Attachment 16ƚƚĂĐŚŵĞŶƚϭϲ
ANDREW L. FABER
RALPH J. SWANSON
PEGGY l. SPRINGGAY
JOSEPH E. DWORAK
SA M UEL L. FARB
JAMES P. CASHMAN
SIEVEN J. CASAD
NANCY J. JOHNSON
JEROLD A. REITON
JONATHAN D. W OLF
KATHLEEN K. SIPLE
KE VIN F. KELLEY
MARK MAKIEWICZ
JOLIE HOUSTON
RETIRED
SANFORD A. BERLINER
SAMUEL J. COHEN
HUGH l. ISOLA
BRIAN L. SHEILER
JOHN F. DOM INGUE
HARRY A. LOPEZ
CHARLES W. VOLPE
MICHAEL VI OL ANTI
CHRISTINE H. LO'<G
AARON M. VALENTI
CHRISTIAN E. PICONE
SUSAN E. BISHOP
SANDRA G . SEPULVEDA
M ICHAEL B. IJAMS
KIMBERLY G. FLORES
DAWNC.SWEAI
TYLER A. SHEWEY
ROBER! W. HUMPHREYS
ROBER! l. CHORTEK
BERLINER
COHEN LL P
TEN ALMADEN BO ULEVARD
ELEVENTH FLOOR
SAN JOSE. CALIFOR N IA 95113-2233
TELEPHONE: ( 4081 286-5800
FACSIMILE : [4081998-5388
www .berliner.com
Branch O lhces
Merced. CA • Mode<lo. CA
IHOMAS P. M URPHY
EILEEN P. KENI IE DY
MICHAEL J. C HENG
GllAZ,\LEll MODARRESI
BEAU C. CORREIA
TIMOIHY l-. BOONE
JOHN WHIS MAN JR.
ANGElA HOFF MAN '
DAVID A. BELlU M ORI
ISABELLA l . SHIN
' (Admitted m New Yor k only)
OF COUNS EL
SI EVEN L. HALLGRIMSON
FRANK R. UBHAUS
ERIC WONG
Apr il 27 . 20 18 (Re v ised Apri l 30. 20 18)
VIA U.S . MAIL AND EMA IL
Mayo r Re nn ie and Members of the To wn Co un c il
Town of Los Gatos
1 10 E. Main Street
Lo s Gatos, CA
Re: Response to th e Mooney Co mment Leifer dated Febrnary 28. 2 01 8
Dear Mayor Renni e and Members of th e To wn Co unci l:
SIEPHEN C. SCORDELIS
HARRY B. Gill
JUSl lN D. PRUEln
NHHONY DeJAGER
ELLEN M. I AYLOR
CYNIHIA M. CHU
BRANDON L. REBBOAH
LINDSAY I. HOVER
EMILY !EWES
JEFFREYS. KAUFMAN
NANCY L. BRANDI
LESLIE KALI M MCHUGH
We repre se nt the prop erty owners of th e 17 .5 acres of land kn own as ··S urrey Farm Es tates"
located at 170 T win Oaks Dro ve . Lo s Ga to s. Ca lifornia (""Propert/"). T he Property owners
(App licant s .. ) are requ estin g a Gen e ra l Pl an Ame ndm ent fr o m Agr ic ulture to Hill s ide Res ide ntia l
(0-1 du/ac). and a Planned De ve lo pm e nt (""PD "") to Rezo ne th e pro pe rt y fr o m ··R C'" (Re source
Conse rva tion ) to ··HR: I :PD .. (Hill s id e Re sid ent ia l. I du /ac . with Planned Deve lop ment Over lay) to
a ll ow th e subdi v is ion of o ne lot into I 0 s ing le-famil y res ide nti a l lots , 1 th e in sta ll ation o f a new
pri va te road and th e ca nce ll ation of th e ex ist ing Willi amson Act Co ntract ('"P roject"').2
Moo ney Co m ments
The purpo se of th is letter is to ad dress th e le tt er rece ive d from th e Law of Office o r
Don a ld B. Moo ne y dat ed Fe br ua ry 19 , 2018 . rega rdin g Co mme nts on th e Em 1iron111 ental Impact
Report Surrey Fa rm Estates ("·Letter'").
