Attachment 6 - September 13, 20017 Planning Commission Verbatim Minutes
LOS GATOS PLANNING COMMISSION 9/13/2017
Item #2, Town Code Amendment A-17-002,
Fences in Hillside Area
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A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
D. Michael Kane, Vice Chair
Mary Badame
Kendra Burch
Melanie Hanssen
Kathryn Janoff
Town Manager: Laurel Prevetti
Community Development
Director:
Joel Paulson
Town Attorney: Robert Schultz
Transcribed by: Vicki L. Blandin
(510) 337-1558
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P R O C E E D I N G S:
VICE CHAIR KANE: We move on now to the public
hearing portion of our agenda and consider the items on the
agenda. Tonight we have one item; it is Agenda Item 2. This
is Town Code Amendment A-17-002. Consider amendments to
Chapter 29 (Zoning Regulations) of the Town Code regarding
fences, hedges, and walls; and includes new regulations and
requirements for fences, hedges, and walls in the Hillside
Area.
Mr. Mullin, will you give us a staff report
tonight?
JOEL PAULSON: Excuse, Vice Chair Kane. Prior to
Mr. Mullin giving the report, I believe Commissioner Hudes
has something he’d like to say.
VICE CHAIR KANE: Second time we’ve done that.
Commissioner Hudes.
COMMISSIONER HUDES: Thank you. I will be
recusing myself from this item in that I own a property in
the Hillside Area and I believe that the way the
recommendation is currently drafted, it would cause an
economic impact, and I would prefer not to participate in
this matter.
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VICE CHAIR KANE: I’m looking for the notes that
were provided verbatim in the last meeting regarding such a
recusal. Mr. Paulson or Ms. Lampros, do you think we need
to review the technicalities of this recusal?
JOEL PAULSON: We do not. Mr. Hudes has stated a
perfectly reasonable reason for why he’s recusing himself,
and we should let him do so.
VICE CHAIR KANE: And the Town Attorney, Mr.
Schultz, gave us long chapter and verse, if anybody wants
to refer back to that from the first meeting as to why this
is an appropriate move. Why don’t you go home? We only have
one item.
COMMISSIONER HUDES: I’ll see you in a couple of
weeks.
VICE CHAIR KANE: All right. Commissioner
Hanssen.
COMMISSIONER HANSSEN: I would prefer if we could
restate for the public why it is that people that live in
the hillsides that are sitting on the Planning Commission
are able to participate in the hearing if they choose not
to recuse themselves.
VICE CHAIR KANE: If you don’t mind, I could read
what he said (inaudible), the guidance we received last
time from the Town Attorney, and I’m quoting him from the
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transcript, “Let me make sure for the public that they
understand the law in this area. The Fair Political
Practice Act is a very complicated and often revised law,
but what it does say is it has certain conflict of
interests involving your real property and your business
assets. In this case, there could very well be a
presumption that there could be an economic effect on your
property, and therefore usually that would require a
stepping down and not hearing the matter. But there is
what’s called the general public exception, and what that
says is that if you are a public official and you’re
hearing an item that might affect your property and the
value of it, but you’re in the same position as a
significant portion of the community and you’re going to be
similarly affected as everybody else, then you’re able to
hear it.
That means there is no conflict of interest under
the state law, but that being said, there’s still a
perception, and I think that’s what Commissioner Hudes was
talking about. Even though there might not be a conflict
under state law, there could be a perception that he
doesn’t feel comfortable about it. But there is no
violation of the law if he were to hear this, but that’s
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okay for him to decide when you want to step down and when
you don’t.”
Counselor, is that essentially correct?
LYNN LAMPROS: Yes, that is correct.
VICE CHAIR KANE: Commissioner Janoff.
COMMISSIONER JANOFF: Just to clarify, I also
reside on a hillside property, and choose to participate in
the discussion tonight.
VICE CHAIR KANE: Commissioner Hansson.
COMMISSIONER HANSSEN: And like Commissioner
Janoff, I also reside in the Hillside Residential Zone, and
I’ve chosen to participate in this hearing.
VICE CHAIR KANE: Anyone else. Commissioner
Badame, you want to join us?
CHAIR BADAME: Sure. I don’t live in the
hillside, but I choose to participate tonight. I hope
that’s okay.
VICE CHAIR KANE: So back to Mr. Mullin. Do you
have a Staff Report for us, sir?
SEAN MULLIN: Thank you. Good evening,
Commissioners. Before you tonight is continued
consideration of amendments to Chapter 29 of the Town Code
regarding fences, hedges, and walls.
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Item #2, Town Code Amendment A-17-002,
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To back up to why we’re here, in January 2017 the
Town Council held a study session to identify strategic
priorities for the fiscal year 2017-2019. Dave Weissman
requested that an ordinance amendment regarding fences in
the Hillside Areas of the Town be set as a strategic
priority, and at that study session four Councilmembers
identified hillside fences as a strategic priority and
directed Staff to study the issue and bring it back through
the process.
This item came before the Commission on July 26th
where it was introduced and public comment was received.
The Commission continued the item and provided Staff with
direction to address questions and requests by some
Commissioners. Staff’s response to these requests is
included on pages 1 and 2 of the Staff Report.
The Staff Report also includes a refined working
draft of the Draft Ordinance as Exhibit 8, and includes
revisions and refinements marked in red and underlined
text.
