M09-08-091
MINUTES OF THE TOWN COUNCIL/PARKING
AUTHORITY/REDEVELOPMENT AGENCY
SEPTEMBER 8, 2009
The Town Council of the Town of Los Gatos conducted a Regular Meeting on
Tuesday, September 8, 2009 at 7:00 P.M.
CLOSED SESSION BEGAN AT 6:15 P.M.
TOWN COUNCIL/PARKING AUTHORITY/REDEVELOPMENT AGENCY
MEETING CALLED TO ORDER
ROLL CALL
Present: Mayor Mike Wasserman, Vice Mayor Diane McNutt,
Council Member Joe Pirzynski, Council Member Steve Rice,
Council Member Barbara Spector
Absent: None.
PLEDGE OF ALLEGIANCE/COMMENDATION
Beautification Committee & Adopt-A-Planter Members
• Mayor Mike Wasserman presented a commendation to the Los Gatos
Beautification Committee and the Adopt-A-Planter members for their
community support with the planter program on North Santa Cruz Avenue.
• Ms. Dinga thanked the Town, the community and acknowledged Shirley
Henderson for starting the Adopt-A-Planter program in Town.
• The Beautification Committee and the Adopt-A-Planter members led
the Pledge of Allegiance. The audience was invited to participate.
CLOSED SESSION REPORT
CONFERENCE WITH REAL PROPERTY NEGOTIATOR
(Government Code Section 54956.8)
Property: 20 Dittos Lane (Assessor Parcel Number 529-29-034)
Negotiating parties: Town of Los Gatos
Negotiator: Bud Lortz, Deputy Town Manager
Under Negotiation: Price and terms of payment
Mr. Korb stated that direction was given and no final action was taken.
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TOWN COUNCIL
COUNCIL/TOWN MANAGER REPORTS
Council Matters
There were no Council Matters scheduled for this meeting.
Manager Matters
Mr. Larson
• Commented that the MSNBC Today Show aired the 1 year profile for
Erica Rix, the young girl whose hand was injured in a car accident and
the Good Samaritan and the Los Gatos-Monte Sereno Police
Department who responded quickly to save her life.
• Commented that Erica Rix is gaining some mobility in her hand, fingers
and wrist.
• Commented that the renovation at Town Plaza has begun and that the
area between the redwood trees will have flagstone and the landscaping
contractor who laid the sod last spring will be replacing the sod at no cost
to the Town and will maintain the new sod for six weeks.
• Commented that the grass area of Town Plaza Park will be closed for
several weeks to allow the sod to take root and strengthen before the
rainy season.
• Announced the slurry seal project which was approved by Council at a
prior meeting will be starting on all the major streets in Town, beginning
with Los Gatos Boulevard on September 14th.
• Commented that the slurry seal project will require some road closures
from 9:00 p.m. to 6:00 a.m. and that the public can access information on
the project from the Town's website.
• Invited the public to attend the Town's next Second Saturdays event which
will be held on Saturday, September 12, 2009.
CONSENT ITEMS (TO BE ACTED UPON BY A SINGLE MOTION)
1. Adopt resolution approving the reorganization of territory designated
as West Parr Avenue Right-of-Way, approximately 1.40 acres located
on West Parr Avenue between Capri Drive and Pollard Road; File
#AN09-04. RESOLUTION 2009-083
2. Adopt ordinance amending Town Code, by repealing Chapter 23,
Article I, Section 23.10.035 - "Ball Playing in Streets"
ORDINANCE 2176
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Consent Items - Continued
3. PPW Job No. 09-17 - Storm Drain Rehabilitation Project 461-816-0408
a. Adopt resolution declaring PIPENOLOGY to be the lowest responsible
bidder on the project and award a construction contract in an amount
not to exceed $45,890.00. RESOLUTION 2009-084
b. Authorize staff to execute future change orders to the construction
contract as necessary in an amount up to $5,000.
TOWN COUNCIL/REDEVELOPMENT AGENCY
4. Approve Council/Agency minutes of August 17, 2009
MOTION: Motion by Council Member Joe Pirzynski to
approve Consent Items #1-4.
