Staff Report
PREPARED BY: SEAN MULLIN, AICP
Associate Planner
Reviewed by: Town Manager, Town Attorney, Community Development Department Director, and
Planning Manager
110 E. Main Street Los Gatos, CA 95030 ● 408-354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 08/07/2018
ITEM NO: 14
DATE: AUGUST 1, 2018
TO: MAYOR AND TOWN COUNCIL
FROM: LAUREL PREVETTI, TOWN MANAGER
SUBJECT: MINOR DEVELOPMENT IN AN HISTORIC DISTRICT APPLICATIONS HS-18-018
AND HS-18-031. PROJECT LOCATION: 223 MASSOL AVENUE. APPELLANT:
TYLER ATKINSON, ESQ. PROPERTY OWNER/APPLICANT: VLADIMIR
KANEVSKY.
CONSIDER AN APPEAL OF A PLANNING COMMISSION DECISION
APPROVING A REQUEST FOR EXTERIOR ALTERATIONS AND AN ADDITION
TO A NON-CONTRIBUTING SINGLE-FAMILY RESIDENCE (HS-18-018); AND
AN APPEAL OF A PLANNING COMMISSION DECISION APPROVING A
REQUEST FOR AN ADDITION TO A RESIDENTIAL ACCESSORY STRUCTURE
LESS THAN 450 SQUARE FEET WHICH IS VISIBLE FROM THE STREET
(HS-18-031) ON PROPERTY LOCATED IN THE ALMOND GROVE HISTORIC
DISTRICT ZONED R1-D:LHP. APN 510-16-020.
RECOMMENDATION:
Adopt resolutions denying an appeal of a Planning Commission decision approving Minor
Development in an Historic District applications HS-18-018 and HS-18-031 (Attachments 6 and 9).
BACKGROUND:
The subject property is located on the west side of Massol Avenue (Attachment 1, Exhibit 1)
and is developed with a two-story, single-family residence (with an attic) and a detached
garage. The gross lot area is 8,730 square feet with an average slope of 15.5 percent. When
adjusted for slope, the net lot area is 6,975 square feet. The immediate neighborhood has
one-, two-, and three-story residences.
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BACKGROUND (Continued):
On December 12, 2017, the Historic Preservation Committee (HPC) recommended approval to
the Director of Community Development of a Minor Residential Development application (MR-
17-018) for a previously proposed project. On February 7, 2018, the Notice of Pending
Approval for the application was mailed to surrounding property owners and tenants as
required by the Town Code. Objections to the pending approval were received from an
adjacent neighbor on February 20, 2018 (Attachment 1, Exhibit 11).
In response to the objections, revised proposals were submitted under separate applications.
The applicant proposed exterior alterations and an addition to the main residence (HS-18-018)
and construction of an addition to the detached garage (HS -18-031).
At its April 25, 2018 hearing, the HPC approved both applications (Attachment 1, Exhibits 4
through 7). The applicant withdrew the Minor Residential Development application
(MR-17-018) for the previously proposed project on May 15, 2018 (Attachment 1, Exhibit 12).
On May 7, 2018, the decisions of the HPC were appealed to the Planning Commission by Tyler
Atkinson, Esquire, on behalf of James McManis and Sara Wigh, owners of the 216 Glen Ridge
Avenue property (Attachment 1, Exhibit 8). At its meeting of June 13, 2018, the Planning
Commission denied the appeals of both applications, upholding the decision of the HPC to
approve the applications. The decisions of the Planning Commission were appealed on June 25,
2018 (Attachment 5).
Pursuant to Town Code Section 29.20.280, the appeal must be heard within 56 days of the
Planning Commission hearing and in this case, by August 20, 2018. The Council must at least
open the public hearing for the item, but may continue the matter to a date certain if the
Council does not complete its work on the item.
If the Council determines that the appeal should be granted and that th e Planning
Commission's decision should be reversed or modified, the Council must make one or more of
the following findings, in accordance with Town Code Section 29.20.300:
1. There was error or abuse of discretion on the part of the Planning Commission; or
2. New information was submitted to the Council during the appeal process that was not
readily and reasonably available for submission to the Commission; or
3. An issue or policy over which the Commission did not have discretion to modify or
address, but which is vested in the Council for modification or decision.