An addendum and Desk Item has been provided,
which include verbatim minutes from the previous meeting
and additional public comment received by Staff after
publishing the Staff Report.
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Staff recommends that the Planning Commission
review the Draft Ordinance; discuss the topics of concern
raised by Staff, and forward the Draft Ordinance with any
comments or recommended changes to the Town Council with a
recommended recommendation for adoption.
This concludes Staff’s presentation of the Staff
Report, and we’re here to answer any questions.
VICE CHAIR KANE: Are there questions for Staff?
Seeing none, thank you.
I’m going to open the public portion of the
public hearing and begin calling up speakers. We have quite
a number of speakers, so I’ll call you up three at a time,
and speakers two and three please take a seat near the
microphone so you’re ready to go when the other speaker is
done. Again, you’ll have three minutes to address us. The
yellow light does not mean stop; it means you have 30
seconds left. I’m calling Albert Kurkchubasche. I’m sorry;
I’m calling three people; I got tongue-tied. Dick Clift and
Jim Vergara.
ALBERT KURKCHUBASCHE: Good evening, my name is
Albert Kurkchubasche; I’m the property owner of 165 Happy
Acres Road in Los Gatos. I live in the hills.
When fencing can be demonstrated to impact the
movements of animals on a specific site we can apply
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specific rules and work with the Town rather than
establishing or imposing guidelines that impact everyone in
the hillside.
We do have a 1.5-acre vineyard. When we applied
for the Conditional Use Permit, we worked with the Town and
with the neighbors to come up with a fencing solution that
would protect the plants, the vines, while allowing for
movement of wildlife and made it aesthetic looking.
On the southern side and the western side we
erected deer fencing. We used the topography of the land as
well as the plantation to minimize the visual impact. On
the northern side we provided a corridor for wildlife as
requested by the neighbors, so we have movement of wildlife
surrounding the properties completely. On the eastern side
we put up a split-rail fence with a neighbor in order to
kind of have an open look. We modified that split-rail
fence to include netting; the netting is almost invisible.
So by working with the Town and our neighbors we
came up with a solution that both minimized the visual
impact, allowed wildlife passage, and provided protection
to the vines. I think the existing guidelines are
sufficient, and it’s probably best that we address fencing
on a case-by-case basis. Just arbitrary rules are not
necessarily good, because they may have some aesthetic…
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Let’s say, if I had to build a fence around a certain
perimeter, it would have been visible to the neighbors, so
that’s something to think about. Every situation is
different. Thank you.
VICE CHAIR KANE: Let’s see if there are any
questions? Questions for the speaker? Commissioner Janoff.
COMMISSIONER JANOFF: Thank you. Could you tell
me how tall your deer fence is?
ALBERT KURKCHUBASCHE: It’s 7’.
COMMISSIONER JANOFF: Thank you.
VICE CHAIR KANE: Any other questions? Let me
make sure I understand. These fences are up already, right?
ALBERT KURKCHUBASCHE: They are up already.
VICE CHAIR KANE: And that implies they’re in
compliance with the code?
ALBERT KURKCHUBASCHE: Yeah, we applied for a
Conditional Use Permit at that time, and we worked with the
Town as well as our neighbors.
VICE CHAIR KANE: And the netting you mentioned,
that’s also in compliance?
ALBERT KURKCHUBASCHE: Probably not, I would
imagine. We indicated deer fencing all around, but then we
put the netting on that one side.
VICE CHAIR KANE: Thank you. Jim Vergara.
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JIM VERGARA: Good evening, my name is Jim
Vergara; I live at 1531 Suview Drive along with my wife and
my two small daughters.
When I decided to buy my property a couple of
years ago it was because we loved the setting, which has
trees, wildlife, and vegetation that usually comes along
with hillside property. While it’s enjoyable to see the
deer and the wildlife, as a property owner I don’t feel
that we should be dictated on how we can or should protect
our property while considering biodiversity.
It appears to me that the property size was not
even taken into consideration when this ordinance was put
into place. In my case, I have 2.5 acres, and I’m being
treated… My fencing, the 30’ are just the same as if
somebody has a 25,000 square foot lot. That’s part of the
reason why I bought a bigger piece of property, so I could
have more access and enjoy my property a little more.
But in this case, by this 30’ limitation, it
isolates my kids’ playground structure/picnic area that
we’ve created for them to play in. With this ordinance, our
children will be exposed to coyotes, mountain lions,
bobcats, deer, and different wildlife, because my
playground is about 110’ away from my residence.
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If forced to adhere to this proposed ordinance,
this would severely limit the use of our property and
adversely impact property values. The larger the property,
the more severe the financial impact may be.
Deer also have caused a lot of damage on our
expensive landscaping planning, and as property owners we
should have the right to protect our investments.
I ask the Commission to reconsider other
solutions, such as property owners providing a corridor or
some type of pathway between the properties, however large
that may be, according to some appropriate studies.
VICE CHAIR KANE: Thank you. Questions?
Commissioner Burch.
COMMISSIONER BURCH: Do you have fencing
currently around the children’s play area?
JIM VERGARA: No, but I was about to put one in,
because of that problem. I just moved there not too long
ago.
COMMISSIONER BURCH: Okay, thank you.
VICE CHAIR KANE: Sir, you said Sobey Drive, yes?
JIM VERGARA: Suview Drive.
