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HomeMy WebLinkAbout01-05-1994 City Council Minutes MINUTES SARATOGA CITY COUNCIL TIME: Wednesday, January 5, 19~4 - 7:30 p.m. PLACE: Civic Theater, 13777 Fruitvale Ave. TYPE: Regular Meeting Reception for Volunteer Award Winners and Open Space Task Force Members, Warner Hutton House, 6:30 p.m. Pledge of Allegiance - 7:30 p.m. 1. ROLL CALL Councilmembers Present: Burger, Kohler, Monia, Andelson, Mayor Tucker Staff Present: City Manager Peacock, City Attorney Rj.back, City Engineer Perlin Mayor Tucker thanked Pepsi Cola for supplying the drinks. 2. CEREMONIAL ITEMS A. Proclamation for Bradley Murray as Winner oz the W. W. Worden Memorial Award B. Presentation of Certificates for Volunteer A~ Lrd Winners and Open Space Task Force Volunteers Mayor Tucker presented an award to each volunteer and Ltlined the work they did for the City. She thanked each one of them on behalf of the City Council. The members who worked on the Oper Space Task Force came forward and Mayor Tucker presented a proc.amation to each individual. Mayor Tucker congratulated City Manager Peacock on the~completion of his doctoral studies. 3. ROUTINE MATTERS A. Approval of Minutes - 12/15 ANDERSON/MONIA MOVED TO APPROVE THE MINUTES OF 12/15, A8 PRESENTED. PASSED 5-0. B. Approval of Warrant ~List In response to Councilmember Kohler's questions, P~01ic Works Director Perlin explained the expenditures for B~nkley and Cantanese landscaping. MONIA/ANDERSON MOVED TO APPROVE THE WARRANT LIST. PASSED 5-0. C. Report of City Clerk on Posting of Agenda Pursuant to Government Code 54954.2, the agenda for tt~is meeting was properly posted on December 30. 4. CONSENT CALENDAR A. Previously-Discussed Items 1) Resolutions 94-01 and 94-02 on Glennon ~ppeal MONIA/BURGER MOVED TO APPROVE SECTION A OF THE CONSEN~ CALENDAR. PASSED 5-0. B. New Items Mln 1) Heritage Preservation Commission ' u~es, 10/12; 11/9 -Noted and filed. city council Minutes 2 January 5L 1994 2) Commission Minutes, 10/27; 12/1 - Noted and filed. 3) Bicycle Advisory Co~mlttee Minutes, 11 '15 - Note and filed. 4) Commission Attendance Reports 5) Saratoga Ave. Sidewalks, capital Projec No. 961 - Acceptance of Work and Approval of Notice of completion 6) Hakone Gardens Water System, Capital Pr>j. No. 981 - Final Acceptance and Notice of Comple ion 7) Resolution 94-03 confirming candidate statement decisions on June Election S) Resolution 94-04 setting election date and requesting services of County for June =lection 9) Resolution 779.6 amending Conflict of Interest Code to delete two positions and amend the titles of two others BURGER/MONIA MOVED TO APPROVE SECTION B OF THE CONSEN' CALENDAR. PASSED 5-0. 5. COMMUNICATIONS FROM COMMISSIONS AND THE PUBLIC A. REPORT FROM STAFF: FOLLOWUP ON PREVIOUS ORAL COMMUNICATIONS - None. B. ORAL COMMUNICATIONS Dr. F.L. Stutzman, Saratoga, addressed the issue f cellular antennas. He believes this matter is not closed as ~he Council made their decision based on false informatioh. He lbmitted to the. Council 34 names of physicians who agree that the:De antennas are a genuine concern. He believes the names submitte~ represent a cross section of the community. He also expressed concern about potential danger with regards to the antennas. dleit~~ Stutzman extensive. He pointed ogt that an antenna located in a heavily populated area is not a good idea and if people w~nt to use cellular phones, they should do so at their own risk. Mr. Don Whetstone, Vickery Ave., addressed the cellular antenna and the false statements made by the GTE attorney, as dis,:ussed at a previous meeting. He noted he sent a letter to the (:ity with a request that it be placed on the agenda, but the requ~st was not honored. He stated the City Council should be held accoantable for statements made during the public hearings. Mr. Whetsstone read statements made by several councilmembers at the No~ 3 and 17 meetings regarding the cellular antennas. He asked for answers to his letter and the statements made by the Councilmenbers. Mr. Whetstone stated it is his belief that the Council made a decision on false information. Mayor Tucker stated the Council base their decisions on [nformation presented to them at their meetings. Mr. Jeffrey Schwartz, Saratoga, asked what the proceduxe is when a citizen has a concern and would like an answer from t]]e Council. He noted it was his understanding, at a previous hearing, that the Council and City Attorney indicated that a decision can not be re- addressed even if false information was presented. M2~. Schwartz addressed a situation when an approval was rescinded because of false information presented to the Council. Councilmember Monia stated it is his understanding t]mt written communications should be placed on the agenda for disclssion. He City council Minutes 3 January 5 1994 believes this is the only way the public can address .he Council and receive an answer. Mayor Tucker stated the letter from Mr. Whetstor~ was for Councilmembers to answer speciEic questions regar[ing their decision. Councilmember Kohler stated he made his decision based on information supplied at the hearing by Dr. Polson. He 3ted he has not received any information or seen any reports that Brove these antennas are dangerous. He stated when the information is provided, the Council should readdress this issue. ~ s at th Councilmember Anderson stated this was covered