Planning Commission Hearing on 8/27/2015 of File 10302, Canh Thai Temple – Basis of Decision

Transcription by Marcy Greeley


The objective of the following transcription is to record major segments of the Canh Thai Temple hearing before the Planning Commission that illuminate the basis of the decision by the various Planning Commissioners.  Those segments are as follows:


·        Part Two of the Staff Report by Kirk Girard

·        Applicant Closing Remarks by Acoustical Consultant Jeffrey Pack

·        Commissioner Findings and Final Discussions


Part Two of the Staff Report by Kirk Girard


All time markers in this section are for the MP3 file provided by the County.


Mr. Kirk Girard is the Director of Planning and Development for the County of Santa Clara.


[2:05:11] Kirk Girard:  What I want to discuss are the history of violations and the existing violations on the property in relation to the Staff recommendation for approval, and the findings that your Commission has to make for approval or denial of the project.  And the reason this is important is, we have an ordinance provision that says that your commission is entitled to deny the approval of a permit in the face of existing violations that are the subject of the permit that youre considering.  So that can be grounds for you to deny an application for use permit.


[2:05:56] And I want to explain the Staff logic that we went through, given the history of violations and the existing violations of the property in relation to that ordinance provision. Its 5.20.140.


So we remain in support of the project, because fundamentally we feel that the proposed use is compliant with General Plan, the ordinance, and all the other required findings.  But there are theres quite a history of violations on the property and but we don't feel that the history nor the existing violations rise to the level that we would recommend denial of the proposed future use.


[2:06.43] So, to bring you up to speed we have a chronology of the enforcement actions that have been included as a part of your packet.  The chronology ends with our most recent inspection that was done on August 16th of the property.  And yesterday, our code enforcement program issued a compliance order citing a number of violations.  The violations were related to the outdoor storage of materials.  There are too many materials being stored there in proximity to the view of the road, and in terms of area and height.  And we've said that that's a violation of the storage requirements that we all have to abide by in the county.


[2:07:39] The other areas of violations are associated with the remaining mobile home on the property that has been modified and the trailer thats been used for storage and now is being used in a sense as an outdoor kitchen.  And there are a number of violations associated with those two structures.


[2:07.57] The compliance order is asking for specific performance on all three of those issues:  the cleanup of the property, the use and existence of the mobile home, and the storage trailer.


[2:08:17] Its all specified in terms of what actions have to be taken, under what date, and what time frame. Now from Staffs perspective, probably the most significant violation in the history of this parcel has been the use of the parcel for public assembly:  effectively operating a religious institution without a use permit, and this in terms of our ranking of severity of violations, we felt had impacted the neighborhood, and was flagrant and what's been the primary subject of most of our enforcement attention from the very beginning.


[2:08.54] The most recent inspection showed that the latest two measures that we demanded of the property owners is that all signs be taken down advertising the place, and that the open driveway be blocked and fenced, so that the public is not allowed access to the property.  Those are still in place.


[2:09:16] So we dont have renewed public assembly violations.


Now, you ask, of these violations, which are really the subject of this use permit, because youd have to look at the violations in relation to the use permit to be able to make use of those violations as a basis for denial of the permit.


[2:09:34] And the two violations that we feel are in a sense the subject of the permit is the public assembly.  And as result, weve put a condition in the proposed approved condition of approvals that effectively say, that until you have final occupancy granted for the temple that youre planning to build on the property - there will be no public assembly at this site.  So its a continuation of the compliance order that we believe now, is being complied with.  But to make it crystal clear, well add that as a condition of the Use Permit.


[2:10:09] And Ill harken back to a basis for potentially coming back to you for revocation or modification or denial, that if in fact, they did renew public assembly prior to the construction of the temple, that could be grounds through the code enforcement process to bring it back to you, saying, its a violation of the condition of approval, not only a violation of our zoning ordinance.


The other violation that we feel is subject to the use permit, is the existence of the mobile home.


[2:10:40] Now weve come to this conclusion relatively recently, which is why the condition has been changed. The condition was originally written that if the mobile home could be modified according to state standards, it may have an ability to stay on the property and weve reconsidered that position, and this is our logic for reconsidering the position.


