Attachment 5 - November 9, 2022, Planning Commission Verbatim MinutesLOS GATOS PLANNING COMMISSION 11/9/2022
Item #3, 755 Blossom Hill Road
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A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
Melanie Hanssen, Chair
Jeffrey Barnett, Vice Chair
Kylie Clark
Kathryn Janoff
Steve Raspe
Emily Thomas
Town Manager: Laurel Prevetti
Community Development
Director:
Joel Paulson
Town Attorney: Gabrielle Whelan
Transcribed by: Vicki L. Blandin
(619) 541-3405
ATTACHMENT 5
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P R O C E E D I N G S:
CHAIR HANSSEN: We will move on to the Public
Hearings portion of the meeting, and we have two items for
Public Hearings this evening.
The first one is consider an appeal of a
Community Development Director Decision to deny a Fence
Height Exception request for construction of a 6’ tall
fence located within the required front yard setbacks, and
construction of a vehicular gate with reduced setbacks on
property zoned R-1:10, located at 755 Blossom Hill Road,
APN 523-04-043, Fence Height Exception Application FHE-21-
003, Property Owners David and Ilana Kohanchi, and
Applicant Nina Gurainic. Project planner is Savannah Van
Akin.
I will ask if any Commissioners need to be
recused from this item? And may I see a show of hands from
Commissioners who have visited the subject property? Very
good.
Then I will turn it over to staff for their Staff
Report.
SAVANNAH VAN AKIN: Good evening, Planning
Commissioners. Before you is an appeal of a Community
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Development Director Decision to deny a Fence Height
Exception request at 755 Blossom Hill Road. This item was
originally scheduled for the September 14th meeting date. On
September 13th the property owner requested the item be
continued to the November 9, 2022 Planning Commission
meeting. The Staff Report and exhibit materials from the
September 14th meeting are what are being considered today.
The property owner is requesting approval to
permit a previously constructed 6’ metal fence and gate.
The fence is along the property line within the required
front yard setback. Per current Town Code, fences are
limited to 3’ in height when located within a required
front yard setback, and gates have an 18’ setback
requirement unless accepted as granted by the Town Engineer
and the Community Development Director. The fence also has
sharp points, as seen in Exhibit 12, which are prohibited
per Town Code.
On February 12, 2021 the property owner applied
for an exception to the Town’s fence regulations for the
unpermitted construction of the gate and the fencing on the
subject property, which does not comply with the Town Code
fence regulations. The property owner cited Condition D for
privacy and security concerns as justification for their
fence and gate. The privacy concerns were related to the
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property’s proximity to the commercial centers and medical
offices, citing occasions when people thought their home
was the chiropractor’s office, which is located next door.
The property owner also cited protecting children,
containing animals, and protecting a garden as
justification for extra security.
On July 2, 2021 the Town denied the exception
request because the findings listed in the Town Code could
not be made. The decision of the Community Development
Director to deny the Fence Height Exception application was
appealed on August 5, 2022. The Appellant listed security
and the unique location as justification for their appeal.
The Appellant’s letter raises several points to
support their Fence Height Exception, all of which is
listed in your Staff Report. Of the seven public comments
received for this application, one was in opposition to the
fence.
Based on the discussion provided in the Staff
Report Staff, Staff recommends that the Planning Commission
deny the appeal, uphold the decision of the Community
Development Director, and deny the Fence Height Exception.
This concludes Staff’s presentation and we’re
happy to answer any questions.
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CHAIR HANSSEN: Thank you very much for your
Staff Report. Do any Commissioners have questions for Staff
at this time? Commissioner Janoff.
COMMISSIONER JANOFF: Thank you. This is a
question for the Town Attorney. It seems to me in the
Appellant’s package they were disputing this item because
they couldn’t get ahold of Town Staff because of COVID, and
so there was no clear direction given from Staff, and the
information that they could find online didn’t provide
clarification as to their specific circumstance. Could you
comment on those reasons why the appeal should be
considered and provide guidance?
ATTORNEY WHELAN: Those contentions really fall
into an estoppel argument, and the courts have held there
are cases in which towns actually gave the wrong
information to an applicant and court held that the
applicant was still required to undo what had been
constructed, because it was not possible to get estoppel
against a public agency, because the courts will balance
the public interest in having a consistent code applied
against the private injustice, and the public interest in
almost all cases will prevail in the court decision.
CHAIR HANSSEN: Thank you. Thank you for that,
Commissioner Janoff. Commissioner Clark.
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COMMISSIONER CLARK: Thank you. I have two
questions. I was wondering if you would be able to say
again the amount of attempts that the Town made to reach
out to them, and was it attempts where you just didn’t hear
back at all?
SAVANNAH VAN AKIN: Thank you for that question.
The Town first sent a warning letter on December 14, 2020.
They applied for their exception on February 12, 2021. We
denied the application on July 2, 2021 and then the Town
continued to contact the property owner on November 16,
2021, January 31, 2022, March 22, April 5, May 3, and May
24, and then we proceeded to send a second warning letter
on July 7th, 2022.
COMMISSIONER CLARK: Okay, thank you, and all of
those attempts that were listed before the warning letter,
you just didn’t get any sort of response?
SAVANNAH VAN AKIN: There were many instances
where there was just no response at all, and if there was a
response, it was very minimal.
JENNIFER ARMER: Sorry Commissioner, I just
wanted to add as well, we do generally reach out to try to
have a conversation when we’ve had a report of something
that’s nonconforming before issuing a violation, and there
have been numerous conversations with them through the
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process, so it isn’t a case where we just aren’t getting a
response. There are numerous conversations and following up
to make sure that they are continuing and moving forward
with what needs to be the next steps in the process, as
they decided that they didn’t want to remove the fence and
so they wanted to move onto the next steps.
COMMISSIONER CLARK: Okay, thank you. Chair, may
I ask another question?
CHAIR HANSSEN: Yes.
COMMISSIONER CLARK: I was wondering if you can
speak a little bit more to the safety hazards for traffic
and pedestrians that it causes? One thing I saw was that it
wouldn’t allow for vehicles to clear the travel lanes while
queuing and I don’t really understand what that means, if
you’d be able to speak a little bit to that?
JENNIFER ARMER: I can jump in initially,
Savannah, if you’d like. We also have the Town Engineer,
WooJae Kim, available. It has to do with the location of
the gate, not allowing a car to pull all the way onto the
property while waiting for the gate to open, but would
block the sidewalk and the travel lane is one issue.
The other issue, I believe, was the view
triangle. If somebody is coming out of the driveway, does
this fence and gate block that? But as I said, we do have
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WooJae Kim here, Town Engineer, who may have something to
add.
WOOJAE KIM: Thank you, Ms. Armer. WooJae Kim,
Town Engineer. This request came through our office as well
and we reviewed the site. Blossom Hill Road is an arterial
for the Town, so it’s heavily used, 35 miles per hour speed
limit, and the 18’ requirement is so that the vehicle when
entering the property wouldn’t be blocking the street and
they wouldn’t be queuing waiting for the gate to open, so
that’s a safety concern there.
Also, there is quite a bit of pedestrian and
student traffic on the sidewalks, and that’s the other
issue with the traffic view area, which needs to be
cleared, or at least at like 3’ high obstruction at most.
COMMISSIONER CLARK: Thank you, that’s perfect.
CHAIR HANSSEN: Vice Chair Barnett.
VICE CHAIR BARNETT: Thank you. I have a question
for Staff in terms of the availability of the Staff to
answer questions from the public during the COVID shutdown.
JENNIFER ARMER: Thank you, Commissioner. I’ll
jump in again since Savannah has joined us since that time.
We have continued to be available through the entire
closure. Even when we did not have open door, drop-in
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hours, we did continue to respond to inquiries via phone
and email.
VICE CHAIR BARNETT: Thank you for that response.
CHAIR HANSSEN: Did you have any other questions?
VICE CHAIR BARNETT: Yes, I have a question for
the Town Attorney, if I might?
CHAIR HANSSEN: Go ahead.
VICE CHAIR BARNETT: I noticed in Section
29.40.0320(b) that their reference is to special privacy
concerns and wildlife problems as potential reasons for
exception from the fence regulations, and my question is
are these only relevant where the fence is outside of the
setback?
ATTORNEY WHELAN: Yes, that is correct.
VICE CHAIR BARNETT: Thank you.
CHAIR HANSSEN: Commissioner Thomas.
