Attachment 2 - March 27, 2019 Planning Commission Verbatim MinutesLOS GATOS PLANNING COMMISSION 3/27/2019
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A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
Matthew Hudes, Chair
Melanie Hanssen, Vice Chair
Mary Badame
Kendra Burch
Kathryn Janoff
Tom O'Donnell
Town Manager:Laurel Prevetti
Community Development
Director:
Joel Paulson
Town Attorney:Robert Schultz
Transcribed by: Vicki L. Blandin
(619) 541-3405
ATTACHMENT 2
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P R O C E E D I N G S:
CHAIR HUDES: We have one more item of substance
on the agenda tonight, and that is Item 5. Item 5 is a Town
Code Amendment – Land Use Appeal. It is the Town Code
Amendment Application A-19-002 to consider amendments to
Chapter 29 (Zoning Regulations) of the Town Code regarding
the land use appeal process. The Applicant is the Town of
Los Gatos and the project planner is Ms. Zarnowitz. So, I
understand you'll be giving the report tonight?
SALLY ZARNOWITZ: Yes, thank you. I guess by way
of introduction, the Town Council Policy Committee
requested that these amendments to the Town Code be placed
on a Policy Committee agenda for discussion, and so they
were discussed in July 2018 and then continued into
December 2018, where they gave this direction. There are
really three main directions, I would say.
The first was to remove the requirement that the
Town Council make one of the three findings to modify or
reverse the decision of the Planning Commission on appeal,
and here we should note, I think, that regarding removal of
this requirement that Council could still make one of
these… It should be noted that this direction does not
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limit the Town Council's ability to take the same actions
currently addressed in these findings. But that was the
first one.
The second one was to bifurcate the Residential
and Commercial appeal processes, leaving the Commercial
appeal process unchanged while limiting the distance that
an appellant can live from a Residential project in order
to appeal it.
Then the last one was to provide an appeal
process for the Minor Residential Development application
where currently there is not an appeal process. As one that
you recently saw, a Minor Res, where if the applicant and
the objecting neighbor can't come to an agreement then it
comes up to Planning Commission and the applicant pays the
fees for that. So, this would make the process more like
any other process where there would be an approval and then
an appeal process for the Minor Residential application.
With that, I'm here to answer questions, and
we're looking for the Planning Commission's review of these
proposed changes, and also to forward a recommendation to
the Town Council on these. Thank you.
CHAIR HUDES: Questions? Commissioner Badame.
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COMMISSIONER BADAME: Is there background
information as to the basis of our three requirements for
our current appeal process?
JOEL PAULSON: I will just offer that, yes, there
is background information that's not before you and the
background information comes from our meeting on Tuesday,
and you guys can correct me if I'm wrong, I believe it was
1995 when these three findings were added, but we did not
bring forward that ordinance modification to add those
findings that are currently being proposed to be removed.
COMMISSIONER BADAME: Thank you.
CHAIR HUDES: Okay, thank you. Commissioner
Janoff.
COMMISSIONER JANOFF: Is there background as to
the rationale for removal of the three criteria?
SALLY ZARNOWITZ: In the priority setting session
there was a memo from the Town Attorney that talked about
the fact that following a number of appeals in 2017 the
Policy Committee asked to have this placed on an agenda,
but that was as specific as that memo was.
CHAIR HUDES: Commissioner Hanssen.
VICE CHAIR HANSSEN: I was going to ask the same
question in a different way, and this is what is the
problem that we're trying to solve? I think on one level,
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like the second thing with the bifurcation and the distance
and everything the idea was streamlining and maybe the
Planning Commission thing was streamlining, but what is the
specific problem we're trying to solve? Is it just that
Council isn't satisfied with what happened with these
appeals and so this is the solution to the problem? But
what was the problem?
JOEL PAULSON: I don't know that we have that
background. Obviously, the strategic priority setting
session every year is the session where things get placed
on agendas, and then ultimately the Policy Committee also
has their own work plan where they've put things on the
agenda. This one crossed over from Town Council priority to
Town Council Policy Committee asking Staff to put that on
there so that they could discuss it and provide direction.
At that point Staff just provides them with the information
of here is what the appeal rules are here now, provide them
a memo, and then we look to them to provide us direction as
far as what they want to have modified. Then we bring them
back information and they ultimately forward what they
recommend.
CHAIR HUDES: Commissioner O'Donnell, and I'd
like to get to the public in a minute or two, so let's try
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to focus on technical or clarification questions rather
than debate at this point.
COMMISSIONER O'DONNELL: I wasn't sure anybody
was going to speak from the public.
CHAIR HUDES: We do have one card.
COMMISSIONER O'DONNELL: If that's the case, I'll
just wait then.
CHAIR HUDES: Okay. Commissioner Janoff.