Seconded by Council Member Steve Rice.
VOTE: Motion passed unanimously.
VERBAL COMMUNICATIONS
Mr. Davis
• Commended Todd Capurso, Director of Parks and Public Works, and his
staff for placing a new crosswalk at George Street near Fisher Middle
School and for painting the crosswalks in front of Los Gatos High School.
• Commended Parks and Public Works on the new and improved design of
Reservoir Road.
• Expressed concerns about harmful dust coming from a cement factory in
the hills above Cupertino.
Mr. Davis received a warning for disrupting the meeting by continuing to speak
after his time expired.
Closed Verbal Communications
Mayor Mike Wasserman
• Invited the community to attend the Town Council Meeting on September
21, 2009 to celebrate Los Gatos Values Youth and Project Cornerstone.
• Stated that Other Business would be heard before the Public Hearing.
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TOWN COUNCIL
OTHER BUSINESS
6. Introduce ordinance amending Section 2.30.295(1) of the Los Gatos
Town Code regarding the general powers and duties of the Town
Manager granting enforcement flexibility during recognized periods of
national, regional, and local economic adversity.
Staff report made by Jessica von Borck, Economic Vitality Manager.
Council Comments
• Questioned how businesses in Town would be informed of the possibility
of flexibility or would it be narrowed to the downtown or specific
promotions.
• Questioned if the ordinance only relates to retail establishments.
• Questioned how staff has presented the signs and music during this
summer’s Second Saturdays events with the current ordinance in effect.
• Requested clarification on what is necessary for the six month ordinance
to be extended.
Ms. von Borck
• Clarified that flexible enforcement should be a Town wide effort and
starting with a specific event such as the Second Saturdays would allow
staff to monitor the effects of flexible enforcement.
• Clarified that the Chamber of Commerce and the Visitors Bureau worked
with businesses downtown on promoting the overall program (Second
Saturdays program) and balloons and signs which are prohibited by the
Town’s current ordinances were allowed for the events as a way to create
a consistent theme along North Santa Cruz Avenue and to entice people
into the stores.
• Commented that prior to the event the Town had partnered with the
Chamber of Commerce to identify specific locations in the downtown area
where the amplified sound would not adversely impact the neighborhoods.
• Commented that staff monitored the success of each event as well as any
complaints about noise.
• Clarified that the Town had received no complaints relating to amplified
music or the event in general.
• Clarified that the use of amplified music, signage, and balloons was
previously presented to Council for the Second Saturdays event.
• Commented on supporting the six month ordinance which would allow
evaluation of the Second Saturdays event and the holiday shopping
season.
• Clarified that the Town Manager would have the authority to trigger the
events that would allow flexibility.
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Other business Item #6 – Continued
Mr. Larson
• Clarified that the next three months will be focused on Second Saturdays
and the holiday shopping season.
• Commented that the goal is to strengthen Los Gatos as an economic
business resource in the valley and to support the Town and its
businesses.
Mr. Korb
• Clarified that the six month ordinance has a self terminating provision and
could only be modified by the adoption of another ordinance.
Mr. Larson
• Commented that staff would be returning with an evaluation from the fall
and holiday shopping season in February or March 2010. Bringing forward
an evaluation in February or March 2010 would allow time to consider a
new ordinance.
• Clarified that the Economic Vitality Manager had discussions with the
Chamber of Commerce and that the Town is pursuing the Second
Saturdays event and the holiday shopping season as the events for Fall
2009.
Ms. von Borck
• Clarified that it is her role as the Economic Vitality Manager to get the
word out to all businesses and that she is partnering with the Chamber of
Commerce and the Visitors Bureau to reach out to the businesses and the
community.
Open Public Comments
Ms. Anderson
• Commented that the businesses and the Chamber of Commerce support
the Second Saturdays program and they would love to see the program
continue.
• Thanked the Town for its support to help promote the downtown
businesses.
• Commented that the business owners have thanked the Town and
Chamber of Commerce for allowing the flexibility and for supporting the
local businesses.
Closed Public Comments
6
Other Business Item #6 – Continued
Council Discussion
• Commented on supporting the alternate ordinance attached to the desk
item.
