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PC Min 05/25/2004 CITY OF CAMPBELL PLANNING COMMISSION MINUTES 7:30 P.M. TUESDAY MAY 25,2004 CITY HALL COUNCIL CHAMBERS The Planning Commission meeting of May 25, 2004, was called to order at 7:30 p.m., in the Council Chambers, 70 North First Street, Campbell, California by Chair Doorley and the following proceedings were had, to wit: ROLL CALL Commissioners Present: Chair: Vice Chair: Commissioner: Commissioner: Commissioner: Commissioner: Commissioner: George Doorley Elizabeth Gibbons Tom Francois Joseph D. Hernandez Bob Alderete Michael Rocha Bob Roseberry Commissioners Absent: None Staff Present: Community Development Director: Senior Planner: Planner I: City Attorney Reporting Secretary: Sharon Fierro Geoff I. Bradley Stephanie Willsey William Seligmann Corinne A. Shinn APPROVAL OF MINUTES Motion: On motion of Commissioner Francois, seconded by Commissioner Rocha, the Planning Commission minutes of May 11, 2004, were approved as submitted. (4-0-0-3; Commissioners Doorley, Gibbons and Hernandez abstained) COMMUNICATIONS There were no communications items. AGENDA MODIFICATIONS OR POSTPONEMENTS There were no agenda modifications or postponements. Planning Commission Minutes of May 25,2004 Page 2 ORAL REOUESTS There were no oral requests. PUBLIC HEARING *** Chair Doorley read Agenda Item No.1 into the record. 1. PLN2004-22 Marr, M. Motion: Public Hearing to consider the application of Mr. Michael Marr for a Variance (PLN2004-22) to allow an accessory structure within the required rear and side yard setbacks on property owned by Mr. Michael Marr located at 32 S. Milton Avenue in an R-1-6 (Single Family Residential) Zoning District. Staff is recommending that this project be deemed Categorically Exempt under CEQA. Planning Commission decision final, unless appealed in writing to the City Clerk within 10 days. Project Planner: Melinda Denis, Planner 1. NOTE THAT THIS ITEM HAS BEEN WITHDRAWN. Upon motion of Commissioner Gibbons, seconded by Commissioner Francois, the Planning Commission withdrew consideration of PLN2004-22 for a Variance for property located at 32 S. Milton Avenue from the agenda at the request of the applicant, by the following roll call vote: AYES: Alderete, Doorley, Francois, Gibbons, Hernandez, Rocha and Roseberry NOES: None ABSENT: None ABSTAIN: None *** Chair Doorley read Agenda Item No.2 into the record. 2. PLN2004-37 Morter, G. Public Hearing to consider the application of Mr. Gavin Morter, on behalf of Net Asylum, for a Conditional Use Permit (pLN2004-37) to allow an internet café in an existing tenant space with late night operations on property owned by Mr. Michael Rugani located at 68 E. Campbell Avenue in a P-D (planned Development) Zoning District. Staff is recommending that this project be deemed Categorically Exempt under CEQA. Planning Commission decision final, unless appealed in writing to the City Clerk within 10 days. Project Planner: Stephanie Willsey, Planner I Ms. Stephanie Willsey, Planner I, presented the staff report as follows: . Advised that the applicant is seeking approval of a Conditional Use Permit to allow the establishment of an Internet café with late night operations. . Described the project location as being on the corner ofE. Campbell Avenue and S. Fourth Street in a P-D (planned Development) Zoning District. Planning Commission Minutes of May 25,2004 Page 3 . Explained that the proposed use would consist of the use of computers for Internet access and games, the sale of computer goods and services and limited pre-packaged snacks. There will be no alcohol sales or consumption on the site. . Added that this use is determined to be very similar to an arcade. The business caters to young people. . Said that the applicant's proposed hours of operation are from 4 p.m. to 2 a.m., Sunday through Thursday, and from 4 p.m. to 7 a.m. on Fridays and Saturdays. The applicant proposes not to allow access for minors after 10 p.m. without being accompanied by a guardian. However, neither staff nor the Police Department is supportive of these proposed hours of operation. Staff's recommendation is from 9 a.m. to II p.m., Sunday through Thursday, and from 9 a.m. to midnight on Fridays and Saturdays. No minors may gain entry after 10 p.m. . Informed that this property was developed prior to the City's incorporation. The site is built out and has an un-striped shared parking area as well as two-hour parking along Fourth Street. A condition of approval is proposed to require the striping of the parking lot at the rear of the building. . Recommended approval with conditions. Commissioner Hernandez asked if the striping of the rear parking area would result in the required 10 parking spaces to meet minimum Code requirements for this proposed use. Planner Stephanie Willsey replied no. The striping would result in approximately six spaces total, which must serve all three tenants of the