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2010 - August 16Planning Commission Meeting August 16, 2010 Page 1 of 15 Minutes Planning Commission City of Orange August 16, 2010 Monday 7:00 p.m. PRESENT: Commissioners Cunningham, Imboden, Merino, and Steiner ABSENT: Commissioner Whitaker STAFF PRESENT: Ed Knight, Assistant Community Development Director Sonal Thakur, Assistant Planner Gary Sheatz, Assistant City Attorney Sandi Dimick, Recording Secretary ADMINISTRATIVE SESSION: Vice Chair Cunningham opened the Administrative Session @ 6:45 p.m. with a review of the Agenda. There were no changes. Assistant Community Development Director, Ed Knight, stated City Staff had received some correspondence on the cell site, Item No. 5, Royal Street Communication. Assistant Planner, Sonal Thakur, stated she had not received anything additional. Vice Chair Cunningham asked if there were any questions regarding the Agenda? Commissioner Merino stated it was a pretty straight forward Agenda. Vice Chair Cunningham stated he had found a typographical error on Item No. 6, the CUP for Arby's. He stated the hours noted on the Staff Report for the loading zone should be until 10:00 p.m. and it currently read 10:00 a.m. Ms. Thakur stated that issue had been discussed during the Staff Review Meeting. The original proposed loading zone time was from 6:00 a.m. to 10:00 a.m., which was the time that waste management used the dumpster, and it had been suggested that the time be extended from 10:00 a.m. to 9:00 p.m. to allow greater access to the loading zone to accommodate deliveries to the site. The Staff Report was suggesting extending the loading zone hours to 10:00 p.m. Vice Chair Cunningham stated on page 7 the proposed time read 6:00 a.m. to 10:00 a.m. and that should be changed to 10:00 p.m. Ms. Thakur stated, he was correct, that page 7 had a typographical error and she would note the correction needed to that page. Item No. 4, CUP Okazu Ramen House Restaurant. Commissioner Merino asked if there would be a representative from the Orange Police Department present. Ms. Thakur stated yes, a representative would be present. Commissioner Cunningham asked where the vicinity map, included as Exhibit A, came from? Ms. Thakur stated it was a zoning map and also available on-line. Commissioner Cunningham stated he was curious, as the map still reflected the Kmart store location which had been gone from the site noted for quite a while. Planning Commission Meeting August 16, 2010 Page2of15 Vice Chair Cunningham asked where the City was on the Ridgeline project. Mr. Knight stated there was not a definite date. It had been originally thought that the item would be heard in early August, however, it had been moved to the second meeting in August, and was currently pending awaiting the applicant's completion of some items on their end. Mr. Knight stated the Agendas for both of the September meetings were full. Vice Chair Cunningham asked if there had been any movement on the mobile home park. Mr. Knight stated the Val Verde Estates Mobile Home Park came up and went back several times as the owner was not in any hurry to bring the item forward and no time frame had been set for changes on that site. There was no further discussion. Administrative Session closed at 6:53 p.m. REGULAR SESSION: PUBLIC PARTICIPATION: None CONSENT CALENDAR: None (1) APPROVAL OF MINUTES FROM THE REGULAR MEETING OF JULY 7, 2010 Vice Chair Cunningham made a motion to approve the minutes from the regular Planning Commission Meeting of July 7, 2010 as written. SECOND: Commissioner Merino AYES: Commissioners Cunningham, Merino, and Steiner NOES: None ABSTAIN: Commissioner Imboden ABSENT: Commissioner Whitaker MOTION CARRIED (2) APPROVAL OF MINUTES FROM THE REGULAR MEETING OF JULY 19, 2010 Commissioner Merino made a motion to approve the minutes from the regular Planning Commission Meeting of July 19, 2010 as written. SECOND: Commissioner Cunningham AYES: Commissioners Cunningham, Imboden, Merino, and Steiner NOES: None ABSTAIN: None ABSENT: Commissioner Whitaker MOTION CARRIED Planning Commission Meeting August 16, 2010 Page 3 of 15 (3) EXTEND ENTITLEMENT, MINOR SITE PLAN REVIEW 0407-05; ENVIRONMENTAL (NEGATIVE DECLARATION) 1775-06; TENTATIVE PARCEL MAP 2005-248 - WIMBLETON COURT A second request to extend the entitlements to subdivide a remnant parcel (1.57 acres) into four R-1-7 lots and site plan review to allow four lots that will not have direct access to a public street, and variance to permit retaining wall and safety fence that together will exceed the 10' high wall height in the residential district. All matters listed under the Consent Calendar are considered to be routine by the Planning Commission and will be enacted by one motion. There will be no separate discussion of said items unless members of the Planning Commission, staff or the public request specific items removed from the Consent Calendar for