This Code section also states that if the only or predominant reason for modifying or reversing
the decision of the Planning Commission is the availability of new information as defined in
item 2 above, it is the policy of the Town that the application will be returned to the
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BACKGROUND (Continued):
Planning Commission for review in light of the new information unless the new information has
minimal effect on the application. To support the finding(s), the Council must also identify
specific facts for incorporation into the resolutions (Attachments 7 and 10 if remanding to the
Planning Commission or Attachments 8 and 11 if granting the appeal).
DISCUSSION:
A. Project Summary
Minor Development in an Historic District
Approval of a Minor Development in an Historic District application is required for exterior
alterations to a residence within an historic district. Approval of a Minor Development in an
Historic District application is also required for additions to residential accessory structures
that are visible from the street.
Main Residence (HS-18-018)
Application HS-18-018 has a reduced scope compared to the previously proposed Minor
Residential Development application (MR-17-018). Correspondence from the applicant
(Attachment 1, Exhibit 10) indicates that this revised plan is an effort to accomplish their
goals for the residence while addressing the objections received from the neighbor. The
revisions include reducing the size and height of the addition and eliminating windows from
the dormer on the south elevation, facing the objecting neighbor’s property. Unlike the
previously proposed project, the size of the revised proposal does not require approval of a
Minor Residential Development application; however, because the property is located in an
historic district, the revised proposal does require approval of a Minor Development in an
Historic District application because it includes exterior alterations to the residence.
The proposal includes a 99-square foot addition to the existing attic. The addition would be
accomplished by increasing the roof pitch and introducing dormers on either side of the
roof ridge. Windows would be located on the north facing dormer only. In addition, the
applicant proposes to change window and door locations and sizes on the front, side, and
rear elevations. Two bay elements would be eliminated, while new box bays would be
introduced to the side elevations. An original window on the front elevation would be
replaced in kind to match the existing window, and a new front porch with a standing-seam
metal roof would be introduced.
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DISCUSSION (Continued):
The HPC approved this application on April 25, 2018 (Attachment 1, Exhibits 4 and 6), with
the following conditions:
1. Add three non-functional vents to the dormer on the south elevation; and
2. Include three windows on the dormer on the north elevation .
The applicant incorporated these revisions into the approved project plans that are
attached to this Staff Report (Attachment 13).
Detached Garage (HS-18-031)
Application HS-18-031 proposes an addition of 350 square feet to an existing,
nonconforming 255-square foot detached garage that is visible from the street. The
existing garage is located east of the residence, partially extending over the southern
property line. The proposed addition would be constructed on the east and north
elevations of the existing garage. The southern portion of the addition would b e located
along the south property line, extending the nonconforming setback of the existing building,
as allowed under Section 29.10.245 of the Town Code. The proposed project would include
350 square feet of additional garage area, a new exterior stairway covered with an awning
providing access to the residence, and a new deck area above the garage. All windows and
exterior materials are proposed to match those on the existing garage. The HPC reviewed
and approved this application on April 25, 2018 (Attachment 1, Exhibit 5 and 7), with the
following conditions:
1. Revise the garage roof to a hip roof with a pitch matching that of the main residence;
2. Provide full details of the proposed railing; and
3. Match the awning covering the stairway to the approved standing seam metal roof on
the porch of the residence.
The applicant incorporated these revisions into the approved project plans attached to this
Staff Report (Attachment 14).
B. Planning Commission
On June 13, 2018, the Planning Commission considered an appeal of the decisions of the
HPC approving both Minor Development in an Historic District applications (HS-18-018 and
HS-18-031). After opening the public hearing and considering testimony from the appellant
and applicant, the Commission denied the appeal with a 7-0 vote, upholding the decisions
of the HPC. The verbatim minutes are included as Attachment 3. In its decision, the
Commission determined that the projects were exempt from the California Environmental
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DISCUSSION (Continued):
Quality Act (CEQA); complied with the Residential Design Guidelines; and met the required
Standards of Review for evaluation of Minor Development in an Historic District
applications.
