Attachment 13To: Town Council, Meeting of 3/7/2017
Re : 15680 Gum Tree Lane, S-16-044
From: Dave Weissman
I believe there are at least 7 reasons to grant my appeal and deny this application . These
reasons include new information and failure to follow Town codes, combined with errors,
incompleteness and inadequacies in the required documents and analysis .
#1 . Approved maximum permitted height of the house violates the HDS&G. I
respectfully believe that staff and the PC were wrong and that the height of this house is
restricted by the Hillside Development Standards and Guidelines (HDS&G) to 18 feet, regardless
of its visibility. Here is my reasoning. The HDS&G define (page 71) a ridgeline as "A line
connecting the highest points along a ridge and separating drainage basins or small-scale
drainage systems from one another." The HDS&G desire (page 12) to protect "significant
ridgelines" and specifically designates (page 15) "The ridge between Blossom Hill Road and
Shannon Road" (which includes the site of this application) as a "significant ridgeline." But even
more importantly, the 1990 Blossom Hill Open Space Study (BHOSS) designates the exact
proposed location of this house as both a "high visibility ridge" (on the High Visibility Slopes and
Ridges foldout between pages 11 and 12) and as a "critical ridgeline" (on the Corridor Overlays
foldout between pages 15 and 16)1
. This is why the building pad, in the architect's own words,
"provides incredible views of the Santa Clara Valley as well as the Shannon corridor."
The HDS&G continue (page 15): "If a building cannot be sited below a significant
ridgeline because the area away from it is not the LRDA [as in this application] or is otherwise
not suitable for development, the following shall apply: a. The building shall not exceed 18 feet
in height." Note that there is no mention of whether or not the proposed house is visible or not.
The HDS&G clearly require that a proposed house on a significant ridgeline, which this is, shall
not exceed 18' in height. Additionally, without an adequate visibility analysis, as discussed in #2
below, it is unclear if the 25% visibility threshold is exceeded or not, especially with reference to
the Shannon corridor and the valley floor when standing near Netflix. Limiting the height to 18
feet is consistent with a balanced approach between respecting property rights and meeting
HDS&G (page 9} objective #4-"Maintain the natural appearance of the hillsides from all
vantage points" (my emphasis) and objective #5 -"Protect ridgelines from development."
Elsewhere (page 36), the HDS&G are also very clear and consistent: "Ridgeline and
visible homes shall not extend more than 18' above the existing grade." Thus, if either criterion
1 1 maintain that the terminology of the BHOSS of a "critical ridgeline" is even more urgent than
the broader designation of a "significant ridgeline" in the HDS&G.
ATTACHMENT 1 3
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is satisfied -that is, if a proposed house is on a ridgeline or the house is visible, the height limit
is 18 feet. If both conditions were concurrently required by the HDS&G to limit the height to
18', then appropriate wording would be "visible ridgeline homes" or "ridgeline homes that are
visible," but that is not the case .
Much of the above is new information not considered by the PC on 1/11/2017.
#2. Visibility analysis methodology is inadequate and incomplete. At the PC meeting of
1/11/2017, the applicant/architect discussed how they only went to HDS&G Viewing Platform
#1 near the corner of Blossom Hill Road and Los Gatos Blvd, and found less than 10% visibility.
Thi s analysis is incomplete because they should have gone elsewhere in Los Gatos, such as the
Netflix area and the Shannon corridor, as provided for by Viewing Platform option #5. Again, it
is the applicant who has discussed how the site " ... provides incredible views of the Santa Clara
Valley as well as the Shannon corridor." Then these views need to be analyzed . But you can 't
have it both ways -homes with "incredible views" will also be incredibly visible, since light does
travel in both directions.
The visibility analysis is also inadequate not just because the applicant didn't address
alternative viewing platforms, but because the applicant didn't follow the current dictates of
the HDS&G (page 13) to consider those trees that would be " ... removed, significantly pruned, or
impacted by construction." The Consulting Arborist's report of 7 /21/2016 (which was not
included in the PC's packet and which supersedes the included packet report dated 7 /5/2016),
lists 12 trees that may be negatively impacted by the proposed project, plus an unknown
number of trees that are proposed for removal (see discussion under #7 below). The HDS&G
(page 54, D. 3.) require that if "a tree may not survive construction, information on the visual
impact of the removal...shall (my emphasis) be submitted with plans."
