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PC Min - 10/27/2009CITY OF CAMPBELL PLANNING COMMISSION MINUTES 7:30 P.M. OCTOBER 27, 2009 CITY HALL COUNCIL CHAMBERS TUESDAY The Planning Commission meeting of October 27, 2009, was called to order at 7:30 p.m., in the Council Chambers, 70 North First Street, Campbell, California by Chair Ebner and the following proceedings were had, to wit: ROLL CALL Commissioners Present Commissioners Absent: Staff Present: APPROVAL OF MINUTES Chair: Vice Chair: Commissioner: Commissioner: Commissioner: Commissioner: Commissioner: Community Development Director: Planning Manager: Senior Planner: Assistant Planner: City Attorney: Mark Ebner Elizabeth Gibbons Theresa Alster Philip C. Reynolds, Jr. Bob Roseberry Jeffrey Cristina Michael Rocha Kirk Heinrichs Paul Kermoyan Tim J. Haley Daniel Fama William Seligmann Motion: Upon motion of Commissioner Roseberry, seconded by Commissioner Reynolds, the Planning Commission minutes of the meeting of October 13, 2009, were approved as submitted. (4- 0-2-1; Commissioners Cristina and Rocha were absent and Chair Ebner abstained) COMMUNICATIONS 1. Memo from staff addressing typographical errors for Item 3. Campbell Planning Commission Minutes for October 27, 2009 Page 2 AGENDA MODIFICATIONS OR POSTPONEMENTS Director Kirk Heinrichs advised that the applicant for Agenda Item No. 1 has requested a 30-day continuance. ORAL REQUESTS There were no oral requests. *** PUBLIC HEARINGS Commissioner Reynolds advised that he would need to recuse himself from participation on Agenda Item No. 1 due to a professional conflict. He left the dais and chambers. Chair Ebner read Agenda Item No. 1 into the record as follows: 1. PLN2009-59 Please note that the applicant has submitted a written Lobaugh, M. request fora 30-day continuance of this item to the November 24, 2009, Planning Commission Meeting. Continued Public Hearing (from the Planning Commission meeting of September 22, 2009) to consider the application of Mr. Mark Lobaugh, on behalf of Verizon Wireless, for a Conditional Use Permit (PLN2009-59) to allow for the continued operation of an existing wireless telecommunications facility (two roof mounted antenna poles, associated panel antennas and equipment cabinet); the installation of three new panel antennas and supporting coax cable on the two existing roof mounted poles and the installation of one small GPS antenna on the existing roof mounted mechanical equipment cabinet on property owned by Mr. Scott Cooley located at 700 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. Paul Kermoyan, Planning Manager, presented the staff report as follows: • Reminded that this item was originally presented to the Planning Commission at its meeting on September 22, 2009. • Said that the application includes the installation of three additional antennas for which staff was recommending approval. Campbell Planning Commission Minutes for October 27, 2009 Page 3 • Added that the Commission felt that the new antennas could be better integrated onto the site and continued consideration of this item to its meeting of October 27, 2009. • Reported that the applicant has requested a 30-day continuance to allow them to work out the details of their proposal. Requests for continuances are typically granted. Chair Ebner opened the Public Hearing for Agenda Item No. 1. Motion: Upon motion and second, the Planning Commission continued to its meeting of November 24, 2009, consideration of a Conditional Use Permit (PLN2009-59) to allow for the continued operation of an existing wireless telecommunications facility (two roof mounted antenna poles, associated panel antennas and equipment cabinet); the installation of three new panel antennas and supporting coax cable on the two existing roof mounted poles and the installation of one small GPS antenna on the existing roof mounted mechanical equipment cabinet on property owned by Mr. Scott Cooley located at 700 W. Hamilton Avenue (4-0-2-1; Commissioners Cristina and Rocha were absent and Commissioner Reynolds abstained) Commissioner Reynolds returned to the chambers and dais following the conclusion of discussion on Agenda Item No. 1. **~ Chair Ebner read Agenda Item No. 2 into the record as follows: 2. PLN2009-106 Public Hearing to consider the Text Amendment (PLN2009-106) Staff to modify Zoning Code Sections 21.10.040 (C-1/Neighborhood Commercial); 21.10.050 (C-2/General Commercial); 21.10.060 (C-3/Central Business District) to change massage establishments from a use requiring a conditional use permit to a permitted use consistent with State law and to Modify Sections 21.10.030 (P-O/Professional Office) and 21.10.070 (C- M/Controlled Manufacturing) to add massage establishments as a use requiring a conditional