Loading...
Attachment 9PREPARED BY: SEAN MULLIN, AICP Associate Planner Reviewed by: Planning Manager and Community Development Director 110 E. Main Street Los Gatos, CA 95030 ● 408-354-6874 www.losgatosca.gov TOWN OF LOS GATOS PLANNING COMMISSION REPORT MEETING DATE: 03/13/2019 ITEM NO: 4 DATE: MARCH 7, 2019 TO: PLANNING COMMISSION FROM: JOEL PAULSON, COMMUNITY DEVELOPMENT DIRECTOR SUBJECT: TOWN CODE AMENDMENT APPLICATION A-19-001. PROJECT LOCATION: TOWN WIDE. APPLICANT: TOWN OF LOS GATOS. CONSIDER AMENDMENTS TO CHAPTER 29 (ZONING REGULATIONS) OF THE TOWN CODE REGARDING FENCES, HEDGES, AND WALLS, INCLUDING REGULATIONS FOR THE HILLSIDE AREA OF TOWN. RECOMMENDATION: Staff recommends that the Planning Commission consider amendments to Chapter 29 (zoning regulations) of the Town Code regarding fences, hedges, and walls, including regulations for the hillside area of Town. CEQA: The project is Categorically Exempt pursuant to the adopted Guidelines for the Implementation of the California Environmental Quality Act, Section 15061(b)(3), in that it can be seen with certainty that there is no possibility that the proposed amendments to the Town Code will have a significant effect on the environment. FINDINGS: As required, pursuant to the adopted Guidelines for the Implementation of the California Environmental Quality Act, this project is Exempt, Section 15061(b)(3); and That the Town Code amendments are consistent with the General Plan. BACKGROUND: On January 31, 2017, during the Town Council Study Session to identify strategic priorities for fiscal years 2017-2019, the Town Council identified hillside fences as a strategic priority in ATTACHMENT 9 PAGE 2 OF 9 SUBJECT: CONSIDER AMENDMENTS THE TOWN CODE REGARDING FENCES, HEDGES, AND WALLS. TOWN CODE AMENDMENT/A-19-001 MARCH 7, 2019 N:\DEV\PC REPORTS\2019\2019 - Scanned PC Rpts & Exhibits\3-13-19\Item 4\Fences Amendments 03-13-19.docx BACKGROUND (continued): response to a request from the public (Exhibit 4). The goals identified for amendments to the Town Code regarding hillside fences were to: • Make certain that fences do not interfere with wildlife corridors; • Ensure fences do not impede movement of wildlife; • Define an “open fence” as one that permits all animals, depending on their size, to either climb under, pass through, or jump over, regardless of the fence’s location relative to the side, front, or rear yards; • Specify that the installation of chicken wire, wire mesh, chain link, etc., over open slat fences, is not considered animal-movement friendly; and • Clarify that the requirements for fences apply to all hillside fences, not just to fences associated with Architecture and Site applications. A draft Ordinance was reviewed by the Planning Commission on July 26, 2017 and September 13, 2017 and the Commission forwarded their comments and concerns to the Town Council. The draft Ordinance was considered by the Town Council and the Town Council Policy Committee from December 2017 through December 2018. During this iterative process, the draft Ordinance was bifurcated into separate tracks: amendments applicable Town-wide and amendments applicable in the hillside area. The Town-wide amendments were adopted as Ordinance 2278 by the Town Council on December 18, 2018, which became effective on January 17, 2019 (Exhibit 5). The adopted Ordinance included the following amendments: • Fence height increase to seven feet (non-hillside area only); • Appropriate front yard and street side yard fence height and setbacks (Town-wide); and • Vehicular gate setback requirements (Town-wide). On November 15, 2018, the Town Council Policy Committee began discussion of the bifurcated draft Ordinance applicable in the hillside area, including the relationship between the draft Ordinance and the Hillside Development Standards and Guidelines (HDS&G). The Town Council Policy Committee requested that the HDS&G standards and guidelines for fences (Exhibit 6) be incorporated into the draft Ordinance, and continued that discussion to the December 20, 2018 meeting. The staff report for the November 15, 2018 Town Council Policy Committee meeting is included as Exhibit 7; the exhibits and minutes from this meeting can be accessed at https://www.losgatosca.gov/AgendaCenter/Council-Policy-Committee-7. While considering the draft Ordinance at the December 20, 2018 meeting, the Town Council Policy Committee recognized that the existing subjective criteria