exten i~ely e last hearing and the Council concurred with what Councilmember Kohler stated. She noted she based her decision on the report from Dr. Polson and also from other people who work in this Tield. She concurred with Councilmember Kohler, if new scientific ~vidence is presented they will readdress the issue. Councilmember Burger stated it is her understandinc that this matter is closed, absent any new scientific evidence. Mr. Schwartz stated people addressing this matter would like answers to the following questions: 1) on what basis dj.d the City Attorney advise the Council, when making their decision; 2) how should new evidence be presented; and 3) how do people get an answer from the Council. Councilmember Monia stated the information received from Dr. Stutzman should be filed for future review. He also asked the City Attorney about what recourse the Council has, to Dverturn a previous decision, if false information was presented. Councilmember Burger stated she would like to address this issue under Council items. C. WRITTEN COMMUNICATIONS 1) Everett N. Souza, Mayor, City of Santa Clara, encouraging adoption of strong smoking ~rdinance. Staff recommends that the City Council refer this to th~ Chamber of Commerce, Village Merchants et al. for comment; return on 3/16/94 with report. KOHLER/ANDERSON MOVED TO REFER THIS MATTER TO THE CHAMBER OF COMMERCE, VILLAGE MERCHANTS ET AL. FOR COMMENT AND RETURN ON 3/16/94 WITH REPORT. PASSED 5-0. 6. OLD BUSINESS A. Recommendation from Public Safety Commission concerning Lynde Avenue/Lynde Ct. Stop Signs Staff recommends that the City Council adopt the resolution removing stop signs. Public Works Director Perlin presented the staff r~port dated January 5, 1994. He noted the Council dealt with this matter in ~. . August from a recommendation from the Public Safety Commission. He stated petitions were received to review the previous ~ecision to create a three way stop. The Public Safety Commission recommends to the Council, that the three way stop be abandoned, and that the intersection be returned to its original state. He a,~ded, staff concurs with the Public Safety Commission's recommendaLion. Mayor Tucker stated the schools should be informed of t]is matter. Mr. Monte Boisen, 13896 Lynde Ave., stated he would request a survey of the neighbors before the Council make a decision on this issue. He suggested speed bumps on both incoming a~d outgoing City council Minutes 4 January 5~ 1994 entrances of the school toreduce speed. He stated the stop signs provide a safety feature for the neighbors on Lynde Av,~. Councilmember Burger noted she talked to Commissioner Dowdy from the Public Safety Commission. She-also spoke to the Sup,!rintendent of Schools, who indicated that she was not aware of ~his matter being on this evening's agenda. She stated the Sup~!rintendent would like to talk to the School's principal and report 3ack to the Council before they make a decision. Councilmember Bl~rger noted there was concern about thepetition, that people were not really aware of what they signed. She noted parents driving ~o and from the school need to realize that the stop signs. exist. Councilmember Anderson stated she also talked to Commisshoner Dowdy of the Public Safety Commission. She expressed conceln that the hearing with the Public Safety Commission did not take i21to account the entire neighborhood and the school. She stated sh~ would not make a decision at this time until a full hearing with the Public Safety Commission was held. ANDERSON/KOHLER MOVED TO SEND THIS MATTER BACK TO THE PUi~LIC SAFETY COMMISSION FOR REVIEW; CONTACT THE SCHOOLS AND NEIGHBO[ 3 ABOUT THE HEARING; THE SCHOOL SHOULD INFORM PARENTS ABOUT THE TOP SIGNS. PASSED 5-0. 7. NEW BUSINESS A. Memo Authorizing Publicity for Upcoming learings - Pavement Management BURGER/KOHLER MOVED TO APPROVE THE PUBLICITY AS :COMMENDED. PASSED 5-0. 8. PUBLIC HEARINGS 8:30 p.m. A. Appeal of-Use Permit Approval to allow Estab ishment of a Deli-Bistro and the Sale of Beer and Wine 14480 Big Basin Way within an existing commercial space in the saratoga village which is zoned Commercial-HiStoric (CH- 1) (UP93-006} (Applicant, Stark; appellant, Masek) (continued from 12/1) Staff recommends that the City Council deny the appeal upholding the Planning Commission decision. City Manager Peacock stated this public hearing was c. ntinued in order to allow staff time to conduct a parking study. He noted additional written communication was received from Ste ,hen Florey and Miles Rankin and will be made part of the record. Planning Director Curtis presented the staff report noting the purpose of the parking study was to: 1) evaluate tk.e existing parking and land. use situation of the village area; 2. determine the availability of parking spaces in the village area; 3) how much more development can occur before there is no parking available; and 4) to determine if there is an existing parking pro01em in the village area. Mr. Curtis reviewed the findings of the study as outl.ned in the .. ~ staff report noting that there were parking spaces available during all count times in various areas. He noted if all ~he surplus parking was used in the village area as much as 40,00~ to 50,0Q0 square feet of intensification could be added to this area. He noted there are parking spaces available within 500 to ~00 sq. ft. of any business. He noted it is staff's conclusion thtt