VICE CHAIR KANE: Suview Drive. Thank you. Dick
Clift followed by Julie Donnelly, Peter Donnelly, and Vadim
Kurland. Mr. Clift.
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DICK CLIFT: Yes, my name is Dick Clift; I live
at 17670 Tourney Road in Los Gatos. I just wanted to speak
to the hillside concept here. These rules are pretty
restrictive. I think most people are entitled to a
reasonable use of their property, and these rules, I’m only
going to speak to a couple of things on them, but they just
seemed generally over-restrictive.
One thing that seems to be a concern is the
migration of animals back and forth between properties. I
think rather than this 30’, a better solution to consider
would be that if everybody put their fence 5-10’ back from
their property line, then that would leave somewhere
between a 10-20’ corridor around all of the properties. I
know it doesn’t meet your guidelines as far as small
animals, but small animals get around. They either go over
the fence or under the fence, or they always find a way to
get there, but that people would still be able to maintain
their property with nice landscaping and keep the deer out,
and the deer and some of the larger animals could move
along very easily.
A 42” fence is a pretty small fence, and a
hillside development that doesn’t really do much. The 6’
standard of fencing that’s been used for many, many years
all over the country has been a good one; it’s not abusive.
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The other thing was your comments in here about
not wanting a chain-link fence. For the hillside, it’s
probably the best fence you could put up. First of all, it’
durable, and if you put in a black chain-link fence with
black fabric, you don’t even notice it’s there, especially
when it’s up against the background of the trees and that
sort of stuff, so it’s the least offensive fence that you
could put up, but yet it’s not allowed according to these
conditions.
I think that’s about all I have to say; too many
things to talk about.
And the same with hedges. People shouldn’t be
restricted to that low of a hedge. I mean if somebody wants
some privacy at their home, I can’t see any reason why a 6’
hedge wouldn’t be a problem. That’s all I have to say.
Thanks for listening to me.
VICE CHAIR KANE: Thank you. Questions for Mr.
Clift? Commissioner Hanssen.
COMMISSIONER HANSSEN: I was just curious, do you
currently have a fence on your property?
DICK CLIFT: Yes, my property is all fenced in,
so I would fall into the portion that…nothing new…
COMMISSIONER HANSSEN: Unless you need to make
changes.
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DICK CLIFT: …but you’d have regulations. If you
have to take the fence down, then you’ve got to do these
certain things, too. But I just wanted to speak for other
people as a general concept to the hillside program that
you’re working on.
COMMISSIONER HANSSEN: Thank you.
VICE CHAIR KANE: Thank you, sir. Julie Donnelly.
JULIE DONNELLY: Good evening, and thank you for
your time. My name is Julie Donnelly and I live at 15305
Suview Drive. I’ve been a long-term resident of Los Gatos
and fairly recently went through the process of building a
new home in the Hillside Area of Town. As part of that
process we spent a lot of time ensuring our home, which
included our primary residence, garages, guesthouse, and
surrounding hardscape and landscape development, met all of
the Hillside Standards and Guidelines.
While this was challenging—and by the way, we’re
still married—I understand why it was necessary, and I
think that people would appreciate the considerate design
and the quality of the end product. After having gone
through all of the effort to design our home, we ought to
have the right to use it and feel safe using it, whether it
be to go to the equipment pad, which was needed for the
multiple water tanks required by the Town, the dog run for
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our three animals, the outdoor entertainment area, or go to
our storage spaces, none of which are within 30’ from our
main residence. We ought to have the right to secure those
spaces from wild animals.
We regularly see coyote on our property, and have
also seen deer carcasses with clear evidence of attack by
another animal as close as 100’ from our home. While our
kids have all grown up, we will no doubt have grandkids one
day and want to be able to provide them with a safe
environment and not feel hemmed in to a very small portion
of our 4.3-acre parcel.
We love the deer, and we designed our home to
allow the deer and other animals free passage across our
property, which they take advantage of every day. Any
fencing that we would propose to be installed would meet
the current Hillside Standards and Guidelines and would not
interfere with the free passage of wildlife across our
property.
I respectfully ask the Commission not to approve
an ordinance that is arbitrarily applied to any home in the
hillside regardless of whether or not a problem exists, and
ask that they work toward a needs-based ordinance to ensure
free passage of wildlife across properties where it could
be a problem. Thank you.
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VICE CHAIR KANE: Thank you. Questions for the
speaker? Seeing none, thank you very much. Peter Donnelly.
PETER DONNELLY: Good evening, and yes, we’re
related. My name is Peter Donnelly; I also live at 15305
Suview Drive. Been here for many years, and obviously went
through building a house in the Hillside Area.
As all of you know, in February 2017 the Town
Council identified 16 ordinance priorities to be looked at.
One of these, number 7, was the Hillside Fence Ordinance,
and the objective for that review, and I quote, was to,
“Make certain that fences do not interfere with the
wildlife corridors, and those fences do not impede the
movement of wildlife.”
This objective could be achieved in many ways,
but as I read through the proposed ordinance it’s clear a
very lazy approach was taken and selected to achieve the
stated objective. Instead of trying to determine where the
problems exist and how to rectify things, a baseline
assumption was made that the problem exists everywhere, and
that every property regardless of circumstances should have
the same rules enforced.
This is akin to setting a 25 mile an hour speed
limit on all of the roads in the United States simply
because certain roads warrant a speed limit. Can you
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imaging traveling along the freeway at 25 miles an hour?
