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HomeMy WebLinkAbout10-13-2004 Planning Commission Minutes MINUTES SARATOGA PLANNING COMMISSION DATE: Wednesday, October 13, 2004 PLACE: Council Chambers/Civic Theater, 13777 Fruitvale Avenue, Saratoga, CA TYPE: Regular Meeting Chair Garakani called the meeting to order at 7:00 p.m. ROLL CALL Present: Commissioners Garakani, Hunter, Nagpal, Rodgers, Schallop, Uhl and Zutshi Absent: None Staff: Director Tom Sullivan, Associate Planner John Livingstone, Associate Planner Ann Welsh and Associate Planner Lata Vasudevan PLEDGE OF ALLEGIANCE APPROVAL OF MINUTES – Regular Meeting of September 22, 2004. Motion: Upon motion of Commissioner Hunter, seconded by Commissioner Nagpal, the Planning Commission minutes of the regular meeting of September 22, 2004, were adopted with corrections to pages 6, 8, 9 and 11. (5-0-0-2; Commissioners Schallop and Uhl abstained) ORAL COMMUNICATION There were no oral communications. REPORT OF POSTING AGENDA Director Tom Sullivan announced that, pursuant to Government Code 54954.2, the agenda for this meeting was properly posted on October 7, 2004. REPORT OF APPEAL RIGHTS Director Tom Sullivan announced that appeals are possible for any decision made on this Agenda by filing an Appeal Application with the City Clerk within fifteen (15) calendar days of the date of the decision, pursuant to Municipal Code 15.90.050(b). CONSENT CALENDAR There were no Consent Calendar Items. Saratoga Planning Commission Minutes of October 13, 2004 Page 2 *** PUBLIC HEARING - ITEM NO. 1 APPLICATION #04-112 (397-24-032) WOOD, 14161 Douglas Lane: The applicant requests Design Review Approval to construct a two-story single-family residence. The total floor area of the proposed residence is 5,907.5 square feet. The floor area of the first floor and the garage is 4,575.5 square feet and the second floor is 1,332 square feet. The maximum height of the proposed residence is 26 feet 6 inches. The lot size is approximately 20,080 square feet and the site is zoned R-1-20,000. (CHRISTY OOSTRHOUS) (The applicant has requested that this item be continued to the meeting on October 27, 2004). Motion: The Planning Commission continued consideration of Application #04-112 to the Planning Commission meeting of October 27, 2004. (7-0) *** PUBLIC HEARING - ITEM NO. 2 APPLICATION #02-281 (503-31-067) – SHENG, 21794 Heber Way: Request Design Review Approval and Variances for the setbacks to build a new two-story house on an existing vacant lot. The proposed structure will be 6,483 square feet, which includes the 726 square foot three-car garage. The gross lot size is 6.06 acres and zoned Hillside Residential. The maximum building height of the residence will not exceed 26 feet. (JOHN LIVINGSTONE) (The applicant has requested that this item be continued to the meeting on November 10, 2004). Motion: The Planning Commission continued consideration of Application #02-281 to the Planning Commission meeting of November 10, 2004. (7-0) *** PUBLIC HEARING - ITEM NO. 3 APPLICATION #04-208 (386-10-049) AT&T Wireless (applicant), YASUTO (property owner), 1777 Saratoga Avenue: The applicant requests Use Permit approval to install six cellular panel antennas on an existing monopole. The proposed antennas will be attached to the monopole at a level below the existing antennas operated by another wireless carrier, Verizon. Related equipment will be situated on the property adjacent to Verizon’s existing equipment. This will be a co-location site with not only Verizon but also Sprint PCS, which has a pending application with the City for proposed antennas and equipment. Sprint’s application has been scheduled for a duly noticed public hearing on September 22, 2004. The site is located in the P-A (Professional and Administrative Office) zoning district. (LATA VASUDEVAN) Associate Planner Lata Vasudevan presented the staff report as follows: • Advised that AT&T Wireless is seeking approval of a Conditional Use Permit to allow the installation of six cellular panel antennas on an existing monopole, below antennas owned by Verizon Wireless. Corresponding ground equipment would be located on a concrete slab in a 12 x 24 foot area that will be enclosed with new fencing. Saratoga Planning Commission Minutes of October 13, 2004 Page 3 • Explained that this installation will represent a co-location with two other providers, Verizon and SprintPCS. SprintPCS obtained an approval on September 22nd for this location. • Reported that Crown Castle owns the leasehold for this site. • Advised that the paint store containers would be relocated and that the property owner was contacted regarding proper storage of paint. • Informed that this application complies with Code and is not found to be detrimental to the health, safety and welfare of the public. • Recommended approval and reported that the applicant is available to answer any questions. Commissioner Zutshi asked staff if there are any additional cellular applications pending for this location. Planner Lata Vasudevan replied not now, although there is a pending application for installation of a generator for this location. Commissioner Nagpal asked if there is a limitation on the number of years this approval would run or if it would be an on-going approval. Director Tom Sullivan explained that there are no time limitations but that if the site were found to be not compliant with the conditions of approval, it would be brought back to the Commission for reconsideration. He added that the Planning Commission could elect to attach a time