2003-0634 - City Council [Appellant] San Jose Sabercats [Applicant]: Appeal of a decision by the Administrative Hearing Officer denying a Use Permit on a 71-acre site to allow a tent over the Sabercats practice field from November through July annually. The property is located at 1095 Dunford Avenue in a PF (Public Facility) Zoning District. (APN: 313-10-004) EW

Erin Walters, Project Planner, presented the staff report. She gave the history of the application and its previously approved Unenclosed Temporary Use Permit. Because of business needs, the applicant requested an extended annual set-up of the tent on-site. The City Council pre-appealed the application on September 16 expressing concerns that there may be neighborhood interests therefore, the application should be heard by the next decision making body. The Administrative Hearing Officer considered the application on September 24, and was unable to make the required Findings and denied the application. She noted that staff received 11 letters expressing concerns about the aesthetics, heights, duration of use and impacts to the neighborhood. Staff was unable to make the required Findings and recommended denying the appeal and upholding the decision of the Administrative Hearing Officer denying the Use Permit.

Comm. Simons asked staff about the tent could be painted to be more compatible with the surrounding neighborhood. Staff responded that the concept was discussed at the Administrative Hearing, however, the material would not be able to handle the paint and would eventually crack.

Vice Chair Moylan asked staff what is the difference in the application under consideration from the previously approved Permit. Staff responded that the Permit was granted on a temporary basis. The application before the Commission is for the life of the property and now becomes an annual use.

Ms. Ryan added that the aesthetics was not a major concern as a temporary use but it is for a continuous use.

Vice Chair Moylan commented that during his site visit, he noticed a rectangular building in the rear of the site. Staff responded that the structure is formerly the school gym.

Comm. Swegles asked staff whether there were any restrictions on start time of 7AM to comply with the noise ordinance. Staff responded that there have been no noise complaints during practice time.

Comm. Hungerford asked staff whether the noise attenuation method for the tent was effective. Staff responded that there were mixed responses. Some members of the public felt that cinching down the tent was effective, however, the responses could depend on exactly when the tent was cinched to reduce the noise concerns.

Chair Babcock asked whether astro turf is considered landscaping. Ms. Ryan responded no.

Chair Babcock asked how could architectural details be addressed on tents. Staff responded that Citywide Design Guidelines states that for longer-term use, a permanent structure is preferable. Ms. Ryan added that there appears that no option is available to address the architectural details of a tent, however, it would help if the tent could be painted to soften the massive look of the tent.

Chair Babcock further asked whether a permanent structure would be permitted. Staff responded that it could be considered with a Use Permit and that it would be an on-site addition for private use in a school use. Ms. Ryan added that the zoning regulations, allows certain other uses such s this training facility are permitted with a Use Permit.

Kevin Robbins, applicant/manager, introduced Brian Boom, Coach of Sabercats. He stated that Sabercats has been in Sunnyvale for nine years and have been good neighbors. He presented the reasons for their extended use of the tent because the arena football league season was changed and dictated the critical change for practice schedule and that the tent is necessary to address injuries associated with slippery astroturf. He stated that they looked at the rain season in Sunnyvale and as a result they are willing to limit the tent to be up for only six months rather than nine months. He stated that painting the tent would not work as the material is translucent, almost nylon. He apologized for the noise disturbance. He stated that he was unaware that the tent was creating noise and as soon as he heard of the complaints, he immediately addressed the issue by cinching down the tent to attenuate the noise. He also stated that although a permanent structure could be built, however, they have very limited options since they have to practice in a safe environment in a short period time. He stated that the tent meets the setback requirements and that there is no increased parking associated with the use. He also stated that they have maintained the facility and that they are willing to work with the neighbors to use during practice as the facility for public use.

Comm. Swegles asked the speaker whether they use the same music during the game. Mr. Robbins deferred the question to Mr. Arbett.

Mr. Darren Arbett, Coach, responded that there is no music during practice. He added that the ground is slick and difficult to practice on and in order to prevent injury during practice, they need the tent. They need to create a similar arena environment when practicing.

Comm. Swegles asked Mr. Arbett whether building a permanent structure is totally not an option. Mr. Arbett responded that it could be assessed but had to wait for the AFL decision whether the same season would be kept at all times.

