Attachment 4 - June 14, 2023, Planning Commission Verbatim MinutesLOS GATOS PLANNING COMMISSION 6/14/2023
Item #2, 380 Blackwell Drive
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A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
Jeffrey Barnett, Chair
Steve Raspe, Vice Chair
Susan Burnett
Kylie Clark
Melanie Hanssen
Kathryn Janoff
Emily Thomas
Town Manager: Laurel Prevetti
Community Development
Director:
Joel Paulson
Town Attorney: Gabrielle Whelan
Transcribed by: Vicki L. Blandin
(619) 541-3405
ATTACHMENT 4
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P R O C E E D I N G S:
CHAIR BARNETT: We will now move into the public
hearing portion of our agenda and consider Agenda Item 2,
which is the consideration of an appeal of the Community
Development Director’s decision to deny a Fence Height
Exception request for construction of an automated vehicle
gate exceeding the maximum height and with reduced setbacks
on property zoned R-1:8, located at 380 Blackwell Drive,
APN 424-12-027, Fence Height Exception Application FHE-23-
002. Property owners are Larry Cesnik and Martha Johnson,
and the Appellant is Larry Cesnik. The Applicant is Ramin
Zohoor, and the project planner is Sean Mullin.
I note that the Staff indicates that the appeal
tonight is categorically exempt from CEQA under Section
15303(e), New Construction or Conversion of Small
Structures, and that if the appeal is granted tonight a
finding is required to be made regarding the application of
an exception to the Town’s Fencing Ordinance.
May I have a show of hands by the Commissioners
who have visited the property? Thank you. Are there any
disclosures? I don’t see any. Mr. Mullin, why don’t we
proceed with your Staff Report, if you will?
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SEAN MULLIN: Thank you, and good evening. For
your consideration tonight there is an Appeal of a
Director’s Decision denying an exception to the fence
regulations for a new vehicular gate at 380 Blackwell
Drive.
Located on the corner of Blackwell Drive and
National Avenue, the subject property is with a single-
family residence and an attached ADU. Existing
nonconforming fencing encloses the outdoor spaces on the
property except for the driveway area.
The property owner installed a sliding vehicular
gate at the front property line without the benefits of
permits to enclose the driveway area, and the property
owner was contacted by the Town and requested to submit a
Building Permit for this vehicular gate.
During review of that permit application Planning
Staff noted that the vehicular gate exceed the 3’ height
limitation for gates located in the required front yard
setback area and the traffic view area and does not meet
the required 18’ setback as measured from the edge of the
street.
On February 6th of this year the property owner
applied for a Fence Height Exception for the vehicular
gate. The Letter of Justification cited safety concerns
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related to the illness of a child residing on the property
and the need to prevent them from stepping off the
property. Staff was unable to make the required findings to
grant the exception and on March 6th the Town denied the
request, recognizing that the property is already enclosed
by existing fencing and gates except for the driveway area,
and that the vehicular gate creates unsafe conditions
caused by the gate lacking the 18’ setback and its
proximity to the intersection of Blackwell and National. On
March 8th the property owner appealed this decision based on
the justification provided with the exception request.
Staff’s analysis finds that the reduced setback
of the gate would not allow for vehicles to clear the
travel lanes while queuing, potentially obstructing traffic
on Blackwell Drive near the intersection of National
Avenue. The added queue time adjacent to the intersection
is considered a nuisance and an unnecessary risk.
Based on the analysis provided in the Staff
Report, Staff recommends denial of the appeal, upholding
the decision of the Director to deny the exception to the
fence regulations.
A Desk Item was distributed this afternoon that
includes additional information related to the safety
concerns of the property owner.
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In addition to Planning Staff, Engineering Staff
is also in attendance tonight to address any questions of
the Commission, and this concludes Staff’s presentation.
CHAIR BARNETT: Thank you, Mr. Mullin. I’ll turn
to the Commissioners and ask if anyone has a question for
Staff? Commissioner Hannson.
COMMISSIONER HANSSEN: Thank you; that was very
helpful. I noted in Exhibit 8 that the gate is 13’ and a
few inches into the property, so if the gate were moved
back 5’, would they be allowed to have that height of a
gate?
SEAN MULLIN: Thank you for the question. The
gate, even if moved back 5’, would still be located in the
required front yard setback area which has a height
limitation of 3’, and it would also be limited in the
traffic view area which is measured from the adjacent
corner of National and Blackwell.
COMMISSIONER HANSSEN: Thank you.
CHAIR BARNETT: Other questions of Staff at this
time? There will be an opportunity later, of course. We’ll
now open the public portion of the public hearing and give
the Applicant an opportunity to address the Commission for
up to five minutes. Who will be speaking for the Appellant
tonight?
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LARRY CESNIK: That will be me.
CHAIR BARNETT: Thank you. If you’ll state your
name and address, please.
LARRY CESNIK: Thank you, ladies and gentlemen of
the Planning Commission and Chair. My name is Lawrence
Cesnik; you can call me Larry. I am the resident at 380
Blackwell Drive here in Los Gatos, and I really want to
keep this fairly brief, but obviously open to any questions
you’ve got.