COMMISSIONER JANOFF: Just a clarification. Are
you saying that it was the number of appeals in 2018 that
generated the desire to remove these three criteria?
JOEL PAULSON: That's not what I'm saying.
COMMISSIONER JANOFF: Oh, okay. I thought that's…
JOEL PAULSON: And we'll look for the actual… I
think there may have been some additional language in the
strategic priority memo that the Town Attorney wrote, so
we'll see if we can dig that up as well while we're waiting
for public testimony.
COMMISSIONER JANOFF: Thank you.
CHAIR HUDES: I had a couple clarification
questions on where this would apply. This applies on a
project basis, not a zoning basis, is that correct?
JOEL PAULSON: Correct, it's decision basis
regardless of zone.
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CHAIR HUDES: Regardless of zone, okay. And what
happens in this bifurcation if we have a mixed use that is
Commercial and Residential?
SALLY ZARNOWITZ: Mixed use would be under the
Non-Residential.
JOEL PAULSON: So, essentially the process would
not change.
CHAIR HUDES: Okay. And in terms of Residential,
does that apply to any size of Residential development, so
it could be a 200-unit apartment building or something like
that?
SALLY ZARNOWITZ: It would be at this point, and
that was discussed to some extent by the Policy Committee.
CHAIR HUDES: Did they have a recommendation on
that?
SALLY ZARNOWITZ: They did not specifically say
to change the recommendation based on the size, so they
really just went into these two directions, Residential and
Non-Residential.
JOEL PAULSON: Just to add something really quick
before we get to the public is, we have something brought
forward, forwarded to you by the Policy Committee. I think
now is the opportunity for the Planning Commission to have
all of these conversations and not necessarily agree with
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all of them or look for additional information, and that's
what we're here to help facilitate and ultimately move
forward to the Council once the Planning Commission feels
like they've had their input heard and weighed in on.
CHAIR HUDES: Okay, great. Further questions of
Staff at this point? Okay, public. I have one card from Lee
Quintana.
LEE QUINTANA: Oh, I get five minutes. Lee
Quintana, 5 Palm Avenue. I have a hundred comments I could
make, but I'm going to limit it to a few that I think are
the most important.
I think the question of the size of the project
if it's Residential and Mixed-Use was a good one; I had
that question myself.
I also spent a little bit of time looking at
other cities and towns and what they do, and I found that
it was a huge range of options; most of them did not limit
who could appeal. Those that did range from 200' to 1,000',
but my basic comment is that if there is a problem, I'm not
sure that these recommendations address it. My
understanding of reading the minutes was that there was a
concern about the merry-go-round that appeals take where
they bounce back and forth, and that's what the Council
wanted to address.
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My biggest concern is that I feel that one of the
problems, and why we have the appeals that we do and why
they bounce around, is that the project can change from
level to level as it gets appealed instead of being the one
project that comes to the deciding body without the ability
to change, that's your best shot, and based on that I do
not think that the suggested changes address what's in the
whereases of this resolution which says, "Whereas the Town
expects all applicants to do their best work in the initial
application and not wait until a potential appeal process
to propose variable solutions." Well, that's exactly what
is happening because it's an expect, it isn't a
requirement.
I'll stop with that. I could say a lot more, but
you're probably not interested anyway.
CHAIR HUDES: Any questions? Yes, Commissioner
Badame.
COMMISSIONER BADAME: Ms. Quintana, you've lived
here for many years and you've also served on the Planning
Commission. To your knowledge, how many appeals, if any,
have been filed by an applicant not fitting the proposed
definition for eligibility?
LEE QUINTANA: You mean not fitting the three
requirements for…
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COMMISSIONER BADAME: No, the new proposed
definitions for eligibility, having to be impacted by the
project or live within 500' because now we just have an
interested person.
LEE QUINTANA: I don't have any objection with
that, just the interested person, especially for larger
projects. Maybe for single-family residences it makes sense
because there is a smaller impact, but if you use that same
criteria for hillsides, you're eliminating practically
everybody who'd make an objection, except those who
probably will benefit from the project itself. Commercial
and large projects are a different animal. I think they do
need to have a much wider ability for people to object.
But I'm also concerned about the fact that there
are no findings that are necessary anymore. Yeah, they can
give them, but they don't have to. Does that also mean that
there are no requirements when somebody submits a request
for an appeal, that they don't have to be based on logical
reasons, that it can just be I don't like the project.
Again, I don't think that solves the problem that they're
trying to get at.
COMMISSIONER BADAME: Okay, thank you.
CHAIR HUDES: Other questions? Okay, thank you.
Appreciate your comments.
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Now we go back to further questions of Staff on
this, so anyone? Commissioner Badame.
COMMISSIONER BADAME: I have a question, it may
be for the Town Attorney, or even if Commissioner O'Donnell
wanted to chime in. That would be Attachment #1, Section 3.