there is parking available within walking distance and the prop)sed Bistro will not overload the existing parking. Mr. J.C. Masek, 14467 Big Basin Way, stated in today~s San Jose Mercury News, the parking requirements were reported ~efore this hearing and believes this in inappropriate. He stated ne does not oppose the Bistro, but is concerned about the parking He added City Council Minutes 5 January 5 1994 when he purchased his property he was forced to join he parking district. Mr. Masek stated the City should provide ~ervices to control parking as customers of other businesses park hn front of his business, at his expense. He believes parkin[ could be provided in parking district 3 for the Bistro, and they should pay the costs associated with this, as other business owners do. Mr. Warren Lampshire, 14457 Big Basin Way, presented hhs comments and Mr. Stark. He also did u was much more conservative than staff. He stated there is not a parking problem in the village area and new businesses are needed for Saratoga. He believes the merchants opposing this )roject are concerned about competition, but noted other businesses will improve in the village area as a result of the Bistro He added there is not a shortage of parking in the area, and th.~ applicant should not be forced to pay into a parking district be. pause other merchants say he should. He stated the Bistro was appr3ved by the Planning Commission because it is unique and staff hav~ continued to support the approval. Mr. Lampshire noted a chain has been placed across the property preventing Mr. Stark from utilizing the parking in the back. Mr. Lampshire addressed a call Mr. Stark concern about business lost because of ys 1 Council to deny the appeal. Mr. Eugene Zambetti, 14510 Big a e i and Mr. Cali, addressed the specific plan for the village a~%.ea which is contained in the General Plan which calls.for parking ,stricts to be formed. He stated there is a problem with circulation in the village and an additional parking district would all~viate this problem. He stated the lighting districts provide li,~hting, and they also allow for the City to put up Christmas decorations. He stated the trash enclosure should be constructed prior to occupancy. Mr.' Zambetti addressed the fair share re~arding the parking districts and again noted a new parking distriC should be formed to help the circulation problem. He stated ther should be fair share in cost for lighting and parking districts. Mr. Dan Stark, 14480 Big Basin Way, stated he did receive a threatening phone call at his home regarding the Bistro. He stated he has also received support for this project. H noted he received support from the planning Commission and beli ves he has been very cooperative with the village merchants. H expressed concern about income lost during the Christmas season because of ; aViJ bZlj. ev a eJtVCJ property with the fire department and building staf~ and have ~. . developed a formula, not to make maximum use of this mldm bu rig. Ms. Annette Casabonne, 20120 Herriman Ave., stated she owns property within parking district 3. She noted she ad,~ressed the parking problem in the village area 15 years ago. She ~tated when she purchased her property she had to provide 2 additional parking spaces and eventually join a parking district. She stated at the meetings for the formation of parking district 3, property owners expressed concern about other properties using their '~arking and were told that another district would be formed. Ms' Casabonne stated they are providing parking for people outside .~istrict 3. She addressed an article in the San Jose Mercury New: regarding parking and the Bistro. She also expressed concern that the Bistro does not require the same parking as a restaurant. She stated there has never been a restaurant in this area and the City needs to think about future needs with regards to the lack of parking spaces. Ms. Casabonne stated a parking district should be formed. Mr. Len Sullivan, 20570 Big Basin Way, stated there is not adequate parking within the village area. He stated there should be fairness for all with regards to parking costs. Mr. Miles Rankin, 14506 Big Basin Way, stated the ordinance City council Minutes 6 January 5 1994 regarding parking standards should be adhered to and applied to everyone equally. He stated a change in use from retail to restaurant requires more parking. He noted he is not opposed to the Bistro, but concerned about the owner not being part of a parking district. He believes deviating from tile parking requirement is a special privilege for this applicant. He stated the choices for the Council are to deny it or approve it knowing it will cause more problems to the existing parking problem. He stated the applicant should have to pay into a parking district. Ms. Maggie Porter, 14476 Big Basin Way, Manager, Bank ,>f America, stated the bank's parking lot is the closest to the Bi:]tro and is concerned about customers of the Bistro using this. She noted they are currently experiencing parking problems and have received customer complaints. She believes the Bistro proposed at this location will cause more problems. She asked the City Council to consider the harm the proposed Bistro will do to the b~nk and the neighboring merchants. Ms. Porter reviewed the hours o operation for the bank. Mr. Tom Van Den Hoogen, Big Basin Way, representin property managers from 5 