1 Th e Proj ec t has been red uced to 9 lots .
2 The Proj ec t al so include s a ded ica ted tri a l and o pen s pace (ori g in a ll y 3.6 ac res -now over 5 ac res). In add ition. a
new s ite for the SJW C Pump S ite .
Mayor Rennie and Members of the Town Council
April 27, 2018 (Revised April 30, 2018)
The Letter was submitted over 2 years after Draft Environmental Impact Report ("DEIR")
was circulated for comments, and 8 months after the circulation period concluded for the Partial
Recirculation of the DEIR; therefore, the Town of Los Gatos ("Town") is not required to respond to
these comments in accordance with California Environmental Quality Act ("CEQA") Guidelines
Section 15088.3 As stated in CEQA Guidelines Section 15088:
The lead agency shall evaluate comments on environmental issues
received.from persons who reviewed the Draft EIR and shall
prepare a written re5ponse. The lead agency shall respond lo
comments received during the noticed comment period and any
extension, and may respond to late comments.
However, in the interest of clarification, we would like to provide a summary response4 to the
Letter regarding the alleged inadequacies of the Environmental Impact Report ("EIR")5 for the
Project:
The California Environmental Quality Act. (Page 1 -4)
The Letter concludes that the EIR fails to satisfy CEQA' s legal requirements, fails as an
informational document, and thus is legally deficient. This assertion is not substantiated by the
Letter or by any substantial evidence. When the Town, as the lead agency, prepares an EIR, the
issue is whether substantial evidence supports the agency's conclusions, not whether others may
disagree with those conclusions. North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of
Directors (2013) 216 Cal.App.4th 614, 624. The Letter is just that, a disagreement with the EIR 's
conclusions.
As stated in the Summary of Environmental Impacts and Mitigations (Chapter 2 Summary -
2.2), assuming the Applicant voluntarily implemented all mitigation measures recommended in the
EIR and complied with conditions of Project approval and Town Code requirements, an Initial
Study/Mitigated Negative Declaration would have been legally adequate for this Project. However,
the Applicant went beyond what was required by law and chose to have an EIR prepared for the
3 The Project DEIR was first circulated for public review from August 26, 2015 to October 9, 2015. In June 2016,
The United States Anny Corp of Engineers personnel conducted a site visit and forwarded a letter to the Town
stating that the extent of jurisdictional Waters of the U.S. consisted of a 342 square foot area (0.008-acre) in the
northwestern comer of the Property. In addition, an ephemeral swale identified on-site was detennined not to be
within Jurisdictional Waters of U.S. As a result, the DEIR Biological Resources Section 4.3 was revised to reflect
the updated infonnation. In addition, the Applicant revised the site plan with a Two-Access Alternative to avoid
impacts to wetlands as identified in the DEIR. A Partial Draft EIR was then recirculated in accordance with Section
15088.5 of CEQA, from May 5, 2017 through June 19, 2017.
4 All letters of comments received during both circulation periods and applicable responses to those comments are
included in the document entitled Surrey Farm Estates (170 Twin Oaks Drive) Final EIR State Clearinghouse
Number: 20120720 I 7, dated August 20 I 7. The FEIR also includes the DEIR text and the technical appendices to the
DEi R dated August 2015, and the Partial Recirculated DEi R dated May 2017.
5 For purposes of this response, EIR will be used, which includes the DEIR, Partial Recirculation of the DEIR and
the FEIR.
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Mayor Rennie and Members of the Town Council
April 27, 2018 (Revised April 30, 2018)
Project to ensure that all potential environmental impacts were thoroughly addressed, and that the
Project was evaluated for consistency with goals and policies of the Town's General Plan, the Los
Gatos Sustainability Plan, Hillside Specific Plan and Hillside Development Standards and
Guidelines ("HDSG"). Accordingly, The Town prepared a comprehensive informational document
in conformance with CEQA for the preparation of an EIR.
Pursuant to CEQA, the EIR included a description of the existing setting, a full description of
the Project, an analysis of environmental impacts resulting from the development of the Project, an
analysis of alternatives, and analysis of cumulative impacts, and mitigation measures necessary to
reduce potentially significant impacts to a less-than-significant level.
