Staff Report.380 Blackwell Drive
PREPARED BY: SEAN MULLIN, AICP
Senior Planner
__________________________________________________________________________________________
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Community Development
Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 08/01/2023 ITEM NO: 14
DATE: July 27, 2023
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Consider an Appeal of a Planning Commission Decision to Approve a Fence
Height Exception 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. Categorically
Exempt Pursuant to CEQA Guidelines Section 15303 (e): New Construction or
Conversion of Small Structures. Fence Height Exception Application FHE-23-
002. PROPERTY OWNER: Larry Cesnik and Martha Johnson. APPELLANT:
Larry Cesnik. APPLICANT: Ramin Zohoor. PROJECT PLANNER: Sean Mullin.
RECOMMENDATION:
Deny an appeal of a Planning Commission decision to approve a fence height exception 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.
PROJECT DATA:
General Plan Designation: Low Density Residential
Zoning Designation: R-1:8, Single-Family Residential
Applicable Plans & Standards: Town Code, General Plan, Residential Design Guidelines
Parcel Size: 8,000 square feet
Surrounding Area:
Existing Land Use General Plan Zoning
North Residential Low Density Residential R-1:8:PD
South Residential Low Density Residential R-1:8
East Residential Low Density Residential R-1:8
West Residential Low Density Residential R-1:8
PAGE 2 OF 8 SUBJECT: 380 Blackwell Drive/FHE-23-002 DATE: July 27, 2023
BACKGROUND:
The subject property is located at the corner of Blackwell Drive and National Avenue
(Attachment 1, Exhibit 1). The surrounding properties are residential uses. The subject
property is developed with a single-family residence and an attached accessory dwelling unit
(ADU).
On September 13, 2022, the Town issued an administrative citation for a code violation at the
subject property (Attachment 1, Exhibit 4) after the vehicular gate was noted by a Town
Building Inspector during a progress inspection for construction of the ADU. This letter
requested that the property owners apply for a Building Permit for the vehicular gate by
September 27, 2022. Following issuance of the citation, the applicant contacted Town Planning
staff who communicated to the applicant that the vehicular gate exceeds the three-foot height
limitation for a gate located in the required front yard and the traffic view area. Additionally,
staff noted that the gate does not meet the required 18-foot setback from the edge of the
street. Staff indicated that the Town Code offers an exception process that allows for deviation
from the Town’s requirements if the appropriate findings are made by the Community
Development Director.
On February 6, 2023, the applicant applied for an exception to the Town’s fence regulations for
the unpermitted construction of the vehicular gate, which does not comply with the Town Code
height or setback regulations. The exception request was based on concerns related to
protecting their adult child from stepping off the property. The project plans are provided as
Attachment 1, Exhibit 10, and the Letters of Justification for the exception are provided as
Attachment 1, Exhibit 5, and Attachment 2, Exhibit 11.
On March 6, 2023, the exception request was denied by the Community Development Director
based on the information received at that time as none of the required findings per Town Code
Section 29.40.0320 could be made and based upon the conclusion by the Parks and Public
Works Department that unsafe conditions are created by the vehicular gate lacking the 18-foot
setback required by Town Code Section 29.40.0315(c)(3), and its proximity to the intersection
adjacent to the property (Attachment 1, Exhibit 6).
On March 8, 2023, the property owner appealed the decision of the Community Development
Director to the Planning Commission (Attachment 1, Exhibit 7).
On June 14, 2023, the Planning Commission considered the appeal and additional information
provided by the appellant/property owner supporting the finding that a special security
concern exists that cannot be practically addressed through alternatives (Attachments 1 and 2).
The Planning Commission granted the appeal with two additional conditions requiring that the
vehicular gate be relocated to comply with the 18-foot setback required by the Town Code and
that any additional fencing needed between the relocated vehicular gate and the existing
property line fencing be no taller than the height of the existing adjacent fencing (Attachment
3, Conditions 5 and 6).
PAGE 3 OF 8 SUBJECT: 380 Blackwell Drive/FHE-23-002 DATE: July 27, 2023
BACKGROUND (continued):
On June 21, 2023, the Planning Commission decision was appealed by the property owner,
specifically the condition requiring that the vehicular gate be relocated to comply with the 18-
foot setback required by the Town Code (Attachment 5).