Additionally, those trees in "poor" or "poor/fair" condition were not excluded from
screening consideration even though such exclusion was the consensus from both the PC and
TC during extensive discussions in 2015 and 2016. At least 4 PC members, at the 1/11/2017
meeting, expressed concern with the continued lack of visibility methodology guidelines for
hill side A&S applications. While the se prior TC and PC discussions still haven't been codified,
staff should have required them to be considered. Otherwise, every time a hillside A&S comes
before the PC, these same tree-condition issues could form the ba sis of an appeal. That would
be unfair to all involved.
#3. Submitted landscaping plan violates the HDS&G. At the PC meeting of 1/11/2017,
the applicant proudly referred to their comprehensive, proposed land sc aping plan. Desp ite the
local land sc ape architect, David Fox , being involved with this project since 2006, the submitted
plan i s not compliant with the HDS&G. Specifically, page 51 of the HDS&G , item #3, says that "In
landscaped areas [i.e. Zone 1 within 30 feet (HDS&G , page 26) of the house ], the majority of the
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planting shall (my emphasis) be native plant species indigenous to the immediate area . Large
areas of formal landscaping are prohibited." The standards continue with item #7 : "Plant
species located further than 30 feet from the primary residence shall [my emphasis] be
indigenous and appropriate for the immediate natural habitat (see Appendix A)." Yet Landscape
Plan Sheet L3.0 and Planting Species Legend Sheet L3.1 demonstrate a near complete disregard
for those HDS&G standards. While Mr. Fox proposes to plant some 641 plants (of 28 species) on
the whole project, only 4 species are native and li sted in Appendix A. For the "'191 plants
located greater than 30 feet from the house, where 100% are supposed to be from Appendix A,
only 29 total plants ("'15%) are listed in Appendi x A. In fact, the most common proposed shrub
farther than 30 feet from the house, is coyote brush (Baccharis pulularis ), with 92 plants ("'48%
of total). This plant species , while native to our hillsides, is both very flammable and highly
invasive, two qualities that excluded it from being listed in Appendix A. Those qualities also
resulted in the Highlands of Los Gatos consultant, Wild land Resource Management, forbidding
its planting in the Wild land Fire Protection Plan that they prepared , in 2014, for the adjacent
Highlands project.
Of the approximately 450 plants proposed for planting in Zone 1, where greater than
50% of plantings are required to be from Appendix A, only 49 plants ("'11%) are from Appendix
A. Of the remaining 400 plants in Zone 1, some 31 of them are likewise forbidden from being
planted, because of their flammability, in the Wild land Fire Protection Plan prepared for the
adjacent Highlands of Los Gatos project.
I am surprised that staff did not catch these errors and that Mr. Fox seems unaware of
the requirements contained in the HDS&G, which went into effect in 2004, a full 2 years prior to
his initial involvement. I do know that someone is aware of this 30' Zone 1 demarcation line
because the Preliminary Landscape Plan Sheet L3 .0, on file in CDD, clearly has all plantings
farther than 30 ' from the house highlighted in yellow marker and a line is drawn on that sheet
showing the 30-foot transition line from Zone 1 to Zone 2.
Incidentally, the PC staff report dated 1/5/2017, bottom of page 5, E, states that "Most
of the proposed landscaping is within 30 feet of the proposed residence and can be ornamental
species of the applicant's choice." As I've quoted above from the HDS&G, this statement is
incorrect. At least 50% must be native to the immediate area. And if native trees within 30 feet
of the residence are replaced , Sec . 29.10.0987 requires that they be replaced 100% with native
trees .
#4. Proposed artificial turf violates the HDS&G . Artificial turf totaling 1677 ft2 , most of
it farther than 30 feet from the primary structure, is proposed for the backyard. The HDS&G,
page 51, #4 , state that "Formal gardens and turf area s shall (my emphasis) be limited to
locations immediately adjacent to the house [i.e . Zone 1) such as entry ways or small gardens at
the rear." The HSD&G make no distinction between natural and synthetic turf. In fact, as the
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attached fact sheet from the Santa Clara Valley Water District (SCVWD) describes, artificial turf
is not a drought panacea becau se it is usually not water free and has its own environmental
concerns . Because of the r easons discussed on thei r sheet, artificial turf is not i ncluded in the
SCVWD 's Landscape Rebate Program and it should not be permitted in this application , and the
hillsides, outside of Zone 1. Plus, without a deed restriction, once this house is sold or occupied,
there is nothing to prohibit the new owner from installing natural turf. Prohibiting any turf
farther than 30 feet from the house is good policy for the same reasons that only native plants
can be planted farther than 30 feet from the house -it improves the environmental interface
between the development and the natural habitat. This situation wa s one concern that
prompted Commi ssioner Kane to vote to deny this A&S .