The Project Lacks Critical Information. (Page 4)
The Letter is incorrect in stating that the EIR fails to provide a legally adequate Project
Description. The Project Description Section of the EIR (Chapter 3) includes all information
required to inform the Lead Agency and as needed for evaluation and review of environmental
impact, as required by CEQA Section 15124:
"The description of a project shall contain the following
information but should not supply extensive detail beyond that
needed for evaluation and review of the environmental impact."
Accordingly, Chapter 3 includes the information required under 15124 (a) through (d):
• A comprehensive description of Project features including a Proposed Site Plan with
an outline of potential future house pads and driveways, Proposed Cross Sections
with information regarding location of house pads and height information, a
Preliminary Grading and Drainage Plan, a Utility Plan, a Storm Water Control Plan,
and a Proposed Overall Landscape Plan.
• A statement of objectives for the Project and detailed written description of each
aspect of the Project.
• A description of the intended use of the EIR, which is to evaluate the impacts of the
Project as required to process a General Plan Amendment from Agriculture to
Hillside Residential Development (0-1 du/ac ), Rezoning of the Property from "RC:
(Resource Conservation) to ''HR: 1 :PD" (Hillside Residential, l/unit/acre, with
Planned Development Overlay), approval of a Tentative Map for a 10 single-family
residential lots plus two common lots, and Cancellation of a Williamson Act Contract
on the Property.
The Project Description Contains Overly Narrow Project Objectives. (Page 4 -5)
The Letter is incorrect in stating that the Project Description contains overly narrow Project
objectives.
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Mayor Rennie and Members of the Town Council
April 27, 2018 (Revised April 30, 2018)
CEQA Guidelines Section l 5 l 24(b) states:
"A statement of o~jectives sought by the proposed project. A
clearly wrillen statement of objectives will help the Lead Agency
develop a reasonable range of alternatives to evaluate in the EIR
and will aid the decision makers in preparing findings or a
statement of overriding considerations, !f necessary. The statement
of overriding considerations should include the underlying
purpose of the project."
There is no specific CEQA requirement regarding what comprises a detailed statement of
objectives other than it should include the underlying purpose of the Project.
In addition, the Town has broad discretion to formulate project objectives. Cal{fornia Oak
Found v. Regents o.fUniv. o.fCal. (2010) 188 Cal.App.4th 326, 347. Here, the Applicant's objective
is the subdivision of the site for sale of lots to individual owners to develop custom homes and to
provide adequate access and open space for the Project.
As stated in Section 3.3 of the EIR, in creating Project Objectives, staff prepared a list of
Town objectives that identify what it regards as key relevant policies taken directly from the General
Plan. Further, due to the Property's location in an area that is subject to the Hillside specific Plan
and HDSG, which include a list of comprehensive Town objectives that will guide the design of
development in the hillside areas. These documents provide clear Town objectives regarding the
residential development oflands in the hillsides and the EIR includes them to ensure that the Project
meets these objectives.
The Project Description Inappropriately Includes Incorporating Mitigation Measures. (Page
fil
The Letter incorrectly states that the Project, through incorporation of Project drainage
features (mitigation measures) to treat drainage from new development, is avoiding or minimizing
the impacts to flood risk and water quality and disregards the requirements of CEQA. The design
and treatment of drainage from new development is a requirement of all development applications
and subdivisions in the Town. Accordingly, the Project plans include a Preliminary Stormwater
Control and Hydro modification Management Plan (Sheet C6 of Project plans), which includes two
retention basins. To meet the Town's requirements, these basins have been incorporated into the
Project design of the subdivision.
Under Chapter 4, the EIR contains a full analysis of potential impacts related to potential
flood risk and water quality, the regulatory framework which regulates the design of the subdivision,
and mitigation measures which would result in less than significant impacts that would be reduced
with implementation of the Town-required mitigation measures.
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Mayor Rennie and Members of the Town Council
April 27, 2018 (Revised April 30, 2018)
Cancellation of Williamson Act Contract. (Page 5-6, Page 14)
The Applicant submitted a request for non-renewal of the Williamson Act Contract on the
Property, and the Town forwarded the required documentation to the Department of Conservation, in
accordance with Government Code Section 51284.1. In order to find that the cancellation is
consistent with the purposes of the Williamson Act for non-renewal of contracts, the Town Council
must find:
1. That the cancellation is for land on which a notice of nonrenewal has been served.
2. That cancellation is not likely to result in the removal of adjacent lands from
agricultural use.