separate action. Commissioner Merino made a motion to approve the Extending Entitlement, MSPR No. 0407-05; Environmental (Negative Declaration) No. 1775-06, Tentative Parcel Map 2005-248-Wimbleton Court. SECOND: Commissioner Cunningham AYES: Commissioners Cunningham, Imboden, Merino, and Steiner NOES: None ABSTAIN: None ABSENT: Commissioner Whitaker MOTION CARRIED Planning Commission Meeting NEW HEARINGS: August 16, 2010 Page 4 of 15 (4) CONDITIONAL USE PERMIT N0.2778-09 - OKAZU RAMEN HOUSE RESTAURANT A proposal to locate a new restaurant within an existing commercial tenant building. In association with the interior tenant remodel of the suite, the applicant is requesting approval of a Type 41 (On-Site Beer and Wine -Eating Place) Alcoholic Beverage Control (ABC) License. LOCATION: 2143 North Tustin Street, Suite A-1 NOTE: The proposed project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15301 (Class 1 -Existing Facilities). RECOMMENDED ACTION: Adopt Planning Commission Resolution No. 23-10 approving a request for an Alcoholic Beverage Control Type 41 (On-Sale Beer and Wine -Eating Place) license. Assistant Planner, Sonal Thakur, presented a project overview consistent with the Staff Report. Vice Chair Cunningham opened the hearing for any questions to Staff. There were none. Vice Chair Cunningham invited the applicant to address the Commission. The applicant chose not to add anything additional. Commissioner Merino made a motion to adopt PC 23-10, approving CUP No. 2778-09- Okazu Ramen House Restaurant, subject to the conditions contained in the Staff Report and noting the item was categorically exempt from CEQA. SECOND: Commissioner Steiner AYES: Commissioners Cunningham, Imboden, Merino, and Steiner NOES: None ABSTAIN: None ABSENT: Commissioner Whitaker MOTION CARRIED Planning Commission Meeting August 16, 2010 Page 5 of 15 (5) COMMITTEE N0.4472-10 -ROYAL STREET COMMUNICATIONS A proposal to establish a new wireless communications facility on an existing SCE tower. The proposal includes the installation of a GPA antenna, six (6) panel antennas (1 sector), and the construction of a 210.25 square foot CMU equipment enclosure. LOCATION: Eaton Road & Portico Terrace (SCE Tower) NOTE: This project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15303 (Class 3 -New Construction). RECOMMENDED ACTION: Adopt Planning Commission Resolution No. 24-10 to allow a new wireless communication facility consisting of six 1 sector panel antennas and a GPS antenna on an existing SCE tower on property zoned P-C. Assistant Planner, Sonal Thakur, presented a project overview consistent with the Staff Report. Vice Chair Cunningham opened the item for any questions to Staff. There were none. Vice Chair Cunningham invited the applicant to address the Commission. Marie Hoeger, address on file, stated she was present to answer any questions the Commissioners had, and to address any concerns from residents. Staff presented the project succinctly; it was a very simple project. The proposed project was a simple project and involved a minor modification to the existing SCE Tower, involving the installation of 6 panel antennas that would be mounted directly to the tower and painted to match. The associated ground equipment would be fully enclosed and fully screened within a 7' 6" tall block wall enclosure that was partially set into the slope of the site as to be minimally obtrusive to the area. She wanted to address the fact that they had some neighborhood concern over the site of the facility. She wanted to point out and stress the fact that they had not come to the decision to locate at the proposed site lightly. The project was the culmination of three years of work to find a suitable facility in the area. Royal Street Communications had no coverage in the proposed area to provide to the community. Ms. Hoeger stated she had provided some additional maps to Staff to address the concerns of the residents; the residents felt that the project impacted their view or might be in close proximity to their houses. The site had been Royal Street's sixth choice. Three years ago they attempted to locate on other SCE Towers in the area but across Serrano and over the course of a year to a year and a half those sites had been eliminated due to the fact easement access was not obtained. The property owner, which was an HOA, and the developer were in ongoing litigation that had not allowed the access to the site. They were forced to abandon those sites. The 4t" site was the water tank property that was in the area of the residential neighborhood and that was also Planning Commission Meeting August 16, 2010 Page 6 of 15 rejected due to the fact that the water district had stopped sub-leasing since 9/11. It was not an appropriate sight to sub-lease for emergency reasons. The 5th site was another SCE Tower along Serrano where Verizon antennas were located. They had attempted to locate at that