[2:10:56] Mobile homes have to be permitted to be on the property. Youre allowed to live in a mobile home and place thats principally permitted, but you have to go through the proper procedures.  Mostly just safety procedures ..and..(unintelligible)the right to have a foundation.  And there is no application for that, and in fact, we have a proposal for use of the property for religious institution, not as a primary residence.  So, that right, and avenue for pursuing that right, is really not in play here.


The other, is that you could actually approve a mobile homes use on the property through use permit.  So if they were seeking the to keep the mobile home as a part of this use permit - again, that would be another route to legitimize it.


But, absence those two routes, there is no legitimate reason for the mobile home to be there, so weve added a condition effectively saying that the mobile home must be removed.


[2:11:50] Now this is where the conditions of approval for the use permit are working hand in glove with the compliance order.  Because the compliance order is also giving them a date certain for removal of the trailer.  But the connection between the two is that they fail to remove the trailer, one of the things we believe about the trailer is that it is an attractive nuisance. and its related to public assembly if theres no place for people to assemble to prayer, to have prayers, then we feel that its a security, if you will, to prevent public assembly, which we think is the core violation subject to this permit.


[2:12:27] So, we have those two conditions of approval, and then in the compliance order, they are effectively repeatedalthough, Im sorry, the public assembly is not [unintelligible] in the compliance order because we don't feel that theyre currently out of compliance of that  but the removal of the mobile home is in the compliance order.  There are specific performance requirements in the compliance order, and specific consequences if they violate any aspect of the compliance order.  But the two that we believe are subject to the use permit, are assembly and the removal of the trailer, and we included those as conditions.


Applicant Closing Remarks by Acoustical Consultant Jeffrey Pack


All time markers in this section are for the audio segment uploaded to time markers are offset by +3:43:33 relative to the original County Audio MP3 file.


Mr. Jeffrey Pack is an acoustical consultant.


[0:00:03] Jeffrey Pack:  Good afternoon, my name is Jeff Pack, an acoustical Consultant. The acoustical fence is exactly what that is, is a fence.  We're not recommending a sound wall per se.  This is going to be a wooden fence that could, if needed to, extend across the Diocese property to shield that triangle area.  That's fine and it could be constructed in sort of a temporary fashion so [that] if and when that section of the Diocese property becomes a right of way, that can be de-mounted  - and you’re still protecting the properties to the north with the remainder of the fence.


The city of San Jose zoning ordinance does not apply to moving traffic in a right of way, so when the cars come onto the property where the zoning ordinance would come into effect, to the cars that are on the property, they’re behind the acoustical fence, therefore that triangular section is shielded.  If you have any questions, I'll be more than happy to entertain them.


[0:01:03] Chairperson Scott Lefaver:  Questions of Mr. Pack?  No questions, thank you.


Commissioner Findings and Final Discussions


All time markers in this section are for the audio segment uploaded to time markers are offset by +3:43:33 relative to the original County Audio MP3 file.


The following officials of the County of Santa Clara are speakers in this segment:


·        Scott Lefaver, Planning Commissioner and Chairperson

·        Marc Rauser, Planning Commissioner and Vice Chairperson

·        Debra Cauble, Planning Commissioner

·        Aaron Resendez, Planning Commissioner

·        Kathy Schmidt, Planning Commissioner

·        Kim Rook, Planner III in the Planning Department

·        Rob Eastwood, Interim Manager of the Planning Department

·        Darrin Lee, Senior Environmental Health Specialist


[00:05:28] Chairperson Lefaver:  No questions.  Thank you.  Are there any other speakers that wish to? Seeing none, I will close the public hearing input portion of the public hearing at this time.  Commissioners: Questions?  Discussion?


[00:05:53] Commissioner Resendez:  I wanted to thank all the neighbors that came over here today and speak against this project.  What I saw again when I read every one of your letters is a lot of energy, but also we have to look at the other side.  We just cannot look your comments and you know it's a great work whoever was organizing you guys is a great work.  I respect that organizing effort.  But also things that I noticed myself.  You know, all you guys came in today you know it's great to organize in other good causes.  This one is, and I'm going tell you straight to you every one of you.  Put yourself in [the others’] shoes.  All those of you who have property there, if you were to make a room, make something to improve your property and will have this opposition, how you will feel about this.


