unfortunately Cupertino has certain hot button items that come up repeatedly. She said they did not have any place in being used as incentives for builders. This was brought up in Page 3-35 early in the focus groups; it said zoning exemptions could be problematic, community and Council may have problems compromising parking and FAR. Chair Brophy: Said he agreed with the point on the section of the draft ordinance. Chair Brophy closed the public hearing. Chair Brophy: Said he felt the FAR ratios used in the city were too high, and he had no interest in the name of green building to increase them further. Relative to parking requirements, reducing that may allow you to get greater density but that says you are implying that the parking levels are excess to begin with, which is not the case. He said he agreed with Jennifer Griffin’s statement. Com. Giefer: An example of flexible parking requirements and how it worked with green building; is in some of the more urbanized projects they built in Berkeley, they do shared parking with mixed use where they have a reduced parking count because the assumption is that the homeowner is Cupertino Planning Commission October 12, 2010 19 not home during the day; and this is higher density, not single family; but the person who lives there is gone during the day at work; so their parking space becomes available to somebody that works in the mixed use project; so they double count that parking space. She said in that context, it was acceptable. Aki Honda Snelling: Said they do have allowances for mixed use, shared parking. Chair Brophy: Cupertino is very different from Berkeley which is an urban setting where those type of calculations make sense. Com. Giefer: Said they were doing it in Mountain View as well; if it is already in Cupertino’s code, she was fine with that and said the point was well taken with regard to FAR. Chair Brophy: Said Cupertino is a suburban town and those kinds of theoretical concepts of a green project will not demand parking, and don’t work out in real life. The same for the FAR, to say in exchange for doing green building, we will let you build more square footage, seems to me to offset it. Said he was not opposed to having a tiered system depending on the square footage of the home. Com. Miller: Said it did not make sense to say if you have 4 units or less that you only have to achieve this level, but if 5 units or less, you have to achieve a greater level. In fact, the higher the density, the smaller the units tend to be and you cannot equate the energy use of a 1,000 square foot unit to the energy use of a 4,000 square foot unit. He said they were doing just that, penalizing the higher density developments. Com. Kaneda: He said he wanted to ensure they were not saying to go to a higher density project which is a good thing if talking about sustainability; and that they are not making it harder for them to do that; but keeping the bar about the same. Aarti Shrivastava: Said they were also trying to go for the size of the project assuming that a larger project would have a bigger impact on the environment; if you are building a small project that has only 4 homes on it, it would have a smaller impact. If you have a larger project of 5 or more homes, you would need more site area or larger percentage of the city’s land area; it is impacting more just because of the size of the footprint. You could also put in square footage in terms of per unit square footage. She said it has not been done, but staff would be happy to try to administer whatever the Commission and Council desired. Walker Wells: Said he did not feel there was an inherent reason to count dwelling units for residential and square footage for non-residential. A simple proposal would be single or multi-family residential projects or residential construction of less than 5,000 square feet and projects over 5,000 square feet; and they would have consistency in their metric of square footage. It is the driver of the impact, not the number of dwelling units, but how large they are. Cupertino Planning Commission October 12, 2010 20 Aarti Shrivastava: Said they would look at the project; if it is a subdivision with 6 homes, the total square footage will be counted in the project and not per home. Staff would like to know how the Commission wants it counted; the 5,000 square feet would be the total amount of square footage in the project, vs. if you were comparing with the multi-family building. They would use the same metric unless staff was directed otherwise. Com. Giefer: If the item is continued, she said she would like more information on the updated Built it Green, and confirmation that Walker Wells could attend the next meeting. If there are not funds for him to return to the next meeting, she said she would rather discuss the item further at the present meeting, while he was there to share his expertise. Com. Miller: Said they have talked about wanting to move forward in that direction, whether for energy efficiency, more green building or reducing the carbon footprint. He expressed concern about the current economic environment and the difficulty in getting anyone to build in Cupertino right now, even without adding new regulations and costs to doing that. He said one of the solutions is an incentive-based system that gives the developers the opportunity to see that it is not going to take more time, cost more, be more challenging; because otherwise they will just go somewhere