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PC Min - 04/08/2014CITY OF CAMPBELL PLANNING COMMISSION MINUTES 7:30 P.M. TUESDAY APRIL 8, 2014 CITY HALL COUNCIL CHAMBERS The Planning Commission meeting of April 8, 2014, was called to order at 7:30 p.m., in the Council Chambers, 70 North First Street, Campbell, California by Chair Resnikoff and the following proceedings were had, to wit: ROLL CALL Commissioners Present: Chair: Vice Chair: Commissioner: Commissioner: Commissioner: Commissioner: Commissioners Absent: None Staff Present: Building Official: Planning Manager: Associate Planner: City Attorney: Recording Secretary APPROVAL OF MINUTES Paul Resnikoff Pam Finch Cynthia L. Dodd Yvonne Kendall Philip C. Reynolds, Jr. Michael L. Rich Bill Bruckart Aki Honda Snelling Daniel Fama William Seligmann Corinne Shinn Motion: Upon motion by Commissioner Reynolds, seconded by Commissioner Finch, the Planning Commission minutes of the meeting of March 25, 2014, were approved. (4-0-0-2; Commissioners Dodd and Rich abstained) COMMUNICATIONS 1. One desk item for Agenda Item 3 was distributed and one revised site plan for the Study Session. Campbell Planning Commission Minutes for April 8, 2014 Page 2 AGENDA MODIFICATIONS OR POSTPONEMENTS There were no agenda modifications or postponements. ORAL REQUESTS There were no oral requests. *** PUBLIC HEARINGS Commissioner Reynolds advised that he would recuse from Public Hearing No. 1 due to a professional conflict of interest. He left the dais and chambers for the duration of the hearing on this item. Chair Resnikoff read Agenda Item No. 1 into the record as follows: 1. PLN2013-355 Public Hearing to consider the application of Metro PCS for a Metro PCS Conditional Use Permit (PLN2013-355) to allow modification and continued operation of an existing wireless telecommunication facility on property located at 1469 S. Bascom Avenue. Staff is recommending that this project be deemed Categorically exempt under CEQA. Planning Commission action final unless appealed in writing to the City Clerk within 10 calendar days. Project Planner: Daniel Fama, Associate Planner Mr. Daniel Fama, Associate Planner, presented the staff report as follows: • Reported that MetroPCS is seeking a Conditional use Permit for a site at the northern border of San Jose at 1469 S. Bascom Avenue, at the Corner of Bascom and the Light Rail line crossing. The existing wireless antennas are located atop the PG&E tower at 125 feet in height. • Said that the original CUP was granted in 2002 and extended by the Community Development Director in 2007. • Said that this request is to replace three existing antennas and add three new antennas and related RRU's. • Using the Zoning Ordinance and General Plan as a guide, new and modified wireless facilities should be compatible with the surrounding and minimize appearance as possible. • Added that in 2009 a Federal law was adopted that limits the reasons for not allowing reasonable modifications to telecommunications sites. • Explained that this proposal results in a minimal change in appearance. It is nearly unperceivable from the ground. • Recommended the adoption of a resolution approving this Conditional Use Permit. Commissioner Finch presented the Site and Architectural Review Committee report as follows: Campbell Planning Commission Minutes for April 8, 2014 Page 3 • SARC reviewed this proposal on March 25, 2014, and was supportive as presented. Chair Resnikoff opened the Public Hearing for Agenda Item No. 1. Chair Resnikoff closed the Public Hearing for Agenda Item No. 1. Motion: Upon motion of Commissioner Kendall, seconded by Commissioner Finch, the Planning Commission adopted Resolution No. 4147 approving a Conditional Use Permit (PLN2013-355) to allow modification and continued operation of an existing wireless telecommunication facility on property located at 1469 S. Bascom Avenue, subject to the conditions of approval, by the following roll call vote: AYES: Dodd, Finch, Kendall, Resnikoff, and Rich NOES: None ABSENT: None ABSTAIN: Reynolds Chair Resnikoff advised that this action is final unless appealed in writing to the City Clerk within 10 calendar days. Commissioner Reynolds returned to the chambers and dais for the next item. *** Chair Resnikoff read Agenda Item No. 2 into the record as follows: 2. PLN2014-54 Public Hearing to consider the application of Phong Van Le Le, Phong Van for an Extension of Time (PLN2014-54) for termination of a non-conforming sexually-oriented business (Campbell Star 99) on property located at 841 Union Avenue. Staff is recommending that this project be deemed Categorically exempt under CEQA. Planning Commission action final unless appealed in writing to the City Clerk within 10 calendar days. Project Planner: Daniel Fama, Associate Planner Mr. Daniel Fama, Associate Planner, presented the staff report as follows: • Reported that the applicant is requesting an Extension of Time for termination of a non-conforming sexually-oriented business (Campbell Star 99) on property located at 841 Union Avenue. • Reminded that in 2008, Code changes were enacted on provisions for sexually- oriented businesses (aka adult businesses). Any new such businesses moving forward would be limited to M-1 (Light Industrial) Zoning Districts and atwo-year amortization process was enacted that required compliance within two years or by August 2012. In 2009, existing uses were to be allowed to continue up until 2020. Campbell Planning Commission Minutes for April 8, 2014 Page 4 • Explained that the City's only such business at that time was Pleasures of the Heart. • Reported that effective in May of 2013, the City of Campbell annexed Cambrian 36 District, which included this existing business, Campbell Star 99. Campbell Star 99 is an adult video rental business. • Said that staff indicated that there would be a one-year amortization up through April 30, 2014, which was one year following annexation. Staff explained that there was an Extension process available, which is the purpose of this hearing. • Describe the project site as containing a strip retail center at the corner of Union and Bascom Avenues. The site is zone C-1 (Neighborhood Commercial). • Reported that the applicant is asking for an Extension of Time to allow them to continue operating at this location until December 31, 2019. That is consistent with the amortization period that had been set in the Ordinance for existing businesses at that time. • Advised that this applicant has a 10-year lease in place that takes them through 2022. • Stated that there are three primary findings for support. 