COMMISSIONER THOMAS: I have a question for Staff
also about the other houses on that block of Los Gatos
Boulevard. I just wanted to confirm that, because there are
other fences on that block of Los Gatos Boulevard going
towards the school, and I just wanted to confirm that all
of those were in compliance with the ordinance, and if any
are not if it’s because they were built before the
ordinance was passed.
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JENNIFER ARMER: Yes, that is our understanding,
that all of the other properties either are in conformance,
or the fence was built prior to the adoption of the most
recent ordinance in 2019. I don’t believe we’re aware of
any in that vicinity that are currently in noncompliance
and built after the new ordinance.
COMMISSIONER THOMAS: Okay, perfect. I just
wanted to confirm, because there are lots of different
options and styles happening along there. Thank you.
CHAIR HANSSEN: Are there any other questions
from Commissioners? And you’ll have another opportunity to
ask Staff questions after the public hearing is closed. I
don’t see any, so we will turn to the Appellant, and the
Appellant has up to five minutes to speak to the Planning
Commission on this item.
JENNIFER ARMER: We’ve got two hands raised,
Ilana, and I’ll let you speak. You may speak for up to five
minutes. If there is anyone else on your team who also
wants to speak, let us know and we can allow them. It all
needs to be part of the same five minutes.
DAVID KOHANCHI: Can you show the PowerPoint, if
possible, before we start the timer?
JENNIFER ARMER: Yes, I can get that started.
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DAVID KOHANCHI: Thank you so much for coming. We
truly appreciate it.
ILANA KOHANCHI: Hi, you guys are confused. I’m
Ilana, that’s my husband David. We’re on my computer.
DAVID KOHANCHI: Hi. This is the Fence Height
Exception request for the Kohanchi family. There are a lot
of topics to cover, so I’ll go as quickly as possible.
Our home is positioned, as we discussed, in a
commercial area. Directly in front of us are the Terraces
of Los Gatos, to the right in the front is King’s Court
Shopping Center, and directly to the right adjoined to our
home is a large dental/chiropractor office.
This is the Terraces of Los Gatos.
This is the King’s Court.
And this to the right adjoining our fence is the
chiropractor/dental office.
Again, concerns with this, I couldn’t be more
vocal about it. In the area there is a lot of walking
traffic, there are a lot of strangers, there’s a lot of
very suspicious characters. We feel that we need the added
protection.
In addition, the Terraces, our home is directly
under their second story, so there are probably within a
hundred people that can view into our kitchen and into our
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front lot, so we think that we need an added layer of
protection from that as well.
Again, as discussed, we’re on Blossom Hill Road,
a very dangerous street, and the speeds have been unchecked
for years. There was within recent years an accident where
somebody was unfortunately killed; that was within a block
of our home.
The fence is a galvanized steel fence. It is
almost impenetrable by a car, and we fear a car jumping the
curb, and just like before a car actually swerved off the
road and hit someone who was opening their trunk; we feel
that’s puts us at high risk, so we think it’s a safety
measure.
Things to consider. Crime rates are going up
everywhere, in particular Blossom Manor. Our home was
actually burglarized within the last two years, very known
to the Town and to the street. Two doors down, 763 Blossom
Hill Road, was burglarized within the last year, which I
think is important to note.
In general, we live in a great area that
unfortunately is not as safe as we think. Our Town is more
dangerous than 53% of cities.
If you look at the Ring thread, which we have
from our front door camera, there’s a bunch of stuff that’s
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going on in the Town; I know if you are discussing it.
Trespassing. This is all in Los Gatos. Gunshots, people
with guns, people stealing packages. I think we need to
reevaluate the safety of our community.
Something that was astounding to us, we have a
child, a three year old, at home. The southern part of Los
Gatos might be protected from this, but where we live in
the dot, we’re within a very close area to about 200 sex
offenders, one within a few homes of us, so we think it’s
safe to have an extra fence, one in which the vehicular
gate is only closed at nighttime to protect us from these
incidents.
Again, Ilana and I are both Jewish. I don’t like
to say this. Ilana and I come from families, Russian and
Persian, that left their home countries in exile, and we’re
quite concerned given the current rhetoric in the world.
Notable on this is that there was a manifesto of somebody
who had guns ready to kills Jews in Los Gatos within the
last year on 7/19/2021.
In addition to that, some other considerations.
I’m a single provider physician. I don’t truthfully make
enough money. We make good money, but I’m a single provider
and we have active endeavors in the works. I’m buying a
vending machine business that requires a lot of inventory
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that will stay in our home. I plan for an exotic car
business on (inaudible) that will start in the next year,
and we have the original Cilker farmland that has a lot of
productive products that we’re going to sell in the future.
So I think those assets put this at higher risk than other
properties.
Again, this was discussed, when we went online.
We moved to this town, my wife was pregnant, we were very
stressed, and it was the COVID pandemic. Nobody was
accessible. Very, very difficult to get ahold of people.
So we used the only resource available,
losgatosca.gov, which was unfruitful. It basically said 6’
and that’s all. Six feet, no setback, period.
So, if you look through Los Gatos there are
fences everywhere. And we looked everywhere, and this was
within the two-minute drive, we found 39 fences. We
discussed it with the Town, the comments that these are
before, etc., don’t seem to apply given the ubiquitousness
of the fences.
Again, you can’t have selective enforcement of
the rules. We should have a way to monitor who has a fence
and who doesn’t for you to be able to say that previous
fences existed. There are actually one to two on this
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street that violate, and one that was built in the last few
months.
I’m a single provider. My wife and I live here.
We moved here to protect our daughter. We bought our home
close to its peak; property taxes are high. So at least our
opinion should be as important as others. COVID happened,
we’re scared; life is tough.
We understand the concerns that are presented. A
single person complained, and we don’t think their concerns
are valid. We’re here, and we’re all just trying to survive
and live happily. Thank you so much.
CHAIR HANSSEN: Thank you very much for your
presentation. I’d like to ask if any Planning Commissioners
have questions for the Appellant? Commissioner Clark.
COMMISSIONER CLARK: Thank you. Where did you get
the number that Los Gatos is more dangerous than 53% of
cities?
DAVID KOHANCHI: There are a number of registries
online. I can actually open it up. I initially had a
reference. I can get it to you in about 30 seconds. That’s
a universally accepted number currently. The crime index is
47 out of 100, which indicates it’s 47% safer (inaudible)
than other U.S. cities.
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COMMISSIONER CLARK: Then a follow up. It seems
like you have a lot of concern specifically about Los Gatos
and crime here, and instead of doing all of this for your
home, why did you move here and why don’t you move if this
is such a big concern for you?
DAVID KOHANCHI: I’m a cardiac anesthesiologist
at Good Samaritan Hospital. I have to be within 15-20
minutes for emergencies, very important ones, and there is
a very selective distance that I can live that we felt
safe. We want our daughter to be in a good school district
and this is one of the best. It’s tough to say that I’m
suggesting that this is a very dangerous area. Clearly I
didn’t think so, given that we moved here, but given what
we’ve heard in moving here and the dangers that it
presents…
Our home was robbed within in the last three
years. Somebody jumped over a fence and came here and
robbed the home. We weren’t here, but that’s the story that
we’re hearing from our neighbors. That’s terrifying. Two
doors down they were robbed. On Oleander Avenue a car was
stolen two blocks away within the last six months.
Everybody during COVID and pre-COVID, we wanted
to buy a home. That’s the thing to do. You move to the
City, you start working, and you buy a home. One of the
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biggest concerns when you buy a home is where to live.
Unfortunately, it was very hard to find homes, and this was
the quickest to get, and we actually bought it off market
and we were very lucky. I love the Town; I just think we
should be transparent about the safety concerns so that we
can move forward safely as citizens. We can’t take a blind
eye to the dangers that exist right here.
COMMISSIONER CLARK: Thank you.
CHAIR HANSSEN: Thank you for that. Do any other
Commissioners have questions for the Appellant? Vice Chair
Barnett.
VICE CHAIR BARNETT: I’m afraid I have a large
number of questions, maybe eight or nine, so I wonder if
the Chair would indulge me as I go through them?
CHAIR HANSSEN: Yes, go ahead and do that.
VICE CHAIR BARNETT: What’s your position on the
Town’s argument that your fence spikes are in violation of
the code?
DAVID KOHANCHI: Sorry, could you repeat that?
VICE CHAIR BARNETT: The Town has pointed out
that you have spikes at the top of the fence in violation
of Section 29.40.0315 of the code, and I was wondering what
your position is on that?