#5 . The "fill restoration" exemption and retaining wall should not be granted . The
applicant is requesting a fill exception to the HDS&G so that he may create an extensive pad to
install a turf area , pool, pool deck, dining patio, separate covered and uncovered verandas,
planter, and for some of the bocce court. And he does all th is while claiming it will help restore
the natu ral slope topography of the site where the driveway is now located . But nowhere in the
present application ·do we see any documentation as to what the former, more "natural"
topography looked like that he seems so interested in restoring . It is easy to see from Sheet 2
that if grading was done in the past for the driveway, it was certainly much less extensive than
the area proposed to be filled. In fact, from Sheet 2, the proposed fill area appears to be some
4-6X larger than the current driveway, whose outline can be seen unde r the stippling. If
allowed , this fill area would be larger than the proposed house and garage area comb ined. Plus,
it is this very fill that will result in the removal of 4 (according to staff report) or 6 (according to
ArchiteC:t) protected trees. Clearly, where those trees are now located, was not part of any past
grading that would have occurred for the driveway because those trees would have been killed .
But the issue, and offered "solution" to the claimed altered topography is both d isi ngenuous
and a total ruse : how nice and convenient not to have to truck off the cut from the cellar and ,
simultaneously, more than double the size of the building pad . It is understandable to want a
bigger backyard . Then make the proposed house smaller and , concurrently, skip the need for a
retaining wall. Plus, the HDS&G , page 45, C. 1. says that "Retaining walls shall (my emphasis)
not be used to create large, flat, yard areas ." This fill and retain ing wall were another reason
given by Commissioner Kane 's for his "no" vote.
#6. The current Consulting Arborist's Tree Report does not conform to the HDS&G and
Tree Protection Ordinance. During the 10+ years this lot has been under consideration for
development, after a lot subdivision in 2007 (M -06 -11), there have been 3 changes in
ownership (in 2008, 2015, and 2016); 3 Consulting Arborist's Repo rts (2006, 2013 , and 2016)
with addendums to both the 2006 and 2016 reports; and 2 different Consulting Arborist . The
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tree situation is further complicated because the second arborist, in 2016, placed new, and
different, tree numbers on the site's protected trees and didn't correlate his new numbers with
Ms. Ellis' prior numbers. Despite this confusing situation , and after much effort, the following
are clear :
1. Between 2006 and 2013, as documented by Ms. Ellis in her 2013 report, 6 protected
trees (Ellis ' trees# 12, 17, 20, 23, 30, and 42) were removed .
2. In 2014, 9 trees (Ellis' trees #16, 18, 22, 27, 28, 29, 40, 41, and 43) were legally
removed under permit T14-110 (Ellis ' trees #8, 15, and 19 were authorized for
removal but remain).
3. Between 2013 and 2016, two additional trees (Ellis' trees #31 and 34) were
removed .
4 . A Public Records Request from 1/18/2017 shows only one tree removal permit (T14 -
110) being issued for this property during that entire 10-year time period .
Thus, before any construction activity has even taken place, 17 protected trees have already
been removed, 8 of them apparently illegally and without permits.
Additionally, as required by the Tree Protection Ordinance (Sec . 29.10.1000 (b)), all trees
should be assigned a retention rating of high/moderate/low in the Tree Report . This has not
been done.
#7. It is totally unclear as to which and how many trees are proposed to be removed.
For instance:
1. The Architect's letter (Exhibit 4) from 6/20/2016 says that no trees are to be
removed .
2. The Architect's schematic (Sheet A-3), with the same date as his letter of 6/20/2016,
and included in Exhibit 11, shows 3 trees (Levison' trees #6, 7, 8) to be removed
(tree #9 is not even shown on the map).
3. The Arborist's report from 7 /5/2016 says that 3 trees (Levison 's trees #9, 10, and 31)
are to be removed.