use permit. Staff is recommending that this project be deemed Exempt under CEQA. Tentative City Council Meeting Date: November 17, 2009. Project Planner: Tim J. Haley, Senior Planner Mr. Tim J. Haley, Senior Planner, presented the staff report as follows: • Reported that in 2008, the Governor signed Bill 731 regarding massage therapy businesses. One provision of the Bill was land review requirements. The Bill states that there shall not be different requirements for massage businesses than there are for other personal services. Campbell Planning Commission Minutes for October 27, 2009 Page 4 • Said that the Zoning Code was reviewed and text amendments are proposed that apply to the three commercial zones (C-1, C-2 and C-3) as well as the C-M (Controlled Manufacturing) and P-O (Professional Office) Zoning Districts. The amendments would allow massage establishments as a permitted use in the C-1, C-2 and C-3 Zoning Districts and as a permitted use upon issuance of a Conditional Use Permit in the P-O and C-M Zoning Districts. • Advised that this item is Categorically Exempt under CEQA. • Recommended that the Commission adopt a resolution recommending that the City Council approve this Text Amendment. Commissioner Roseberry asked staff to verify that this State legislation was adopted because massage businesses that previously were unregulated now have new State provisions for certification of massage therapists. Planner Tim J. Haley deferred to the City Attorney who is currently processing through Council a Municipal Code Amendment establishing a certification process. City Attorney William Seligmann explained that the State legislation created a non- profit organization to create a massage therapist certification process. That process would pre-empt the City's requirements. The legislation requires local jurisdictions to have uniformity on how they treat massage therapists. Commissioner Roseberry asked if this is a case of State versus local control. City Attorney William Seligmann replied that with regard to certification the answer is yes but cities can have massage establishment requirements. Commissioner Roseberry clarified that cities are not giving up controls. City Attorney William Seligmann replied no. Commissioner Gibbons: • Said that this change is widely expanding the potential of new massage establishments in the City. • Reminded that Campbell used to have a limit of four massage establishments. It was a big deal. Things changed and become more flexible. Now it is just opening up completely. • Stated that she is not sure why the State law requires local jurisdictions to change. City Attorney William Seligmann said that the intent is that local jurisdictions do not treat massage therapists any differently than they do other health and/or personal care service providers. Commissioner Gibbons asked if it were not premature to take action on this Text Amendment when Council is still also working on related issues. The definition of personal services could change. Campbell Planning Commission Minutes for October 27, 2009 Page 5 City Attorney William Seligmann said that while it might be possible that the definition could change there are no plans currently to do so. Commissioner Gibbons asked why not wait to make this Text Amendment. City Attorney William Seligmann clarified that the City would still have to treat massage services similar to other personal care services. Chair Ebner reiterated that through this legislation the State is mandating that local jurisdictions treat massage businesses no differently than any other personal service business. If other types of personal service businesses are allowed in a specific zoning district then massage therapy must also be allowed there too. Commissioner Roseberry elaborated that this means that if massage therapy is to be limited within a particular zoning district than all other personal service businesses must also be limited in the same way. City Attorney William Seligmann said yes. That would include medical, physical therapy, salons, etc. Commissioner Alster said that the former regulations were likely put in place due to concerns about potentially "shady" uses that might include "back room" services. The new State legislation is legitimizing these legal respectful massage therapy businesses. City Attorney William Seligmann pointed out that there have been few problems with those massage businesses that seek licenses. The problems come with those who don't seek certification. Chair Ebner asked if the City is bond to make this change. City Attorney William Seligmann replied correct. Chair Ebner opened the Public Hearing for Agenda Item No. 2. Chair Ebner closed the Public Hearing for Agenda Item No. 2. Motion: Upon motion of Commissioner