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PC Min - 05/26/2009CITY OF CAMPBELL PLANNING COMMISSION MINUTES 7:30 P.M. MAY 26, 2009 CITY HALL COUNCIL CHAMBERS TUESDAY The Planning Commission meeting of May 26, 2009, was called to order at 7:30 p.m., in the Council Chambers, 70 North First Street, Campbell, California by Vice Chair Gibbons and the following proceedings were had, to wit: ROLL CALL Commissioners Present: Commissioners Absent: Staff Present: APPROVAL OF MINUTES Vice Chair: Elizabeth Gibbons Commissioner: Theresa Alster Commissioner: Gary Gairaud Commissioner: Michael Rocha Commissioner: Bob Roseberry Chair: Mark Ebner Commissioner: Bob Alderete Community Development Director: Kirk E. Heinrichs Interim Principal Planner: Ciddy Wordell Associate Planner: Steve Prosser Assistant Planner: Daniel Fama City Attorney: William Seligmann Motion: Upon motion of Commissioner Roseberry, seconded by Commissioner Rocha, the Planning Commission minutes of the meeting of May 12, 2009, were approved as submitted. (5-0-2; Chair Ebner and Commissioner Alderete were absent) COMMUNICATIONS 1. Desk Items for Agenda Items 2 and 3. Campbell Planning Commission Minutes for May 26, 2009 Page 2 AGENDA MODIFICATIONS OR POSTPONEMENTS There were no agenda modifications or postponements. ORAL REQUESTS There were no oral requests. *** PUBLIC HEARINGS Vice Chair Gibbons read Agenda Item No. 1 into the record as follows: PLN2009-46 Public Hearing to consider the application of Mr. Bruce Watson, B. Watson for a Conditional Use Permit (PLN2009-46) to allow the establishment of a medical (chiropractic) office use on property owned by Martin Hertz Associates located at 2207 S. Bascom Avenue in a C-2-S (General Commercial) Zoning District. 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, Assistant Planner Mr. Daniel Fama, Assistant Planner, presented the staff report as follows: • Advised that the applicant is seeking approval of a Conditional Use Permit to allow the establishment of a medical office in an existing retail space on a site located on the southwest corner of S. Bascom Avenue and Apricot Avenue. • Said that the surrounding uses include multiple-family residential to the west and professional office uses to the south. • Reported that the C-2 Zoning allows a medical office with issuance of a Conditional Use Permit. • Stated that this existing multi-tenant retail center includes a 7-11, mortgage office, salon, another chiropractic office, a bookstore and a restaurant. The proposed tenant space consists of approximately 9 percent of the floor area of this center. • Explained that this proposed use would be operated by the applicant who is a licensed chiropractor. He will employ one administrative employee and serve between 20 and 30 patients a day. • Said that the proposed floor plan indicates a reception area, exam room, administrative office, x-ray room and storage room. The proposed business hours are from 7 a.m. to 11:30 a.m. and from 4 p.m. to 7 p.m., Monday through Thursday. However, to allow flexibility, staff is recommending allowable business hours from 7 a.m. to 8 p.m. and operational hours from 6 a.m. to 9 p.m. • Informed that there are 86 parking spaces to serve this property with a ratio of one space per every 150 square feet of floor area. This is greater than the required ratio of one space for every 200 square feet required for a medical use. This use's Campbell Planning Commission Minutes for May 26, 2009 Page 3 pro-rated share is eight spaces where six are required. Although an existing restaurant uses a disproportionate share of the available parking, this use is well within its required parking allotment. Recommended that the Planning Commission adopt a resolution approving this Use Permit. Vice Chair Gibbons opened the Public Hearing for Agenda Item No. 1. Vice Chair Gibbons closed the Public Hearing for Agenda Item No. 1. Motion: Upon motion of Commissioner Roseberry, seconded by Commissioner Alster, the Planning Commission adopted Resolution No. 3945 approving a Conditional Use Permit (PLN2009- 46) to allow the establishment of a medical (chiropractic) office use on property owned by Martin Hertz Associates located at 2207 S. Bascom Avenue, by the following roll call vote: AYES: Alster, Gairaud, Gibbons, Rocha and Roseberry NOES: None ABSENT: Alderete and Ebner ABSTAIN: None Vice Chair Gibbons advised that this action is final unless appealed in writing to the City Clerk within 10 calendar days. *** Vice Chair Gibbons read Agenda Item No. 2 into the record as follows: 2. PLN2009-50 Public Hearing to consider the application of Mr. David Ford Ford, D. for a Sign Exception (PLN2009-50) to a previously approved Sign Program (PLN2004-68) for the San Tomas Plaza Shopping Center to allow for additional signage for the CVS Pharmacy (former Long's location) to allow four wall signs for an existing business on property owned by AI-Mor located at 100 N. San Tomas Aquino Road in a C-1-S (Neighborhood Commercial) Zoning District. 