limitation when an approval does not involve structures. Chair Garakani asked staff if the Commission could say “enough” at some point. Director Tom Sullivan replied yes. Chair Garakani opened the Public Hearing for Agenda Item No. 3. Ms. Dana Geary, Applicant’s Representative: • Explained that this installation is intended to provide more complete coverage by filling in current gaps. • Added that this proposal for a co-location is one that the City prefers to reduce the total number of cellular antenna sites within the community. • Called this a win-win situation. • Stated she was available for any questions. Chair Garakani asked if there is potential for these antennas to interfere with one another. Ms. Dana Geary replied that this is the reason for the separation between each provider’s antennas. If antennas were to be placed too close together, there would be interference. At least a five-foot separation is required to prevent such interference. Chair Garakani closed the Public Hearing for Agenda Item No. 3. Commissioner Hunter said that this is just fine and that she is pleased to see better coverage provided to the community. Saratoga Planning Commission Minutes of October 13, 2004 Page 4 Motion: Upon motion of Commissioner Nagpal, seconded by Commissioner Zutshi, the Planning Commission approved a Conditional Use Permit (Application #04-208) to allow the installation of six cellular panel antennas on an existing monopole on property located at 17777 Saratoga Avenue by the following roll call vote: AYES: Garakani, Hunter, Nagpal, Rodgers, Schallop, Uhl and Zutshi NOES: None ABSENT: None ABSTAIN: None *** PUBLIC HEARING - ITEM NO. 4 APPLICATION #04-034 (397-08-091) – OVERLAND DEVELOPMENT INC., 15145 Sobey Road: Request Design Review Approval to construct a 25.5-foot high single-story structure on a vacant lot with an average slope of 16%. The size of the home is 5,677 square feet with an 845 square foot basement. The lot size is 46,082 square feet and the parcel is zoned R-1-40,000. (ANN WELSH) Associate Planner Ann Welsh presented the staff report as follows: • Advised that this item was continued from June 23, 2004, when the Planning Commission directed the applicant to revise plans to address neighbor concerns regarding the garage and right of access. • Explained that the applicant is proposing to construct a 23 foot, 9 inch high single-story residence on a 46, 082 square foot lot that is accessed from Sobey Road through an access easement. • Described the proposed home as consisting of 5,677 square feet with an 845 square foot basement on an R-1-40,000 zoned parcel. • Pointed out the changes from the original submittal as including the reduction to the 23 foot, 9 inch height; the reorientation of the garage to face Sobey Road rather than the neighboring property to the east; the increase of one of the side yard setbacks to 30 feet; the retention of an additional tree; the relocation of the house further to the west so that it is more centered on the lot; a reduction in the FAR and coverage and revised landscaping to include low-growing flowering Plums and an additional Coast Redwood to the east. • Stated that the City Attorney was consulted regarding the issue of access and a legal analysis was prepared that concludes that Council with its actions of 1983 decided the issue. That decision must stand. • Recommended approval with conditions of approval as outlined. Chair Garakani asked about the letter from the neighbors, the Coes, in which they raise issues of concern. Commissioner Rodgers questioned whether this letter should be discussed here or during the public hearing. Commissioner Hunter pointed out that this is the public hearing. Director Tom Sullivan clarified that when the staff report is done, the public hearing would be opened. Commissioner Rodgers thanked staff for including the requirement for a change of address as a condition of approval as this site is currently hard to find. It is important that a property be addressed so it is easy to locate. Saratoga Planning Commission Minutes of October 13, 2004 Page 5 Commissioner Zutshi asked staff who is responsible for installing the fire hydrant. Planner Ann Welsh replied the applicant. Commissioner Hunter asked whether the Commission must find it agrees with the actions of Council in 1983 or overturn them. Planner Ann Welsh said that the Commission would have to find that circumstances have substantially changed to disregard the actions of Council from 1983 regarding the access to this site. Commissioner Hunter asked if the Commission has any purview over the issue of trash collection. Chair Garakani replied no. Commissioner Nagpal opined that nothing appears to have changed since 1983 with regards to the driveways and access for this parcel. Planner Ann Welsh agreed, saying not as far as she can see. Commissioner Hunter asked staff if Fire is satisfied with the access road width. Planner Ann Welsh replied yes, it meets Fire’s requirements. Fire is satisfied as long as proper turnaround is available. The plans have been revised to show Fire access. Commissioner Hunter asked about the other claimed access from Monte Vista. Planner Ann Welsh replied that in 1983 three parcels were subdivided, two with frontage access from Monte Vista and the third from Sobey Road. At that time, Mr. Coe objected. All decisions have been made as it stands now and per the City Attorney it cannot be changed now. There must be something very specific to support a change, not something general. Commissioner Nagpal asked if the trash truck comes all the