site for 6 months and had to eliminate that site due to SCE not being allowed to lease ground space for their equipment unless it was located directly beneath the tower legs. Verizon had taken up all the available ground space. The 6th choice for their antenna location was the proposal before them. It was their last option in the area as Metro PCS had no other cell facility in the area and without it, there would be a black hole and no coverage for the community. Royal Street Communications believed they had been a good neighbor, had thoroughly exhausted their options and had worked with Staff over the past few months to design the proposed site in accordance with the City of Orange's wireless facility ordinance and with the policies set forth by the City. She was available for questions. Commissioner Steiner asked if the SCE Towers located further west were excluded. Ms. Hoeger stated yes they were, due to the hilly topography they were limited in where a facility could be placed and still propagate a signal. In the handouts distributed to the Commissioners there was an illustration that showed if they were to locate on the west tower, the signal would receive and transmit a signal into the hillside. Commissioner Merino asked how long the original SCE Towers existed at that site. Ms. Hoeger stated they had been there since 1965. Vice Chair Cunningham opened the hearing for Public Comment. Lindsey Shortland, address on file, stated the cell tower that was proposed was directly behind his residence which was approximately 140' away. He had sent the Commissioners emails and the question was asked about the west tower which answered one of his questions. The proposed site would be in direct view of several homes, but there were other things that concerned him even more than the view, as the tower already existed. He wanted to quote a few things; studies from radiological emissions from cell towers were at its infancy. There was no solid proof that any sort of radiation caused cancer, however, he had numerous studies from Dr. Highland, a Nobel Prize winner, who stated that studies had found that kids living near cell towers were 3 to 4 times more apt to generate auto-immune disorders, fibromialgia and lupus. He had multiple studies and he could provide his documentation to the Commissioners when he was finished. Boston University, one hundred people surveyed over a 10 year period, had found that those living within 400 meters of a tower had a newly diagnosed cancer rate that was 3 times higher than anyone living outside of the 400 meters. In Tel Aviv, 622 residents, 300 meters close, out of those 8 were diagnosed with cancer compared to 2. A couple of years ago due to problems and the unknown nature of the towers because they had only been around a couple of years, President Obama put a panel together to find out the effects. In that study's final findings, which were posted on May 7, 2010, it stated that cancer findings were yet to be identified, which meant there was still more. One scientist Planning Commission Meeting August 16, 2010 Page 7 of 15 stated that exposure had a cumulative effect over a long term, and the last one stated that children were at special risk due to their smaller body mass and rapid physical development; both which magnified their vulnerability known to suspected carcinogens, including radiation and they decided to remove a bunch of cell towers away from schools and they blocked getting close to schools. They called it a precautionary prevention or preventative approach to replace the current reactionary approach to environmental contaminants. They were seeing the bigger picture. He might not see anything coming on right now, but there were hundreds of children. He provided copies of his reports to Vice Chair Cunningham. Vice Chair Cunningham asked the applicant if they chose to provide a rebuttal to the public comment heard. Ms. Hoeger stated she would like to add, and was certain the Commissioners were aware, that the FCC regulated radio frequency concerns, emission concerns and that local jurisdictions could not rule on projects related to those matters. The proposed facility would operate in direct accordance with the standards set by the FCC and she could provide documentation of such to the City. Commissioner Merino asked, for the record and for clarification, if the applicant was not proposing in the application before them to install a new tower, but to locate several small antennas on an existing tower? Ms. Hoeger stated that was correct. Commissioner Merino asked if she was aware of the voltage on the existing power that was generated from the existing towers? Ms. Hoeger stated she understood the towers were high voltage towers; however, she could not speak to the amount of voltage. Commissioner Imboden commented for clarification and for the benefit of the residents that had submitted correspondence. On the water tower that