1. That the applicant has a substantial investment in their business. One such investment is their lease obligation. 2. That the applicant would be unable to recoup their investment before that time. 3. That the applicant has demonstrated an effort to find an appropriate alternate site to relocate. • Explained that the applicant does have a monetary liability with their lease. The landlord has advised his tenants that he will hold them to their lease. • Added that relocation was not practical. • Pointed out that their clientele is a localized market used to patronizing this specific site. • Added that converting this business to a non-adult video rental business is not feasible in today's market. • Recommended the adoption of a resolution approving an Extension of Time through December 31, 2019, consistent with the applicant's request. • Advised that there are no specific conditions of approval being imposed other than how they operated in the past and given that they have since secured the necessary permit from Campbell Police Department. Commissioner Kendall pointed out that this proposed extension through December 2019 still leaves them closing prior to conclusion of their ten-year lease. Planner Daniel Fama explained that the applicant was only asking to be treated in a manner consistent with the original Ordinance for such uses. He added that some erroneous information was provided to the applicant at one point when they were told that they could continue until January 1, 2020. Commissioner Reynolds asked if they could come back later for another extension. Planner Daniel Fama said he supposed they could apply. Campbell Planning Commission Minutes for April 8, 2014 Page 5 Commissioner Reynolds sought clarification that this approval is not an actual Conditional Use Permit that runs with the land but rather is an applicant-specific extension of operations. Planner Daniel Fama explained that this is a land use issue and does run with the land. If the business were sold, the new owner could continue to operate in the same manner. Commissioner Reynolds asked if additional restrictions could be imposed. Planner Daniel Fama said it appears the City Attorney is indicating the answer is yes. Commissioner Kendall asked the City Attorney if he thinks the lease is air tight. City Attorney William Seligmann replied that it does bind them. Commissioner Kendall pointed out that the lease indicates the location being in San Francisco within San Francisco County. City Attorney William Seligmann replied that it is still a binding lease on them. Commissioner Dodd asked for more information on the fact the applicant was told they could go on operating their business. Planner Daniel Fama said that was correct. They were told that at one point. Commissioner Dodd asked for confirmation that it would be possible for this business owner to step away from the business and sell to another operator. Planner Daniel Fama said that is correct. Commissioner Dodd asked if it is possible to change that allowance. Planner Daniel Fama said he did not believe so. City Attorney William Seligmann said that any new owners would also have to secure the necessary permitting through the Campbell Police Department. Chair Resnikoff asked if the business owners had demonstrated sufficient effort to recoup their investment. Planner Daniel Fama reminded that they thought, until just recently, that they would be able to stay on site through January 2020. Chair Resnikoff pointed out that in May 2013, these owners were told they were required to apply by January 30t" for an Extension of Time. It was only after a second letter extending the deadline to mid-February that they did so. Campbell Planning Commission Minutes for April 8, 2014 Page 6 Planner Daniel Fama said that it is not unusual and rather typical to remind a business a second time. Chair Resnikoff opened the Public Hearing for Agenda Item No. 2. Tam Nguyen, Attorney for the Business Owners/Applicants: • Explained that he has worked in San Jose for the last 22 years and is the attorney for this applicant. He indicated he has known this family for many years. • Reported that his clients have made their living with this business for about 10 years or sa now. They were surprised to learn about the annexation of their location into Campbell. • Assured that they had tried to find a place to move their business to. It's not easy to find such a location. • Reiterated that this is their way to make a living. • Said he would appreciate the City's compassion and allowance for this business to have more time at this location. They will be wrapping up their business within the time the City will allow. Commissioner Rich pointed out that there is an additional 30 months on the lease beyond the proposed Extension of Time to December 31, 2019. Tam Nguyen: • Reported that they will sit down with the landlord and find a way out of the lease at that point in time. • Added that he hopes the landlord will understand that times have changed regarding video rental businesses. Commissioner Kendall asked for a reasonable explanation for why this applicant signed