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PLANNING COMMISSION MINUTES OF 12/15/03 |
2003-0825 – Rita & Stanley Lee [Applicant/Owner] – Application for a Special Development Permit on a 27,460 square foot site to allow for 1,186 square feet of retail use in an existing building. The property is located at 1698 South Wolfe Road in a C-1/PD (Neighborhood Business/Planned Development) Zoning District. (APN: 313-38-037)
Jamie McLeod, Project Planner, presented the staff report. She summarized the proposed project highlighting the use, site layout, landscaping, parking and circulation. She noted that the application is being considered by the Planning Commission because there is currently a non-conforming retail use at the site where limited medical/dental and general office use is allowed. Ms. McLeod reported that Staff requested that the kitchen and bath showroom should be removed. She noted staff concerns about the use, impacts on adjoining property and that parking for the proposed use would be deficient. Staff was unable to make the required Findings and recommended denial of the Special Development Permit. She also noted that the City Council pre-appealed the item to be considered on January 6, 2004.
Vice Chair Moylan asked staff to clarify what is being required of the Commission and whether the action could define the user. Ms. Ryan explained that a Condition could be to specify the allowed use or the type of retail that would be allowed but not specify the specific user.
Vice Chair Moylan further asked how many Use categories are there citywide. Ms. Ryan responded that there are quite a few and combination of uses are allowed.
Vice Chair Moylan asked with staff whether there is a possibility that the use might expand via the next tenant. Staff responded that it depends on how the Commission would specify the allowed Use.
Comm. Hungerford asked staff whether retail was permitted by the original Use Permit was granted. Staff responded that retail use was never allowed at the site. Ms. Ryan added that the applicant could address this proposed use noting that the property was designed as office and not retail.
Vice Chair Moylan clarified with staff whether any retail has been approved at the site. Staff responded that no retail use was ever approved.
Chair Babcock opened the public hearing.
Benny Yee, on behalf of the applicant, stated the City approved the showroom at the site noting that the business is not a cash and carry business but rather only consulting on site and to show the products. He added that the showroom is open only by appointment for 2-6 clients per day. He commented that the neighborhood complained that the business is conducting cash and carry on site that is not an allowed use. He stated that because the City has approved the showroom, the applicant entered into a 5-year agreement with the tenant, which is very difficult to revoke. He added that because of current economic conditions, it is very difficult to get tenants. He also hinted that there appears to be racial discrimination from the neighborhood. He emphasized that the business is only a showroom and no retail transactions occurs as alleged by the neighbors. He urged the Commission to consider the application and approve the Special Development Permit.
Vice Chair Moylan asked Mr. Yee the following – 1) what is his relationship with the applicant; 2) what type of small business he runs in San Francisco and 3) whether he is suggesting that the conflict is due to ethnic difference, Vice Chair Moylan noted that such conflict is not relevant to the land use review. Mr. Yee responded that he knows the lessee and he is a small real estate developer. He stated that he did not mean to imply ethnic issue between the applicant and her neighbors.
Christine Fronczak, resident and noting her property borders the subject site, stated that she is the President of the Homeowners’ Association and that the association is opposed to the retail use. She asked the Commission to consider the close proximity to the residential neighborhood. She noted three concerns – 1) that there is insufficient parking and approving the use would create a spillover; 2) that there would be increased parking issues and traffic impact and 3) impacts reducing their quality of life. She stated that difficult economic condition affects everyone and not only businesses. She also asked the Commission to place legal restrictions such as turning the parking lights off at 8PM as well as the lights in the building, maintaining the approved screening between the properties. She noted that the association is opposed to the retail use unless there is a considerable change of circumstances.
Vice Chair Moylan asked Ms. Fronczak to clarify what change of circumstances would the association support a retail use. Ms. Fronczak responded the change could be increased in the lot size and retail uses moved further away from the residential properties.
Vice Chair Moylan further asked the speaker when she noticed increased traffic as she stated earlier. Ms. Fronczak responded around June when the business started and that related construction starts 6AM, Monday through Sunday.
Comm. Simons asked staff to clarify the missing screening as stated by the speaker. Mr. Bell, Principal Planner, responded that one of the Conditions of Approval from the original Permit requires the owner and staff to consult with the neighbors and that a landscaping plan was approved and that the applicant planted the approved landscaping.