C. Appeal to the Town Council
On June 25, 2018, the decisions of the Planning Commission were appealed to the Town
Council by Tyler Atkinson, Esquire, on behalf of James McManis and Sara Wigh, owners of
the adjacent 216 Glen Ridge Avenue property (Attachment 4). The applicant submitted a
written response to this appeal, which is included as Attachment 5. The reasons for the
appeal are summarized below, along with staff’s responses in italic font.
1. The applicant is asking the Council to approve a project which encroaches on neighbors’
property. It has been suggested by staff that the new construction will only occur on
the applicants’ side of the property line. That is questionable justification at best, but
the submitted plans show it is also a false statement. The plans show the proposed
garage roof extends over the Trantham House property. At the HPC meeting, staff
suggested that encroachment is a “civil matter.” Nothing could be further from the
truth and adopting that view would be (respectfully) an abdication of duty by the Town
Council, which is to solve problems, not make them. Although staff may take comfort in
condition 13 of the proposed Conditions of Approval (“any applicant who receives a
permit or entitlement from the Town shall defend, indemnify, and hold harmless the
Town and its officials in any action brought by a third party to overturn, set aside, or
void the permit or entitlement”), nobody is ever benefitted by litigation, especially
when it may be avoided.
The project plans indicate that a portion of the existing garage is located on neighboring
properties, including the appellant’s. This building is nonconforming and subject to
Article I, Division 5 of Chapter 29 (Zoning Regulations) of the Town Code regarding
Nonconforming Buildings, Lots, and Uses. The project plans indicate that the
nonconforming garage would remain, including the portions encroaching on the
neighboring properties. The proposed addition would be constructed on the east and
north elevations of the existing garage. The additions would be located on the
applicant’s property and would not encroach onto either of the neighboring properties.
The eastern portion of the addition would be located near the property line with shallow
eaves extending no further than the property line, extending the nonconforming setback
of the existing building, as allowed under Section 29.10.245 of the Town Code. The
project plans include a new roof on the existing garage, matching the hipped roof form
and pitch of the main residence as directed by the HPC. This new roof would include
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DISCUSSION (Continued):
approximately three-inch eaves that would be shallower than the existing 10-inch eaves,
thus reducing the extent of their encroachment on the neighboring properties.
2. Perhaps the most troubling aspect of this application however is the pattern of deceit
on the applicants’ part, starting with their failure to do the “strongly recommended”
community outreach, the false claims they had tried to do so, their addition of an
unapproved balcony which was only removed after it was brought to the attention of
the Town, angry and misleading emails and statements throughout this process blaming
others for their own shortcomings, work on the property without a permit (showing
disdain for the Town and its rules), evasive responses to efforts by Town officials to
inspect the construction site, an apparent indifference to the encroachments of two
neighboring properties (coupled with the preposterous claim that the only construction
would be on applicants’ side of the property line), and their refusal to allow appellants’
counsel to inspect the property to verify various “promises” made in the course of these
proceedings.
The appellant brings up several points of contention related to the projects and
applicant:
a. Applicant’s failure to do the “strongly recommended” community outreach:
Regarding outreach to neighbors by the applicant, staff recommended that the
applicant contact neighbors to present their proposed projects and receive feedback.
Involving neighbors during the planning process is strongly encouraged by the
Residential Design Guidelines (page 5); however, it is a recommendation that is not
achievable or verifiable in all instances, and would not justify delay of an application
as it is not required.
b. Addition of an unapproved balcony:
The appellant is referencing a previous Minor Residential Development application
(MR-17-018) that was recommended for approval to the Director of Community
Development by the HPC on December 13, 2017. On May 15, 2018, the applicant
withdrew the previous application (Attachment 1, Exhibit 12), and it is not the
subject of this appeal. The current application (HS-18-018) does not include a
balcony.
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DISCUSSION (Continued):
c. Angry and misleading emails:
The nature of communications between the appellant and the applicant are not
germane to this appeal.
d. Work on property without a permit and evasive responses to Town Officials to
inspect the construction site:
The inspection history of a separate building permit is not the subject of this appeal.