I think my major theme here is safety, not only
for our son but also of the citizens of the Town of Los
Gatos. Again, the request for the exception is for safety
reasons: the safety of our young adult son, Martin. There
are a couple of points that are real important to bring up
here.
Number one, and you’ll see a photo in a minute,
the ADU that’s on the property directly faces the driveway
and the street, and actually across the street, as you may
have seen for those who have gone there, is a tower area.
Our son, who has a condition of autism, has very low safety
awareness and he does need to be watched when he’s outside.
He is also a very physical guy—he’s at summer camp right
now, he’s having a great time—but he does move quickly, and
so he can quickly reach the sidewalk, he can reach the
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street and that electric tower area without a barrier, so
that’s actually why we built the gate, because we need that
gate to prevent any kind of unexpected bolting. So that’s
safety for him, our son, Martin.
Also it’s safety of the citizens of Los Gatos,
because if indeed he were to get out into the street area
or the sidewalk area obviously there are motorists there,
there are pedestrians there, and there are cyclists and
pets and so forth, so it’s not just for his own safety but
I think the safety of the people and animals that would be
walking or driving by.
Just to give you a sense, some of you have been
out to the property already, but you can see where the gate
is. Obviously it’s open, it’s not closed now, but if closed
it would block that driveway which leads to the sidewalk
and into the street, and then the right side view is out
towards the street and that yard area around the electric
tower near the intersection of Blackwell and National
Avenue. That gives you a visual sense of it.
Here we have a letter from Martin’s primary care
physician, Doctor Chaudry. It’s a little bit small font to
read here, but it’s in the record. Essentially what she is
saying here is he does have this condition. A lot of folks
with this particular condition don’t necessarily have a
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high safety awareness. We’re really working on it a lot,
but it’s something we just cannot fully control, and so
this is our way of saying hey, can we put a barrier there
of some kind that will at least slow him down.
The next couple pages are just some excerpts.
He’s a client of the San Andreas Regional Center and he,
like other consumers there, has an individualized program
plan. We’re not going to show the whole plan, there’s a lot
of private information in there, but what we’ve highlighted
in yellow is the word “safety,” because it comes out a lot
of times in terms of that’s an issue. So that’s an issue
that he has, it’s an issue that we’re working on; it’s an
issue that we’re setting goals for him to try to achieve.
Nonetheless, it’s a long process; it’s a lifelong process
for him to get there. I think the second page has some
additional plans and goals in his individual program plan.
We have other documentation. As a student he’s
now working in an adult day program in San Jose, but
through his non-public school career at a couple of schools
in Redwood City and in Santa Cruz, that’s also been on his
individualized educational plan, his IEP.
I think those are really all of my comments. I’m
very happy to answer questions, but again, it’s two-fold
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safety: safety for our son and safety for citizens of the
Town.
CHAIR BARNETT: Thank you very much, Mr. Cesnik,
and I’ll turn to my fellow commissioners to see if they
have any questions of you. Commissioner Hanssen.
COMMISSIONER HANSSEN: I was just curious; the
fence is about 4’ or so. What’s preventing your son from
going over the fence?
LARRY CESNIK: It’s a great question. There’s no
solution. We can’t put up a 20’ fence obviously. He is a
physical guy, but it’s really not… The assumption here is
that there’s going to be someone on the property. He will
never be at home by himself, and so it’s actually to
prevent him from doing a bolt when an adult may be right
around the corner there. But if he had a fence that was
taller and he tried to climb it, yes, that might slow him
down a little bit more, but having a fence there of that
size and magnitude will at least have him stop and think,
slow him down enough so that an adult can get there.
COMMISSIONER HANSSEN: Have you had any instances
where he was able to climb over the fence?
LARRY CESNIK: No, no. As a matter of fact, he
hasn’t lived on this property a very long time, one of the
reasons being we have another property that we’re
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transitioning out of as well, so we’re residents to Los
Gatos. One of the reasons, frankly, that he hasn’t full
time come to there is because we still haven’t resolved
this issue, but in other properties that we’ve had we’ve
had similar setups. Again, we’ve been able to use those
kinds of, let’s call demotivators, to prevent him from
going too far, whether it’s a gate or similar kind of
barrier.
COMMISSIONER HANSSEN: Okay, thank you.
CHAIR BARNETT: Thank you for that comment.
Commissioner Janoff.
COMMISSIONER JANOFF: Thank you. I’m curious
about the purpose of the vehicular gate. The ADU doesn’t
have any driveway-facing windows or doors or access, so
it’s just a plain wall, so effectively the driveway is a
parking area. You have a fence with a gate that tees into
the corner of the ADU that faces National Avenue, and you
have one that comes parallel to the street that the
driveway accesses on, so that’s containing your property
along with the perimeter fences, so my question is what’s
the purpose of the gate? What’s the use of that area, and
what are you trying to achieve?