within the HDS&G (should versus shall; encourage versus required; etc.) are not appropriate for an Ordinance, and that PAGE 3 OF 9 SUBJECT: CONSIDER AMENDMENTS THE TOWN CODE REGARDING FENCES, HEDGES, AND WALLS. TOWN CODE AMENDMENT/A-19-001 MARCH 7, 2019 N:\DEV\PC REPORTS\2019\2019 - Scanned PC Rpts & Exhibits\3-13-19\Item 4\Fences Amendments 03-13-19.docx BACKGROUND (continued): revising the subjective criteria to be objective would create conflict between the Town Code and the HDS&G. The Town Council Policy Committee, therefore, recommended that subjective criteria be eliminated in the draft Ordinance to avoid conflict between the Town Code and the HDS&G. The Town Council Policy Committee also provided feedback related to the organization and content of the draft Ordinance, including regulations for the hillside area of Town, and regulations that address concerns related to fences located within riparian corridors and emergency egress routes. Additionally, the Town Council Policy Committee considered a list of recommended and prohibited fence materials and designs within the hillside area. The list reflected what was included in previous drafts of the Ordinance and had evolved through public input and recommendations from the various hearing bodies. The Town Council Policy Committee recommended that the Planning Commission discuss the appropriateness of the recommended and prohibited fence materials and designs included in the draft Ordinance. The Town Council Policy Committee then forwarded the draft Ordinance to the Planning Commission for consideration with the following direction: • Incorporate the existing HDS&G standards and guidelines for fences (Exhibit 6), while eliminating subjective criteria to avoid conflict between the Town Code and the HDS&G; • Include regulations to address concerns related to fences located within riparian corridors and emergency egress routes; and • Discuss the appropriateness of recommended and prohibited materials and designs within the hillside area. The staff report for the December 20, 2018 Town Council Policy Committee meeting is included as Exhibit 8; the exhibits and minutes from this meeting can be accessed at https://www.losgatosca.gov/AgendaCenter/Council-Policy-Committee-7. DISCUSSION: A. Public Outreach On March 1, 2019, staff contacted the following organizations and requested input on the current draft Ordinance: • Santa Clara Valley Chapter of the American Institute of Architects (AIASCV) • Santa Clara County Association of Realtors (SCCAR) • Silicon Valley Association of Realtors (SILVAR) In addition to contacting professional organizations, staff requested public input through the following media and social media resources: PAGE 4 OF 9 SUBJECT: CONSIDER AMENDMENTS THE TOWN CODE REGARDING FENCES, HEDGES, AND WALLS. TOWN CODE AMENDMENT/A-19-001 MARCH 7, 2019 N:\DEV\PC REPORTS\2019\2019 - Scanned PC Rpts & Exhibits\3-13-19\Item 4\Fences Amendments 03-13-19.docx DISCUSSION (continued): • An eighth-page public notice in the newspaper; • A poster posted at the Planning counter at Town Hall; • On the Town’s website home page, What’s New; • On the Town’s Facebook page; • On the Town’s Twitter account; • On the Town’s Instagram account; and • On the Town’s NextDoor page. B. Components of the Draft Ordinance In response to the direction provided by the Town Council Policy Committee, the draft Ordinance has been refined and restructured. The proposal is to amend the Ordinance adopted by Town Council on December 18, 2018 and replace it with the draft Ordinance (Exhibit 3). The draft Ordinance includes the following: 1. Organization The draft Ordinance is organized into subsections with regulations related to the following attributes of fences, hedges, and walls: height; materials and design; location; vehicular gates; public utility facilities and critical infrastructure; and exemptions (Exhibit 3). Each subsection is structured to begin with regulations that are applicable Town-wide. Where applicable, additional regulations are provided affecting specific areas of the Town, such as the hillside area. 2. Content The regulations contained in the Ordinance adopted by the Town Council on December 18, 2018 are included in the draft Ordinance. In addition, the draft Ordinance includes new Town-wide regulations and those specific to the hillside area and properties with a Landmark and Historic Preservation Overlay. 