stores and Dr. and Mrs Carl Smith, sta' ~d in 1975 an agreement was signed regarding the maintenance of th property. He noted he chained off the property and believes the applicant should share the.costs of the parking districts. Ms. Carol Mauldin, 14650 Sixth Street, stated she spe] $120,000 for a parking lot under her building. She stated she encourages new business in Saratoga. Ms. Mauldin stated businesses in Saratoga have been mis-treated by the City and believes the applicant is receiving special privilege. She noted th~ applicant for the Bistro must pay his fair share, but also shculd not be punished. Mr. Larry Tyler, Saratoga Vista Ave., addressed the s~Laff report regarding the parking study. He noted the applicant do s not have prescriptive rights to the five parking spaces provided Mr. Tyler no~e~ that in parking district 2 68% pf ~easabl.e fl or area is a t parking calculation is one space for each 238 sq. ft. lie believes this is because of the restaurants. He noted when Ho]lbies space opens up more parking will be required. Mr. Tyler adc~ressed the building rights and noted Hobbies has 3000 sq. ft. andhe has 700 sq. ft. of building rights yet to be utilized. He stated the conditional use permit requirements for restaurants allcws the City to evaluate their parking demand on a case by case bas~.s and this should be the case for the Bistro. He stated, generally'speaking, staff's study finds that there is parking available in the fringe areas o~ the village. He noted if this application was for a fringe area and not in the village he would have no objection. He stated the village area and building rights of propert owners in the parking districts should be protected. Ms. Bette Crawford, 12479 Green Meadow Ln., stated th petitions were signed by merchants after reading it. She noted s~ talked to several people who would like to rent this space, only ~e rent was too high, there is no bathroom and it has a leaky roof. She added she pays $16,000/year for parking and believes Mr. S ark should contribute to the parking costs. Mr. Saeed Sanjideh, 14567 Big Basin Way, stated that th applicant should show proof of the threatening letter he claims to have received. He expressed concern about the times the pa~king study was conducted and believes it was not conducted during~peak hour. He stated he respects competition, but the Bistro should pay for theirs'fair share of parking. He noted during the sum~er, 4 or 5 restaurants went out of business and another restauIant is not needed. Mr. Bob Cancellieri, 14440 Big Basin Way, stated he owns property in parking district 3 and pays $15,000/year for parkinc He noted City council Minutes 7 January 5 1994 there is a parking problem in the village area and bel eves times will get better and business wil! pick up. He stated ~.ost of the parking is taken up by employees and the issue of f~irness and parking is a big problem. Inresponse to Councilmember Anderson's question, Mr. M~sek stated they have 14 parking spaces and pay $15,000 to $16,00O~year. Mr. Zambetti stated he has 58 parking spaces and pays $66,)00/year. Mr. Stark stated the appeal is for the Bistro and he do~s agree to reduce the use to meet the village needs. Mr. Lampshire addressed the maintenance agreement between Mr. Tyler and Mr. Smith. He stated he was never contacted re~[arding the maintenance agreement and added that they can meet .he parking requirements if the chain is removed. Mr. Masek addressed the costs involved in purchasing t~[s property from the City. He stated the issue is the parking rights and urged the City Council to deny the project unless the applicant posts a bond to comply with the parking requirements. Mayor Tucker closed the public hearing at 9:40 p.m. In response to Councilmembers questions, Mr. Curtis stated the parking count included parking districts, private lots and public parking. He noted staff has not waived the parking r~quirement. Mr. Curtis outlined the parking existing and required for the Bistro. He stated the zoning ordinance indicates, foT permitted uses there are standard parking requirements, but for ~onditional uses, they are not required to provide a specific numbeI of spaces. He stated the total requirement was not waived and ~he parking provided for the Bistro is comparable with other businesses village wide. Mr. Curtis added a use can be changed from non-reStaurant to parking. . l~!aa~d~tgl In response to Councilmember Burger's q t property being chained off, City Attorney Riback state~ this is a private property issue and needs to be resolved etween the property owners. Councilmember Anderson suggested adding a condition that the 5 parking spaces must be accessible before opening the ~siness. In response to Councilmember Anderson's question, Mr. Curtis stated the Planning Commission's decision for approval was based upon the fact that the existing parking is sufficient for the prpposed use. He added that no business in the village meets the high parking standard. He noted, as indicated in the staff report, the village area is a multiple destination place. Councilmember Anderson suggested a condition that would require the property owner to waive the right to protest the for]ation of a parking district. She stated it is not necessary to pay a bond in advance. Councilmember Monia stated this is an opportunity to de~l with the parking and fairness problem which has been expressed b~ the