building. Commissioner Hernandez asked whether staff's rationale for supporting inadequate parking is simply because this is a grandfathered building. Planner Stephanie Willsey agreed that the rationale is that this is an existing commercial building that was built that way and that has no opportunity to add additional parking on-site. Commissioner Hernandez asked if there have been parking related complaints in the past. Planner Stephanie Willsey replied that no written complaints have been received but that she had heard from surrounding neighbors regarding previous uses on site. Commissioner Gibbons asked if support for this use is possible because this is an existing building with commercial uses that have been on going over the years and that parking is what it has been. She asked if there is an avenue here to make changes to that situation or is it what it is? Senior Planner Geoffl. Bradley: . Explained that this is retail space that was built in the late 40s in the Downtown core. . Said that while this site cannot intensify its uses, for example with a restaurant, it can continue to be reoccupied with retail type businesses. . Stated that this proposal for an arcade-type business has the same parking ratio requirement as retail. From a parking perspective, this does not represent a change. Planning Commission Minutes of May 25,2004 Page 4 . Added that it is, however, within the discretionary power of the Commission to impose requirements. Commissioner Alderete pointed out that the proposed floor plan indicates 24 seats/computer stations. He asked if this is not more intense than the previous fur business. Planner Stephanie Willsey replied that this is a subjective call for the Commission to make but added that she did not think this use would be more intensive. Cautioned that another retail use could locate in this space without the requirement for a Use Permit, even a more popular type retailer that could result in heavier traffic. Commissioner Roseberry asked if there is another arcade in the Downtown or elsewhere in Campbell. Planner Stephanie Willsey replied no. She added that the Police Department has not issued a full arcade permit (10 machines or more) but has issued permits for semi-arcades (fewer than 10 machines). Commissioner Roseberry asked if there are other businesses in Campbell operating 24 hours a day. Senior Planner GeoffI. Bradley listed Walgreen's, Safeway and Denny's. Commissioner Rocha asked who would be responsible for overseeing what these young people surf over the Internet? Planner Stephanie Willsey replied that an employee of the business, who is over 18, would supervise. She added that the Police Department prohibits any adult material at this location. Chair Doorley asked ifthis applies even ifthe customer is of age. City Attorney William Seligmann said that the Adult Zoning does not cover that use. The proposed Ordinance would regulate such activity. Chair Doorley asked for a more clear, yes or no, type of response. City Attorney William Seligmann elaborated that nothing prohibits adults from viewing adult materials. Chair Doorley asked if this is the case even if there are minors nearby. City Attorney William Seligmann replied yes, not as the Code is currently written. Commissioner Rocha asked for clarification regarding requiring those under 18 to be accompanied by an adult after 10 p.m. and what the penalties might be for violations of that rule. Planner Stephanie Willsey replied that the Police Department would so determine. Planning Commission Minutes of May 25,2004 Page 5 Director Sharon Fierro replied that the possible penalty is the revocation of the Use Permit for lack of compliance with the Conditions of Approval. Commissioner Rocha recommended that a time line for review of this Use Permit be established to be able to see how it is going. Director Sharon Fierro said that she did a survey of other communities over the Internet. She added that a review after a certain period oftime is certainly appropriate. Commissioner Alderete asked what age ranges are in mind when describing "young people" in the staff report. Senior Planner Geoff I. Bradley quipped that he would defer to a "younger" person to reply to that question. Planner Stephanie Willsey said that she had informally spoken with friends who patronize similar types of businesses. Those friends advised her that the age range appears to be between 14 to 21 years of age. The majority is there to participate in elaborate computer games. Director Sharon Fierro cautioned that there is no minimum age to enter this establishment. Commissioner Roseberry asked whether there is any specification in Code regarding ages for entrance into arcades. Planner Stephanie Willsey replied no. Commissioner Francois suggested the use of a firewall to prevent access to adult material by mInors. City Attorney William Seligmann said that this requirement could be attached as a Condition of Approval to limit