NOTE: To arrange an accommodation under the Americans with Disabilities Act to participate in this public meeting, we ask that you call (408) 535-3555 (VOICE) or (408) 998-5299 (TTY) at least two business days before the meeting. If you requested such an accommodation and have not already identified yourself to the technician seated at the staff table, please do so now. If you did not call in advance and do now need assistance, please see the technician.

Notice to the Public

If you want to address the Commission, fill out a card (located on the table as you come in or at the technician's station), and give the completed card to the technician. Please include the agenda item number for reference.

The procedure for this hearing is as follows:

• After the staff report, applicants and appellants may make a 5-minute presentation.

• The chair will call out names on the submitted speaker cards in the order received.

• As your name is called, line up in front of the microphone at the front of the Chamber.  Each speaker will have two minutes.

• After the public testimony, the applicant and appellant may make closing remarks for an additional five minutes.

• Planning Commissioners may ask questions of the speakers.  These questions will not reduce the speaker's time allowance.

The public hearing will then be closed and the Planning Commission will take action on the item.  The Planning Commission may request staff to respond to the public testimony, ask staff questions, and discuss the item.

If you challenge these land use decisions in court, you may be limited to raising only those issues you or someone else raised at this public hearing or in written correspondence delivered to the City at, or prior to, the public hearing.

The Planning Commission's action on rezonings, prezonings, and Code Amendments is advisory only to the City Council. The City Council will hold public hearings on these items. Section 20.120.400 of the Municipal Code provides the procedures for legal protests to the City Council on rezonings and prezonings.

Note: If you have any agenda changes, please contact Linda LaCount linda.lacount@sanjoseca.gov

6:00 p.m. Meeting

1. ROLL CALL

       ALL WERE PRESENT.

2. DEFERRALS

Any item scheduled for hearing this evening for which deferral is being requested will be taken out of order to be heard first on the matter of deferral. A list of Staff-recommended deferrals is available on the Press Table. If you want to change any of the deferral dates recommended, or speak to the question of deferring these or any other items, you should say so at this time.

1. CP02-019/ABC02-004. CONDITIONAL USE PERMIT/LIQUOR LICENSE EXCEPTION PERMIT to allow the sale of alcoholic beverages at an existing retail grocery store at a 0.28 gross-acre site in the CG General Commercial Zoning District located at/on southeast corner of East Santa Clara Street and South 20th Street (960 E Santa Clara Street) (Alice & Santos Villalba Owners; Musical Entertainment, Inc, Developer).  Council District 3.  SNI:  Five Wounds/Brookwood Terrace.  CEQA:  Exempt. 

   DEFERRED TO 6-9-04.

2. CP04-002.  CONDITIONAL USE PERMIT to allow an existing drive-thru restaurant (Jack in the Box) to remain open between the hours of 12:00 midnight and 6:00 a.m. on a 0.74 gross-acre site in the CP Commercial Pedestrian Zoning District located on the north side of Story Road approximately 610 feet easterly of South King Road (1841 Story Road) (Michael A Filice Trustee, et al, Owners).  Council District 5.  SNI:  East Valley/680 Communities.  CEQA:  Exempt.

   DEFERRED TO  6-9-04.

3. CONSENT CALENDAR

Notice to Public: The consent calendar items are considered to be routine and will be adopted by one motion. There will be no separate discussion of these items unless a request is made by a member of the Planning Commission, staff or the public to have an item removed from the consent calendar and considered separately. If anyone in the audience wishes to speak on one of these items, please come to the podium at this time.

1. CP04-025.  Conditional Use Permit to allow roof top installation of a standby/backup diesel generator (50 hp) for an existing office use on a 1.15 gross-acre site in the CG General Commercial Zoning District located at the northwest corner of West San Fernando Street and Almaden Boulevard (99 Almaden Blvd, Unit 5) (SBC Inc., Vicki Howard, Owners).  Council District 3.  SNI:  None.  CEQA:  Exempt. 

