2009-099 - 15500 Francis Oaks WayRESOLUTION 2009 -099
RESOLUTION GRANTING AN APPEAL OF A DECISION OF THE
PLANNING COMMISSION DENYING AN APPLICATION FOR A
TWO LOT SUBDIVISION ON PROPERTY ZONED HR 2/Z
APN: 527 -11 -005
SUBDIVISION APPLICATION: M -06 -4
NEGATIVE DECLARATION: ND -06 -4
PROPERTY LOCATION: 15500 FRANCIS OAKS WAY
PROPERTY. OWN ER: MIKE AND ANN MOFFAT
APPLICANT /APPELLANT: TONY JEANS
WHEREAS:
A, This matter came before the Town Council for public hearing on September 8, 2009, and
was regularly noticed in conformance with State and Town law.
B. Council received testimony and documentary evidence from the applicant /appellant and
all interested persons who wished to testify or submit documents. Council considered all testimony and
materials submitted, including the record of the Planning Commission proceedings and the packet of
material contained in the Council Agenda Report dated August 25, 2009, the Desk Item dated September
8, 2009, along with any and all subsequent reports and materials prepared concerning this application.
C. The appeal concerns a decision of the Planning Commission denying an application for a
revised two lot subdivision on property zoned HR -2 ' / 2. The subject 7.96 acre property is located on the
south side of Francis Oaks Way at the westerly terminus of the road. Francis Oaks Way is a private road
that is not maintained by the Town, There is an existing residence on the site that was approved by the
Town Council in 2000. The application proposes lot sizes of 4.89 acres and 3.06 acres.
D. The application was considered and denied by the Planning Commission on June 24,
2009, The applicant /appellant appealed the Commission's decision on June 30, 2009.
T. The applicant /appellant claims that the Planning Commission erred or abused its
discretion in finding that the proposed subdivision is not physically suitable for the use and density of the
proposed single family residential use and Town codes and ordinances; it ignored the direction of the
Town Council from the previous application on December 13, 2006.
F. The Planning Commission erred in denying the application. That decision should be
reversed and the application approved.
G. Council finds as follows;
Pursuant to Town Code Section 29.20.300(b) (1), Council reverses the decision of
the Planning .Commission because there was error or abuse of discretion on the part of the Planning
Commission; to wit, evidence in the record does not support findings for denying an application governed
by the Subdivision Map Act, specifically that the site is not physically suitable to the type and density of
the proposed development. On the contrary, evidence in the record demonstrates that the proposed
subdivision would result in a development site that is relatively flat, thus eliminating the possibility of
extensive grading, and free of trees, thus eliminating the need to remove healthy trees, and would produce a
parcel similar in size to those existing in the surrounding area accessed by a relatively short driveway
connected to Shady Lane.
ii. A mitigated negative declaration is appropriate for this project. The only evidence
to the contrary concerned whether the project would either disrupt an alleged existing riparian corridor or
eliminate the possibility of restoring a riparian corridor. However, this evidence concerned the prior
condition of the site, which is now dry as a consequence of the installation of a storm drain inlet upstream
of the proposed home site.
H. Council notes that the Planning Commission decision did not rest on the question of
access, specifically a dispute regarding the intent of an access easement that provides access via Shady
Lane. The Commission was provided sufficient evidence and advice regarding the adequacy of the
easement for purposes of the Town determining the adequacy of access to the proposed site.
RESOLVED:
That the appeal of the decision of the Planning Commission denying Subdivision
Application M -06 -4 is granted and the application is approved, subject to the conditions of approval
attached hereto as Exhibit "A" and by this reference fully incorporated herein. Said conditions of approval
shall require a scenic easement as articulated by staff during the hearing and also require that access to the
new parcel shall be taken only via Shady Lane.
2. That the Mitigated Negative Declaration is made for this project and the Mitigation
Monitoring Plan is approved and adopted.
The decision constitutes a final administrative decision pursuant to Code of Civil
Procedure Section 1094.6 as adopted by Section 1.10.085 of the Town Code of the Town of Los Gatos.