Further, Comm. Swegles asked whether Sabercats own or rent the tent. Mr. Robbins responded that the Sabercats own the tent.

Comm. Swegles suggested building a permanent structure.

Vice Chair Moylan asked Mr. Arbett whether most injuries are caused by playing on astroturf or grass. Mr. Arbett responded that grass is more slippery. He added that during practice it is important to replicate the San Jose Arena.

Vice Chair Moylan further asked why request the cover through May. Mr. Arbett responded that by experience, it rains twice in May. He added that they investigated the possibility of reducing the time and that is why they are willing to reduce the length to six months than originally requested.

Comm. Simons asked Mr. Robbins if they had looked at the long-term need to invest in building a permanent structure. Mr. Robbins responded that it was explored and that it would take time to build one and the season begins in a short time. He added that the simple solution is to keep the tent to prevent injuries.

Comm. Simons suggested instead of using a full covered tent, and use a tent that could be retracted. Mr. Robbins responded that it could be a possibility but during winter months, the tent needs to be heated.

Comm. Lee commented that six months appears to be too long and suggested reducing the length to three months with a retractable tent. Mr. Robbins responded that they have not considered the concept since their goal is to replicate an arena environment.

Ken Jorgensen, resident, expressed concerns that the tent is an eye sore and that there is nothing that Sabercats can do about it. He stated that if the Commission approves the Use Permit, then it further demonstrates that the Commission does not care about the neighborhood.

Comm. Swegles asked Mr. Jorgensen if he has any objection to a permanent structure. Mr. Jorgensen responded yes because of the size. He suggested maybe finding a different site such as industrial areas.

Ian Cricket, resident, stated that it is not a tent but rather a hangar. He stated that the structure is higher than the local buildings in the neighborhood. He further stated that the structure does not meet the Citywide Design Guidelines. He objected to a permanent structure because of the size in close proximity to a residential area.

Edward Lea, resident, stated that it could become a permanent facility with private use on a public facility site. He asked whether the public would be kept off the field during practice as there is a sign prohibiting entrance. He also asked whether the tent could be available for public use and not for exclusive use of Sabercats. He commented that the site is becoming to be a commercial use and not public use. He added that the tent is very visible and that he could hear the noise during the winter season because he is close to the tent.

Ray Smith, resident, commented that the Attachment 1 photograph was taken at a distance and understated the size of the tent. He stated that there is no significant tree that could screen the tent. He stated that the fundamental reason for the request is the change of the AFL season therefore expansion beyond the original concept is necessary. He further stated that the tent is virtually a commercial building and larger than what was envisioned for the site. He suggested looking for another location.

Comm. Simons asked Mr. Smith if the tent would be acceptable if it is screened with trees. Mr. Smith responded that the tent is an eyesore and he does not want to look at it everyday, but trees are a possibility.

John Stava, resident, agreed that the tent is an aircraft hangar. He stated that the tent is massive and incompatible with the neighborhood. The tent blocks his view of the hills and suggested looking for other locations. He stated that there are better locations. He felt that the tent should not have been approved initially.

Roger Barnes, owner/Santa Clara Unified School District, stated that Sabercats has been a good tenant and a good asset to the site. He stated that the neighborhood benefits from the improvements and maintenance that the Sabercats have done to the school site. He noted that the building is currently used as Opportunity Schools for students who are unable to attend the normal school environment. He noted that the players have been good in their interaction with students. He implored the Commission to approve the Use Permit commenting that the Sabercats are a good asset to the community.

Comm. Swegles asked Mr. Barnes what is the term of the lease. Mr. Barnes responded that the lease is year to year.

Comm. Simons asked Mr. Barnes whether traffic has increased or worsened due to the added use of the site. Mr. Barnes responded that the use has not impacted traffic. He added that Peterson Middle School is worse than Patrick Henry Site. He further added that there are staggered arrivals and departures with the associated uses, therefore, no impact to traffic.

Judith Patroski, resident, agreed with the size of the tent being massive. She pointed out that the area has become an exclusive use of Sabercats and no longer a public facility. She indicated that she did not receive a notice that the tent would be built. She added that it would take time before trees could screen the tent. She urged the Commission not to support the commercial use of the site and deny the Use Permit.