• Expressed concern about the lack of definitions within the ordinance.
• Questioned if the same considerations could be accomplished without
having to amend an ordinance.
• Commented that the codes were put into place to reflect the values of the
community.
• Expressed concerns about other businesses that are not in the downtown
area and how they would be informed and able to participate in future
events.
• Would like to see a process that would allow the flexibility at events
without having to adopt or amend an ordinance.
• Questioned the process to address noise complaints if they were to arise.
• Questioned if the new ordinance was adopted, would staff evaluate the
process and determine if fine tuning may be needed to existing current
ordinances.
Mr. Korb
• Clarified that the Town Manager would get discretion to deal with
enforcement if the ordinance is adopted.
• Commented that the only way to affect a law is by adopting law.
• Commented that he would like to see an ordinance adopted to grant some
level of authority rather than see the Town Manager exercising unbridled
authority by approving programs that are not in compliance with Town
Codes.
Mayor Mike Wasserman directed Jackie Rose, Clerk Administrator to waive the
reading of the ordinance.
MOTION: Motion by Vice Mayor Diane McNutt to waive the reading
of the ordinance.
Seconded by Council Member Joe Pirzynski.
VOTE: Motion passed unanimously.
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Other Business Item #6 - Continued
MOTION: Motion by Vice Mayor Diane McNutt to introduce
ordinance granting the Town Manager temporary discretion
regarding enforcement of business related provisions of the
Town Code.
Seconded by Council Member Joe Pirzynski.
VOTE: Motion passed unanimously.
Mayor Mike Wasserman directed Jackie Rose, Clerk Administrator to publish
the ordinance.
Mr. Larson
• Commented that staff has clearly heard Council concerns and this
ordinance will allow staff to set some standards in advance for events like
Second Saturdays and the holiday shopping season.
• Commented that staff will be very judicious on the flexibility and will report
back to Council in early 2010.
• Reminded Council that they have the option of requesting an item be
agendized if questions arise relating to how the ordinance is being
pursued.
PUBLIC HEARINGS
5. Consider an appeal of a Planning Commission decision denying a
request for a two lot subdivision on property zoned HR-2½. No
significant environmental impacts have been identified as a result of
this project and a Mitigated Negative Declaration is recommended.
APN 527-11-005, Subdivision Application M-06-4, Negative Declaration
ND-06-4. Property location: 15500 Francis Oaks Way. Property
owner: Mike and Ann Moffat. Applicant/Appellant: Tony Jeans.
Staff report made by Suzanne Davis, Associate Planner.
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Public Hearings Item #5 – Continued
Council Comments
• Questioned how many properties in Town are land-locked and require an
easement for access.
• Requested clarification on the photos in the staff report, which were
submitted by Dr. Weissman, showing a creek running through the
property.
• Questioned if water coming through the property would be an issue.
• Questioned when the drainage system was installed and who installed the
system.
Ms. Davis
• Clarified that there are a couple of dozen properties on the hillsides in
Town that require an easement for access.
• Clarified that there is a drainage system which was put in place to serve
the Highlands Development and Mr. Moffat’s property. Because of the
drainage system water is handled differently than it was in the early 1990’s
when the photo submitted by Dr. Weissman was taken.
• Clarified that the drainage system was installed in 2008 by the developer
of the Highlands Development.
• Commented that the applicant did a small extension to the culvert that was
recently inspected and permitted by the Town.
Open Public Hearing
Mr. Jeans, Applicant/Appellant
• Commented that the proposed project area is not a riparian area and with
the installation of the culvert directing the water from the property,
restoring the riparian area is not applicable.
• Commented that the proposed sites are approximately three acre lots and
that Council directed at least 2.5 acre lots for the subdivision.
• Commented that the proposed site has a slope average of 5% at the
house location and a setback from the street of at least 150 feet at Shady
Lane.
• Commented that there is no impact to any trees and that there is a quarter
acre of flat useable yard for homeowners to enjoy.
• Commented that the proposed lots will not require any grading.
• Commented that the proposed site is fully supported by most of the
neighbors on Francis Way.