Any application for judicial relief from this decision must be sought within the time limits and pursuant to
the procedures established by Code of Civil Procedure Section 1094.6, or such shorter time as required by
State and Federal Law.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos,
California on the 21st clay of September 2009, by the following vote.
COUNCIL MEMBERS:
AYES: Diane McNutt, Joe Pirzynski, Steve Rice, Barbara Spector, Mayor Mike Wasserman
NAYS:
ABSENT:
ABSTAIN:
SIGNE
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
ADMINISTRATOR
TOWN OF LOS GATOS, CALIFORNIA
EXHIBIT A
TOWN COUNCIL — SEPTEMBER 8, 2009
CONDITIONS OF APPROVAL;
15500 Francis Oaks Way
Subdivision Application M -06 -4
Negative Declaration ND -06 -4
Requesting approval of a two lot subdivision on property zoned HR -2. No significant environmental
impacts have been identified as a result of this project and a Mitigated Negative Declaration is
recommended. APN 527 -11 -005,
PROPERTY OWNER: Mike and Ann Moffat
APPLICANT: Tony Jeans, T.H.I.S. Design
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 and in substantial compliance with the plans approved on May 13,
2009 and noted as received by the Town. on April 28,'2009. Any changes or modifications to
the approved plans shall be approved by the Cormnunity Development Director or the
Planning Commission depending on the scope of the change(s).
2. EXPIRATION OF APPROVAL. The Tentative Map application shall expire two years from
the date of approval if a Final Map has not been recorded, pursuant to Sections 24.20.070 and
24.70.035 of the Subdivision Ordinance.
3. TOWN INDEMNITY. Applicants are noti.hed that Town Code Section 1,10.115 requires
that any applicant who receives a permit or entitlement from the "Town shall defend,
inderm and hold harmless the Town and its officials in any action brought by a third party
to overturn, set aside, or void the permit or entitlement. This requirernent is a condition of
approval of all such permits and entitlements whether or not expressly set forth in the
approval, and may be secured to the satisfaction of the Town Attorney.
4. ARCITITECTURE AND SITE APPROVAL: REQUIRED. An Architecture and Site
application and approval is required for the new residence on Parcel 2.
5. ARL30RIS ".l' REVIEW. Plans for the new residence on Parcel 2 shall be reviewed and
evaluated by the `T'own's Consulting Arborist during the Architecture and Site process.
6. LANDSCAPE PI.,AN. A landscape plan shall be included with the plans submitted with the
Architecture and Site application for the new residence on Parcel 2.
7. SCENIC EASEMENT, A seems easement shall be recorded. over the upper portion of the
property as shown on (lie tentative map, Trees within the easement may only be trimmed or
pruned as allowed by the Town's Tree Protection Ordinance. Any planting within the
easement shall be drought tolerant native species. Temporary above ground irrigation lines
may be installed, but shall be removed once new plants are established. No permanent
structures rnay be constructed within the easement.
PARCEL 2 ACCESS. Access to Parcel 2 shall be taken solely from Shady Lane.
1 5500 Francis Oaks Way /M -06 -04
Conditions of approval
Page 2 of 8
9. BIOLOGICAL RESOURCES MITIGATION MEASURE - l. If land clearing, grading, tree
acid brush removal, tree trimming or demolition activities are to occur during the nesting
season (February 1 to August 15), a pre - construction survey for nesting migratory birds shall
be conducted by a qualified biologist from. one to four weeks prior to the initiation of work.
If no nesting birds are observed., work may proceed. If work is delayed more than four weeks
from the date of the survey, and it is still within the nesting season, the pre- construction
survey shall be repeated.
10. BIOLOGICAL RESOURCES MITIGATION MEASURE -2. If occupied active nests of a
migratory bird species are identified, a suitable buffer shall be established around the nest
tree. Work within the buffer zone shall be prohibited until August 15th or until the young
have fledged, as determined by the project biologist. The dimensions of each buffer zone
shall be determined by the biologist in consultation with the CDFG.
