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25. Continued from July 19, 2011 Public Hearing: P11-0035, Valley Business Park Owners Association — Consider an appeal of the Planning Commission's approval of a Conditional Use Permit (PCUP-296, Summer Bowers) to operate a State-exempt child care learning center during the summer only at 1020 Serpentine Lane, Suite 109 Ms. Stern stated the Valley Business Park Owners Association CC&R's allow day care as a conditionally permitted use if approved by the their Architectural Review Board. The proposal for Summer Child Care Learning Center was denied by that board and the applicant applied to the City for approval under the PUD regulations that allow child care as a conditionally permitted use, and the Planning Commission approved the CUP unanimously. The Commission reviewed the application according to regulations as they have in previous applications for the Park and followed the Pleasanton Municipal Code Section 18.04.030(b) which is in the general provisions chapter and which provides that the City is to look at zoning codes in reviewing an application and not CC&R's or other private agreements. In addition to the Municipal Code, there are other various policy and legal arguments why the City should be bound by its own rules and not be bound by rules not set by the City, to which information could be provided. The Planning Commission suggested to the Board that it apply to modify the PUD to eliminate child oriented uses if that was its desire. Councilmember Sullivan asked if the City was mandated to allow this based on the zoning. Ms. Stern said it is a conditionally approved use and the Council could still not approve it despite what the zoning code states. Ms. Stern presented an overview of the Business Park map and the location of the proposed child care center. The building has regular office doors and is more appropriate for office uses and not necessarily light industrial uses. She noted at this point, the applicant would still like to apply and have the Council rule on this because they hope to open next year. Staff recommends the Council adopt the draft Resolution denying the appeal by upholding the Planning Commission's approval of PCUP-296 subject to conditions of approval. Councilmember McGovern confirmed that the center is proposed to go into a building which is the same suite that a tutoring service had been at before and the use was previously approved, with several other child oriented uses approved over the years. She asked and confirmed that the applicants would use this for the summer months and the rest of the time it remains empty. Councilmember Thorne questioned whether the shared restroom was shared with others in the building. Ms. Stern stated yes; it is a condition of approval that children be escorted by a teacher or aide to use the restroom. Mayor Hosterman opened the public hearing. Chris Studzinski, appellant, President of the Valley Business Park Association and business park owner, said he has a machine shop business and wants the business park to be an industrial park. He does not feel that child based businesses are safe or good for the business park. There have been many traffic accidents in front of the Quarry Lane School and it is not just because of the children present. The park's purpose and intent is to allow a combination of business and light industrial uses, professional offices, and neighborhood commercial activities on the property. Their CC&R's are built around this and if this declaration is more restrictive than the other, the more restrictive shall apply. Therefore, they are trying to uphold their CC&R's. He presented pictures of businesses behind them, said he employs over 20 people in his business, and while it is late in the evening, he asked to be able to convey his position. He noted a small boy was killed last year by a forklift in Woodland on a Sunday, and he has interviewed other businesses and owners in the park who only have a concern if the business moved in next to them, and asked that the City uphold the Park's CC&R's. Tom Stone, Vice President, Valley Business Park, stated they did a lot of careful review on the case and made their decision and stand by it. He said this particular unit is in the back of the building along an alleyway that runs along where UPS, FedEx and the mailman travel quite often and quickly. Another concern is there is a cell phone tower that wants to go in, and if this business goes in, the cell tower does City Council Minutes Page 16 of 18 August 16,2011