DISCUSSION:
A. Project Summary
The applicant applied for an exception to the Town’s fence regulations for the unpermitted
construction of the vehicular gate, which does not comply with the Town Code fence height
regulations for fences located in the required front setback and traffic view area, and for
not meeting the required 18-foot setback for vehicular gates as measured from the edge of
the street. The exception request was based on concerns related to protecting their adult
child from stepping off the property. The project plans are provided as Attachment 1,
Exhibit 10, and the Letters of Justification for the exception are provided as Attachment 1,
Exhibit 5 and Attachment 2, Exhibit 11.
As detailed in the Planning Commission staff report (Attachment 1), the Town Code limits
the height of fences and gates in the required front yard or side yard abutting a street,
driveway view area, and traffic view area to no more than three feet to minimize conflicts
between pedestrians, cyclists, and cars by allowing for an unobstructed view as a car exits a
driveway. Additionally, vehicular gates are required to be setback a minimum of 18 feet as
measured from the edge of the street to allow for vehicles to clear the travel lanes while
queuing as the gate is opening. Staff has prepared an exhibit showing the locations of these
areas and the existing unpermitted vehicular gate (Attachment 1, Exhibit 8). The proposed
four-foot, three-inch tall vehicular gate is set at the front property line.
Town Code Section 29.40.0320 allows an exception to any of the fence regulations if
specific findings can be made. These findings are:
• A special security concern exists that cannot be practically addressed through
alternatives; or
• A special circumstance exists, including lot size or configuration, where strict
enforcement of these regulations would result in undue hardship.
The applicant applied for an exception to the fence regulations citing a special safety
concern related to protecting their adult child from leaving the property (Attachment 1,
Exhibit 5). Based on the information provided with the exception request, staff was unable
to support the requested exceptions as neither of the required findings could be made. In
consideration of the safety concern cited by the applicant, staff noted that the property is
already enclosed by existing fencing and gates except for the driveway area. Additionally,
PAGE 4 OF 8 SUBJECT: 380 Blackwell Drive/FHE-23-002 DATE: July 27, 2023
DISCUSSION (continued):
the requested exceptions would create unsafe conditions caused by a vehicular gate lacking
the 18-foot setback required by the Town Code, not allowing for vehicles to clear the travel
lanes while queuing. The Community Development Director denied the exception request
on March 6, 2023 (Attachment 1, Exhibit 6).
B. Planning Commission
The property owner appealed the decision of the Community Development Director to the
Planning Commission who considered the matter on June 14, 2023. With their appeal, the
appellant provided additional information on the medical background of their adult child.
This information has been provided under separate cover to the Town Council and is not
included as an attachment to this report to protect the privacy of the individuals involved.
During their visual and oral presentation to the Planning Commission, the appellant
provided additional details of the security concerns related to their adult child (Attachment
4). The Planning Commission granted the appeal, approving the exception to the fence
regulations related to height, but did not approve the exception for the required 18-foot
setback. Instead, the Planning Commission included additional conditions of approval for
the project requiring that the vehicular gate be relocated to comply with the 18-foot
setback and that any additional fencing needed between the relocated vehicular gate and
the existing property line fencing be no taller that the height of the existing adjacent fencing
(Attachment 3, Conditions 5 and 6).
The Planning Commission staff report and Desk Item (Attachments 1 and 2), the Verbatim
Minutes (Attachment 4), and the appeal documents (Attachment 5) are provided for
review.
C. Appeal to Town Council
The decision of the Planning Commission was appealed on June 21, 2023, by the property
owner Lawrence W. Cesnik (Attachment 5). In their appeal, the property owner raises three
points where they feel the Planning Commission erred or abused its discretion in its
decision to require the vehicular gate be relocated to meet the required 18-foot setback
from the edge of the street. These points are provided verbatim from the appellant below,
followed by staff’s response.
1. The statement made by one of the Commissioners that the vehicle picking up our son
for his day program is likely a van/longer vehicle - and therefore would protrude into
the street without a gate setback. In fact, the transportation company with which we
contract - Union Taxi - picks up our son in a compact/medium size sedan - which fits
between the curb and gate without protrusion.
PAGE 5 OF 8 SUBJECT: 380 Blackwell Drive/FHE-23-002 DATE: July 27, 2023
DISCUSSION (continued):
Staff response: The Town Council should consider this clarifying information in their
determination of whether the appeal should be upheld or denied.