   APPROVED (7-0).  APPROVED (7-0).  STAFF CLARIFIED THAT ROOFTOP EQUIPMENT WILL NOT BE VISIBLE FROM THE PUBLIC RIGHT-OF-WAY, AND THAT 24 HOURS OF TEST OPERATION PER YEAR ARE PERMITTED FOR GENERATOR.

2. CP04-005.  CONDITIONAL USE PERMIT to construct two buildings of 1,056-square-feet and 1,800 square-feet, respectively, for warehouse and office uses on a 0.56 gross-acre site in the LI Light Industrial Zoning District, located on both sides of Whitton Ave between S.  26th Street and S.  28th Street (1304 Whitton Avenue) (Golda P and John A Da Ponte, Owners).  Council District 3.  SNI:  Five Wounds/Brookwood Terrace.  CEQA:  Exempt.

   APPROVED (7-0).  STAFF CLARIFIED THAT NATURE OF AUTO WHOLESALE OPERATION WOULD NOT HAVE CUSTOMERS ON SITE, AND THAT USE IS PROPOSED IN INDUSTRIALLY PLANNED AND ZONED AREA AND SHOULD NOT BE UNDULY RESTRICTED AS TO HOURS OF OPERATION.

3. CP04-017.  CONDITIONAL USE PERMIT to allow auto wholesale at an existing 2,397 square foot building with outdoor use on a 0.18 gross-acre site in the LI Light Industrial Zoning District, located on the south side of University Avenue, approximately 100 feet easterly of Chestnut Street (562 University Avenue) (Schiro Chincy Trustee, et al Owners).  Council District 3.  SNI:  None.  CEQA:  Exempt.

   APPROVED (7-0).

 The following items are considered individually.

4.   PUBLIC HEARINGS

1. GP04-06-01:  GENERAL PLAN AMENDMENT request to change the Land Use/Transportation Diagram designation from Very Low Density Residential (2 DU/AC) to Low Density Residential (5 DU/AC) for property located on the West side of Peregrino Way, approximately 400 feet northwest of Dry Creek Road on a 1.16-acre site (Goodenough, Owner/Kennon, Applicant).  Council District: 6.  CEQA: Mitigated Negative Declaration.  Deferred from 4-26-04.  

   DEFERRED TO 6-9-04. 

2. GP04-07-01:  GENERAL PLAN AMENDMENT request to change the Land Use/Transportation Diagram designation from Light Industrial to Medium Density Residential (8-16 DU/AC) for a property located on the north side of Umbarger Road approximately 1,200 feet west of Senter Road (413-425 Umbarger Road) on a 3.38-acre site. (TBL Properties, Owner/DAL Properties, Applicant).  Council District: 7.  CEQA: Mitigated Negative Declaration.  

   RECOMMEND APPROVAL (7-0).  COMMISSIONER LEVY ASKED FOR CLARIFICATION REGARDING FUTURE ENTERTAINMENT VENUE ON THE COUNTY FAIRGROUNDS AND WHETHER RESIDENTIAL USES ON THIS SITE WOULD BE IMPACTED BY TRAFFIC RELATED TO NEW USE.  STAFF CLARIFIED CURRENT FAIRGROUNDS MASTER PLAN INDICATES PARKING USES AS LIKELY IMMEDIATELY ADJACENT LAND USE, AND PRIMARY ACCESS TO PROPOSED THEATER VENUE LIKELY FROM MONTEREY ROAD.

3. CP04-028.  CONDITIONAL USE PERMIT to allow a free-standing structure to expand the San Jose Convention Center by up to 100,000 square-feet for exhibit space and banquet facilities on a 4.58 gross-acre site in the CG General Commercial Zoning District, located at the northwest corner of Balbach and South Market Streets (145 Balbach Street) (City Of San Jose Redevelopment Agency, Owner).  Council District 3.  SNI:  Market Almaden.  CEQA:  Mitigated Negative Declaration.  