Comm. Hungerford asked Ms. Patroski if she knows exactly when the tent was built. Ms. Patroski responded that currently the tent is not up but previous tent was taken down in July. She added that the tent is equal the to the size of a hangar. She further added that the site is fenced with chain link and covered with green turf which does not belong in an R-0 Zoning District. She further added that at night when the wind blows hard, the tent creates noise. She also agreed that schools need money but there are other avenues to raise revenue.

Mr. Robbins, applicant, agreed that the tent is massive but it is not taller than the next building. He corrected the statement that NFL did not purchase AFL. He added that the noise was eliminated with the removal of the side part of the tent. He also noted that they could put up a sign to indicate whom to call when there is an issue. He stated that they are willing to work with the neighborhood and have been proven to be good neighbors for the past nine years. He commented that the use has not changed from nine years ago and simply covering the artificial turf would prevent injuries. He noted that they have not disallowed the use of the site, the sign is simply to provide the players some privacy during practice. He also addressed that it would be difficult to address the architectural details of the tent but they are willing to work with staff and the neighbors to find a solution to soften the look of the tent.

Comm. Swegles asked Mr. Robbins how tall is the building next to the tent. Mr. Robbins responded 20 feet.

Further, Comm. Swegles asked if he explored other locations to locate the practice venue. Mr. Robbins responded that they have explored other locations but were unable to find a suitable site. He added that the building closer to the tent used to be the old locker room of the school and has been fixed and is now the players' locker room, shower room and storage.

Vice Chair Moylan asked staff whether the action is appealable to City Council. Ms. Ryan said yes.

Comm. Hungerford asked staff if the tent was up in January 2003. Staff confirmed and responded that there was no tent prior to January 2003.

Comm. Lee stated that it was a tough decision since the applicant has been a great neighbor and has been good to students during practice as well as the added revenue to school. He commented that the Commission has to decide whether the application meets the design guidelines and its compatibility to the neighborhood. He agreed that the tent is a very large piece of structure that does not belong in the neighborhood. He supported the concerns expressed by the neighborhood.

Comm. Chu concurred with Comm. Lee and commended the Sabercats for their contributions to the community. He suggested that an industrial area would be a better site. He seconded with regrets but felt that the decision is good for the neighborhood.

Vice Chair Moylan addressed the public comments stating the Commission does not care about the community's expressed concerns. The decision of the Commission is not based on which side the Commission favors and there has to be a balance in the decision. He commented that the Commission is charged to make the required Findings for each application. The public testimony indicates that the tent does not meet the Design Guidelines. However, he stated that he was able to make one of the required Findings that the use is consistent with the General Plan. He did not support the motion. He felt that the Use is an encouragement of diverse uses of the school site.

Comm. Simons also agreed that the tent is not architecturally acceptable or desirable but there are other options to be considered such as landscaping. He stated that the applicant offered to reduce the length of the use. He noted that the site is not an R-0 zone but rather P-F that is currently under-utilized. He added that the tent meets the setback requirement and the view would depend on the distance. He was persuaded that the use encourages the diverse use of the site. He did not support the motion.

Chair Babcock thanked Vice Chair Moylan and commented that it is a tough decision. But with regrets, she supported the motion. She urged the applicant to continue the dialogue with the neighborhood and staff and to re-visit the timing, size and consider other alternatives.

Comm. Swegles asked whether the applicant could consider continuing the item until other alternatives have been explored.

Mr. Robbins responded that one of the Conditions of Approval is a landscaping plan. He stated that they are willing to work with staff to have an acceptable landscaping.

Chair Babcock asked Mr. Robbins if he understands that one of the conditions is limiting the use from November through April. Mr. Robbins said yes but he is hopeful that the condition could be extended until May. However, they will accept the direction provided by the Commission.

Comm. Simons commented that with a continuance, it could delay the installation of the tent therefore extended time is no longer necessary. Mr. Robbins said he would like to have the tent up after Thanksgiving.

Comm. Lee appreciated the efforts extended by the applicants and encouraged them to continue the outreach efforts with the neighbors and obtain an agreement with the neighbors as it would be very helpful and beneficial should they consider appealing the action to City Council.