Roseberry, seconded by Commissioner Alster, the Planning Commission adopted Resolution No. 3968 recommending approval of a Text Amendment (PLN2009-106) to modify Zoning Code Sections 21.10.040 (C- 1/Neighborhood Commercial); 21.10.050 (C-2/General Commercial); 21.10.060 (C-3/Central Business District) to change massage establishments from a use requiring a conditional use permit to a permitted use consistent with State law and to Modify Sections 21.10.030 (P-O/Professional Office) and 21.10.070 (C-M/Controlled Campbell Planning Commission Minutes for October 27, 2009 Page 6 Manufacturing) to add massage establishments as a use requiring a conditional use permit, by the following roll call vote: AYES: Alster, Ebner, Reynolds and Roseberry NOES: None ABSENT: Cristina and Rocha ABSTAIN: Gibbons Chair Ebner advised that this item would be considered by Council for final action at its meeting of November 17, 2009. *** Chair Ebner read Agenda Item No. 3 into the record as follows: 3. PLN2009-77 Public Hearing to consider the Text Amendment (PLN2009-77) to Staff amend the Campbell Municipal Code, Section 21.10.260 (Sexually Oriented Businesses) and Section 21.10.080 (M-1 Light Industrial Zoning District) to extend the amortization period for non-conforming sexually oriented businesses (those not within the M-1 Zoning District and not meeting certain locational criteria) from two years to 10 years, and requiring that such businesses obtain a Sexually Oriented Business Permit. Staff is recommending that this project be deemed Exempt under CEQA. Tentative City Council Meeting Date: November 17, 2009. Project Planner: Daniel Fama, Assistant Planner Mr. Daniel Fama, Assistant Planner, presented the staff report as follows: • Reminded the Commission that the City adopted an ordinance last year that limited sexually oriented businesses to the M-1 (Light Industrial) Zoning District. • Added that the ordinance included atwo-year amortization period by which time any sexually oriented businesses would be required to relocate, close or modify their business. • Said that there was just one existing business on Winchester Boulevard, Pleasures from the Heart, impacted by this ordinance. • Reported that the owners of Pleasures from the Heart petitioned the City to allow them to stay in their location. At that time, Council considered grandfathering the use or extending the amortization period between five and 15 years. • Said that Pleasures from the Heart has four years remaining on its lease with an option for a five year renewal. • Stated that staff is recommending that the Planning Commission adopt a resolution to extend the amortization period to 10 years and require Pleasures from the Heart to secure a Sexually Oriented Business Permit. Commissioner Roseberry sought verification that there is only one business impacted by the ordinance amendment. Campbell Planning Commission Minutes for October 27, 2009 Page 7 Planner Daniel Fama replied yes, this is the only known sexually oriented business in Campbell. Commissioner Reynolds asked what fees would be charged to process the Sexually Oriented Business Permit. Planner Daniel Fama said that is yet to be determined but would be processed by the Police Department. City Attorney William Seligmann said he thought that there was already a fee in place. Planner Daniel Fama said he had checked with the City Clerk, who was not aware of one for this. Commissioner Reynolds said that the Commission would be voting on an unknown as far as the fee. Planning Manager Paul Kermoyan explained that the fee would be commensurate with the staff time necessary to process such an application and would be similar to other fees in the range of $350. Chair Ebner opened the Public Hearing for Agenda Item No. 3. Ms. Crystal Mangiameli, Co-Owner, Pleasures from the Heart, 1565 S. Winchester Boulevard: • Explained that they are mother and daughter and co-own their business. • Added that they have been in business for 12 years. • Said that this ordinance change caught them off guard. They were unaware of the proposed change and its impact on their business until they received a letter from City staff outlining the two-year amortization period. • Reported that they secured signatures on a petition as well as customer letters of support for their business remaining at this location. • Asked that their business be allowed to be "grandfathered" in order to offer them security in their business' future. • Said that the concept of an amortization period is scary. • Added that in 10 years a new Council will be in place that might decide not to renew the amortization period and Pleasures would have to go out of business at this location. • Stated that 10 years is not enough time to equal security. Ms. Lorraine