public at this meeting. He noted it is important to understan~ that what · . ~ nte , happened in the past, happened for the best 1 nt~o~s but the issue needs to be readdressed. He noted he does not believe there is a parking problem currently, but the Council must 1 ~ at future o needs. He expressed concern about the issue of fairness and benefits'and, believes it is time for the Council to li~ok at this issue and maybe form one parking district. Councilmember Burger stated she concurs with Councilm~!mber Monia with regards tO one parking district and believes this can be a goal for the future. She noted the piecemeal parRing, which currently exists in the village, is not working. City council Minutes 8 January 5 1994 Councilmember Monia stated the Council should look at ~he formula being used for the parking requirements. He stated village merchants should be involved when reviewing the fo 'mula. He suggested as an economic incentive, as intensity inceases, the existing assessments may be lowered. Councilmember Burger stated she is willing to accept the staff report that there is not a parking problem currently, but the whole issue should be looked at. She stated this project sh.~uld not be denied because of the larger problem. City Manager Peacock stated staff and the Council need to look at an overall parking authority or look at the approach l~s Gatos is taking. He noted the problem with forming one distr~ct is that some districts are near their pay-off period and this eeds to be taken into consideration when developing a formula. The Council briefly discussed the possibility of c] sating one parking district for the village area. Mr. Peacock sta~d he would have to review the law and the costs involved. He stat~ad it would not be possible to do anything before July 1995. Jr. Peacock stated if district six was formed it would be an e:tension of district one. He noted there is a problem finding la .d to build parking. He noted when the village plan was done nd parking district three was completed it was clear it would ~ke 5 or 6 years to complete another parking district. Councilmember Anderson stated when reviewing a village [de parking plan, square footage of the building is used to de ~ermine the voting weight. She stated she would caution the Council that this should be a slow process and the merchants and the Chamber of Commerce should be involved. Mayor Tucker stated staff should do an overview o what the possibilities may be regarding the parking, and this should be presented at an informal meeting. Councilmember Monia stated if the City is going to r. uire this applicant to pick up some costs in the future, befcre this is approved, this is the opportunity to do so. Councilmember Kohler agreed with a condition to %equire the applicant to pay some costs with regards to parking or waive the right to protest the formation of a parking district. He believes there is a parking problem in the village area and a solution needs to be found. He addressed the fairness issue and noted this needs to be resolved. City Attorney Riback stated the issue is, being assur,~d that the applicant would be waiving the right to protest the l~clusion in any parking, lighting or landscaping districts, or benefits to the property. Councilmember'Monia stated this does not address th~ immediate problem and asked if there is any retroactivity that i fair. City Manager Peacock stated there are other buildi ~s in the village who have inadequate parking and they would have to be treated the same way. Councilmember Burger suggested converting the language, stated by the City Attorney, into a policy to be a condition for all future approvals. Councilmember Anderson suggested a waiver for new businesses coming into a district to set it up for a City wide plan. Sh cautioned that l~gal costs may be high. In response to Councilmember Monia's question, Mr. Curtj stated if the only business coming into Saratoga in the uture were restaurants, approximately seven more restaurants coul open up. City Council Minutes 9 January 5 1994 Councilmember Monia stated the Council should clearly tate, that while they will require the applicants must waive th right to protest, it is the direction of the Council that it is the intention of the City Council that they will assure a fair assessment for future parking which will be paid !or by the property owner. City Attorney stated it is not necessary for this app.icant, but can be stated in a separate motion if it is the conse]~sus of the Council. BURGER/MONIA MOVED TO DENY.THE APPEAL AND UPHOLD T~E PLANNING COMMISSION DECISION TO ISSUE A USE PERMIT FOR THE BIS!?RO, ADDING THE CONDITION THAT THE PROPERTY OWNER WAIVE THE RIGHT TO PROTEST THE FORMATION OF A BENEFIT DISTRICT. Councilmember Anderson suggested amending the motion to include that the public spaces, attached to the building, must b available before the certificate of occupancy is granted City Attorney Riback stated the problem is between tl property owners, but the City can require a condition, as stggested by Councilmember Anderson. City Manager Peacock stated the property owner should secure an access easement. Mr. Curtis expressed concern about the existing restallrant being able to operate with such a cohdition. City Attorney Riback stated the condition must r~quire the applicant to provide evidence to the City that access available to customers, before occupancy. Mr. Lampshire