3. That cancellation is for an alternative use which is consistent with the applicable
provisions of the city or county general plan.
4. That cancellation will not result in discontinuous patterns of urban development.
5. That there is no proximate, noncontracted land which is both available and suitable
for the proposed use or that development of the contracted land would provide more contiguous
patterns of urban development. Govt. Code § 5 l 282(b ).
On January 11, 2018, the Town of Los Gatos received a letter from the Department of
Conservation stating that, based on the information submitted, the Town is able to make the required
findings as stated in the Town's Staff Evaluation included in the Petition. The Department
Conservation letter recommended that the Rezoning and General Plan Amendment changes occur
prior to, or at the same time as approval of the Tentative Cancellation. Accordingly, the Applicant's
submittal of a General Plan Amendment and Rezoning satisfies the Department of Conservation's
comments to the Petition.
Alternatives -CEQA Reguires an EIR to Consider a Reasonable Range of Feasible
Alternatives. (Page 6 -8)
The Letter is incorrect in stating that the EIR fails to consider a reasonable range of feasible
alternatives.
CEQA requires that an EIR examine a range or alternatives that are potentially feasible to a
proposed project. Pub. Res. Code§§ 21000 et seq; CEQA Guidelines Section 15126.6(a); City of
Long Bach v. Los Angeles Un{fied Sch. Dist. (2009) 176 Cal.App.4th 889, 920. An EIR is not
required to evaluate infeasible alternatives pursuant to CEQA Guidelines Section l 5 l 26.6(a). An
EIR is also not required to consider alternatives that do not result in significant environmental
advantages in comparison with the proposed Project. No set number of alternatives is necessary to
constitute a legally adequate range of alternatives. The scope of alternatives comprising a reasonable
range of alternatives will vary from case to case depending on the nature of the project. Further, the
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Mayor Rennie and Members of the Town Council
April 27, 2018 (Revised April 30, 2018)
Town, as lead agency, has the discretion to determine how many alternatives will constitute a
reasonable range. Citizens of Goleta Valley v. Board ofSupervisors (1990) 52 Cal.3d 553, 566.
CEQA Guidelines Section l 5 l 26.6(a) addresses the consideration and discussion of Project
Alternatives.
"An EIR shall describe range of reasonable alternatives lo the
project, or to the location.for the project, which would feasibly
attain most of the basic objects of the project buy would avoid or
substantially lessen any of the significant effects of the project, and
evaluate the comparative merits of the alternatives. An EIR need
not consider every conceivable alternative to a project. Rather it
must consider a reasonable range of potentiallyfeasible
alternatives that will.foster informed decision-making and public
participation. An EIR is not required to consider alternatives
which are iJ?feasible. The Lead Agency is responsible.for selecting
a range of project alternatives for examinations and must publicly
disclose the reasoning/or selecting those alternatives. There is no
ironclad rule governing the nature or scope of the alternatives
discussed other than the rule o,f reason. Citizens of Goleta Valley v
Board of Supervisors (1990) 52 Cal.3d 553 and Laurel Heights
Improvement Association v. Regents o,f University o,f Cal{fornia
(1988) 47 Cal.3d 376). .,
The EIR considered a range ofreasonable alternatives including the No-Project Alternative,
the Two Access Alternative and Two Access Plus Two Emergency Vehicle Access Alternative. As
stated above, the EIR describes and evaluates a reasonable range of alternatives to the Project that
would feasibly attain most of the Project's basic objectives and avoid or substantially lessen any
significant adverse environmental effects of the Project.
The EIR's Rejection of the Reduced Density Alternative is not Supported by the CEOA
Guidelines. (Page 8 -9).
states:
The Letter confuses mitigation measures and project alternatives. CEQA Guidelines 15092( c)
With respect to a project which includes housing development, the
public agency shall not reduce the proposed number of housing
units as a mitigation measure if it is determined that there is
another feasible !lpecffic mitigation measure available that will
provide a comparable level of mitigation.
It is clear that the Town cannot reduce the number of housing units as a mitigation measure.