2. The assumption that there will be a "queuing/backup hazard" when we exit or enter the
gate due to the delay in opening it. In fact - as I explained to the commission, our plan is
to avoid this problem by a) waiting to back out until the gate is completely open b)
before approaching the gate for entering, opening it remotely early enough (it has good
range) so that it is fully open when we are in front of the driveway.
Staff response: Requiring that the vehicular gate be operated in a specific way, as the
property owner describes, through a condition of approval would create a cumbersome
regulation that would be difficult to enforce. Staff does not recommend incorporating
such a condition if the Town Council grants the appeal.
3. Not recognizing that pushing the gate back 5 feet will (a) be a major inconvenience and
will "squeeze" the very limited space we have to park our vehicles (b) will increase the
safety risk to our son by shortening the amount of time for him to reach the gate during
any potential "bolt" and (c) disrupt the aesthetics of our property that we have worked
hard/invested in to develop and maintain, as well as the surrounding neighborhood.
Staff response: The length of the existing driveway between the front property line and
the existing residence is approximately 29.8 feet (Attachment 6). The Planning
Commission included a condition with their approval that the vehicular gate be
relocated to meet he required 18-foot setback from the edge of the street. Satisfying
this condition would require the vehicular gate to be moved approximate 4.3 feet
towards the residence resulting in a driveway length of 25.5 feet where a driveway
length of 25 feet is required by the Town Code. Regarding the shortened distance to
and the potential aesthetic impacts of the relocated vehicular gate, the Town Council
could consider this in their determination of whether the appeal should be upheld or
denied.
PUBLIC OUTREACH:
Written notice of the Town Council hearing was sent to property owners and tenants within
300 feet of the subject property.
CONCLUSION:
A. Recommendation
For the reasons stated in this report, it is recommended that the Town Council deny the
appeal, upholding the Planning Commission’s decision to approve the exception to the
PAGE 6 OF 8 SUBJECT: 380 Blackwell Drive/FHE-23-002 DATE: July 27, 2023
CONCLUSION (continued):
fence regulations with additional conditions of approval requiring compliance with the 18-
foot setback required by the Town Code and that any additional fencing needed
between the relocated vehicular gate and the existing property line fencing be no taller
than the height of the existing adjacent fencing (Attachment 7).
B. Alternatives
Alternatively, if the Council finds merit in the appeal it should continue the application to
the next meeting and provide direction to staff to prepare a resolution to grant the appeal,
grant the exception to the Town’s fence regulations for construction of an automated
vehicular gate with reduced setbacks, approve the application with Planning Commission
Conditions 5 and 6 removed, and identify the facts that support the following required
findings.
Required finding for CEQA:
■ The project is Categorically Exempt pursuant to the adopted Guidelines for the
Implementation of the California Environmental Quality Act, Section 15303 (e): New
Construction or Conversion of Small Structures.
Required findings for granting an exception to the Town’s fence regulations:
■ A special security concern exists that cannot be practically addressed through
alternatives; or
■ A special circumstance exists, including lot size or configuration, where strict
enforcement of these regulations would result in undue hardship.
Required findings for granting an appeal of a decision by the Planning Commission:
■ There was an error or abuse of discretion by the Planning Commission; or
■ The Planning Commission decision is not supported by substantial evidence in the
record.
COORDINATION:
The Community Development Department coordinated with the Parks and Public Works
Department in the review of the fence height exception.
PAGE 7 OF 8 SUBJECT: 380 Blackwell Drive/FHE-23-002 DATE: July 27, 2023
ENVIRONMENTAL ASSESSMENT:
The project is Categorically Exempt pursuant to the adopted Guidelines for the Implementation
of the California Environmental Quality Act, Section 15303 (e): New Construction or Conversion
of Small Structures.
ATTACHMENTS:
1. June 14, 2023, Planning Commission Staff Report, with Exhibits 1 through 10
2. June 14, 2023, Planning Commission Desk Item, with Exhibit 11
3. June 14, 2023, Planning Commission Action Letter
4. June 14, 2023, Planning Commission Verbatim Minutes
5. Appeal of the Planning Commission decision, received June 21, 2023
6. Annotated Driveway Exhibit Prepared by Staff
7. Draft Resolution to Deny the Appeal and Uphold the Planning Commission Decision
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