way in. Planner Ann Welsh said that she has heard from one neighbor that the truck does go up the road. This is simply hearsay from that neighbor. Commissioner Nagpal pointed out that a fire gate proposed in 1983 was never installed. Planner Ann Welsh said that she spoke with Dr. Johnson about that. There is a barrier at Monte Vista now but the neighbors did not want a major change at that time and kept it as it currently is. Unless a property owner is a successor in interest, a new property owner is not held responsible for that requirement. Chair Garakani opened the Public Hearing for Agenda Item No. 4. Mr. Michael Davis, Applicant: • Thanked the neighbors for working with them. Saratoga Planning Commission Minutes of October 13, 2004 Page 6 • Explained some of the design changes including the reorientation of the garage by 90 degrees so that it is facing Sobey and thereby removing visible parking from the sight of the neighboring property. • Added that a bare spot in screening landscaping would be filled with an additional Redwood tree. • Reported that the Johnsons, who live to the west, were concerned about tree heights impairing their view. The originally proposed Oak trees were felt to be too tall. The Johnsons suggested flowering Plum trees instead. • Added that by spinning the garage, they also straightened the house from an angle into an L-shaped structure and lowered the height. • Pointed out that they also were able to save an additional tree. • Thanked Planner Ann Welsh for her thorough report. • Said that they have 4,000 square feet less impervious surface than is allowed. • Reported that there is no record of an access easement from Monte Vista Drive for this parcel. • Advised that their Real Estate Attorney is present and available for any questions. Commissioner Uhl asked about the issue of tractor access. Mr. Michael Davis: • Said that Mr. Coe raised this issue but that there is no legal access to the easement for tractor access. • Explained that the fire truck turnaround would be a hammerhead and that Mr. Coe would be responsible for half of this turnaround. • Added that an option to installing a hydrant is to sprinkler the house as they are proposing to do. Chair Garakani asked if the inclusion of two Redwood trees has been discussed with the neighbor. Mr. Michael Davis said that the neighbors are open to another. Commissioner Hunter asked the Applicant’s Attorney if he has any disagreement with the opinion reached by the City Attorney on the issue of the easement. Mr. Sam Chuck, Attorney for the Applicant: • Replied that he agreed with the City Attorney’s letter. • Said that he looked at the documentation from 1983 and that significant changes would be required in order to revisit the access issue. Commissioner Hunter commended the applicant on the changes made to the project, particularly the height reduction, saying that this is a very nice looking house. Mr. Michael Davis said that they worked closely with the neighbors and appreciated their time and input. Commissioner Nagpal commended them for saving an additional tree. Commissioner Rodgers: • Noted for the record the letter of October 12, 2004, from Thomas and Norma Coe in which they raise concerns regarding this application. The letter should be accepted into testimony. Saratoga Planning Commission Minutes of October 13, 2004 Page 7 Director Tom Sullivan added that the City Attorney’s response should also be accepted. Chair Garakani said that both could be entered into the record, including the City Attorney’s response as prepared by Ann Welsh following their conversation on the subject. Chair Garakani closed the Public Hearing for Agenda Item No. 4. Commissioner Rodgers: • Distributed her written comments in response to the issues raised by the Coe letter. • Asked staff if there is any reason for her to read this into the record. Director Tom Sullivan replied not. If there are issues, they should be raised in the discussion. Commissioner Rodgers: • Stated that regarding Issue #1, which the Coes are against the planting of Redwoods, the City’s policy is to favor native trees. • Stated that regarding Issue #2, ingress/egress from Sobey Road and space for trash cans, this issue can be discussed amongst the neighbors on Sobey as there appears to be sufficient access for trash collection. Additionally, a Traffic Safety Review is required under the conditions of approval whereby this issue can be evaluated further. • Said that regarding Issue #3, status of a fire gate on Monte Vista Drive, according to the Assistant City Attorney this is not an issue. The Fire Department does not require it. Perhaps this issue could more appropriately be referred to the Public Safety Commission. • Concerning Issue #4, widening of easement to 18 feet, the Fire Department finds the existing access at 14 feet to be in compliance. No reason was mentioned for widening this road and two vehicles can comfortably pass each other as the driveway currently exists. There is little space for extra road shoulder to be located. The maintenance issues (tree trimming) raised must be solved by the easement holders. The concerns regarding potential damage to driveway pavers on the Coe property during construction is handled through a condition of approval. • Regarding Issue #5, applicant’s right of ingress/egress over the easement to Sobey Road, while the Coes believe there is a change in circumstances, the City’s Attorney says the Commission is precluded from denying use of the access easement. If the Commission finds as a matter of fact that there is a