I also, my little antennas went up seeing the property of the Diocese.  Is there a conflict of interest here?  Somebody's pushing you guys from behind?  Because they [the Diocese] are ready to develop also their property.  So what is the play here?


Now, I recognize, Kim, she's a great planner.  I have a question for you.  How [do] you feel in your recommendation of this?  And I know, you are very professional, I respect your opinion.


[00:07:53] Chairperson:  Well the public hearing’s closed .. that was a  rhetorical question.


[00:08:03] Resendez:  Okay.  I didn't make that question before …  To me even right now with all your comments, it's a balance, but I'm ready to make a decision.  I don't know what I’m going to say in my decision.  But to me, and like I said before, instead of a confrontation, [it’s] something that we have to come to the [common] ground and shore [?] those differences.


And also, what is proposed. And I have read this, and I have read of the County, they are putting everything they were asked to put.  So, I don't know, I'm still undecided.  I’ll let other commissioners speak on this issue.


[00:08:52] Chairperson:  Thank you.  Other comment, please.  Commission Cauble.


[00:09:00] Commissioner Cauble:  Thank You, Mr. Chair.  I have a couple of questions, and let me start by saying I think this is a difficult decision. I have been attending Planning Commission, City Council and Board of Supervisors hearings on land use matters for thirty years; sometimes as staff, sometimes representing applicants, now sitting up here.  And I have heard public testimony against religious institutions that offended me and where it felt to me like the neighbors opposed it because of, you know, who [are] you people coming into our neighborhood and that kind of thing.  And I will say that I didn't hear that from this neighborhood, which I appreciate.  I think the neighbors tried to stick to the facts.  And it seems to me that the root of the problems are the root of the concerns is based on a history of non-compliance and a fear that that will continue. And so to me, as I look at this, a Use Permit is only as good as its conditions and the permit holders’ compliance with the conditions.  And that's my focus. If we approve this, are the conditions correct?  Are they strong?  Are they clearly worded, so that the applicant can't claim, “I didn't understand that I couldn't do this.”


So, one question I had is [that] someone raised the concern that there won't be the hundred fixed seats; people could pile in; a whole bunch of chairs. When I read the plans it says on the plans, 100 fixed seats. So to me, that tells me if you don't install a hundred fixed seats, you have not complied with the architectural and site approval. Is that right, Kim?  Because it's not just illustrative for the purpose of the document that you would attach to the approval.  It says a hundred fixed seats.


[00:11:15] Ms. Rook, Planner III:  One hundred fixed seats are now required.


[00:11:19] Mr. Eastwood, Planning Department Manager:  Commissioner Cauble, sorry to interrupt.  But also, if you look at the Architecture And Site approval Conditions of Approval #1, it lists a hundred fixed seats so that is a condition of approval also.


[00:11:38] Commissioner Schmidt:  It would look like there's plenty of room if they wanted to add some moveable seats in the space, some folding chairs, there could be plenty of space.


[00:11:47] Chairperson:  Which brings up fire code issue  In other words you have a hundred fixed seats, witnesses building allows as far as fire code.  Or do you want to say hundred people, that's it.


[00:12:07] Eastwood:  We know the – Separately, when the building is built, the building office and fire marshal look at it and do an occupancy rating, and oftentimes at this stage of the game we all know then.  That being said, I will say this, both in terms of the conditions, [said] over and over a couple times, the maximum intensity of use on the property is a hundred.  And that's in the conditions.  There are various times, and it's also going to be required, the conditions are recorded on the property.  So, if this property owner [or] subsequent property owners buy the property, [it is] very clear that the maximum intensity, maximum number of people, is a hundred people.


[00:12:45] Cauble:  Thank you.  A question.  Proposed condition #6 for the use permit talks about approved hours of operation.  And I think hours of operation can be a difficult term to understand depending on the nature of the use.  Obviously, the priest and family will be living on site, so that’s a 24/7 use.  What [does] hours of operation mean if there are three people inside the assembly hall at 8:30 [PM] finishing their prayers?  Would you consider that, perhaps minor, but would that be a violation of this condition?