Laden, Co-Owner, Pleasures from the Heart: • Pointed out that they also sell lingerie, which is a bigger percentage of their business than their novelty room. • Said that there have been no complaints received and they obtained 1,500 signatures on a petition of support. • Added that there customers were shocked to hear about this situation. Campbell Planning Commission Minutes for October 27, 2009 Page 8 • Stated that they have operated a clean, safe, nice store for 12 years and don't understand why this is happening. They want to stay. They like being here. • Suggested that members of the Commission go to this store before judging it. Chair Ebner assured the business owners that the members of this Commission have open minds. Commissioner Gibbons said that while she has not personally visited the store she knows of it. She asked if they have had a business permit all of the years they have been there. Ms. Crystal Mangiameli said that they have had their business license the whole time. Commissioner Reynolds said that if grandfathering this use is not possible, what time frame (Plan B) might better meet the needs of this business. Ms. Lorraine Laden said 15 years at least. Chair Ebner closed the Public Hearing for Agenda Item No. 3. Commissioner Roseberry: • Said that when the ordinance was discussed, the discussion was for the greater benefit. • Added that he thought the amortization period recommendation was reasonable and still does. • Stated that he could also appreciate that these owners have a good business that is probably on the fringe of what is considered a sexually oriented business based on what they sell and how they present it. • Said that he sympathizes with these owners. • Pointed out that this is the only business able to be grandfathered. Any others would be limited to the M-1 (Light Industrial) Zoning District. • Said that part of him wants to give these owners a break. Another part of him sees the extension of the amortization period to 10 years as reasonable. Allowing one use to be grandfathered leaves open the question, "why not let us establish here if that one is there?" • Reiterated his belief that 10 years seems okay. • Added that there is no way to make everyone happy. Commissioner Gibbons asked why this use is not grandfathered in. She added that this Text Amendment is more open ended that a grandfathered business. Director Kirk Heinrichs pointed out that the grandfathered approval would be for an indefinite period. While that is what the owners wanted, it is not what Council asked staff to consider. Campbell Planning Commission Minutes for October 27, 2009 Page 9 City Attorney William Seligmann pointed out that there is not a concern with the present management but more with potential future owners. Commissioner Gibbons agreed that the use goes with the land rather than the owner. City Attorney William Seligmann agreed. Commissioner Reynolds: • Reported that he was able to attend the Council study session as well as visit the site on Saturday. • Said it was his observation that this is not really a sexually oriented business but rather is more of a women's or couples' boutique. • Advised that his visit was at 5 p.m. on Saturday. The store was full of customers, most of which were women. In fact, he felt somewhat out of place being one of only two men in the business at the time. • Said that upon hearing the testimony of these owners, he is having a hard time with this and feels the City is penalizing them by putting a time limit on their use of this location. • Stated that while he does not want to see undesirable types of businesses established this is a good business. • Reminded that at the Council study session the direction given was to modify the amortization period to between five and 15 years. • Calculated that since these owners have four years remaining on their current lease with a five year renewal option to equal nine years and potential for a second five-year renewal option for a total of 14 years, extending the amortization period to 15 years could be supported with the track record these owners have with the City. It has operated as an exemplary business. • Stated his support for 15 years. Chair Ebner said that it is not certain that these owners will keep the store that long. City Attorney William Seligman said that while there is no concern with the present management of this business, future owners may not operate the same way. Commissioner Reynolds: • Said even if they were to sell the business in three or four years, the City is protected with the 15-year limit versus using the grandfather clause that would be for an infinite amount of time. • Reminded that this business has a 12 year history as an exemplary business. He stressed his