2008-007-Making Findings Regarding Approval Of A Request To Change The Zone From R-1:8 Pd And Demolish A Single Family Residence Apn: 523-25-020 And 523-25-036 Planned Development Application Pd-05-0RESOLUTION N0.2008-007
RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS MAKING
FINDINGS REGARDING APPROVAL OF A REQUEST TO CHANGE THE ZONE
FROM R-1:8 TO R-1:8 PD AND TO DEMOLISH A SINGLE FAMILY RESIDENCE
APN: 523-25-020 AND 523-25-036
PLANNED DEVELOPMENT APPLICATION PD-05-02
ARCHITECTURE AND SITE APPLICATION 5-06-050
NEGATIVE DECLARATION ND-07-07
PROPERTY LOCATION: 15881 LINDA AVENUE AND 15950 STEPHENIE LANE
WHEREAS:
A. This matter came before Council for public hearing on December 18, 2007, and
was regularly noticed in conformance with State and Town law.
B. Council received testimony and documentary evidence from the applicant and all
interested persons who wished to testify or submit documents. Council considered all testimony and
materials submitted, including the record of the Planning Commission proceedings :and the packet
of material contained in the Council Agenda Report dated December 11, 2007, along with any and
all subsequent reports and materials prepared concerning these .applications.
C. On July 11, 2007, August 22, 2007, September 26, 2007, and October 10, 2007, the
Planning Commission considered the subject applications for Planned Development and Architecture
and Site approval for a seven (7) lot subdivision of single-family residences located adjacent to Ross
Creek. The public hearings followed a study session on the project held by the Planning
Commission on .July 12, 2006. The Commission voted to approve the Architecture and Site
application and recommended approval of the Planned Development application.
D. Council finds as follows:
i. That the proposed zone change is consistent with the General Plan. The General
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Plan designates the project site as "R-1, Low Density ," allowing for residential densities of zero (0)
to five (5) units per net acre. The site is 1.9 acres (net) allowing up to ten (10) dwelling units.
Existing zoning would allow the proposed single-family residential use, and the proposed density
of 3.7 units per. acre would be consistent with the existing zoning. The applicant seeks approval of
a zone change from R-1:8 to R-1:8PD for a seven (7) lot subdivision. The Planned Development
application would limit the project to seven (7) units and would allow the project design to vary from
existing zoning code requirements, specifically allowing one (1) nonconforming side setback and a
narrower street than normally permitted by code. The project also complies with General Plan Land
Use Element Policy L.P.2.2 regarding the balancing the size and number of units to achieve
appropriate intensity of new development; Policy L.P.3.5 regarding consistency of proposed type and
intensity of land use with the immediate neighborhood, which is also residential with lots similarly
sized; Policy L.P.4.5 regarding maintaining the Town's capacity to meet its housing needs as
identified in the Housing Element of the General Plan; Conservation Element Policy C.P.2.14
regarding protecting riparian corridors though the use of restrictive setbacks, as are present in this
project; Policy C.P.4.3 regarding preservation of native habitat, which is a feature of this project in
the riparian corridor. EVIDENCE: Initial Study and Mitigated Negative Declaration dated
March 2007 ("IS/MND"), Town Council Staff Report ("TCSR") dated December 11, 2007,
Attachment 21, page 12; Staff Report to the Planning Commission (~~PCSR") dated July 5,
2007, page 8,12/11/07 TCSR Attachment 3; Letter of .Justification from McElroy Properties
received by Town Planning Department on July 3, 2007, Exhibit A to 7/5/07 PCSR,12/11/07
TCSR, Attachment 3; Testimony of Sandy Baily to Planning Commission on July 11, 2007,
12/11/07 TCSR, Attachment 8, 4:12-6:13.