access to minors but not to adults. Chair Doorley opened the Public Hearing for Agenda Item No 2. Mr. Troy Knapp, 28 E. Campbell Avenue, Campbell: . Said that he has some concerns. . Explained that the entrance to his driveway is through the alley ofthis business. . Said that the previous tenant, the Ballroom Dance supply, caused an issue regarding getting vehicles in and out ofthe alley. . Said that 2 a.m. is too late to stay open due to the close proximity to residential uses, his included. . Suggested that 10 p.m. is more reasonable. . Pointed out that there is also a six-unit apartment building that abuts the alley. . Said that there are only about four or five parking spaces on Fourth Street. . Said that he sees parking and late night noise as potential issues. Mr. Gavin Morter, Applicant and Business Owner, Net Asylum: Planning Commission Minutes of May 25,2004 Page 6 . Said that he is the business owner. . Agreed that his clientele is a younger crowd. . Pointed out that many do not yet drive and will be picked up and dropped off, which would not require parking of a vehicle. . Said that he would also provide directions to the public parking structure just across the street. . Explained that he would close the doors to newcomers at 10 p.m. and let those already there stay until closing. . Stated that he would ask his customers not to view adult sites due to the proximity of children. Chair Doorley asked for a more concrete commitment to that promise. Mr. Gavin Morter said that he would not allow access to adult sites at all. Chair Doorley asked if some sort of agreement could be entered into by members of this business that no adult material will be viewed. Mr. Gavin Morter said that he is willing but feels that this is a problem if a customer elects not to be a member. He explained that he would not be requiring memberships although members would get a better price. Reiterated that he is willing to restrict access. Commissioner Francois asked Mr. Gavin Morter if he would be willing to install a firewall on all computer stations. How does he feel about that suggestion? Mr. Gavin Morter replied that he finds these firewalls to be ineffective and explained that there are ways to get around them. Commissioner Francois asked Mr. Gavin Morter if there is any other method available that he could recommend to achieve this protection. Mr. Gavin Morter said simply to watch the customers, supervising what is accessed. He added that it is easy to see what people are viewing given his layout. He assured that he would kick out any customer who does not comply with his rules. Commissioner Rocha said that this is a good use but as an older person, he feels protective. Asked Mr. Gavin Morter to be sensitive to people in the area regarding issues of noise and parking. Asked Mr. Gavin Morter if he has any problem with a six or twelve month review of this use. Mr. Gavin Morter replied no. Commissioner Alderete questioned if there is some sort of search word or monitoring application that would be stronger than a firewall. He asked what the Library uses. Mr. Gavin Morter replied that both options are potentially effective. However, a filter could block access needed for research papers for college students in subjects such as human Planning Commission Minutes of May 25,2004 Page 7 biology. Suggested that his house rules and supervision would be the most effective means of controlling access to adult sites and the penalty for lack of compliance being the shutting off of the computer and asking any violators of the rules to leave the establishment. Commissioner Alderete asked staff if they are aware of what filters are available and/or what the Library uses to block access to adult sites. Senior Planner Geoffl. Bradley pointed out that one is in place at City Hall. Chair Doorley recounted that he recently could not access a church site because the site mentioned gay marriage. City Attorney William Seligmann recounted that he recently sent an email to Senior Planner GeoffBradley that was refused by the City's email because the document had XXX in it. Senior Planner Geoff I. Bradley assured the Commission that the XXX was simply a placeholder for numerals. Commissioner Alderete said that the provision of bicycle parking in back of the shop would be important given the young age of the patrons. Mr. Gavin Morter said that it would not be difficult to section off an area for a bike rack at the back of the store without impacting vehicle parking. Commissioner Rocha also mentioned skateboards. Mr. Gavin Morter said that there could be space set aside inside his business to store his customers' skateboards. Commissioner Roseberry said that monitoring within the store would be the best way to handle restricting access to adult sites. Asked if there is a way to audit computers. Mr. Gavin Morter said that there are programs available to keep a log of the sites accessed. Commissioner Roseberry asked if this