else where it is less challenging. It is a struggle to get people who have been given approvals, to start building and in some cases it has been years. There are areas that could be improved upon for processing applications and reducing the cost to the developer. He said they may agree that changing the zoning laws and some of the other things that were proposed as incentives are not very desirable, but if they can search harder and look for ways, they can reduce the other costs associated with application approval. The green building will add to the time of going through the approval process and also the construction. Going through a certification process will also add time onto the end as well. He said he supported anything they could do to offset the costs so that it is essentially a zero sum game; but basically they are saying this is a higher priority than some of the other things they have. He said they should take a hard look at all the things they require developers to do today and ask which are the highest priority ones; and if they want to add the new expense on, find some other place where they can reduce the current expenses. He said he would rather have the Green Building Ordinance in place. He said he has heard from developers that in all Bay Area cities, there are places and ways that the processes could be improved, made more efficient and more cost effective. It would be a win-win for everyone; they would have more green building and more energy efficiency and also would be approving the process at the same time. He said it was something they should be striving for. Com. Giefer: Said she felt it was a good goal if they could find economies, cut back and be more efficient. Building is presently non-existent in Cupertino and only projects that were built quickly were the ones that the Commission provisioned as being LEED certified. She said it was interesting that the ones they made as a condition for the project are the ones that were built. Chair Brophy: Said he was interested in providing an incentive for the residential area, which is the one area he is concerned about. Cupertino Planning Commission October 12, 2010 21 The burden imposed may not be equal to the benefit if they went to the Phase II recommendations going less than 9 units, but they set the 75 point GPR standard for homes under 2,000 feet and for above 2,000 feet it would be 100 points; above 9 units, everything would be at 100 like it is here; but using 9 instead of 5 going back to the Phase II breakdown. Does something like that make sense in terms of giving it an incentive to build smaller units? Com. Giefer: Said she felt there needs to be an incentive, as staff does not appear to be supportive of this at all, they could take their green projects and put them at the head of the line. Aarti Shrivastava: Said if there is a Green Building Ordinance all of their projects will be ahead of the line. Walker Wells: Said the incentive has to be commensurate with the cost; if asking people to build better, there may be some costs that they may not be able to recoup; to at least level the playing field, the incentive has to match that cost. There are many things that happen in the entitlement process that cities don’t have control over, such as the CEQA process, which is a State law where you have to follow certain steps. That is what takes a long time in entitlements, so when you map out the whole thing, the piece that the city has control over is often relatively small. The city has control over those things, you have local discretion about how you set those development standards and how you would prioritize relaxing them or modifying them to create different outcomes in the market place. It doesn’t cost anything to reduce parking or increase the FAR beyond potentially political capital. Often these are hot things with the community, they just don’t like them and a lot of communities don’t like to go there. That is often where the real potential value is for a local government but they are difficult to deploy for all the other reasons. Aarti Shrivastava: People ask where the value is; the value is in the building and trying to put less parking. It is a case- by-case basis because every project has to prove that it is not going to create that impact that Chair Brophy was talking about. They would have to prove that the design is done in such way that it doesn’t impact the neighborhood. Additional FAR need not mean a degradation of the neighborhood around it and we would make sure that any project that went through the planning stage would meet all requirements of the use permit process. We set the bar high at the exemplary level because we didn’t want this to apply to every project coming in for FAR; we want to encourage really high level of building. In order to meet an ordinance work, we don’t give incentives; we give incentives to people who go beyond the ordinance. Com. Miller: The problem is that each individual ordinance makes perfect sense by itself, but when you add them all up, they become very onerous as a group. As far as saving just a month, I have talked to a number of residents who have applied to build a house in Cupertino and it took them an entire year to go through the process. I do believe there is opportunities to make the process more efficient. I don’t know the individual reasons things take so long. Walker Wells: Said that reviewing the requirements table would be a way to move forward, and also