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, Assistant Planner Mr. Daniel Fama, Assistant Planner, presented the staff report as follows: Advised that the applicant is seeking approval of a Sign Exception to allow additional signage for CVS Pharmacy, formerly a Long's Drugstore. This CVS is located at 100 N. San Tomas Aquino Road within the San Tomas Plaza Shopping Center at the corner of San Tomas Aquino Road and W. Campbell Avenue. Campbell Planning Commission Minutes for May 26, 2009 Page 4 • Explained that the existing 50 square foot Long's sign was approved in 2004 following the October 2004 approval of the Master Sign Program for this shopping center. • Reported that the CVS store has a linear frontage of approximately 180 feet and is located approximately 350 feet from the street edge. • Said that the applicant has submitted several options for the proposed signage. All options include a 73.5-foot primary wall sign reading "CVS Pharmacy" in internally illuminated channel letters. The applicant also proposes up to four secondary wall signs reading "Liquor," "Beauty" and/or "Photo", each ranging from seven to nine feet in area. Applicant's Option A shows the primary and four secondary signs for a total sign area of 106 square feet. Option B shows three secondary signs for a total of 97 square feet in area. Option C shows only the primary 73 square foot CVS Pharmacy sign. • Recommended that the Planning Commission adopt a resolution approving a Sign Exception allowing a 73.31 square foot wall sign and two secondary wall signs (8.24 square feet and 7.31 square feet) for a total of 89 square feet in sign area. Commissioner Rocha pointed out that additional signs depicted on the plans are not referenced in staff's presentation, including the operational hours sign. Planner Daniel Fama explained that this set of plans includes signs that are not a part of this application. The application is for the major wall sign and additional secondary wall signs. Other signs are either exempt as part of allowable window signage or as a refacing of an existing monument sign. Commissioner Rocha said that staff also did not mention that there are two substantial monument signs, one at San Tomas Aquino Road and the other at W. Campbell Avenue. He said he wanted to bring that to his colleagues' attention. Commissioner Gairaud provided the Site and Architectural Review Committee Report as follows: • SARC reviewed this item on May 12, 2009, and made the following comments. • Stated that SARC felt that this request indicates that the Sign Ordinance needs to be revised to better indicate or reflect current signage needs. • Said that SARC questioned whether there were any restrictions for signs that advertise alcohol. • Added that SARC questioned if the existing illumination of the existing Long's sign is restricted. • Stated that SARC felt that the proposed sign was matching and consistent with the existing sign but they were most supportive of staffs recommendation for Option D. Vice Chair Gibbons said that it was her understanding that it is not relevant for the Commission to discuss the wording of the signs but just the additional size and number of signs. Planner Daniel Fama replied yes. Campbell Planning Commission Minutes for May 26, 2009 Page 5 Vice Chair Gibbons thanked Planner Daniel Fama, but said that limitation was disappointing. Commissioner Alster asked staff to provide its reasoning behind their recommendation for two additional signs. Planner Daniel Fama explained that staff agreed with Commissioners Alderete and Gairaud that it fits with the massing in that it is within these two architectural elements that frame the center of the tenant space. Additionally, the Hamilton Plaza Shopping Center, which is very much the similar situation, allowed for a major wall sign and two secondary signs. It was reflective of the needs of an anchor tenant. Vice Chair Gibbons opened the Public Hearing for Agenda Item No. 2. Mr. David Ford, Project Applicant: • Thanked Planner Daniel Fama. • Explained that there have been a number of revisions to reach what is before the Commission tonight. • Said that they looked at nearby competitors' signs. Walgreen's on S. Winchester Boulevard also has two secondary signs advertising their Drive Thru Pharmacy and One-Hour Photo. The Rite Aid that is located further down Winchester in San Jose, also has photo and garden center secondary signage. • Reported that CVS is trying to compete with those two businesses and would like to get signage that is similar in scope. Vice Chair Gibbons closed the Public Hearing for Agenda Item No. 2. Commissioner Roseberry: • Said that if anywhere in Campbell, this site warrants this amount of signage. This is a big store. It is well set back. It's in a commercial area. • Stated that, in his opinion, the compromise proposed by staff is reasonable. • Advised that he would be supportive of the staff recommendation. Commissioner Rocha: • Said he offers an alternative point of view. • Suggested that the signage put in place in 2004 with the remodel of the existing center was adequate at that point. • Continued that to come back every time there is a tenant turnover or if a tenant/applicant feels that someone down the street has more signage than they do, that's not a reason to overturn the existing master plan. • Said that if this is approved, other tenants on site can also come back for more. • Opined that the existing signage is adequate. • Stated that he would not support this request for additional signage. Commissioner Alster: Campbell Planning Commission Minutes for May 26, 2009 Page 6 • Stated her agreement with the staff recommendation because of the distance from the street. • Said that she thought it is also logical to allow additional signage because of the expansive frontage of that store. • Concluded that she would go ahead and support the staff recommendation on this. Chair Gibbons: • Said that the issue is well stated in the SARC comments. • Reminded that the Commission has a study session coming up to consider the Sign Ordinance once again. • Stated that it is such a challenging issue when these sign exceptions have to be done one by one. • Advised that normally she would support Commissioner Rocha's position of "why are we changing it." • Continued that, in this particular case, she is supportive of the staff recommendation as well. • Stated that the original approval was kind of skimpy in light of the frontage and with the distance from the street. • Concluded that she is