Can you explain that to us, especially the part about the
validity of the invalidity? And that's Section 3, it's
probably about the third or fourth paragraph down. It's
Attachment 1; it's the draft ordinance.
CHAIR HUDES: Okay, let's try to get on the same
page here.
SALLY ZARNOWITZ: That's the draft ordinance that
went to Policy Committee, is that what you wanted to talk
about? The draft ordinance before you tonight is Exhibit 6.
COMMISSIONER BADAME: Let me look at Exhibit 6
because…
SALLY ZARNOWITZ: We can answer questions on that
still.
JOEL PAULSON: Section 3 is the same in
Attachment 1 and Exhibit 6, so it's page 5.
COMMISSIONER BADAME: Okay, yeah. Page 5, then,
of Exhibit 6. Thank you, Joel Paulson, Community
Development Director.
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JOEL PAULSON: I'll give you the non-attorney
version that if there's one piece of this ordinance that
gets adopted that is somehow struck down or held invalid it
doesn't throw out all the rest of the code amendments. I
don't know if that's the technical explanation, but that's
how I understand it.
COMMISSIONER BADAME: All right, boilerplate, got
it. Thank you.
SALLY ZARNOWITZ: Yeah, boilerplate severability;
all our ordinances have it.
CHAIR HUDES: Other questions? Commissioner
Hanssen.
VICE CHAIR HANSSEN: I just want to get back to
this second piece because there's kind of three parts to
this. The second part is about the distance for
Residential, so have there been specific instances where
someone perceivably shouldn't have filed an appeal and did?
I mean, how many cases of that have we had where they
weren't living relatively close to the project, how many
times has that happened?
JOEL PAULSON: Thank you for your question. Joel
Paulson, Community Development Director. I wouldn't say
that that happens. Most of them are going to fall into this
category anyhow.
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I will also note that I don't know that it's gone
through all of its amendment phases, but I think the Town
Attorney mentioned that this 500' may actually be changed
into 1,000', and we would obviously have to comply to state
law, so that might change as well. I think comments are
good.
Should it be based kind of on the size if it's a
single-family house? Someone five miles away that's not
going to be impacted, should they be able to appeal it? I
wouldn't say that this is based on an issue that's really
come up. I know Lee spoke at the Policy Committee because
they brought up a commercial project that was brought up
tonight as well, where she had appealed the project, but
she didn't live anywhere near the project. That doesn't
change with these amendments.
I think if you want to limit the size and scope
to single-family, or if that's part of your direction,
that's perfectly fine, and then the Council can ultimately
weigh in on that, but I don't know that there's any that I
can recall where it's just someone appealing because they
had nothing better to do or there wasn't really any valid
reason.
VICE CHAIR HANSSEN: Thank you. Just to follow up
on that. If that's the case, then one possible
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recommendation we could make is would it not be that
there's no need to do this at all? If it hasn't been a real
problem for the Town, why put limitations on who can appeal
if it's not a problem?
JOEL PAULSON: I'll defer to Sally, but right now
we say in the code, "interested person," but we don't have
a definition of what an interested person is, so one would
argue that some definition of interested person might be
valid. Whether this is the right one or these are the right
definitions may not be appropriate, but that's something
that you definitely could always have the opportunity to
recommend that they not adopt one or more of the proposed
amendments.
VICE CHAIR HANSSEN: Okay.
SALLY ZARNOWITZ: I would not say that it happens
often at all, or that this is a result of this, but we have
recently had an appeal, or we did a couple of years ago, of
a single-family house by a person who didn't live on the
street or near the house, so that has happened; it's not
that that's never happened.
CHAIR HUDES: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: "Interested person,"
this Commission will recall, is a word used in all kinds of
statutes and typically the courts have had to interpret
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what interested person means, so this is not a novel
question.
But what's not happening here is any help in
defining interested person, so if in fact it's a single-
family home, then the distance becomes manageable, whether
it's 500' or 1,000' or 200', it makes sense.
But if you have a large project that may affect
the Town as a whole, or… I think that's about it. We've had
projects where because of the size of the project those
people that live miles away nevertheless feel they'll be
impacted because there would be more traffic or whatever,
those people are interested parties and I think any case
that I've ever read would say that person… Strike that; I
can't say that. But most cases would say that shows an
economic interest or some other interest. It can't be an
interest that is just oh I'm interested in it, you have to
show some real interest, and we're trying to limit that
such that even a real interest wouldn't qualify, and I
think that's a mistake.
I want to comment in a minute when we get there
on the other thing, which is the findings issue, but I'll
defer that till we get there.
CHAIR HUDES: Okay, Commissioner Janoff.