asked for more time to get this issue ~olved, if the use is granted. City Manager Peacock stated the decision of the City C)uncil will not become effective until the resolution is passed in two weeks. He noted the applicant will not receive the certificate of occupancy until the parking issue is resolved between t~e property owners. Mr. Van Den Hoogen stated the City Council should be a~are of the original agreement as addressed earlier. It was a consensus of the Council that the amendment ~hould read building and that parking shall be made available to clstomers." ANDERSON/MONIA MOVED TO APPROVE THE AMENDMENT AS STATED BY THE CITY ATTORNEY. PASSED 5-0. The above motion with the amendment was carried 5-0. Councilmember Monia stated he 9ould like to make it clear that the City Council's approval of this item is that they wo~Lld like to have this and future facilities, that will intensify tie use, pay into a parking district. He stated he would be willin to make a motion to this affect. Councilmember Anderson stated it was her understandir that the Council agreed to require future business who apply for a onditional use permit to also waive their right to.pr te t. like character will be dealt with the same way. He s t a will look into this and report back to the Council City council Minutes 10 January 5 1994 Mayor Tucker stated new and old business owners shoull be put on notice regarding the City Council's. decision. B. Ordinance amending Various Sections of Chapt ,r 4 of the City Code pertaining to Business Regulations nd Business License Fees (first reading and introductioz Staff recommends that the City Council introduce the ~dinance by title only, waiving further reading. BURGER/MONIA MOVED TO INTRODUCE THE ORDINANCE BY ITLE .ONLY, WAIVING FURTHER READING. Councilmember Anderson noted she was approached by Eri Morley who asked that "gross receipts" in the definition section De removed, because gross receipts is no lo~ger part of the business license. City Manager Peacock stated if the Council want to change the business license ordinance they must go through two public hearings. He believes it does no harm to keep the definition as is. The above motion was carried 5-0. C. Appeal of design review approval limiting th size of a Isize new two-story residence to 5,685 sq. ft. and enial of a variance to allow the proposed residence to exceed the site,s maximum allowable floor area by 589 s~. ft. (for a total of 6,277 sq. ft. of floor area where the maximum floor area permitted is 5,688 sq. ft.) ~he subject property is approximately 51,400 sq. ft. in am R-1-40,000 zone district at 15170 E1 Camiro Grande (Appellant/applicant, Ebrahimini) (DR93-030; V93-026) Planning Director Curtis presented the staff report dated January 3, 1994 and noted the applicant initially submitted ~ plan that conformed to code, but requested changes that require ] variance He stated on November 22, 1993 the Planning Commission denied both the variance and the design review. He stated th applicant requested that the Planning Commission reconsider the design review, and this was approved with the restriction on the square footage allowed, but did not approve th~ variance. He rated staff recommended to the Planning Commission that findings c3uld not be made and there were no special circumstances on the lot which would warrant the variance. In response to Councilmembers' questions, Mr. Curtis stated the calculations were based on the slope of the property and the second story element is within code. He stated if the form~[la used to calculate the slope was rounded down as opposed to rounded up, the applicant would still need a variance. Me pointed out that, although the garage is partly underground the square footage of the garage is still counted. Councilmember Burger noted she did visit the site as di the other Councilmembers. In response to Councilmember Anderson's question, Mr. Curtis explained the square footage allowed if there was no slope on the property. He noted the Heritage Preservation Commiss.on did not look at this property. Mayor Tucker opened the public hearing at ll:10 p.m. Mr. David Ebrahimini, 15170 E1 Camino Grande, stated he is requesting the variance for the following reasons: 1) enlironmental impacts, thick walls better for energy conservation; 2) slope calculation was rounded up, and staff considers this ~roperty in the hillside zoning, it is not in the hillsides; 3)'there has been considerable effort to design the house. He noted a large portion of the qarage is underground and should be considered basement. City council Minutes 11 January 5 1994 He noted he requests the variance so his family ,an have a desirable home to live in and he has full suppot from his neighbors. He noted there is nQ visual difference between the plan before the Council and the plan approved by th Planning Commission. He stated the proposed design is compatib with the neighborhood and urged approval of the plan before the Council. Ms. Mary Ellen Comport, 15242 E1 Camino Grande, stated she looked at the request for the variance for several reasons. She stated the neighborhood is going through a transition and some homes need to be remodeled from ground up. With regards to the prc~osed plan, only one tree has to be removed and the footprint i: increased because of the thicker walls. 