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DAVID KOHANCHI: To be quite honest, the spikes
were an intent of an aesthetic. We were trying for it to
look nice. We didn’t realize it was against the code when
we looked at the rules. The ordinance that was listed was
very clear, and that was all that was listed with regards
to fences that was posted on that website.
Though I understand the concern, and I understand
that that might be an issue, that for us is not that
significant. If needed, I can get rid of the spikes on the
fence. I understand that concern.
VICE CHAIR BARNETT: Okay, appreciate that. Is
the garage on your property available for parking, and if
not, why?
DAVID KOHANCHI: The garage on the property was
converted to closed space so that we can use it as storage,
so no, it is not currently used and accessible for cars.
VICE CHAIR BARNETT: Could the storage be removed
to another location so that you could park your car in the
garage and have straight access out to Blossom Hill Road
for your emergency calls?
DAVID KOHANCHI: The front lot of our house is
very large, and it’s really far back, so in theory if you
put a car in there it can only fit one and not two, and
that still wouldn’t… I don’t fully understand. Are you
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saying that parking in the garage would make it easier to
get out for emergencies? It’s very far away from the front
of the house.
VICE CHAIR BARNETT: No, what I understand is
that you want to keep the front area available for
potential use by your daughter as a playing area, and
therefore you don’t want a car parked there, so my question
is whether you could find that available parking, keep the
play space open, and still have direct access out to the
street?
DAVID KOHANCHI: In theory, yes, I could put my
car, but currently we have two cars and a third, because
our mother-in-law is here all the time. I plan on buying
two to three more exotic cars in the next six months to a
year for the purpose of renting them out as a business, so
even if did that it would be blocked for me to get out,
because those cars require space to be parked.
VICE CHAIR BARNETT: So we can move on. The
letters that you sent to the Town don’t actually have dates
on them. I looked at Exhibit 5 on page 27, and Exhibit 6 on
page 31. Are you able to define what the sending dates of
those two letters were?
DAVID KOHANCHI: I don’t have those in front of
me, so I can’t answer that question.
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VICE CHAIR BARNETT: My fellow Commissioner
raised the question about notices from the Town. Is it
accurate that you received a number of outreaches by the
Town concerning the fence and gate?
DAVID KOHANCHI: The notices that responded to us
were after the fence was made, not previous to. Those were
several attempts to contact the Town where we did not get
responsiveness, and we made the fence given what we knew to
be the knowledge at the time. In response to every single
one that was sent, every since message that was sent that
we received, we communicated again with the Town to say
that we believe that this should be appealed for X, Y, and
Z. The delay in that time frame is nothing to do with our
miscommunication, it has to do with we were waiting for the
next steps to occur.
Our mother-in-law met with the Town several
times. I met with the Town at least once, and there have
been several phone calls between then and now. The
narrative that we were communicated with without
responsiveness is false. We definitely responded to every
message if it made sense for the next step to occur.
VICE CHAIR BARNETT: Were some of those emails,
or was it all oral?
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DAVID KOHANCHI: Mainly phone calls and in-person
meetings. In fact, it’s very easy for us to find out,
because Nina Gurainic met with the Planning Committee
multiple times: Joel, Jocelyn, everybody who is well aware
of her communication. I’m late to the game of
communication, because the last several years have been
relatively tough for us, but in response to that, yes, we
have definitely responded to the messages.
VICE CHAIR BARNETT: Okay, thank you. My next
question is in Exhibit 6, which is one of the letters
submitted to the Town. In paragraph eight it says that the
fence was placed solely for safety during the COVID
pandemic. Was that correct at the time?
DAVID KOHANCHI: Not solely, but one of the major
reasons, yes.
VICE CHAIR BARNETT: And would you acknowledge
that there’s a risk that the gate mechanism or the remote
might not be operable at some times due to malfunction or
batteries?
DAVID KOHANCHI: Is it possible? Are you asking
me is it possible that a mechanical vehicle gate can
malfunction? Yes. In response to that, if I may, the gate
is left open all days from 6:30 to 9:00pm. And the
potential that that would happen would happen during off
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hours when the car traffic is significantly minimal on
Blossom Hill Road, in which case we would park on the side
of the road, and we have side gates that would allow us
into the gate.
ILANA KOHANCHI: I just want to clarify. He meant
6:30am to 9:00pm, not evening hours, but as in the entire
day from morning till night. It’s only closed at night for
our safety.
DAVID KOHANCHI: Never, never has it been closed
during the day.
ILANA KOHANCHI: Therefore, it could never block
anyone from driving in or pulling in or block the road;
that just wouldn’t happen, because it’s always open.
DAVID KOHANCHI: That being said, also we
intentionally purchased the top of the line clicker and
device that is over 500’ away. We thought of that concern
prior to placing it and planned ahead.
VICE CHAIR BARNETT: Clarify for me, if you
would, how many occasions of trespass there have been
during your period of ownership.
DAVID KOHANCHI: Twice. One person came into our
back yard to obtain persimmons when we moved in, and when
we moved there was a small amount of time between the time
that we purchased the home and when we moved in, because we
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were delivering a baby, and in that two-week time somebody
squatted in the front of our house. We had a squatter in
the front of our home. Very nice couple that was sleeping
on the front of the home; we asked them to leave. So in
terms of how long we have lived here and how many people
have trespassed on our watch, twice.
VICE CHAIR BARNETT: Okay, thank you for that.
You pointed out in your appeal that there were a number of
fences within the setback in Los Gatos-Almaden Road, but
did you find any on Blossom Hill Road between, say, Cherry
Blossom and Camellia Terrace?
DAVID KOHANCHI: You’re speaking of a very small
distance, right? So you’re asking a question of seven
homes. You’re asking were there any within seven homes,
right? Because across the street is the retirement
facility, and to the right of me is the dental/chiropractor
office, and the answer is yes, there’s a vehicular gate at
the end of the street.
VICE CHAIR BARNETT: Do you know if it’s within
the setback?
DAVID KOHANCHI: It is not within the setback.
The reason I don’t bring that up is because I don’t feel
that that’s appropriate to discuss my neighborhood.
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VICE CHAIR BARNETT: Can you comment on the fact
that you have security concerns, but at the same time
you’re willing to keep the gate open during daylight hours?
DAVID KOHANCHI: I think the vast majority of
trespassing that occurs in Los Gatos, if you look at the
Ring thread and historically and you look at crime data,
happens at night. So my concern is when I am not home. I am
a happy gun owner, and if somebody comes into my house
during the nighttime I’m usually present, but during the
nighttime, sometimes when I leave the house I am not
present; it was my concern. I’m worried about the time when
I leave to go to call in the hospital in the middle of the
night and I’m not home. I am not as concerned during the
day.
VICE CHAIR BARNETT: Finally, you acknowledged in
your presentation today, and I think in your appeal also,
that Blossom Hill Road is in fact a dangerous road because
of speeding?
DAVID KOHANCHI: Yes, sir.
VICE CHAIR BARNETT: And in light of that
statement, what do you feel is incorrect about the Town’s
position that there is a safety risk with respect to the
gate not being 18’ back and the fence being within the
setback?
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DAVID KOHANCHI: In response, I have to take a
step back from you. If the true concern were that the gate
and the vehicle setback was a risk, then everyone with a
gate that’s on a high-speed street, Los Gatos-Almaden as an
example, should be at the same risk.
In response to that comment also, would be that
the fence to us, because the incident where the person was
killed, and there was another incident I know of in the
same town on Blossom Hill Road where a car ran into
somebody’s home, drove into somebody’s home within the last
five years, I believe. We don’t want that to happen. Our
fence would prevent a car from getting into our lot, so
that’s one of the main reasons why we put up that metal
fence.
VICE CHAIR BARNETT: Okay, thank you. I think
that’s all my questions. I appreciate your time.
CHAIR HANSSEN: Thank you for all your questions,
Vice Chair Barnett. Then we also have Commissioner Thomas
has her hand up.
COMMISSIONER THOMAS: Thank you, Chair. I have
two questions for the Applicant.
The first is if you could walk us through how and
when you tried to contact the Town to get clarification on
the Fence Ordinance?
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DAVID KOHANCHI: The vast majority of
communication prior to the placement of the fence was done
by Nina Gurainic.
When we purchased the house it was October of
2020. I was sick; I had COVID. We were managing
complications of COVID. My wife was pregnant. We were
living on Santana Row. She had a very complicated
pregnancy. She was in the hospital probably eight times
over the course of a month with the concerns that there
would be fetal demise. The baby was small; we had IUGR,
Intrauterine Growth Restriction.