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COMMISSIONER JANOFF: Just talking about point
number two, if I think about the converse it doesn't make
sense to me to limit the entire town, which is small, from
being able to comment on any number of concerns that they
may have regarding development. If you look at strict
distance, whether it's 500' or 1,000', you run into some
problems with some larger properties, you run into problems
with viewing platforms if you limit it to Residential, but
you've got the hillside, and you may have no one within
1,000 but it's a visible eyesore that a lot of people in
town might have a reason to be interested parties about.
I guess what I'm thinking is it's a small town
and we've got a deeply interested population in a lot of
different topics that we deal with and I would personally
not want to limit anyone from being a legitimately… You
know, define their interest, state their interest such that
it's reasonable and compelling, but I don't have an issue
with anyone being an interested party, so I would be in
favor of not changing the language and I would perhaps go
so far as to say that an interested party is anyone who is
a resident of the Town of Los Gatos.
CHAIR HUDES: Commissioner Badame, then
Commissioner O'Donnell.
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COMMISSIONER BADAME: I agree with Commissioner
Janoff. In fact, that's what I was also going to bring up.
I think it's hard to define an interested person
and it kind of begs the question of an interested person
who goes to that extreme, they're a concerned party, so
interested, you got concern, that makes you interested. We
encourage public testimony from people; we don't define who
can speak and who cannot speak. They're interested parties;
it's free speech. So, I have difficulty kind of limiting
public input by defining who couldn't appeal a decision
that results from our public testimony.
CHAIR HUDES: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I think an argument can
be made that on a very small project, namely single-family
home, duplex, very small, to encourage homes and
residential we ought not to let people… Well, we can say
that the ability to appeal would be more limited because it
can almost be seen on its face that if I live three miles
away from a single-family home going up, I really don't
have the kind of interest that ought to justify an appeal.
Anything bigger than whatever we define as a very small
project, then I would agree with the two comments that were
just made, which is everybody has an interest in that
because we all have an interest in our town.
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The only argument that I would make, and it's not
one that I would fall on my sword over, is if you have a
single-family home, I would hate to have people living on
the other side of town objecting to your single-family home
going in because I don't think they really do have an
interest, so that's my only caveat.
CHAIR HUDES: Commissioner Janoff, and then I
wanted to add one comment.
COMMISSIONER JANOFF: Well, I thought about that,
but what if… Let's say it's your son or daughter, or your
ageing parent, and something funny is going on in the
neighborhood and you live across town, you're outside the
1,000' or whatever radius. You're an interested party
because it's a friend or a relative or someone. I can
envision a case where an interested party might be someone
who is legitimately interested in the neighborhood and
doesn't live in that proximity, so in fairness to those
circumstances that might come up, I would not be in favor
of limiting even a small residence.
CHAIR HUDES: I wanted to make one comment, and
then Commissioner Badame.
One other way to limit this onslaught of appeals
is to raise the price of filing an appeal. What is the
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current price, and was any consideration given to adjusting
the price to deal with the large number of appeals?
JOEL PAULSON: I don't have all those numbers in
front of me. I think one of the appeal forms might be in
here. So, for instance, for a Residential project to appeal
to the Planning Commission it's $381, and for a Commercial
project it's $1,533. To appeal a decision of either the
Director of Community Development or the DRC, Residential
is $192 and Commercial is $767.
What I will say is the Council just last week
discussed the fee schedule and the Planning fees, including
the appeal fees, will be going up 15-percent, the ones that
aren't already at 100-percent. There was a Comment brought
up about whether or not they could be raised higher.
Obviously, we said yes, you could always raise them higher.
Ultimately, that was not the determination.
CHAIR HUDES: And was a survey of comparable
communities done as part of that?
JOEL PAULSON: No, we did a fee study where the
consultants come in and they look at how long it takes
Staff and everyone that touches it from Staff, so if you
cost allocate all of that time, it's significantly more
than $192.
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CHAIR HUDES: Okay, thank you. Sorry,
Commissioner Burch.
COMMISSIONER BURCH: Just a comment. Oh, sorry,
did you raise first?
COMMISSIONER BADAME: Just really quickly. My
comment was related to Chair Hudes and that I find it
difficult that people would spend their money frivolously
paying these fees unless they were a concerned party, an
interested party, in filing an appeal.
CHAIR HUDES: Commissioner Burch.
COMMISSIONER BURCH: I guess along the same
lines, we have some extremely wealthy people in town, and
I'd hate for it to become a tool that only those that are
financially able could use, when perhaps somebody that was
financially more limited has a significant interest.
