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Attachment 7 - March 17, 2014 Town Council Verbatim minutes1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCE S: Los Gatos Town Council: Steven Leonardis, Mayor Marcia Jensen, Vice Mayor Diane McNutt, Council Member Joe Pirzynski, Council Member Barbara Spector, Council Mem. Town Manager: Greg Larson Planning Manager: Joel Paulson Town Attorney: Robert Schultz Transcribed by: Vicki L. Blandin (510) 337-1558 LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue ATTACHMENT 7 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDING S: MAYOR LEONARDIS: Now that everybody is gathering their notes, the first public hearing is Conditional Use Permit U-13-012, Subdivision Application M-13-004, Architecture and Site Application S-13-020 through S-13- 027, and Negative Declaration ND-13-002. Property location, 258 Union Avenue. We're considering an appeal of the Planning Commission denying a request to construct eight residential condominiums on property zoned C-1. I believe Ms. Avila has a Staff Report for us. SUZANNE AVILA: The Council received a Desk Item this evening. It is a letter from a resident on Howes Court who lives directly behind the site; he was unable to attend the meeting. So hopefully you've received that and had a chance to read those comments. This project site is located on the east side of Union Avenue, one lot south of Los Gatos -Almaden Road. There was previously a commercial building on the site that was demolished in 2001, and that building last housed 0' Shea' s Bar. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The site is about three quarters of an acre, or 32,700 square feet, and it has a C-1 Neighborhood Commercial zoning. Adjacent properties are developed with single- family residences to the rear, townhomes on one side, an office building on the opposite side, and across Union Avenue is the Downing Center shopping center. The Applicant is requesting approval of a Conditional Use Permit for eight detached residential condominiums; a tentative map, which would be just a condominium map; and Architecture and Site approval for eight units. One of those eight units would be a below market price unit, and that is Unit 2. Each unit has a unique architecture style and color scheme. The color and material boards are hanging on the rear wall along with the plans. The project meets minimum parking requirements, inclusive of guest parking. It has the required private and community open space, and it is proposing to have shared driveways, which is common with this type of development. The one unusual aspect is the detached units. The Applicant has revised their plans to address some concerns that were raised at the Planning Commission LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 3 meeting by Howes Court residents; those concerns included visual view and privacy impacts. The two site plans that are posted on the rear wall to the right of the Town seal are the new site plans. The one on the left side is the site plan that was reviewed by the Planning Commission. These plans are attached to the Council report as well; they are Attachment 14. And you also received the original plans, which is Exhibit 13 of Attachment 2. The Conceptual Development Advisory Committee initially considered the project in November of 2012. Those minutes were provided to the Planning Commission and Council. Revisions were made to the plans following that CDAC hearing, including adding guest parking, modifying garage entries and orientation, reducing unit sizes, and changing the architecture to make all the units individual. The Planning Commission considered the project on December 11, 2013. The Commission approved the Mitigation Monitoring Plan and Mitigated Negative Declaration, however, the Commission decided to deny the Use Permit, Subdivision, and Architecture and Site Applications. The Commission's concerns included a concern about development intensity, a concern on the detached LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 condominiums having the same land area that would normally be provided for a single-family residence, and the impact to residents living behind the site. The environmental review that was done for the project included preparation of an initial study and a Mitigated Negative Declaration. Technical studies that were prepared for the project include arborist and architectural reviews. The Mitigation Monitoring Plan includes mitigation measures for air quality, cultural resources, hazardous materials and noise, and those mitigations have also been included in the Conditions of Approval for the project. The Council's options this evening are to deny the appeal and deny applications, as acted on by the Planning Commission; or you could grant the appeal and remand it to the Planning Commission with direction for desired plan revisions; or you could grant the appeal and approve the project, either as proposed or as modified on the revised plans. This concludes the Staff Report, and Staff is available if you have questions. MAYOR LEONARDIS: Thank you, Ms. Avila. We have a question from the Vice Mayor. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 5 VICE MAYOR JENSEN: I have two questions, if I may? MAYOR LEONARDIS: Go ahead. VICE MAYOR JENSEN: The first question, Ms. Avila, is the below market price unit that's being provided, that's required by code, am I right? SUZANNE AVILA: Yes. VICE MAYOR JENSEN: Okay. Then the second question is at the Planning Commission meeting, Commissioner Sayoc asked you a question regarding why not a zoning change or General Plan amendment for this, and your response was that because there were no residential uses in the area this might be considered spot zoning. So my question is a Conditional Use Permit overlay onto a zone where everyone is telling us that no one wants commercial, why isn't that spot zoning? SUZANNE AVILA: If you did a new rezoning on the property to a zone that isn't currently in the vicinity, for example, RM, there aren't any RM zones abutting the site or the immediate area. That's generally considered spot zoning, because you're taking one property and zoning it a designation that doesn't connect to anything else. Right now the commercial zoning does connect; across the LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 street is also a C-1 zone. There is residential in the area. Obviously behind the site and to the left side when you're facing the site, those are both residential properties, but the zone behind is R-1. The other piece of property happens to be in the City of San Jose and isn't zoned by the Town. So the property could potentially be rezoned, but it would not be common to rezone it to a designation that is not anywhere in the vicinity. The reason they're asking for a Conditional Use Permit is the Town Code does have a provision that allows single-family and two-family condominiums through a Conditional Use Permit. MAYOR LEONARDIS: Council Member McNutt. COUNCIL MEMBER McNUTT: Thank you, Mayor. I have a couple of questions, if I might put them all together? MAYOR LEONARDIS: Please. COUNCIL MEMBER McNUTT: Most of the questions I believe are for the Town Attorney. We were given new -to -me information about the definition of condominium and airspace, and so on. So before the Appellant gets up here, can you confirm that the LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 7 information that we received is accurate as far as you understand state law? ROBERT SCHULTZ: Yes, the information you received is accurate. The condominium development that is proposed in this fits within that definition. It's common as you understand it, which has the common walls and common roofs, that you do see, but it has been determined that that requirement is not necessary in order to meet the definition of condominium. COUNCIL MEMBER McNUTT: And is there in the state law definition on condominium anything that specifies what percentage of the parcel needs to be for common space or open space? ROBERT SCHULTZ: No, that should be defined in your own codes. COUNCIL MEMBER McNUTT: And then the concept of exclusive use common space, which sounds oxymoron to me, is that something that you've run across before? ROBERT SCHULTZ: Yes. COUNCIL MEMBER McNUTT: Okay. Then my last question is back