ii. As required by the Town's Traffic Policy for a Community Benefit, the
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project's benefit to the community outweighs traffic impacts associated with the project. A traffic
study was prepared by the applicant based on a previously considered nine (9) lot alternative. That
study concluded that the trips generated were relatively small and would have no impact on nearby
intersections or roadways. The traffic impact for a project with greater density than the current seven
(7) unit project is considered minor based on the Town's Traffic Policy. Nevertheless, the project
includes improvements at the intersection of Linda Avenue and Blossom Hill Road, including a left
turn pocket to turn onto Linda Avenue and Old Blossom Hill Road. The project would help restore
the ecosystem of Ross Creek by removing invasive nonnative plants and replacing them with native
plant species. The project would increase housing stock in the Town and would contribute to the
Town's Below Market Price Housing Fund. EVIDENCE: 12/11/07 TCSR, p. 4-5; Testimony of
Terry McElroy to Planning Commission on July 12, 2006,12/11/07 TCSR, Attachment 2, 8:16-
20; Letter of Justification from McElroy Properties received by Town Planning Department
on July 3, 2007, Exhibit A to 7/5/07 PCSR,12/11/07 TCSR, Attachment 3.
iii. As required by the Town's Infill Policy for a Community Benefit:
1. This infill project contributes to the further development of the
surrounding neighborhood in that the density of proposed development is consistent with the existing
development in the surrounding neighborhood, the project will improve the intersection of Linda
Avenue and Blossom Hill Road, and the project will restore a portion of Ross Creek. EVIDENCE:
See findings and evidence cited in sections i and ii above.
2. This in-fill project is designed in context with the neighborhood and
surrounding structures, provides comparable lot sizes and open .space, considers garage placement,
setbacks and density, provides adequate circulation and on-street parking and, therefore, blends
rather than competes with the established character of the area. EVIDENCE: See findings and
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evidence cited in sections i and ii above.
3. Finding regarding corridor lots not applicable to this project which does not
feature corridor lots.
4. This Planned Development is proposed to accomplish objects #1 and #2
above. EVIDENCE: See findings and evidence cited in sections i and ii above.
5. This in-fill project demonstrates a strong community benefit as demonstrated
in section ii above.
iii. As required by section 29.10.09030(e) of the Town Code regarding the demolition
of a single family residence:
1. Demolition of the existing structure will not adversely affect the Town's
housing stock because it will be replaced by seven (7) single family units. EVIDENCE: 12/11/07
TCSR, p. 2.
2. There is no evidence that structure proposed for demolition is structurally or
architecturally significant.
3. The property owner has no desire to maintain the structure, the removal of
which is necessary to facilitate this seven (7) residential unit project. EVIDENCE: Passim.
4. There is no evidence that the economic utility of the structure proposed for
demolition exceeds that of the seven (7) residential units that would be added by the project.
iv. The IS/MND is adequate for the project. Project opponents argued that the IS/MND
failed to properly address issues regarding potential project impacts on the project site, specifically
in regards to Ross Creek and its associated riparian area. These issues, including aesthetics, biological
resources, hydrology and waterquality, were addressed by experts in the development ofthe IS/MND.
Opposing opinions of persons purported to be experts was not presented to the Town until the third
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meeting of the Commission on the project on August 22, .2007, when David Crites, presented the
Commission with copies of a document dated August 22, 2007, entitled: "Conservation Ecological
Evaluation: Initial Study for 15881 Linda Court & 15950 Stephenie Lane, Los Gatos, CA Along Ross
Creek, tributary to Guadalupe River," authored by Verna Jigour of Verna Jigour Associates, [12/11/07
TCSR, Attachment 11] ("Jigour 1 ") and referred to as a "draft." An evaluation and response to
Jigour 1 by the Town's expert Geier and Geier was submitted to the Town on October 5, 2007
[12/11/07 TCSR, Attachment 14] ("Geier Response"). On December 17, 2007, the day of the
hearing before Council, a second document apparently prepared by Verna Jigour datedDecember 17,
2007, entitled: "December Follow-up Memorandum: Conservation Ecological Evaluation: Initial
Study for 15881 Linda Court & 15950 Stephenie Lane, Los Gatos, CA Along Ross Creek, tributary
to Guadalupe River" [submitted immediately prior to hearing] ("Jigour 2") was submitted to the
Town. Additionally,. on or about December 5, 2007, members of Council received a document
authored by Lawrence Johmann, President of the Guadalupe-Coyote Resource Conservation District,
dated November 30, 2007, entitled: "Ross Creek at Stephanie Lane & Linda Ave" [12/11/07 TCSR,
Attachment 24] ("Johmann Report"). As explained below, Council finds that Jigour 1 and 2 and the
Johmann Report do not constitute substantial evidence in support of a fair argument that the project
may have a significant effect on the environment.