CHAIR HUDES: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: Well, I will say that I
have seen situations where on housing people from another
side of town who have some project in their mind, not that
project, will file and appeal, and typically those are
people with money or groups that will come together with
money, and those to me are counter-productive kinds of
things, and that's why I still think…
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I think at some point we have to realize we're
going to vote, I guess tonight, on what we're going to
recommend, and it sounds to me like nobody is really happy
with this definition of who can appeal. I don't know that
we have to solve that problem. I've heard good arguments
everywhere. The only argument I would add, and that's
partly because of my experience in law with environmental
laws and that kind of thing and who is an interested party,
it isn't enough to say I have a lot of interests, I read
the paper every day and a bunch of interesting things in
the paper. An interest has got to be more than that, and
typically it's easy to say…
Well, the courts do it all the time. The courts
will throw out a case because the person bringing it did
not have a bona fide interest, and that's why I think an
easy way to handle this, perhaps not solving all problems,
is to say the smaller the project the smaller the impact on
the community, but could be a big impact on the neighbors,
and that's why the concept of distance on a single-family
home makes sense. That doesn't make sense on a project
which has a larger impact, and that's because the community
clearly has an interest in what goes on in the community to
that extent.
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I just throw that out because whatever we vote I
think we're going to vote essentially no on this one
proposition, if I were an interested Council member, I
might try to decide what people were saying, and so if we
hit enough of the things, we're saying maybe they can do
something about it. I don't know that we have to decide
tonight on this particular part of it what they should do,
it's just that we're saying we don't like what you are
doing.
CHAIR HUDES: Yeah. I think it is helpful to pass
the comments on to Council.
COMMISSIONER O'DONNELL: Yes.
CHAIR HUDES: Yes, Commissioner Hanssen.
VICE CHAIR HANSSEN: I was thinking about this
because we had the discussion about the Fence Ordinance at
our last meeting, and to me this is the same thing. It's
one size doesn't fit all. Commissioner Janoff was
mentioning there could legitimately be somebody… So, I'm
thinking about if you're going to try to limit on
residential projects, it should be someone within the Town
of Los Gatos, but as pointed out, people that live in
hillsides that have five-acre properties, you're not going
to have anybody within the 1,000'.
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I just don't think you can put a number on this
thing that is going to apply to every situation. Maybe
there could be some kind of way to make people declare
their interest, but even then, how would you say what was
acceptable or not? I'm having trouble coming up with a way
to box this thing in that wouldn't fall out of place for
somebody in the Town because we have such diverse
geography.
CHAIR HUDES: Yes, Commissioner Badame.
COMMISSIONER BADAME: I would just like to add
that should this be passed by the Planning Commission,
which I don't think it will tonight, the bottom line is you
remove those three requirements for an appeal and really
what you're doing is you're diminishing the validity of the
Planning Commission, and I don't think that's a good thing
for the Town.
CHAIR HUDES: Let's close off anything else on
the interested party. Any other comments on that? The only
thing I would add to that is it seems as though the
hillsides, and not only the size of the building but the
size of the lot, would call for different distances, and
also if a distance were to be proposed, I believe it should
be 1,000' because my understanding is that that's where the
conflict of interest laws are now headed, the 500' that
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we're under now is going to be changing, and so it doesn't
seem to be consistent as that changes as well. So, those
are my comments on that one.
Let's move back to what you were discussing,
Commissioner Badame, which is about the appeals process,
which is actually the first bullet point. Are there other
comments on that? Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I think this is a
fundamental change, and I think originally when these were
put in it was because it was assumed that one of the
functions of the Planning Commission is to take some of the
load off of the Town Council—that was part of the purpose
of the Planning Commission—and that the Planning Commission
would develop a certain amount of expertise because they
could concentrate on essentially those kinds of matters,
whereas the Council deals with a bigger picture. Which is
not to say that they're not also expert in real estate,
it's just that there was some reason for a Planning
Commission.
And what was the reason for the Planning
Commission? It was to help the Council. If you say, on the
other hand, we're going to remove those things and we can
just reverse you willy-nilly or anything, which is kind of
what happens anyway no matter what these three things say,
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fine. It's clearly here the Council can do whatever it
wants to, but as far as I'm concerned, I don't agree that
they should denigrate the position of the Planning
Commission, nor do I think they should increase their
workload by doing that. But since they are the final
analysis, I've said my peace.
CHAIR HUDES: Commissioner Janoff.
COMMISSIONER JANOFF: Yes, I agree. It doesn't
seem to make any sense to take away the criteria that we
should be holding ourselves to as well. The three findings,
it cuts both ways. It keeps us mindful of the importance of
the work that we're doing, and it also is a specific, I
would say, hurdle. Maybe it is a hurdle, but it's a
specific point where a potential appellant would have to
stop and think what did the Planning Commission not do that
it should have done? I think it's a really important step
that an appellant needs to take, and I think it's important
feedback as well, so when the Town takes up one of these
appeals and has to make a determination, it's important
feedback for the Planning Commission too.