In the time from when we were in the hospital
delivering the baby, within several weeks Nina definitely
contacted the Planning Department at least four separate
times. I know, because she was in the hospital when she did
it.
I personally did not call within that time frame.
I spoke to the contractor. We hired a contractor who looked
at the online ordinance that was listed, and I approved
given the ordinance that was listed. I, myself, did not
attempt to contact the Planning Department.
COMMISSIONER THOMAS: Thank you for that. So the
contractor that you hired said that they looked at the
ordinance and you went with them that they trusted it?
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DAVID KOHANCHI: We confirmed by looking up the
ordinance as well.
COMMISSIONER THOMAS: So you do not think that
the way that the ordinance was written that it’s clear that
the way that you built your fence, that it’s in violation?
DAVID KOHANCHI: The ordinance that we used is
the one that I put in the PowerPoint. The ordinance that we
used we actually followed to a tee. There was an ordinance
listed online, I can pull it up, and that ordinance
essentially says, “In residential zones fences, hedges, and
walls not over 6’ high are allowed on or within all
property lines,” period. There is no addendum to it,
there’s no setback discussion, there’s no 3’. This was
modified after the fact. So this was listed on the website
in October of 2020.
The Ordinance Handbook, which is what we were
told after the fact is different, was updated within the
last few years and unfortunately the onsite website was not
updated. And I understood the lawyer’s very intricate and
phenomenal argument that the public, etc., but this is what
was written and this is what we used. So it’s not that I
violated an ordinance and I had any nefarious agenda. That
was what was posted.
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And I get it, COVID, life is tough and we didn’t
update anything. But I just used what was there. I don't
know how else to answer that, to be honest with you. So no,
I did not know I violated the ordinance, because the one
that I had utilized I currently followed.
COMMISSIONER THOMAS: Okay, thank you.
CHAIR HANSSEN: Commissioner Janoff.
COMMISSIONER JANOFF: Just quickly, because I
know we have public comments and then the Appellant does
have the opportunity to speak again, but I did want to
follow up on the question Commissioner Thomas was asking of
Staff.
Staff, can you verify that at the time the
Appellant looked at the ordinance that that in fact was the
ordinance and the only thing listed was what he’s
describing, or were there other sections of code that the
Appellant simply missed, or didn’t know to find, or didn’t
search thoroughly enough? I’m having a hard time
understanding the content of what is publicly available
online, which is generally all anybody is going to have
access to, during COVID anyway, how that could be so
different from what the actual code at the time was, if
Staff could please explain?
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JENNIFER ARMER: Thank you, Commissioner. I’d be
happy to give a little bit of background on that. The
official Town Code that is available online, that’s Chapter
29, which is the Zoning Code, but all of the other chapters
of the Municipal Code, when code updates are adopted by
Town Council those updates actually get automatically
updated by the company that maintains that website and our
code. However, there are sometimes other pages on the
Town’s website with reference information pulling out
certain sections of the code to try to make it more easily
accessible, and I believe the page that the Appellant is
referencing was a reference that was connected with the
Building Department’s webpage stating when a building
permit would be required for a fence and it had reference
to the old code at that time, and so that was delayed in
being updated. The full Municipal Code was updated
promptly.
COMMISSIONER JANOFF: So you’re saying that there
were two places where there were two code reference, one up
to date and one not up to date, so up to date code was
available at the time the Appellant was searching for fence
information?
JENNIFER ARMER: That is correct.
COMMISSIONER JANOFF: Thank you.
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CHAIR HANSSEN: Commissioner Raspe.
COMMISSIONER RASPE: Thank you, Chair. I actually
had the same question as Commissioner Janoff, so thank you
for asking that, and for your answer.
I did have one other question for the Appellant,
because I just don’t find it readily in my packet. What was
the date of construction of the fence? I don’t know that
our materials contain that.
DAVID KOHANCHI: The date of construction of the
fence is the end of 2020. We were delivering a child, so
somewhere early in December of 2020, I would say December
6th, somewhere around there.
COMMISSIONER RASPE: Okay. I notice that the Town
issued its administrative warning on December 14th, so it
would have to be before that. What was the time lapse
between the time you completed the fence and the time you
got the warning?
DAVID KOHANCHI: Probably several weeks. One to
two weeks.
COMMISSIONER RASPE: Okay, thanks so much.
DAVID KOHANCHI: That’s my best guestimate, to be
honest with you.
COMMISSIONER RASPE: I appreciate it. Thanks.
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CHAIR HANSSEN: That was a lot of questions, and
thank you for all your thorough questions, Commissioners. I
feel like we should turn to the public for public comments,
so I will put out to those in attendance, this would be the
time for anyone that would like to speak in Verbal
Communications on this item. So if you would like to do so,
please raise your hand on Zoom.
JENNIFER ARMER: Thank you, Chair. We do have
several people who have their hands raised. Right now the
first is Mark. I will allow you to speak. Mark, you should
be able to unmute, and you have up to three minutes.
MARK JAMIESON: Hi, my name is Mark Jamieson; I
live at 285 Marchmont Drive. I’m an acquaintance with the
Kohanchis.
I’m basically in support of the fence. I drive by
their house every morning. I find nothing offensive with
the fence. The gate is open during the day that I’ve
noticed. The only safety issue I would potentially realize
is if like an Amazon truck or something like that had a
delivery, and during the day it’s open for delivery, so I
don’t see anything that would block the driveway.
We’ve been woken up to my daughter going into our
garage and finding a stranger asleep in our garage, and if
I had the same opportunity to build a security fence if my
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property afforded that, I would. I know through reading all
the Nextdoor and comments that have been going on in town,
If I had a young baby and wife at home during the day, I
would definitely have a secure fence at night.
Maybe there is some compromise that could happen,
like taking the spikes down and leaving the gate open
during the day, and so I would like to see maybe the Town
could work with the Kohanchis as far as keeping the gate
and maybe painting it that it might blend in a little bit
more with the surrounding area.
I see many gates similar to theirs, and I realize
it’s not fully to code, but I think there might be some
room for exception, the fact that they live on one of the
busiest places in Town. Thank you for your time.
CHAIR HANSSEN: Thank you for your comments, and
I will turn to the Commission and see if any Commissioners
have questions for you, Mr. Jamieson. I don’t see any hands
raised, but thank you again for your comments. It looks
like we do have others that would like to speak on this
item.
JENNIFER ARMER: Yes, Steve is next in line.
We’ll allow you to speak. You should be able to unmute, and
you have up to three minutes.
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STEVE DOZIER: Thank you. Steven Dozier. I live
at 16536 Englewood Avenue and I frequently drive by the
property in question—I go to Peet’s quite a bit—and I find
the fence well constructed and immaculate and I’ve never
really had any problem with it. It seems to fit into the
neighborhood as far as I can see on my daily trips to
King’s Court.
I agree that perhaps maybe there is a compromise
here between the Town and the Kohanchis. He has a young
child and security these days is a concern; I also have. I
just think the fence fits into the neighborhood, and I
think that the security it provides to this family is
important and I support the presence of the fence. That’s
all I really have to say.
CHAIR HANSSEN: Thank you for your comments, and
I’d like to see if any Commissioners have questions for
you. I don’t see any hands raised. Thank you, again, and it
looks like we have others as well.
JENNIFER ARMER: Yes, next in line is John. You
should be able to unmute and you have up to three minutes.
JOHN CELLAR: Thank you, my name is John Cellar.
I’m a 31 year resident of Los Gatos, and going back further
I actually went to high school here, so I have deep roots
in the community. I appreciate your time and your
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consideration of this matter. There are a couple of points
that I would like to make.
One is I understand and respect the need for
rules and regulations around building issues such as Dr.
Kohanchi’s; I absolutely think that they create an orderly
and aesthetic community. But if we’re going to have these
ordinances, they either need to be applied uniformly or
they should not be applied at all. To single one person out
while there are many examples of others that have in fact
violated this code I think is blatantly unfair, unethical,
and not in the spirit of community.
The other point that I would like to make is I
live on Littlefield Lane. Prior to that I lived at the
corner of Camino del Cerro and Blossom Hill Road. I was not
on Blossom Hill Road, but we cornered it, and it’s a very
busy road. People would drive very rapidly down the road.
In fact, there were two instances—not while we owned the
home—where cars came through the fence onto our property.
So the issue of safety is one that is very near and dear to
me.