It’s nuts, isn’t it? It’s not more nuts than having people
with two, four, five, or ten acres of property being hemmed
into 30’ within their primary residence, and that’s not
including any other things around our primary residence as
it’s written right now.
I respectfully ask the Commission to look for a
solution that considers the circumstances of each
individual property and enforces relevant rules to that
property in a similar way you do with the FAR, which looks
at the size of a property and determines how big of a house
you can put on that property. Seems very reasonable. Think
of a rule, think of a proposal, that follows the same
approach.
Or come up with a simple rule that says you must
allow a 20’ corridor, or a 30’ corridor, or a 40’ corridor,
in order for wildlife to pass through your property. That’s
a simple rule.
Another option for the Town to consider is to
identify wildlife corridors that either exist today or that
we wish to try to promote, and then establish rules around
future developments to ensure those corridors are
established or maintained. Think of it like a trail system
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for the animals. If we can do it for people, why can’t we
do it for the animals?
We love having wildlife on our property, but we
also enjoy using our property. All of these approaches that
I’ve suggested are needs-based versus the one that’s been
presented, which is arbitrary, punitive, and unnecessary,
and I suggest that you not approve it. Thank you for your
time.
VICE CHAIR KANE: Let me see if there are any
questions. I have a question. Regarding your analogy of
doing 25 on the freeway, as I understand all of the
provisions that are coming to us, whatever is there now is
grandfathered.
PETER DONNELLY: But if there’s damage to the
fence, you have to comply with the rules as they’ve been
stated.
VICE CHAIR KANE: So if your fence is damaged,
you have to stop from 85 and go to 25.
PETER DONNELLY: Absolutely. And for those people
who are still developing their property, we only moved into
our house a little over a year ago, for those people who
built houses, you know it takes a long time to finish a
project. We had plans to put up fencing. They were
discussed as part and parcel of our initial proposal. This
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rule would basically say well, sorry, you can’t do them
anymore. That’s a problem.
VICE CHAIR KANE: Thank you.
PETER DONNELLY: Thank you for your time.
VICE CHAIR KANE: Thank you. Cathy Field, Tanya
Kurland, and David Klinger. Mr. Klinger? Jeff Casale. Your
name and address, sir.
VADIM KURLAND: My name is Vadim Kurland; I live
in 15275 Suview Drive. We have purchased the property
recently and built a house on it. We are back-to-back
neighbors with the Donnellys.
Before we could purchase the property our seller,
Peter Donnelly, had submitted the development application
to the Town of Los Gatos Community Development Department.
This application lists an environmental assessment form as
one of the requested supporting documents, which in turn
includes evaluation of the environmental impacts.
One of the issues listed and validated by this
document seems particularly relevant to the newly proposed
ordinance. The issue is titled, and I quote, “Would the
project interfere substantially with the movement of any
native resident or migratory fish or wildlife species, or
with established native residents or migratory wildlife
corridors, or impede the use of native wildlife nursery
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sites.” The determination was made in this study and it was
no impact. It’s my understanding that the evaluation of
environmental impacts and its findings were found
satisfactory by the Community Development Department, since
the project was given the green light to proceed. This
happened in 2007.
The definition of the issue I just quoted appears
to match or be very close to the description of the problem
that the proposed ordinance is trying to address. The house
has been built according to the plans, and nothing has
changed since then, so this would seem to indicate that the
problem doesn’t seem to exist, at least for our property.
In addition to that, when we purchased this land
we have agreed to a large number of easements. Some of them
are pretty substantial and were designed specifically to
protect the wildlife. For example, we have an area of
almost 7 acres that has been dedicated to scenic easement,
and another area that has been dedicated to public access
and designated trail easement.
In addition to these recorded easements, we
arranged for the corridor for the deer to migrate across
our property, which they do every day, and we agreed to
build a watering hole for the deer. As you can see, we have
already gone to considerable lengths to accommodate and
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protect the wildlife on and around our property. Our
neighbors, and the Donnellys in particular, have done the
same, and some of the projects we actually have done
together.
So I can see how the ordinance similar to the
proposed one may be useful in some situations, but I think
the goal can be achieved better by stating specific
circumstances when it is needed, rather than creating a
blanket policy that will require homeowners who do not need
to apply to seek exemptions. A blanket policy like this
creates unnecessary red tape and burdens on many property
owners where adequate passage for the wildlife already
exists. That’s all.
VICE CHAIR KANE: Thank you. Questions for the
speaker? Thank you very much. Cathy Field.
CATHY FIELD: I’m Cathy Field; my family and I
live at 15350 Suview Drive in Los Gatos. We’ve lived there
for five years, and moved to Los Gatos in 2008.
My thought on this subject deals more with the
cost of housing that’s very high in Los Gatos, and that
every time you place new regulations or new ordinances, it
increases the cost of building; not just the cost of the
permit, but also the cost of having somebody do designs,
someone submit that to the Town, then the Town has to send
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an inspector, and it goes on and on so that the increased
inspection requirements then cause property taxes to
increase, because they need to pay for the added work that
the Town has to do in order to make sure the ordinances are
followed.
Additionally, Los Gatos homeowners would be at a
disadvantage if the regulatory burden in our town were
greater than imposed in other towns, if other towns do not
have the same types of ordinances. Everybody has hillsides.