change of circumstances, it may address this issue. • Added that the Coes charge that in 1983 three parcels took access to Sobey. One has been changed to be off the private road and the applicant would be the fifth home to use the private road. Additionally, that two parcels on the east of the private road have rights of way, that traffic has increased since 1983 and that an alternate access point from Monte Vista Drive exists for this particular parcel • Countered those points by saying that in her opinion the first driveway appears to be off the public road and not the private road. That the two parcels to the east are oriented in the opposite direction and have access to Sobey in that direction, that a Traffic Study would be conducted as a condition of this approval and that the validity of the claimed easement from Monte Vista Drive is not documented, and that this specific parcel was created with covenants that run with the land to provide access. Therefore, no change in circumstances can be found. Therefore, the Commission is precluded from considering the issue of the applicant’s use of the private road. Commissioner Hunter told Mr. Johnson that she wished the originally proposed native Oak trees would be planted, although flowering Plum trees are also nice. Saratoga Planning Commission Minutes of October 13, 2004 Page 8 Commissioner Zutshi reported that she and Chair Garakani had driven all the way up to the Coe property and felt that two more Redwood trees would not be detrimental to their views. Commissioner Nagpal expressed her appreciation for the revised design. She agreed that it is tough to make the finding here that there is a change of circumstances regarding access rights. Suggested leaving the issue of trees to staff in conjunction with input from the neighbors. Motion: Upon motion of Commissioner Nagpal, seconded by Commissioner Uhl, the Planning Commission granted a Design Review Approval to allow the construction of a new residence on property located at 15145 Sobey Road with the direction that staff work out the issue of tree selection in consultation with the arborist and upon consultation with the neighbors, by the following roll call vote: AYES: Garakani, Hunter, Nagpal, Rodgers, Schallop, Uhl and Zutshi NOES: None ABSENT: None ABSTAIN: None *** PUBLIC HEARING - ITEM NO. 5 APPLICATION #04-227 (503-10-049) – DOUGHERTY, 20125 Orchard Meadow Drive: Request Design Review Approval to build a new two-story house on an existing vacant lot. The proposed structure will be 7,960 square feet, which includes a 498 square foot garage. The gross lot size is 9.15 acres. The maximum building height of the residence will not exceed 26 feet. (JOHN LIVINGSTONE) Associate Planner John Livingstone presented the staff report as follows: • Advised that the applicant is seeking Design Review Approval to construct a new single-family residence on an existing vacant lot. The new structure would be 7,960 square feet with a 498 square foot garage and a maximum FAR of 8,000 square feet. • Described the property as consisting of 9 gross acres. The maximum height of the structure would be less than 26 feet. • Explained that this parcel is in County jurisdiction but within the City of Saratoga’s sphere of influence and Urban Service Area. Most of the City’s Codes do not apply with this application. The City is asked to sign a form stating that this project is consistent with its General Plan. Such a form was signed several years ago in error. The applicant litigated and a settlement agreement was reached. The project will meet the City’s Design Review Standards for height and FAR. Grading, landscaping and lot coverage are not under City review. • Stated that the project will incorporate stucco siding and stone veneer. A material sample board has been provided. • Announced that the project meets Design Review findings and recommended approval. • Said that the applicant is unavailable this evening due to a family emergency but that her architect is present on her behalf. Commissioner Zutshi asked staff what is the maximum square footage for this structure. Planner John Livingstone replied 8,000 square feet. Saratoga Planning Commission Minutes of October 13, 2004 Page 9 Commissioner Uhl asked if neighbor feedback was solicited. Planner John Livingstone reported that this property owner also owns the adjacent property. There is just one neighbor close by. Commissioner Nagpal asked if a public notice was sent. Planner John Livingstone replied yes. Commissioner Rodgers asked if the space behind was considered open or green space. Planner John Livingstone replied yes. Commissioner Hunter mentioned the very tall fences in the area with spikes and asked if the County permits such fencing due to their potential danger to deer. Chair Garakani questioned whether deer would jump over a five-foot high fence. Commissioner Hunter replied yes. Planner John Livingstone said that he was not aware of the County’s requirements for fencing. Commissioner Rodgers sought clarification that this issue of fencing does not fall within this Commission’s purview. Planner John Livingstone replied correct. The information provided on the landscape plan is simply a courtesy. Chair Garakani opened the Public Hearing for Agenda Item No. 5. Ms. Martha Matson, Project Architect: • Said that this is a County property. • Said that the area consists of mostly two-story homes with between 7,500 and 8,500 square feet of living space. • Assured that this project is in keeping with the neighborhood and that they felt it was important to keep