the applicant spoke of there was an image in the information provided that was called out as tower, which was the one the neighbor had asked about, further west, and he asked if that was the tower? Earlier the applicant had stated that they had looked at that site. Ms. Hoeger stated they would not be able to locate at that existing SCE Tower at the water tower site, and not directly on the water towers, as they were too low. That site would have been a proposal for a new tower to be installed, of substantial height, which she felt would have been much more invasive to the neighborhood. Commissioner Imboden asked what the elevation difference would be between a tower at the water tower location and the proposed location? Planning Commission Meeting August 16, 2010 Page8of15 Ms. Hoeger stated the height would have been approximately 75' at the water tower site vs. a 40' height at the proposed SCE tower location. The maximum height on the SCE tower was stipulated by SCE and 40' had been the height that they allowed. Commissioner Steiner asked if the letter from Margaret Haniford was part of the record. Vice Chair Cunningham stated he believed all communication received on the proposal would become part of the record. Assistant Community Development Director, Ed Knight, stated all communication received would become part of the record. Vice Chair Cunningham brought the item back to the Commission for further discussion or a motion. Commissioner Merino stated in consideration of the concerns expressed by some members of the public, either present or through other communication that was part of the record, he sympathized with them, however, the SCE Towers had been in existence since the 1960's and any potential hazard would have been identified over the last 50 years. The application before them was not for a new tower, but for the location of 4 minuscule antennas in comparison to the scope of the entire tower. He could not understand how their installation could affect anything other than preventing the installation of a new tower installation somewhere else in the City, or near the water tank that would be 75' tall. He thought the neighborhood would object to having an additional tower being constructed if the co-location of antennas was not approved; and with that he was in support of the application. Vice Chair Cunningham began to speak and was interrupted by an audience member. Vice Chair Cunningham stated the public comment portion of the Public Hearing was closed. Vice Chair Cunningham made a motion to adopt PC 24-10, approving CUP No. 2779-10 and DRC No. 4472-10-Royal Street Communications, subject to the conditions contained in the Staff Report. SECOND: Commissioner Merino AYES: Commissioners Cunningham, Imboden, Merino, and Steiner NOES: None ABSTAIN: None ABSENT: Commissioner Whitaker MOTION CARRIED Planning Commission Meeting August 16, 2010 Page 9 of 15 (6) CONDITIONAL USE PERMIT N0.2789-10 - ARBY'S DRIVE THRU MODIFICATION A proposal to modify CUP 2720-08 associated with the existing Arby's restaurant to extend the permitted drive thru lane hours of operation and to remove the condition restricting the permitted hours of product loading and unloading activities. LOCATION: 1107 North Tustin Street NOTE: This project is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15301 (Class 1 -Existing Facilities) because the project does not propose any physical site modifications; a modification to conditions regarding permitted hours of operation is being requested. RECOMMENDED ACTION: Adopt Planning Commission Resolution No. 25-10 approving the modification of CUP 2720-08 to permit a 24-hour drive thru lane and modifying the permitted hours of operation for the loading zone. Assistant Planner, Sonal Thakur, presented a project overview consistent with the Staff Report. Vice Chair Cunningham opened the item for any questions to Staff. Commissioner Merino stated his question was for Assistant Community Development Director, Ed Knight, or Ms. Thakur; as they both had experience with other 24 hour drive-thru restaurants and he could think of three others that were directly adjacent to residential neighborhoods. He asked if there was a history of complaints or a noise problem at the other restaurants? Ms. Thakur stated Staff was not aware of any problems at the other locations and there had been no negative complaints towards the Arby's restaurant. Mr. Knight stated they had not researched, but he had not known of a history of any complaints about drive-thru restaurants in the community. Vice Chair Cunningham asked if there were other drive-thru restaurants in the City that had 24 hour loading and unloading. Ms. Thakur stated there were others, 13 that had unlimited hours of loading due to the age of the CUP and the entitlements. The CUP's were silent on the 24 hour loading zones. Planning Commission Meeting August 16, 2010 Page 10 of 15 Vice Chair Cunningham asked