to Ms. Avila, I believe. Is it the Fire Department that wanted four driveways, or was that the Applicant's idea, or Staff's idea? Where I'm headed with LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that is it seems like if we were going in this direction, like a lot of extra space used up for hardscape driveway as opposed to more open space? SUZANNE AVILA: It was a combination of Staff working with the Applicant. The Fire Department initially did weigh in to say that two residences off a driveway make it a driveway, and once there are more than two residences, it's a street. Since we met with the Applicant and worked through this series of plans, and they came to the Planning Commission, we've had further discussion on that matter, because the Hubbell project originally had four driveways and now has a single driveway on their redesigned plans, and we've determined that there's really nothing in the Town Code prohibiting a single driveway for four units. So they could potentially have two driveways, or one driveway even, and not have four. It was designed with four very intentionally, because of the information we received from the Fire Department and from Engineering, and that was sort of the direction they were given by all the people who were doing the plans. COUNCIL MEMBER McNUTT: Thank you. That's it for now. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 9 MAYOR LEONARDIS: Council Member Spector. COUNCIL MEMBER SPECTOR: Thank you. I was going to wait on this one, but I'll ask the Town Attorney now, because this has come up in the Council chamber before your time. That is a body adopting the Mitigated Negative Declaration for the project, and that's what their motion was and that's what they adopted, however, if the project is... And they didn't adopt the project, and we may or may not; we don't know what we're going to do. So how can you approve a Mitigated Negative Declaration for a project when you don't have a project yet? ROBERT SCHULTZ: You're just approving the environmental review tonight though; you're not approving the project yet. The environmental review will be done, and then the project, which comes along, has to be consistent with the environmental review document at a later date. That's my understanding. SUZANNE AVILA: I believe the Planning Commission was just stating that they felt the environmental document was appropriate, that the content was appropriate. They didn't take exception to anything in the environmental LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 document. If the project is not approved, it's a moot point; we don't need the environmental document. COUNCIL MEMBER SPECTOR: All right, well I understand what the two of you are saying, and I'll take it from there. Thank you. MAYOR LEONARDIS: Further discussion? Council Member Pirzynski. COUNCIL MEMBER PIRZYNSKI: Thank you, Mr. Mayor. If I'm getting it correct, I want to just follow up on that last statement. So the environmental document as presented and approved by the Planning Commission was adequate for the proposal in front of them, but they chose not to approve the project. I would assume that, let's say, at a later date if the Planning Commission approved a project and it was of lesser intensity than this particular project, then there would be no question that the environmental document covered that issue, is that appropriate? SUZANNE AVILA: Yes, usually if you downsize a project, say you want fewer units or smaller units, if you're reducing the impacts of the project, then typically the original environmental document is still appropriate. It would only be if we created with a new project a LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 different impact that hadn't been analyzed or was made worse in the some manner. COUNCIL MEMBER PIRZYNSKI: But it's acceptable for the Planning Commission to approve the environmental document without having to approve the plans? SUZANNE AVILA: Yes, they're simply saying that they felt the environmental document was adequate. COUNCIL MEMBER PIRZYNSKI: Okay. I want to ask a question, and back to the issue of the zoning and the CUP as appropriate mechanism in the C-1 zone to approve residential. I think that was made clear by Mr. Paulson at the Planning Commission meeting that it was indeed the case. Is this typical for us? Do we have examples throughout the community in which we have done this, or if we don't have examples, is this the standard for us, that a CUP would be used in a case where you have the C-1 zone, which does allow residential with a CUP? SUZANNE AVILA: I think there are a couple of examples in the Almond Grove along the fringes where you have the commercial that stems in from North Santa Cruz, like along Almendra, for example; there are some properties in there. There are some areas in town where they have a commercial zoning and there's a residential use on the LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 site. Some of those may be pre-existing uses. We didn't survey it to give you a percentage of a better idea of where that occurred in the town. COUNCIL MEMBER PIRZYNSKI: All right, but this is policy? SUZANNE AVILA: Yes. COUNCIL MEMBER PIRZYNSKI: Okay. SUZANNE AVILA: Unless they use from a table amended to drop those uses from that C-1 zone it is a use that's possible based on the evaluation of that specific site and what's surrounding it, is it appropriate, does it fit in, that sort of thing. COUNCIL MEMBER PIRZYNSKI: Okay. Can I continue with just one more? One of the issues with the Subdivision Map Act findings, and that obviously we have to make all the findings A-G, and the issue was brought up by a member of the Commission that Item D, the Commissioner felt the site was not suitable for the proposed density. How do we determine suitability in terms of the Map Act? How do we determine suitability in relation to density? SUZANNE AVILA: Actually, those findings from the Subdivision Map Act are essentially reverse findings, if you can make one of those findings as ground for a denial. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 13 So to approve a subdivision you don't want to be able to make any of those findings. The Planning Commission cited density. I believe the greater issue was really development intensity. It may be the number of units as well, but it seemed to be more an issue of the size of the units and the spacing and how much development was being proposed on this site relative to what's around it, particularly the residential use behind. But density in the C-1 zone isn't defined by the code, so there isn't a specified density range if you do a residential project. The Applicant is proposing something in the medium -density range, which is between 5-12 units, and there are other projects in this immediate vicinity with that kind of density range. So that's how they determined what they wanted to propose, and it's up to the Council to decide whether that's an appropriate density for that location. COUNCIL MEMBER PIRZYNSKI: Okay, but in terms of D in this A-G range for the Subdivision Map Act, your interpretation, if I hear you correctly, is that the Commission is really focused on intensification rather than density in that particular (inaudible)? LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SUZANNE AVILA: From their comments that they made, it seemed to be development intensity more than the number of units. I think their issue was the volume, the height, the massing. The amount of development being proposed seemed to be the main issue rather than an actual number of units. COUNCIL MEMBER PIRZYNSKI: That's it for now. MAYOR LEONARDIS: Thank you. Any further questions for Staff? At this time I'd like to ask Council Members to make their disclosures, starting with Mr. Pirzynski, if you have one. COUNCIL MEMBER PIRZYNSKI: Yes, I did visit the site, and I met with the Appellants, and we did walk the site. MAYOR LEONARDIS: Vice Mayor. VICE MAYOR JENSEN: I visited the site, met with Mr. Wang, his architect, and his realtor. MAYOR LEONARDIS: I also visited the site, and I met with the Applicants. COUNCIL MEMBER SPECTOR: I visited the site, and I met with the developer, his realtor, and his architect. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 15 COUNCIL MEMBER McNUTT: I also met with the Applicants. I visited the site and toured the surrounding neighborhoods. COUNCIL MEMBER PIRZYNSKI: Mr. Mayor, I would like to add that I also toured the neighborhoods that were adjacent to the site. MAYOR LEONARDIS: All right, thank you. Now we're going to open the public hearing on this matter. I'd like to invite anyone in the audience who would like to speak to fill out a speaker card on this application, on this subject, and you'll be allowed three minutes at the podium. If you haven't done so, please fill one out and hand it to the clerk. I'd like to call the Applicant forward first. You have ten minutes, and you can share between yourselves, depending on how many of you there are. CHRIS KUMMERER: Thank you, Mayor Leonardis and Council Members. My name is Chris Kummerer of CKA Architects. I'm here with Shawn Wang of ValleyOne Investments, Kim Connor of Intero Real Estate, and Jeffrey Wagner of Miller Starr Regalia, attorneys. We're happy to be here tonight. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Here's the project site that you've all seen, right here, this empty lot on Union Avenue. As Suzanne described it, to the north we have 15 homes; they're freestanding homes. There's an R-1 district to the east here of single-family homes. Duplexes to the south. We've got an office directly to the south of our property, and then the Safeway development across the street. There was just a question about do we know of any C-1 properties that have been developed with residential on them? Here's one right here. Downing Oak Court has duplexes, fourplexes and sixplexes, and it's zoned C-1. This photo shows the empty property in its current blighted state. Here's the zoning map. As I alluded to, here's our property; two parcels that will be merged into one, and it's zoned C-1. Here are the 15 homes next to us to the north. Office use to the south. Residential duplexes here to the south. The R-1:8 here. Safeway here. And that development I just mentioned, so it's zoned C-1, and it has those different residential components. And then again, we've got residential duplexes here on Pinehurst, and RM-15 here. So it's really a rich mix of zoning in this area. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 17 This is what came up earlier. We're applying for a Use Permit for the C-1 zone. Here are some permitted uses, and residential condominium is a permitted use, and that's the method that we are proposing to use here for this project. Here are the development regulations for the Commercial zone. We're complying with all of these, not asking for any exceptions or variances. We looked at the history of the property, and the property hasn't been used since 1997 when it was a bar; in 2001 it was knocked down. There really hasn't been any desire for a commercial use on the property since then. Here's a look at the neighborhood at large, and here we are here. This is a mockup of the density of our development. When we first sat down to consider what to do with the land, as Suzanne mentioned, we were given a range of moderate density, 5-12 units per acre, and we tried to take a thoughtful approach as to how to decide what an appropriate density would be. We came up with eight units, and that results in 9.3 units per acre. You'll see that the residential, the R-1:8 zones have seven units per acre here, and six on Howes and LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Hershner, and these areas, a little hard to read this, and the freestanding homes here are 14 units per acre. We've got 11 to the south, the duplexes, and this Downing Oak Court is 12.3 units per acre. We feel strongly that this approach has resulted in a nice transition in the neighborhood. From north to south the 9.3 fits in quite well between 14 and 11; it's much more moderate. And from east to west we feel like the 9.3 units per acre makes a great bridge from the Commercial zone to a little bit less density here on the R-1:8. As Suzanne mentioned, we brought this then to the CDAC and made further revisions. We began to develop the condo ownership model. This graphic shows that there is one parcel, so it will be one large parcel. The green areas are commonly owned areas, and the blue areas are privately owned areas, just like this development in Palo Alto; these are freestanding condos. They're quite attractive and they're detached, you can see here. Again, nice looking buildings. Here's a map of their property, one lot. These are commonly owned areas, and these are privately owned areas. It's very similar. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 19 Now, the Town has gotten behind this concept of ownership in the past. Here's a property on Forest Avenue that was developed the same way, and here's one on Town Terrace. Then at the Planning Commission meeting we brought this proposal. We revised it to make for some softer massing at the rear, given the comments of the neighbors. We moved the second floors back 13' and redesigned these three units to really try to make a good faith effort to show that we really want to make this work back here. The distances from the homes behind are quite large. Here's a view of that newly designed rear, and these only use high windows so you wouldn't be able to see directly into the homes behind. And then there is a proposal for a bunch of trees on here that we didn't render for clarity. Here's the ensuing site plan, and this is a view of the proposal. We think it's quite attractive. We've put a lot of effort into the design of each unit and we think the Conditional Use application is a valid avenue for approval, as we discussed. Residential use is desirable. The project makes a good transition in the neighborhood. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The density is moderate and well blended. Freestanding condominium is an acceptable legal type of ownership, and it's attractive and well designed. So we seek your approval, bringing this new information of a redesign of the rear units, redesign of the common space, and also the clarification of the condo ownership. Thank you, and Jeffrey Wagner will say a little word, if we have time, just about the condo ownership. JEFFREY WAGNER: Thank you. My name is Jeffrey Wagner; I'm an attorney with Miller Starr Regalia. I'm representing the developer, and I have practiced in the area of common interest development law for about 30 years. But actually I think the Town Attorney already addressed what I was going to address. I understand that there might have been some issues with the detached concept of a condominium, as to whether that is a legal condominium under state law, so I think your Town Attorney has informed you that it was. If you have any specific questions about the detached concept, I am happy to answer them. I know Council Member McNutt had some questions about exclusive use common areas. If you have those kinds of questions, I'm happy to LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 21 address those, but I primarily was here to address any issues about the legality of the detached condominiums, which I think has been addressed. Thank you. Shawn, did you want to say a few words? SHAWN WANG: (Inaudible). MAYOR LEONARDIS: Council Member Pirzynski. COUNCIL MEMBER PIRZYNSKI: I would like to expand on your condominium issues, not just from the legality, but also from the differentiation of detached condo from single-family residence. We've run into this problem in the past; it's been a stumbling block for us to understand how if you have X number of detached condominium units on a single property, how does that differ from what would be considered a standard subdivision where you would have certain numbers of square feet of property that are dedicated to each unit, and what makes a detached condominium different than a single-family residence that then allows it to bypass some of those standard expectations for a subdivision? JEFFREY WAGNER: I think the important thing to note, and Mr. Kummerer mentioned that in his presentation, is what the ownership is on a condominium, and that's the distinction between a condominium and a single-family lot. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 22 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Every condominium has to have two ownership elements to legally be a condominium under state law. You have to have separate interest in a unit, and you have to have an undivided interest in the common area, the balance of the property. The key distinction here, these are legally condominiums. Each owner will have a separate interest in a unit, which was shown in the diagram he showed you. The entire lot remains as a single parcel. It's not carved up into eight individual lots, it's a single common area parcel and it's owned in undivided one -eighth interest, an undivided equal interest that works at the one -eighth interest by each of the owners. So each owner would own a separate interest in a unit, and that unit would be shown on the condominium plan the size of the unit, and they would own an undivided interest in that single lot, a one - eighth interest. So it is a condominium project. It's condominium ownership, not a Planned Development, a single-family detached lot where that would be carved up into eight individual lots where each owner would own 100% of the property their home sits on and whatever else is within those eight property lines. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 This is an entirely different project. It's a condominium project. It's a single lot condominium project. We're not carving this lot up into eight lots. COUNCIL MEMBER PIRZYNSKI: I think this is a sticking point. We've seen it before, it has been something we have had some difficulty with, although there are a couple of examples in Town that have been approved as detached condominiums. I think it's very important that we see this as distinct from the the standard subdivision, the standard single-family residence. Even though it's law, it still seems like you're putting eight single-family residences on a piece of property that is restricted in size, and that to me is where the question arose with the Planning Commission, and I think that that's where we need to be very clear in how we understand what this concept is about. CHRIS KUMMERER: Just a simple comment on that. To me, it comes down to the green shown here. The green is the predominant color, as it should be on St. Patrick's Day here. That's really the distinction. If these were single- family lots there would be no green, no common area whatsoever. So this is predominantly common area. MAYOR LEONARDIS: Council Member McNutt. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COUNCIL MEMBER McNUTT: Thank you, Mayor. Except that when we met you were talking about this exclusive use common area and fences. I'm having trouble with that, because if you put a fence up around a yard, it's my yard, so talk me through how that works. CHRIS KUMMERER: Let me point out something that was helpful to me in understanding this. This is the Los Gatos Commons. My grandma used to live here, so this has a special place in my heart. It's exactly this. The Los Gatos Commons we know is a big development, and each one of these units has its own exclusive use space. This is hard to see, I'm sorry, but this is their exclusive use patio. This isn't a new thing; this was done I think in the seventies when this was built, so it would be exactly that. This is definitely a condominium, and that's definitely not a privately owned thing, that's an exclusive use common space. I don't know if that's helpful, but this shows it. COUNCIL MEMBER McNUTT: If I might, Mayor? It is and it isn't, because, it's a little bit hard to see, but it looks like it's just basically a little bit of an extended patio, and what I thought I saw on the diagrams in here were a little bit larger area for some of the units, but not all of the units, which is another concern I have. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 25 I don't like having two stepchild units with nothing, and having them quite different, especially when one is the BMP unit. So I still need some more beyond that. CHRIS KUMMERER: To the last point, the original proposal did have those exclusive use spaces for Units 2 and 3, and should the Council see fit to approve the project we'd be open to a Condition of Approval of restoring those exclusive use spaces to Units 2 and 3. That was always part of the proposal, so I think that would be a good addition. I think the size is just the difference. The rear units have larger exclusive use spaces, namely because the setback there was determined by the zoning ordinance. COUNCIL MEMBER McNUTT: So take me to the practicality of it. The homeowners association has control over all the common areas? So it does all the maintenance and gardening service? If I want to put a rose bush in my exclusive use common area, do I have to get approval from the homeowners association? Practicality might help figure this out. JEFFREY WAGNER: When you have a common interest development you'll have a set of CC&Rs. On your specific question, there will be an architectural committee that LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 controls any changes, in addition to any changes that of course may have to go through the Town, and one of those is they control all the landscaping and what you do. Let me back up a little bit on exclusive use common areas, because it's recognized under state law. It's a definition in the Davis -Stirling Act; they define common area and they define exclusive use common area. Once you go outside the unit envelope you're stepping into common area. State law then allows you to designate certain parts of that common area that are reserved for the exclusive use of occupants. They can be typically things like parking spaces, like patios, and like yards, and the owner has the exclusive use of it. Now the CC&Rs then can control maintenance of that yard. Typically on a private yard with a fence the owner would maintain that fence, but what they plant in there is going to be subject to the Architectural Review Committee, but the maintenance of that typically is their own. Not always. It can change; it depends on how it's irrigated. The association maintains all the unfenced landscaping out there, that's how that's done. You can have, for example, a row house set of condominiums that are up against a back property line. Typically they will LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 27 reserve, because the best use of that rear property is to give it to those individual owners as their private little yard, and that's very common. COUNCIL MEMBER McNUTT: My final question is when you made the revisions that are up here on the wall and that you referenced, had you had a chance to meet with the neighbors to the east and talk through those changes and how they might decrease or increase their concerns? CHRIS KUMMERER: We did have a chance and we hope that they would decrease their concerns. We met with two of the neighbors in person, one in their home and then another neighbor on their driveway, and we also left a letter for other neighbors stating that we would be happy to show it to them. In addition to that, we revised the story poles, as you saw there, so that they could see the revision in the proposal. We put up blue netting instead of the orange, and they could see that moved back 13'. COUNCIL MEMBER McNUTT: Thank you. MAYOR LEONARDIS: Further discussion? Questions of the Applicant? Seeing none, we'll start to call the speakers forward. The first speaker is Hui Li. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HUI LI: My name is Hui Li and I live at 2059 Howes Court, right behind the proposed project. Actually, my husband follows this project all the time, but he's not here today, so I am here. From what I understand, even they modifying their plans, I still keep my concerns. I think their proposed project is still too close to my property and I don't like the idea of a two-story home. This afternoon I went out in my back yard. What I saw is all the poles with orange and blue nets, so from every angle in my backyard, what I see. So after the home is built, there are all windows and doors and the buildings behind in my backyard, and then there is no blue sky, no (inaudible), no sunshine, even in the very early afternoon. So from my point of view, I don't like the two- story home. If they can change it to a one-story home, I would say okay. So definitely I don't want a two-story home going on. Thank you. MAYOR LEONARDIS: Thank you. Next speaker is Chi - Ping Siu. CHI -PING SIU: Mayor and Council Member, I live in 261 Howes Court, so I live right next to the speaker just now. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 29 We live in a single-family home, a single -story. I wonder if you guys live in a single -story home too. If you do, then you will see our issues, because when I step out in my yard right now I see two-story homes. So if this project is done, then I will see like six total, so it would be like devastating to us. Just imagine that if in your backyard you see the sky right now, and suddenly you see a line of two-story houses next to you; it would be very distressful. But I think if we consider that right now this project has eight houses, so if the four houses adjacent to the neighbors is reduced to single -story, we don't have a problem. If your immediate neighbor is a two-story house, or going to be remodeled to be a two-story house, you have a problem. But if it's further down the parcel, it's one block away or one house away, you have less impacts, so I think it's exactly the situation right now. I would ask the developer to consider reducing the total development from eight to like six, and then so that the four units adjacent to us to be reduced to like single -story, then I don't have any issue with that. I think it's a feasible solution to all this. Because frankly, for us living in a single -story LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 home, to see all two-story view of development is really distressful for us. Thank you for your time. MAYOR LEONARDIS: Thank you. Next speaker is Lancy Yew. LANCY YEW: Good evening all Council Members. My name is Lancy Yew and live in 261 Howes Court, and Chi -Ping Siu is my husband and he just talked. Well, since we live in the same house I don't want to repeat what he just said, even though I totally support and agree with what he said. But I just want to add a little bit of my concern also. I have a swimming pool in the backyard, and when I stand at the swimming pool and look at all these orange poles, I know that I would lose my privacy in my backyard once this project is approved. Also, because this piece of land has higher ground than where I am, once the condominiums are built, from where I am those condominiums will be blocking the sunlight from the west coming into my backyard. The condominiums have a very high, visible presence both inside and outside of my house, and I'm also concerned that this development will contribute to the development of our low -density living area into a more LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 31 crowded and undesirable living area. That is what I want to say. Thank you so much for your time. MAYOR LEONARDIS: Thank you. Our next speaker is John Yeager. JOHN YEAGER: I live at 285 Hershner; I'm also on the back wall. The Planning Commission reviewed this proposed development. Each Commissioner reviewed this material and visited the site. After this they voted 7-0 against the proposal. I understand that ValleyOne Investments from San Jose has the right to appeal, and I understand their motivation, but given that this was a 7-0 decision and the entire Planning Commission thinks that this project should not be approved, why would the Town Council want to overrule them? In addition, I want to put out that there was an error in ValleyOne's presentation I'd like to correct. In their discussion of comparable density in the surrounding neighborhood they claimed that all ten homes along Union Avenue reaching Thomas Drive are all duplexes. In fact, there is only one home like this. ValleyOne also claims that they want to work with us and address our concerns. In discussions with each of us LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prior to the meeting they told us we should be grateful they're building condos on the site and asked us if we prefer a bar to be built there instead. This is in reference to the illegal bar that was shut down ten years ago. We would be very supportive if ValleyOne proposed a plan that fit in well with the existing neighborhood and did not impact privacy of the neighbors along the back wall. We believe four houses instead of eight would be much more appropriate. One initial concern that I noticed personally was the apartment style trashcan right next to my property line, which would likely be open topped and lead to a lot of flies buzzing around me in my Jacuzzi, which is right on the other side from that trashcan. We ask the Town Council to uphold the unanimous decision of the Planning Commission. I also want to say that after the Planning Commission made this vote I was very happy to be living in Los Gatos. Thank you. MAYOR LEONARDIS: Thank you, Mr. Yeager. Next speaker is Maureen Heberling. MAUREEN HEBERLING: I'm Maureen Heberling; I live at 291 Hershner Court. I live right behind the condos that LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 33 are on Union Avenue at Los Gatos -Almaden. This is San Jose. I tried to get them to reduce the density, but my pleas fell on deaf ears. I have zero privacy in my yard, and I have very little quiet enjoyment. This is an association, but they don't adhere to it. There's noise all hours of the day and night, and it's just not very comfortable, and I'm afraid that these eight houses going in will get the same results. I'm here to support my neighbors on Howes Court. I don't want them to go through what I've gone through. I don't want their property values to be decreased, as I feel mine has. We're not trying to keep Mr. Wang from building. I agree that four single -story homes would be the best in there, perhaps a cul de sac, have a larger yard so the children can play in the backyard. Union Avenue is very busy and it's just not a safe place for kids to play. The other thing I wanted to point out is the condos behind me and the lot at 258 Union Avenue are approximately 3.5' higher than the lots on Howes Court and Hershner Court. I have had a lot of problems with water runoff; the land all slopes to the east. I've had to put out money to take care of my yard, and I don't want my LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 neighbors to have to do the same thing. I would request that someone from the Town go out there and see that yes, there is an elevation difference between the two places, and any home is going to be much higher than what our existing homes are. Mr. Wang is interested in getting a return on his money, I can understand that, but not at the expense of we people who have lived here for so long. I've lived there since 1969. Thank you. MAYOR LEONARDIS: Thank you. Next speaker is Pat Scannura. PAT SCANNURA: Good evening. I live at 255 Howes Court; my name is Pat Scannura. I met with Shawn and Chris and they went over the changes that they made, which I appreciate. I'm going to try to keep it brief. My opposition from the beginning has been the amount of units. I would prefer six units. And I told them, I said what they should do is get rid of the affordable housing unit and make all the units the same price, because I think that they should be able to price for what the market can bear and not have to have one unit where they're LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 carrying somebody so they can live there. So that's my take. I don't have the same issue as my neighbor. I'm not really opposed to second story, because I have a two- story home. I'm not going to be a hypocrite and say you can't build a two-story home; that's ridiculous. And people don't sit in the second stories looking out at the neighbors. Doesn't happen. It's creepy and it doesn't happen. So I think six units on that piece of property would be sufficient. I mean eight is just too many. And I did mention that to them, didn't I? Right, I did. Thank you. MAYOR LEONARDIS: Thank you. That's the last speaker card I have from the public. We'd like to invite the Applicant forward again. You have five minutes to speak. CHRIS KUMMERER: I'd like to just try to address some of the points, the neighbors' concerns that they have here, particularly here. This is Pat Scannura's house right here; she mentioned it's a two-story home. These black homes are two- story. The neighbor here that sent the letter and also LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 spoke here, they also have a two-story home. And