is a standard application. Mr. Gavin Morter said no, it would have to be installed. Commissioner Roseberry asked if this could be conditional. City Attorney William Seligmann replied that it would probably be all right as long as it doesn't identify specific users. Commissioner Roseberry asked if imposing this requirement for this technology would be a deal breaker for Mr. Gavin Morter. Planning Commission Minutes of May 25, 2004 Page 8 Mr. Gavin Morter replied no, although he was not sure how to implement this. He added that he hopes this requirement is not imposed and assured that he would be watching what occurs at his business. Commissioner Gibbons: . Asked what this would accomplish, how the information would be used and who would enforce it. . Suggested adding conditions to: 0 require bicycle parking; 0 having filters on 50 percent of the machines and assigning those machines to customers under the age of 18; 0 restrict exiting to the back of the business after 10 p.m.; 0 restrict the dumping of bottles, etc., into the recycling bins; 0 require a three, six and one year review ofthis use; 0 post the etiquette rules in the establishment that mandates no liquor and no adult materials and stating that violators will be removed from the premises. . Said that she is not comfortable with the applicant's proposed overnight hours but that she is comfortable with staff's proposal closing the business at 10 p.m. during the week and at 12 a.m. on Friday and Saturday. Commissioner Hernandez asked Mr. Gavin Morter how he felt about these proposed hours. Mr. Gavin Morter: . Said that the reduced hours would hurt his business. . Pointed out that many of his customers get out of school late in the afternoon. . Said that he knows of other similar cafes where customers arrive at 10 p.m. and leave at 7 a.m. . Added that the 18 to 30 year olds tend to stay up late until 1 or 2 in the morning. Commissioner Hernandez: . Joked, unless they have kids. . Said that he has concerns regarding parking and noise impacts. . Said that he wants to see bicycle parking and supervision against access to adult content. . Said that with these conditions, he can support. . Asked Mr. Gavin Morter if he understands that the remedy for violations to these conditions could be the revocation of this Use Permit. Mr. Gavin Morter replied yes, he does so understand. Said that he definitely does not want to disturb his neighbors as he himself has had lousy neighbors and he does not want to create any problems. Commissioner Hernandez cautioned Mr. Gavin Morter that he would need to police the area if his customers spill out to the back of his business. Chair Doorley closed the Public Hearing for Agenda Item No.2. Commissioner Hernandez: Planning Commission Minutes of May 25,2004 Page 9 . Said that he has clear concerns regarding parking, bicycle parking, hours and access to adult content. . Said that he is satisfied with the owner's intent to comply with the conditions of approval. . Said that he is willing to allow this applicant the opportunity to demonstrate his ability to comply. . Added that the Use Permit could be revisited if the Community Development Director receives substantiated complaints. . Expressed support for six and 12-month reviews of this use. . Said that he is comfortable moving forward. Commissioner Rocha: . Said that he believes this applicant is sincere. . Pointed out that this is a new form of entertainment for young folks and that he has a 21- year-old who is out to early hours of the morning. . Stated that he supports this application and thinks this owner will do a great job. . Cautioned that without monitoring, people may tend to loiter. Commissioner Gibbons: . Suggested the modification of the Conditions of Approval to include a requirement for bicycle parking, filtering of half of the machines against adult content; requiring that garbage not be emptied after 10 p.m.; the review of the use at six and 12 months; the posting of the establishment's etiquette rules and the posting of the complaint process. Chair Doorley said that he feels similarly but that he is not interested in the filtering process. He said that he prefers the overall policy of not allowing any access to adult material. Commissioner Roseberry asked for clarification as to which hours of operation are recommended. Chair Doorley pointed out that ifthis business operates smoothly, the owner can return later for additional hours. Commissioner Alderete: . Concurred with the previous comments. . Stated that he likes the provision of bicycle parking. . Suggested support for filtering applications or web session tracking software to restrict access to adult content, whether they can be defeated or not. . Added that these means offer more teeth than simply stating house rules. . Supported the posting of signage regarding the etiquette rules and complaint procedures. Director Sharon Fierro suggested a short recess to allow staff