LARRY CESNIK: I think two things. Primarily the
reason for the gate is, again, for the safety of our son,
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and what I would say is yes, it doesn’t look like there’s a
clear path from the ADU right to the street, but in reality
there is. We actually did not put a door or window in that
front for that… We wanted to make it as safe as possible.
There is a door around the side which you can’t see in that
photo very well, but it’s really quick for him to come down
there, so essentially even though he can’t break through
the wall and go right out there, it’s just a few feet more
for him to be able for him to access it, so that’s the
first reason. It is actually those several feet that the
gate would enclose that is the only open area around our
property now. So, yes, we do have the picket fence and
other features there. So it’s the area that actually is
close, it’s open; it’s actually the closest to the ADU,
even though it’s sort of a side entrance.
The second reason is the reason we are not asking
for (inaudible), because we are adults that live and work,
and so we actually do need to get our cars. You’re right,
we do park our cars there, that was a garage that the ADU
is now, but we need to actually get back and forth, so it
was our practical solution to be able to open it up only
when we need to get in and out and keep it closed the rest
of the time.
COMMISSIONER JANOFF: Thank you.
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CHAIR BARNETT: Other questions by Commissioners?
Vice Chair Raspe.
VICE CHAIR RASPE: Thank you, Chair. Mr. Cesnik,
first of all, thank you for coming this evening and sharing
information. I know it’s difficult sharing information, but
thank you, it makes our decision making all that much
better.
LARRY CESNIK: Sure.
VICE CHAIR RASPE: Really I think we’re
considering two things here tonight, both the height of the
fence and the location of the gate as well.
As to the location, is there a way you could move
the gate back approximately 5’, as Commissioner Hanssen
said, still retain a closed off area, but allow enough room
that cars could queue without sticking out into the street?
Essentially, could you move the gate back 5’?
LARRY CESNIK: I think the answer is almost
anything is possible architecturally. We’d have to talk to
our builders, our architects, so I can’t answer the
details. Conceptually I think that’s possible.
May I ask the Commissioners a question to make
sure I understand the idea of the queuing, because that’s
not what I’m totally clear on? Is it okay for me to ask
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that question, or not? I want to follow protocol here, so I
can fully answer your question.
CHAIR BARNETT: I think he can clarify the
question.
VICE CHAIR RASPE: So my understanding of the
queuing is we need enough room, or the Town wants—and
Staff, please correct me if I’m wrong—while the gate is
opening, the Town is trying to avoid any portion of the car
backing out into the street, because the gate is a slow-
opening gate in most instances, and the concern is that the
remainder of the car stays in traffic while the gate is
opening, and as a result the Town has instituted, I
believe, an 18’ setback to avoid that circumstance, and
your gate is currently in violation of the 18’ setback. Do
I have that about right? So if you move the gate back to
that 18’ mark, it would solve one of your problems.
LARRY CESNIK: Thank you; that helps clarify it.
To me one of the other logical solutions would be, if I’m
understanding correctly and not being a person who is
necessarily in a hurry to get out, would be to make sure
the gate is fully open before even trying to back the car
out. To me, that would simulate how I would back the car
out if I didn’t have a gate at all. Is that logical?
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VICE CHAIR RASPE: I appreciate your answer.
Thanks so much.
CHAIR BARNETT: Commissioner Clark, you have your
hand up.
COMMISSIONER CLARK: Thank you. I’m sorry that
I’m on Zoom; I wish I were there in person.
LARRY CESNIK: No problem.
COMMISSIONER CLARK: I have two questions. First,
I was just wondering, how long have you had the gate?
LARRY CESNIK: The gate has been there for I
think at least a year. I don’t know the exact amount of
time but whenever we received the violation, and the
Commission probably has a closer idea, but many months ago,
it’s been there but it’s obviously been open; it hasn’t
been functioning. Maybe the Commission could help, or the
Town can help with the dates. Probably around a year or
more.
COMMISSIONER CLARK: Okay, thank you. Then my
second question is how often is the gate open versus
closed? I know when I did my site visit it was open, and
it’s open in those pictures.
LARRY CESNIK: Right now, unless someone has a
magical way to get to our control, 100% of the time,
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because we’re trying to comply with the notice that we
received.
COMMISSIONER CLARK: Okay, got it. Thank you.
CHAIR BARNETT: Further questions? Commissioner
Burnett.
COMMISSIONER BURNETT: Thank you for coming
tonight. I think my biggest concern is National Avenue is a
fairly well traveled road, and if you’re turning onto your
street and you are parked there to go into your driveway
and the gate is closed, the average length of a car I think
is like 1.5’-16’, so part of the car would be in the
roadway, and I think that’s my concern that as cars are
coming around the bend you’re wanting to go into your
driveway, the gate is closed, you’re waiting, and there’s
traffic coming by and you’re in the roadway. How would you
answer that?