these distances are 47', 52'. Those types of distances between homes are consistent with what you would find in the R-1:8 zone itself because of the 20' setback from each property; 20' and 20' would give you 40'. So we have exceeded that. Now, on the other side there's a pool here that's of concern. Actually, this house looks into the pool; this two-story house overhangs that pool. That house with the pool is 105' away, or 96' away; we think that's a good amount of distance. We've also got an 88' distance here and 70' distance here. Also, as you folks noted when you were out there, there are trees that screen this area, and we have proposed to fill that in even more, so that's going to help. Now, the property is up a little bit in height, which was a concern for one of the neighbors. A previous owner dumped a bunch of soil in there —that's coming out —and the heights are consistent with the average grade before that was done. We've also got the trash enclosures. They have tops on them, and that's way back here. These homes in San Jose are not condos; they are small lot single-family, so there is no association to LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 37 maintain that. The advantage here of the association is they would maintain the trees, they'd have to maintain the units, so that problem that we heard from one of the concerned neighbors would not happen; there would be a check on that with the condo association. SHAWN WANG: I will keep my talk short, because I think I Chris answered all the concerns of the neighbors. Thanks, Mr. Mayor and also all the Council Members, you spent your time meeting with us last week. Before you make your decision tonight I would like to reiterate what we have provided tonight and also in the past Planning Commission meeting. First of all, the detached condo is a legal format of condo unit. Also, the Conditional Use is a valid avenue for many types of development in the C-1 zoning, including residential projects. And then, residential development fits in this neighborhood, especially even the neighbor agrees with this point. Our proposed design would provide a good transition between the neighborhoods. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Also, the density of the project, which many neighbors pointed out, but we feel this density is in the middle range, nothing over or very high. We have also changed our design to try to address the concerns from the neighbors. After the Planning Commission we sent all the data to them, we tried to talk to them, but a couple were willing to talk to us. So my stand tonight is please approve this project. We would like to have this opportunity to make this neighborhood an excellent community for the Town. Thank you. MAYOR LEONARDIS: Thank you. Does the Council have any questions of the speakers before they sit down? Council Member Pirzynski. COUNCIL MEMBER PIRZYNSKI: I don't know who wants to address this, but I would like to have a specific audit of the changes that have been made since the Planning Commission reviewed your project, if you wouldn't mind giving us those, please. CHRIS KUMMERER: I guess I'll start here. Most importantly, you can see this dashed line here in blue, and if you do want to see those on the wall there it may be clearer. We took these three units, we call them 6, 7 and LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 39 8, and we reduced the square footage of those units. Then we took the rear wall and we moved it 13' back for each one. Now, by reducing the square footage of the units we were able to open up space in between the units, so it would appear less like a solid wall in the back. So we opened up a space here, which was a common use space, kind of a park -like space, and we also opened up some space here. Secondly, we took all the windows that were egress windows, so those are windows with a low sill that you could escape in a fire, and removed those from the rear, so that windows that face the rear are all high windows. So in order to look out you'd have to sort of get on you tiptoes and look out. Additionally, we added this common space in the middle, made that larger. There was a concern at the Planning Commission that the common space couldn't be equally accessed, and so we made that access from the frontage. Some minor items. We had spoken with the neighbors about raising the existing fence two additional feet, and that was something that a couple of the neighbors LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were into, and so the code allows for that and we would like to do that. We just increased the screening. It doesn't show here, but there are trees all the way along the rear, right here. This stand of trees is mature, so we're just filling in the gaps. I think that's a summary of them. MAYOR LEONARDIS: Any further questions? Mr. Kummerer, I have a question for you. One of the residents spoke about potential drainage problems. Are you aware of any drainage issues in that area? CHRIS KUMMERER: I am not aware of any current drainage issues, but the real thing that they should note is that we had to go through a really strict review based on the C-3 requirements that this jurisdiction has adopted, and so there's a full drainage plan. The water has to be stored on the site and it gets treated into the ground. Any rainfall that falls on the property ends up in this system. That's why it took a long time for this project to come through; it had to meet all those standards. That's fully taken care of. MAYOR LEONARDIS: Thank you. A couple of the other residents spoke about the elevation. I think you LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 41 partially addressed this by saying that the previous owner had added additional dirt to the site and you were going to be removing that. I guess the number that was thrown out there was 3.5' higher than the lots behind. Will that still be the case, or how much elevation difference might there possibly be? CHRIS KUMMERER: I don't know where that number came from. It may be 3.5' at the top of the mound that was left out there. We had a soils analysis done and they gave us an analysis of how much fill there was on there. I don't have the number in my head, but just visually, as we were out there, it looks like about a foot drop from the 258 Union property to some of those homes back there, and then we're going to be scraping a bunch of that soil. But I think in the end, it's about a 1' drop. MAYOR LEONARDIS: Okay, thank you. Any other questions from Council? Seeing none, I'll officially close the public hearing on this matter and we'll move to the Council for discussion and motions. Vice Mayor. VICE MAYOR JENSEN: I have a question for Staff, if I might? Or a couple. MAYOR LEONARDIS: Sure. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VICE MAYOR JENSEN: These are for Ms. Avila, I think. The property that we're talking about is currently a single lot, correct? SUZANNE AVILA: It's two lots. VICE MAYOR JENSEN: Okay, so two lots. I'm confused about the Staff Report that went to the Planning Commission that said the properties don't need to be subdivided, but we're doing a condominium, but because it's a condominium we're submitting a Subdivision Map Act request. So have the properties been merged and then they're going to get subdivided for a condominium map? Is that what's going on? SUZANNE AVILA: The two properties will be merged; it will become one single lot. It's not a subdivision in the sense that they're creating individual lots. When you see the example maps that the architect showed, those are showing building footprints. VICE MAYOR JENSEN: No, I get that. SUZANNE AVILA: It will be one single lot. VICE MAYOR JENSEN: But we're not taking any action to make it into one lot. Why not? LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 43 SUZANNE AVILA: The condo map that would be recorded, if the project were approved, would merge it into a single lot. VICE MAYOR JENSEN: What if we don't approve it? What if there are just two lots? Then what? How big would the lots be if it were R-1:8? What could be built on them? We don't have that information. SUZANNE AVILA: If it were R-1:8 you could potentially have four lots based strictly on land area, but I believe they could only get three based on the required frontage of 60' per