4. His addendum report of 7 /21/2016 says, on page 7, that only trees #9 and 10 are to
be removed . Significantly, another 12 trees are listed on page 10 as potentially
negatively affected by the project. In case you are not keeping count, that is 14 trees
either removed or affected, out of a total 30 trees his report covers. And adding
these 14 trees to the 17 already removed, both legally and illegally, makes a joke of
the HDS&G that says (page 54) that "Existing trees shall be preserved and
protected ... "
5. The staff report of 1/5/2017 says that 4 trees will be removed but doesn't give any
tree numbers.
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6. The project's Architect, speaking before the PC on 1/11/2017, said that 6 trees {#5-
10} will be removed .
7. And, lastly, the owner, Mr. Massei, told me, on site, on 1/18/2017, that trees #9, 10,
and 31 are to be removed.
Well, they all can't be correct. But why does it matter, you may ask? It matters for the following
reasons:
1 .· Because the Tree Ordinance (Sec . 29 .10.1000 (d)) requires that all trees be tracked
during the A&S process, as to health and integrity. Eight trees have been removed
illegally from this property since 2006. Six tree remova ls were documented by Ms.
Ellis in her 2013 report but no investigative action was apparently taken by staff.
This is despite the Tree Protection Ord i nance (Sec . 29.10.1025 (1)) saying : "Tree
removal in absence of or in anticipation of development. If a violation occurs in the
absence of or prior to proposed development ... a mitigation plan shall provide for the
replacement of each hillside tree that was r emoved illegally with a new tree{s) in the
same location(s) as those illegally removed tree(s)."
2 . The Consulting arborist needs to know which trees are planned to be retained and
which are to be removed so that he/she can make the required recommendations
on how to protect those trees to be retained, as prescribed by the Tree Protection
Ordinance {Sec . 29.10.1000 {b)). In this situation, Mr. Levison can't effectively do
that since no one seems to agree as to which trees will be removed.
3 . The Tree Protection Ordinance (Sec . 29.10.1000 (c) (2) says the "Town reviewing
body through its site and design plan review shall endeavor to protect all trees
recommended for preservation by the Town's consulting arborist." How can the TC
and PC accomplish this charge when the tree report is incomplete?
4. The HDS&G require (page 13}, as part of the visibility analysis, that any trees or large
shrubs to be "removed, significantly pruned, or impacted by construction" not be
counted as providing screening in the view analysis. Yet such an analysis is
impossible for this A&S because no one seems to agree on the basic facts of which
trees are to be removed . And the 12 trees (page 10) that "may be negatively
impacted" should be eliminated, per the HDS&G , from provided screening during
visibility analys is.
5. The Arborist's tree plan is required to incorporate the latest plan information. As an
example, Mr. Levison says in his first tree report of 7 /5/2016, that tree #31 {the
same as Ellis' tree #15) will be removed so he gives no suggestions for protecting it.
But in his second tree report dated 7 /21/2016 (just 2+ weeks later), he indicates that
tree #31 will be retained and lists several measures to help insure its survival. Mr.
Lev ison's expertise is being wasted when his reports are incomplete or inaccurate,
and are not read by staff.
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Closing comments and recommendati ons : I'm not trying to split hairs here . The above
are all important issues that have not been resolved to the standards set by this Town Council
in the past . The integrity of the "process" is important.
You are thus faced with an appeal that provides new information, exposes non-
compliance with many Town codes, documents consultant errors, and points out incomplete,
conflicting and inadequate analysis. I request that you deny this application and adopt the
following recommendations, as guidelines for the future, should the applicant decide to refile a
new A&S :
1. Enforce the HDS&G's house height, on the current pad, to 18 feet above grade given the
pad's documented location on a significant/critical ridgeline.
2. Expand the Viewing Platforms to include the Shannon corridor and the valley floor around
Netflix, as both provide great visibility of the current pad .
3. Require that the Visibility Analysis exclude from screening, any tree or large shrub that will
be "removed, significantly pruned, or impacted by construction ", as per the HDS&G . This
exclusion list should also include those 12 trees listed on page 10 of Levison 's 7 /21/2016
report .
4. Require that any tree in "poor" or "poor/fair" condition, as per the Town's Consulting
Arborist, and as agreed to by both the PC and TC in 2015/2016, shall not be counted as
providing screening.
5. Require the landscaping plan conform with the HDS&G . Ornamental landscap i ng in Zone 1
must be >50% native plants from Appendix A. Any plantings in Zone 2 and 3 must be 100%
species listed in Appendix A.