on the other locations, could they potentially unload trucks at 3:00 a.m.? Ms. Thakur stated that was correct. Vice Chair Cunningham stated the Staff Report mentioned an apartment building behind the Arby's to the east and in terms of what was depicted on the map, it appeared that there were more apartment buildings. Ms. Thakur stated there were several other apartment complexes. Staff had concentrated on the building that was most affected. Vice Chair Cunningham asked if any of those residents had anything to say. Ms. Thakur stated no, she was not aware of any concerns. Commissioner Merino stated he had a question for the Assistant City Attorney, Gary Sheatz. He stated the potential is that the applicant could claim that they had been placed at a competitive disadvantage. He asked was there anything the Commission needed to consider in looking at that issue. By conditioning this particular application in comparison to others in the City that had a similar situation, would they be singling the owner out? Assistant City Attorney, Gary Sheatz, stated only if it was done arbitrarily. If the condition was based on location and the attempt to mitigate any impact that was present with regard to noise or from delivery trucks, they would not have a problem. Each application brought before the Commission was reviewed on its own merit. If the application before them merited restrictions on the hours of delivery and loading due to its location, they could require those restrictions. Vice Chair Cunningham invited the applicant to address the Commission. Todd Matthews, address on file, stated he believed it was two years ago when they started the Arby's project for the original CUP. It was at the prior location of the Rockin' Sushi, and there had been problems at that location and he understood, at the time, that the City wanted to be protective of the residents as they had gone through a lot at that location. He felt a bit penalized with the City being overly cautious with the additional condition that was imposed which had a direct financial impact on the operation of the business and the value of the property. It was in the gray area. Legally it might not be there, but in comparison to restaurants that had the same distance with the drive-thru speaker in a similar area, it felt that there had been an extra condition imposed on his application. The sound study had indicated that the sound levels during operation were below the City ordinances. Even the ambient noise, when the restaurant was closed in the evening, was actually higher than the City ordinance. It was a justifiably low level during operation. Frequently they had customers that drove through the drive-thru at 9:00 p.m. or 10:00 p.m., while they were closed but cleaning and they attempted to order Planning Commission Meeting August 16, 2010 Page 11 of 15 and would need to be told that they were closed. Numerous people, including the Mayor and several council members had asked why they closed so early. Their response was that they had to. It would assist them financially, and it was tough times for everyone and any additional sales they could get during those extended hours would help. As far as the loading zone, there would be no direct financial impact on the business. It seemed like the right thing to do, to allow deliveries during non-peak traffic hours to avoid any conflict between large trucks entering the facility with customers trying to get in and out and even with traffic on the streets. Katella and Tustin were busy streets in the City; it would be to allow the vendors, which preferred to come in early, some wanted to do night drops, key drops and it helped them to not sit in traffic and minimize traffic for everyone. Commissioner Steiner asked if the 1 hour proposed time to 10:00 p.m. provided flexibility with loading and unloading. Mr. Matthews stated probably not, the later hours not, but the earlier hours 5:00 or 6:00 a.m. would help. All the vendors wanted to deliver early, to get in and out. Commissioner Imboden stated he had heard the applicant state that the vendors had wanted to deliver early and he asked, if from his business point of view, was that an issue? Mr. Matthews stated it was a vendor driven request and would not affect them directly. It would be through a key drop and when they arrived later they could just put everything away. Commissioner Imboden asked, for clarification, were they proposing any physical changes to the site? Mr. Matthews stated no, it was a request for a change in hours of operation and for the loading/unloading hours. Commissioner Merino asked Staff if the application was granted and a series of complaints were generated by the neighbors, would the Commission have any options to return and re-condition or modify any action that had been taken, to mitigate those issues at a subsequent meeting. Ms. Thakur stated when complaints were filed a record would be