So, I think it works in a lot of different ways
for a lot of good reasons, and I'm not in favor of removing
them, however, I am in favor of adding the bullet that the
Policy Committee has recommended as replacing those. I
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personally would benefit from receiving a letter of
explanation, if you will, where we get that feedback from
the Town, so when they've heard an appeal and overturn a
decision that we hear that in writing as they have
suggested in that bullet point, B, I think.
CHAIR HUDES: Commissioner Hanssen.
VICE CHAIR HANSSEN: It was noted in the
attachments. I happened to go to the meeting in July when
they started talking about this and I know that one of the
things that was brought up was the hearing at Alberto Way
and the number of times it went back and forth between the
Planning Commission, so I'm sort of in the same mind as Ms.
Quintana that if you took that and any other number of
appeals that are completed now, that's usually one of the
places where it bounces back and forth because the project
changes by the time it goes from the Planning Commission to
the Town Council, and so if they weren't allowed to do
that, then…
The other issue is about the error or an abuse of
discretion, and what we talked about is one of the places
that it comes down to is we don't have objective standards
in any number of our documents, especially the General
Plan, so even taking the case of Alberto Way and many other
projects, we could deny it based on the General Plan—I
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mean, that's within our purview to do that—but the thing is
the General Plan is general and so there are any number of
objectives in the General Plan and anybody could pick and
choose. The developer can pick these, the Town, our staff,
is going to pick these, and at the end of the day some of
those could be in conflict with each other.
Not that the General Plan is not consistent, it's
just that they're getting at different things, so then when
it goes to Council then it's like well, we don't agree with
you, and at the end of the day they're going to make that
decision because they don't agree with us anyway, but after
thinking about this a lot I do think that making our
applicants have to think about it and come up with a
legitimate reason… And I can't think of anything in the
four-plus years I've been on the Planning Commission that
wouldn't fall into one of those three categories, so I'm
not sure that…
I totally agree with the comments about
diminishing the role of the Planning Commission. I think we
ought to work really hard on the new information thing
though maybe and figuring out a way to make that… Because I
do think that part of the reason we're here is to take land
use off of the table for the Town Council unless an
extraordinary situation that can't possibly be resolved by
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us, so if we did anything it might be to say that the
application cannot be changed between the time that the
Planning Commission and the Town Council hears it.
CHAIR HUDES: Maybe I could just ask a question
of Staff on this because I did want to make some comments
on it, but how prevalent is it for a community to have no
criteria for an appeal of a Planning commission decision?
LYNNE LAMPROS: Well, I know there was some
discussion about that, but the Town Attorney, Rob Schultz,
looked at the Santa Clara County cities and didn't find any
of the Santa Clara County cities that asserted grounds for
reversal by the town or city council.
CHAIR HUDES: Well, I could challenge some of
that. I looked not only at Santa Clara County, I looked at
California. In 15 minutes of Google searching I found 20
that had it. I documented six of them, including Santa Cruz
County where the board of supervisors will not take
jurisdiction of an appeal and grant further review of the
matter unless the board is convinced that there was an
error or abuse of discretion on the part of the commission.
City of Visalia, error abuse. City of Oakland has
a number of criteria, including substantial evidence in the
record and a number of other issues there. City of
Vacaville, error abuse. City of Goleta, error abuse. Corte
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Madera has a number of criteria beyond error or abuse; one
is, "The decision was not supported by the record or facts
presented in the following respects and they have to be
articulated by the appellant."
So, I would really want to know, I think, before
making any change how prevalent is it for there to be no
grounds in California? And from what I could see there are
a lot of places that do require grounds for an appeal.
A couple of other comments on that. I think it's
been raised that there are consequences for the role of the
Planning Commission and somewhat of a waste of time and
effort. But I don't think that's the most important thing.
I think that the most important thing is what
happens to the residents and citizens because in the case
where the appeal can be on any basis you're likely to see
different applications before the Planning Commission and
the Council since new information is not a criterion, and
so in that situation it's not just the time and role of the
Planning Commission, that's all well and good, but it's the
citizens and the residents coming to these hearings and
what are they responding to? Are they responding to the
application that is going to be saying oh, that's not
really it, it's really something else and what you do in
front of the Planning Commission isn't so important?
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So, I'm very concerned about that aspect, which I
think an unintended consequence of making some of those
changes is an erosion of the public's knowledge about what
they should do. They'll be confused about what they're
looking at, and they may be manipulated by developers who
put one thing in front of the Planning Commission and then
something else in front of the Council. So, I have a number
of concerns, as you can tell.
LYNNE LAMPROS: Just to clarify something. Right
now, any interested party can appeal for any reason, so the
change in the standard doesn't literally change the basis
for the appeal, but I agree with you that intangibly it
could have an effect on a person to appeal if they say oh,
the standard of review now by the Town Council is lower.