LARRY CESNIK: I understand the question, thank
you. I would answer it using the same approach I mentioned
to the Vice Chair, which is the control does have quite a
bit of distance on it, and we as the homeowner, if we’re
granted this exception, could commit to practicing the
following. Like I said a few minutes ago regarding leaving,
waiting until it is fully open, and when we’re entering we
could activate the gate at a distance, and it’s got a
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pretty good distance on it, so that it would be fully open
before we arrive there, thus avoiding the backup that
you’re expressing.
CHAIR BARNETT: You have a further question?
COMMISSIONER BURNETT: Yes, thank you, further
question. So if you had a visitor that didn’t have an
automatic gate opening or they had to wait there and didn’t
have the quick access that you have, how would you handle
that?
LARRY CESNIK: At this point, given the
logistics, we do not have a lot of space for guests anyway,
so we would be asking them to park on the street or make
other arrangements, but that would be the normal process
just because it’s complicated.
COMMISSIONER BURNETT: Thank you.
CHAIR BARNETT: Other questions? Commissioner
Thomas.
COMMISSIONER THOMAS: Yes, thank you for coming
and sharing all of this information tonight. I really do
appreciate it. I feel like you’ve been very thorough and it
is well appreciated.
My question is just that if a special security
concern does exist, which I think that’s part of what
you’re presenting tonight, do you feel like you’ve explored
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other options for it to be practically addressed in another
way?
LARRY CESNIK: I think we are using other options
in conjunction with the one that we’re requesting. I think
as parents of a child with special needs, many of the
actual requirements, we simply cannot depend on just this,
a barrier, to help out. There are many things that we need
to do, which kind of gets to the program he’s working on,
the encouragement of him doing the kind of behaviors, and
just, frankly, being alert.
So the answer is yes, it’s been sort of a
lifelong work that we’ve been doing and this is part of the
package that we’re hoping for the safety of him and the
citizens.
COMMISSIONER THOMAS: Okay, thank you.
CHAIR BARNETT: Commissioner Hanssen.
COMMISSIONER HANSSEN: I just wanted to follow up
on Commissioner Thomas’ question. I think the spirit of
that exception which would allow us to grant an appeal is
not that you’re using other things in conjunction with the
gate, but that there was no other way to secure your son’s
safety other than by having this gate.
Just to give an example, one thing that crossed
my mind in looking at this was because there are fences in
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a lot of places on the property is there no way to lock the
gates to keep him from entering the driveway? That’s the
kind of thing that we would need to understand. Is there no
other way to keep him from entering the driveway?
LARRY CESNIK: In my opinion, no practical way. I
suppose there are always ways, and obviously we’d be open
to creativity and doing that, but he is our son who has the
right to enjoy the property as well, and so we don’t want
to restrain him to the point that his liberty is lost,
because it is the fine balance between being able to have
him safe but at the same time feeling like he’s a member of
the family and a member of the community. That’s why I’m
saying there could be other ways; they probably wouldn’t
feel in the spirit of how we want to be treating our son.
COMMISSIONER HANSSEN: I understand that. Can I
ask a follow up question? What is the utility of the
driveway to him or to anyone else other than to have cars
parked there?
LARRY CESNIK: More ADU owners like ourselves are
using the driveways more to park cars than typical
families, because we’ve eliminated the garage as a space
there, so that’s the utility of it for our family. One of
the practical examples of how this presents a problem to us
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is that he has to go to his adult day program every day, he
has go places.
We do, by the way, love the park down the street.
One of the reasons we chose the neighborhood is it’s an
incredible neighborhood for walking and we can walk to
places, so we definitely will take advantage of that.
Obviously, more times than not when we’re leaving
the house we’re not going for a walk, we’re getting into
the car, and so on the way to the cars is actually part of
the concern. We’ll be very careful there, but that’s
probably a lot of the reasons for that. He doesn’t really
have a lot of interest, if I understand your question, of
going to the driveway per se; it’s sort of a launching pad
to where he’s going next.
COMMISSIONER HANSSEN: I understand, thank you.
CHAIR BARNETT: Commissioner Janoff.
COMMISSIONER JANOFF: Just to clarify. It sounds
like what your need for your son is a secondary form of
containment, especially during the times when you have a
vehicular transfer for your son.
LARRY CESNIK: Yes, that’s it exactly. Thank you.
CHAIR BARNETT: All right, if there are no more
questions, I don’t see anyone in the audience, or we still
don’t have anyone on Zoom, Mr. Paulson? So this would be
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the opportunity for members of the public who want to speak
on Item 2 on the agenda, and I don’t think we have any such
people, so we’ll move on and give the Appellant another
three minutes if you choose to do so.
LARRY CESNIK: Thank you for setting the agenda
in advance. I didn’t prepare anything necessarily, because
I thought my opening remarks on sort of the safety focus
was clear, and so I just wanted to say that we’re actually
fairly new residents of Los Gatos, we’re trying to be good
citizens. We’ve invested, I think, well in the property to
hopefully make it a good place for us and our neighbors,
and getting to know those neighbors. Just being able to
have this ability to have an extra layer of security will
be great for us as we continue to enjoy all the good things
Los Gatos has to offer. That’s it.