lot. COMMISSIONER KANE: Okay, and so if there were three in an R-1:8, they would have to come back and somehow divide those two lots into three, correct? SUZANNE AVILA: Yes. COMMISSIONER KANE: Okay. My next question is what or how do our Town Codes address what I understand is a legally viable construct of condominium ownership, which is a single, standalone residence, which we don't seem to contemplate? We contemplate what we traditionally think of as a single-family home. So where in our code, if anywhere, is the concept of a standalone condominium addressed with setback rules, et cetera? LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SUZANNE AVILA: The code does not have any specific guidelines for a condominium in terms of setbacks, whether they're attached or whether they're not attached. There's not a definition that says they're detached. You're right, traditionally they're attached, and most of the projects the Town has approved to date, with the exception of the two that the architect mentioned on Forest and Town Terrace, have been attached units. VICE MAYOR JENSEN: Okay, thanks. MAYOR LEONARDIS: Other questions? Well, I have a couple questions that are mostly just curiosity that I'll ask of Staff. One is I viewed the story poles out at the site, and they looked really close together when I look at the renderings of the properties, the story poles. I just wanted to know if anybody on Staff has verified the accuracy of the placement of the story poles? SUZANNE AVILA: Story poles were certified, as is required by the new Story Pole Policy, so that got done by a civil engineer. It has to be a registered engineer or surveyor that locates the poles and then verifies that they were located correctly and are at the accurate height. So that was done. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 45 MAYOR LEONARDIS: Okay. And then since you mentioned the new Story Pole Policy, I recall there being an artist's rendition posted at the site. Was there ever a sign out there that showed the neighborhood what was potentially going in? SUZANNE AVILA: That's a residential project; it's not a Planned Development. They're required to have a sign that indicates the public hearing date and that the plans are available for review at Community Development Department. I believe there was a sign out there; I don't know that it had a rendering on it or not. I don't think it did. MAYOR LEONARDIS: The public hearing is closed, Mr. Wang, so sorry about that. MAYOR LEONARDIS: One last question I have for Staff concerns a comment from one of the speakers, and they expressed a desire to have six units out there and do away with the below market unit. The question I have for you is what is the required amount of units when a below market unit is required? SUZANNE AVILA: Projects of five or more would be required to have a below market price unit. So if they had five units, a unit would be required. If there were six, a LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 unit would be required. They'd have to go down to four to not have an affordable unit. MAYOR LEONARDIS: Okay, thank you. Council Member Spector. COUNCIL MEMBER SPECTOR: Thank you, Mr. Mayor. There has been a lot of discussion, I think, about how the Planning Commission did not understand the condominium concept and how they made a wrong decision because they didn't understand it. The record does not show that to be the case. If you look at it, the Planning Commission was looking at facts. They were saying that the project was too dense, that it lacked articulation, that it had small common areas, it had a problem with the units that back onto the back street, it had a problem with guest parking, it had a problem with the transition between the townhouses in the front and the residential units in the back. They had a lot of factual issues with the development. Yes, they did discuss whether a condominium project of this type was appropriate, but they were told yes, and they went forward in that vein. So they did not, in my opinion, make an error in thinking that they could not adopt this kind of project. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The challenge they were having is that by having a detached condominium project, it either was or appeared as though there were many more homes on that piece of property than if they had a regular subdivision, and that was the challenge they were having. They were also having the challenge that if this was the case, how can they control? If this was a condominium project, how could they control it? I don't feel as though we, the Town, have given them good direction, because they do have ways to control the development. They can look at Architecture and Site, which has a whole number of provisions, including items like site layout and landscaping. They have to approve a Conditional Use Permit, which has them find that the development is essential or desirable, complies with the General Plan and the Town Code. They have to look at the Subdivision Map Act, which has them determine if the site is physically suitable for the proposed use. So they have a lot of mechanisms to assess and control a detached condominium project, and should this go back to them, or they have any other one in the future, I'm going to strongly encourage them to look at all of these LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mechanisms, because they do have the ability to control or give direction to what's going on on that property. I would also hope that when they get Staff Reports on this or future detached condominiums that Staff will also review the Architecture and Site Ordinance, and the CUP, and the Subdivision Map Act, and the General Plan and give the Planning Commission and us guidance as to whether or not this project is acceptable. So it may be premature, but I'm going to go ahead and make a motion to remand this project back to the Planning Commission. I'm doing this on the basis first of all that we have new information from the Applicant, and I'm going to remand with specific direction that the Planning Commission, with hopefully the assistance of Staff, will look at the Architecture and Site Ordinance, the CUP Ordinance, and the Subdivision Map Act to determine for themselves what they feel is appropriate on this site. MAYOR LEONARDIS: We have a motion. Do we have a second? Council Member McNutt, I looked your way first. COUNCIL MEMBER McNUTT: Thank you. Yes, Mayor, I'll second the motion. My comments are that this is a difficult application; it's a difficult piece of land. I do think LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 49 it's appropriate for residential, and I think we're headed on the right track, but I don't think we're there yet. I wish that the Planning Commission had sent the Applicant back to work with Staff to come up with another iteration that addressed some of their concerns and just work it through. With all the comments that Council Member Spector said, I also want to emphasize that for me this should not be an assumption that I agree with the number of units or with the layout on this site, and I would not want to see us lose the BMP unit under any circumstance, because it's important to us to keep adding affordable housing throughout the community. I'm very concerned about the open space, a common space, and making sure that however that is defined, whether it's the traditional intuitive definition of common space or it's exclusive use, that all of the homes in the development, however many that may be, has some kind of equal standing on that and not a two tiered approach. MAYOR LEONARDIS: Vice Mayor is next. VICE MAYOR JENSEN: I'd like to echo what Council Member Spector said regarding the Planning Commission and the condo. In my reading of the Planning Commission, it's LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 certainly not that the Commission didn't understand, that it was confused by condo ownership. What the problem is is that a legal construct that allows for what appears to be an individual unit with an individual yard, which ends up being your own house —but unless I went and knocked on your door and figured out what your contract was, I wouldn't know it was condo —ends up being a creature that we unfortunately haven't addressed in our various codes and land use