2She stated the house is [nobtrusive and believes the variance should be granted. She added ~his is the house of the Ebrahimini's drea~s. Ms. Jean Ebrahimini, 15170 E1 Camino Grande, stated s~e requests approval of the variance. She noted the exterior ele'ation will not be affected with the change in plans. She requested approval for several reasons. She noted the underground two car garage is best for the neighborhood.and the environment, even t~ough it is more costly. Also the neighbors are supportive of the ~?equest for the variance and it will have no effect on the exterio2 elevation which has been approved. Mr. Maurice Camargo, 3953 Yoto Drive, San Jose, Architect, stated the property owners occupied the house 13 years ago anl have been working to obtain their dream home. He stated they have made compromises to reduces the square footage. He pointed o[t that the walls are 12" thick for a total of 245 sq. ft, also the I~indows are double pane. code regarding the maximum sguare footage allowed, design a home which does not meet the oning regulatio~ . Mr. Camargo stated he did consult city codes, and subm'tted plans e s counted, as it is partially underground. In response to Councilmember Burge~'s question, Mr. Cam~rgo stated the double pane windows will provide the best insulation, but part of the depth of the walls is for architecture and also f}r shading. Mayor Tucker asked if there is a substantial increase in energy conservation with the 12" walls as opposed to the 6" w~lls. Mr. Camargo stated any insulation in the walls is goo~ but they are also shading the windows. Councilmember Anderson asked for the plan which was appr ved by the Planning Commission. Councilmember Monia stated the Planning Commission e[0roved the plan, presented to the Council, in concept, but the s~:e is to be reduced. Ms. Nickie Kovac, 15150 E1 Camino Senda, stated the ne.ghbors are concerned about the neighborhood, but do support the pr}posed plan as it will add to the neighborhood and is compatible. Ms. Betsy Mace, 15195 E1 Camino Senda, spoke in sup[ort of the request for the variance. She noted the design is compatible with the neighborhood and the 12" walls do add to the quality of the homes. Ms. Marcia Kaplan, Planning Commissioner, speaking or behalf of Sami Asfour, explained the reconsideration the applicanz requested at the end of the Planning Commission meeting. She stated the approved plan was to save costs with regards to submi~ting a new application. She stated, as a Commissioner she goes b] the rules City council Minutes 12 January 5 1994 and to grant variances, findings must be made. She 'st ted visual impact and neighborhood support are..not legal findings o grant the variance. Councilmember Monia stated it his understanding that t2 ~ applicant asked for reconsideration under oral communications and a proposal was made by the applicant to try to move the process Torward and approve the design review if the maximum square footage ~llowed was met. Ms. Kaplin stated the original plans conformed and this is what she believes was approved. She noted the design was accepLable. Mr. Camargo stated the property owner was not pres. ant at the Planning Commission meeting and it was his understanda.ng that if they choose to go with the application the fees for the review would be continued so they asked for approval for the '~lan and he' would talk to the owner about this. He stated they are now before the Council requesting approval for the variance. Mayor Tucker closed the public hearing at 11:40 p.m. Councilmember Anderson stated it is compelling to approve a project when there is full neighborhood support, but did question the findings. In response to Councilmember Anderson's question, Cit~' Attorney Riback stated the applicant has to show extraordinary ci~rcumstances existing on the property, if not taken into considera'2ion, would result in hardship to the property owner. He stated tile findings must be unique circumstances that would prevent prop+rty owners en' ' ' ' . . '. property owner enjoying his property as other property owners do. Councilmember Kohler stated the home is built on a sl~pe and the calculation was rounded up and believes this' is a penalty. He noted the thick walls are not livable space and the entrance to the garage is underground and believes this should be corsidered as part of a basement structure. He believes all penaltie add up to 500 ft. KOHLER/BURGER MOVED TO APPROVE THE APPEAL BECAUSE OF ?HE UNIQUE CIRCUMSTANCES ON THE PROPERTY. Councilmember Burger stated she would support the motion because of the hardship imposed on the property owner such as the slope calculation. She stated trees are being preserve and the neighborhood is in full support. She stated the City ..s making a mistake when penalizing the applicant for showing sen~itivity to the environment. She stated one of the findings is that the design is environmentally sensitive because of the thickness o] the walls, which provides insulation. She noted the perception .f bulk has been removed by placing the garage partly underground. She stated there is no visual impact. Councilmember Monia stated he is in support of the desion and being sensitive 'to the enviropmental concerns are complime~ ary to the neighborhood. He stated the problem is, making the indings to grant a variance. He noted this is a very large home ar few homes in this zoning district are this large. He believes t~e property owner is benefitring from the slope because of the basement