Comm. Simons asked Ms. Fronczak whether the screening of the lamps was accomplished. Ms. Fronczak responded that screening was installed; however, there is still illumination into their bedroom and no amount of shielding could eliminate the illumination entirely.
Takushi Kimura, resident whose home is not directly adjacent to the site, stated that his major concern is traffic. He stated that he is half Chinese and his wife is Chinese. He commented any deficiency of parking would create traffic congestion. He is opposed to the retail use as it would exacerbate the traffic issue.
Dong Huang, resident whose property backyard faces the building, was opposed to the retail for the following reasons – 1) lack of parking; 2) increased traffic, 3) increased noise, 4) increased chance of burglary and hours of operation. She stated that the building is not big enough to allow retail use. She stated that everyone is affected by the economic downturn. She commented that the kitchen and bath showroom television commercial suggests that the use cannot ensure only 2-6 customers per day. Lastly, she commented that she is also a Chinese American.
Derrick Chou, resident, was also opposed to the retail use as it would have a great impact to the neighborhood and would degrade their property values. He commented that the applicant failed to follow the Conditions of Approval from the original permit and that approving the proposed application would set a bad example. He further commented that limiting the number of clients would be difficult to enforce.
Rita Lee, applicant/owner, commented that she made a wrong investment decision to develop the vacant land with limitations as requested by the neighbors. She stated that she has followed the Conditions of Approval from the original Permit and posted no parking signs, lock and chain the parking lot and shielded parking lot lights. She noted that sometimes it would be difficult to turn off the light at exactly 8PM if one of the tenants works past 8PM. She added that she could not control the people’s behavior dumping trash into Ms. Fronczak’s property. She stated that she felt many times harassed by the neighbors being called at night, during dinner time to have some cars towed way from the parking lot. She stated that she has no parking agreement with Sam Kee Restaurant. She stated that she lowered the rent to attract tenants. She invited the Commission to visit the parking lot and observe that there is enough parking on site.
Vice Chair Moylan asked Ms. Lee whether she received approval from City staff for the retail use. Ms. Lee responded that the potential tenant at the time received the approval as an administrative office use with no cash and carry transactions. Thereafter, they entered into a five-year agreement.
Vice Chair Moylan asked Ms. Lee if the tenant would be successful with an average of only four customers per day. Ms. Lee responded that with the cost for each remodel of at least $10,000, 2 sales per day with an average of $5,000 would be good business.
Chair Babcock asked Ms. Lee the number of evenings a week the parking lot is chained off. Ms. Lee responded that there is a tenant agreement to chain the parking lot when they are the last one to leave the building. However, there are times that a tenant failed to chain the parking lot and it should not be a hardship to anyone. Chair Babcock commented that she noticed three nights, just last week, which the parking lot was not chained off.
Comm. Hungerford asked Ms. Lee when she received the permit from the City allowing the business. Ms. Lee responded that the tenant received the permit during the summer.
Helen Hwang, residence borders the site, gave the history of the Special Development Permits issued to the site and their interactions with the applicant. She stated that the applicant was very responsive at the beginning. She expressed her concern to the applicant about one of the trees leaning over her house over a year ago, but to no avail. She commented that the parking lot is not being chain off, the lights are not being turned off and that there appears to be on-going construction in early morning hours.
Vice Chair Moylan asked Ms. Hwang to explain the on-going construction coming from the building. Ms. Hwang responded that she was not sure where the noise is coming from but the construction started when the business moved in.
Further, Vice Chair Moylan asked whether she felt the business would increase traffic on site. Ms. Hwang responded that the business would increase traffic and customers may come to visit even without an appointment since it is a busy intersection.
Ada Ho, staff of the kitchen and bathroom showroom business, stated that the business is only a showroom. She explained the nature of their business and that they only have three customers per day, therefore, there is plenty of parking for the entire building. She did not agree with staff’s determination that a showroom is a retail use since the only transaction is a professional consulting service. She rebutted about the construction noise at 6AM as there has been no construction since they moved in and that there has been no changes since September 30.
