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Attachment 2 - March 27, 2019 Planning Commission Verbatim MinutesLOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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, LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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… LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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… LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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'. LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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, LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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? LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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." LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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, LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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? LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 3/27/2019 Item #5, Town Code Amendment – Land Use Appeal 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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.