11, BIOLOGICAL RESOURCES MITIGATION MEASURE -3. If future development plans
include removal of any existing trees, the Town's Consulting Arborist shall determine
conformance with the Town's 'free Protection Ordinance, Future development plans shall
incorporate the Arborist's recommendations to reduce potential impacts associated with tree
removal. .
TO THE SATISFACTION OF THE DIRECTOR OF PARKS AND PUBLIC WORKS:
Engineering Division
12. FINISHED FLOOR ELEVATION. The finished floor elevation shall be a minimum of two
(2) feet above the 100 -ye-ar water surface elevation. Hydraulic calculations prepared by a
licensed civil engineer shall be submitted with the grading permit application.
13. GRADING PERMIT. A grading permit is required for site grading and drainage. The
grading permit application (with grading plans) shall be made to the Engineering Division of
the Parks & Public Works Department located at 41 Miles Avenue. The grading plans shall
include final grading, drainage, retaining wall location, driveway, utilities and interim
erosion control. Grading plans shall list earthwork quantities and a table of existing and
proposed impervious areas. Unless specifically allowed by the Director of Parks and Public
Works, the grading permit will be issued. concurrently with the building permit. The grading
permit is for work outside the building footprint(s). A separate building permit, issued by the
Building Department on E. Main Street is needed for grading within the building footprint.
14. SURVEYING CONTROLS. Horizontal and vertical controls shall be set and certified by a
licensed surveyor or registered civil engineer qualified to practice land surveying, for the
following items:
a. Retaining wall- -top of wall elevations and locations
b. Toe and top of cut and fill slopes
15500 Francis Oaks Way /M -06 -04
Conditions of approval
.Page 3 of 8
15, UTILITY COMPANY REVIEW, Letters from the electric, telephone, cable, and trash
companies indicating that the proposed improvements and easements'are acceptable shall be
provided prior to recordation of the final neap
16. WEST VALLEY SANITATION DISTRICT. All sewer connection and treatment plant
capacity fees shall be paid either immediately prior to the recordation of any subdivision or
tract .maps with respect to the subject property or properties, or immediately prior to the
issuance of a sewer connection permit, which ever event occurs first. Written confirmation
Of payment of these fees shall be provided prior to neap recordation.
17. TREE REMOVAL. Copies of all necessary tree removal permits shall be provided prior to
issuance of a grading permit.
18. SOILS ENGINEER CONSTRUCTION OBSERVATION. During construction, all
excavations and grading shall be inspected by the applicant's soils engineer prior to
placement of concrete and /or backfill so they can verify that the actual conditions are as
anticipated in the design -level geoteclmrical report, and recommend appropriate changes in
the recora nendations contained in the report, if necessary. The results of the construction
observation and testing should be documented in an "as- built" letter /report prepared by the
applicants' soils engineer and submitted to the Town before final release of any occupancy
permmit is granted.
19. PAD CERTIFICATION, A letter from a licensed land surveyor shall be provided stating that
the building foundation was constructed in accordance with the approved plans shall be
provided subsequent to foundation construction and prior to construction on the structure,
The pact certification shall address both vertical and horizontal foundation placement.
20. PRE CONSTRUCTION MEETING. Prior to issuance of any permit or the commencement
of any site work, the general contractor shall:
a. Along with the project applicant, attend a pre - construction meeting with the Town
Engineer to discuss the project conditions of approval, working hours, site
maintenance and other construction matters;
b. Acknowledge in writing that they have react and understand the project conditions of
approval, and will make certain that all project sub - contractors have react and
understand them prior to commencing work and that a copy of the project conditions
of approval will be posted on site at all times during construction,
21, SOILS REPORT. One copy of the soils report shall be submitted with the grading permit
application, The soils report shall include specific criteria and standards governing site
grading, drainage, pavernent design, screening level slope stability analysis, retaining wall
design and erosion control. Slope stability analysis shall be incorporated into the
recorrnmendation for foluldation design. The reports shall be signed and "wet stamped" by
the engineer or geologist, in conformance with Section 6735 of the California Business and
Professions Code. The report shall be submitted for review prior to issuance of any permits,
15500 Francis Oaks Way /M -06 -04
Conditions of approval
Page 4 of 8
22. SOILS REVIEW. Prior to issuance of any permit, the applicant's soils engineer shall review
the final grading and drainage plans to ensure that designs for foundations, retaining walls,
site grading, and site drainage are in accordance with their recommendations and the peer
review comments. The applicant's soils engineer's approval shall then be conveyed to the
Town either by letter or by signing the plans.