Blossom Hill is a very busy road. Dr. Kohanchi is
surrounded by commercial buildings. I live on a cul-de-sac
now, I don’t have those kinds of concerns, but if I were to
live on Blossom Hill Road… And I have to tell you, part of
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the reason we left our previous home is because of issues
around safety with cars coming rapidly down the street. So
I think that it’s really important to consider the safety
aspect of cars jumping the road and potentially going
through the fence and causing harm to family and/or
construction. That’s all I have to say. Thank you for your
time.
CHAIR HANSSEN: Thank you so much for your
comments. It looks like there are a couple of questions for
you from Commissioners. I’ll start with Commissioner
Janoff.
COMMISSIONER JANOFF: Thank you, and thank you,
Mr. Cellar. I just wanted to point out one thing. I
appreciate your concern for the Kohanchis, and I appreciate
your thinking that this is an isolated incident that we
would be seeing the fence issue for this one family
differently from others, but I wanted to point out and
perhaps direct you to previous Planning Commission
meetings.
We’ve had a number of Fence Ordinance issues
along these very lines. We are not singling out one family.
I just wanted to make sure that you understood, we do hear
these issues individually, we consider them on their
merits, and I just wanted to assure you, this is not an
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isolated, singled out instance. Just wanted to make that
perfectly clear.
JOHN CELLAR: I appreciate that. We all know
there are multiple examples of fences that are 6’ that are
within the 18’ setback. Maybe each one of them has been
(inaudible).
COMMISSIONER JANOFF: We are aware of that, Mr.
Cellar, and many of them are prior to the Fence Ordinance
being in place, and some are not and they come to us
individually. But thank you for your comments. Appreciate
it.
CHAIR HANSSEN: Then also Commissioner Thomas has
a question for you.
COMMISSIONER THOMAS: Thank you. Mr. Cellar, I
was wondering if you were aware of any recent fence height
exceptions that you felt have been unfair? Because you
mentioned this, that you feel like not enforcing it
uniformly is a problem, so are you positive that the fences
you’re thinking of and referring to have been built since
the new ordinance was adopted?
JOHN CELLAR: No, I’m not positive of that, but
like I said, I’ve been in this community for a lot of
years, I’ve worked in this community, and I drive through
the streets. Can I prove that? No, absolutely not, but it
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is very much my sense that there have been continued
construction of 6’ fences over the years, and obviously
some were put in prior to the ordinance and my sense is
that some have been put in subsequent to the ordinance.
COMMISSIONER THOMAS: Thank you, I appreciate
that. I think that it is important. I think that our Town
Staff works really hard to ensure that things are enforced
uniformly across the Board, and I know that this has been
something that has come up in previous meeting, and every
single time we ask, “Can you tell us exactly how many 6’
fences that are violation that had been built since the
ordinance?” and as far as my experience since being on the
Planning Commission, we haven’t had one issue with it, so
thank you.
CHAIR HANSSEN: Thank you for that, Commissioner
Thomas. Do any other Commissioners have questions for Mr.
Cellar? I don’t see any hands raised, so thank you for your
comments, and it looks like we still have others that want
to speak.
JENNIFER ARMER: Yes, I believe the next speaker
is Tony, and I’m going to allow you to speak. Go ahead, you
can unmute and you have up to three minutes.
TONY BOMMARITO: My name is Tony Bommarito; I’m
well acquainted with the Kohanchis. I was just listening to
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the entire discussion and I just to make the point, and I
hope it’s accurate, but it sounds like they did what I
would expect any reasonable person to do, which is to
consult the Town’s website, and it sounds like any
reasonable person in their circumstances would have
concluded that they were acting within the code. Now, I
guess they could have scoured further and found more
information through other accessible sites, but I can
easily see how I, myself, would have been directed toward
the information that they had and thought I was acting
within the code properly.
I think in fairness to them, this is sort of a
similar circumstance where somebody might have built a
fence 20 years ago or whatever, and then later on after the
fact they find out that the code is in fact different than
what they were told, and I don’t think that’s any fault of
theirs, so I think in fairness to them I could see how they
could be treated like somebody who built there fence before
the code was changed. That’s my comment.
CHAIR HANSSEN: Thank you for your comment. Do
any Commissioners have questions for Tony? I don’t see any,
but thank you for your comments.
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I don’t see any other hands raised, but if anyone
else that is viewing the meeting would like to speak on
this item. It looks like we have a couple more.
JENNIFER ARMER: Yes, Lee, you should be able to
speak. You have up to three minutes.
LEE QUINTANA: I don’t think I’ll take the three
minutes, but I would like to comment that one of the
reasons that that Fence Ordinance was changed as to the
setbacks in the front and the sides of yards that fronted
streets was to maintain the small town character of Los
Gatos, and when I drove by this this morning after reading
it on the website, after just coming back from vacation in
Oregon, I was sort of shocked by that fence and I felt like
if everybody who wanted to be more protected put up fences
like that, it would definitely change the character of Los
Gatos.
As far as safety goes, I live in a house that’s
on a corner of a street where there’s a curve going uphill,
and before I moved in the actual bay window of our house on
the street was hit by a car, the tree in front of our house
was hit by a car, and my car was demolished by a speeder
coming up the hill, and yet I don’t have that kind of a
fence, and I would never put it up because I think it would
be an affront to my neighbors.
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I understand to a certain extent their concern,
but there must have been another way to do that. They could
have replaced their 6’ fence that is further in with a more
substantial fence.
I also would like to comment on the fact that the
whole front of that lot is fronted by very large trees
that, again, are not consistent with our current code, but
they were there, and their concern is about intruders, and
it seems to me having those large trees along that area
provides a sort of hiding place for people, and if they’re
concerned about safety one thing would be to lower the
foliage in the front of their yard.
I also looked at the plans and I was confused,
because it looked like there was a lot of space inside the
yard inside the existing fence that has a gate across it
that would allow for more storage of cars; it just shows on
the plan asphalt.
I do have a certain amount of sympathy for them,
but I also think that the Town needs to be very careful
about the exceptions that it grants. Thank you.
CHAIR HANSSEN: Thank you so much, Ms. Quintana.
Do any Commissioners have questions for Ms. Quintana? I
don’t see any hands raised, but thank you again for your
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comments, and it looks like we have another speaker, Mr.
Freeman.
JENNIFER ARMER: Yes, Keith, you should be able
to unmute. You have up to three minutes.
KEITH FREEMAN: Thank you. I live at 759 Blossom
Hill Road, next door to the Kohanchis, and have lived here
for 30 years, and over the years have seen quite a few
incidents on the street.
All the comments have already been made about it
being a commercial area. I’d like to point out that the
land slopes downward where 755 is located, and without that
fence they were quite exposed to everything that’s been
mentioned: people walking by, accidents. While we’ve lived
next door there have been burglaries next door to me at
763, so the Kohanchis wanting to put up this fence in this
particular area makes sense to me and I don’t have any
objections to it. I don’t have any aesthetic problems with
it, because it’s in such a commercial area, especially with
the Terraces located across the street. It isn’t really out
of character, considering where it’s located. Thank you.
CHAIR HANSSEN: Thank you so much for your
comments, Mr. Freeman. Do any Commissioners have questions?
I don’t see any hands raised, so thank you again.
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I will again say that I don’t see anyone else
with their hand raised, so this would be the time to raise
your hand if you want to speak on this item before I close
the public hearing.
JENNIFER ARMER: If anyone else wishes to speak
before we do return to the Applicant/Appellant for their
closing statement, any members of the public who wish to
speak should raise your hand now. I don’t see any
additional hands raised, Chair.
CHAIR HANSSEN: Thank you for that. As Staff
said, that would be the end of public comments, and now we
will go back to the Applicant/Appellant, and you have an
additional three minutes to address the Planning Commission
as well as any comments that were made by the public.
DAVID KOHANCHI: I’m going to respond to a few of
the comments that were made negatively toward the fence,
and then I’ll just make it brief. Thank you so much for
being here. I sure appreciate it. We’re neighbors at the
end of the day, so I hope it stays that way regardless.
One, in relation to the comment about maintaining
small town values, we are, again, in a business area. We
fit into where we are, and respectfully that doesn’t make
sense with the ubiquitousness of the violations that are so
severe. I spoke with Director Paulson within the last day.
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There are thousands of violations. When it’s that much of a
portion it no longer makes sense to say that’s the value of
the Town, unless we were to accept the 12,000 to 20,000 or
whatever properties you want to build in the next decade,
that doesn’t make sense. I understand your point. I respect
the comment, but I disagree.
With regard to packages if the gate were closed.