look at the ordinance overall. He said if he was facilitating the meeting he would recommend identifying what the sticky points are and see if they could remove them one at a time. They have heard some things about incentives, heard a little bit about the thresholds, is it units or Cupertino Planning Commission October 12, 2010 22 size of building; some discussion about clarification on the use of LEED for existing buildings as an option, and they need to clarify that. Aarti Shrivastava: Said she would add a chart to the wish list; which is to let them find out where they are on this for the next time they are starting from a different place, and secondly the verification process. There are two options; one is more onerous but gives more certainty; the other one is less onerous. Com. Kaneda: For residential, realistically if somebody is going with some kind of LEED certification, they are doing it because of an interest in sustainability. They are looking at what is the most expedient way of designing a building, they would clearly go with green point rated. He said he was not convinced that there should be two different point levels, especially in view of the fact that it could be one thing; single family homes was one category and multi-family homes was another and you automatically would get additional points by virtue of doing multi-family homes. He said they should choose a number, either 75 or 100; he did not have a feeling with GPR on how onerous 100 points is. He said he liked the idea of having a threshold and once you start surpassing a threshold in square footage for an individual unit, you start adding more points on to it, because it seems reasonable that if you are building a huge house, you want to have a way of saying, you are doing a lot more damages and a lot more resources, using more energy by virtue of being a larger house. Therefore, you need to design something that compensates for that. Walker Wells: Said that if the other commissioners agreed with the idea, he did not feel comfortable trying to resolve the issue tonight, as he would need to go back and do some analysis and try to decide what would be an appropriate way to ask for some higher level of performance for different sizes of homes. Com. Kaneda: Said for commercial new construction, he would like to see the number brought back down to 25K because 50K is such a large number. If the reason for bumping that number up was the cost of certification in the smaller size, he would accept not requiring formal certification until the 50K sq. ft. threshold was met. He said he was intrigued with the idea of EBOM, but did not understand in detail what the implications are. If it turns out that there is something onerous about it that is not understood, you could still go with the traditional way of approaching it which is a LEED certified, LEED certified equivalent or LEED silver equivalent. He said they need to be careful with the HVAC; it is a bonified point that energy is a big piece of getting that certification. He said he supported Option 1 for residential because GPR is not expensive to do, GPR will go out and inspect equipment in the home and do blower tests which are valuable. He said for non-residential standards, his inclination was to only require formal certification at the largest size for new construction. For eenovations, with EBOM, you have to certify also. If it didn’t go that way, he said he would question how cost effective it is going to be to have every piecemeal TI job, 5 projects in a single building have to separately go through the paperwork and certify, which is onerous. He said he would be more inclined to the city determination if going that way. Cupertino Planning Commission October 12, 2010 23 Chair Brophy: Wouldn’t most renovations of multi-tenant buildings come under the minor renovation category.? The major renovation is at 25,000 sq. ft. Com. Kaneda: Said he would look at bumping that back down to 10,000 and use Option 2 certification. Com. Giefer: Said she agreed with most of Com. Kaneda’s summary; but was not comfortable with self- certification for the commercial. You are guaranteed to have certified plans but the building may or may not perform and those are the projects that when they come into play can actually make the biggest difference, because they are the largest ones. That is a concern with regards to the self or secondary certification option, and it doesn’t meet the over-arching objective with what AB32 and other things are trying to accomplish. The EBOM is intriguing because it is done all at one time and you don’t have to come back and it is less onerous in the long run for the building. For new construction for commercial, she agreed that the 50,000 is too high and would choose 25,000. It is the certification process; if you are leaving it up to an independent certification process who reviews your plan, then the concern is your plans are certified, but as Walker Wells mentioned earlier, 60% of what is in the plan gets executed and that is a huge swing. Said she was concerned that they might miss and one thing that would be helpful would be to understand from staff what percent of permits are under $25K. She said those present are familiar with the ones that are well over that because they come to the Commission; but it is the day-to-day running of business that is quite a bit under that size. Com. Giefer: All those less than $25K add up to a big square footage number that is