inclined to support this but not with great pleasure. Motion: Upon motion of Commissioner Gairaud, seconded by Commissioner Roseberry, the Planning Commission adopted Resolution No. 3946 approving a Sign Exception (PLN2009-50) to a previously approved Sign Program (PLN2004-68) for the San Tomas Plaza Shopping Center to allow for additional signage including one 73.5 square foot primary wall sign and two secondary wall signs (8.25 and 7.3 square feet) for an existing business (CVS Pharmacy that was formerly Longs) on property owned by AI-Mor located at 100 N. San Tomas Aquino Road, by the following roll call vote: AYES: Alster, Gairaud, Gibbons and Roseberry NOES: Rocha ABSENT: Alderete and Ebner ABSTAIN: None Vice Chair Gibbons advised that this action is final unless appealed in writing to the City Clerk within 10 calendar days. *** Chair Ebner read Agenda Item No. 3 into the record as follows: Campbell Planning Commission Minutes for May 26, 2009 Page 7 3. PLN2009-04 Public Hearing to consider the application of Ms. Myrna Schultz, M. Schultz, on behalf of Strategic Restaurants Acquisition Company II, LLC, for a Conditional Use Permit (PLN2009- 04) to allow 24-hour operations at an existing Burger King fast food restaurant with an existing drive through component on property owned by Mr. Albert Tung located at 49 W. Hamilton Avenue in a C-2-S (General Commercial) Zoning District. 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: Steve Prosser, Associate Planner Mr. Steve Prosser, Associate Planner, presented the staff report as follows: • Explained that the applicant is seeking approval of a Conditional Use Permit to allow 24-hour operation for an existing fast food restaurant with adrive-through component located at 49 W. Hamilton Avenue within a C-2 Zoning District. • Reported that one letter in opposition (from a neighbor of the project site) was received after the packets were distributed and is provided this evening as a table item. • Described the project site as being on the north side of Hamilton Avenue at its northwest corner with Winchester Boulevard. It is currently developed with a single-story fast food restaurant with a drive through component that was constructed in approximately 1976. The site is surrounded by single-family residences and commercial to the north and office uses and commercial to the east, west and south. • Advised that the proposed use requires a Use Permit for 24-hour activities at the existing fast food restaurant on site. • Stated that the current approved hours of operation are between 7 a.m. and 12 a.m., Monday through Saturday, and between 8 a.m. and midnight on Sunday. These hours were established through a Use Permit processed in 1993. • Said that the total seats on site are 90, including a patio area. Current parking is 47 spaces, which is one space per employee plus one space for every 40 square feet of dining area per Resolution 2853 adopted in 1993. • Reported that the C-2 Zoning allows late night activity with a Use Permit. This proposed project would be consistent with issuance of a Use Permit. The existing fast food restaurant with drive through and proposed late night activities are consistent with the current land use designation. • Reiterated that the applicant is requesting approval to operate a fast food restaurant daily on a 24-hour basis. • Said that staff feels that the use is consistent for a restaurant that is located at the intersection of two arterial streets. • Stated that although the results of the noise assessment study that has been completed shows that the business operations meet the standards for development set forth in the General Plan, staff is recommending that mitigation measures be Campbell Planning Commission Minutes for May 26, 2009 Page 8 adopted as conditions of approval to ensure that noise is reduced to limit any impact on nearby residential uses. • Said that recommended conditions of approval include: prohibit outdoor activities (including parking lot cleaning, trash pickup, etc.) between the hours of 10 p.m. and 6 a.m.; prohibit loitering in the parking areas; prohibit the use of the drive through speaker system between the hours of 10 p.m. and 6 a.m.; repair or replace the perimeter fencing between the commercial use and the adjacent residential use to the satisfaction of the Community Development Director; and restrict the parking in specific areas between the hours of 10 p.m. and 6 a.m. This includes the eight closest parking spaces to the right of the trash enclosure, which is adjacent to the closest residential use, and the parking along the western property line. This requirement includes cordoning off these spaces and providing prohibiting signage for those hours. • Advised that the Campbell Police Department has reviewed this application and has no concerns or objections to the proposed 24-hour operation with the adoption of the recommended conditions of approval. • Explained that SARC did not review this item, as there are no significant changes to the exterior of the building or site configuration with this application. • Recommended that the Planning Commission find this project to be Categorically Exempt under CEQA and adopt a resolution approving this Conditional Use Permit for late night activities. Commissioner Rocha asked if these proposed conditions are acceptable to the applicant. Planner Steve Prosser replied yes. Commissioner Rocha said that these conditions offer a well thought out response to concerns raised and will help mitigate the noise impacts. Commissioner Roseberry asked what material the fence is made of that separates this site from its adjacent residential property. Planner Steve Prosser replied that it is a six-foot tall wooden fence that is in various stages of disrepair due to