1. Jigour 1 and 2. These documents express opinions regarding the following
potential negative impacts of the project: aesthetics, primarily the visual impacts resulting from the
removal of non-native trees from the riparian area; biological resources, primarily concerning
downstream Guadalupe River steelhead population, loss of riparian habitats and California Quail;
hydrology and water quality, primarily the elevation of the "top of bank;" and land use planning under
the Town Code. [Jigour 1 and 2, passim] Jigour concludes that "...the Initial Study prepared for
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this project insufficiently addresses numerous direct and cumulative impacts of the proposed project
and thus fails to provide mitigation which will reduce those impacts to a level less than significant."
[Jigour 2, p. 1]
a. Council finds that Jigour is not qualified as an expert in the areas on
which she opines in Jigour 1 and 2. Both documents refer to Jigour as a "ISA Certified Arborist."
[Jigour 1 and 2, coversheets] Neither document contains a statement of Jigour's experience, skill,
training, professional certification or other qualifications to opine on any subject other than the
condition of trees. The condition of trees on site is the one subject Jigour does not considei[Jigour
1, p. 1]. Jigour 1 and 2 are not signed.
b. Notwithstanding Jigour's lack qualifications to give the opinions
contained in Jigour 1 and 2, Council further finds that Jigour's opinions and conclusions are not
supported by facts. Jigour's description of the characteristics of Ross Creek is erroneous and
nonsensical. For example, Jigour concludes by the presence of a single Blue Oak tree that Ross Creek
was originally intermittent rather than perennial. [Jigour 1, p. 2] Based solely on the fact of a low
flow in August 2007, the import of which Jigour fails to explain, Jigour concludes that the perennial
nature of Ross Creek is solely attributable to urban runoff. [Jigour 1, p. 2] Jigour then attributes
the existence of native willow trees to increased water flows resulting from urban runoff. [Jigour 1,
p. 2] Jigour next speculates that these native trees might not have been present in their current
location absent some form or location of development. [Jigour 1, p. 2] Jigour expresses surprise at
the clarity of water in Ross Creek despite low water flows [Jigour 1, p. 2], but fails to consider the
possibility that sediment disruption is reduced in periods of low flow. [9/14/07 Garner ltr., Exh. CC
to 10/5/07 PCSR, 12/11/07 TCSR, Attachment 14, p. 6] Jigour concludes that the top of bank
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determination is erroneous based solely on her determination that it crosses a topographical contour
at the northeast corner of the project plan. [Jigour 1, p. 3] Jigour fails to explain the significance of
the topographical contour or her basis for concluding that a line of demarcation cannot cross a
contour. Jigour concludes that proposed bioswales would be located in an area "that distinctly
appears to be a flood terrace," [Jigour 1, p. 3] but does not explain the facts that support this
determination: Jigour never acknowledges in Jigour 2 that the bioswales are proposed to be relocated
entirely outside of the riparian corridor. [12/11/07 TCSR, p. 5] Jigour concludes that the removal of
native willow trees in the riparian corridor will have a negative aesthetic impact by removing
screening, thus making the project visible to neighboring properties. [Jigour 1, p. 5; Jigour 2, p. 1]
Jigour fails to acknowledge in Jigour 2 the Linda Court Riparian Enhancement Plan, prepared by H.T.
Harvey & Associates and incorporated into the project [10/5/07 PCSR, Ex. DD, 12/11/07 TCSR,
Attachment 14] ("Harvey Report"), calls for the retention of seven (7) native trees in the riparian
corridor [Harvey Report, p. 4,], and screening value of 23 replacement trees that must be planted.