to research an appropriate definition of adult content for inclusion in the Conditions of Approval. Chair Doorley quoted "I'll know it, when I see it." Chair Doorley called for a recess at 8:20 p.m. Planning Commission Minutes of May 25,2004 Page 10 Chair Doorley reconvened the meeting at 8:28 p.m. City Attorney William Seligmann: . Explained that the following definition of adult content is derived from the draft Adult- Oriented Businesses Ordinance as follows: 0 Adult content emphasizes human genitals or pubic region; buttocks; and female breast below a point immediately above the top of the areola. Specific sexual activities shall mean and include any of the following, the fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breast; sex acts, actual or simulated, including intercourse, oral copulation, or sodomy; masturbation, actual or simulated; and excretory functions as part of or in connection with any of the other activities. Commissioner Francois advised City Attorney William Seligmann that this is almost too much information. Commissioner Hernandez asked if this is part of the Municipal Code. City Attorney William Seligmann replied not yet. This draft ordinance will come back to the Commission for further review. Director Sharon Fierro pointed out that this draft is based on industry standards. City Attorney William Seligmann added that this draft is influenced by a model ordinance that was developed by the League of California Cities. Commissioner Alderete asked for the purpose of this description of adult content. City Attorney William Seligmann said that the Commissioners would need to define adult material in the Conditions of Approval. Motion: Upon motion of Commissioner Rocha, seconded by Commissioner Alderete, the Planning Commission adopted Resolution No. 3569 approving a Conditional Use Permit (PLN2004-37) to allow an internet café in an existing tenant space with late night operations on property owned by Mr. Michael Rugani located at 68 E. Campbell Avenue with the following additions to the Conditions of Approval: . Modify Condition 2 to require a six and 12-month review; . Add Condition ll-A to read that" bicycle racks to accommodate 12 bicycles shall be installed at the rear of the building in a manner that does not interfere with access to and from the driveway; . Add Condition 11-B to read that "Trash removal from this business to the dumpster and/or recycle bins shall be constrained to the hours between 9 a.m. and 5 p.m.; . Add Condition 12-A to read that "Rules of etiquette shall be clearly posted, including that no viewing of adult content shall be permitted on the premises; Planning Commission Minutes of May 25,2004 Page 11 . Add Condition 12-B to read that "The complaint procedures shall be posted on site." And adding the following Finding of Fact: . The applicant has stipulated a condition for the prohibition of accessing adult content from the premises. Adult content emphasizes human genitals or pubic region; buttocks; and female breast below a point immediately above the top of the areola. Specific sexual activities shall mean and include any of the following, the fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breast; sex acts, actual or simulated, including intercourse, oral copulation, or sodomy; masturbation, actual or simulated; and excretory functions as part of or in connection with any of the other activities, and found this project to be Categorically Exempt under CEQA, by the following roll call vote: AYES: Alderete, Doorley, Francois, Gibbons, Hernandez, Rocha and Roseberry NOES: None ABSENT: None ABSTAIN: None Chair Doorley advised that this action is final unless appealed in writing to the City Clerk in 10 days. *** REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR The written report of Ms. Sharon Fierro, Community Development Director, was accepted as presented with the following additions: . Advised that Council, at its meeting of May 18,2004, took second reading of an Ordinance approving a Zone Change for 243 W. Rincon Avenue. . Added that the Council also received a moving visit by Mr. Kenneth Estep, who recently lost his son, Sergeant Adam Estep, to the war in Iraq. Mr. Estep wanted to thank the community for its support of his family during these difficult times. . Reported that the next Planning Commission agenda on June 8, 2004, would consist of four items. Commissioner Francois announced that there would be a Memorial Day wreath presentation at 9 a.m. on Monday, May 31 5t at the Orchard City Green. The Prospect High School ROTC is the sponsor. Additionally, the Kiwanis Club will also be presenting a wreath. ADJOURNMENT The Planning Commission meeting adjourned at 8:38 p.m. to the next Regular Planning Commission Meeting of June 8, 2004. Planning Commission Minutes of May 25,2004 Page 12 SUBMITTED BY: APPROVED BY: ATTEST: \.. orinne A. Shinn, Recor mg Secretary Jft~ ~eo Doorley,Chair ~~ . aron Fierro, Sec tary