support for the longest possible term without grandfathering this use. Commissioner Alster: • Assured the owners that this is not a personal attack on them as business owners. • Added that this is not seen as a bad business. • Advised that when a Community crafts its ordinances it is not done to go against one business but rather is to plan for an entire zoning district city wide. Campbell Planning Commission Minutes for October 27, 2009 Page 10 • Said she too is concerned about grandfathering this use due to potential changes in ownership. • Agreed that this seems to be operated as a wholesome business. Commissioner Gibbons: • Agreed with Commissioner Alster's comments. • Reminded that an allowed use goes with the land and not with the owners. • Said she is amiable to some language being added that would allow this to be brought forward again in 10 years for possible extension. • Suggested a motion to not preclude additional time being granted in the future if and when necessary. City Attorney William Seligmann said he was not sure how to do that in a way that does not come back to haunt us. He added that nothing currently precludes them from coming back in the future. Motion: Upon motion of Commissioner Roseberry, seconded by Commissioner Gibbons, the Planning Commission adopted Resolution No. 3969 recommending approval of a Text Amendment (PLN2009-77) to amend the Campbell Municipal Code, Section 21.10.260 (Sexually Oriented Businesses) and Section 21.10.080 (M- 1 Light Industrial Zoning District) to extend the amortization period for non-conforming sexually oriented businesses (those not within the M-1 Zoning District and not meeting certain locational criteria) from two years to 10 years, and requiring that such businesses obtain a Sexually Oriented Business Permit, by the following roll call vote: AYES: Alster, Ebner, Gibbons, and Roseberry NOES: Reynolds ABSENT: Cristina and Rocha ABSTAIN: None Chair Ebner advised that this item would be considered by Council for final action at its meeting of November 17, 2009. *** REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR Commissioner Gibbons asked Director Kirk Heinrichs for additional information about Council's action on the Extension of Approval for the Planned Development at 1677 S. Bascom Avenue. Director Kirk Heinrichs: • Advised that Council held a study session on the Inclusionary Housing component of this project just prior to the continued public hearing. Campbell Planning Commission Minutes for October 27, 2009 Page 11 • Added that the applicant had struggled with complying with full Inclusionary Housing requirements. • Said that following the public hearing Council approved atwo-year Extension of Approval with the modification of the Inclusionary Housing requirement. The modified requirement is for eight on-site affordable units and an in-lieu fee for the balance to go towards affordable housing units at the project at Campbell Avenue and San Tomas Expressway. Commissioner Gibbons said she thought Charities Housing was no longer doing that project. Director Kirk Heinrichs: • Explained that a different developer would be sought for this RDA-owned property. • Reminded that the original Inclusionary Housing requirement for this project was 18 units on site. Instead Council wanted a hybrid, with eight units on site and 10 units accounted for through the in-lieu fee. • Assured the Commission that in the future he would make a point of elaborating on the written Director's report items offering more details at the meetings. Chair Ebner asked if the Bascom Avenue Project should not have come back to the Planning Commission following the Council study session. Director Kirk Heinrichs: • Said that there were no proposed changes to the project other than the Inclusionary Housing component. • Added that the in-lieu funds would be applied to making more units affordable. • Said that what could change is the affordability range -moderate or low income units. • Stated that the in-lieu fee is $33.50 per square foot. The in-lieu fee for 10 units is approximately $500,000. Commissioner Roseberry sought clarification if those units would be located elsewhere in the city or would these funds be used to reduce the cost of units within this project. Director Kirk Heinrichs said that the project at Campbell and San Tomas Expressway consists of 24 affordable units and 16 market rate units but he hopes to see more affordable units incorporated. Campbell Planning Commission Minutes for October 27, 2009 Page 12 ADJOURNMENT The Planning Commission meeting adjourned at 8:20 p.m. to the next Regular Planning Commission Meeting of November 10, 2009. SUBMITTED BY: C ne A. Shinn,~Reco~'t~g Secretary APPROVED BY: Mark Eblv~er. O#'iai ATTEST: Heiry#ichs, Secretary