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Item 23 Staff Report Consider Staff Response to Letter from David Weissman About Proposed Interim Measures for Hillside Protection FireCOUNCIL AGENDA REPORT DATE: JANUARY 31, 2001 TO: FROM: TOWN MANAGER MAYOR AND TOWN COUNCIL MEETING DATE: 02/05/01 ITEM NO. r� SUBJECT: CONSIDER STAFF RESPONSE TO LETTER FROM DAVID WEISSMAN ABOUT PROPOSED INTERIM MEASURES FOR HILLSIDE PROVZION RECOMMENDATION: Consider staff response to letter from David Weissman about proposed interim measures for hillside protection. BACKGROUND: Over the past few years, as development activity has intensified in the Town's hillside areas, repeated concerns have been raised about the adequacy of Town regulations and hillside development standards to effectively preserve the unique hillside environment. In particular, the regulations that control grading activity and tree removal have been identified as two areas that should be reviewed and, if necessary, strengthened to adequately deal with the increasing pressures of hillside development. The General Plan adopted in July 2000 contains a number of implementing strategies that will trigger an update of the Town's hillside development standards and the work on this effort is already underway. Community Development Department staff has released an RFP to retain the services of a consultant to assist with the hillside development standards update process. The draft of the revised standards is expected to be complete later this fall for Planning Commission and Council consideration. In the interim, David Weissman, 15431 Francis Oaks Way, has discussed with staff the possibility of enacting interim measures to strengthen hillside protection pending the completion of the hillside standards update process. His proposed recommendations in this regard are included in his attached letter dated January 1. Staff comments on each of his eight proposals are discussed below. PREPARED BY: Larry I. Perlin Director of Parks & Public Works padA4 Reviewed by: Attorney Revised: 2/2/01 3:19 PM Reformatted: 7/ 14/99 PAGE 2 MAYOR AND TOWN COUNCIL SUBJECT: Staff response to letter from David Weissman re: Interim Hillside Protection Measures January 31, 2001 DISCUSSION: Recommendation No. 1 - Eliminate the distinction between tree protection standards for various types of properties in the Town's Zoning regulations. Apply a uniform (4" diameter trunk measurement) standard to all properties. Comment: A single standard would seem to eliminate any confusion about which trees are protected under the Town's ordinance, however the one -size -fits -all approach may not be the most preferable solution to address this issue. Instead, it may be more appropriate to have different standards for different species of trees (e.g. 4" for Oaks, 8" for other native species, 12" for non-native and ornamental species, etc.) to best promote the Town's overall urban forestry goals. Clearly, technical input from arborists and other horticultural experts should be sought before making any changes to the existing regulations, and an Ordinance would need to be adopted before the current standards in the Municipal Code could be changed. Therefore, staff recommends that this issue be dealt with in the course of the broader hillside standards update process and other applicable General Plan implementation activities. Recommendation No. 2 - Do not allow the issuance of permits to remove trees on undeveloped properties except under limited circumstances. Comment: Staff generally concurs with this recommendation for similar reasons as those stated by Dr. Weissman. Other than for truly extenuating circumstances, there are really no compelling reasons for property owners to remove trees that are growing on undeveloped land. If an owner of such property is contemplating development, then any tree related issues or conflicts should be reviewed in the context of that development proposal instead of separately and/or before the proposal is ever even submitted to the Town. By permitting trees to be removed from undeveloped property, neither Town staff nor the Planning Commission has the ability to evaluate the impact of a development proposal on the actual pre-existing condition of the property. While staff believes that it may be worthwhile to amend the Zoning Ordinance to include language of this sort, staff also believes that the existing ordinance can be interpreted in this way as a matter of administrative policy. Therefore, staff recommends that Council concur with such a policy determination at this time pending development of a future ordinance amendment that would occur as part of other General Plan implementation activities. Recommendation No. 3 - Do not allow the issuance of permits to perform grading on undeveloped properties except under limited circumstances. Comment: Staff generally concurs with this recommendation for similar reasons as those stated by Dr. Weissman and as discussed in the comments for Recommendation No. 2 above. With regard to Dr. Weissman's comment about the perceived loophole that currently exists in the ordinance that might allow one to clear up to 1,000 square feet of vegetative growth on successive occasions without a permit, staff understands this concern but does not believe it to be a serious issue. The PAGE 3 MAYOR AND TOWN COUNCIL SUBJECT: Staff response to letter from David Weissman re: Interim Hillside Protection Measures January 31, 2001 intent of the 1,000 square foot threshold in the ordinance seems quite clear to staff, and staff would consider any clearing activity performed in excess of that