   APPROVED (7-0).  COMMISSIONER JAMES ASKED WHETHER PLANS FOR ICE RINK RELOCATION FROM THIS SITE ARE BEING MADE.  STAFF CONFIRMED THAT SITE OPTIONS HAVE BEEN IDENTIFIED FOR ICE RINK AND THAT THIS BUILDING IS TEMPORARY AND ACTUAL BUILDING EXPANSION IS STILL CONTEMPLATED.  STAFF ALSO CLARIFIED THAT PARKING WILL BE ADEQUATE GIVEN PAST USAGE OF SITE AND PARKING AVAILABLE IN WALKING DISTANCE.

4. The projects being considered are located on a 41.0-acre site on the west side of North First Street on both sides of Component Drive (2347 N 1^st Street) (Abn Amro Leasing Inc, Owner/Developer).  Council District 4.  SNI:  None.  CEQA:  Pending.  

   1. FINAL ENVIRONMENTAL IMPACT REPORT for the BEA Development Project consisting of a Development Agreement (DA-BEA) and a IP(PD) Planned Development Zoning (PDC04-002) to construct up to 2,800,000 million square-feet of research and development/office building uses through the allocation of floor area credits from the City’s pool of transferable floor area.

   CERTIFIED EIR (7-0).  COMMISSIONER LEVY ASKED FOR CLARIFICATION ON HOW IMPACT TO BURROWING OWL HABITAT HAD BEEN ADDRESSED.  THE APPLICANT CLARIFIED THAT THE PRIOR PROJECT HAD DEDICATED HABITAT ACREAGE ELSEWHERE AND THAT THE ADJACENT PROJECT SITE ALSO MAINTAINS OPEN OWL FORAGING GROUND.

   2. PDC04-002.  Planned Development Rezoning from IP (PD) Planned Development District to IP (PD) Planned Development District to allow up to 2.8 million square-feet of development for Research and Development/Office uses.

   RECOMMEND APPROVAL (6-1-0; ZITO OPPOSED).  COMMISSIONER LEVY NOTED THAT THE PROJECT IS THE CORRECT USE AND URBAN SCALE FOR THE SITE PROXIMATE TO THE LIGHT RAIL, BUT COMMENTED THAT THE CONCEPTUAL SITE PLAN NEEDS MORE WORK TO BE CONSISTENT THROUGHOUT.  THE APPLICANT RESPONDED THAT A FULL ARCHITECTURAL SUBMISSION WOULD OCCUR AT THE PD PERMIT STAGE AFTER WORKING WITH STAFF IN COMING MONTHS. 

COMMISSIONER ZITO ASKED FOR CLARIFICATION ON SQUARE-FOOTAGE POOL ACCRUAL TO THE PROJECT AND WHETHER THE 1.3 MILLION SQUARE-FEET REQUIRED FOR THE PROJECT WOULD BECOME AVAILABLE IN A TIMELY FASHION.  STAFF NOTED THAT APPROXIMATELY 300,000 SQUARE-FEET HAD ACCRUED WITHIN A 6 MONTH PERIOD, BUT TIMEFRAME FOR AVAILABILITY OF FULL 1.3 MILLION SQUARE-FEET CANNOT BE ASSURED.  COMMISSIONER ZITO ALSO EXPRESSED CONCERN THAT THE BEA PROPOSAL WOULD USE ALL THE AVAILABLE SQUARE FOOTAGE AND NOT LEAVE ANY POOL AVAILABLE FOR ANY OTHER ECONOMIC DEVELOPMENT PROPOSAL, AND THAT TRAFFIC CONGESTION IS AN ISSUE.  STAFF CLARIFIED THAT THERE IS AN ONGOING EFFORT TO REVISIT NORTH SAN JOSE AREA DEVELOPMENT POLICY TO ADDRESS FUTURE INDUSTRIAL INTENSIFICATION ALONG NORTH FIRST STREET, AND TO IDENTIFY FUTURE MULTI-MODAL TRANSPORTATION IMPROVEMENTS WHICH MIGHT BE REQUIRED TO SUPPORT IT. 