And then putting yet another hoop for homeowners
to jump through to improve their property will discourage
some people from making necessary improvements. If their
fence falls down, they may just leave it sort of toppled
over, or half up and half down. Doesn’t look very good.
Finally, and most importantly to me, is that all
residents deserve the freedom to improve their property as
they see fit and not be burdened by costly regulation.
Thank you.
VICE CHAIR KANE: Let me see if there are any
questions. Any questions for the speaker? I have a
question. Are you familiar with the Town’s intent, and it’s
achieved consistently, that the projects that they
undertake for the citizens are normally paid for by the
citizens on a pay-as-you-go basis, and a neutral outcome
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that the fee for the service covers the expense of the
service, so there might not be an increase in taxes.
CATHY FIELD: I believe that could be true, but I
think that eventually, if you add enough regulations,
enough ordinances, you have to have people checking. Are
people building these fences? Are they doing the right
things? Do you have someone drive out there to check it? I
just feel it’s usually not without some cost to
(inaudible).
VICE CHAIR KANE: I understand. You could be
right. Thank you. Jeff Casale.
JEFF CASALE: Hello, I’m Jeff Casale; I live at
17400 Phillips Avenue. Let me start by saying I didn’t
expect to be back in front of this group so soon; I was
here about a month ago for a project.
First and foremost, we purchased in the
hillsides, because we love the environment, we love the
wildlife, and the freedom and the fact that you go there at
night and you feel like you’re in the mountains. So I think
there is a very strong desire to make sure that we can
continue that sort of environment.
I have a couple of real challenges with this. One
is a broader challenge where I’ve become more and more
educated with the process to put together regulations in
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the Town, and it can move pretty quickly, especially if you
travel during the week and it’s hard to make these
meetings, and you’ve got small children. There’s a lot
going on here in terms of what can happen for these
regulations to be passed.
I wanted to make sure I came here tonight for a
couple of reasons. The first one is I think we should be
cautious when we add these regulations into the Town
because of the unintended consequences, both for the people
residing here and the people that might move here and have
no idea that when they purchase their house they’re picking
up all of these other moving targets that have been added.
If somebody goes and buys a house next month, how are they
going to know that this fencing was passed and this was
part of it, and so we’re starting to create a lot of
regulations that create a lot of complexity and a lot of
surprises for people.
But specifically, getting to the animals. We have
a 4-acre property. We probably have about a little over a
half-acre that’s fenced. There are very nice animal
corridors, you see them all the time; they move pretty
freely between all the properties.
I come from the east coast. For me, I love seeing
the deer. I don’t want them right up against the property.
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Lyme disease is a major issue. A lot of my fiends I grew up
with have contracted Lyme disease. You don’t need to read
peer review articles to know that wild deer getting closer
and closer to houses and small children is going to
increase the probability of ticks, and a preponderance of
ticks carry Lyme disease.
If we want to be able to have an environment
where the intent is the animals can move freely, I think
for the vast majority of properties that’s happening today,
but I’m sure there are some that it’s not and I think the
gentleman earlier that commented on a needs-based approach
where we have that, I think that’s absolutely the way we
should look at it.
If I just think of my situation, I just went
through a two-year process for an approval of an extensive
change to the back. This would pretty much modify all the
plans that we have in terms of the fencing and the way it
would be impacted, because we have existing fencing. As you
know from the rainy season, the storms, I’ve already had
three trees fall on the fences that I have, so it’s going
to be virtually impossible to pass this and not end up in a
situation where people are constantly trying to figure out
how do I repair my fences and what’s the rule?
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VICE CHAIR KANE: Thank you, Mr. Casale. Thank
you very much. Tanya Kurland.
TANYA KURLAND: Good evening, my name is Tanya
Kurland and I live at 15275 Suview Drive. I would like to
further address the issue of Lyme disease and how lowering
the fences would affect people’s health.
I would like to bring your attention to the
University of California Berkeley study that was done in
2011 and showed that areas where the fence limits have been
removed saw a sequential drop in the population of the
ticks, which is actually controversial because previously
it was thought that fence limits kind of cleared ticks from
the disease that would be beneficial, increasing of limits
would be beneficial, but no, the study clearly showed that
even removal of this beneficial host reduced the number of
infected ticks. So if you cannot completely prevent
(inaudible) access to our back yard, but it doesn’t mean
that this should increase the number of ticks, but lowering
fences and inviting deer and big animals. If you look at
the size of the animals it’s kind of obvious that a herd of
deer carry so many more ticks than small animals, isn’t it?
So infected adult ticks that feed off deer have
been discovered in Santa Clara County, right? You know
where you live.
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So what do experts advise? There is a section of
the Bay Area Lyme Foundation website named “Create a Tick
Safe Zone.” They advise, “Deer are important to ticks. They
help ticks to produce by acting as (inaudible) bacteria.
Don’t plant things that attract deer, and consider fencing
to keep them out of your yard.”
I also would like to bring your attention to
Chapter 30, Neighborhood Preservation, of Town Code Section
3010.010, Purpose, it says, “This chapter is adopted to
promote the health, safety, and welfare of the residents of
the Town of Los Gatos, and in enhancing and preserving the
quality of life and property values in the town.” And I
think that the proposed changes will decrease the hillside
property value and increase the odds of people getting sick
from Lyme disease. Therefore, I believe that that proposal
contradicts the very purpose of the Town Code, and I ask
the Commission to deny it. Thank you very much.