However, that does not render the Project Alternative section of the EIR incomplete. The EIR stated
that it rejected a reduced density alternative because CEQA Guidelines 15092( c) does not allow a
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Mayor Rennie and Members of the Town Council
April 27, 2018 (Revised April 30, 2018)
reduction in the number of housing units as mitigation if it dertermises that there is another feasible
specific mitigation available that will provides a comparable level of mitigation. The EIR found that
the Reduced Density Alternaive was legally infeasible since there were adequate mitigations
measure available. As discussed previously, an EIR is not required to evaluate infeasible
alternatives. CEQA Guidelines § 15126.6( a).
The EIR Failed to Include a Reasonable Range of Alternatives. (Page 9 -10)
The EIR includes a range ofreasonable alternatives, an evaluation of the comparative merits
of the three alternatives included sufficient information about each alternative to allow meaningful
evaluation, analysis, and comparison with the Project, and the manner in which meets the CEQA
requirements. Accordingly, it provides the Town Council and the public with information about the
alternatives to make an informed decision.
As a result of analysis of alternatives, and comments received during the Planning
Commission hearing, the Applicant has chosen to eliminate one lot to further avoid impacts to
wildlife habitat as identified in the DEIR. Thus, the Project has been revised to incorporate the Two-
Access Alternative, and has eliminated one lot (former Lot 9) to eliminate any impacts to the wildlife
habitat area. This has also increased the amount of Open Space for the Project to over 5 acres. The
Town Council, as decision-makers for purposes ofCEQA, can approve an alternative to the Project
as proposed because they have the flexibility to implement that portion of a project that satisfies their
environmental concerns. Sierra Club v. City o.f Orange (1985) 173 Cal.3d 523, 533.
The EIR Fails to Adeguately Address Impacts and Lacks Adeguate Mitigation Measures.
(Page 10)
Land Use and Planning (Page 10)
The Project's Inconsistency with Zoning (Page 10-11)
The Project is Inconsistent with the General Plan's Goals and Policies Governing Open
Space (Page 11 -12)
The EIR's Impact Analysis regarding Land Use is legally Indeguate (Page 12-13)
Regarding the evaluation of environmental impacts in Land Use and Planning, the Initial
Study checklist (Appendix G) requires that the Project be evaluated to determine if the it will:
a) Physically divide an established community?
b) Conflict with any applicable land use plan, policy or regulation of
an agency withjurisdiction over the project (including but not
limited to the general plan, specffic plan, local coastal program, or
zoning ordinance) adopted.for the purpose o.f avoiding or
mitigating an environmental effect?
c) Conflict with any applicable habitat conservation plan or natural
community conservation plan?
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Mayor Rennie and Members of the Town Council
April 27, 2018 (Revised April 30, 2018)
The Project site is considered to be infill development, and development as proposed would
not serve to divide an established community. The proposed General Plan, Zoning and density will
be consistent with the surrounding development. The Project has been designed in conformance with
the Hillside Specific Plan and HSDG. Further, EIR Chapter 4 includes a comprehensive Project
Consistency Analysis regarding the General Plan, Hillside Specific Plan and HDSG policies. It is
within the Town Council's discretion to determine that whether a project meets the General Plan and
its implementing policies and guidelines.
The Letter alleges the Project's inconsistencies with the Town Zoning and General Plan
Goals and Policies Governing Open Space, and incorrectly assumes that the reason for the Resource
Conservation (RC) designation on the Property is to protect open space, special land forms, scenic
areas, watershed, wildlife and vegetation.
While such is the intent of the RC zone; it is not why the Property was Rezoned RC. As
described in EIR Chapter 4, page 4.1.3, in 1988, the Town Council adopted Resolution No. 1988-
230 which required that all properties that were under a Williamson Act contract should be
designated Agriculture in the General Plan and be zoned RC. Prior to that, the Property was
designated Residential (0-2 du/ac) in the General Plan. Currently, the Property is surrounded by
properties that are designated with a residential land use designation (not Agriculture). To the north,
east and south east of the Property, the General Plan land use designation is Hillside Residential (0-1
du/acre), and to the west and south west, the designation is Low Density Residential (0-5 du/ac ).