CHAIR BARNETT: Thank you for those comments.
We’ll now close the public portion of the public hearing
and ask if any Commissioners have questions of Staff, wish
to comment on the appeal, or introduce a motion for
consideration by the Commission? Commissioner Janoff.
COMMISSIONER JANOFF: I’ll kick things off. I
think it’s clear from the Appellant’s statements made
tonight that what he’s looking for for his family is that
secondary containment, and it’s really clear to me that the
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gate needs to contain a vehicle in order to make a safety
transfer for the son in particular, so my thinking is that
the gate is necessary.
The positioning of the gate poses problems for me
because of the 13’ off Blackwell. Even if you’re quick to
the handle there still is a possibility that you’re going
to be hanging out there while other cars are coming
through, and because of the nature of the intersection
you’ve got that teardrop parklet that prevents you from
making a left turn into the driveway, which would be
perhaps safer because you wouldn’t be potentially
obstructing traffic from National Avenue.
My thinking at this time is that I would be in
favor of approving a gate but asking that it be moved to
the 18’ mark, even though that creates a setback intrusion
on the front of the house. I think that the height of the
gate, given the size of the individual, is reasonable. So,
again, my thinking is if the same gate and functioning and
all can be moved back to create a safer ingress from
National onto Blackwell into the driveway, that would be a
recommendation I’m thinking is a reasonable one at this
time.
CHAIR BARNETT: Thank you for that. I actually
have a question for you. If the gate were moved back toward
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the face of the ADU, would you envision additional fences
on each side of the driveway as part of that?
COMMISSIONER JANOFF: Well, only on the left
side, because there’s a continuous fence from the sidewalk
to the corner of the ADU already, so it would just be you’d
need a 5’ fence on the left side of the drive.
CHAIR BARNETT: Thank you. Other comments? Vice
Chair Raspe.
VICE CHAIR RASPE: Thank you, Chair. I join 100%
with Commissioner Janoff’s comments. First off, with
respect to fence height, I understand that this fence is
4’-3”, which is higher than the 3’ allowed, but again, in
this situation there are security concerns that I think are
alleviated with a slightly higher fence, and it seems to me
that the purpose of the fence height is to preserve view
corridors, and the nature of this fencing is such that you
can see clearly through the fence, I don’t think it’s
obstructive in any way, so I would permit the higher fence
on the gate.
Then with respect to the gate, again, I believe
it’s a security concern that we should allow a gate, but
the location is problematic. Pushing it back to the 18’
setback I think solves the issue. I think it’s achievable
with one change, pushing it back with the fencing on one
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side, and I think that addresses the safety concerns for
the Applicant and the safety concerns for the drivers of
Los Gatos, so I would join Commissioner Janoff in her
recommendations.
CHAIR BARNETT: Thank you for that input.
Commissioner Hanssen.
COMMISSIONER HANSSEN: I have a question for
Staff. The exception that we’re discussing for the special
security concern, did you in your analysis consider that as
a possible exception? You said you couldn’t make the
findings. I’m just trying to understand what was thought.
SEAN MULLIN: Thank you for the question. Under
review of the original Fence Height Exception Staff wasn’t
provided the level of detail on Mr. Cesnik’s son, so we
were just presented with, as you can see in the
application, that the son had an illness and what was
looked at was the majority of the property was fenced and
it was just the driveway area.
COMMISSIONER HANSSEN: Very good. Can I also make
a comment then? I actually worked on the Fence Ordinance,
and I believe Commissioner Janoff was on the Commission
with me as well, and to me this seems like a valid
exception for the safety concern, and especially we
appreciate all the information that you shared, and it’s
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not easy to share all that information about your child, so
we totally appreciate that to help understand the
situation.
Having said that, I think it’s reasonable to make
the exceptions on the grounds of the special secure
concern, and it doesn’t appear to me that there is another
alternative without the vehicular gate.
Having said that, I also see the concern—and
we’ve seen this before on some other applications—with the
18’, it is a very dangerous area around there. Not maybe
Blackwell, but National Avenue per se is always very busy,
so I would concur with my fellow commissioners that I think
that moving the gate back needs to be looked into, but I
don’t think it’s problematic to keep a gate that’s 4’-3”
high, because the whole reason for the security is to keep
the son safe and there’s no reason we can’t go an extra
foot.
CHAIR BARNETT: Thank you. Other comments,
questions, motion? Commissioner Thomas.
COMMISSIONER THOMAS: I agree with my fellow
commissioners about the height, but I did have a question
for Staff about the parking on that street. I know
obviously on the corner there’s a red zone to protect the
view area, but then from the red zone in front of this
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property—on Blackwell, not on National—is there parking?
Right in front of that area is there parking, or is the
street parking farther down?
SEAN MULLIN: Thank you for the question. I
believe street parking is allowed past the red zone. The
Town Engineer, Gary Heap, is available. He may be able to
add some clarification.
CHAIR BARNETT: Why don’t we hear from the
engineer in light of that comment?