the existing landscaping. Commissioner Gairaud said that the proposed condition does not state what kind of fence is required other than that it be consistent with the zoning. Planner Steve Prosser advised that the City's Zoning Code requires that fences separating two different zoning districts must have a solid fence, either wood or masonry, of a height of at least six feet. They could repair or replace the existing six- foot tall wooden fence or replace it with a masonry wall to the satisfaction of the Director. Campbell Planning Commission Minutes for May 26, 2009 Page 9 Vice Chair Gibbons pointed out that the dumpster is probably a bit of a bone of contention. She reminded that several conditions have been successfully applied to other locations such as timing allowed for the dumping of glass into recycle containers. Planner Steve Prosser said that Condition 6 was provided with the intent to deal with things like that. However, the Planning Commission may want to better specify that. Commissioner Alster: • Stated that she has a couple of concerns regarding the letter received from Mr. Andrew Lloyd. • Said that Mr. Lloyd points out that Burger King has already been operating outside of its Use Permit hours. He reports that he made calls to the restaurant for which he received no response. • Said that this situation is a little shaky here. • Questioned what would happen if the requirement to cordon off the parking adjacent to residential properties does not happen. If this were to be allowed and the parking was not cordoned off as required, would Mr. Lloyd have the opportunity to come to the City to complain and have these extended hours rescinded? • Stated that past instances suggests that this applicant may not follow through with promises or concerns. Planner Steve Prosser said that Condition 4 gives the authority to the Director to immediately restrict or modify the hours of operation upon receipt of verified complaints. The complaining party would just need to contact the Campbell Police Department to have someone verify that those conditions are not being met at those hours. The Director could modify the hours of operation subject to the application being brought back before the Planning Commission. Commissioner Rocha said that having read both the applicant's letter and Mr. Lloyd's letter, this action by Burger King to seek a Use Permit for 24-hour operation was a reaction to Mr. Lloyd's complaints. Planner Steve Prosser agreed that having Burger King apply for this Use Permit was the result of a verified Code Enforcement complaint that this applicant was operating with extended hours. They were notified of the appropriate hours and to staff's knowledge they had returned to the approved hours of operation pending this application process. They were operating outside of their hours approved in 1993. Commissioner Rocha sought verification that this applicant now understands that the Director has the power to adjust hours if a verified complaint is received. Planner Steve Prosser replied yes. Vice Chair Gibbons pointed out that the Carrow's on Hamilton has similar late night parking restrictions and other constraints that include having portions of the parking area adjacent to residential cordoned off to prevent use late at night. Campbell Planning Commission Minutes for May 26, 2009 Page 10 Planner Steve Prosser agreed that the Carrow's restaurant was the first time that was done. Vice Chair Gibbons asked staff if it has been made clear to this applicant and their neighbors that there is a process to complain and get it validated. Planner Steve Prosser replied yes. Vice Chair Gibbons opened the Public Hearing for Agenda Item No. 3. Mr. Andrew Lloyd, Resident on W. Rosemary Lane: • Pointed out that the Commissioners received his letter this evening in objection to the recommendation made by staff to approve this Use Permit. • Expressed his appreciation to the work done by Planner Steve Prosser. While he does not agree with his recommendations, he does appreciate the work that he has done on it. He added that he also wants to thank Steve for letting him know about tonight's meeting. • Said that one of his major concerns is why has Burger King been able to continue to operate outside of their permitted use hours. • Reminded that they are currently supposed to operate from 7 a.m. to midnight, Monday through Saturday, and between 8 a.m. and midnight on Sunday. • Said that his letter included pictures that show that they are not operating within their Use Permit. They continue to not operate within that Use Permit. • Stated that he is baffled that they would do that and still come to the Planning Commission today to ask for better and greater permission to be able to interrupt the quiet and peaceful enjoyment of his residence by his family. It's a real concern. • Reported that his property abuts this property. • Added that he appreciates all the money that the applicant has spent on the noise study but it specifically refers to the speaker on the drive-through. That's never been an issue. It was never an issue whenever he complained and filed a complaint two years after they went to 24 hour. Prior to that he had tried to work it out directly with Burger King to no avail. • Said that this drive-through speaker issue is really just a red herring. They want to show that they can simply shut it off at 10 at night and the problem is going to go away. It's not. The problem directly comes from loud people who go to this restaurant during the night when they're open 24 hours. It's not about the speaker. It's about the cars. The headers on the cars that make such a rumbling noise that it wakes up his household. It's the stereos that people have in these cars that are blaring. They are loud. When