6. Prohibit any turf, artificial or natural, outside of Zone 1, as per HDS&G .
7. Limit fill restoration to what changes can be demonstrated as having occurred from old
topo maps or Google Earth .
8. All trees should be assigned a retention rating of high/moderate/low, in the tree report, as
required by Sec. 29.10.1000 (b).
9. The Con sulting Arborist's Report needs to be updated to reflect the submitted A&S
application. The current Report is over 7 months old and it is not clear if it identifies the
trees at risk under the current plans . The 2006 and 2013 Consulting Arborist Report s of Ms.
Ellis need to be compared with the current report to confirm, as required by Sec .
29.10.1000 (d), those eight trees apparently removed without permits. Ellis ' tree numbers
should be correlated with Levison's tree numbers to permit this comparison .
10. Request the Town Attorney and Code Compliance Officer investigate the disappearance of 6
trees, between 2006 and 2013, and another 2 trees between 2013 and 2016, all w ithout
permits.
11. Get the applicant to decide which trees he is actually proposing to remove.
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12. Several changes/additions should be made to the Conditions of Approval.
a. Under condition 4, require a $25,000, or more, "security bonding", as
recommended in the Consulting Arborist Tree report, page 8. Sec.
29.10.1000 (f) provides for this bonding.
b. Condition 6, amplify that >50% of any plantings in Zone 1 must be natives
from Appendix A, and that 100% natives are required beyond Zone 1.
c. Condition 7, add, as mitigation, replacement trees or in lieu fees for the 9
trees removed legally under T14-110.
d. Under Condition 12, story poles are not to be anchored to trees on site, as
per Sec . 29 .10.1005 (b) (4) of the Tree Protection Ordinance. The story poles
have been anchored to protected trees since the PC hearing on 1/11/2017.
e. Under Condition #29, defensible space, reinforce that grading permits are
required as per Condition #42, even if such grading is supposedly done to
comply with defensible space requirements. HDS&G, page 18, #4, also
specifically forbids "strip grading for the purpose of clearing land of native
vegetation ... except for small areas adjacent to buildings, access drives, and
parking areas ."
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Through the Landscape Rebate Program, the
Santa Clara Valley Water District is helping to
promote water conservation while at the same time
encouraging the installation of healthy, sustainable
landscapes that will enhance our local environment.
The district is not only responsible for safe, clean
drinking water, we are also stewards of our entire
watershed and have designed our program to go
beyond simply saving water.
While artificial turf requires less water than a natural
turf lawn, there are healthier and more ecologically
sound alternatives that we would like to promote
with our Landscape Rebate Program . For the
following reasons, artificial turf is not included in our
Landscape Rebate Program.
A rtifi c ial turf is not a living landscape
and does not:
• Increase biodiversity of plant, animal and
insect populations;
• Provide habitat for local fauna;
• Foster healthy soils (healthy soils increase moisture
holding capacity, support healthy microbes and
insects, filter pollutants and improve
water quality);
• Cool surrounding air temperatures (artificial turf
can get significantly hotter than surrounding air
temperatures, contributing to the heat island effect
by increasing air temperatures in urban settings);
• Sequester carbon or produce oxygen like living
plant material can.
Artificial turf is no t water free
• For sar.itation purposes, water is needed to
periodically clean the turf. Chemicals may also
be needed occasionally.
• Because artificial turf can get very hot in direct
sunlight, water is sometimes needed to cool the
turf before it can be used comfortably.
An example ol a lront yore/ lawn conversion that reduces waler
use while also creating a susloinable landscape.
Artificial turf has potential
environmental concerns
• Runoff from artificial turf may contain
pollutants like heavy metals and chemicals
that can reach surface water or groundwater.
Results may vary for different artificial turf
products, but more scientific research is needed
(See report from Environmental and Human
Health, Inc: http://www.ehhi.org/reports/turf/
and the district's report on artificial turf fields at:
http:/ /valleywater.org/Programs/
conservationannualreports.aspx).
• Artificial turf is a synthetic material with a
relatively short lifespan ranging from 10-20
years that may eventually end up in landfills.
Fortunately, the Landscape Rebate Program allows
many beautiful, low water using options that result
in more sustainable and beneficial landscapes. For
additional information about the Landscape Rebate
Program or our exte nsive Qualifying Plant List, please
call the Water Conservation Hotline at 408-630-2554
or visit www.valleywater.org .
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