A building permit for foundation repair was issued on January 12, 2018. The scope of
this permit was the replacement of the existing foundation and attaching the
existing building to the new foundation. Adherence to the approved plans is verified
through the Town’s Building inspection process.
e. Indifference to encroachment on neighboring properties:
Please see the response to item #1.
f. Refusal to allow appellants’ counsel to inspect the property:
Private property owners are not required to allow public access to their property.
The proposed plans include a maximum height of 28 feet, which will be verified
during the Town’s Building inspection process.
PUBLIC COMMENTS:
Written notice of the Town Council hearing was sent to property owners and tenants within
300 feet of the subject property. No public comments have been received as of the writing of
this report.
CONCLUSION:
On April 25, 2018, the HPC reviewed and approved both applications for Minor Development in
an Historic District. Under appeal, both applications were reviewed and approved by the
Planning Commission on June 13, 2018. In its decisions, the HPC and Planning Commission
considered the compatibility of the architectural style, design, arrangement, texture, materials,
color, and any other pertinent factors identified in the Residential Design Guidelines with the
neighborhood and Almond Grove Historic District. The application for the modifications to the
residence includes several modifications to the previously proposed Minor Residential
Development application (MR-17-018) in an effort to address the concerns of the appellant.
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CONCLUSION (Continued):
For the reasons stated in this report, it is recommended that the Town Council adopt
resolutions denying the appeal and approving the applications with the required Findings and
Standards for Review, and Recommended Conditions of Approval (Attachment 6, Exhibit A and
B; and Attachment 9, Exhibit A and B)..
ALTERNATIVES
When considering the alternatives, please note that the Town Council may act independently
on each application. Separate resolutions have been prepared for independent action on each
application (Attachments 6 through 11).
1. Adopt a resolution(s) (Attachment 7 and/or 10) to grant the appeal and remand the
application(s) to the Planning Commission with specific direction, determining that the
Planning Commission's decision should be reversed or modified, and finding one or
more of the following, in accordance with Town Code Section 29.20.300:
a. There was error or abuse of discretion on the part of the Planning Commission;
b. New information was submitted to the Council during the appeal process that was
not readily and reasonably available for submission to the Commission; or
c. An issue or policy over which the Commission did not have discretion to modify or
address, but which is vested in the Council for modification or decision .
2. Adopt a resolution(s) granting the appeal and denying the application(s) (Attachment 8
and/or 11); or
3. Continue the application(s) to a date certain with specific direction.
Attachments:
1. June 13, 2018 Planning Commission Staff Report (with Exhibits 1-17) (90 pages)
2. June 13, 2018 Planning Commission Desk Item Report (with Exhibit 18) (20 pages)
3. June 13, 2018 Planning Commission Verbatim Minutes (35 pages)
4. Appeal of the Planning Commission decision received June 25, 2018 (50 pages)
5. Applicant’s response to appeal, received July 12, 2018 (three pages)
6. Draft Resolution to deny the appeal and approve the project (HS-18-018, residence)
(includes Exhibit A, Findings and Exhibit B, Conditions of Approval)
7. Draft Resolution to grant the appeal and remand the project (HS-18-018, residence) to the
Planning Commission
8. Draft Resolution to grant the appeal and deny the project (HS-18-018, residence)
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9. Draft Resolution to deny the appeal and approve the project (HS -18-031, garage) (includes
Exhibit A, Findings and Exhibit B, Conditions of Approval)
10. Draft Resolution to grant the appeal and remand the project (HS-18-031, garage) to the
Planning Commission
11. Draft Resolution to grant the appeal and deny the project (HS -18-031, garage)
12. Public comment received by 11:00 a.m., August 2, 2018
13. Development Plans HS-18-018 (residence), received May 15, 2018 (nine sheets)
14. Development Plans HS-18-031 (garage), received May 25, 2018 (four sheets)
Distribution:
Vladimir Kanevsky, 223 Massol Avenue, Los Gatos, CA 95030
Tyler Atkinson, Esq., 50 West San Fernando Street, 10th Floor, San Jose, CA 95113