amount without a permit to be a violation of the ordinance regardless of how the clearing was actually performed. Recommendation No. 4 - Eliminate the exemption in the Grading Ordinance that allows for grading without a permit for agricultural operations. Comment: The agricultural exemption makes sense when grading is indeed related to bona -fide agricultural activities. Dr. Weissman's concern however is that hillside property owners may avail themselves of the exemption to circumvent the normal planning processes by claiming grading and/or clearing activity is necessary for agricultural operations even though there is no real intent to conduct any agriculture. While the potential for this type of abuse may exist, staff does not recommend eliminating the exemption in its entirety. Rather, staff recommends limiting the exemption to properties zoned RC (Resource Conservation) as these are properties typically covered by Williamson Act contracts and on which agricultural activities are occurring. For properties in all other zoning districts, staff believes that proposals for agricultural development should be processed through a Conditional Use Permit process so that proper planning and environmental review can occur. Both of these recommendations however would require Zoning Ordinance amendments and as such, staff believes that they should be considered as a part of the broader hillsides standards update process. Recommendation No. 5 - Limit grading to specified times. Comment: Staff agrees. Grading authorized under a Grading Permit should only be allowed to occur on normal work days between the hours of 7:30 a.m. and 5:00 p.m. unless specifically allowed otherwise by the Town Engineer. The Noise Ordinance however appears to allow grading (construction) to occur between the hours of 8:00 a.m. - 8:00 p.m. weekdays, and 9:00 a.m. - 7:00 p.m. on weekends and holidays. Notwithstanding these limitations, the more restrictive hours can be attached to Grading Permits pursuant to Section 12.10.055 of the Grading Ordinance, as a matter of administrative policy The permitted time limits are also reviewed with grading contractors on site before any work is allowed to proceed under a permit. When violations do occur, they are almost always associated with illegal grading activity, i.e. activity for which no Grading Permit has been issued. Recommendation Nos. 6 and 7- Institute full cost recovery when pursuing code violations and refer all grading and tree removal violations to the Town Attorney. Comment: Full cost recovery is not always the best and most efficient approach to code enforcement. A code violation can be dealt with in a number of ways, depending on the nature, severity and frequency of the violation. Less severe violations should be dealt with administratively by staff without referral to the Town Attorney. Such violations are of a type that can be readily corrected by the violator who demonstrates a willingness to cooperate with staff. More severe violations are PAGE 4 MAYOR AND TOWN COUNCIL SUBJECT: Staff response to letter from David Weissman re: Interim Hillside Protection Measures January 31, 2001 referred to the Town Attorney who uses a multi -step approach to code enforcement. The Town Attorney first analyzes whether a violator can be brought into compliance and required to pay a reasonable fine without resort to a court action. The fine is determined according to Town Code § 12.40.035, which allows up to $500 per day of a violation. That approach however may not always be appropriate either due to the recalcitrance of the violator or the severity of the violation. In that event, the Town Attorney may then seek to recover damages in a civil action, or a conviction in a criminal action. The latter, which often does not result in substantial fines or full cost recovery, may, nevertheless, be the preferred approach because of the stigma often associated with a criminal conviction. Finally, the Town Attorney is now working with the District Attorney to determine whether that office may prosecute cases arising out of the more severe violations. Again, such prosecutions would not yield full cost recovery, but their impact may be very positive in discouraging future violations. Recommendation No. 8 - Maintain all correspondences relating to particular projects in a single project file. Comment: This is standard practice. Project files, indexed by address, are maintained at Town Hall. All documents pertaining to a particular project are placed in these files as this is the only way for staff to maintain a complete record of every project. At any given time however, there will undoubtedly be documents that staff will have in its possession and that have yet to be placed into a project file, but these eventually will end up there. While staff strives to maintain all active project files as current as possible, staff also understands the difficulties caused when files are incomplete. With this in mind, staff will examine its practices and procedures in an effort to strengthen its file maintenance and record keeping responsibilities. That said, it is not known why the documents pertaining to the project at 15500 Francis Oaks Way that Dr. Weissman refers to in his letter were not in the file for that project. It is possible that the former Director did not associate them with the proposed project or believe that they should be a part of the project file. In any case, it is standard practice for staff to place all relevant documents associated with a project in the project file maintained at Town Hall. These files are available for inspection by the