Staff Report with Exhibits 1-5.16496 Hilow Road
PREPARED BY: RYAN SAFTY
Associate Planner
Reviewed by: Planning Manager and Community Development Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6872
www.losgatosca.gov
TOWN OF LOS GATOS
PLANNING COMMISSION
REPORT
MEETING DATE: 08/09/2023
ITEM NO: 2
DATE: August 4, 2023
TO: Planning Commission
FROM: Joel Paulson, Community Development Director
SUBJECT: Consider an Appeal of a Community Development Director Decision to Deny a
Tree Removal Permit on Property Zoned R-1:8. Located at 16496 Hilow
Road. APN 532-04-072. Categorically Exempt Pursuant to CEQA Guidelines
Section 15304: Minor Alterations to Land. Tree Removal Permit T23 -089.
Property Owner/Applicant/Appellant: Kim and Nico Hailey. Project Planner:
Ryan Safty.
RECOMMENDATION:
Consider an appeal of a Community Development Director decision to deny a Tree Removal
Permit on property zoned R-1:8, located at 16496 Hilow Road.
PROJECT DATA:
General Plan Designation: Low Density Residential
Zoning Designation: R-1:8
Applicable Plans & Standards: General Plan, Zoning Regulations
Parcel Size: 11,109 square feet
Surrounding Area:
Existing Land Use General Plan Zoning
North Residential Low Density Residential R-1:8
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 5
SUBJECT: 16496 Hilow Road/T23-089
DATE: August 4, 2023
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CEQA:
The project is Categorically Exempt pursuant to the adopted Guidelines for the Implementation
of the California Environmental Quality Act, Section 15304: Minor Alterations of Land.
FINDINGS:
▪ The project is Categorically Exempt pursuant to the adopted Guidelines for the
Implementation of the California Environmental Quality Act, Section 15304: Minor
Alteration of Land.
ACTION:
The decision of the Planning Commission is final unless appealed within ten days.
BACKGROUND:
On May 17, 2023, the Parks and Public Works Department received a Tree Removal Permit
application (Exhibit 4) to remove two large Redwood trees in the front yard of 16496 Hilow
Road. The trees are approximately 120 feet tall and are located approximately eight feet from
the front of the residence, as noted in the application form. The trees are considered protected
trees per Town Code Section 29.10.0960, thus requiring approval of a Tree Removal Permit
prior to removal. The property owner requested removal of the trees based on safety concerns
associated with their height and location in close proximity to the foundation of the home. The
Town Arborist, Rob Moulden, conducted an inspection of the property and the trees, and
denied the Tree Removal Permit application on June 12, 2023, as, “both trees are healthy [and]
root damage is minor,” (Exhibit 4). Mr. Moulden also noted that the trees are under 100 feet in
height and are approximately 15 feet from the foundation. No visible damage to the
foundation, or to the six-foot deep porch located in between the trees and the foundation, was
evident during the site inspection. The Town Arborist directed the owners to conduct
structural pruning instead.
On June 13, 2023, the property owners appealed this Tree Removal Permit denial to the
Planning Commission (Exhibit 5).
DISCUSSION:
A. Appeal Analysis
The property owner appealed the denial of their Tree Removal Permit as they feel the tree
is damaging their foundation and has outgrown the property. Specifically, the appeal
mentions that the trees are over 120 feet tall and only eight feet from their foundation, and
the appeal packet includes additional evidence to support that assertion.
PAGE 3 OF 5
SUBJECT: 16496 Hilow Road/T23-089
DATE: August 4, 2023
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DISCUSSION (continued):
The property owners provided a receipt for foundation repair and an invoice statement
from a design group showing that engineering inspections and foundation work occurred on
the residence in 2015; however, the receipts are not accompanied by a report, so it is
unclear what foundation work occurred and what caused the damage. Additionally, a
termite inspector looked at the property in May of 2023 and noted vertical foundation
cracking, and pictures of this foundation cracking are included in the appeal packet (Exhibit
5). No documentation or report from the termite inspector was provided, and it is not clear
what caused the foundation cracking identified in the image in Exhibit 5.