Again, the gate is opened from sometimes earlier, 6:30, to
9:00 to 10:00pm at night. If you want we can have some kind
of system where I monitor that and media record it; we can
do that. Whatever you say I will abide by, but in response
to the package, on Blossom Hill Road and nowhere else in
this area Amazon trucks don’t drive into the driveway; they
just don’t. They stop in front of the driveway, they take
out the package, and they walk it to your front door.
In addition, if, let’s say, our gate was closed,
we have a metal package and delivery system outside of the
gate that’s embedded in the gate itself for this very
purpose, so the potential for a delivery truck stopping and
staying for longer than any other home does not exist in
our home.
In response to a comment from somebody who said
even though a car flew into her house and she didn’t have a
fence, so why does anybody else have a fence? Do we believe
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that to be a justifiable comment? Do we think that somebody
saying that just because my house was robbed, my house had
a car crash into it, why did I have a fence? Does that
merit you after the fact saying that why does somebody else
want to prevent these disasters? That does not make sense
to me as a logical statement.
In response to the trees that we have, there was
a comment about visibility. One of the big comments is
there’s walking traffic, there are people coming by, and
you can’t see when you come out of the fence. This gate was
designed as a metal perforated fence with the intent of
being able to see through the fence; that was deliberate.
In addition, the trees alone block the view
enough, and they’re grandfathered in because they were
placed a decade ago, so none of those arguments seem to be
valid with response. Yes, in theory that is a great
argument, but when you look at the fine details of what is
actually happening, it does not make sense.
Our gate, if closed, which it never is, has a
package delivery system, so cars will not stop. The trees
are there and they obstruct already, so even if I were to
remove the gate, the trees are there, so I don’t think the
vast majority of comments that were made, though I do
respect them, were valid in their points to get across.
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CHAIR HANSSEN: I think Ms. Armer had her hand
up, so I’m sensing that is probably the three minutes.
DAVID KOHANCHI: Thank you so much.
CHAIR HANSSEN: Don’t go just yet. Let me see if
Commissioners have any additional questions for you, and
this would be the last time to ask the Applicant/Appellant
any questions, because after this we will be closing the
public hearing. Commissioner Janoff.
COMMISSIONER JANOFF: Thank you. Mr. Kohanchi,
you have a fence within this fence. Could you please
describe that and tell us why that fence is not sufficient
security for your needs?
DAVID KOHANCHI: When we came into the home
initially that fence was locked, and we had squatters in
the home with that fence already. We also hired somebody to
fix the door. Within the first three months that we were
here, the front door was broke into the home; there was
like a lock issue, and we left. He left for lunch and came
back and got over that fence.
The way that the fence is designed, given the
slope of the lot, and it’s a very flimsy wooden fence, in
theory for someone to say why didn’t you replace that
fence? There’s a misunderstanding of the cost incurred. To
replace that fence entirely would have cost three to five
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times the cost of putting our fence in, so that’s why we
didn’t. I would have replaced and fixed that fence, but the
cost was too great to do so.
COMMISSIONER JANOFF: So there’s a cost issue,
and you’re saying that the fence…
DAVID KOHANCHI: It’s not sufficient.
COMMISSIONER JANOFF: …inside the metal fence is
not (inaudible).
DAVID KOHANCHI: Not (inaudible).
COMMISSIONER JANOFF: Another question, if I
might, Chair?
Your recent presentation indicated that you’ve
got two new businesses that require use of your property in
a way that makes it necessary to park your personal use
cars outside the original fence and behind the new fence.
It’s a little unclear to me. Your arguments have gone quite
a bit into personal security, but what it looks like to me
is that you’re really creating security for the cars that
you want parked inside that fence as well; it seems like
that’s a pretty high priority. Also, you’re starting a
high-end car rental business of some sort, and my guess is
that you’re going to want to park those cars behind this
fence as well, because there obviously wouldn’t be room
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behind the wooden fence, since there already isn’t room
behind the wooden fence.
DAVID KOHANCHI: No, I think I could sufficiently
fit more cars, but I did not prioritize one versus the
other. All of them, I feel, are arguments that stand. I
think the notion that safety is a priority to us; it’s been
made very clear. The notion that if I buy cars that are
worth a lot would I park them inside the inner gate versus
in the other gate, the space and availability and
protective measures, the outer gate is significantly more
sufficient in protecting the cars, and so for the added
space I would park it in either.
There’s also the potential that if I were to rent
those cars that I would want those cars in the in-between
space, and this is not a priority issue, so that the person
that came to access the car, there would also be an extra
layer there between the car and coming into our home.
COMMISSIONER JANOFF: What I’m trying to
understand is given the use of your property in these new
business ventures whether or not you have sufficient room
behind the wooden fence to store the vending machines and
high-end cars as well as your cars?
DAVID KOHANCHI: Likely not.
COMMISSIONER JANOFF: Thank you.
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CHAIR HANSSEN: Commissioner Thomas.
COMMISSIONER THOMAS: Thank you, Chair. I have
one follow up question, and that is in order for us to
grant an exception we have to make these required findings.
One of them includes an undue hardship, so can you tell me
the status of your two business ventures at this moment?
DAVID KOHANCHI: Yes. One of the business
ventures I’m in a bidding war to purchase a vending machine
route that has 55 vending machines, 14 of which are
unallocated, that would stay in our home until I find a
location for them. I would store a significant inventory in
the house. Likely it will go through within the next two
weeks, and I’ll probably start taking over that business
within the next month or two.
As far as cars, the car market, within the last
two years I’ve been looking for cars. I went to this Los
Gatos exotic car collection many times. Unfortunately, the
price of cars right now is 10-30% or even higher for exotic
cars, so I’ve been waiting for the price of the used car
market to decline significantly for it to make sense.
COMMISSIONER THOMAS: Thank you. I do just have a
question. In the materials you submitted, when you
discussed earlier you stated that over 100 people, you
estimate, from the Terraces can see directly into your
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house, and so are you arguing that you feel like there’s a
safety concern because the people that live at the Terraces
can see your house?
DAVID KOHANCHI: I think uninvited visibility of
any place creates the potential for a person to have
malintent. Any unwelcomed visibility creates a scenario of
somebody you do not know having some intent upon you that
you are unaware of. So do I think the retirement facility
is the most risky of them all? No, but the facility in and
of itself has a lot of outsiders the come and work in the
facility that have no association with Los Gatos. There is
heavy turnaround there with cooking staff, cleaning staff,
the day-to-day workers, and nursing staff that have changed
in and out. My concern isn’t necessarily for the residents
that are retired there and living happily, my concern is
for everybody else.
Directly across from us on the bottom floor,
which has a large gate itself, is like I think a restaurant
related to the retirement facility, where all of the
workers sit directly outside our home and smoke constantly
from early hours when I leave the home until 11:00pm. Right
now, if I go outside there’s likely somebody smoking there.
That in and of itself creates a level of stress and a level
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of fear with the stranger that’s there, because there’s
very little accountability.
COMMISSIONER THOMAS: Okay, you answered my
question. I just would like to clarify, so you’re not
really concerned about the residents that live across the
street, but you are concerned about the type of workers
that might come and be working at the Terraces?
DAVID KOHANCHI: Everybody else that frequents
that site, yes.
COMMISSIONER THOMAS: Chair, I have one more
question.
CHAIR HANSSEN: Go ahead.
COMMISSIONER THOMAS: One of the other things
with the exceptions is that there are security concerns
that exist that cannot be practically addressed through
alternatives, and I think Commissioner Janoff talked about
this a little bit with the second fence, but can you walk
us through any other improvements that you’ve made to your
home, or anything else that you’ve done to improve and
increase the safety of your home for your family?
DAVID KOHANCHI: The front door that was broken
when we moved in we fixed. The back door we reinforced with
a double lock. We created a security system with about 17
cameras in the home, two outside in the front, three
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outside in the back, and a Ring doorbell. Everything that
we can do that seems feasible, we’ve done.
COMMISSIONER THOMAS: Are those all the things
that you’ve done? Is there anything else that you’ve done
to try to improve safety?
DAVID KOHANCHI: Improve safety? I don't see any
other thing that you could do, respectfully.
COMMISSIONER THOMAS: And do you have a pool?
DAVID KOHANCHI: Yes.
COMMISSIONER THOMAS: And is there a fence around
your pool?
DAVID KOHANCHI: There’s a reinforced cover that
we essentially just reinforced within the last two months,
because our baby decided to walk and we’re aware that she’s
at risk, so yes, there is a cover to the pool.
COMMISSIONER THOMAS: Okay, thank you.