That's realistically probably going to be a smaller subset
of the appellant population because I don't know that
they're evaluating what the standard of review is, maybe
they are, but right now they can appeal for any reason, so
it's more of an intangible effect in terms of its effect on
a number of appeals.
From a workload concern, the number of appeals of
course would be affected more by a limitation on the
definition of "interested person."
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With regard to the standard of review by the Town
Council, to remove the three conditions does make it easier
for the Town Council to overturn a Planning Commission
decision, but it does not mandate a reversal and it
arguably doesn't change the volume of appeals much, again
depending on how savvy the appealing population is, but
it's still a fair question to ask whether there should be
an absence of any review standard, like error, for Town
Council to look at.
CHAIR HUDES: Thanks. Commissioner O'Donnell.
COMMISSIONER O'DONNELL: If I were a large
developer who understood the system I would not go in with
my most restricted project before the Planning Commission.
I would go in with something and if the Planning Commission
approved that, that's great. But if the Planning Commission
didn't approve it, I would have the other one which I had
in my back pocket that I would now pull out for the Town
Council. I have lost nothing.
Maybe I would have saved a lot of money if the
Planning Commission would have approved it, but I didn't
lose anything, plus I got to hear all the people that
showed up and complained or whatever. That's like an
opening off-Broadway. Now I'm going to Broadway, and now
the Council can hear what the real project is, and those
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people who showed up the first time may not show up a
second time; that's a good thing too for a developer. At
least maybe they'll get confused; that's great a thing too,
so I don't see some virtue of this, and if that doesn't
increase…
It doesn't have to be an absolute number
increase, but what I would be concerned with is people who
have enough money and enough savvy to understand the system
and are regularly before planning commissions and councils
are not stupid, and if we invite them to change their
projects, then it's our fault. And if we denigrate the
Planning Commission, then they know we're not very
important because it's ab initio basically when it's in
front of the Town Council. If that's a good idea for this
community, I fail to see that.
COMMISSIONER JANOFF: Can you translate ab
initio?
COMMISSIONER O'DONNELL: A brand new thing. So,
ab inito means you get to do it all over again and you can
throw in some other stuff. You don't speak Latin?
COMMISSIONER JANOFF: No, I don't.
CHAIR HUDES: Commissioner Hanssen.
VICE CHAIR HANSSEN: That was great research, by
the way, Chair Hudes.
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I actually think if we were going to remove
anything, the one to take out would be the new information
because they should be presenting the same project to
Council that they're presenting to us. That is the single,
sole reason for the back and forth, and so maybe there
should only be those two criteria, the error and abuse,
which is usually a disagreement over the interpretation of
the General Plan, and the other one.
The policy thing I thought always made sense
because we can't have the same view as Council, we're land
use only, they have everything else, and so there are
things that come across our…that we can't evaluate that, we
can't use that in our decision making because it's not a
land use code or something like that. So, I'd say if we are
going this direction, just get rid of new information.
CHAIR HUDES: Commissioner Janoff.
COMMISSIONER JANOFF: I would tend to agree,
except that when I read new information, I don't read a new
design, and I think that's where it's been used by people
appealing the decisions. So, I guess I could envision that
between the hearing of the Planning Commission and
something else in that ten-day appeal period new
legislation happens to drop down, that's the kind of new
information. I read this as requiring, not a new design,
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and I think if we respected that and limited that, somehow
saying it has to be essentially the same project, the same
set of drawings, there's no rev to it, that's what I would
be looking for.
CHAIR HUDES: Okay. Any comments on the third
bullet, which was to provide an appeal process for Minor
Residential Development Application decisions? I believe we
had a case like this recently where there was a little
confusion about whether the person appearing before us was
the appellant or the applicant, and maybe we could get a
little background on that and we can close that one off as
well.
SALLY ZARNOWITZ: The question on that is whether
that was what that case was, or…
CHAIR HUDES: Well, what is that and any further
insight on why that one should be adopted.
SALLY ZARNOWITZ: Well, I guess as it stands
right now there is no appeal process for the Minor
Residential Application, not from the director's decision.
The application comes in and then there's whether or not it
can be resolved with the complaining or objecting neighbor,
and if it can't be, then it gets bumped up to Planning
Commission and the applicant pays for the Planning
Commission fees to bring it before you, so it's a different
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kind of a process than, say, an Architecture and Site that
goes to Development Review Committee, gets approved or
denied, and then the applicant can appeal it, or the
neighbor, whoever, the interested party, can appeal it, so
there really is no appeal process right now. The idea was
that it would be worked out, and if not worked out the
applicant would actually pay to come before Planning
Commission.
CHAIR HUDES: Any comments on that item?
Commissioner Janoff.
COMMISSIONER JANOFF: I may sound appeal happy,
but it seems that it would be reasonable that you would
allow an appeal if someone feels strongly. I guess it just
depends on how many layers of appeal would be permitted
because you don't necessarily want a Minor Res to go all
the way to Town Council, but I'm in favor of some appeal.