the massing down, accomplishing that by nestling the home into the hillside near a grove of Oak trees. From the street, the garage doors are not visible as the house is tucked back to the rear of the lot, way back from the street, thus providing privacy for the inhabitants and neighbors. • Described the architectural style as being Tuscan with European finish stucco and stone details. • Said that they feel happy with the design and that she is available for any questions. Commissioner Rodgers questioned the color of the proposed roof tiles, expressing concern that they may be somewhat orange. Commissioner Hunter said that they appear fine. Saratoga Planning Commission Minutes of October 13, 2004 Page 10 Ms. Martha Matson assured that she herself does not like orange tile. They are more of a cool hue and work well with the building and stone colors. Planner John Livingstone said that when shown an array of sample tiles, he found that to look all right. Mr. Brent Bellm, 2350 Mt. Eden Road: • Questioned the City’s review and hearing process. • Asked how the neighbors should be involved. Commissioner Hunter asked Mr. Bellm if he had seen the plans. Chair Garakani asked Mr. Bellm when he received the public hearing notice. Mr. Brent Bellm replied that the notice arrived about three weeks ago. Chair Garakani told Mr. Bellm that if he had concerns he should have stopped by the City offices. Commissioner Uhl asked Mr. Bellm if he had concerns. Mr. Brent Bellm replied no but that he felt the letter sent did not tell him what to do. Reported that he took time off to attend this evening and felt that he has wasted his time. He questioned why he is even involved. Commissioner Zutshi explained that property owners within 500 feet of a project site are noticed of public hearings. Planner John Livingstone added that the notice of public hearing explains the process. He added that staff would take Mr. Bellm’s comments into consideration and pointed out that another hearing notice would soon be sent by the County. Mr. Bellm can contact the applicant, architect or the County Office with any questions about the next process. Mr. Brent Bellm stated that he is frustrated by the process. Commissioner Uhl said that the purpose of a public hearing is to raise issues. He assured Mr. Bellm that steps would be taken to make the notice more clear in the future. Chair Garakani reminded that this evening’s hearing does not conclude the processing of this application. While Saratoga’s review may be done, the County’s process is not. Ms. Martha Matson said that she would be happy to go over the plans with this neighbor. Chair Garakani closed the Public Hearing for Agenda Item No. 5. Commissioner Hunter said that this is a nice design and fits well into the hillside. Said that she liked the color board and finds this to be a lovely home. Commissioner Rodgers said that she likes that the house is tucked back high on the site within a grove of Oak trees. Saratoga Planning Commission Minutes of October 13, 2004 Page 11 Commissioner Uhl said that there appears to be no neighbor concerns. Commissioner Nagpal said that the size appears consistent with the area and she can support this application. Chair Garakani suggested that the architect work with neighbors regarding landscaping, an issue not under the consideration of this Commission. Motion: Upon motion of Commissioner Rodgers, seconded by Commissioner Hunter, the Planning Commission granted a Design Review Approval to allow the construction of a new residence on property located at 20125 Orchard Meadow Drive, by the following roll call vote: AYES: Garakani, Hunter, Nagpal, Rodgers, Schallop, Uhl and Zutshi NOES: None ABSENT: None ABSTAIN: None *** PUBLIC HEARING - ITEM NO. 6 APPLICATION #04-268 (503-24-051) – PHAN, 14435 Big Basin Way: The appellant (Nancy Duyen Le Phan) requests the Planning Commission overturn an Administrative Decision to disallow an expansion of an existing Personal Services Business (Daisy Beauty Studio) in the CH-1 Zoned District to include massage. (TOM SULLIVAN) Director Tom Sullivan presented the staff report as follows: • Advised that this applicant is appealing an Administrative Decision that disallowed an expansion of an existing Personal Services Business, the Daisy Beauty Studio. • Explained that the Commission has the final authority. • Reported that in September 2003, Council discussed an urgency ordinance that had been adopted by the Town of Los Gatos so as not to allow additional personal services businesses to begin operations. Saratoga adopted a similar interim ordinance and in September 2004, that Ordinance was extended to October 2005. • Stated that in December 2002, the Daisy Beauty Studio was established, without massage services. Massage services require an additional process by the City. • Reported that in January 2003, a warning notice was issued against this business for providing massage services without necessary permits. In March 2003, the applicant assured that no massages were being provided at this location. • Said that in August 2004, an Administrative interpretation was reached as to whether the addition of massage services at this location would result in an expansion of personal services. Staff reviewed this request with the City Attorney, who agreed that expansion at this location should not be allowed under Ordinance 225. In September 2004, Council amended the interim ordinance so that the only places it applies to are for ground floor locations along Big Basin street frontage, which includes this site. • Stated that the