that happens in the middle of the night, it wakes you up and it disrupts your quality of life. • Reported that many times these things have waked him up. The dumping of the garbage by BK staff in the middle of the night has also been an issue but has since stopped. • Informed that the garbage truck emptying the dumpster in the early morning hours continues. That's an issue he has had since he moved here five years ago. He said that he remedied it with Green Valley Waste. However, after the new garbage Campbell Planning Commission Minutes for May 26, 2009 Page 11 contract went into place approximately two years ago in March, they started having the same problems with dumping into the night. He said that he has not called the Waste Management folks to complain about it. • Reported that after he filed his complaint, the Burger King folks suddenly wanted to become his best friend. In October they said that they would address the garbage noise issue but have not yet done so. • Stated that Rosemary Lane is an interesting street. It's one that is beginning to come back. It's the last one before you go into San Jose. Some of the remodels that are going on there are great. • Advised that his home was remodeled about six or seven years ago. The street is really beginning to come into its own. • Said that the problem is the fact that there are businesses that want to encroach into residents' enjoyment of the residences located there. • Declared that there is nothing that Burger King is going to do that is going to remedy the noise situation. It's a definite problem. Commissioner Gairaud asked Mr. Lloyd if he is sure that there is nothing that Burger King can do to make 24-hour operational acceptable? Mr. Andrew Lloyd replied right. He said that in December Burger King put up a sign asking people to respect their neighbors and turn their stereos down. That's not happening. Ms. Zenia Manwalla, Applicant's Representative: • Said that she is the Director for Development for Strategic Restaurants, the Burger King franchisee that has operated this facility since the early 80's. • Thanked Planner Steve Prosser for the great job in supporting their request for a 24-hour Use Permit. • Thanked the Planning Commission for hearing this request. • Said that it is unfortunate that Mr. Lloyd's original complaint did not go up the chain. Folks at corporate were not aware of his concerns. When they first heard about Mr. Lloyd's concerns it was October of last year, after the Code was being enforced and they were forced to shut their late night operations down for those late night hours that were disturbing Mr. Lloyd. • Added that after that they did abide by the hours that the City Planning, Code Enforcement and Police Departments have suggested for them. • Assured that they made all attempts to limit their hours from 7 a.m., even though the City has an Ordinance that allows businesses to operate by right at 6 a.m. • Advised that there are people in the restaurant at about 5:30 a.m. to gear up for the breakfast routine. • Agreed that the hours posted at the door are in error and that sign has been removed. • Assured that if they are approved for 24-hour operations, they will do whatever they can do with their operations to comply. She said that it is not their intent to prevent the nearby residents from enjoying their own properties. It is just their intent to operate their business. Campbell Planning Commission Minutes for May 26, 2009 Page 12 • Pointed out that there are a lot of patrons who appreciate a place to eat late at night including many from the hospital down the street. • Said that they cannot control everything. • Suggested that these residents moved in next to commercial uses and should have expected some associated noise. • Said she was available for any questions. Commissioner Gairaud asked Ms. Zenia Manwalla how many restaurants Strategic Restaurants operates. Ms. Zenia Manwalla replied more than 260. Commissioner Gairaud said that he assumes that it was a brand decision to conform to Burger King's plan to go to 24-hour operation. Ms. Zenia Manwalla said yes. Commissioner Gairaud asked Ms. Zenia Manwalla if it did not dawn on somebody at Strategic Restaurant that they needed to check with the communities they were located in to see what conditions were in effect. Ms. Zenia Manwalla said that she'd like to say yes. She added that they extended hours at approximately 150 locations without any problems or complaints. She assured that they didn't mean to do anything disrespectful to any community in any way. They simply didn't realize that they had to get a permit for 24-hour operations in certain jurisdictions. Commissioner Rocha pointed out that with or without a Use Permit, they will be subject to the purview of the Community Development Director in the event that there is a verifiable complaint. The Community Development Director can change their hours at his discretion. He added that this is not a blank check going forward. Ms. Zenia Manwalla said that she understands. Commissioner Rocha stated that the mitigation standards will need to be implemented or this applicant would be back before this Commission in 12 to 18 months. Ms. Zenia Manwalla: • Said that they are completely cognizant of the fact that they have one chance and they want to do the right thing for the community as well. • Reported that she had personally made calls to the garbage company and was told that there is no guarantee of an earlier pickup. • Added that they have made sure that their vendor deliveries do not occur at night but reiterated that she cannot control the garbage pickup although they have tried. Campbell Planning Commission Minutes for May 26, 2009 Page 13 • Reminded that they have put up signs to try to eliminate noise