policies. So we are struggling as the Planning Commission is struggling, and Councilwoman Spector, thank you, gave the Commission lots of different ways to look at it. But our difficulty is that creative and smart developers have determined that the detached condominium on a less than 40,000 square foot lot is the way to get a Planned Development, and I would say that our Planned Development Ad Hoc Committee needs to look at that gap, because as Ms. Avila said, we don't have any rules on that. So the protests we hear are, "You're building eight houses where you can't build eight houses," and this is also a commercial zone, so if it had been residential, we could only build three. You can't put a Planned Development, LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 51 because the lot is too small, so it's ah-ha, I'll build detached condominiums. That doesn't mean it's not allowed, that doesn't mean it's illegal, that doesn't mean somebody is confused about how condos work. What it means is that that construct ends up undermining lots of policies that the Town has in place for how single units are developed, and so it's the Town's obligation to make sure that the Staff knows through our advised policy changes and codes, whatever it may be, that that's something that is (inaudible) the Planning Commission and the Town Council is not comfortable with. We had another development like this that we turned down. So while we struggle with those policies, I would hope that the Staff conveys to applicants that it is an open issue, and while legal, it may not be advisable. So I'll support the motion. MAYOR LEONARDIS: Council Member Spector. COUNCIL MEMBER SPECTOR: Thank you, Mr. Mayor. I want to follow up with what Council Member McNutt said. By making this motion and sending it back to the Planning Commission, I'm definitely not saying I'm sending it back for this number of units. That is an issue for the Planning LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 52 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Commission to determine under the existing ordinance, Architecture and Site, CUP, Subdivision, and General Plan. I agree that it's going to take more work on the Planning Commission's part, and hopefully with Staff's assistance, to make this an appropriate development, because you're not going to be able to say well it has to be 25' back from the side yard and 15' back from the front yard, whatever, you're not going to have those mechanics. You're going to have to go to the wording of our applicable ordinances and General Plan and you're going to have to get your legal construct from that. It's unfortunate that it has to be done that way, but we have a Planning Commission that can do it, and we have a Staff that should be able to help them. MAYOR LEONARDIS: Council Member Pirzynski. COUNCIL MEMBER PIRZYNSKI: I too am going to support the motion. I think it's appropriate to send it back, because there is new information and it seems to me pretty clearly the information demonstrates that there has been movement and an attempt to somehow buffer this project from the neighborhood on the east side of the project. I want us to make sure we know what we're doing here. I mean the fact is that we want to protect the LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 53 neighbors as much as we possibly can, but we also want to create a project that is appropriate and beneficial to the Town. As we look at all of these issues with this particular type of development that we have not specified for in our own language, we have to accept the fact that we are attempting to achieve something of benefit, and therefore to take a look at the distances between the rear elevation and the residences on the east side is important, more from the point of view of what do these distances achieve, and actually do they achieve more of a buffer from the neighborhood because of the distances that you've already outlined, given the way you've situated those homes on this property? I think also we need to consider the fact that Architecture and Site is going to be analyzed, and that's our opportunity to make sure that this is a very good project. I think it's important that we're all learning and that this detached condominium is something that's been around for quite a while, and it is law, and it is a design type that is being used and may be very popular. I don't think it's necessarily an attempt to create a Planned Development on a smaller space than we can. I think it may be an evolution of residential type that is relatively new LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to our community, but it is a reality that there are different types of residential properties that are being developed at this time. I hope that you can spend more time with the neighbors talking about the real impacts. And I want to hear everybody talking. I don't want to hear anybody say well I couldn't talk to him, or I won't talk to him. I want to make sure that when you come back to the Planning Commission you've had good dialogue with the neighbors. That means everybody cooperates, as far as I'm concerned. I think that's really important, because we want to be good neighbors, and that's part of our intention as the Council is to make sure that we protect our neighborhoods and we protect the living environments of our neighbors. At the same time I think we have to be very honest about our description of the impacts. Reality must be the rule. It's not appropriate to use hyperbole or to indicate greater impacts than perhaps are going to really exist, but that means that the developer and the neighbors have to sit down and talk to make sure they know what part of the reality is out there. As far as my interest in the Planning Commission, I think it's a really good thing that you're going back to LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 55 the Planning Commission. I think there has been some evolution of the project, and the evolution of the project means that you can make your case. But you have to make your case. We take development very seriously around here. We take residential development very seriously, and because of that it behooves the Appellant in this case to drill down on what the issues were that the Planning Commission indicated they had interest in. I think Councilwoman Spector's comments were right on when it came to delineating all those things the Planning Commission wants to do, and so I hope that that will be taken very seriously and that there will be progression that occurs as you go back to the Planning Commission. MAYOR LEONARDIS: Mr. Manager. GREG LARSON: I wanted to reflect back to the maker of the motion to make sure we're capturing it correctly. It's Attachment 10, A Resolution of the Town Council granting the appeal and remanding back to the Planning Commission. On Attachment 10 striking the whereas regarding new information, and that clarification has been provided on condominium form or ownership, but leaving the whereas that says, "Council has determined that there is new information that the Planning Commission did not have LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 benefit of reviewing when considering the applications and that the Applicant is prepared to make plan changes to address neighbors' concerns," and then changing the therefore be it resolved to provide the direction Staff believed was included in the motion. The applications are remanded to the Planning Commission for further consideration of the proposed project in terms of number of units, size and location pursuant to the General Plan, Conditional Use Permit, Subdivision Map Act, and Architecture and Site. COUNCIL MEMBER SPECTOR: Generally it sounds fine. I'm not prepared to sit here and reconstruct my motion and see if it fits into the proposed resolution. I tried to make my motion as specific as possible, and I will just defer and look to the Staff to listen to the motion on streaming video and do as good a job as you can. Thanks. GREG LARSON: We will. MAYOR LEONARDIS: Thank you. Is there any further discussion on this topic? Seeing none, I'm going to go ahead and call the question. All those in favor? Opposed? None. It passes unanimously. LOS GATOS TOWN COUNCIL 3/17/2014 Item #7, 258 Union Avenue 57 This Page Intentionally Left Blank