applicant subsequently appealed the Administrative denial of her request. Saratoga Planning Commission Minutes of October 13, 2004 Page 12 • Explained that the Commission is charged with affirming, reversing or modifying the Administrative decision and decide whether this expansion violates the intent of Ordinance 225 or not. While the original Ordinance prohibited expansion of personal services throughout the City, the revised ordinance only applies to Big Basin Way on the ground floor. Commissioner Zutshi asked if a business plan was originally submitted. Director Tom Sullivan replied that only a business license was necessary for the salon use. Commissioner Schallop asked if there is a copy of the current revised Ordinance. Director Tom Sullivan replied that the City Attorney has not yet signed it. Commissioner Schallop read from the draft that states …”unless a lease is signed prior to the ordinance date.” Director Tom Sullivan clarified that if the lease is signed and the proper licenses obtained prior to the date of the Ordinance. Commissioner Schallop asked Director Sullivan how this was interpreted. Director Tom Sullivan said that existing businesses at the time of the moratorium are frozen. This site had an approval for a salon but not for massage services prior to the moratorium. Adding massage equals a change, a different kind of personal service and therefore an expansion. Commissioner Nagpal asked why this massage use was not included in the original business license. Commissioner Zutshi questioned whether facials are counted as massage services. Director Tom Sullivan read the description for massage into the record. Commissioner Hunter pointed out that Los Altos was faced with 23 nail salons and recently enacted a similar ordinance. Asked why such a restriction is required. Director Tom Sullivan pointed out that with the poor economy there were many vacancies. Personal service businesses do not result in sales tax revenue nor foot traffic for a downtown area. Having too many such businesses means it is less likely to bring necessary retail back to the area. Planner John Livingstone added that each city wants to provide a variety of services and businesses to serve the residents of its city. This goal is not achieved with all the same type of businesses in one small area. Director Tom Sullivan pointed out that Council made findings A through N to support this action. Commissioner Schallop pointed out that personal care services already exist at this site. Questioned the need to prohibit an existing personal services business from only incremental expansion. Why does this add to the problem. Saratoga Planning Commission Minutes of October 13, 2004 Page 13 Director Tom Sullivan replied that this is simply an expansion. He added that the onus is on the Planning Commission to confirm or overturn that interpretation. Commissioner Nagpal asked if this is considered legal non-conforming. Director Tom Sullivan reminded that massage was never licensed for this location. Commissioner Schallop said that the prohibition should only apply if a lease was not executed prior to the adoption of this Ordinance 225. Commissioner Uhl asked staff how many personal services businesses are currently downtown. Director Tom Sullivan replied approximately 10. Commissioner Rodgers asked why this is treated as a different business if it already exists. Director Tom Sullivan responded that both the City Attorney and he found that under the moratorium this request results in an expansion of the use. Commissioner Uhl agreed that this is a different personal service. Commissioner Nagpal asked if expansion means new or additional services. Commissioner Uhl said that he understands the intent of the moratorium and that the question is whether this interpretation is what the rules were established to prevent. Commissioner Rodgers asked the difference between a masseuse and an independent contractor. Director Tom Sullivan advised that each masseuse must have his or her own operating license. Chair Garakani opened the Public Hearing for Agenda Item No. 6. Ms. Nancy Duyen Le Phan, Appellant and Business Owner, Daisy Beauty Studio: • Thanked the Commission for its site visit. • Said that there are only two spas downtown. • Said that the cost of leasing space is expensive. • Stated that people have been asking her for massage services at her business. Many of the customers asking are older clients. • Asked that the Commission approve her request to add massage services to her business. Chair Garakani asked Ms. Nancy Duyen Le Phan if many of her customers are from Saratoga. Ms. Nancy Duyen Le Phan replied that some are also from San Jose, Cupertino, Campbell and Palo Alto. Chair Garakani asked how many masseuses have their own licenses from her location. Saratoga Planning Commission Minutes of October 13, 2004 Page 14 Ms. Nancy Duyen Le Phan replied that she has two masseuses lined up, who have worked for chiropractic offices. Commissioner Nagpal asked Ms. Nancy Duyen Le Phan when she signed her lease for this space. Ms. Nancy Duyen Le Phan replied on December 2, 2002. Commissioner Nagpal asked Ms. Nancy Duyen Le Phan if she had indicated a plan for massage services at the time she entered into her lease. Ms. Nancy Duyen Le Phan replied that she opened as a beauty spa. Commissioner Nagpal asked Ms. Nancy Duyen Le Phan if she had talked about massage services. Ms. Nancy Duyen Le Phan replied yes, she had planned on massage services right from that date. Commissioner Nagpal asked if the back rooms are currently being used