[00:13:46] Eastwood:  The hours of operation are the hours of operation.  And if there's evidence of assembly beyond these hours which are in the use permit, technically that would be in violation.  We’d just have to look at the size, intensity and the nature of that, but it's very clearly spelled out for assembly on this site, it’s limited to 10 a.m. to 8 p.m.


[00:14:10] Cauble:  Another question.  Do we know that this property owner has the right to use the shared driveway for this use?   Or is that something that we as the County leave between neighboring property owners?  If they have a dispute about the use of an easement, they work it out, and it's not our problem, which is fine.


[00:14:37] Rook:  Yes. Land Development Engineering did review the application, verified that there is legal access to both properties.


[00:14:46] Cauble:  I know that there's legal access but, that it can be used for this purpose [or] not.


[00:14:50] Rook:  Yes


[00:14:52] Cauble:  Okay.  I think those are all my questions at this time.  I’d just be interested in other questions.  I think the concern I have is, that for particularly I would say schools and churches, if they are good and successful, they grow.  And there was an example a couple years ago of a very fancy-shmancy private school in Palo Alto, that lo and behold, had grown [around] 300 students over their Use Permit.  Then suddenly, people ‘cop’ to “Wait a minute, what's going on?”


So, I am concerned.  I think, it’s very restrictive, if the property where in the City. This is a relatively small building for a religious institution, relatively small number of people allowed, it happens to be in the rural county, so it's a different set of rules.  But if you're looking around at urban religious institutions, this is pretty small potatoes. And so I think there's going to be a pressure if it's successful, to want to grow.  And unfortunately, we have a history of not complying with the rules.  And so I'm still troubled by that.  I do think – I'm not an architect, but –  I think the building plans, the external building is actually beautiful.  I think the landscape plan is beautiful.  So in terms of a physical improvement to the site, I think if built according to plans, this is going to be a real asset to the neighborhood.  It’s – Will they comply with the conditions? – I'm still struggling with.


[00:16:39] Chairperson:  Thank you, Commissioner.


[00:16:41] Vice Chairperson Rauser:  I, too,  just want to thank everyone that made the effort to just make comments and you really helped to frame a lot of the issues.  I just again really appreciate that involvement.


I have a couple of kind of technical questions I'd like to ask of staff myself.  And that is, I did see [in] the introduction they talked about the daily amount you can have: five at a time and 15 maximum?  Did I read that right?  And if so, for individual prayer, five attendees at one-time total attendees per day fifteen.  I don't know if that’s carried [into] the conditions of approval, and I’m not sure the thought … of, Why five, why not just say fifteen are allowed in a day, why is that limited to five?  And then another question would be, if you could just let me know what Condition #14 is, I’d appreciate it.


[00:17:45] Rook: So as far as the number of attendees - those were the numbers proposed by the applicant as far as the intensity of the services.  There are a hundred fixed seats that are proposed.  It's very difficult to regulate fifteen people on certain days [and] fifty people on other days, so that was for illustrative purposes.  Those are not in the conditions of approval.  The conditions of approval state that [there shall be] no more than 100 attendees at any one time.


[00:18:27] Rauser:  Okay.  And I feel much more comfortable with that rather than having to sit there and try and monitor that.


For me, I agree with a lot of comments my fellow commissioners made. At this point, I don't know that I have trust in the Applicant, but I need to have trust in the enforcement mechanism of the Planning Department.  And that's where, at this point, I do like a lot of the things that were put in there to monitor this - you know, like the whole noise thing to me is kind of theoretical, and I'm very happy that there's a couple of times where they will come out and actually do actual measurements during activities, so I think that is very important for this.  And I like the fact that there's a nice big sign that that defines exactly what the uses are, and so there's no question.  A lot of times with non-profit institutions, there is turnover of people over time, and we want to make sure that as this runs with the land, that everybody knows, and they can't just say, “Well, I wasn't there for that things, I didn't know.”  So I do appreciate those factors in this, and I think the staff did a really good job of really trying to say that, if we're going to allow this use to go on the property, that we want to make sure that there is an enforcement mechanism in place to make sure that is happening. And so, because of that, I would be willing to support the staff's recommendation.


[00:20:13] Chairperson:  Thank you.  Commissioner Schmidt.