Sunny Owyang, kitchen and bathroom business tenant spoke thru an interpreter, stated that the business is open from 10AM through 7PM and that customers are by appointment only. He stated that they expanded to Sunnyvale with their headquarters in Oakland. He commented that the issues brought up by the public is not because of his business. He expressed his disappointment and has not anticipated such problems. He would not have entered into a five-year agreement. He stated that the testimony about the parking issues are irrelevant to his business.
Vice Chair Moylan asked Mr. Owyang the minimum number of customer per day to make the business succeed and what is the maximum number of clients that could be expected per day. Mr. Owyang responded that two sales per day and five to six clients maximum could be accommodated per day.
Comm. Simons asked clarification of staff whether the Commission could restrict the number of clients for the retail use. Ms. Ryan responded the Commission set a restriction; however it is not standard for staff to recommend restricting the number of clients due to difficulty administering such a restriction. Typically, staff looks for standards that are physical in nature; however, there has been similar restrictions or limitations in the past.
Winnie Lee, tenant, commented that the parking is always half full and that she always uses the parking space closest to the building. She noted that there has been no on-going construction since August when she moved in. She stated that her clinic closes at 6:30PM and sometimes failed to chain the parking lot. She recommended that perhaps a sign could state that restaurant parking is not allowed. She did not agree with the potential spillover. She also stated that Cupertino and Sunnyvale have low crime rate therefore the allegation of attracting burglars because of the proposed is unwarranted. She also addressed the trimming of the trees was at the request of PGE and this made the neighborhood upset. The applicant, in response to the neighborhood, planted another tree that is not full grown. She stated that the applicant has been in compliance and has been willing to work with the neighborhood. Lastly, she stated that her dental service could be considered retail since the customers purchase a crown and leaves with a crown. She urged the Commission not to consider the showroom as a retail use.
Vice Chair Moylan asked Ms. Lee what fraction of the parking is being used and the percent of occupancy. Ms. Lee responded less than 50% of the parking lot is used and is the building 100% occupied.
Vice Chair Moylan commented that the required parking is determined when the occupancy is at 100% and as the economy improves the parking lot may be full.
Rita Lee, 100% occupied, and the parking lot is still half full. There would still be room with economy improving. Customers are by appointment only. Wolfe is a busy area, since it is a major intersection. There has been no noise issues and no construction.
Chair Babcock closed the public hearing.
Vice Chair Moylan asked staff to explain the approved permit issued by the City. Staff responded that a business license was issued for kitchen and bath design administrative office.
Vice Chair Moylan asked staff whether there was a requirement from the Commission to chain off the parking lot. Ms. Ryan responded that there was no condition to chain off the parking lot but rather an agreement between the property owner and the neighbors.
Vice Chair Moylan asked Senior Assistant City Attorney Borger whether the five-year tenant agreement would be null and void since the business license issued is not an allowed use. Senior Assistant City Attorney Borger responded that she would be unable to answer the questions without all the facts presented and the details of the agreement.
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Vice Chair Moylan made a motion on Item #2003-0825 to deny the Special Development Permit. Comm. Simons seconded. |
Vice Chair Moylan commented that the Planning Commission is required to review the application whether it is consistent with the General Plan. He was unable to make the required Findings. He commented whether a special condition could be crafted
Comm. Simons agreed with Vice Chair Moylan. He expressed his concerns about the issues raised by staff, the applicant and the neighbors. He commented that the license was issued for administrative use and not retail use. He further stated that he made the motion to approve construction of the building as it was the best use at the time with little impact to the neighborhood. However, there has been multiple requests to change the use since then and cannot support the proposed retail use.
Vice Chair Moylan added that as staff noted a listing of specific permitted uses unique to the project site would be difficult to enforce. He added that because the business is already existing on site should not be the deciding factor to approve the retail use. The issue is whether or not the proposed use meets the General Plan to warrant approval of the Special Development Permit.
Comm. Hungerford commented that it is a difficult situation; however, the building is not intended for retail use but rather general business. He stated that the business license was issued for administrative office; therefore, does not warrant approval of the retail use.
Chair Babcock supported the motion. She reminded the public that the decision is made on the land use and not personal issues.
Ms. Ryan stated that the City Council has pre-appealed the item and would be heard on January 6, 2004.