The appeal letter also notes that the tree roots have damaged sewer pipes and that this is
expected to continue. There is also concern related to the height and weight of the tree
limbs, and potential safety concerns or property damage associated with windstorms.
In addition to structural and utility concerns, the trees are noted to have diminished the use
of the front yard as the roots are up to one-foot in diameter and have lifted the hardscape
and damaged the driveway. The solar panels are substantially blocked by the trees, and the
owners feel that the value of the property has been reduced significantly by the overgrown
trees.
Lastly, the appeal letter quotes Town Code Section 29.10.0950 (Tree Protection – Intent): “It
is the intent of this division to regulate the removal of trees within the Town in order to
retain as many trees as possible consistent with the purpose of this section and the
reasonable use of private property.”
In order for the Town to approve a protected Tree Removal Permit, one or more of the
following findings in Town Code Section 29.10.0992 must be made:
1. The tree is dead, severely diseased, decayed, or disfigured to such an extent that the
tree is unable to recover or return to a healthy and structurally sound condition.
2. The tree has a tree risk rating of Extreme or High on the ISA Tree Risk Rating Matrix
as set forth in the ISA Tree Risk Assessment Best Management Practices, or
successor publication.
3. The tree is crowding other protected trees to the extent that removal or severe
pruning is necessary to ensure the long-term viability of adjacent and more
significant trees.
4. The retention of the tree restricts the economic enjoyment of the property or
creates an unusual hardship for the property owner by severely limiting the use of
the property in a manner not typically experienced by owners of similarly situated
properties, and the applicant has demonstrated to the satisfaction of the Director or
deciding body that there are no reasonable alternatives to preserve the tree.
PAGE 4 OF 5
SUBJECT: 16496 Hilow Road/T23-089
DATE: August 4, 2023
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DISCUSSION (continued):
5. The tree has, or will imminently, interfere with utility services where such
interference cannot be controlled or remedied through reasonable modification,
relocation, or repair of the utility service or the pruning of the root or branch
structure of the tree; or where removal or pruning is required by a public utility to
comply with California Public Utility Commission (CPUC) or Federal Energy
Regulatory Commission (FERC) rules or regulations.
6. The tree has caused or may imminently cause significant damage to an existing
structure that cannot be controlled or remedied through reasonable modification of
the root or branch structure of the tree.
7. Except for properties within the hillsides, the retention of the protected tree would
result in reduction of the otherwise-permissible building envelope by more than
twenty-five (25) percent.
8. The removal of the tree is unavoidable due to restricted access to the property.
9. The removal of the tree is necessary to repair a geologic hazard.
10. The removal of the tree and replacement with a more appropriate tree species will
enhance the Town's urban forest.
11. The removal of the tree is necessary to conform with the implementation and
maintenance of Defensible Space per Chapter 9 - Fire Prevention and Protection per
direction by the Fire Chief or his/her designee.
Based on the additional information provided in the appeal packet, it appears Findings 4, 5,
or 6 are most applicable in this case.
B. Environmental Review
The project is Categorically Exempt pursuant to the adopted Guidelines for the
Implementation of the California Environmental Quality Act, Section 15304: Minor
Alteration of Land.
PUBLIC COMMENTS:
Written notice was sent to property owners and tenants within 300 feet of the subject
property. At the time of this report’s preparation, the Town has not received any public
comment.
PAGE 5 OF 5
SUBJECT: 16496 Hilow Road/T23-089
DATE: August 4, 2023
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CONCLUSION:
A. Summary
The property owners are appealing the denial of a Tree Removal Permit application for the
removal of two large Redwood trees in the front yard of 16496 Hilow Road. When
appealing the decision, the property owners provided additional documentation to support
making the required findings in Town Code Section 29.10.0992 to grant the appeal and
approve the Tree Removal Permit.