from cars. She said that they would continue to keep requesting that their patrons turn down their radios. • Added that they would turn off their speaker box as recommended by staff even though it was not an issue of contention. Vice Chair Gibbons asked Ms. Zenia Manwalla if her local manager is here this evening. Ms. Zenia Manwalla said unfortunately her manger had to travel out of town. Vice Chair Gibbons asked Ms. Zenia Manwalla how often they change managers. Ms. Zenia Manwalla clarified that her own manager is the company's Vice President, who cannot be here tonight. Mr. Anson Khine, the Regional Manager, however, is present this evening. Mr. Anson Khine, Regional Manager: • Explained that he just got promoted and supervises the Northern California Burger Kings. • Said that this location is on its third manager within three years. Vice Chair Gibbons: • Said that there have been similar issues between neighbors and businesses. • Added that one key issue is that site managers change frequently and there was no training of subsequent managers about the issues. Things deteriorated instantaneously when management staff changed. • Said that one of the things this organization will need to do, if this passes this evening, is to have management policies in place that are part of the training program for any manager assuming the position at this location. Would they be amiable to that? Mr. Anson Khine replied absolutely. He said he could pretty much guarantee that. Vice Chair Gibbons asked Mr. Anson Khine if he has a plan for blocking off the parking stalls. Mr. Anson Khine replied yes. He added that he had a similar requirement in place when he worked for Jack in the Box. Ms. Zenia Manwalla said that she would like to do something similar to what was done by Carrow's with the use of signs. She assured that their employees are not going out to throw garbage late at night. They consider it a safety and security issue. Employees are not allowed to do so after 10 p.m. Mr. Anson Khine clarified that they do not do so after dark so the latest time varies. Campbell Planning Commission Minutes for May 26, 2009 Page 14 Ms. Zenia Manwalla said that it is allowed only from dawn to dusk. She assured that it is not their employees who are dumping trash at night. She added that they haven't seen or heard anyone dumping trash on site at night. She added that they have tried to lock up the trash enclosure but it doesn't work with early trash pickup. Mr. Paul Fowler, Owner of the adjacent property on W. Rosemary: • Said that he is here this evening with his wife, Shireen. • Stated that this noise impact issue came up a couple of years ago. • Reported that his tenant, Mr. Andrew Lloyd, takes great care of his property and is a great tenant. • Reminded that currently only a wood fence separates this commercial site from his residence. • Said that the clients at night are not a family in a mini-van but rather its young people with boom boxes. • Said he hasn't seen any indication whatsoever that this company cares for its neighbors. • Concluded that this situation has an impact on property value and rental income. • Said that he does not support 24-hour operation of this restaurant. Ms. Shireen Fowler, Owner of the adjacent property on W. Rosemary: • Said she wanted to reiterate the credibility of their tenant, Mr. Andrew Lloyd. • Reminded that he originally complained a couple of years ago. • Said that Planner Steve Prosser advised her that with no Use Permit for 24-hour operation, they could not operate that way and it would be taken care of. • Pointed out that this is the only issue that Mr. Lloyd has ever complained about. He's the best tenant. Ms. Emma Stephens, Restaurant Manager, Burger King at 49 W. Hamilton: • Advised that she has been with the company for a few years now, three to four months at this location. • Added that she understands the neighbors' concerns and will be sure that they are happy. • Said that they will block off the parking as required. • Said that she has not heard noise. • Suggested moving the garbage pick up location. • Stated that customers are happy that this restaurant is open late. They are one of the only ones available to serve late at night. Vice Chair Gibbons closed the Public Hearing for Agenda Item No. 3. Commissioner Alster: • Said that she is not interested in extending the hours of Burger King. • Said that a few things said by Ms. Zenia Manwalla were very upsetting. • Pointed out that fast food restaurants are often in neighborhoods with low-income people. Campbell Planning Commission Minutes for May 26, 2009 Page 15 • Stated that this is a neighborhood that she knows well. There is an elementary school located at the end of the street. • Reported that she also lives on a busy street and can hear people walking by having a casual conversation. • Said that people won't care about signs asking to reduce the volume of their music. • Stated that this is a neighborhood that she wants people to care about. • Reminded that these are unpermitted hours they have been operating under. • Stated that a manager with a company the size of Burger King should be aware of the need for a Use Permit to allow extended hours. While ignorance may be bliss, she said that she did not think it was acceptable for Campbell. Commissioner Gairaud: • Said that the biggest issue for him is that they aren't complying with the current Conditional Use Permit. • Said that he cannot see this Commission supporting this short of them agreeing to have a security guard on the premises between 10 p.m. and 7 a.m. • Suggested conditioning that requirement. Vice Chair Gibbons asked staff to explain the enforcement process and how businesses can operate outside of their approved hours. What happens? Explain how code