etc, but cannot make the findings to grant the variance. City Attorney Riback stated he did review the varianc~ ordinance and noted that the conditions set forth in the ordinanze can take into consideration physical conditions of the proper~.y, but the Council can not use the applicant's design as a basis for making the findings or hardships. He noted conditions must be identified and they must be identified as to how they are creating a difficulty. City council Minutes 13 January 5 1994 Councilmember Anderson stated the only physical'difficlLlty is the slope, and does not believe this is a physical constIaint. She noted she can not make legal findings to grant this varLance. She also expressed concern about setting a precedent, if .he Council approves this project. Mayor Tucker asked the Councilmembers who made the motion to identify the findings. Councilmember Kohler stated the rules and regulations I~f the City are to avoid obtrusive homes. He stated in this case one of the findings is the underground garage and believes part of 2his should be considered basement. Mayor Tucker stated the slope density was developed to protect hillsides and views and noted she can not make any legal findings to support the project. The above motion was denied 2-3 (Tucker, Anderson, Mon~.a No). city Manager Peacock stated the design review has been approved with the condition that the house size be reduced and th.~ applicant can now submit plans to staff and receive approval, as .ong as the square footage meets the Planning Commission's approva. MONIA/ANDERSON MOVED TO DENY THE APPEAL. PASSED 3- (Burger, Kohler No). 9. CITY COUNCIL ITEMS A. Oral Communications (continued) and instructit s to staff regarding actions oncurrent oral communicati!~ns - None. B. Agency Assignment Reports 1. ABAG - Anderson 2. Cable TV Board - Monia 3. HCD Policy Committee - Tucker 4. Transportation Commission - Anderson 5. Hakone Foundation - Kohler 6. Flood Control Advisory Board - Burger 7. League of Cities Peninsula Division - T .cker 8. Water District Commission - Anderson 9. Santa Clara County Cities Association - Tucker 10. Sister City Committee - Burger ~~ 11. Traffic Authority Policy Advisory Board - Tucker 12. Transit Assist Board - Burger 13. Senior Coordinating Committee - Burger 15. t e g Ta ce - Monia 16. Emergency Planning Council - Kohler 17. Congestion Management Agency Advisor Board - Burger/Tucker 18. Local Transportation Authority Polic Advisory Board -Kohler/Anderson Councilmember Burger stated the Senior Coordinating Com~ .ttee is in the process of doing their planning for their annual r~treat. Councilmember Anderson stated she received a phone call from Michael Collishaw and they are planning another Jazz festival, but would like to do it for three days. She noted th&y will be entertaining applications from other charities or non-profit agencies in the community who may want to benefit fro] the other two days. She suggested that the Councilmembers pass 2his on. C. General Council Items 1) Agenda items for January 11 adjourned regular meeting (Joint Meeting with Library Commission) a. Commission,s Response to December Community City councll Minutes 14 January 5 1994 Forum b. Changes to the Library,s Financial Structure c. Fund-raising ~ Accomplishments a:~d Future Plans/Goals d. Increase in Friends of the Library Membership e. Finding Library Commissioners f. Will Monte Sereno Pull.Out and Join Los Gatos? g. other Items: Crossing Guards; clo3ed Session on City Manager Evaluation 2) Other Mayor Tucker stated she did review the tapes and minutes of the previous meeting for the first public hearing. She als talked to Mr. and Mrs. Cancellieri regarding the parking issue. Mayor Tucker stated the Traffic Authority is planning a. ~lebration for the opening of Highway 85 and they need volunteers She also stated that there is direct contact this Saturday. Councilmember Burger requested a map of the Village which outlines both private and public parking. Mr. Zambetti stated in the past, advisory agencies, whet an item is appealed to the City Council, are not allowed to speak unless a majority of the Planning Commission approve this. He believes this should be adhered to. Councilmember Burger stated this issue should be discu:~sed at the next joint meeting of the Planning Commission and City Council. City Manager Peacock stated it is Council's past decisiDn that the only time a commissioner is supposed to speak is, if :he Council asks them to speak. City Attorney Riback stated Councilmembers can appear before the Planning Commission as a citizen, but must disqualify themselves from speaking on the issue if appealed to the City Cfuncil. Be also noted if a Councilmember prejudges a matter 0efore the Planning Commission they should abstain from discuss]on at City Council level. City Manager Peacock stated the Chamber of Commerce is holding its annual retreat at Montalvo next Thursday. 10. ADJOURNMENT The meeting adjourned at 12:20 a.m. to the next meeting 3n Tuesday, January 11, at Administration Meeting Room, 1377~ Fruitvale Avenue. 11. CLOSED SESSION on Litigation, Tr. 7770, (Sa~atoga vs. Cocciardi) At the conclusion of the closed session the Mayor annl~unced that the council had approved an amendment to the settlemel ~ agreement between the City and Cocciardi which was approved by ~he City in October of 1992. R~tf~ly submitted, Catherine M.R~R~il~ard Minutes Clerk