VICE CHAIR KANE: Thank you very much. Questions
for the speaker? Thank you. Ali LeClerc, David Foley,
Katrina Brinkman.
ALI LeCLERC: Hi, my name is Ali LeClerc and I am
a resident at 15951 Quail Hill Road, which is a hillside
property.
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Just a bit of background. I was lucky enough to
grow up in Los Gatos, started at Blossom Hill School all
the way through Los Gatos High. A big part of my childhood
was spent outdoors at my parent’s house, which was a big
contributor to my athletic career here; it got me into Yale
University, where I graduated a few years ago. Just three
months ago my husband and I bought a house in Los Gatos on
the hillside, and now as we start our own family here I’d
like for our children to have a similar experience to what
I had growing up here in Los Gatos, and I fear with this
proposed amendment, they won’t.
Besides the obvious points that many people here
have made today around the impact on property values, the
damage wildlife can wreak on expensive landscaping, and the
cost of making any changes to my own back yard, I guess I’m
slightly bothered by the attitude around how this will
really affect the safety and the health of not only
residents, but of children here in Los Gatos. What kind of
devastates me is that we’re considering the protection of
wildlife as more important than the protection of children,
and obviously with one on the way, this is very high on my
mind and a big priority for me. So the fact that I might
have to worry about leaving my kids alone in the back yard
saddens me. I think they won’t be safe. It saddens me to
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think about the potential health concerns that have been
brought up around Lyme disease, around the fact that
wildlife will be in very close proximity to my children,
these are all things that worry me.
So with that, I sincerely hope that as this
proposal is concerned that you take into account the
ramifications on the quality of life that this will have on
residents of Los Gatos and around children. Thanks.
VICE CHAIR KANE: Thank you very much. Questions?
We have a question. Commissioner Hanssen.
COMMISSIONER HANSSEN: Do you have a fence at
your property now?
ALI LeCLERC: We do. Our issue is that we just
moved three months ago and our back yard is dirt, so if
we’re going to make any changes at all, this will
significantly impact those changes, if we add any play
structures, et cetera.
COMMISSIONER HANSSEN: And you’d want to put
fencing around that?
ALI LeCLERC: Exactly.
COMMISSIONER HANSSEN: Thank you.
VICE CHAIR KANE: Thank you. Mr. Foley.
DAVID FOLEY: My name is David Foley; I live at
311 Santa Rosa Drive. We’ve been there since 2004, and like
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many other speakers here tonight, we really enjoy the
wildlife.
Our property does have a fence around it right
now, and when I read this proposal it says that the goal is
to not eliminate migratory paths for the animals, and as
was mentioned earlier, I think a much better solution would
be to make sure that there’s a corridor between properties
as opposed to fencing us in 30’ from our property.
Essentially what that would do is cut off everything but
our most basic yard; all of our entertainment areas, our
barbecue space, the play area for my son, all of those
areas would have to be outside of a fence.
And as I read the proposal, any changes were
made, you would have to then pull down the fence that’s
there, and I don’t think that’s appropriate.
I also believe that there is a lot of health and
safety concern. We have a lot of deer; we have a lot of
bobcats that run along our fence line. We see them along
the fence line all the time, and we’re happy that they’re
that far out. We don’t want them much closer to our house.
So I would ask that you consider all the feedback
that you’ve gotten tonight and not approve this.
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VICE CHAIR KANE: Let’s see if there are any
questions. I have one. About a minute ago you said if the
fence fell down or came down, you’d have to…
DAVID FOLEY: We’d have to adhere to these new
regulations, and if we wanted to change that part of the
fence we’re now going to have a fence that’s one height at
one place and half the height in another place.
VICE CHAIR KANE: Let me seek clarification. Is
that accurate?
JOEL PAULSON: If it’s greater than 50% of that
fence segment, then yes, as it’s currently written.
VICE CHAIR KANE: So if a small section came
down, it would appear that’s not the case. But if half the
thing came down, that might be the case.
DAVID FOLEY: Right.
VICE CHAIR KANE: All right, thank you. Katrina
Brinkman.
KATRINA BRINKMAN: Good evening, I’m Katrina
Brinkman. I live at 308 Belgatos Lane, next to Belgatos
Park in Los Gatos, with my husband and three children.
The park next to us connects to multiple open
spaces and is heavily visited. I love the wildlife in our
area. In the last week alone I have seen coyotes,
squirrels, rabbits, owls, Norway rats, wood rats, lizards,
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deer, hawks, turkey vultures, and wild turkeys on my
property. The coyote was 10’ from my goat and 10’ from my
puppy, which was outside the pen. Occasionally there are
bobcats and snakes.
I don’t find the 30’ guideline a one-size-fits-
all option for several reasons. Keep in mind that your note
states that these affect 25% of the properties in Los
Gatos, if what I read on the last paperwork on your
website. My concern is that I would need to adhere to these
new guidelines if I needed to do repairs. A case in point,
a car takes out the front of my fence, I may have to
replace the whole thing.
Here are some issues that I’ve dealt with in the
last four years. More than 35% of my property line is
shared with Belgatos Park, and another approximately 35% is
shared with an uphill neighbor who has an upper road with a
retaining wall. A great deal of my land in the back is over
40% slope. I have goats that take care of the steep back
yard, and I have a large portion of my yard as open space
easement anyway.