23. RETAINING WALLS. A building permit, issued by the Building Department at 110 E.
Main Street, may be required for site retaining walls. Walls are not reviewed or approved by
the Engineering Division of Parks and Public Works during the grading permit plan review
process.
211. PARCEL MAP. A parcel map shall be recorded prior to issuance of any permits. Two
copies of the parcel map shall be submitted to the Engineering Division of the Parks &
Public Works Department for review and approval, Submittal shall include closure
calculations title reports and appropriate fee,
25. TRENCHING MORATORIUM. Trenching within a newly paved street will be allowed
subject to the following requirements:
a. The Town standard "T" trench detail shall be used.
b. A Town approved colored controlled density backfill shall be used.
C. The total asphalt thickness shall be a minimum. of 3- inches or shall match the
existing thickness, whichever is greater. The final lift shall be 1.5- inches of half inch
medium asphalt. The initial lift{s} shall be of three quarter inch medium asphalt.
d. The Contractor shall schedule a pre - paving meeting with the Town Engineering
Construction Inspector the day the paving is to take place.
C. A slurry seal topping may be required by the construction inspector depending his
assessment of the quality of the trench paving. If required, the slurry seal shall extend
the full width of the street and shall extend 5 -feet beyond the longitudinal limits of
trenching. Slurry seal materials shall be approved by the Town Engineering
Construction Inspector prior to placement. Black sand may be required in the slurry
mix. All existing striping and pavement markings shall be replaced upon completion
of slurry seal operations.
f. A separate bond for trench saw cutting and paving may, be provided at the time of
building permit issuance. In the event such a bond is posted, the slurry seal provision
above would be waived.
26. TRAFFIC IMPACT MITIGATION FEE. The developer shall pay a proportional the
project's share of transportation improvements needed to serve cumulative development
within the Town of Los Gatos. The fee amount will be based upon the Town Council
resolution in effect at the time the building permit is issued. The fee shall be paid before
issuance of a building permit. The traffic impact mitigation fee for this project using the
current fee schedule is $5,742, The final fee shall be calculated form the final plans usiuig the
rate schedule in effect at the time the building permit is issued.
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Conditions of approval
Page 5 of'8
27. GENERAL. All public improvements shall be made according to-the latest adopted Town
Standard Drawings and the Town Standard Specifications, All work shall conform to the
applicable Town ordinances. The adjacent public right -of -way shall be kept clear of all job
related dirt and debris at the end of the day. Dirt and debris shall not be washed. into storm
drainage facilities. The storing of goods and materials on the sidewalk and /or the street will
not be allowed unless a special permit is issued, The developer's representative in charge
shall beat the job site during all working hours, Failure to maintain the public right -of-way
according to this condition may result in the Town performing the required maintenance at
the developer's expense.
28, ENCROACHMENT PERMIT, All work in the public right-of-way will require a
Construction Encroachment Permit, All work over $5,000 will require construction seetrity,
29. PUBLIC WORKS INSPECTIONS. The developer or his representative shall notify the
Engineering Inspector at least twenty -four (24) hours before starting any work. pertaining to
on -site drainage facilities, grading or paving, and all work in the Town's right -of -way.
Failure to do so will result in rejection of work that went on without inspection.