missing. Said she wanted to know about the mix of commercial permits, both renovations and new. Said she felt they had a good handle on the new because they met those people; but relative to the renovations, the day-to-day business, they don’t have a clue what those are until they see construction going on in the city. Com. Kaneda: A huge issue is the existing single family homes which the State is currently grappling with. It is the type of thing nobody wants to discuss and is where most of the energy is going. If nothing is done, the problem is not being attacked, because even if you get all of new homes from now on down to zero, there is such a huge number. Looking at Cupertino, how much space is there for new home construction, how many existing homes are there that 95% of the land is already taken up with existing homes. Aarti Shrivastava: Said they are addressing part of it by saying single family projects that renovate more than 50% of the area have to meet Cal Green mandatory; they don’t want to go after people who are not doing anything. Cal Green doesn’t address energy. Com. Kaneda: Said he did not think it would be solved at this level, but it is an issue. Com. Giefer: Said she felt it was a good idea to have a tiered residential system; the bigger home you build, you should have to achieve more points because you are consuming more resources, and Cupertino Planning Commission October 12, 2010 24 creating more greenhouse gases in the long run. Chair Brophy: Asked Com. Giefer if she would use the tier in lieu of the number of homes, and base it on the square footage? Com. Giefer: Said she would use the tier in lieu of the number of homes. She said it sounded reasonable if assumptions are made based on the Build It Green number discussed earlier, that you can come up with a multi-unit single family residential tiered system, that speaks to both the square footage and the units. If you assume that the multi-dwelling units were 1,000 square feet, if you said 5 units, 5,000 square feet bigger or smaller, then perhaps that is demarcation for the multi-unit. She said she liked the big system of the 1,850 3-bedroom and the 2,600 for the 4 bedroom; you achieve different tiers of points based on the square footage. Aarti Shrivastava: Said the simpler they make it, the easier it is if they have a square footage amount for a single family, and if they are bigger, they need to meet more points, ala Morgan Hill, and have more of a density in size for the multi-family. Com. Giefer: Asked staff to return with their opinion on what is reasonable and manageable based on Commission’s comments. Walker Wells: Relative to how much time the certification process adds to the project schedule, he said the requirement for certification should not add any time to the project schedule because you would know about it ahead of time, you prepare the documentation that city needs to see when you get your building permit, project would be done and you would be able to get a temporary certificate of occupancy. The final certificate of occupancy is given when the certification is brought forward. The consultant who does the review on behalf of the city is a good one and is tied into the city process, they should get it done within the same plan check timeframe as the building official and public works is doing. Com. Miller: Said it was an interesting concept, but he saw potential problems with the temporary certificate of occupancy; what happens if the building does not meet? Walker Wells: That is the reason for the fee. If you don’t bring your certification within whatever the accepted amount of time is, you forfeit your fee and you are then considered to be free and clear; your building is not paralyzed or held hostage by this requirement and are not precluded from transacting it which is the concern. Aarti Shrivastava: If the Planning Commission wants to go to the verification, the mechanics of it can be discussed; one is the way it is set up; the other way is to say you get your final occupancy and the city holds the deposit. You either forfeit the deposit or you have to spend at least the amount of the deposit to try to rectify it. Cupertino Planning Commission October 12, 2010 25 Com. Miller: From a practical standpoint, if you get the certificate of occupancy and someone moves in, it might be difficult to go into that structure and start rectifying it. If not given a temporary certificate of occupancy, how long is it from the completion of the building to the approval of the certification? Walker Wells: Said he was not certain anyone would do so, but if they wanted, they could say they would not occupy that building until they get their certification from the US Green Building Council. They could build in 2 to 3 months of a cushion to go through the submittal process. Com. Miller: Said with respect to Option 1 or 2, his concern is more with the cost of time and expense, and he did not feel strongly about one or the other; but felt strongly that there be some offset to whichever one they require. He said he was not in favor of mandatory and was in favor of incentive based and would rather that the developer want to do it because either the market place or the city provided the incentives to motivate him to do it, which makes compliance easier. He said he felt they should begin at the lower levels and work up to the higher levels as they get more familiar with the process and as they can demonstrate that they can offset