CHAIR HANSSEN: I had a question for you. I was
going to ask about the security system. I’m trying to
understand, and maybe you could help me understand. You’re
leaving the gate open from, if I heard correctly, 6:30 in
the morning till 9:00 o'clock at night, so relative to this
issue with the Terraces, I’m having a hard time visualizing
where the concern would be from 9:00 o'clock at night until
6:30 in the morning from the Terraces. Could you help me
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with that, because you’re leaving the gate open the rest of
the time?
DAVID KOHANCHI: I’m confused by the question.
CHAIR HANSSEN: Well, you’re talking about being
concerned about your safety and gave the examples of the
workers at the Terraces and people sitting outside, and so
are these workers sitting outside from 9:00 at night until
6:30 in the morning?
DAVID KOHANCHI: There are risks that I can
control and risks that I can’t control. One, we are in
agreement from the beginning that this gate should not be
closed during the day, so we feel that there is a potential
that if my wife wants to come in and out that there could
be an issue, so we decided from the very inception that the
gate would be open during those hours. For the sake of just
us, we thought that it was appropriate for the gates to be
open during the day.
Now, I don’t fully understand, because the gate
is perforated, so my concern is not necessarily that at
daytime somebody is going to come in and at nighttime
they’re not. My concern is that the very added layer of
protection is a strong deterrent to anybody that would
create a problem. And again, crime across the board is
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significantly worse at night, specifically with regards to
trespassing and strangers breaking into homes.
I mean, if there was an option to close the gate
during the day and we thought it made sense, then yes, but
I think logically speaking we keep it open, and there are
things that you can and make sense to do, and things that
you can’t. I don’t walk around in a bulletproof vest. When
COVID happened we could have all wore…
CHAIR HANSSEN: It’s okay. I think you answered
by question, thank you.
DAVID KOHANCHI: No problem.
CHAIR HANSSEN: Do any other Commissioners have
questions? Vice Chair Barnett.
VICE CHAIR BARNETT: Doctor, I’m having trouble
understanding why you wouldn’t get adequate security if you
moved the fence back to the setback as required by the
ordinance. Wouldn’t you get everything you’re asking for by
moving it into compliance with the ordinance?
DAVID KOHANCHI: Respectfully, multiple
responses. If we moved cars closer to the front because we
needed the space, those cars would be at risk for people
jumping over the curb and hitting those cars and
vandalizing the cars, as a business discussion we had, and
if we moved the gate it would incur significant costs that
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are insurmountable. So even the notion, even if that was
possible, even if we said we’re going to move the gate,
then by that virtue we followed an ordinance that it would
be surmisable that other people that were within similar
situations should do the same.
The reason that we’re asking, we changed the code
and we said it’s really important for the Town to maintain
small town values, right? And we’re saying that the reason
that we can’t ask everybody else, and the reason we made
everyone grandfathered in (inaudible) because it’s a burden
to its citizens, right? Because the notion of removing or
reinstalling a fence is months of income, six months to a
year of work, and a lifetime of money. I get the
suggestion, but in practicality I think it’s very, very
difficult and non-feasible.
VICE CHAIR BARNETT: Okay, I understand your
response. Continuing the conversation on that point, would
it be safe to say other than the cost factor, which I
respect is significant, the risk would be to the cars
parked in front of it?
DAVID KOHANCHI: Well, also us, right? This is
the lot of our home, it’s our property, so in theory if I’m
walking out to get my mail a car could hop the curb and hit
me. Same thing with our daughter. It’s a big lot, there’s
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we’re saying 18’ setback from where the other fence is,
there’s 18’, and on both sides probably 50-60’. You’re
talking a big portion of our lot would be exposed. It’s not
like every other home. Our lot is set back 40’ from the
front of the street, so you’re taking away a significant
portion of our property.
VICE CHAIR BARNETT: I understand your point and
appreciate your input.
CHAIR HANSSEN: Thank you for that, and
Commissioner Thomas has another question.
COMMISSIONER THOMAS: Thank you, Chair. I just
have another question, because you mentioned that you’re
going to start this business venture with the cars, but you
currently don’t own any of those vehicles and you’re not
storing any of them on your property?
DAVID KOHANCHI: My car is very expensive, but
no. Other than my own personal car that I use? No.
COMMISSIONER THOMAS: And then have you filed for
a business license for this business that you’re planning
on doing yet?
DAVID KOHANCHI: I have a business license. I
don’t think this should be privy to the Town, but yes, I
have a business license that could be utilized (inaudible)
to the public.
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COMMISSIONER THOMAS: Well, it is part of our
seeing if this is an undue hardship or something, so that’s
why I’m asking.
DAVID KOHANCHI: Understood. It could be amended.
I have a corporation that could be amended easily to be
utilized for this, so yes, the infrastructure is in place
for me to start the business.
COMMISSIONER THOMAS: Okay, but it would be very
expensive to move the fence back, so that’s the main issue
here?
DAVID KOHANCHI: That’s one of the issues. That’s
the one that I think makes it almost impossible to do. It’s
not the main issue, I think there are many, but that’s one
of the issues that I think are very important.
COMMISSIONER THOMAS: Thank you.
CHAIR HANSSEN: Any other Commissioners have
questions for the Applicant/Appellant? I don’t see any
other hands raised, so thank you for your responses and I’m
going to close the public hearing and turn to the
Commission for any additional questions for Staff, or
comments on the application/appeal. I don't know that we’re
ready for a motion yet, but maybe, and I will start with
Commissioner Clark.
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COMMISSIONER CLARK: Thank you. I have several
comments that I want to share. I think that a lot of what
he said ended up countering his other points, and so I want
to go through my thoughts I had as this was happening.
What we have is a fence that’s prohibited no
matter what, because it has spikes, within the setback, and
then another fence in that fence that’s also within the
setback, and there’s a 3’ height limitation when it’s in
the front setback, traffic view area, and driveway view
area, and this property meets all three of those criteria
for why it should have a 3’ height, and so I think that’s a
very important base to start with. There is a lot of
reasoning behind them not being able to do this.
One concern I had was they talked about how it
will increase safety, because the fence is pretty much
impenetrable by cars, and where my mind went with this is
that then if a pedestrian is walking along and a car comes
or something, they’d have absolutely nowhere to go, and I’m
a lot more concerned about a pedestrian than about some
expensive cars inside of a fence, and so I think that it
sacrifices the safety of the public for the potential
safety of some cars and supposedly his family, even though
I think that there are other ways around this.
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And he said that he didn’t replace the existing
fence because of the cost, but that really confuses me,
because he’s talking about expensive cars and having all
these business ventures and saying that that makes it
nearly impossible, but I think that it’s definitely within
the realm of possibility for them to create a fence within
their setback, and I don’t see any reason why they
shouldn’t be required to do that.
He said he wants two fences so that people can go
through the first one to get the cars and then maybe not
get past the second, which I also think contradicts some of
the other points.
So yes, overall I think that this feels like a
very, very special exception that they’re asking for that I
don’t think is warranted. I think this fence really doesn’t
fit with Town character. I was definitely surprised to see
it, and I am not personally open to some form of compromise
where they keep the fence open during the day and then
close it at night, because first, there’s not a way to
enforce that, and I don’t think we can just put that as a
condition. But also, I don’t think that that’s the only
problem by any means.
CHAIR HANSSEN: Thank you so much for your
comments, Commissioner Clark. Commissioner Thomas.
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COMMISSIONER THOMAS: Thank you, Chair. I also
just want to add that it’s difficult for me to see this as
a special security concern that exists that cannot be
practically addressed; there are alternatives. I know that
we’ve talked about security and safety and how that can be
problematic, because some of it is like a feeling and
perception, but it is very difficult for me to grant an
exception, to grant this appeal as an exception based on
possible future business ventures. I’m interested to hear
what other Commissioners have to say.
I know that during COVID things were difficult,
but it’s also difficult for me to think that the Town
didn’t respond at all. There’s just the lack of proof of
communication on either way. It’s just really unfortunate,
because it’s making it difficult for me to know just based
on multiple phone calls, and I think that as a person that
has recently dealt with things digitally when offices
haven’t been open, getting some permits for stuff, I
definitely have proof of when I contacted the Town first
about things to clarify with Staff, and so it just makes it
hard to me to believe since our email addresses are all
over that there wasn’t a possible way to get a phone call
back or an email, so that’s something that I’m kind of
struggling with too.
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CHAIR HANSSEN: Thank you for that, Commissioner
Thomas. Commissioner Raspe.
COMMISSIONER RASPE: Thank you, Chair. I’ll join
in my fellow commissioners. I think it’s fairly plain that
the fence as currently constructed is violative of various
aspects of our new Town ordinance of height, setback, and
materials.