3. Town-wide: At the December 20, 2018 meeting, the Town Council Policy Committee discussed a concern with fences blocking fire access or secondary egress routes and fences impacting riparian corridors. The Town Council Policy Committee recommended that language prohibiting fences, walls, and gates within emergency access PAGE 5 OF 9 SUBJECT: CONSIDER AMENDMENTS THE TOWN CODE REGARDING FENCES, HEDGES, AND WALLS. TOWN CODE AMENDMENT/A-19-001 MARCH 7, 2019 N:\DEV\PC REPORTS\2019\2019 - Scanned PC Rpts & Exhibits\3-13-19\Item 4\Fences Amendments 03-13-19.docx DISCUSSION (continued): easements and below the top of bank of any stream be included. Section 29.40.030(c) reflects this direction (Exhibit 3, page 2). Additional regulations related to materials and design are included in Section 29.40.030(b)(4) of the draft Ordinance and discussed in detail below. 4. Properties with a Landmark and Historic Preservation Overlay: Section 4.8.12 of the Residential Design Guidelines includes recommendations for fences and walls on historic properties, including prohibition of plastic fencing. Section 29.40.030(b)(4)(a) of the draft Ordinance reflects the Residential Design Guidelines by including a prohibition of plastic fencing on properties with a Landmark and Historic Preservation Overlay. 5. Hillside Area: As included in the adopted Ordinance, Section 29.40.030(a)(2) of the draft Ordinance limits fence heights in the hillside area to a maximum of six feet (Exhibit 3, page 1). The draft Ordinance also includes the following regulations specific to the hillside area: • Open fences using natural materials and colors are preferred; • Fencing located within twenty (20) feet of a property line adjacent to a street shall be of open design; • Fences shall follow the topography; and • Chain link fencing shall be coated with green, brown, or black vinyl or finish and shall be supported by a wood frame. Dark, painted metal poles may be allowed if deemed appropriate by the Community Development Director. Additional regulations related to materials and design are included in Section 29.40.030(b)(4) of the draft Ordinance and discussed in detail below. 6. Materials and Design The Town Council Policy Committee requested that the Planning Commission discuss the regulations related to materials and design that are included in the draft Ordinance (Exhibit 3, pages 1 and 2). Section 29.40.030(b) of the draft Ordinance regulates materials and design of fences throughout the Town and within the hillside area, as summarized in the following table. Examples of fence designs and materials discussed in the draft Ordinance are included as Exhibit 9. PAGE 6 OF 9 SUBJECT: CONSIDER AMENDMENTS THE TOWN CODE REGARDING FENCES, HEDGES, AND WALLS. TOWN CODE AMENDMENT/A-19-001 MARCH 7, 2019 N:\DEV\PC REPORTS\2019\2019 - Scanned PC Rpts & Exhibits\3-13-19\Item 4\Fences Amendments 03-13-19.docx DISCUSSION (continued): Materials and Design Town-wide Prohibited Materials a. Any fence with bare lengths of wire stretched between posts. b. Electric fences, including any fence designed to produce an electric shock. c. Barbed or razor wire fences, including any fence with attached barbs, sharp points, or razors. d. Transparent fences such as barriers of glass or clear plastic. Hillside Area Materials and Design a. Open fences using natural materials and colors are preferred. b. Fencing located within twenty (20) feet of a property line adjacent to a street shall be of open design. c. Fences shall follow the topography. d. Chain link fencing shall be coated with green, brown, or black vinyl or finish and shall be supported by a wood frame. Dark, painted metal poles may be allowed if deemed appropriate by the Community Development Director. e. In addition to the prohibited materials listed above, the following fence types and materials are prohibited for new or replacement fences in the hillside area: i. Chicken wire, welded wire, wire mesh, or similar fence material. ii. Buck and rail fences. iii. Double fences. This list reflects what was included in previous drafts of the Ordinance, which had evolved through public input and recommendations from the various hearing bodies. Within the hillside area, the draft Ordinance includes prohibition of chicken wire, welded wire, wire mesh, or similar fence material, while allowing coated chain link fences. These fence materials are similar and perform similar functions. The Town Council Policy Committee requested that the Planning Commission discuss the appropriateness of the recommended and prohibited materials and designs included in the draft Ordinance. Should the Planning Commission feel that chicken wire, welded wire, wire mesh, or similar fence material should not be prohibited, they may provide that direction. 