the costs of the lower level at first instance and to the higher level as staff becomes more experienced in doing this. In Option 1, staff would be looking for ways to reduce other costs in the approval process. The other ideas discussed making the point system based on size of the home is a better approach than number of units; it gets more to the heart of what they are trying to do. It made sense and Com. Kaneda’s suggestion that there be a flat rate also made sense. He said there was general consensus towards that, and he supported it. Com. Kaneda: Regarding fees and deposits, that idea; different numbers have come from Washington D.C., which has some huge punitive number too, and San Jose who has an extremely low number which is not even a slap on the wrist. San Jose’s approach is they said they are going to throw out a really low number because hopefully people are going to do the right thing for the right reason and not scoff at it and say here is my check, I am not coming back; but they put in a review of how well it is working, so if it turns out that is the result, they can turn around and say okay you are forcing our hand we are going to start ratcheting up the rates until they get to the point where people will pay attention. Financially it is the least onerous, and there is the ability to do something about it if it is not working, yet you have the ability if it is not working to do something about it. It sounds like staff could come up with an alternative way of doing it with the credit line that may not be onerous. He said he was referring to the fee deposit for Option 1, and if they say LEED silver and they don’t get LEED certified or something like that. San Jose seems workable; what you talked about with credit lines, I am not sure I understand it but it seems like a reasonable way of doing it also. Walker Wells: The credit line is a mechanism so that people don’t have to tie up real dollars in an account; more to the point is that the way this has been structured is to say that the fee needs to be a dis- incentive for not complying or stated the other way, an incentive to comply. It would be cheaper to go through GPR or LEED than to forfeit the money to the city. That is how it is structure; it means it is big, so it is the opposite of what San Jose has done because the concern that has always come up everywhere I have worked is that people would perceive it as an in- Cupertino Planning Commission October 12, 2010 26 lieu fee just like they do for affordable housing. Vice Chair Lee: Relative to the residential units, it makes sense to make the thresholds on square footage instead of number of homes, such as 5,000; one of the comments from the focus groups was to make it easier. Still need to discuss the number of points, whether it should be 50, 75 or 100. It would make sense instead of trying to remember two different point systems, two different thresholds. She said she felt more discussion was needed about the incentives; she was not totally against them with requirements for parking and square footage; there was merit in having some incentives for developers. EBOM is important; she said she was surprised to hear that when the building specs are written out when it is planned and actually performs, it tapers off to 60%, which is low. Need more discussion on LEED EBOM and see if that should be an option, and not a sidebar. At the focus group meetings there was not much discussion on EBOM, but talked about LEED. Relative to verifications, should go more toward Option 1; the six month grace period is appropriate. Chair Brophy: Relative to residential, he suggested raising the number of unit count for the lower level back up to 9, like Phase II recommendations; and for homes less than 2,000 sq. ft. he said he would support 75 point GPR; for over 2,000 sq. ft., 100 point GPR. For the various other commercial ones, wherever it says 3 of the 4 following systems, replace that with HVAC plus two of the three systems. Said for formal certification vs. Option 2, he would choose 25K and make it below 25K, 10 to 25 be Option 2 and above 25 formal certification; Option 2 for multi-family renovation. Relative to the grace period, given the rate of construction, there has to be some grace period because there are people who are individual builders who are not part of the larger development community or working on their house plans; perhaps 3 is enough, in this market 6 is appropriate. Com. Giefer: Why wouldn’t we want to notify everyone who we have had a discussion with and say that we are working on a green building policy and once it is resolved, notify them in advance that it is going to go in effect on X date, so that the time now through our deliberations through implementation is actually part of that grace period. Aarti Shrivastava: Said there was a cost to notifying everyone individually; the decision was made to send out the one notice to get people involved so that they keep track of the project, and the cost runs in the range of $6,000 for every notification. Any additional notification to that same list will need more funding. Chair Brophy: There is a logical argument to the suggestion; looking at the ease of administration issue that Walker Wells was covering earlier, it is probably easier to say X months from date of passage. Aarti Shrivastava: Said that when people are designing a project, they come to the city to ask what the rules are; and staff wants to be able to tell them