We moved into an existing space that was
completely enclosed with high chain-link on the park side
and one of my neighbors, and a metal rail fencing around
the 1.7-acre property. I have a corner lot that is pie
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shaped with a stop sign at the lower point next to the park
entrance. This does not stop deer or any animal from
enjoying my yard.
Your guidelines don’t mention shared property
fences with the town parks. I am one of the few properties
over there next to the open space that does have fencing.
Less than a 60” high fence and only 30’ from my house would
allow dogs and people in my yard. Also, the fencing at the
park does not keep out people at the night.
I am still working with the police department
about a man that has been harassing me verbally for over
two years, and threatened to kill my child and me in the
last year. This issue has gotten better since April. The
fencing in front keeps out teen smokers and dogs off-leash.
This occurs daily at the empty lots next to me, so if I
start losing my fencing in front, it becomes a free for
all, as it is in the park at occasion. I’m still trying to
get the geocache taken out of my front yard that is next to
the fencing.
Back half way through the property does have a
split rail to keep my goat inside and my dog outside the
area. Not having a barrier in the split rail fencing around
my house would not keep my dog in, in general. I’m looking
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for guidelines on how to keep the deer out, even though I’m
completely fenced in.
If these changes were made, I think it would be
impossible for me to live here based on the proximity to a
park, and would be difficult to sell if I start losing
fronts of my fencing. Thank you.
VICE CHAIR KANE: Questions for the speaker? Ms.
Brinkman, I lived for a long time on Belvue, not too far
away, and I know the issues with the park, and I guess
they’re still there. Is Belgatos considered hillside?
KATRINA BRINKMAN: Where I am, I’m hillside.
VICE CHAIR KANE: Because of your slope?
KATRINA BRINKMAN: Because of my slope. There are
four properties on Belgatos Lane that are hillside.
VICE CHAIR KANE: All right, thank you very much.
Cindy De Santis, David Fox, Lee Quintana.
CINDY DE SANTIS: Yes, hi, Cindy De Santis, 16860
Cypress Way, Los Gatos. We’ve been there for about 18
years, and I want to address enforcement problems.
Even if we should do this, the Town has no means
to do it. We have a hillside neighbor who without permits
has built a guesthouse behind his house; he’s built two
pools, all on what the old maps call “the old landslide;”
he’s built a cantilevered driveway, 80’ long; he’s covered
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over four large oak trees; he’s built drainage without
bearing pipes or putting a diffuser at the end; he’s
removed the native plants and the hardscape; and now he’s
putting in palm trees; he’s installed bright lights and is
not turning them on, so I guess that’s okay to have those
there; and he’s also built stacked walls, one that’s 7’
high and one that’s probably 80’ high on filled land, and
that one is seven blocks. What are they, 7” apiece? All of
these are breaking the hillside code.
In the last 15 years the Planning Department and
the Legal Department have not been able to enforce the
current codes due to lack of budget and manpower, not even
to impose fines. How can they be expected to enforce these
new fence codes if it’s going to affect 25% of the
population of Los Gatos? It’s just not practical. We need
to spend more time trying to keep the hillside codes that
we have functioning.
I’m on an acre of land, and I have my back yard
fenced in, which is probably less than half of the
property, and the whole front is an open corridor for
animals, where we have quite a few; the deer basically live
there, they don’t just travel through. Thank you.
VICE CHAIR KANE: Questions for the speaker?
Commissioner Badame.
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CHAIR BADAME: Can you repeat your address?
CINDY DE SANTIS: 16860 Cypress Way.
CHAIR BADAME: And your neighbor’s address?
CINDY DE SANTIS: You can talk… Joel knows all
about this. They have been trying very hard, but it just
involves so much time.
CHAIR BADAME: Thank you.
VICE CHAIR KANE: I just spoke to the Assistant
Town Attorney about what you were saying, and do we have
any comments on the development of the situation?
JOEL PAULSON: We don’t have any comments. We
have been working for a long time. This is a very
longstanding issue that goes back a decade at least.
CINDY DE SANTIS: 2002 is when we were in this
meeting trying to…
JOEL PAULSON: So there’s a lot of history. I’ve
passed that up to the Town Attorney, and we are looking for
solutions. We will be meeting next week, the Town Attorney,
code compliance officer, and myself, and try a different
tactic, because the tactics to date have not been
successful.
VICE CHAIR KANE: It’s frustrating not to have
the ability to do something about a report like yours, and
I’m sorry for your trouble.
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CINDY DE SANTIS: Well, there have been so many
breaches of the hillside code, but we have to go through
all this due process, and it’s very time consuming, and we
just don’t have the manpower or the budget to just stay on
it and finish it.
VICE CHAIR KANE: Thank you, Ma’am. David Fox.
DAVID FOX: Excuse me, in my haste to send Mr.
Mullin the exhibits today I erroneously substituted the
wrong sheet for Sheet 3, and Sheet 3 just shows a diagram
of where you would have designated setbacks.
VICE CHAIR KANE: Thank you. Let’s run the clock
over, please.
(Mr. Fox puts stuffed animal on the floor.)
VICE CHAIR KANE: Is it going to move?
DAVID FOX: That would be the idea.
VICE CHAIR KANE: Then put it up on the table so
we can see it.