• Expressed concerns about the Planning Commission’s policy decision for
the proposed project and feels that they did not structure a motion
correctly.
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Public Hearing Item #5 – Continued
Council Comments
• Questioned how the flat parcel on the Moffat’s lot compares to the
Highlands lots.
Mr. Jeans
• Clarified that the lot is flatter than most properties in the Highlands
subdivision.
Mr. Harwin
• Commented against supporting the proposed project.
• Commented that the 24 inch pipe granted in the easement for drainage
will not support a major storm.
Mayor Mike Wasserman
• Questioned how Mr. Harwin feels about the size of the lots.
Mr. Harwin
• Commented that he does not have an objection to the size of the lot, but
feels that the buildable area is a "postage stamp size piece of dirt."
Dr. Weissman
• Commented against the proposed project.
• Commented that the 200 foot culvert extension was done without
inspections or permits.
• Commented that illegal grading done in 1998 changed the drainage in the
area and stated that the water area in the photo that he presented to
Council was entirely above the present culvert.
• Commented that he supports the Planning Commission’s decision.
• Commented that he would like to see the applicant remove the 200 foot
culvert and restore the riparian corridor.
Council Comments
• Questioned if the water flow depicted in the photo that was given to
Council would be the same today even though there is the culvert.
• Questioned if Dr. Weissman feels that the 3.1 acre lot is compatible with
the neighborhood and appropriate with the other lot sizes in the area.
10
Public Hearing Item #5 – Continued
Dr. Weissman
• Clarified that the topography of the hillside has changed due to illegal
grading done in 1998 and that he feels that the river of water would still be
there today if the topography had not been changed.
• Commented that it is like other lots in the neighborhood, but given the
Hillside Standards and Guidelines, the over arching concern is that just
because the numbers are there does not mean that the site is suitable for
development.
Ms. Quintana
• Commented against the size of the lots for the proposed subdivision and
questioned the correct formula for measuring the slope density of the lots.
Mr. Davis
• Commented against supporting the proposed project and stated that he
feels that the Moffats are bad actors.
• Commented that the riparian corridor was lost and the flow of water
changed due to illegal grading in 1998.
• Commented that the proposed project should be evaluated using
the Town’s Guidelines and Standards for Land Use near Streams.
Mr. Jeans, Applicant/Appellant
• Commented that there were no utilities or sewer system until the
Highlands project was approved.
• Commented that the water flow in the area is minimal and is mostly run-off
from the streets within the Highlands project.
• Commented that every property in the Highlands has easements to
access Blossom Hill Road.
• Clarified that the lot is suitable to build a home.
Closed Public Hearing
11
Public Hearing Item #5 – Continued
Council Discussions
• Questioned if the average lot size for the parcels meets the Hillside
Specific Plan’s guidelines and is there an option for the proposed project
as a Planned Development.
• Expressed concerns about the configuration of the Moffat’s property.
• Directed staff to take some time to analyze the lot size requirements for
the Hillside Standards and Guidelines and determine if the proposed lots
would fall under these guidelines.
• Expressed concerns about the basis for the Planning Commission’s
decision to deny the project.
• Commented that the reason for denial was based on findings "C" and "D"
as required by the Subdivision Map Act.
• Commented that the Planning Commission referred to the findings
regarding suitability subjective and that the Planning Commission found
that the site was not suitable for the proposed subdivision.
• Questioned if the Planning Commission did not feel comfortable with the
access to the property, and if they felt that the proposed site was not
suitable for a single family home.
• Commented that the site visit of the property presented a different
perspective than any diagram or map provides.
• Expressed concerns about the culvert that was extended without permits.
• Questioned if access off Shady Lane would be required as a condition.
Ms. Davis
• Clarified that the average lot size was based on the slope density formula
in the Town Code.
• Clarified that the Hillside Specific Plan has a density range for the area.
• Commented that she has never seen a planned development done for a
subdivision with the exception of Highlands which was 19 lots, and the
Greenbriar proposal which was 14 lots.
• Clarified the conditions of approval for the proposed project.
Mr. Larson
• Commented that the culvert has gone through the permitting process and
was approved by the Engineering Department and that the owners were
required to pay fines and permit fees prior to receiving the permit.