B. Recommendation
Staff recommends that the Planning Commission consider the additional information
provided in the appeal packet and determine if any of the required findings in Town Code
Section 29.10.0992 can be made to approve the permit. If the Planning Commission
determines that one of the findings can be made to approve the permit, it should take the
following actions to grant the appeal and approve the Tree Removal Permit:
1. Find that the proposed project is categorically exempt pursuant to the adopted
Guidelines for the implementation of the California Environmental Quality Act, Section
15304: Minor Alterations of Land (Exhibit 2);
2. Make one of the findings as required by Section 29.10.0992 of the Town Code for
approval of a Tree Removal Permit; and
3. Grant the appeal and approve the Tree Removal Permit T23-089 with the conditions
contained in Exhibit 3.
C. Alternatives
Alternatively, the Commission can:
1. Continue the matter to a date certain with specific direction;
2. Deny the appeal and uphold the Community Development Director decision to deny the
Tree Removal Permit; or
3. Grant the appeal with additional and/or modified conditions of approval.
EXHIBITS:
1. Location Map
2. Required Findings if Appeal is Granted
3. Recommended Conditions of Approval if Appeal is Granted
4. Tree Removal Permit, received May 17, 2023
5. Appeal Packet, received June 13, 2023
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Update Notes:- Updated 12/20/17 to link to tlg-sql12 server data (sm)- Updated 11/22/19 adding centerpoint guides, Buildings layer, and Project Site leader with label- Updated 10/8/20 to add street centerlines which can be useful in the hillside area- Updated 02-19-21 to link to TLG-SQL17 database (sm)
EXHIBIT 1
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PLANNING COMMISSION – August 9, 2023
REQUIRED FINDINGS FOR:
16496 Hilow Road
Tree Removal Permit T23-089
Consider an Appeal of a Community Development Director Decision to Deny a Tree
Removal Permit on Property Zoned R-1:8. APN 532-04-072. Categorically Exempt
Pursuant to CEQA Guidelines Section 15304: Minor Alterations to Land.
PROPERTY OWNER/APPLICANT/APPELLANT: Kim and Nico Hailey.
PROJECT PLANNER: Ryan Safty.
Required finding for CEQA:
■ The project is Categorically Exempt pursuant to the adopted Guidelines for the
Implementation of the California Environmental Quality Act, Section 15304: Minor
Alterations of Land.
Required finding for Tree Removal Permit Approval:
■ Pursuant to Town Code Section 29.10.0992, the required findings for removal of a protected
tree can be made.
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Granted.docx
EXHIBIT 2
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PLANNING COMMISSION – August 9, 2023
DRAFT CONDITIONS OF APPROVAL
16496 Hilow Road
Tree Removal Permit T23-089
Consider an Appeal of a Community Development Director Decision to Deny a Tree
Removal Permit on Property Zoned R-1:8. APN 532-04-072. Categorically Exempt
Pursuant to CEQA Guidelines Section 15304: Minor Alterations to Land.
PROPERTY OWNER/APPLICANT/APPELLANT: Kim and Nico Hailey.
PROJECT PLANNER: Ryan Safty.
TO THE SATISFACTION OF THE DIRECTOR OF COMMUNITY DEVELOPMENT:
Planning Division
1. APPROVAL: This application shall be completed in accordance with all of the conditions of
approval listed below.
2. EXPIRATION: The Tree Removal Permit approval will expire two years from the approval
date pursuant to Section 29.20.320 of the Town Code, unless the approval has been vested.
3. REPLACEMENT TREES: Replacement trees or in-lieu fees are required for the tree(s) that will
be removed. The number and size of new trees shall be determined by the Town Arborist
using the canopy replacement table in the Town’s Tree Protection Ordinance. Required
trees shall be planted within 60 days of tree removal, or date of appeal hearing, whichever
is later.