7. Permits Required The Town does not currently require a Planning permit for fencing, hedges, and walls unless construction elements trigger the need for Building Permits (certain masonry PAGE 7 OF 9 SUBJECT: CONSIDER AMENDMENTS THE TOWN CODE REGARDING FENCES, HEDGES, AND WALLS. TOWN CODE AMENDMENT/A-19-001 MARCH 7, 2019 N:\DEV\PC REPORTS\2019\2019 - Scanned PC Rpts & Exhibits\3-13-19\Item 4\Fences Amendments 03-13-19.docx DISCUSSION (continued): walls, retaining walls, gates requiring electrical supply, etc.). The Town Council Policy Committee did not recommend introducing a Planning permit requirement for fencing. Therefore, the draft Ordinance would not introduce a Planning permit requirement for fencing. C. General Plan Policies and Actions The relevant General Plan Policies and Actions addressing fences, preservation of wildlife habitats, and protection of migration corridors are included as Exhibit 10. D. Existing Town Code The recently amended Town Code includes regulations for fences throughout the Town in Section 29.40.030. The current Town Code: • Includes limited regulation of design and materials; • Does not require permits for fences seven feet or less in height; and • Except for height, does not differentiate between regulations for fences on hillside and non-hillside properties. E. Hillside Development Standards and Guidelines The Hillside Design Standards and Guidelines (HDS&G) provide guidance for development in the hillside area, including standards and guidelines for incorporating fences in the hillside area. The relevant standards and guidelines and an excerpt from the HDS&G are included as Exhibit 6. F. Review of Ordinances in similar jurisdictions Exhibit 11 includes fence regulations for the following hillside communities that have been reviewed to aid in the Town Council Policy Committee discussions: • Saratoga; • Los Altos Hills; • Portola Valley; and • Woodside. PAGE 8 OF 9 SUBJECT: CONSIDER AMENDMENTS THE TOWN CODE REGARDING FENCES, HEDGES, AND WALLS. TOWN CODE AMENDMENT/A-19-001 MARCH 7, 2019 N:\DEV\PC REPORTS\2019\2019 - Scanned PC Rpts & Exhibits\3-13-19\Item 4\Fences Amendments 03-13-19.docx PUBLIC COMMENTS: Written comments have been received regarding draft Ordinance regarding fences, hedges, and walls during the previous review that may be germane to the current application. These previously received comments are available at http://tinyurl.com/CommentsThru122018. Additional comments received before 11:00 A.M. on Friday, March 8, 2019, are included as Exhibit 12. CONCLUSION: A. Recommendation Based on the analysis above and consistency with the General Plan, staff recommends that the Planning Commission forward the draft Ordinance to the Town Council with a recommendation for adoption. The Commission should also include any comments or recommended changes to the draft Ordinance in taking the following actions: 1. Make the finding that there is no possibility that this project will have a significant impact on the environment; therefore, the project is not subject to the California Environmental Quality Act [Section 15061 (b) (3).] (Exhibit 2); 2. Make the required finding that the draft Ordinance is consistent with the General Plan (Exhibit 2); and 3. Forward a recommendation to the Town Council for approval of the draft Ordinance Town Code (Exhibit 3). B. Alternatives Alternatively, the Commission can: 1. Forward a recommendation to the Town Council for approval of the draft Ordinance with modifications; or 2. Forward a recommendation to the Town Council for denial of the draft Ordinance; or 3. Continue the matter to a date certain with specific direction. PAGE 9 OF 9 SUBJECT: CONSIDER AMENDMENTS THE TOWN CODE REGARDING FENCES, HEDGES, AND WALLS. TOWN CODE AMENDMENT/A-19-001 MARCH 7, 2019 N:\DEV\PC REPORTS\2019\2019 - Scanned PC Rpts & Exhibits\3-13-19\Item 4\Fences Amendments 03-13-19.docx EXHIBITS: 1. Hillside Area Map 2. Findings 3. Draft Ordinance 4. Ordinance Priorities Memorandum dated February 12, 2017, from Robert Shultz, Town Attorney 5. Ordinance 2278, adopted December 18, 2018 6. Hillside Development Standards and Guidelines pertaining