30. EROSION CONTROL. Interim and final erosion control plans shall be prepared and
submitted to the Engineering Division of the Parl.s & Public Works Department, A Notice of
Intent (NOI) and Storm Water Pollution Prevention Plan (SWPPP) shall be submitted to the
San Francisco Bay Regional Water Quality Control Board for projects disturbing more than
one acre. A maximtun of two weeks is allowed between clearing of an area and
stabilizing /building on an area if grading is allowed during the rainy season. Interim erosion
control measures, to be carried out during construction and before installation of the final
landscaping shall be included. Interim erosion control method shall include, but are not
limited to: silt fences, fiber rolls (with locations and details), erosion control blankets, Town
standard seeding specification, filter berms, check dams, retention basins, etc. Provide
erosion control measures as needed to protect downstream water quality during winter
months. The grading, drainage, erosion control plans and SWPPP shall be in compliance
with applicable measures contained in the amended provisions C.3 and C.14 of Order No.
R2 -2005• -0035 of the ainended Santa Clara County NPDES Permit.
31. DUST CONTROL. Blowing dust shall be reduced by timing construction activities so that
paving and building construction begin as soon as possible after completion of grading, and
by landscaping disturbed soils as soon as possible. Further, water trucks shall be present and
in use at the construction site. All portions of the site subject to blowing durst shall be
watered as often as deemed necessary by the Town, or a minimum of three times daily, or
apply (non - toxic) soil stabilizers on all unpaved access roads, parking areas, and staging
areas at construction sites in order to insure proper control of blowing dust for the duration of
the project, Watering on public streets shall not occur, Strects will be cleaned by street
sweepers or by hand as often as deemed necessary by the Town Engineer, or at least once a
day. Watering associated with on -site construction activity shall take place between the
hours of 8 a.m. and 5 p.m, and shalt include at least one late- afternoon watering to minimize
15500 Francis Oaks Way /M -06 -04
Conditions of approval
Page 6 of 8
the effects of blowing dust. All public streets soiled or littered due to this construction
activity shall be cleaned and swept on a daily basis during the workweek to the satisfaction of
the Town. Demolition or earthwork activities shall be halted when wind speeds
(instantaneous gusts) exceed 25 MPH, All trucks hauling soil, sand, or other loose debris
shall be covered.
32. SITE DRAINAGE, Rainwater leaders shall be discharged to splash blocks. No through curb
drains will be allowed. A detailed site drainage plans with drainage management system to
maximizes on -site drainage percolation and maintains storm run -off from the site at the pre -
development levels is required to be submitted and'approvedprior to issuance of any permits.
33. NPDES. On -site drainage systems shall include a filtration denied such as a bio-swale or
permeable pavement,
34. SILT AND MUD IN PUBLIC RIGHT -OF -WAY. It is the responsibility of contractor and
home owner to make sure that all dirt tracked into the public right-of-way is cleaned up on a
daily basis. Mud, silt, concrete and other construction debris SHALL NOT be washed into
the Town's storm drains.
35. UTILITIES. The developer shall install all utility services, including telephone, electric
power and all other communications lines underground, as required by Town Code
§27.50,015(b). All new utility services shall be placed underground. Underground conduit
shall be provided for cable television service.
36. RESTORATION OF PUBLIC IMPROVEMENTS, The developer shall repair or replace all
existing improvements not designated for removal that are damaged or removed because of
developer's operations. Improvements such as, but not limited to: curbs, gutters, sidewalks,
driveways, signs, pavements, raised pavement nnarkers, thermoplastic pavement markings,
etc. shall be repaired and replaced to a condition equal to or better than the original
condition. Existing improvement to be repaired or replaced shall be at the direction of the
Engineering Construction inspector, and shall comply with all Title 24 Disabled Access
provisions. Developer shall request a walk- through with the Engineering Construction
Inspector before the start of construction to verify existing conditions.
37. CURB AND GUTTER. The developer shall repair and replace to existing Town standards
any curb and gutter damaged now or during construction of this project. New curb and gutter
shall be constructed per Town Standard Details, The limits of curb and gutter repair will be
determined by the Engineering Construction Inspector during the construction phase of the
protect.
38. SANITARY SEWER LATERAL. Sanitary sewer laterals are televised by West Valley
Sanitation District and approved by the Town of Los Gatos before they are used or reused.
Install a sanitary sewer lateral clean -out at the property line.