COMMISSIONER CAMPOS AND ZAMORA NOTED BEA IS A DRIVING INDUSTRY AND CITY SHOULD BE SUPPORTIVE OF RETAINING HIGH END CORPORATE USER IN NORTH SAN JOSE.

THE COMMISSION VOTED TO CONSIDER THE PROPOSED REZONING AND DEVELOPMENT AGREEMENT AS A COMBINED MOTION.  COMMISSIONER ZITO EXPRESSED SUPPORT FOR THE PROPOSED REZONING, BUT CONCERN ABOUT THE 20 YEAR TIME FRAME OF THE DEVELOPMENT AGREEMENT, AND NOTED HE WOULD VOTE AGAINST THE COMBINED MOTION ALTHOUGH HE BELIEVES THE URBAN CHARACTER OF THE PROPOSED DESIGN IS APPROPRIATE FOR THE SITE.

3. DA - BEA.  Development Agreement between the City of San Jose and BEA Systems, Inc., to entitle up to 2.8 million square-feet of R&D/Office uses through the allocation of existing and proposed floor area credits from the City’s pool of transferable industrial floor area.

RECOMMEND APPROVAL (6-1-0; ZITO OPPOSED).  THE DEVELOPMENT AGREEMENT WAS DISCUSSED CONCURRENTLY WITH THE PROPOSED REZONING, ITEM 4.D.2.

5. RCP03-011.  The project being considered is located on the southwest corner of Almaden Avenue and Balbach Street (507 and 511 Almaden) on two lots totaling 0.27 gross-acres in the DC-NT1 Zoning District to allow the demolition of two single-family residences and construction of an 18 space parking lot with landscaping and related site improvements (Georgine Kukar Lopez, Owner; Tim Steele, Developer).  Council District 3.  CEQA:  Almaden Avenue Parking Lot and Landscape Buffer Focused Environmental Impact Report.  Deferred from 5-12-04. 

   1. FINAL ENVIRONMENTAL IMPACT REPORT for the Almaden Avenue Parking Lot and Landscape Buffer to allow an off-site parking lot for the Sobrato Office Tower.  

   CERTIFIED THE EIR (5-2-0; ZITO, PLATTEN ABSENT). 

   2. Conditional Use Permit for the demolition of two single family residences and construction of an 18 space parking lot with landscaping and related site improvements.   

   APPROVED (6-0-1; PLATTEN ABSENT).  DEFERRED TO 6-9-04 FOR PREPARATION OF THE RESOLUTION WITH CONDITION TO PROVIDE 180 DAYS FOR HOUSE RELOCATION, WITH 90 DAY PROGRESS REVIEW BY PLANNING DIRECTOR, AND WITH DEMOLITION COSTS TO BE AVAILABLE TOWARD RELOCATION, AND THE STATEMENT OF OVERRIDING CONSIDERATIONS.

   COMMISSIONER LEVY ASKED FOR CLARIFICATION REGARDING PROSPECTIVE TENANT FOR THE BUILDINGS.  APPLICANT INDICATED ONGOING DISCUSSION WITH A POSSIBLE TENANT FOR OFFICE HIGH-RISE SITE AND INDICATED NEED FOR OFF-SITE PARKING FOR VISITORS WITHOUT SECURITY CLEARANCE.  THE COMMISSION RECEIVED INFORMATION ON A PROPOSAL TO RELOCATE THE HOUSE, AND THE APPLICANT PROPOSED A CUP TIME CONDITION FOR 90 DAYS TO EXPLORE RELOCATION IN GOOD FAITH.