CHAIR HUDES: Other comments? Commissioner
Badame.
COMMISSIONER BADAME: I would just like to put it
on record that I am reinforcing Vice Chair Hanssen's
comments regarding removing the new information criteria as
one of the three for an appeal basis. This goes back to a
study session that we had a couple of years ago, the
Planning Commission with the Town Council, where we
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actually studied this very item, and one of the things that
was brought up was that part of the back and forth is the
applicant. It's not us, it's not the Council, it's the
applicant who hedges their bets, games the system, to get a
more favorable outcome with their project with Council.
COMMISSIONER O'DONNELL: (Inaudible) come up with
essentially a motion on these three items? Is it three?
CHAIR HUDES: We're to forward a recommendation
to the Council for approval.
COMMISSIONER O'DONNELL: Right, but to finish
this conversation before we all fall asleep…
CHAIR HUDES: Yes.
COMMISSIONER O'DONNELL: …we need something,
right?
CHAIR HUDES: Yes.
COMMISSIONER O'DONNELL: And that's probably a
motion, right?
CHAIR HUDES: Yes, it is.
LYNNE LAMPROS: If I could weigh in really
quickly. With regard to new info you could request a
definition, that it has to be the same plan, but new info
has to be unrelated to the plan, like legislation or
something like that, when you're framing your
recommendations.
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CHAIR HUDES: Okay. Commissioner Hanssen.
VICE CHAIR HANSSEN: I was just going to say I
would be fine with leaving new information as long as it
was very specific on what it cannot be, maybe like how we
have do this and don't do that in the Hillside Design
Guidelines, this is an example of new information, this
isn't, and it cannot be the parameters of the project.
COMMISSIONER O'DONNELL: Well, even the term "new
information" is not foreign to courts because you raise on
appeal and you raise new information, and the courts deal
with that all the time, and they a lot of times say that is
not new information. We're all saying the same thing: Bring
the same project to the Council that you brought to us,
otherwise it's not an appeal, it's a brand new filing,
really. So, we're saying that's the way it should be; that
is not the way it presently is.
Anyway, I think somebody wants to make a motion,
but what I understand is on…
COMMISSIONER JANOFF: I'm going to make a motion.
COMMISSIONER O'DONNELL: Go ahead. Great.
COMMISSIONER JANOFF: You'll help me out if the
language isn't quite right. I'll make a motion. I've got to
get back to the three bullets, sorry. Is this going to the
Policy Committee or the Town Council?
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SALLY ZARNOWITZ: Council.
I move that the Town Council not remove the
requirement to make one of three findings to modify or
reverse the decision of the Planning Commission on any
appeal.
And recommend modifying the second criteria that
says no new information, and I would suggest it's, "New
information, using the same drawing package as was
presented to the Planning Commission," but just make sure
that there's an insert there that says that's the same
project, no design changes.
The second one on bifurcating the Residential and
Commercial appeal process, I think what we heard is that we
don't agree that it should be limited, but there may be a
discussion around the… Bifurcation of the process is fine,
but the question of an interested party with regard to a
Residential appeal requires some additional discussion.
Perhaps the distance is too limiting as you consider all of
the circumstances that the Town provides.
And the third bullet, I would recommend that we
do provide an appeal process for the Minor Residential
Development Application decisions.
COMMISSIONER O'DONNELL: I'll second that.
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CHAIR HUDES: Okay, we have a second. Any
comments on it?
I would just add quick comment and that is this
is a challenging issue to come before the Planning
Commission because it's about ourselves, and so it can
appear to be self-serving, and so I think as Council
evaluates this it's really important to pay attention not
to the impacts on the Planning Commission, but to the
impacts on the Town and residents who show up for hearings
and what their expectations are of the commissions that are
appointed to do a particular job.
If the Council reaches the conclusion that it's
unworkable, then it makes sense not to have a Planning
Commission. Why spend the money? Why spend the effort? Why
mislead Town residents that something might happen in that
case? And I think it's particularly an issue as that which
we saw two items ago, which had to do with the state
imposing requirements on the Town. I think we need the eyes
and ears of the citizens who are involved, whether they're
on the Planning Commission or they show up for hearings, as
this trend continues, and we can have creative ways for the
Town to retain its character and its traditions of
excellence. So, I would encourage some thoughts along those
lines as well.
LOS GATOS PLANNING COMMISSION 3/27/2019
Item #5, Town Code Amendment – Land Use Appeal
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So, we need to take a vote, right? All those in
favor? Opposed? Passes unanimously. Thank you. I assume
there are no appeal rights, since it's just a
recommendation.
SALLY ZARNOWITZ: That's correct.
CHAIR HUDES: That would be a difficult one.