the rules, but it is difficult to tell them the rules when they haven’t yet been identified. Cupertino Planning Commission October 12, 2010 27 Com. Giefer: Said that if a permit expired in two years, she could pull her permit and then not have to have funding for the project; and then in 24 months after that notification period, she could start a project that is so far in the future by the time that it is executed on the ground and completed, they are pushing that out; it is not just a three month notification. Said she was trying to understand what could be the worst case project on the ground after this is submitted which if it is three months, that is actually 3 months plus 24 months or 6 months plus 24 months. Aarti Shrivastava: Once a building permit is applied for, it needs to be kept active; if the inactive time is exceeded, the permit becomes expired and re-application for the permit is necessary. The inactivity period is 6 months and one extension is allowed. Com. Miller: Relative to the industry side, people make decisions to do a development well in advance. It is appropriate to give lead time, if they decide that is the straw that broke the camel’s back and they don’t want to go ahead with the development, they are not caught. For that reason alone, it is reasonable to give a lead time. He said he supported 6 months, for larger projects a year or two. As Com. Giefer said earlier, people know this discussion is happening, so for the larger projects, they are more aware and are going to be coming in and staff will inform them. There is concern about the smaller projects, where they are probably not aware and you don’t want them to get caught. Chair Brophy: There aren’t people rushing to do building plans on larger projects now. There are individual homes and those would be the issue, but they have a shorter lead time in terms of preparing design documents. Aarti Shrivastava: Said she would follow up with the City Manager on the availability of funds to have Walker Wells attend the next meeting the application was continued to. Motion: Motion by Com. Miller, second by Com. Kaneda, and unanimously carried 5-0-0, to continue Application MCA-2010-04 to the October 26, 2010 meeting. 4. MCA-2010-05 Municipal Code Amendment to Chapter 19.100 (Parking Ordinance) City of Cupertino with associated amendments to Chapter 19.08 (Definitions) related to Citywide Location clarifying language regarding storage and parking of heavy equipment, aircraft and planned non-operational vehicles in residential zones.Postponed from the September 28, 2010Planning Commission meeting; Tentative City Council date: November 16, 2010. Piu Ghosh, Associate Planner, presented the staff report: Reviewed the application for Municipal Code Amendment to Chapter 19.100 (Parking Ordinance) of the Cupertino Municipal Code with associated amendments regarding storage and parking of heavy equipment and planned non-operational vehicles in residential zones, as outlined in the staff report. The purpose of the Parking Ordinance is to regulate the parking of vehicles which are unsightly, oversized or detrimental to property values, or to the peace and enjoyment of Cupertino Planning Commission October 12, 2010 28 neighboring property owners or residents. She reviewed the proposed amendments to the ordinance, including parking on impervious and semi-pervious surface, storage of heavy equipment, storage of airplanes, planned non-operational vehicles, and farm equipment, as outlined in the staff report. Com. Giefer: Questioned if the small tractor on Regnart Road would have to be removed, noting that it was likely originally agricultural or RHS but now being rezoned to residential. She said she would not want to see it removed as it has been on the property longer than many people have been in Cupertino. Piu Ghosh: Said that it would have to be covered up behind a fence. Code Enforcement staff: Said that the tractor had been there for many years and was probably originally a decorative statuary at some point in time; although the property is in disrepair and the owners are no longer there. He said it could be an unattractive nuisance and should be removed at some point; as there was no reason to preserve it although it may have some historical significance to the residents who have been around many years. Com. Giefer: Said she understood the ordinance, but said there is a certain charm to some of the artifacts that have been in Cupertino a lot longer than many people; and she did not want the Ballards to have to remove the tractor from their property or that the bi-plane would have to be removed from Regnart. Staff: It does not have to be removed, but has to meet the requirements of screening which has to be behind a conforming fence. Said it would be difficult to separate the historical equipment. Chair Brophy opened the public hearing. Larry Goe, 10279 Brett Avenue: (Mr. Goe left the meeting earlier and his opinion was conveyed by Gary Chao): Expressed concern about Section 19.100.030 specifically regarding the number of vehicles that the current ordinance restricts in front and side yard areas. His concern is that there seems to be a need for additional vehicles allowed to be stored; in discussion with his neighbors instead of the maximum of 4 vehicles permitted on residential lots of 10,000 sq. ft. or less, and 6 vehicles permitted in other residential zones; he recommended that those two numbers be increased from 4 to 6 and 6 to 