I also didn’t find many of the Applicant’s
arguments compelling, the reliance upon the crime
statistics, for instance. Certainly we’ve all faced those
types of things, but my experience in Los Gatos, and I
think for most people, it’s not such a crime infested area
that 6’ spiked fences are required for our protection.
All that being said, I think the only point that
caught me at all was the notion of the confusion during
COVID regarding what the Town Code actually provided. I
listened to both sides of the argument on that issue, and I
agree there may have been some confusion or lack of clarity
perhaps, but the Applicant has made clear this was an
expensive build, and so I think reasonable due diligence
was imperative on that part; I’m not sure they satisfied
that requirement. It sounds like the Town was available in
large measure to answer reasonable queries, and so that
could have been sorted out before, and so even that I think
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the fence fails in the long run, and so that’s the way I
see it.
CHAIR HANSSEN: Thank you for that, Commissioner
Raspe. Back to Commissioner Thomas.
COMMISSIONER THOMAS: I do have a question for
Staff, if that’s okay.
CHAIR HANSSEN: It is.
COMMISSIONER THOMAS: Thank you. I have a
question about if cars were being stored in between the
fences, can they be stored there permanently or is that one
of those rules that we have about things like RVs and boat
trailers, that they’re not supposed to be visible to the
street. I didn’t really think about that until now, so I
didn’t have time to look up that part of our code, but
could Staff clarify that?
SAVANNAH VAN AKIN: Thank you for that question.
I can address that in terms of our Home Occupation Permit,
which corresponds to receiving a business license. In this
case, there are restrictions for having commercial vehicles
or also storage that is visible from the street.
COMMISSIONER THOMAS: So it is allowed, or would
it be part of the application process, or it’s not allowed?
JENNIFER ARMER: Review of the description of the
business would be part of the process. When an Applicant
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comes in for a business license that is associated with the
residential address we do look to get details of the
business, whether they’re going to be storing materials or
have unusual activity that is out of character with the
residential neighborhood, and so that’s part of a Home
Occupancy Permit that would be required if they were to
apply for a business license.
It looks like Director Paulson has turned on his
camera, so he may have something else to add as well.
JOEL PAULSON: Thank you, Ms. Armer. Commissioner
Thomas, I think you were calling out the RVs, boats,
campers, trailers, and those are not allowed to be stored
in the front setback, but a vehicle, you can park a vehicle
as long as it’s not your required parking, which is not the
instance here. The other component that Ms. Van Akin and
Ms. Armer were talking about is more related to the
potential for any future business endeavors, so we would
evaluate those at that time.
COMMISSIONER THOMAS: Thank you for the
clarification. I didn’t know if it had to do with the type
of thing that was parked, or if it was how long it was
parked, or both, so thank you for that clarification.
CHAIR HANSSEN: Thank you for that. Commissioner
Janoff.
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COMMISSIONER JANOFF: Thank you. The only area
that I could think would warrant an exception would be for
a special circumstance where you’ve got some undue
situation that requires this fence, and at the moment the
only circumstance that the Appellant has described that I
heard tonight was a future potential high-end car rental
business, and that’s all we heard. They’re too expensive to
purchase now, I get that, and so that business hasn’t
launched, but the Planning Commission can’t make decisions
based on a potential future what if. Somebody could say I’m
planning to have a dinosaur statue in my front yard and I
need a fence to protect it from vandals. Well, we can’t
really make a decision based on the what if, we need to
make a decision based on the existing circumstances, and I
think what we have heard tonight, and I think what I’m
hearing my fellow commissioners saying, is that we have
clear violations of an ordinance and there aren’t
compelling reasons to make a finding for an exception. And
I can’t make an exception based on a what if scenario. It
might never materialize, and there we are.
Having said that, I’m sympathetic to this
property being in a quasi-commercial zone. If there were a
car business, if there were an active car rental business,
I could see potentially having this sort of a fence to
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protect the vehicles behind it. It’s not an affront to me
to see this fence in this particular area of town, I just
can’t find a compelling reason to make an exception, but
I’m open to other Commissioners.
CHAIR HANSSEN: Thank you, Commissioner Janoff.
Vice Chair Barnett.
VICE CHAIR BARNETT: Thank you, Chair. One thing
that troubles me a lot is the discrepancy between the code
provision and what was on the website. The fact is that the
actual language of the ordinance was always in place and
easily viewed.
Also, I think it’s quite important that we take
advice from our Town Attorney that there is no estoppel
under the general rules applicable to towns and cities.
I’m concerned about the spikes, but appreciate
the offer of the Applicant/Appellant to remove those.
It seems to me that there is adequate parking. A
major part of the presentation in support of the appeal was
that there wouldn’t be an adequate play area for the
children based on the parking requirement of the doctor,
however, we did discuss the garage and that seemed to be a
partial solution to the problem.
I don’t think it’s consistent with the Blossom
Hill neighborhood. There are no other homes on that stretch
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between Camellia Terrace and Cherry Blossom that don’t have
the proper setbacks.
In terms of the safety, which the Town raised as
a concern, I assumed that there was an opportunity to
understand the spacing of the pickets on the fence and the
view that would be allowed by that, but it appears that the
Town, for whatever reason, discounted that as a problem.
So in all, I tend to agree with my fellow
commissioners that there is a problem with this. I’m very
sympathetic to the Applicant, having to rely on the
incorrect information on the website and spent a lot of
money doing that, but I don’t see that we have an
opportunity to go outside our jurisdiction and allow it in
this case. Thank you.
CHAIR HANSSEN: Thank you for that, Vice Chair
Barnett.
I have a few comments as well. I was on the
Planning Commission when we were considering the update to
the Fence Ordinance, and I think the whole idea was very
much in line with what Ms. Quintana said in her comments,
which is that if we’re going to have the small town
character we can’t go into a situation where we’re going to
have all these homes that are going to put big fences along
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the front of their property, that does jive with it being a
welcoming community.
Having said that, the ordinance is law and it
became law, and I was a bit concerned to hear that there is
the possibility of one kind of information in one place and
one in another place, but nonetheless, the Fence Ordinance
had been in place.
I also had the experience of having been on the
Commission when we were working on the General Plan during
the pandemic, and I don’t see any scenario where Town Staff
wouldn’t have been very and incredibly responsive during
that entire ordeal of the pandemic.
As for the concerns as noted by my fellow
commissioners, in order for us to grant an exception we
would have to have compelling evidence that would support
one of the findings that would be allowing for an
exception, and I just wasn’t hearing it. It sounds like
there are other means of security that are in place, and
then there’s also this future business but we can’t
consider that at this point in time, and so I can’t find
any compelling reasons to grant an exception.
I would also add that in listening to our Town
Traffic Engineer, just the very concern alone about the
viewing and stuff for the fence, whether it’s open or not,
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is a very compelling thing to make sure that we get this
set right.
I will see if there are any other comments from
Commissioners, and if not, I would ask that somebody make a
motion. Commissioner Clark.
COMMISSIONER CLARK: Thank you. I’ll make a
motion. I move to deny the appeal of a Community
Development Director decision to deny an exception to the
Town’s fence regulations on property zoned R-1:10 located
at 755 Blossom Hill Road.
CHAIR HANSSEN: Thank you for that. Commissioner
Thomas.
COMMISSIONER THOMAS: I second the motion.
CHAIR HANSSEN: So we have a motion and a second.
Are there any additional comments from Commissioners before
I call the question? So we will go again with the roll call
vote, and I will start with Commissioner Thomas.
COMMISSIONER THOMAS: Yes.
CHAIR HANSSEN: Commissioner Raspe.
COMMISSIONER RASPE: Yes.
CHAIR HANSSEN: Commissioner Janoff.
COMMISSIONER JANOFF: Yes.
CHAIR HANSSEN: Commissioner Clark.
COMMISSIONER CLARK: Yes.
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CHAIR HANSSEN: Vice Chair Barnett.
VICE CHAIR BARNETT: Yes.
CHAIR HANSSEN: And I vote yes as well, so the
motion passes unanimously, and I will ask Staff if there
are appeal rights for this action by the Commission?
JENNIFER ARMER: Thank you, Chair. Yes, there are
appeal rights. The decision of the Commission can be
appealed to the Town Council by any interested person as
defined by Town Code Section 29.10.020 within ten days, and
on forms available online with fees paid. Final deadline is
4:00pm on the tenth day.
CHAIR HANSSEN: Very good. Thank you for that.
(END)