• Clarified that the Hillside Design Guidelines specify that this project is in a
sub area that is the 2.5 to 10 unit per acre density, so the proposed
subdivision does meet that specification.
• Commented that the slope density calculation average from the Zoning
Code is 3.5 and the proposed lot size is 3.98.
• Clarified that the slope density calculations are not based on individual lot
sizes.
12
Public Hearing Item #5 – Continued
MOTION: Motion by Council Member Steve Rice to reverse the
Planning Commission decision denying a request for a two
lot subdivision on property zoned HR-21/2 on the basis that
the commission erred in its discretion and with the findings in
Attachment 2 of the Staff Report and to modify the
Conditions of Approval in Attachment 3 to add the scenic
easement and to add a condition that requires access to the
property in Shady Lane.
Seconded by Council Member Joe Pirzynski.
Council Discussion
• Requested that the Maker of the Motion expand on his reasons for the
findings that the Planning Commission erred.
• The Maker of the Motion stated that he could not find adequate
justification supporting the Planning Commission's findings "C", "D", or "E"
as required by the Subdivision Map Act.
• Questioned if there was a policy issue that affected the Planning
Commission’s decision.
VOTE: Motion passed unanimously.
Mr. Korb
• Clarified that he will be bringing back a resolution with the conditions as
approved by Council.
• Clarified that CEQA evaluations are based on the current conditions and
not what has happened in the past and that he will be bringing back a
resolution referencing the CEQA report to make sure that it is clear in the
record.
MOTION: Motion by Council Member Steve Rice to approve
negative declaration and the mitigation monitoring plan.
Seconded by Council Member Barbara Spector.
VOTE: Motion passed unanimously.
Mayor Mike Wasserman called for a recess at 8:15 p.m. Meeting resumed at
8:20 p.m.
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TOWN COUNCIL/REDEVELOPMENT AGENCY
7. Approve request of Prime Contractor to Substitute Plumbing
Subcontractor on Police Operations Building Project.
Staff report made by Orry Korb, Town Attorney.
Todd Capurso, Director of Parks and Public Works commented on the logistics
for the hearing.
Kevin Rohani, Town Engineer/Project Manager was present to answer
questions.
Mr. Cameron, Swenson Development
• Commented that the contractor was behind schedule.
• Commented that letters were mailed to Robert Rodriguez in April, June
and August, 2009 requesting an action plan and no action plan was
received.
• Commented that out of 11 inspections on the project only two were
passed.
• Commented that drains were not placed in the correct areas and that
Swenson Development has had to remove and replace the drains.
• Commented that the hot and cold water line failed inspection and has not
been completed thereafter.
• Commented that the majority of the work should have been completed by
June 19, 2009.
• Requested that a new subcontractor replace Robert Rodriguez so the
project can continue and be completed on time.
• Commented that invoices have not been submitted on time and payroll
reports were deficient.
• Commented that Robert Rodriguez owes his suppliers and Swenson
Development has been paying them directly.
Robert Rodriguez, Plumbing Contractor
• Played cell phone messages from Swenson Development regarding his
payments, job performance, and alleged harassment from Swenson
Development.
• Commented that the project is 80% to 90% complete and that he should
be allowed to finish.
• Expressed concerns that Swenson Development is holding $48,000.00
of his money.
• Commented that in 32 years he has never left a job uncompleted.
• Commented that the flooring is not down so he can not complete the
fixtures.
• Expressed concerns that the gas line was welded incorrectly and should
be replaced.
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Public Hearing Item #7 – Continued
Council Comments
• Requested clarification on the failed inspections and incomplete work by
Mr. Rodriguez.
Mr. Cameron, Swenson Development
• Clarified that Mr. Rodriguez had not completed a majority of the jobs and
that Swenson Development would complete the jobs or redo them after a
failed inspection to keep the project going.
• Commented on the business practices of Mr. Rodriguez since April,
2009.
• Commented that Mr. Rodriguez has not completed his projects and has
continued to fail inspections costing Swenson Development funds and
labor as they have had to complete the projects.