   STAFF CLARIFIED THAT THE EIR PROVIDES FOR A RELOCATION OUTSIDE THE IMMEDIATE NEIGHBORHOOD, AND PROVIDES THAT THE COSTS FOR DEMOLITION WOULD BE AVAILABLE TO ASSIST IN A RELOCATION.  STAFF CLARIFIED THAT FINDINGS OF OVERRIDING CONSIDERATION FOR POSSIBLE DEMOLITION WOULD NEED TO BE MADE TO APPROVE THE CONDITIONAL USE PERMIT WITH ADDITIONAL CONDITION.  COMMISSIONER LEVY ASKED FOR MORE INFORMATION ON THE ALTERNATIVES THAT MIGHT PROVIDE FOR RETENTION OF THE HOUSE ON SITE PRIOR TO RELOCATION.

   THE CITY ATTORNEY FURTHER CLARIFIED THE ROLE OF THE PLANNING COMMISSION TO FIND WHETHER IT'S FEASIBLE TO AVOID OR LESSEN THE ENVIRONMENTAL IMPACTS OF THE PROJECT, AND THEN SECONDLY, THAT TO APPROVE THE PROJECT IN SPITE OF THE ENVIRONMENTAL IMPACTS THERE MUST BE OVERRIDING BENEFITS OF THE PROJECT THAT OUTWEIGH THE ENVIRONMENTAL IMPACT.  COMMISSIONER DHILLON ASKED APPLICANT FOR TIME LIMITS FOR ADDITIONAL WORK TO RELOCATE THE HOUSE.  THE APPLICANT INDICATED 90 DAYS WAS APPROPRIATE TIME FRAME FOR A REVIEW OF PROGRESS ON RELOCATION, BUT THAT THE DIRECTOR OF PLANNING COULD RECOMMEND ADDITIONAL TIME IF PROGRESS WAS BEING MADE.

   THE CITY ATTORNEY OUTLINED POSSIBLE ACTIONS OF WHETHER THE COMMISSION WOULD DESIRE TO APPROVE A CUP WITH SIGNIFICANT IMPACTS, AND THEN SECONDLY, WOULD THE COMMISSION BELIEVE THERE ARE OVERRIDING BENEFITS OF THE PROPOSED PROJECT TO OUTWEIGH THE IMPACTS.  COMMISSIONER CAMPOS NOTED THAT CURRENT PROPERTY OWNER HAS BEEN WAITING 2 YEARS FOR ABILITY TO USE THE SITE.  COMMISSIONER LEVY ASKED THE APPLICANT FOR INFORMATION REGARDING THE FEASIBILITY OF AN ALTERNATIVE WHICH WOULD KEEP THE HOUSE ON SITE, EITHER AWAITING FURTHER RELOCATION, OR REHABILITATED AND PERMANENTLY RETAINED ON SITE.  THE APPLICANT INDICATED REHABILITATION OF HOUSE WOULD BE PROHIBITIVE AS ADDITIONAL COST OF PARKING LOT. 

   COMMISSIONER LEVY INDICATED IT WOULD BE DIFFICULT TO MAKE THE FINDINGS TO ALLOW DEMOLITION OF THE HOUSE GIVEN AN ALTERNATIVE TO PROVIDE 18 SPACES OF THE 20 SPACES PROPOSED AND RETAIN THE HOUSE ON SITE, NOTING A DIFFERENCE OF ONLY 2 SPACES.  COMMISSIONER LEVY NOTED THAT 20 SPACE LOT PROPOSED BY APPLICANT INCLUDED AMPLE LANDSCAPING BUFFER, WHICH COULD BE REDUCED TO ACCOMMODATE HOUSE.  COMMISSIONER ZITO MOVED TO APPROVE THE CONDITIONAL USE PERMIT WITH EIR ALTERNATIVE E, WHICH WOULD RELOCATE HOUSE OFF SITE IN 90 DAYS OR RETAIN ON SITE WITH 18 SPACE PARKING LOT IF HOUSE COULD NOT BE RELOCATED.