4. TREE STAKING: All newly planted trees shall be double-staked using rubber tree ties.
5. TOWN INDEMNITY: Applicants are notified that Town Code Section 1.10.115 requires that
any applicant who receives a permit or entitlement (“the Project”) from the Town shall
defend (with counsel approved by Town), indemnify, and hold harmless the Town, its
agents, officers, and employees from and against any claim, action, or proceeding (including
without limitation any appeal or petition for review thereof) against the Town or its agents,
officers, or employees related to an approval of the Project, including without limitation any
related application, permit, certification, condition, environmental determination, other
approval, compliance or failure to comply with applicable laws and regulations, and/or
processing methods (“Challenge”). Town may (but is not obligated to) defend such
Challenge as Town, in its sole discretion, determines appropriate, all at applicant’s sole cost
and expense.
Applicant shall bear any and all losses, damages, injuries, liabilities, costs, and expenses
(including, without limitation, staff time and in-house attorney’s fees on a fully-loaded
basis, attorney’s fees for outside legal counsel, expert witness fees, court costs, and other
litigation expenses) arising out of or related to any Challenge (“Costs”), whether incurred by
EXHIBIT 3
Applicant, Town, or awarded to any third party, and shall pay to the Town upon demand
any Costs incurred by the Town. No modification of the Project, any application, permit
certification, condition, environmental determination, other approval, change in applicable
laws and regulations, or change in such Challenge as Town, in its sole discretion, determines
appropriate, all at the applicant’s sole cost and expense. No modification of the Project,
any application, permit certification, condition, environmental determination, other
approval, change in applicable laws and regulations, or change in processing methods shall
alter the applicant’s indemnity obligation.
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Approval if Appeal is Granted.docx
EXHIBIT 4
Supplemental to Appeal of Tree Removal Permit Decision.
Application # T23-089 6/23/2023
The two redwoods at 16496 Hilow Road are over 120’ tall and are only 8’ from our foundation.
They have done damage to our foundation. SFA Design Group inspected the foundation in October 2015
and Foundation Repair of California installed hydraulic lifting piers. Last month we had Innova Termite
do an inspection prior to moving back in (expected next month) and the inspector noted vertical
foundation cracking. In addition, the tree roots have done damage to our sewer pipes and we can
expect this to continue as long as the trees are here.
The trees have diminished our use of the front yard as one foot diameter roots crisscross what
used to be our yard. The roots have lifted our hardscape and damaged our driveway. Our solar panels
no longer produce much output as the trees now shade them. Opinions from two realtors indicate that
the value of our house has been reduced significantly by these overgrown trees.
We have loved these trees, but they have outgrown our lot. We have had several large wind
storms this year and these trees pose a risk not only to our house, but also to our neighbor Manual
Contraras (who just turned 100!) and his neighbor to the north.
According to the town private tree web site “It is the intent of the Town Code to regulate the
removal of trees within the Town in order to retain as many trees as possible consistent with the
purpose of the code and the reasonable use of private property. “We believe that these monster trees
do not allow us the reasonable use of our property.
Thanks,
Nico Hailey
Innova inspection showing foundation cracking
Statement
Date
6/23/2023
To:
Kim Hailey
16496 Hilow Rd
Los Gatos, CA 95032
1813 Rutan Dr Unit A
Livermore CA 94551
Amount Due
$0.00
Current
0.00
1-30 Days Past
Due
0.00
31-60 Days Past
Due
0.00
61-90 Days Past
Due
0.00
Over 90 Days Past
Due
0.00
Amount Due
$0.00
Phone:925-961-9012 Fax: 925-961-9015
www.FoundationRepairofCA.com
CSL# 973851
DBA: SMP Construction & Maintenance
Date Transaction Amount Balance
09/01/2015 Balance forward 831.00
22445 - 16496 Hilow Rd, Los Gatos-
09/02/2015 PMT #x9032.-831.00 0.00
09/24/2015 INV #4917. Due 09/24/2015.497.56 497.56
09/24/2015 INV #4914. Due 09/24/2015.4,487.40 4,984.96
09/24/2015 PMT #3580.-7,479.00 -2,494.04
09/25/2015 INV #4915. Due 09/25/2015.2,243.70 -250.34
09/25/2015 INV #4916. Due 09/25/2015.747.90 497.56
10/22/2015 PMT #x3248.-497.56 0.00
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