created. With a public nuisance record, depending on the number and the type of complaints filed, the application could return to the Commission, but there could be a process followed due to public nuisance issues involving the applicant's CUP. Mr. Matthews stated he was not certain what the legal difference was between a CUP condition and sound ordinance and there was a sound ordinance in place; and he believed the sound ordinance would be a way for recourse if needed. Community Development Director, Ed Knight, stated if a Condition was adopted and Planning Commission Meeting August 16, 2010 Page 12 of 15 there were subsequent complaints received, City Staff would return to the applicant with the nature of the complaints and ask the applicant if they were willing to comply with a change. If the applicant stated yes, then no documentation would be pursued. But to unwind the clock, so to speak, there would need to be a Public Hearing, and noticing before the Planning Commission; with notice being sent to the applicant. The Planning Commission would then hear the item with information from the Police Department and neighbors and it would be a very deliberate thing. With the previous restaurant, there had been two years spent on gathering data. Obviously they would not be revoking the CUP, they would be returning to the Planning Commission to state that it had not worked with the unlimited loading and un-loading hours as there had been complaints filed. Commissioner Merino stated the applicant had spoke to the noise ordinance, and he asked if the City received complaints and if the noise ordinance had been identified as being violated, could the location be sighted? Mr. Knight stated that was correct. The noise ordinance stated that past 10:00 p.m., it was based on the amount of noise, but it was still the ambient noise in the area that would be the standard. If the noise was lowered to 55 DBA's but the ambient noise was 60 DBA, the ambient noise would become the standard for the surrounding area. If the noise level was above the ambient, they would be allowed to have that noise for a certain period of time ranging between 10 minutes and 1 minute; they could create 90 DB's of noise intrusion for 1 minute out of an hour and beyond that would be in direct violation of the noise ordinance. He could not speak to the dynamics of that occurring but after 10:00 p.m. if a simple tone was made, such as the back up noise of a truck, it became a different issue and could be considered a nuisance where a person might hear that noise two or three times a week and become annoyed. If the noise was waking a person up causing them to feel ill the next day and that person immediately contacted the police and reported what was occurring at the Arby's restaurant, it might not even be a matter of the noise ordinance, but more of an issue with the nuisance ordinance. Commissioner Imboden asked if they were reviewing a DBA of 54. Mr. Matthews stated he believed that was the average. Commissioner Imboden asked on the study that focused on intercom noise, customer conversation and cars queuing, there was no discussion on deliveries and why had that been left out? Mr. Matthews stated he had requested a sound study in relationship to extended hours of operation and he had not brought up the issue of loading and unloading. Commissioner Imboden stated the loading and unloading area noise was not measured. Mr. Matthews stated any sound connected to loading and unloading would have been captured in the sound study over the course of the 3 days of the study. Planning Commission Meeting August 16, 2010 Page 13 of 15 Commissioner Imboden stated the sound from any loading or unloading had not been analyzed. Mr. Matthews stated that was correct. Commissioner Imboden commented in reviewing the sound study and the 55 range, it stated that 55 was equivalent to speech at a distance of 1 foot. The information was contained on page 12, the Acoustical Study. Ms. Thakur stated 54 was the average. Vice Chair Cunningham brought the item back to the Commission for any additional comments or a motion. Commissioner Steiner stated the business had an established track record, had been a good neighbor and the City was fortunate to have their business. In the economic environment, it was important to have a competitive edge and he felt really comfortable with the 24 hour service; and he agreed with Staff on the hours of 6:00 a.m. to 10:00 p.m. for the loading and unloading zone. Commissioner Imboden stated in reviewing the minutes, which had been very important to him on the project, he thought he was the only Commissioner out of the others currently present who had been at that previous meeting. It had been very unanimous amongst the Commissioners and of a very strong concern on the project. It followed behind a troubled site; however, the Conditions placed on the application were not punitive in any way. He was