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,r- Chairperson Maas stated that if she put herself in the place of the neighbors, she would be bothered by the constant noise. She indicated that she supported Toby's original application because she considered it as something that would be neat and a good fit for the Downtown: a chef who sang acoustical music, good food, and a great outdoor dining area, She commended Commissioner Roberts and staff for their work with the neighbors and the owner. She expressed support for Option No.3 because it is not closing the door on Toby's but allowing it to bring the music back once it mitigates the noise issue. She concluded that she can be flexible and go along with the change of use from the original application to what it is now, but not at the consequence of depriving the neighbors of their sleep. Commissioner Sullivan agreed with both Commissioner Roberts and Chairperson Maas that negative impacts of a business on its neighbors need to be mitigated by the business and not by the neighbors. With respect to Option No, 3, he expressed concern that the business may not be able to afford to install sufficient acoustical mitigations to the neighbors' satisfaction, and live music will not be allowed until these are in place. Mr. Iserson commented that the business will not be allowed to have amplified music until it can demonstrate that measures have been taken to bring the noise down to acceptable levels. He stated that this will have to be based on experience and testing; hence, the acoustical consultant's role to recommend what would be most cost.effective. r- Commissioner Sullivan added that something needs to be done about the patio to prevent incidents like dancing on tabletops when music is allowed later. He stated that the original intent for the patio was for dining and not for drinking or hanging out. Chairperson Maas inquired if this should be addressed now or when the item comes back to the Commission in the future. Mr. Iserson replied that this was a Commission decision; however, what staffhad in mind was to have a self-implementing solution without necessarily having to come back to the Commission. He explained that the recommendation is structured in such a way that when the acoustical mitigations are in place and the live band comes back, whatever conditions the Commission places regarding the patio would also take effect then. He suggested that the use be made as specific as possible without going too far, such as allowing only sit-down dining or waiter service. Commissioner Kameny moved to make findings of the staff report for the use permit modification and to approve the modification to Case PCUP-36 subject to the conditions of Exhibit B., with an additional condition that if amplified live music is resumed after acoustical mitigations are put in place, the patio be used only for sit-down dining. Commissioner Roberts seconded the motion. Commissioner Sedlak concurred with Commissioner Sullivan's comment regarding requiring businesses, not neighbors, to mitigate the negative impacts of the business because neighbors should not be asked to change their lifestyles at home to accommodate a business. - PLANNING COMMISSION MINUTES November 13, 2002 Page 17