enforcement is a complaint-based process. Interim Principal Planner Ciddy Wordell explained that the process is complaint based and asked Planner Steve Prosser to explain in further detail. Planner Steve Prosser advised that when the requirement for a Use Permit for late night uses was implemented, notification was distributed by newspaper and by mail to individual businesses. He added that he is not sure about this business because at the time they already had a Use Permit that allowed their operation up to midnight. Commissioner Roseberry asked if there are other 24-hour businesses nearby. Planner Steve Prosser said Walgreen's and Carrow's. Vice Chair Gibbons said that she wants to help people understand when businesses can operate. Director Kirk Heinrichs reminded the Commission that this is a complaint driven process in that staff cannot track the businesses in the community to determine whether or not they are operating under their proper hours. He said that there is somewhat of an honor system in that regard. If the City does get a complaint then the City responds to it as it did in this particular case. Vice Chair Gibbons: Campbell Planning Commission Minutes for May 26, 2009 Page 16 Said that over the last five years, this Commission has become aware that it takes awhile for the enforcement process to work its way through the system. In this particular case, it has taken two years. Added that as a result of that, the Commission has revised its conditions of approval consistently now for quite a few years, leaving a very short "fuse" that the Community Development Director can immediately use, upon validated complaints, to change the hours. Director Kirk Heinrichs agreed. He added that previously, staff had to rely on the revocation process, which as a very time consuming process. Vice Chair Gibbons said that's what leads us to where we are now. A complaint has led to this application for a Conditional Use Permit to operate 24 hours. Director Kirk Heinrichs replied that's correct. Vice Chair Gibbons said that it is important for everyone to understand. She asked staff if the City has the ability to assist with Green Valley's hours of pickup. Director Kirk Heinrichs: Stated that staff can certainly talk to them. Added that typically commercial pickups are earlier because they need to stay away from traditional business hours. Said that he thought that Ms. Stephens brought up a very good suggestion. That is relocating the trash enclosure away from the residential area and out maybe closer to the street. Vice Chair Gibbons: Said that a number of corporations come across saying that they "didn't know." Added that most companies of this size have a real estate department that knows what regulations and zoning ordinances are. Stated that that was an unnecessary and inappropriate comment, if not slightly offensive. Commissioner Gairaud said he had a follow up question for Director Kirk Heinrichs. He said that over the last five years or so, the Commission has imposed conditions that allow the Community Development Director to change operations allowed through a Conditional Use Permit. Is Director Heinrichs familiar with how many times that opportunity has been taken? Director Kirk Heinrichs replied that staff has threatened to do that twice but the businesses achieved compliance before that actually happened. Commissioner Roseberry: • Said that he did not think that a wood fence offered sufficient protection from noise. A block wall might better deflect noise away from adjacent residences. Campbell Planning Commission Minutes for May 26, 2009 Page 17 • Suggested that as a compromise this applicant be required to install a wall instead of a wood fence. • Added that he is struggling to go to 24-hour operation from the current midnight closure. Since the late summer of 2006, they had moved already to 24-hour operation. • Stated that it is not clear when they stopped. Director Kirk Heinrichs said that they stopped 24-hour operation in October 2008. They ran 24-hours for approximately two years. Vice Chair Gibbons: • Stated that she too is struggling. • Agreed with the point that Commissioner Alster made that the behavior of the patrons cannot always be controlled. • Said that she is hesitant to say no to 24-hour operations. There are very good and proven tools that mitigate bad behavior going forward. • Added that if something goes wrong, their hours are cut and that is the end of it. • Said that she is thinking that a solid block wall is a good option. • Stated that having the applicant work with the Community Development Director to relocate the garbage in a less obtrusive manner would help. • Said that perhaps some help with Green Valley would be effective although she knows that it is difficult with commercial pickup. • Suggested the closure of the drive through late at night between midnight at 7 a.m. Perhaps the restaurant can remain open and patrons could park in the front. • Added that she would not object to the applicant coming back in a year or more, if no problems or complaints come up, to give them the chance to open up the drive through at night once again. Commissioner Rocha: • Reminded that the Commission is talking about the intersection at Hamilton and Winchester. This is a pretty intense intersection. • Added that there is just one resident whose nighttime hours are being interrupted by this restaurant. • Said that given the right tools, including a block wall, he is inclined to support 24- houroperation. • Said that there is a block wall separating his property from the commercial property behind him. It has made a huge difference. • Stated that the Director knows and sees what the processes are. • Reminded that this is an existing business. • Said that he does not buy the view