[Gier Response, p. 2] Instead, Jigour dismisses the Riparian Enhancement Plan for its failure to
include a "visual analysis." [Jigour 2, p. 1] Jigour fails to cite any relevant aesthetic standard
adopted by the Town requiring either a visual analysis, the nature of which is not explained by Jigour,
or a requirement that projects be invisible to any neighboring property. In fact, the Town has no such
standard that is applicable to this project. Lastly, Jigour fails to acknowledge Mitigation Measure #1
specifically designed to minimize project visibility. [Geier Response, p. 3] .Jigour concludes that
the project will contribute to cumulative water impacts to the Guadalupe River steelhead population
based solely on her conclusion that the project will result in a reduction of the riparian canopy causing
a loss of its cooling effects on stream flows. [Jigour 1, p. 6] That conclusion ignores the effects of
Page 7 of 14
Ross Creek conditions upstream and downstream from the project site; in particular, that any shading
and cooling effects of surface waters at the project site are soon lost since the downstream end of the
vegetated portion of Ross Creek is 3.7 miles from Guadalupe River, resulting in a significant area of
solar heating. [Geier Response, p. 2] Furthermore, the conclusion ignores Riparian Enhancement
Plan calling for the retention of seven (7) native willow trees and the planting of replacement native
vegetation, all of which contribute to the riparian canopy. [Geier Response, p. 2] Jigour erroneously
concludes that mitigation is improperly deferred.[Jigour 1, p. 5] In fact, the IS/MND identifies
significant environmental impacts for six (6) impact categories as revealed through the performance
of detailed studies conducted during the environmental review process. [Geier Response, p. 5 - 6]
No required studies were deferred. [Id.] In response to these potentially significant impacts, the
IS/MND identifies and requires the implementation of mitigation measures for each of these impacts
before, during and/or after project development. [Id.] Jigour concludes without factual foundation
that the project will potentially impact the movement of California quail through the Ross Creek
riparian corridor. [Jigour 1, p. 8] In reaching this conclusion, Jigour fails to demonstrate that the
project site currently has a significant function as a wildlife movement corridor or substantial breeding
habitat for significant wildlife species. [Geier Response, p. 2] Jigour fails to acknowledge that the
riparian corridor will be retained and restored through the removal of nonnative vegetation and the
planting of native vegetation. [Id.]
c. The conclusions reached in Jigour 1 and 2 are in the nature of advocacy
regarding ultimate policy questions rather than scientific descriptions of site conditions and potential
project impacts. For example, the Executive Summary in Jigour 1 concludes: "Even without time to
fully flesh out this report, it is clear that the Town of Los Gatos will be seriously in error and in
violation of the California Environmental Quality Act if it proceeds to grant a Mitigated Negative
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Declaration to the project as proposed." [Jigour 1, p. l] In the Limits of Assignment section of Jigour
1, Jigour states that her work is limited as follows: "...I've had only a week and a half to complete
this. assignment and was not able to devote all my time to it." [Jigour 1, p. 2] In the Overview section
of Jigour 1, Jigour essentially admits her bias as follows: "As one who has appraised the potential for
steelhead restoration at a regional scale, and with my background and expertise in watershed-scale
habitat. restoration plans, I cannot help 'but view open spaces along riparian corridors. from that
perspective. My initial thought was that this site as a whole would be ideal for conservation and
habitat restoration. Having now visited the site twice ... I'm even more convinced that the option
should be considered ...." [Jigour 1, p. 2] Later in the same section Jigour again shows bias as
follows: "... it has been my deep disappointment to find few clients sincerely interested in such
proactively responsible planning and design approaches. Site planning is typically done by engineers
or architects with little or no thought to relationships with affected ecosystems. Site design
motivations have tended to be purely monetary and concessions to ecological issues are offered only
in response to regulatory requirements." [Jigour 1, p. 4] In her Conclusions in Jigour 1, Jigour
states: "...the proposed project fails miserable [ sic] with respect to the insensitivity of its site
planning to the Ross Creek riparian system and the Guadalupe River watershed. The Town cannot,
in .good conscience, approve the change of zoning based on design excellence and certainly cannot
approve a Mitigated Negative Declaration for the proposed project." [Jigour 1, p.10] The Executive
Summary in Jigour 2 concludes that the Town "must either deny the requested Mitigated Negative
Declaration and zone change that will permit this development, or initiate an Environmental Impact
Report." [Jigour 2, p. 1] In the Assgnment/Introduction section of Jigour 2, Jigour states: "I respond
herein ... because I am seriously concerned about the Town's stance on this project, with respect to
the site and impacted ecosystems and also the truly alarming precedent it sets for other agencies now
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charged with implementing the Guidelines & Standards for Land Use Near Streams." [Id.] In a
section IV:b. of Jigour 2, Jigour states: "My observation is that public recourse agencies get bullied
into complying with what project proponents want -usually there is no one around to stand up for the
resources and the pressure put on them is so overwhelming that they must choose their battles
carefully." [Jigour 2, p. 3] Later in the same section regarding riparian buffers, Jigour asks: "Does
the Town of Los Gatos want to end up looking like the most urbanized part of this valley in 50
years??? [sic]" [Id.] In section IV.e. of Jigour 2, in the context of the removal of unhealthy trees as
expressly permitted in the Town Tree Protection Ordinance (Town Code section 29.10.0990) Jigour
offers her own interpretation of the ordinance stating: "It should be remembered that the purpose of
this ordinance is tree conservation not tree culling." [Jigour 2, p. 5] Later in the same section, Jigour
argues the position of project opponents as follows: "If the current site plan were modified by simply
eliminating the houses that back up to the creek (1 to 4) and retained the houses facing the creek (5
to 7) the grading required for houses 1 to 4 would be eliminated, the entire `garden'/retaining wall
along the creek would be eliminated, and most of the trees slated for removal could be retained."