8. He felt if somebody has a fairly large lot, and has the need, there should be a way for the city to allow for storage of vehicles, specifically if it is behind a fence. Gary Chao: Said they were not proposing to change the section; it is not within the scope of being changed, that is the existing ordinance. Section A1 prescribes that those requirements only come up when you are seeking to park in the front yard area or side yard area visible to the public. The one instance where it talked about rear yard area, is also a situation where you have a corner lot and have a portion of your rear lot potentially visible. Cupertino Planning Commission October 12, 2010 29 The current ordinance allows for additional vehicles to be parked on any residential property as long as it is not visible to the public, on the front or the side setback requirements. Gary Chao explained that if a person has a fairly large lot and wants to put something in the back yard, no one can see since it is fenced in, the current ordinance allows for additional vehicles in addition to the number of cars being prescribed here; or if they have a large lot and can build a sizable house with many garages enclosed and the cars would not be visible, those cars won’t be counted toward that. Gary Chao said that in essence, the ordinance does address Mr. Goe’s concern. Staff: Said that vehicles over 10,000 pounds are not permitted to be parked in driveways, such as tractors, semi-trucks that tow, big rig tractor; some tow trucks are over 10,000 trucks. Com. Kaneda: Said he supported it in its current form. Vice Chair Lee: Supports Option B; said that if it is farm equipment, it could be under the heading as heavy equipment and was acceptable if it is not seen by the residents and screened behind a fence. Farm equipment should be allowed on residential properties subject to screening like other heavy equipment. Chair Brophy: Said it made sense to him; and he was not sure there was a big difference between farm equipment and any other heavy equipment. Com. Miller: Supported Option B. Gary Chao: Said that usually code enforcement cases are processed based on complaints received. Given that the farm equipment has been there for more than 15 years, it was doubtful that anyone would raise a concern. In the event that the property owner comes in for development, or permit required for modification, that is when staff would move forward on it. Chair Brophy: Said there was consensus for Option B, with the statement all heavy equipment can apply to all properties as long as it is screened. Staff will make the change accordingly. Motion: Motion by Vice Chair Lee, second by Com. Miller, and unanimously carried 5-0-0 to approve Application MCA-2010-05 with the alternative Option to allow farm equipment to be classified as heavy equipment, and that it would be allowed on residential properties including R1, R2, RHS and A1 zones, but subject to screening like other heavy equipment. Friendly amendment by Com. Kaneda: That it apply to non-residential properties as well. Vice Chair Lee and Com. Miller accepted the friendly amendment. Motion carried unanimously 5-0-0. Cupertino Planning Commission October 12, 2010 30 Com. Giefer: Commented that when PG&E and the Water Company are doing tree and line work with heavy equipment, they stage their equipment on the road where the horse corral use to be; and it is by agreement with the property owners that they are allowed to park their heavy equipment there for whatever period of time it takes to make repairs; and none of that is screened. She said to her knowledge no one complains about it because they are glad to have the work done, but it flies in the fact of that type of staging. Will PG&E and the water company park their cars, their heavy equipment some place else and bring it back every day. Aarti Shrivastava: The last sentence in the paragraph on heavy equipment, says that heavy equipment may temporarily be kept for construction or installation of improvements; if there is construction going on, we do consider that. There is nothing happening on this site, we have the ability to say move it or screen it. OLD BUSINESS:None NEW BUSINESS:None REPORT OF THE PLANNING COMMISSION Environmental Review Committee: th No meeting. A meeting is scheduled for Thursday October 14, Chair Brophy will attend in Com. Kaneda’s place. Mayor’s Monthly Meeting With Commissioners: th Meeting may be scheduled for Wed. October 13. Economic Development Committee Meeting:No report. REPORT OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: Aarti Shrivastava reviewed the Council’s decision on The Metropolitan.They movedforward with getting 40% of the frontage as non-retail, working within the rules the Planning Commission set, restricting it to Building B and also said that if the non-retail is going to be medical, they should work with staff to determine how many spaces can be in the garage. The Council also upheld the Planning Commission recommendation to deny the map to create the five condos; and asked staff to work with the applicant to rectify the DRE issue where they actually went forward and recorded the five condos. The cell tower on Results Way has been appealed and will go to the Council shortly. Adjournment:The meeting was adjourned to the next regular Planning Commission meeting scheduled for October 26, 2010 at 6:45 p.m. Respectfully Submitted: ___/s/Elizabeth Ellis_______________ Elizabeth Ellis, Recording Secretary