to fences 7. November 15, 2018 Town Council Policy Committee staff memorandum and synopsis 8. December 20, 2018 Town Council Policy Committee staff memorandum and synopsis 9. Examples of fence design and materials discussed in the draft Ordinance 10. General Plan Policies and Actions pertaining to fences, wildlife habitats, and migration corridors 11. Neighboring Jurisdictions Fencing Regulations 12. Public Comments received by 11:00 a.m., Friday, March 8, 2019 This Page Intentionally Left Blank Legend Hillside Area Hillside Area EXHIBIT 1 This Page Intentionally Left Blank PLANNING COMMISSION – March 13, 2019 REQUIRED FINDINGS: TOWN CODE AMENDMENT APPLICATION A-19-001 Consider amendments to Chapter 29 (Zoning Regulations) of the Town Code regarding fences, hedges, and walls, including regulations for the hillside area of Town. FINDINGS Required Findings for CEQA: It has been determined that there is no possibility that this project will have a significant impact on the environment; therefore, the project is not subject to the California Environmental Quality Act, Section 15061 (b)(3): Review for exemption. Required Findings for General Plan: The Town Code amendments are consistent with the General Plan. N:\DEV\FINDINGS\2019\Fences_Amend PC 03-13-19.docx EXHIBIT 2 This Page Intentionally Left Blank EXHIBIT 3 EXHIBIT 4 EXHIBIT 5 EXHIBIT 6 EXHIBIT 7 EXHIBIT 8 EXHIBIT 9 This Page Intentionally Left Blank EXHIBIT 10 EXHIBIT 11 EXHIBIT 12 statement on page 6 that the HDS&G apply to ANY development in the hillside area. This fence revision is, thus, simply an effort to codify the Vision Statement by letting the Town Council, and not staff, decide what the fence ordinance should address. Staff has decided that under current Town policy, new hillside fences on properties that already have a house, or an approved A&S, can be 6 feet tall, can be built on the property line, can cross animal movement corridors, can be made of almost any material, and do not have to be animal friendly. So why would any A&S application include plans for a fence when the property owner only has to wait for A&S approval and then they can build any type of fence anywhere that they want? Fence ordinance revision efforts over the last 2 years have been all over the place. The current draft is a poor excuse compared to earlier drafts and the Visions expressed in the HDS&G. This latest draft also doesn’t accurately reflect the decisions made at the December 20, 2018, Policy Committee meeting, and I ask that you revise this draft along the following lines: 1.Restore the emphasis that wildlife needs in the hillsides are very different from those in the flatlands. I think the ordinance should be split into 3 sections: Section 1 contains those provisions that pertain to both zones; Section 2 contains provisions that pertain to only the flatlands; and Section 3 contains those provisions that pertain to only the hillsides. As now presented, the reader has to search through the entire ordinance to see which lines apply to where they live. 2.While many passages and requirements in the draft, relating to fences and walls, were lifted directly from the HDS&G, the most important over-arching ‘Standards’ from the HDS&G (pages 42 and 43) were omitted, and should be added back into the Ordinance. Specifically, the 3 important stated Standards of (1) “The use of fences and walls shall be minimized…to those areas where they are absolutely necessary”; (2) “The primary emphasis shall be on maintaining open views, protecting wildlife corridors, and maintaining the rural, open, and natural character of the hillsides”; and (3) “Fences shall not be allowed in areas that would impede the movement of wildlife…” are not mentioned at all. 3. The Ordinance needs a Definitions Section for words or phrases used in the draft. For example, nowhere in the draft are “hillsides” defined. Similarly, what is an “open fence.” Also, the use of the term “animal friendly fence”, and its definition, was omitted from this draft despite the Policy Committee voting to include it (see Minutes from meeting of 12/20/2018). In fact, there in not one positive mention of “animal” or “animals” in this entire draft despite the major purpose of this revision being the needs and concerns for wildlife health. “Animal” and “wildlife” are mentioned only once, in the Exceptions Section, for problems. 