[00:20:16] Commissioner Schmidt:  My comments are very similar to just about everyone else's comments too.  Thank you to the neighbors for putting a lot of effort into the presentation and being very clear and doing lots and lots of research.


This is a difficult situation and it's very hard with this history of non-compliance.  The applicant has talked about being a good neighbor.  I don't think they have been a good neighbor. If we approve this, they will need to be a good neighbor and need to mend fences.  Then build fences, mend fences with the neighborhood.  And has been mentioned, there has to be very clear and good enforcement of this.  I'm quite sure, and that if this is approved, that the neighbors will watch very closely what is going on.  I have my concerns in that I think the property will allow more than what is being described here, and will allow for additional people to live there, will allow for additional people to assemble there.  But if there is good enforcement, then it could work.


I was going to ask another water question, a detailed water question.  The neighbors have also mentioned not only the septic capacity, but just any contamination of water, the groundwater.  And could you address the potential contaminations?


[00:22:22] Mr. Darrin Lee, Senior Environmental Health Specialist:  Yes, so basically with respect to the septic system and ground water, … the vertical separation between ground water and the bottom of the leach field is determined by the percolation test.  So with that being said, we have at least minimally 8 feet of separation between the bottom of the trench (leach field trench) and to where we tested. So we dug … a pit 15 feet deep.  As we as we went through, we kind of monitored and observed if there was any high ground water.  While we did that pit, we didn’t observe any groundwater at that time.  We terminated our pit at 15 feet deep.


[00:23:11] Schmidt:  Speaking of groundwater I would imagine it kind of low right now because of the drought conditions we've had for a long time.  Would you think that could change in the future and have any impacts?


[00:23:25] Lee:  Well, when we did our soil or pit, we didn't see signs of high ground water through soil modeling or anything of that sort that would have led to us to believe that there was high groundwater.


[00:23:40] Schmidt:  You’re saying there’s not a history in the soil that shows that there would have –


[00:23:45] Lee:  Visually we would not have been able to tell you that when we were doing our observations.


[00:23:52] Schmidt:  So you would not have been able to tell that.  Okay.


I think as I had mentioned earlier, I think if we approve this with the condition about water quality, [it] should say that if they have the large events there, that they should be required to have chemical toilets, and not just be allowed.


Anyway, I think this is complicated.  And again, if this is approved, it requires that the Canh Thai Temple be a good neighbor, become a good neighbor.


[00:24:37] Eastwood:  Commissioner Schmidt, sorry to butt in, but one consideration.  Darrin [Lee] and I talked earlier, it would be a modification – on the porta-potties – modification to Condition #44: “For these special events, chemical toilets shall be used to augment the restroom facilities.”  So just you could just consider a change in that condition of approval.


[00:24:55] Schmidt:  Thank you.  That it's exactly what I would want to see.  Thank you, and I was done speaking.


[00:25:05] Rezendez:  Yes.  I'm going to make a comment about code enforcement.  Myself as an immigrant, I came over here when I was 20, and it’s hard to understand all those issues, especially code enforcement.  Now, I'm a hundred percent fan of code enforcement.  I like it.  What I would like to see if this gets approved, they already know about the violation, the code enforcement issues.  With those conditions, I personally would like to see Code Enforcement a hundred-percent taking a look at this site, so they comply with all the County laws.  Sometimes people – and I encountered on a daily basis people [in] the regular community [who don’t] understand all these rules – but once they know, they cannot say they didn't know about this.  So, that's kind of balancing but also educating a community that from now on they had to comply with all of the rules.


[00:26:23] Schmidt:  I'm now just reminded of Enforcement, made me think of a condition listed here on page 5, for post-approval monitoring annual report.  It just has two years of reports.  Again, I would think that we would want to have more years of reports listed, because as has been mentioned, a well-run church will grow.  I think we want to do that, and I don't know if, again, if it's approved, if we want to even check in earlier, after the property opens rather than [after] 13 months.  But that's the question.  But otherwise, I think we should definitely extend the time period of reports, and we can always change [that] in the future if it seems that everything has been complied with.