Mr. Rodriguez
• Commented that he has completed 80% by July, 2009.
• Commented on his practices throughout the project.
• Commented on how he keeps the records for his company and the
project.
• Commented about back charges by Swenson Development to his
company.
• Commented that Swenson Development is unreasonable.
• Commented that Swenson Development is doing unsuitable work.
• Commented that Swenson Development is micro managing his
company.
Mayor Mike Wasserman
• Asked Mr. Rodriguez to explain why he has not met his obligations.
Mr. Rodriguez
• Stated that he has met his obligations and that his work is 80% to 90%
complete and requested that he have the chance to finish the job and get
paid.
Mr. Rohani, Town Engineer/Project Manager
• Commented that Town staff has had numerous meetings and
conversations with Mr. Rodriguez about completing his jobs and he has
continually not delivered or fulfilled the conditions of his contract.
• Commented that staff’s recommendation would be to hire a new sub
contractor to complete the job.
15
Public Hearing Item #7 – Continued
Mr. Little, Harris Management
• Commented that Swenson Development has showed signs of trouble
with Mr. Rodriguez from the beginning and Swenson Development has
had to complete Mr. Rodriguez's failed projects to keep the project
moving and on time.
• Commented that there are areas that do not meet code and the quality of
the project from the plumbing standpoint is not good.
Mr. Hart, Building Inspector
• Commented that the quality of work and his attendance are not
acceptable.
• Commented that he supports the recommendations of Mr. Little, Mr.
Rohani, and Swenson Development.
• Clarified that a new subcontractor can bring all the plumbing problems at
the job up to grade and still stay on time.
Council Comments
• Questioned if the plumbing at the facility is adequate for the building.
• Requested some sort of assuance that the plumbing component for the
building will be at a par when the project is complete.
Mr. Harding
• Clarified that they can repair these problems above standard and
complete the project on time.
Mr. O’Hara, Project Manager, Swenson Development
• Commented that Mr. Rodriguez was a lot more reliable at the beginning
of the project.
Mr. Larson
• Clarified that staff recommends that the prime contractor substitute the
plumbing contractor on grounds #3 and #7 of the Public Contracts Code,
Section 4107, based on the testimony heard at this meeting.
Council Discussion
• Requested clarification on #9 under the Ground for Substituting of
Subcontractor (Public Contracts Code Section 4107.)
16
Public Hearing Item #7 – Continued
Mr. Larson
• Clarified that responsibility in the rewarding process has specific definition
that was not included in the recommendation and that staff felt grounds #3
and #7 were sufficient.
Mr. Rodriguez
• Clarified that the problem with the leaking pipeline at the job site could be
fixed and that he has not had the chance to repair it yet.
• Commented that he feels that he competent and can finish the job.
• Commented that he has issues with Swenson Development’s pay
schedules.
• Questioned how he completed 80% to 90% of the project if he is
incompetent.
• Commented that he has deliberately not completed the work as leverage
against Swenson Development, but feels that he has the skills and the
tools to complete the job if given the chance.
Council Discussions
• Requested clarification from Mr. Rodriguez as to why he has not
completed the work.
Mr. Rodriguez
• Commented that he is competent and should be given the chance to
complete the job.
Closed Public Comments
MOTION: Motion by Council Member Joe Pirzynski to approve
request of Prime Contractor to Substitute Plumbing
Subcontractor on Police Operations Building Project on the
basis of Code Section 4107, Items #3 and #7.
Seconded by Council Member Steve Rice.
17
Public Hearing Item #7 – Continued
Council Discussions
• Commented on supporting the motion on the basis of testimony
received stating that Mr. Rodriguez missed deadlines, caused delays,
failed inspections, had failures to appear, uncompleted projects, and the
most distressing is his admission that he deliberately failed to perform
work on time in order to leverage payment.
• Expressed concerns about the quality of work on a public building with the
use of public funds.
• Commented that professionalism and high quality is expected by Council,
staff and the community and would like to see the project finished with that
in mind.
VOTE: Motion passed unanimously.
ADJOURNMENT
Attest:
Jackie D. Rose, Clerk Administrator