[Jigour 2, p. 6]
2. The Johmann Report. The Johmann Report includes information on the history
and configuration of Ross Creek in general, hydrologic analysis of the Ross Creek stream gauges,
cross section data, and geomorphic evaluation of the stream conditions on the project site. It also
includes observations regarding the state and nature of Ross Creek in the vicinity of the project site,
the general contributions of riparian habitat wildlife and the preservation of water quality, and the
roles of creek and riparian setbacks. It concludes that the "top of bank" should be set at the 100 year
flood line elevation [Johmann Report, p. 13], that the riparian setbacks are inadequate when
measured from that elevation [Id.], and that the proposed development at the Building 1 Site show
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a bioswale and retaining wall within the flood area. [Id.]
a. Council finds that Johmann is not qualified as an expert in the areas on
which he -opines in the Johmann Report. This finding is not intended to reflect on Johmann's
qualifications to serve as an officer of the Guadalupe-Coyote Resource Conservation District, which
are assumed. Johmann signed the Johmann Report as a "P.E."[Johmann Report, p. 15] However,
Johmann's Qualification Information shows that he received degrees in "Manufacturing Engineering
Technology" and "Engineering Management," and that his work experience with professional
associations are in the areas of quality, reliability and manufacturing engineering. [Johmann Report,
p. 16] Johmann's training regarding rivers and streams is limited to a series of workshops and on the
subjects of monitoring, stabilization and restoration, primarily within the singular system of "fluvial
geomorphology." [Id.] Johmann's Qualification Information does not show any license, training or
experience in the areas of hydrology. Additionally, and as discussed below, the Johmann Report fails
to follow commonly accepted hydrological methods of determining stream flows and flood levels.
b. Notwithstanding Johmann'slack qualifications to give opinions on the
subjects of the Johmann Report, Council further finds that Johmann's opinions and conclusions are
not supported by facts. Johmann's approach to determining flood levels is based on a
geomorphological method associated with river and stream restoration projects rather than a
hydrological analysis of current and projected water flow in an existing condition. [12/17/07
Testimony of Kirk R. Wheeler ("Wheeler Testimony")] While the Johmann Report contains
substantial descriptions of existing stream conditions, including the condition of the two relevant
stream gauge conditions, the relevance of these observations to floodplain elevations is unclear in the
report. [Id.] Contrary to what is normally found in a hydrological report prepared by a qualified
professional, the Johmann Report fails to show the location within the project site of cross-sections
Page 11 of 14
used by Johmann, and whether the survey ties to project datum and elevations. [12/17/07 Letter
from Kirk Wheeler to Fletcher Parsons, l2/17/07 TCSR, Attachment 37 ("Wheeler Letter"), p.
1] It is also not clear whether the floodplain elevations and extents were based on cross-section
hydraulics or field indicators. [Id.] Observations made by Johmann relating to biological resources
and riparian habitat does not raise any issues that were not already discussed and addressed in the
preparation of the IS/MND. [12/12/07 Letter from Michael Wood, 12/17/07 TCSR, Attachment
36 ("Wood Letter"), p. 1]
c. Johmann's essential difference with the IS/MND concerns the width
of the riparian setback and the location of "top of bank," each of which constitutes a policy
determination of Council in its application of the Guidelines and Standards for Land Use Near
Streams, adopted by the Town on February 20, 2007 (Resolution 2007-020) ("Guidelines").