39. SANITARY SEWERBACKWATER VALVE. Drainage piping serving fixtures which have
flood level rinns less thar7 twelve (12) inches (304.8 nun) above the elevation of the next
upstream manhole and /or flushing inlet cover at the public or private sewer system serving
such drainage piping shall be protected from backflow of sewage by installing an approved
15500 Francis Oaks Way /M -06 -04
Conditions of approval
Page 7 of 8
type backwater valve. Fixtures above such elevation shall not discharge through the
backwater valve, unless first approved by the Administrative (Sec. 6.50.025). The Town shall
not incur any liability or responsibility for damage resulting from a sewer overflow where the
property owner or other person has failed to install a backwater valve, as defined section
103(e) of the Uniform Plumbing Code adopted by section 6.50.010 of the Town Code and
maintain such device in a functional operating condition. Evidence of West Valley Sanitation
District's decision on whether a backwater device is needed shall be provided prior to
issuance of a building permit.
40. AS- BUILTPLANS, An AutoCAD disk of the approved "as- built" plans shall be provided to
the Town prior to issuance of a Certificate of Occupancy. The AutoCAD file shall include
only the following information and shall conform to the layer naming convention: a)
Building Outline, Layer: BLDG - OUTLINE; b) Driveway, Layer: DRIVEWAY; c) Retaining
Wall, Layer: RETAINING WALL; d) Swimming Pool, Layer: SWIMMING -POOL; e)
Tem7is Court, Layer: TENNIS - COURT; f) Property Line, Layer: PROPERTY-LINE; g)
Contouts, Layer: NEWCONTOUR. All as -built digital files must be on the same coordinate
basis as the Town's survey control network and shall be submitted in AutoCAD version 2000
or higher.
41. CONSTRUCTION NOISE. Between the hours of 8:00 a.m. to 8:00 p.m., weekdays and 9:00
a.m. to 7:00 p.m. weekends and holidays, construction, alteration or repair activities shall be
allowed. No individual piece of equipment shall produce a noise level exceeding eighty -five
(8 5) dBA at twenty -five (25) feet, If the device is located within a structure on the property,
the measurement shall be made at distances as close to twenty -five (25) feet from the device
as possible. The noise level at any point outside of the property plane shall not exceed
eighty -five (85) dBA.
42. HAULING OF SOIL, hauling of soil on or off site shall not occur during the morning or
evening peals periods (between 7 :00 a.m, and 9:00 a.m. and between 4:00 p.m. and 6:00
p.m.), Prior to the issuance of a building permit, the developer shall work with the Town
Building and Engineering Department Engineering Inspectors to devise a traffic control plait
to ensure safe and efficient traffic flow raider periods when soil is hauled on or off the project
site. This may include, but is not limited to provisions for the developer /owner to place
,construction notification signs noting the dates acrd time of construction and hauling
activities, or providing additional traffic control. Cover all trucks hauling soil, sand, and
other loose debris or require all trucks to maintain at least two feet of freeboard.
15500 Francis Oaks Way /M -06 -04
Conditions of approval
Page 8 of 8
TO TIIE SATISFACTION OF THE SANTA CLARA COUNTY FIRE DEPARTMENT;
43, REQUIRED FIRE FLOW. Required fire flow is 1,750 GPM at 20 psi, residual pressure,
44, PUBLIC FIRE HYDRANT. Provide a public fire hydrant on Shady Lane. The location shall
be determined j ointly by the Fire Department and San Jose Water Company. Maximiun fire
hydrant spacing shall be 500 feet with a minimum single hydrant flow of 2500 GPM at 20
psi, residual.
45. FIRE HYDRANT LOCATION IDENTIFIER. Prior to final inspection the general contractor
shall ensure that an approved fire hydrant location identifier ( "blue dot ") has been placed in
the roadway for each new hydrant as directed by the Fire Department.
46. PREMISE IDENTIFICATION, Parcel 2 shall have a Shady larie address. Approved
addresses shall be placed on all new buildings so they are clearly visible and legible from
Shady Lane. Numbers shall be a minimum of four inches high and shall contrast with their
background.
NADMITOND1TN512009\1 15500- TM.DOC