public during normal working hours. CONCLUSION: Dr. Weissman's letter contains a number of suggestions to strengthen protection of the hillside environment both in the interim and longer term. Staff agrees that some of these suggestions can and should be implemented via administrative policy now. Others however warrant further study or require amending the Zoning Ordinance and for these, staff believes that they will be best addressed during the hillside development standards update process and other General Plan 2000 implementation activities scheduled to occur later this year. PAGE 5 MAYOR AND TOWN COUNCIL SUBJECT: Staff response to letter from David Weissman re: Interim Hillside Protection Measures January 31, 2001 ENVIRONMENTAL ASSESSMENT: Is not a project defined under CEQA, and no further action is required. FISCAL IMPACT: None. Attachments: Letter dated January 1, 2001 from David Weissman. Distribution: David Weissman, 15431 Francis Oaks Way, Los Gatos, CA 95032 To: Larry Perlin, Director of Parks FAX: 3548529 From: Dave Weissman, 15431 Francis Oaks Way, Los Gatos 95032 Re: Interim measures for hillside protection January 1, 2001 Based upon discussions that you and I had last week, I propose that the Town take the following immediate, interim actions pending completion of new hillside and tree protection standards sometime in the fall of 2001. 1. Under Town Code Sec. 29.10.0965, the distinction between protected trees on residential property (subsection 1), a vacant lot or undeveloped property (subsection 5), and commercial property (subsection 6) should be eliminated. All trees which have a four -inch or greater diameter should be protected on all property within the Town. [Also note typo in subsection 6 which specifies both 4 inch and 12 inch diameter trunks. The latter should obviously refer to 12-inch circumference trunks]. Rational: This new standard would simplify discussions regarding hillside lots that may already have a structure, but that are eligible for potential subdivision. That is, is the tree to be removed on a residential property (and protected only if 12 inches in diameter) or on an undeveloped lot (and thus protected if 4 inches in diameter)? This potential distinction is relevant because some large hillside properties have been purchased in sections. That property may now have one APN number, but it could be argued that both developed and undeveloped lots are part of that one property. And, of course, 4 inch diameter trees are the future. 2. Tree removal permits for vacant lots should only be issued through the formal planning process, and then only with an approved project. Such permit issuance will help insure that future development is optimally located on a property. Rational: At present, a property owner has the incentive to decide where they want to place a new structure, hire an outside arborist to certify that certain trees which are in the way, are diseased and should be removed, and then show such documentation to the Town arborist who now feels obligated to issue the necessary tree removal permit. The subsequent application to the Planning Commission is not burdened with the issues of tree removal and site location. This exact process occurred on the property adjacent to me, after the Town arborist had refused to issue a tree removal permit. Additionally, many multi -trunk oak trees are a mix of both diseased and healthy trunks. The whole tree does not need to be removed but can be selectively pruned. Exception: For obvious safety reasons, the Town arborist may issue a tree removal permit outside of the planning process. 3. No individual grading permits should be issued for vacant lots. (Note Code Section 12.10.020 definition of grading: "any land excavation, or filling or combination thereof, or the removal, plowing under or burial of vegetative ground cover"). Such permit issuance should only occur through the formal planning process, and then only with an approved project. Rational: The present Town code only protects trees. But the hillsides also contain mature chaparral and scrub oak communities. These communities also support large animal populations and add to the Town character. They deserve equal protection. Additionally Section 12.20.015 (b) (1) b. indicates that a grading permit is not necessary if less than 1,000 square feet of vegetation is to be removed. What is the time frame here? Can I remove 999 square feet on Monday, 999 square feet on Tuesday, etc, all without a permit? Exception: To comply with Fire Department saf. , is uerntor cll iro�tation. C:;T(S DEPT 4. Suspend Town Code Section 12.20.015 (b) (4), unless it is being applied specifically to land already zoned for agriculture. Rational: Under this Section, any hillside property owner could theoretically grade their entire property simply by stating they are going to plant fruit trees, plant a vineyard, etc. They could subsequently "change their mind" or sell the property, and completely avoided any consequences. The Town attorney, in direct written communication to me, has stated that this Section overrides the protection afforded by 12.20.015 (b) (1) b. I wonder if (4) also eliminates protection for significant trees (I have not queried the Town attorney on that area). 