surprised that the project was back before the Commission with no proposed changes and it was just an opportunity to take another stab at the request with a new group of characters on the Commission. He was o.k. with the delivery time extension to 10:00 p.m., but they had already spoken with the applicant 2 years ago, at length, about concerns regarding deliveries throughout the evening, and the truck door noise, back up noise and those types of issues. He could not support extending the delivery hours as there was no mitigation proposed. The sound study had not spoken to that. He could not go further than the 10:00 p.m. suggested. If he had his druthers, he would prefer not to even move to the 24 hour drive-thru. If the Commission chose to do that, they could do that, but he looked through other proposals and most had not had a speaker box directly pointed at nearby residential properties. Others had angled speakers that were pointed away from the properties. As Sonal had pointed out, other locations without restrictions had not come before the Planning Commission and he had hoped that they could learn from their mistakes and that they would begin placing requirements on applications. It appeared that they had just done that, and currently were going back and justifying something by something that had not been reviewed. He had not followed that logic. In terms of the competitiveness, yes, these were tough times, but the people who lived in the residential properties next to the restaurant had not needed any additional disturbance there. The conditions that were in place were those that had been granted prior to the Planning Commission Meeting August 16, 2010 Page 14 of 15 location being built and going into operation. It had not been something that had been put into place later and was not unfair to the applicant. He would look to the other Commissioners on their response to the 24 hour drive-thru, as he had not seen a reason to change that Condition. He reviewed the concerns initially expressed and he still contended that there were potential issues. As far as the deliveries went, he would stretch to 10:00 p.m. and no later. Commissioner Merino stated he echoed Commissioner Steiner's comments in allowing a business to flourish. He had some of the same concerns that Commissioner Imboden voiced, however, the opportunities of the neighbors to mitigate and address any noise concerns should they occur, through a report of violation of the noise ordinance. By contacting the Police Department for any violations during the early morning or late evening hours, provided an opportunity for the business to be placed on notice if issues developed, issues that would need to be addressed. He found that there was nothing in the record that stated Arby's had been a bad neighbor or had caused reason for concern, certainly if there had been traffic problems there would have been something heard. He would support the applicant's request for the 24 hour drive through, knowing there would be mitigation through complaints if there would be an issue. On the loading, he agreed with Staff's option B, from 6:00 a.m. to 10:00 p.m. was generous enough in getting the deliveries taken care of. Vice Chair Cunningham stated not to belabor the point, he was supportive of the request fora 24 hour drive- thru. Those were much more prevalent and in tough economic times, it was helpful for competitiveness. He had not been on the Commission when the item had been previously heard, but it seemed to be overly restricted hours for a drive through, especially when the trend was to keep drive-thru's open longer. He would have leaned to the second modification request for the loading zone; but what gave him pause was that there had not appeared to be similar restrictions on deliveries to other fast food restaurants, and not having any idea if those others had caused any issues or any complaints, obviously his sense from the Commission was that there was no support of the second modification, so he would support the Staff recommendation on the item. Commissioner Merino made a motion to adopt PC 25-10, approving CUP No. 2789-10, Arby's Drive Thru Modification, with option B as recommended by City Staff on page 9 of the Staff Report, noting that the item was categorically exempt from CEQA, SECOND: Commissioner Steiner AYES: Commissioners Cunningham, Imboden, Merino, and Steiner NOES: None ABSTAIN: None ABSENT: Commissioner Whitaker MOTION CARRIED Planning Commission Meeting August 16, 2010 Page 15 of 15 (7) ADJOURNMENT: Adjourn to the next regular meeting scheduled for Wednesday, September 8, 2010. Commissioner Merino made a motion to adjourn to the next regular scheduled Planning Commission Meeting on September 8, 2010. SECOND: Commissioner Cunningham AYES: Commissioners Cunningham, Imboden, Merino, and Steiner NOES: None ABSTAIN: None ABSENT: Commissioner Whitaker MOTION CARRIED Meeting Adjourned @ 7:52 p.m.