[00:27:26] Eastwood:  Yes, how it’s ordered right now, typically what we do is thirteen months after final inspection, because that’s the move-in, the easier you see how it has gone.  I guess staff advice [is that] it does have language for two years.  At that time, if you think it's warranted for additional time you, can extend it at the time.  You are well within your bounds to ask for a more monitoring now, but you do have that right to ask for more years after the initial two years.


You could consider in this case, just given the violations, if you want a staff status report in six months just after issuance of the use permit, just as a check-in, that's up to you.  Again the presumption here is they won't be up and operating until the permits are issued – and they've moved in.  Given the history-  if you'd like you could ask for a report back just in six months to see:  Are there activities?  Or is there something to report back regarding zoning violations?  Are they on the path to obtaining their permits and complying with the use permit?  So, that could be considered.


[00:28:33] Schmidt:  Thank you. I think, a six-month status report.  And I would personally go for like 5 years of the monitoring reports.  We can always again reduce it if necessary, but I think I would plan for more given the history of the property.


[00:29:00] Cauble:  May I ask a question of Commissioner Schmidt?  Are you just talking about the Annual Report?  Or also the noise monitoring?  I have a concern with requiring the applicant to pay for five years of noise monitoring, if in the first two years, it's not an issue. But an annual report I think can focus on particular issues, rather than require hiring a consultant that may not, hopefully won't, be necessary after two years.  So we would be modifying Condition 27- not Condition 28, is that right?

[00:29:35] Schmidt:  Yes.


[00:29:37] Cauble:  Excellent.


[00:29:52] Rauser:  While you’re looking at that, I would support that.


[00:30:00] Chairperson:  OK. Any other comments from anyone?


I’d like to make a few comments.  This is sort of, it's an unfortunate place to have all of us in, where we are looking at a use that in the past has not really followed the rules and has been told time and time again to do that.  And eventually, they are doing it, but it's taken quite a bit of effort on the part of the County to get to that point.  But do I, as a Commissioner, base my decision on what has happened, and what is happening right now?  We have a Staff that indicates that this use is acceptable in the area, that it, with conditions, it can come about.


The Staff and the County will put itself in the place really – of monitoring and enforcing those conditions.  I think that's going to be… They’re going to be called upon quite a bit to make sure that that's going to happen.  That's going to be part of it, mainly because of the, again, the past behavior of the applicant.  I cannot vote against something that does fit into the County, can be conditioned within the County as recommended by Staff, and that the background, the past, even though bad, has actually improved.  I think that's been very clear.  I am skeptical, but I'm certainly willing to go forward and support this with the conditions changed as my fellow commissioners have indicated.


[00:32:23] Schmidt:  I have a question for staff.  I don’t remember if we’ve asked specifically, but if this is approved, if it is built, if the applicant violates conditions and continues to do so, [then] can the use permit be revoked?  So that in essence can it be closed down if the applicant continues to violate the conditions.


[00:32:50] Eastwood:  Yes.


[00:32:51] Schmidt:  The answer is yes, it can be revoked.


[00:33:01] Chairperson:  Commissioners?


[00:33:04] Rauser:  Does that then mean it basically would be allowed to continue as a residence, but no longer as an assembly – ?


[00:33:15] Eastwood:  Well, they'd have to obtain the right permits and install it as a residence.  It’s a separate use from the use permit for assembly – and just the residence would be treated on its own terms.  [Transcriber’s note:  Eastwood appears to be referencing a use permit for communal residence.]


[00:33:36] Chairperson:  Can we have a motion?


[00:33:40] Rauser:  I can if you, you don’t want to –


[00:33:43] Schmidt:  We can maybe fashion one together here.  I just would say, too, that I think all of us are skeptical, because of the past performance.  But, it seems like this is something that can go forward, if the applicant does follow the conditions, and follow them very exactly, because we know we will find out if they're not followed.  So, I will move.  The recommended actions – that’s: Adopt mitigated negative declaration and mitigation monitoring and reporting program, approve the Use Permit, Architectural And Site approval, and Grading approval for the proposed religious institution Cahn Thai Temple.  But we have some additions.


The Planning Commission members took the next few minutes to state the modified conditions.  Commissioner Schmidt’s motion was then seconded by Commissioner Rauser.  The final vote was 5-0 (Dorsey Moore was absent and one seat was vacant).