Thus, the re-designation of the Property to Hillside Residential (0-1 du/ac) would make the land use
designation of the Property consistent with the existing surrounding properties. Similarly, Rezoning
the Property from RC to HR: 1 :PD would make it consistent with the existing zoning (non-RC
Zoning) of the surrounding properties (i.e. HR-1, R-10 and R-12).
Further, properties that are intended for open space uses are designated Open Space in the
Town's General Plan, and this is not one of them.
Hydrology and Water Quality (Page 13)
See discussion above under "Project Description inappropriately includes Incorporating
Mitigation Measures."
Aesthetics (Page 13-14)
The Letter alleges that the EIR analysis regarding aesthetics (scenic views) is not supported
by substantial evidence. The EIR includes an analysis of the potential impacts to aesthetics, as
provided for in Appendix G of the CEQA Guidelines and in conformance with the Town's HDSG.
The CEQA impact analysis is based on the review of potential visual changes from public viewing
areas from the Project, and a comparison of these changes to the level of significance criteria
regarding scenic vistas, scenic resources, visual character and it surroundings, and light and glare.
The Town's HDSG requires a view analysis for each development project located within the hillside
area with potential of being visible from any established viewing platform and specifies locations to
be uses for visual or aesthetics analysis of hillside development.
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Mayor Rennie a nd Members of th e Town Co uncil
Apri l 27, 20 18 (Rev ise d April 30, 20 18)
Becau se the propo sed subdi v is ion is for lots to be so ld as c us to m Jots , spec ific hou se
e leva tion s are not avai lable at thi s tim e. Therefo re, fo r purposes of ana lyzi ng th e potential vis ual
imp act of the Project , the propo se d buildin g pad locations were shown on th e prop osed site plan , a nd
2 0 ft. story pol es we re e rec ted o n th e uphill (hi ghest) side of the pote nti a l building e nvelope s fo r
propo se d Lo ts 5, 6, 7 and I 0. Thi s re prese nt s the maximum he ig ht of futur e propo se d hom es, ba sed
o n a max imum 25 ft. height limit above grade and assu ming a fi ve -foot cut s lop e to accom mod a te
th e structure . Before con stru ction of a ny home can occur, the y w ill be s ubject to a ll Town
d eve lop me nt requirem e nt s, s uch as A rchit ec tural and Site rev iew to ensur e th at a ll requirement s of
th e Hill s ide Specific P lan and HD SG a re me t.
Based o n thi s a nal ysis, th e El R concludes that th e Project wo uld res ult in less than significant
impac ts to sce nic reso urces. in th e visua l c harac te r of th e site a nd it s surroundin gs a nd re lated to
li ght a nd g lar e . Recog ni z in g that a ny de te rmin ation re gardin g sig nifi ca nce o f impac ts related to
aes th e tic s is subj ec ti ve; th e lead agency (Town Co un ci l) w ill ha ve th e final determ in ation on th e
Proj ec t 's co nsistenc y w ith th e Hill s ide Spec ifi c Plan and HDSG. Ho weve r, fo r purpo ses of CE QA
rev iew, th e E IR ha s pro v id ed d oc um entati o n and ana lys is to meet the s tand ard leve l ofreview as
lega ll y required.
Conclusion (Page 14)
The Letter's co nclu s io n th a t th e co mm e nt s submitted supp ort th e a ll ega tion that the EIR fa il s
to mee t CEQA 's re quire me nt s is not s upported by a ny s ub stanti a l ev id e nce in th e record or th e ElR.
As s upported by our s umm a ry of re spon ses pro v id ed here in and th e co mprehe ns ive bod y of
inform ati on a nd anal ys is co nt a in ed in th e EIR. thi s Proj ect fu ll y co mpli es w ith CEQA. Accord in gly ,
we res pec tfull y requ est th at th e To w n Co un c il ce1tify th e EIR a nd approve th e Genera l Pl a n
Amendm ent , Rezoning a nd Wi lli am so n Ac t Ca nce ll at io n for th e Proj ect.
cc : Laurel Pre ve tti , Tow n Mana ge r
Rob Sc hult z, Town Attorn ey
Very trul y yo ur s,
JOLI E HO USTON
E-Ma il : joli e .h ouston@ berlin er.co m
Joe l Pa ul so n, Co mmunity De ve lopment Direc to r
Jennifer Arne r, Plann e r
Surrey Farm Estate s
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