10 Staff Report.PRC 4290 Fire Process Review
PREPARED BY: Jennifer Armer, AICP
Planning Manager
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: 10/03/2023 ITEM NO: 10
DATE: September 28, 2023
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Discuss and Consider Modifications to the Review Process for Exception
Requests to the State Minimum Fire Safe Regulations (Public Resource Code
4290).
RECOMMENDATION:
Discuss and consider modifications to the review process for exception requests to the State
Minimum Fire Safe Regulations [Public Resource Code (PRC) 4290].
BACKGROUND:
In 1991, the Board of Forestry (BOF) adopted PRC 4290 (Attachment 1) requiring that the BOF
establish minimum fire safety standards applicable to lands located in the State Responsibility
Area (SRA) and as of July 1, 2021, within lands classified and designated as Very High Fire
Hazard Severity Zones (VHFHSZ) within the Local Responsibility Area (LRA) (Attachment 2). The
State Minimum Fire Safe Regulations (Attachment 3), as adopted by the BOF, establish the
minimum wildfire protection standards for building and construction related to:
• Road standards and fire equipment access;
• Standards for signs identifying streets, roads, and buildings;
• Minimum private water supply reserves for emergency fire use; and
• Fuel breaks and greenbelts.
California Code of Regulations Title 14 §1270.07 (a) of the State Minimum Fire Safe Regulations
outlines a process allowing applicants to request exceptions to the regulations where it is
shown that the exceptions provide the same practical effect as the State Minimum Fire Safe
Regulations (Attachment 3). In Los Gatos, exception requests are considered by the inspection
PAGE 2 OF 4 SUBJECT: PRC 4290 Exception Request Process DATE: September 28, 2023
BACKGROUND (continued):
authority, which is Santa Clara County Fire Department (SCCFD). As defined in the State
Minimum Fire Safe Regulations, same practical effect means an exception or alternative with
the capability of applying accepted wildland fire suppression strategies and tactics, and
provisions for fire fighter safety, including:
a. Access for emergency wildland fire equipment;
b. Safe civilian evacuation;
c. Signing that avoids delays in emergency equipment response;
d. Available and accessible water to effectively attack wildfire or defend a structure from
wildfire; and
e. Fuel modification sufficient for civilian and fire fighter safety.
Pursuant to Section §1270.07 (c) of the State Minimum Fire Safe Regulations, when an
exception is denied, the applicant may file an appeal to be heard by the local jurisdiction who
can establish or utilize an existing appeals process (Attachment 3). Consistent with the Town
Code, an appeal of a SCCFD denial of an exception request to the State Minimum Fire Safe
Regulations is considered by the Planning Commission.
Pursuant to the State Minimum Fire Safe Regulations, the Planning Commission may grant the
appeal upon making the findings that the decision meets the same intent of providing
defensible space consistent with the regulations. Section §1270.01 defines defensible space as:
The area within the perimeter of a parcel, development, neighborhood or community
where basic wildland fire protection practices and measures are implemented, providing
the key point of defense from an approaching wildfire or defense against encroaching
wildfires or escaping structure fires. The perimeter as used in this regulation is the area
encompassing the parcel or parcels proposed for construction and/or development,
excluding the physical structure itself. The area is characterized by the establishment and
maintenance of emergency vehicle access, emergency water reserves, road names and
building identification, and fuel modification measures.
In November 2022, the Town received the first appeal of a SCCFD exception request denial, and
a second was received in February 2023. In both cases, the Planning Commission granted the
appeal and imposed some additional conditions to ensure that, at a minimum, the SCCFD
standards be met. Public concern at the time included a request for the Town to consider
alternatives to this appeal process. Since these appeals, the SCCFD staff have worked on
numerous exception requests to find solutions for incremental access improvements to
mitigate existing, non-conforming conditions, while allowing construction of new homes on
existing hillside properties.
PAGE 3 OF 4 SUBJECT: PRC 4290 Exception Request Process DATE: September 28, 2023
DISCUSSION:
When a property is located within the VHFHSZ, the Town’s current process for project review
includes the following steps:
1. Planning application submittal by applicant;
2. Staff review, including SCCFD review for State Minimum Fire Safe Regulations
compliance;
3. Resubmittal by applicant to address SCCFD comments;
4. If full compliance with Fire Safe Regulation requirements cannot be demonstrated,
applicant may submit an exception request to SCCFD for review, including proposed
alternative(s) to improve fire safety for the subject property and neighborhood;
5. SCCFD reviews exception request and works with applicant, including site visits if
needed, to determine if proposed mitigations are sufficient;
6. If the submitted exception request is denied, the applicant can appeal to the Town with
justification for the appeal that could involve discussion of whether the requirements
would be considered a “taking” and therefore reduced requirements should be granted;
7. Planning Commission is the deciding body for review of appeals. Town staff and SCCFD
provide draft conditions of approval for consideration by Planning Commission,
including standard SCCFD requirements and potential additional improvements to
reduce the fire risk of the development.
In the most recent appeal, considered by Planning Commission on March 8, 2023, the Planning
Commission granted the appeal. Staff was able to recommend granting of the appeal in this
case because the work between the applicant and SCCFD resulted in conditions of approval that
would improve fire safety. While SCCFD was not able to approve the exception request in that
case, they were able to attend the Planning Commission meeting and state that, with the
additional conditions of approval, they did not object to the granting of the appeal.
This process contrasts with processes now in place for the City of Saratoga and unincorporated
Santa Clara County. Both agencies have implemented an initial review of whether the fire
safety requirements imposed by the inspection authority (SCCFD or CalFire) are an
unconstitutional taking of private property for public benefit. In the case of Santa Clara County,
this evaluation occurs after an exception request has been denied and prior to the property
owners appealing the denial of an exception. The Saratoga process allows for a “takings”
determination to be made prior to submittal of an exception request. While these processes
resolve the “takings” question earlier in the process, they remove the opportunity for the
agencies to seek incremental fire safety improvements that the Town’s current process
includes, even when the improvements may fall short of full compliance with the State
Minimum Fire Safe Regulations.
PAGE 4 OF 4 SUBJECT: PRC 4290 Exception Request Process DATE: September 28, 2023
PUBLIC COMMENT:
Attachment 4 contains public comments received on this topic.
CONCLUSION:
For the reasons described above, SCCFD and Town staff recommend continuing with the
existing appeal process to retain the opportunity for incremental improvement of existing, non-
compliant conditions. By utilizing this approach, applicants can work directly with SCCFD to
define beneficial improvements to deficient conditions that more closely align with the scale
and scope of the proposed project.
Staff looks forward to the Town Council’s discussion and direction on the review process for
projects subject to PRC 4290.
COORDINATION:
The Community Development Department coordinated with the Santa Clara County Fire
Department, Town Attorney, and Town Manager in the preparation of this report.
ATTACHMENTS:
1. Public Resources Code 4290
2. Fire Hazard Severity Zones Map
3. State Minimum Fire Safe Regulations
4. Public Comment