GARY HEAP: Thank you very much. Gary Heap, Parks
and Public Works. In looking at the aerial of the street
view right now. I do see the red curbing there that is in
existence from the corner to the driveway approach; I
believe that is there to protect the fire hydrant that is
there. If the fire hydrant were not there, parking would be
allowed in that area, both on either side of the driveway,
but right now because the hydrant is there parking is only
allowed on the west side of the driveway.
COMMISSIONER THOMAS: Okay, thank you. I do have
some follow up comments then about that.
CHAIR BARNETT: Please proceed.
COMMISSIONER THOMAS: Okay, thank you. I
understand my fellow commissioners’ concerns about the 18’
to allow for the traffic, but when I was at the site and
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seeing the red area and seeing the ability to pull a car
over to wait for the gate to open I am inclined to feel
like it is kind of an undue hardship to require this to be
set back. I don’t know if there’s truly an added safety
benefit that is considered practically addressed,
considering I understand that the fence is there, so I am
struggling with that a little bit I guess is what I’m
saying.
I understand that maybe that’s not how we can
necessarily even approach this, but I do think that I agree
with everyone about the height of the fence. I do think
that the way that it’s built and structured you can see
through it. I don’t have a ton of safety concerns or
anything like that, and I completely understand how the
additional physical barriers are something that is very
important to the safety, so I think that we’re all on the
same page it sounds like with considering for the height
and special security concerns that exists, but I am kind of
curious to hear a little bit more about why we’re feeling
like the fence needs to be moved back that 5’.
CHAIR BARNETT: I’d like to ask the Public Works
Director to comment on the visibility issue if the gate is
not moved back.
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GARY HEAP: Gary Heap, Town Engineer, Parks and
Public Works. It’s not really a visibility standpoint; it’s
a circulation standpoint. The purpose of the code is so
that we don’t have vehicles hanging out into the travel
lane when there’s a lane right adjacent to the curb, which
is not the case here. So, yes, it is in violation, and yes,
the vehicle waiting or queuing there would hang out, but
it’s within the limits of what the parking area would be.
Does that answer your question?
CHAIR BARNETT: Yes, it does, thank you.
COMMISSIONER THOMAS: Can I just follow up with
that then? That was my assumption that that was the thing,
so the car would hang out into like where a parked car
could be. I guess if my understanding is that, my problem
is if a car can park there, then people whipping around the
corner from National Avenue could run into the back of the
car just as easily as they could run into the back of a car
pulling into the driveway from my perspective, but maybe
I’m wrong.
CHAIR BARNETT: Commissioner Janoff has her hand
up.
COMMISSIONER JANOFF: Just to clarify, the
special security that I would be willing to find for is
related to Mr. Cesnik’s son’s needs on the other side of
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the gate, not so much the public’s safety requirements. So
in terms of making the finding to allow for the exception,
that’s where my thoughts go. So I think we can all agree
that a vehicular gate is necessary.
The reason to move it back the 15’ is to allow a
vehicle to clear Blackwell fully as it’s waiting for the
gate to open, and the circumstance that comes to my mind is
this: it seems likely to me that transport might be in the
form of a van; that’s often the type of transport for
individuals. A van is larger than an mini coup or a small
car or small sedan, it’s a larger vehicle, and that is
likely to be hanging out into the travel lane on Blackwell,
and that’s the issue that I’m seeing that public works is
alerting us to the need for the 18’. So we create the 18’
depth from the sidewalk or the property line, whatever the
measurement point is, inward. We allow for 18’ there so a
vehicle can be on property and not in the travel lane. The
gate can open, the vehicle moves in and there’s plenty of
space on the other side of the new location of the fence,
should it be moved, for that vehicle to park, they get to
close, and Mr. Cesnik’s son would be safely able to board
the vehicle.
So the 18’ for me is how to keep a vehicle from
hanging out in Blackwell for the length of time that it
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takes the gate to open, understanding that there may be
occasions when you’re expecting the vehicle and you might
have the gate open, but there may be times when you don’t
or you forget, and so I think we need to be cognizant of
the reason why we have the 18’ foot requirement, and it
does seem to be a requirement that can be satisfied at the
same time the Appellant’s needs are being satisfied.
CHAIR BARNETT: Thank you. Any further comments?
Commissioner Thomas.
COMMISSIONER THOMAS: I agree and understand, but
my understanding from what the Town Engineer just said is
that because there’s no bike lane the lane is not clearly
defined on this street, because it’s just a wide
residential street where you’re able to park on the side of
the street. My understanding is because the sidewalk is so
big and there’s the little parklet area, it’s like sidewalk
and then planting area, then parking, and then travel lane,
it seems like there is enough space for a car to queue and
not be hanging out, because I agree that is a concern.
CHAIR BARNETT: Commissioner Janoff.
COMMISSIONER JANOFF: I think the issue is that
there is only 13’ available with the present location of
the gate and that’s probably not sufficient to accommodate
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the range of vehicles that might be traveling in this
space.