5. Grading (as defined by Section 12.10.020), with or without a permit, should only be allowed to occur Monday through Friday 7 AM to 4 PM, Town holidays excepted. Rational: It is too easy for illegal grading to occur during periods when no Town code enforcement personnel are available to document the legality of the grading. The only present option is to call the police, and they are not knowledgeable of those codes nor would they have access to the relevant permits_ 6. It should be Town policy that staff keep track (with actual time cards as an attorney would do) of all chargeable administrative costs, over and beyond normal costs (which are covered by filing fees) relating to a specific property (inspections, attorney time, answering calls, etc.) if a Town Code violation occurs. These costs should include salary, gas, prorated benefits, etc. The Town code already provides (see, for example, Sections 12.40.035) that such charges can be assessed. It should now be stated Town policy. Rational: Present assessed penalities are little deterrent to violations. Imagine citizen's ire should they find out that violators of Town codes are not being assessed the penalities described in the Town's codes for their violations, and that these same citizens are paying for "policing" activities that, by law, could be charged to the applicant/violator! All the while, the developer/violator is profiting considerably from their violations. 7. All violations (unless obviously insignificant) of Town Code Sections 12 concerning grading and 29 concerning illegal tree removal, should automatically be referred to the Town attorney. This should not be a discretion call of a Town Employee. Violators should all be treated equally. Funneling violations through one office can accomplish that. Rational: In September, 2000, violations occurred at 15401 Francis Oaks Way concerning illegal tree removal, illegal tree trimming, and illegal grading. These violations were handled by Parks and Public Works and Community Development. Although the violations were noted (Iaquinto letter of October 17, 2000) to include illegal trimming, the property owner was not cited for this (Curtis letter of October 24, 2000). The violations also included illegal grading as defined in Section 12, specifically clearing of more that 1000 square feet of vegetation without a permit, yet that infraction was never cited. Lack of knowledge of what Town codes say, continues to be a problem with those personnel authorized to enforce such codes. Additionally, the penalities imposed in the above case were inconsequential and totally out of line from what is provided for by Town Codes (for example, see Sec. 29.20.960; Sec 12.40.035). Is it any wonder that hillside violations continue to occur? These above violations at 15401 Francis Oaks Way should immediately be referred to the Town attorney. 8. It should be Town policy that a copy of all correspondence between an applicant and any Town employee, go into the applicant's file in the Planning Department.. Rational: For a past proposed project on my street (15500 Francis Oaks Way), there was the usual file at the Planning Department that I knew about and had access to. Unbeknownst to me, there were also many relevant correspondences between the applicant and Scott Baker that I only became aware of when disclosed by the applicant because of controversies over grading code violations. There was no official or unofficial file at the Parks Department. These exchanges were about official matters related to the project, and should have routinely been sent by Mr. Baker to the Planning Department for inclusion in the public record. Now that Mr. Baker no longer works for the Town, such documents would consequently be lost. Town Council Minutes February 5, 2001 Redevelopment Agency Los Gatos, California PAST MIDNIGHT Motion by Mrs. Decker, seconded by Mr. Glickman, to continue this meeting past midnight. Carried unanimously. WOODED VIEW 285/RESIDENTIAL APPEAL CONTINUED Motion by Mr. Glickman, to reconsider. Motion died for lack of second. Motion by Mr. Blanton, seconded by Mr. Attaway, that Council adopt Resolution 2001-12 entitled, RESOLUTION OF THE TOWN OF LOS GATOS GRANTING AN APPEAL OF A DECISION FROM THE PLANNING COMMISSION APPROVING A REOUEST TO CONSTRUCT A NEW SINGLE FAMILY RESIDENCE ON PROPERTY ZONED HR-21/2 and remand to the Planning Commission to work out the issue of tree protection, size and mass, reduction of square footage, correct placement of story poles, and redesign of project. This project shall be expedited through the planning process. Carried unanimously. DELEGATION OF CERTAIN FINANCIAL DUTIES/ORDINANCE INTRODUCTION (22.09 & 29) The Town Clerk read the Title of the Proposed Ordinance. Motion by Mr. Blanton, seconded by Mr. Glickman, that Council waive the reading of the Proposed Ordinance. Carried unanimously. Motion by Mr. Blanton, seconded by Mr. Glickman, that Council introduce proposed Ordinance entitled, ORDINANCE OF THE TOWN OF LOS GATOS AMENDING SECTION 2.30.025 REGARDING DELEGATION OF CERTAIN FINANCIAL DUTIES. Carried unanimously. HILLSIDE PROTECTION MEASURES REPORT (23.37) Mayor Pirzynski announced that this was the time and place so noted to consider staff response to letter from David Weissman about proposed interim measures for hillside protection. Speakers: Dr. Weisman, hillside resident, read from the General Plan and spoke of unpermitted vegetation clearing incidents that are occurring presently in the hillsides. Mr. Davis, resident, asked that hillside protection measures be implemented quickly. Council comments: Mr. Attaway asked that the grading issues be considered as part of the comprehensive hillside plan, or to at least discuss each item in the staff report thoroughly. Mrs. Decker asked that the total square footage of a home be used for contemplating its impact on a hillside. Council considered this report and by consensus requested that it be continued to a future meeting. TC:D 13:MM020501 9