4. Previous drafts limited perimeter, hillside fence heights to 42 inches and required such fences to be animal friendly. Fence heights of 6 feet were limited to those areas where extra protection from animals could be documented, or extra security for children and pets were needed. This dichotomy in fence heights is consistent with the HDS&G, which states that “…the cumulative impact of six-foot high chain link fences and solid fences and walls surrounding hillside properties has a significant impact on the movement pattern of wildlife and on the open rural character of the hillsides.” I also don’t recall any Town body making a motion to change this number. Yet this draft now permits 6-foot-tall, non-animal friendly fences anywhere on a property despite the HDS&G clearly stating that “The objective of the following standards and guidelines is to limit six-foot high fences and walls and deer fencing to those areas where they are absolutely necessary.” 5. There is no reference, anywhere in this draft, to the most important areas for wildlife fences and walls – those areas along the rear (and sometimes side) property line. Under this draft, fencing in these areas can be at the property line, can be 6 feet tall, and does not have to be animal friendly because chain link fencing is still permitted. This is no different from the current Town policy. Plus, the HDS&G say that “wood rail-type fences and gates are preferred” but this language appears nowhere in the current draft despite the lack of previous objections during any hearing. 6.This latest draft prohibits new fences “below the top of bank of any stream.” “Stream” can have many definitions, which is why the more accurate term “riparian corridor” is defined, and used, in the HDS&G. But allowing the placement of fences at the edge of the top of bank could prevent animals from reaching the important water, and shade, contained in the bottom of such riparian corridors. Especially when there is no definition or requirement for animal friendly fences in such areas. Fences around riparian corridors should be animal friendly and set back 10-30 feet from the top of bank to allow animals good access to this necessary resource. Plus, riparian corridors are frequent movement corridors. Government biologists believe that riparian communities in the Western states, such as California, provide habitat for up to 80 percent of western wildlife species (reference here, on page 5: https://www.waterboards.ca.gov/sanfranciscobay/publications_forms/documents/bufferrepor t1204.pdf 7.Under this draft, hillsides fences using chicken wire, welded wire, wire mesh and similar fence materials are prohibited, which is appropriate. Chain link fencing is permitted, even though the HDS&G currently says that “chain link fences are strongly discouraged.” But Wikipedia says that a chain link fence can also be referred to as a wire mesh fence. In any case, all of these fence materials are not animal friendly and all should be equally prohibited. I suggest you do as the Town Attorney suggested at the 12/20/18 Policy Committee Meeting – prohibit all materials listed in the draft under (b) (1) and (b) (2), including chain link fencing, and then give exceptions and describe the appeal process. This sensible language should have been included in this latest draft. Otherwise, why do we even have our Town Attorney attending the Policy Committee meetings? There has been much discussion about how earlier drafts of this ordinance were too long and too detailed. I totally disagree. I think clarity in the law sometimes requires extra language to make intent clear and to address many possible situations. I am all for streamlining, but simple solutions are not always the best solutions. The number of complexities on every property are almost infinite. One could easily argue that all fences impede animal movement to some degree. Our efforts have been to provide a good balance between the animals and homeowner’s property rights. The alternative is the need for a confused public to continually approach the Community Development counter asking for interpretations and clarifications. If we want to make people’s lives easier, then placing specifics in this ordinance is easier than having them come to the Community Development counter for an explanation. Or, the alternative is just to ignore the whole Vision Statement for our hillsides. In which case, we should stop pretending that we care about the hillside wildlife and revise the HDS&G appropriately.