COMMISSIONER THOMAS: I do want to clarify this,
because I think the 13’ is from the gate to the actual
street, correct? Because then there was a car parked beyond
that, so if a van is 16’ long, that’s hanging out
into…which is clearly like very close… I mean how wide is a
typical car?
SEAN MULLIN: One thing I can offer that might
help is that the 13’ measurement and the 18’ measurement is
taken from the edge of the street. That’s where the asphalt
would meet the face of the curb, so you’re right in that
from there there would be some area that would be
designated for parking and then the actual vehicular travel
lane. And again, the Town Engineer may be able to expand on
that more eloquently than I.
CHAIR BARNETT: Commissioner Hanssen.
COMMISSIONER HANSSEN: I’m trying to think of the
right way to say this. We’ve had a number of times in
hearings over time where we bring in Parks and Public Works
or some outside expert, and so my personal philosophy on
this as a Planning Commissioner is that I would never
second guess the judgment of our Town Engineer to determine
what’s safe and not safe in terms of the distance, and
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that’s why I would leave it to them to say if 18’ is the
number, then 18’ is the number that we need to be safe. For
me personally, I wouldn’t want to second guess and try to
figure out ways around it. I think it’s best to rely on the
expertise of our Parks and Public Works, because they own
the responsibility for making sure things are safe.
CHAIR BARNETT: Commissioner Burnett and then
Commissioner Thomas.
COMMISSIONER BURNETT: Thank you, Chair. Again,
my concern is National Avenue. This is a rounded corner,
and when cars are coming around they would tend to be
closer to the curb. Because of the configuration of it,
it’s not like a square corner that you come at an angle, it
would be more rounded, which I would feel it would be even
more dangerous to have a car that’s 3’ out into the roadway
waiting to go in, so I would support Commissioner Janoff’s
and Vice Chair Raspe’s feelings on this.
CHAIR BARNETT: Thank you. Commissioner Thomas.
COMMISSIONER THOMAS: Thank you, and I do agree
that we need to listen to the Town Engineer, so I would
like to know what he has to say, because you did mention
that the spirit of the best regulation is that we have this
much space, but do you feel like where the fence is right
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now allows for enough space to maintain safety in the
spirit of the regulation?
GARY HEAP: What I had stated earlier is the code
says 18’. My professional judgment is there are a number of
factors that go into it. The parking lane itself is
typically 8’ in width. Given the 2’ gutter pan, you’re
looking at 6’ there between basically the lip of the gutter
and where the parked car could park. We’ve got an
encroachment potentially of a little over 4.5’ into that
area. National Avenue has a lot of traffic. I don't know if
the side street necessarily has a lot of traffic.
I don’t know about the frequency that we have
actually in terms of the use of the gate on a daily basis.
Is it once a day, twice a day, or every couple of days? I
don't know the frequency of that; maybe that’s a question
for the Applicant.
In terms of some protocols, in terms of opening
and closing that gate, certainly exiting I don’t see as an
issue. Entering is the problem. They could queue in another
area, they could queue in the front, they could queue in
the red zone for that matter while the gate is opening and
then swing in. I don’t get a sense that there’s a huge risk
or safety issue with the vehicle that’s hanging out within
the parking lane for a limited amount of time, again based
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on the speed of that gate and how fast it opens; I’m not
aware of what the foot-per-second rate is on that either
and how long that would actually be, but I don’t get the
sense that this is a huge safety issue.
COMMISSIONER THOMAS: Thank you.
CHAIR BARNETT: Very well. Commissioner Janoff.
COMMISSIONER JANOFF: Thank you. I think one of
the things that complicate this particular location is the
teardrop parklet that has the effect of making it a one-way
lane in. Typically when a car is queuing in a normal two
lane road the cars that see the car stopped for the gate
are going to go around it, and in this particular location
there’s no opportunity to go around the car; it’s
effectively a one lane road. I do think that in this case
the configuration of the street on Blackwell creates a
narrowing point that complicates… And the teardrop, as I
recall, continues past the driveway a little bit, so I
think it just is not close to the corner of National, it’s
quite deep and my impression is that you couldn’t turn left
into the driveway from Blackwell, so you really just have
that narrow lane, so for me it does create a potential
safety issue.
I think the frequency of use, I understand the
reason it’s mentioned but I think it’s a little unfair,
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because we just really don’t know, and you don’t really
want to hamper a property owner to say you said it’s only
going to be used once a week and now you’re using it every
day and it’s creating a safety issue, so I don’t think we
need to go down that route.
I do think that there are special circumstances
related to the configuration of the street and the red zone
that creates, as I said, a necking, a narrowing of that
particular length of Blackwell that would create an issue.
Think if you had a car parked on the other side of the
driveway. You have nowhere for an oncoming car to go. I
don’t think a parked car makes a difference is what I’m
saying. You’ve got a car that’s sticking out effectively
into the travel lane because of the narrow width of this
part of the road. I think it’s an issue.
CHAIR BARNETT: Vice Chair Raspe.