aten-year lease even after realizing that they would not be able to stay there that long. Tam Nguyen said that they didn't find another place to locate this use and they also believe that this five-year Extension of Time gives them time to plan further. Commissioner Kendall asked if they located an equivalent place. Tam Nguyen replied no. Chair Resnikoff pointed out that the lease is through September 30, 2022. He pointed out that the lease identifies a movie rental/mini-market use. Is that how they have operated? Tam Nguyen said no. Chair Resnikoff pointed out that the monthly rental will range between $4,200 and $4,800 each month. It seems there are two units so the cost is shared between the two uses. He asked if this business is a sole proprietorship or family business. Campbell Planning Commission Minutes for April 8, 2014 Page 7 Tam Nguyen said that the mother works there. Chair Resnikoff asked if there were other non-family employees of this business. Tam Nguyen replied that this business is cone-family business and mainly the mother works there. Chair Resnikoff closed the Public Hearing for Agenda Item No. 2. Commissioner Rich: • Said that he is strongly in favor of granting this Extension of Time. • Stated that this applicant worked in good faith based on incorrect information from the City itself. • Suggested it was most fair to treat this business much as Pleasures of the Heart had been treated at the time of Ordinance adoption. • Pointed out that it is difficult to ask this applicant to re-negotiate their lease. • Stated his support for an Extension of Time through December 31, 2019. Commissioner Finch: • Concurred with Commissioner Rich. • Added that she respects their right to do business and that they had based their decision on incorrect information from the City. • Reiterated that this business should not be treated any differently than was Pleasures of the Heart that had community support. Commissioner Dodd: • Said that the use should not be allowed to continue beyond 2020 per the Ordinance. • Said that she wants to be sure that if this business were to be sold, the new owner would have to get the necessary permit to operate from the Campbell Police Department. Commissioner Kendall said that she is a small business owner and knows what it takes to sign a lease. It is the business owner's responsibility to be aware of things such as the pending annexation. It was in the newspaper. Commissioner Rich: • Said that requires the assumption that this applicant understood and had more than one source of information about the annexation and ability to remain at this location. • Admitted that he would also have gone with what the City had told him as this owner did. • Reiterated that he is not sure the Commission can treat this request any differently than Pleasures of the Heart. Commissioner Kendall reminded that Pleasures had community support. She asked if there had been any outreach efforts. Campbell Planning Commission Minutes for April 8, 2014 Page 8 Planner Daniel Fama said that the article caused the applicant to contact staff. The applicant then received an email from staff indicating the date of 2020. He added that there have been no comments from the community against this request. Commissioner Reynolds: • Stated that he will be supportive since staff is recommending approval; the Police Department. is okay with this request; and there has been no public outcry against this business. • Said that this is not a "seedy" business but rather a "mom & pop" operation. They have been there for some time. If they were a problem to the neighborhood, neighbors would be here speaking out against this use. • Reminded that there have been no complaints so this business should be allowed to continue. • Added that if the business is sold in the meantime, the new owner would have to go through the proper approvals with the Police Department. Chair Resnikoff: • Stated that he was bothered by the fact their lease extends beyond the Extension of Time proposed by 30+ months. • Added that he's also bothered that changes in ownership cannot be restricted. • Pointed out that in most cases the Police Department would likely have no reason not to approve a new owner assuming this business. • Questioned what will happen at the end date if this Extension is granted. • Stated that while it is hard to move, they only need to move merchandise and not equipment. • Stated that there is no good reason to make an Exception in this case. • Said that the $4,000 monthly rental risk is shared by two tenants. This tenant is responsible for half that amount. Commissioner Rich pointed out that it is unknown just how well the other business is doing. Giving afive-year extension will give them time to make future decisions. Motion: Upon motion of Commissioner Finch, seconded by Commissioner Reynolds, the Planning Commission adopted Resolution No. 4148 granting an Extension of Time (PLN2014-54) for termination of a non-conforming sexually-oriented business (Campbell Star 99) on property located at 841 Union Avenue to December 31, 2019, subject to the conditions of approval, by the following roll call vote: AYES: Dodd, Finch, Kendall, Reynolds and Rich NOES: Resnikoff ABSENT: None ABSTAIN: None Chair Resnikoff advised that this action is final unless appealed in writing to the City Clerk within 10 calendar days. Campbell Planning Commission Minutes for April 8, 2014 Page 9 *** REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR Building Official Bill Bruckart said there were no additions to the written report. ADJOURNMENT The Planning Commission meeting adjourned at 8:15 p.m. immediately to a Study Session and subsequently to the next Regular Planning Commission Meeting of April 22, 2014. SUBMITTED BY: Corinne Shinn, Recording Secretary ~~ ~~ APPROVED BY: Paul Resrkiko~ff, Ch it ATTEST: ~~ '~ Paul Kermo a ecr