for facials and questioned if there is a back door entrance. Ms. Nancy Duyen Le Phan said not at this time. She reminded that her space is large and expansive to rent. Commissioner Nagpal asked Ms. Nancy Duyen Le Phan if she is aware of the separate licensing requirements. Ms. Nancy Duyen Le Phan said that she obtained a business license when she opened her business and has the necessary professional licensing. Commissioner Nagpal cautioned Ms. Nancy Duyen Le Phan that separate licensing is also required for facials. Ms. Nancy Duyen Le Phan replied of course. Commissioner Rodgers asked Ms. Nancy Duyen Le Phan what sort of business relationship she would have with the masseuses. Ms. Nancy Duyen Le Phan replied that they would be paid on commission. Commissioner Hunter asked if they would pay rent for their stations. Ms. Nancy Duyen Le Phan replied no, she paid the rent and would pay a commission to the masseuse. Commissioner Rodgers asked if payment for massage would be payable to Daisy Beauty Studio or to the therapists. Ms. Nancy Duyen Le Phan replied to Daisy Beauty Studio. She reiterated that the therapists would be paid on commission. Saratoga Planning Commission Minutes of October 13, 2004 Page 15 Commissioner Zutshi asked Ms. Nancy Duyen Le Phan if she had tried to apply for a business license for massage services. Commissioner Hunter said it appears that Ms. Nancy Duyen Le Phan may have thought that her license for the spa implied massage services. Chair Garakani pointed out that a letter has been submitted on Ms. Nancy Duyen Le Phan’s behalf outlining that costs prevented Ms. Nancy Duyen Le Phan from pursing a massage permit. Commissioner Rodgers asked when Ms. Nancy Duyen Le Phan applied for such a permit. Ms. Nancy Duyen Le Phan replied May 2004. The fees were too high for her at that time. Commissioner Nagpal pointed out that Ms. Nancy Duyen Le Phan received a Notice of Violation in January 2003 and she only applied more than a year later in May 2004. Ms. Nancy Duyen Le Phan said that she didn’t know originally that a massage permit was required in addition to her spa permit. She didn’t know the rules. Commissioner Zutshi asked Ms. Nancy Duyen Le Phan if she would have to close her business if she is unable to add massage services. Commissioner Hunter said that perhaps Ms. Nancy Duyen Le Phan might find a smaller location. Commissioner Zutshi asked Ms. Nancy Duyen Le Phan if business is bad without massage. Commissioner Hunter suggested that some other use be incorporated in that area of the shop, perhaps retail oriented. Ms. Nancy Duyen Le Phan advised that other types of services she could consider are also not allowed, such as body wrap and facials, without additional permits. Commissioner Uhl reminded that the City does not want any additional personal service business in its downtown. Commissioner Hunter said that more retail is possible. Commissioner Nagpal asked Ms. Nancy Duyen Le Phan if she has a copy of the lease. Ms. Nancy Duyen Le Phan said that the City has a copy. Commissioner Uhl asked Ms. Nancy Duyen Le Phan if the lease mentions massage. Ms. Nancy Duyen Le Phan said that the lease only says she can do hair. Commissioner Schallop asked what the previous use of this location was. Commissioner Hunter replied natural products. Saratoga Planning Commission Minutes of October 13, 2004 Page 16 Chair Garakani closed the Public Hearing for Agenda Item No. 6. Director Tom Sullivan said that people who work at this business must either be employees or independent contractors with their own operator licenses. Currently, there is only one license for this location, which is for the Daisy Beauty Studio. Commissioner Schallop: • Pointed out that these types of moratoriums sometimes result in litigation for other communities. • Stated that the City must be careful to solve the problem the moratorium is trying to solve. • Reminded that personal services were a prior use on this site. • Cautioned that it is not the intent to disallow the expansion of service within an existing personal service business. It is not the intent to drive these types of businesses out. • Stated that the Ordinance prohibits new personal service businesses from establishing but that this is an existing personal services business. Language in the Ordinance states that this prohibition is in effect “…unless a lease was executed prior to the adoption of the Ordinance.” This business owner signed her lease in December 2002. • Suggested that the Ordinance be rewritten to be more clear on its intent but that this lease was signed prior to the moratorium. Chair Garakani: • Expressed his agreement. • Said that the intent is to not create more of these personal service businesses. • Pointed out that a spa typically includes elements such as beauty salon, massage, steam rooms and saunas. • Said that he does not see a problem with this request but suggested that a condition requiring the remodel of the space be incorporated. Commissioner Uhl: • Disagreed, saying that the intent of the ordinance is to maximize the types of business in the City. • Said that this owner is looking to expand an existing service business with additional personal services. • Stated that there are other possible uses for this space. If other uses were not possible, he might feel differently. • Said that supporting this Administrative Decision is not driving out this business but rather helping to create a broader cross mix of businesses. • Said that Council gave pretty clear direction on this matter with the adoption of the Ordinance. • Reminded