VICE CHAIR RASPE: Thanks, Chair. I actually have
a question for Staff. Procedurally we have two issues
before us and it’s one appeal. Could we as a body grant
with respect to a part and deny with respect to a part? It
seems to me that a consensus is building in that regard. I
just want to make sure that what we’re talking about is
procedurally proper.
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SEAN MULLIN: I believe so, and the Town Attorney
will also weigh in, I’m sure, but you could also grant the
appeal with an added condition to relocate the fence.
VICE CHAIR RASPE: Is there a preference,
Counsel?
ATTORNEY WHELAN: Either way works.
VICE CHAIR RASPE: Thank you so much.
CHAIR BARNETT: Good question. Are we ready for a
motion? I think we are. Commissioner Janoff.
COMMISSIONER JANOFF: I move to approve the
appeal of a Community Development Director decision to deny
a Fence Height Exception and request for construction of an
automated vehicular gate exceeding the maximum height and
with reduced setbacks on property zoned R-1:8 located at
380 Blackwell Drive, APN 424-12-027. I won’t go through the
rest of the identifying information; it’s included in
Exhibit 2.
I can make the finding that this is categorically
exempt for CEQA, and I can make the required finding for
granting a Fence Height Exception that a special security
concern exists that cannot be practically addressed without
adding a vehicular gate.
My motion would also request that the gate be
moved back 5’ or 4’-10”, whatever the distance is, to be
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code compliant and provide 18’ for a vehicle to park
outside the closed gate and not hang out into Blackwell
Avenue.
CHAIR BARNETT: Thank you for that motion.
Commissioner Hanssen.
COMMISSIONER HANSSEN: I second the motion.
ATTORNEY WHELAN: Before the Commission votes,
just one thing. I would say that it’s conditioned on moving
it back 5’ as opposed to making it a request.
COMMISSIONER JANOFF: The maker of the motion
accepts that change in language that it is conditioned upon
moving the gate back.
COMMISSIONER HANSSEN: The seconder accepts that
as well.
CHAIR BARNETT: Commissioner Thomas.
COMMISSIONER THOMAS: You said a vehicular gate,
but I also think that we should add that the height needs
to exceed the 3’ maximum also.
COMMISSIONER JANOFF: Yes, the maker of the
motion accepts that change that we also approve the
existing height of the existing gate.
COMMISSIONER HANSSEN: I agree, but I think you
already said that in your motion.
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CHAIR BARNETT: All right, so we do have a motion
and a second. Discussion? Commissioner Burnett.
COMMISSIONER BURNETT: Yes, thank you. Do you
need to add to the motion the side fence added on to the
left of the gate if the gate is moved back?
COMMISSIONER JANOFF: I would personally say no,
that’s at the discretion of the homeowner. Clearly they’re
going to want to add that side. But I do have a question
whether we need to talk about the Variance of the setback.
ATTORNEY WHELAN: I would probably amend the
motion to say it’s conditioned on moving the fence back 5’
and a Variance from the 25’ requirement is approved.
JENNIFER ARMER: And I would add that it would be
granting a Fence Height Exception for the fence within that
front setback to be greater than the 3’ limitation, and
that that includes additional connecting fencing because of
the relocation of the gate.
COMMISSIONER JANOFF: The maker of the motion
accepts that language.
COMMISSIONER HANSSEN: I do as well.
CHAIR BARNETT: Commissioner Clark.
COMMISSIONER CLARK: Thank you. I just wanted to
say I personally am torn as to whether I think it’s
necessary to move the gate back, but it looks to me like
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the general consensus from the Commission is that it does
and so I’m comfortable voting that way, but I don’t
necessarily think that it’s completely warranted.
CHAIR BARNETT: Thank you for that comment. If
there is no further discussion, I’ll call the question, and
we’ll have to do the roll call this time because
Commissioner Clark is not present. We’ll begin with Vice
Chair Raspe.
VICE CHAIR RASPE: Yes.
CHAIR BARNETT: Commissioner Hanssen.
COMMISSIONER HANSSEN: Yes.
CHAIR BARNETT: Commissioner Thomas.
COMMISSIONER THOMAS: No.
CHAIR BARNETT: Commissioner Burnett.
COMMISSIONER BURNETT: Yes.
CHAIR BARNETT: Commissioner Janoff.
COMMISSIONER JANOFF: Yes.
CHAIR BARNETT: And Commissioner Clark.
COMMISSIONER CLARK: Yes.
CHAIR BARNETT: Thank you, and the Chair also
votes for the motion, so that passes with one dissent. Are
there appeal rights? Thank you.
JENNIFER ARMER: Thank you, Chair. Yes, the
decision of the Commission can be appealed to Town Council
LOS GATOS PLANNING COMMISSION 6/14/2023
Item #2, 380 Blackwell Drive
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by any interested person as defined by Town Code Section
29.10.020 within ten days on forms available online with
fees paid. Final deadline is 4:00p.m. on the tenth day.
CHAIR BARNETT: Thank you for that.
(END)
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