that you move in to an existing situation so deal with it but again this is Hamilton Avenue. • Said he would support this Use Permit with the construction of a block wall and appropriate conditions of approval. Vice Chair Gibbons: • Offered a summary of the issues. Campbell Planning Commission Minutes for May 26, 2009 Page 18 • Said that there have been pros and cons regarding this application. • Said if the decision of this Commission is for a denial, they will have to revise the findings and conditions. • Described edits to the proposed conditions of approval. • Condition 6 -Operational Hours -Clarified the restricted late hour uses including parking lot cleanup, trash pickup and sweeping and deliveries, including staff use of the dumpsters. • Condition 15 -the wood fence shall be replaced with aconcrete/masonry wall to the satisfaction of the Community Development Director. • Condition 16 - ... the drive through shall not be operational from midnight to 7 a.m. Director Kirk Heinrichs asked about the proposed relocation of the dumpster. Vice Chair Gibbons suggested amending Condition 13 to that effect. Director Kirk Heinrichs asked about one more clarification on the sound wall. Does it mean the L-shaped portion? Vice Chair Gibbons replied the common property line between the adjacent residential property and the project site. Commissioner Gairaud asked if the conditions of approval go into effect immediately. He suggested that the hours not be allowed to increase until the sound wall is installed. City Attorney William Seligmann said that absolutely the Commission could so condition that. Vice Chair Gibbons suggested that be included as a part of Condition 15. Commissioner Rocha said that would provide Burger King with the incentive to construct the wall. Planner Steve Prosser suggested that with the proposed condition for a block wall, the Commission might further require an arborist's report that includes tree protection measures based upon the significant landscaping that is along that fence. They can install it but it must be done properly so that it does not kill these trees. Vice Chair Gibbons said that is a good suggestion and could be incorporated into Condition 15 that the construction of the replacement wall incorporate an arborist's report to validate the proper measures taken to protect the landscaping. Director Kirk Heinrichs asked the Commission to clarify the wall's height. Vice Chair Gibbons said, unless the neighbors want it higher, the standard is six feet. Planner Steve Prosser asked about the potential condition mentioned earlier regarding a security guard. Campbell Planning Commission Minutes for May 26, 2009 Page 19 Commissioner Rocha said that there is enough on the table now. A security guard would be over kill. Motion: Upon motion of Commissioner Rocha, seconded by Commissioner Roseberry, the Planning Commission adopted Resolution No. 3947 approving Conditional Use Permit (PLN2009-04) to allow 24-hour operations at an existing Burger King fast food restaurant on property owned by Mr. Albert Tung located at 49 W. Hamilton Avenue, with the following amendments: • The applicant will seek an arborist report to protect any existing landscaping and agrees to construct aconcrete/masonry wall to the satisfaction of the Community Development Director; • The drive through shall be closed between midnight and 7 a.m. • The trash enclosure be considered for relocation to the satisfaction of the Community Development Director; • Clarification to the hours of operation for clean up; and • Note that the extended hours are not effective until the wall has been constructed; by the following roll call vote: AYES: Gairaud, Gibbons, Rocha and Roseberry NOES: Alster ABSENT: Alderete and Ebner ABSTAIN: None Vice Chair Gibbons advised that this action is final unless appealed in writing to the City Clerk within 10 calendar days. *** REPORT OF THE INTERIM PRINCIPAL PLANNER The written report of Ms. Ciddy Wordell, Interim Principal Planner, was accepted with the following additions by Director Kirk Heinrichs: • Said that the Commissioners will recall the study sessions held on a mandatory pre-application process. • Reported that staff is in the process of putting an ordinance together to put that into effect. • Said that at the same time, he would like to develop a policy as to what is expected at those pre-application study sessions. What are the criteria? What is expected in terms of plans? What is expected of the applicant in terms of areas they need to cover? • Added that he would like to have a short study session before it comes formally to the Commission just to get some buy in and to establish some trigger points. While there are some broad trigger points, they need to be narrowed down a bit. Campbell Planning Commission Minutes for May 26, 2009 Page 20 • Reported that the recruitment for the Planning Manager has closed. There is a strong applicant pool. Interviews will be held in June. • Suggested that if any member of this Commission has any priority criteria they would like to see in the candidate filling this position, please send him an email. Vice Chair Gibbons reminded the Commission of the June 2"d Council study session on the issue of Commissioners and Appointments to Commissions. She also reminded that Joanna and Rudi Herz would host a reception on Friday, between 4 and 7 p.m. to dedicate their house that was recently designated as a National Historic Landmark. ADJOURNMENT The Planning Commission meeting adjourned at 8:56 p.m. to the next Regular Planning Commission Meeting of June 9, 2009. SUBMITTED BY: orinne A. Shinn, Recording Secretary r` n // ~j APPROVED BY: ~~`iC~ ~~_/ ~~~ ~ - E ' eth Gibbons, Vice Chair ATTEST: ~ ~-~~~--"y 4~'~~~~-~' Ciddy Wordell, cting Secretary