that services do not generate sales tax revenue. • Said that this is a tough rule but that the intent of the Ordinance is clear. Commissioner Zutshi pointed out that Ms. Nancy Duyen Le Phan had the intent to include massage prior to the adoption of this Ordinance. Commissioner Uhl said that it is not known when this business plan was prepared. Commissioner Nagpal said that it would be helpful to see the lease. Saratoga Planning Commission Minutes of October 13, 2004 Page 17 Commissioner Uhl said that the business plan includes sales of beauty supplies and goods. Commissioner Rodgers: • Said that the intent of the Ordinance can be found in its findings. • Read from Finding D that mentions the total number of personal business services and conversion of vacant retail space into personal services. This is a personal services business with additional personal services proposed. If every provider is a separate business, the Ordinance would be unworkable. Finding G mentions the existing 10 personal services businesses in the downtown. • Suggested that this is one location already dedicated to personal services and doesn’t meet the purpose of the Ordinance. Commissioner Nagpal: • Said that she does not look at this as an intensification. The lease was signed prior to the date of the Ordinance, although she would like to see the lease itself. • Said that a strict interpretation would allow this expansion. • Expressed concern that permits were not properly obtained and that notification of violations was ignored. This is not acceptable. If immediate action had been taken in January 2003, this business owner would not be caught in this situation at this time. • Stressed that she cannot condone this business not having the appropriate permits for its operations. If the lease documents that this site can permit personal services, this expansion should be allowed. Chair Garakani said that waiting to see a copy of the lease would result in a need for a continuance. Director Tom Sullivan said he has never seen the lease but that this applicant needs a decision. Commissioner Rodgers asked if the Commission is bound by the City Attorney’s decision. Director Tom Sullivan replied that this interpretation is what is being appealed this evening. Commissioner Schallop said that a prohibition of any expansion of existing personal services businesses should be clearly written into the Ordinance. This business moved into this space in December 2002 and the previous business to hers was also a personal services business. Director Tom Sullivan said that this does not matter. Commissioner Uhl said that it is the City that controls what uses can go in a specific location and not the landlord. Commissioner Nagpal said that the issue is whether the Ordinance addresses new versus expanded personal services. Commissioner Uhl said that land use is controlled through licensing. Commissioner Schallop pointed out that existing beds are used now for facials. Commissioner Uhl said that the intent is that downtown space be used for retail uses not personal service uses. Saratoga Planning Commission Minutes of October 13, 2004 Page 18 Commissioner Hunter suggested a call for the question. Chair Garakani said that the space would need to be converted. Commissioner Nagpal said that the back area is currently vacant retail space. Chair Garakani asked if conditions would be drafted. Commissioner Nagpal said that there is no ability to impose conditions as this is simply an appeal. Director Tom Sullivan said that Ms. Nancy Duyen Le Phan must process a Use Permit at which time appropriate conditions would be drafted. Motion: Upon motion of Commissioner Hunter, seconded by Commissioner Uhl, the Planning Commission voted to deny an appeal and uphold the Administrative Decision to disallow an expansion of an existing Personal Services Business (Daisy Beauty Studio) on property located at 14435 Big Basin Way, by the following roll call vote: AYES: Hunter and Uhl NOES: Garakani, Nagpal, Rodgers, Schallop and Zutshi ABSENT: None ABSTAIN: None The motion failed. Motion: Upon motion of Commissioner Schallop, seconded by Commissioner Nagpal, the Planning Commission upheld an appeal and overturned the Administrative Decision to disallow an expansion of an existing Personal Services Business (Daisy Beauty Studio) on property located at 14435 Big Basin Way, by the following roll call vote: AYES: Garakani, Nagpal, Rodgers, Schallop and Zutshi NOES: Hunter and Uhl ABSENT: None ABSTAIN: None Director Tom Sullivan explained to Ms. Nancy Duyen Le Phan that she has been granted an appeal and must now apply for massage permits. *** DIRECTOR’S ITEMS There were no Director’s Items. COMMISSION ITEMS Commissioner Schallop suggested that information regarding this appeal decision be fed back to Council. Saratoga Planning Commission Minutes of October 13, 2004 Page 19 Director Tom Sullivan reported that he would discuss this issue with the Mayor and City Manager. COMMUNICATIONS Written • City Council Minutes from Special Meeting on September 1, 2004, and Regular Meeting on September 15, 2004. • E-Mail from Ivan Burgos Commissioner Rodgers thanked Dr. Bergos for his email. Commissioner Schallop advised that he would be out of town and miss the October 27, 2004, meeting. ADJOURNMENT TO NEXT MEETING Upon motion of Commissioner Zutshi, seconded by Commissioner Rodgers, Chair Garakani adjourned the meeting at 9:20 p.m. to the next Regular Planning Commission meeting of October 27, 2004, at 7:00 p.m. MINUTES PREPARED AND SUBMITTED BY: Corinne A. Shinn, Minutes Clerk