   COMMISSIONER ZITO NOTED, AND THE CITY ATTORNEY CONCURRED, THIS OPTION WOULD NOT REQUIRE OVERRIDING CONSIDERATIONS.  COMMISSIONER JAMES INDICATED THAT THERE SHOULD BE AN END POINT TO THE RETENTION OF THE HOUSE ON SITE.  COMMISSIONER ZITO NOTED THAT HOUSING FOR BUSINESS ASSOCIATES OF THE APPLICANT COULD POSSIBLY BE ACCOMMODATED.

   THE MOTION FAILED (1-5-1 JAMES, CAMPOS, ZAMORA, LEVY AND DHILLON OPPOSED, PLATTEN ABSENT).

   A NEW MOTION WAS MADE TO APPROVE THE CUP, BUT ALLOW 180 DAYS TO RELOCATE THE HOUSE, WITH A REVIEW BY THE PLANNING DIRECTOR AT 90 DAYS TO CONFIRM PROGRESS, AND WITH POSSIBLE TIME EXTENSION IF AGREED TO BY THE APPLICANT.  RELOCATION WOULD BE FOUND TO BE INFEASIBLE AFTER THAT AMOUNT OF TIME. THE COMMISSION ALSO CONFIRMED DEMOLITION COSTS WOULD BE MADE AVAILABLE TOWARD HOUSE RELOCATION.

6. CPA84-042-01.  CONDITIONAL USE PERMIT AMENDMENT to allow an existing drive-thru restaurant (Jack in the Box) to remain open between the hours of 12:00 midnight and 6:00A.M. on a 0.77 gross-acre site in the CG Commercial General Zoning District, located on southwest corner of Alum Rock Avenue and Capitol Avenue (15 S Capitol Avenue) (Jack In The Box--Lessee, Owner).  Council District 5.  SNI:  East Valley/680 Communities.  CEQA:  Exempt.  

APPROVED (6-0-1; PLATTEN ABSENT).  STAFF CLARIFIED NO PROPOSED TIME EXPIRATION FOR 24-HOUR USE.

5. PETITIONS AND COMMUNICATIONS  

1. Public comments to the Planning Commission on nonagendized items. Please fill out a speaker's card and give it to the technician. Each member of the public may address the Commission for up to three minutes. The commission cannot take any formal action without the item being properly noticed and placed on an agenda. In response to public comment, the Planning Commission is limited to the following options:

         1.  Responding to statements made or questions posed by members of the public; or

         2.  Requesting staff to report back on a matter at a subsequent meeting; or

         3.  Directing staff to place the item on a future agenda.

6. REFERRALS FROM CITY COUNCIL, BOARDS, COMMISSIONS OR OTHER AGENCIES

DISTRIBUTION OF REPORT TO THE SAN JOSE HOUSING ADVISORY COMMISSION REGARDING EXTREMELY LOW-INCOME HOUSING.

7. GOOD AND WELFARE

1. Report from City Council

COUNCIL VOTE TO EXTEND THE APPLICATION PERIOD FOR PLANNING COMMISSIONER APPLICATIONS FOR 2 WEEKS.

2. Commissioners' reports from Committees:

• Norman Y. Mineta San Jose International Airport Curfew Monitoring Committee (Dhillon and James).

COMMISSIONER DHILLON INDICATED NOISE COMPLAINTS WERE DOWN REGARDING THE AIRPORT AND STREAMLINING OF AIRPORT COMMITTEES WILL REQUIRE ONLY ONE COMMISSIONER TO PARTICIPATE IN THE FUTURE.

• Coyote Valley Specific Plan (Platten)

STAFF INDICATED COYOTE COMMUNITY MEETING HAD BEEN HELD AND THAT 3 ALTERNATIVES WERE BEING DEVELOPED.

Review of synopsis.

NO COMMENTS.

8. ADJOURNMENT