Johmann's conclusions in this context constitute advocacy regarding how the Guidelines should be
applied rather than scientifically supported opinions. For example, the Guidelines only recommend
a riparian setback and do not mandate riparian setbacks of any specific width. [Wood Letter, p. 2]
Nevertheless, without factual support or explanation, Johmann concludes that there should be at least
a 25 foot buffer from the outer dripline of the vegetation for passive activities and a 50 foot buffer for
structures. [Johmann Report, p. 9; Wood letter, p. 2] Regarding the top of bank determination, the
Guidelines state that the stream boundary should be "where a majority of normal discharges and
channel forming activities take place." [Johmann Report, p. 13, Wood Letter, p. 2; Wheeler
Testimony] Top of bank for purposes of the project is set according to the standard used by the
California Department of Fish and Game which is the "well defined break in slope associated with
the active low channel." [Wood Letter, p. 2; California Department of Fish and Game Definition
Page 12 of 14
.received August 21, 2007, 12/11/07 TCSR, Attachment 10] This is generally determined to be
below the 100 flood elevation. [Wheeler Testimony] Nevertheless, Johmann concludes that the top
of bank should be set at the 100 year flood elevation, an elevation associated with less common flood
occurrences, based solely on the existence of riparian vegetation in the area. [Johmann Report, p.
9 and 13] Johmann's advocacy is demonstrated in the concluding statement in the Johamann Report:
"Ross Creek neighbors and all concerned citizens should also join together to pressure town officials
and the SCVWD [Santa Clara Valley Water District] to implement projects to restore the degraded,
denuded, channelized segments of the creek to a more natural state for the benefit of all citizens, as
well as wild/aquatic life, in accordance with the SCVWD's `Clean, Safe Creeks and Natural Food
Protection Program,' which property owners have been paying for since 2001." [Johmann Report,
15]
v. The application of the Town's Tree Protection Ordinance regarding the determination
of whether to retain or remove trees is proper and consistent with both the intent of the ordinance and
with past practice. Town Code section 29.10.0990(5), provides that no protected tree shall be
removed in connection with a proposed subdivision unless subject to one of the exceptions permitted
therein. The project requires, among other things, a subdivision of land. Nevertheless, section
29.10.90990(5) is not applicable to this project. The intent of section 29.10.0990(5) is to ensure that
a subdivision application alone does not also permit the removal of protected trees. This prohibition
is necessary to tree protection because the law presumes approval of a subdivision application meeting
minimum zoning requirements. Proposals to remove protected trees in connection with land
development are ripe for determination only when considered in conjunction with detailed land
development applications that include site planning such as building envelopes and architecture. The
provisions of Town Code section 29.10.1000 are engaged to evaluate the necessity for tree removal,
Page 13 of 14
options for avoiding tree removal and replacement options in the context of proposed new
development. This planned development project includes detailed site planning of building
envelopes, architecture, riparian corridor restoration and landscaping. Consequently, the provisions
of section 29.10.1000, and -not section 29.10.0990(5), apply to this project. The Town has
consistently applied the provisions of the Tree Protection Ordinance in this manner in the
administration of planned development applications.
RESOLVED:
That this resolution be incorporated into the record of Council's determination of this
application as the statement of findings regarding the matters contained herein.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of
Los Gatos, California held on the 22°~ day of January, 2008 , by the following vote:
COUNCII, MEMBERS:
AYES: Steve Glickman, Diane McNutt, Joe Pirzynski, and Mike Wasserman
NAYS: Mayor Barbara Spector °`~~
ABSENT:
ABSTAIN: ~~`-i"~ ,
SIGNED- ~CA,v hQ1~['~ ~. ~---~~
MAYOR F THE T WN OF LOS GATOS
LOS G OS, CALIFORNIA
.ATTEST:
CLF~RK ADl1~'iINISTRATOR OF THE TOWN OF LOS GATOS
LOS T CALIFORNIA
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