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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 Page 1 of l4 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 Page 2 of 14 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 Page 3 of 14 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 Page 4 of 14 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 P1ge 5 of 14 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 Page 6 of 14 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 Page 8 of 14 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 Page 9 of 14 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 Page 10 of 14 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 Page 14 of 14