DAVID FOX: My name is David Fox, 50 University
Avenue, Los Gatos.
I’m a landscape architect. I spend most of my
days doing design work for the residents of Los Gatos in
the hillsides. What my clients are mainly interested in
when it comes to fencing is security, containment, and
safety. They want security for their property from two-
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legged and four-legged predators. They’d like containment
for their children so the balls aren’t going down the hills
all the time, and they’d like the safety of being able to
let their pets and animals outside without having to worry
about the coyotes and all the things that come up and sniff
their sliding glass doors daily if they don’t have fencing.
This is a partial map of the Highlands of Los
Gatos. The hatched areas are scenic easements that we put
in place when we got the PD done for the Highlands, and as
you can see, they cover pretty much half of the lots. Those
are very wide corridors for wildlife; some of them are in
excess of 100’ wide. That’s one solution that we could do.
Some of the people had suggested doing designated
corridors. This is an example of designated corridors.
Let’s say a 40’ rear easement and 20’ on the side. If you
had adjacent properties, it would yield you a 40’ corridor.
If you had rear property lines together, it would give you
an 80’ corridor for passage, but it would still allow for
the people that live on the lots to fence enough of the
property that they could contain the design items that they
have and provide a measure of safety and security.
On the first page of the Desk Item that I sent,
that’s a real lot; that is a lot I’m working on today. The
proposal that my clients and I are working on is only 2% of
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the lot. The area that would be the eating area and the
dining area is only 2% of the lot, and yet under the
current proposal they couldn’t even fence that, even though
it’s only 2% of the lot and 98% of the lot would be free.
I think that the other people have said it very
well, that it should be on a need basis and not be slapped
down that every single lot is the same, and therefore we
need to do the same thing on every single lot. And just to
give you an idea, our friend here, from where I am standing
right here, from here to that wall is 40’. I’m pretty sure
the raccoon could amble his way up a 40’ corridor. Were it
the back property lines, it would be double this width.
If we impose something like that, or if you have
scenic easements, or if you do it on a need basis, you’re
going to get the corridors that you want, but you’re still
going to allow the people to use their properties. I would
urge you to turn this down. Thank you very much.
VICE CHAIR KANE: Questions for the speaker? Mr.
Fox, we received many excellent letters, and yours was one
of them. Thank you.
DAVID FOX: Thank you very much, sir.
VICE CHAIR KANE: Lee Quintana.
LEE QUINTANA: Lee Quintana, 5 Palm Avenue. I
don’t know where to start, actually, because I want to
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respond to some of the things that were said, but I also
want to make an overall comment to begin with.
When we’re considering the Fence Ordinance right
now, a lot of the comments that are being made are specific
to the Fence Ordinance and individual homeowner’s desires,
but the Fence Ordinance that’s being proposed is simply a
matter of codifying what is already in the Hillside Design
Guidelines, the General Plan, and the Tree Ordinance, and
aside from that, when you’re looking at a specific area of
a plan you also have to relate it to the whole Hillside
Standards and Developments and the overall intent of them,
and I don’t have the verbiage in front of me, but a lot of
it is maintaining the natural character of the hillsides,
maintaining the trees and the wildlife, just the aspect of
the hillsides that is natural, and so I want to put that in
context.
People choose to live in the hillsides, and when
they choose to live someplace, just like when I choose to
live closer to downtown, there are certain things that
affect me that don’t affect the hillsides, and vice-versa.
If you choose to live in the hillsides, you’re choosing to
live with these things.
I’d like to address some of the things that have
been said. I believe that there is a lot of misconception
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that has been said. People talked about fencing in their
vineyards. That would be allowed by this ordinance. They
talked about fenced playgrounds that are farther from their
house. They could be fenced in. It’s allowed by this
ordinance.
(Audience noise.)
VICE CHAIR KANE: I need you to not do that.
That’s disrespectful, and we want to be respectful. Thank
you very much. When the speaker is done, I’ll check the
point, but not now. Please continue, Ms. Quintana.
LEE QUINTANA: You are allowed to have non-
wildlife friendly fences around your house to 30’. It’s not
a question of you can’t have any protection.
Repairs, I think that’s already been mentioned.
If it’s just a section of the fence, they can be repaired,
they don’t have to be replaced to meet the new standards.
If they exist, they don’t have to be replaced to meet the
new standards.
And permits, I think that is a question that you
are going to address, and I personally think that we need
to find a way that fences would not be subject to the total
cost of a Minor Residential Permits, but that would be on a
time and cost basis or something of that sort.
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Lyme disease. I think Dr. Weissman will be
addressing that.
Okay, that’s it.
VICE CHAIR KANE: Questions for the speaker?
Commissioner Janoff.
COMMISSIONER JANOFF: Thank you. You mentioned
that the provisions of the proposed changes are already
included in existing Town documents. Can you point—because
I didn’t see it in the material I have looked at—where the
30’ from the house is in existing Town documents?
LEE QUINTANA: It’s in the Hillside Development
Standards and Guidelines, and if I could elaborate on that,
Dr. Fox suggested that you consider a change in that to 30’
from the approved development area. Well, that’s a huge
loophole, because if you design your house to have a large
patio with an attached playground, and attached barbecue,
and attached swimming pool, and attached accessory
building, dog run, whatever, all within that developed
area, then this could be a huge, huge area.
I may get in trouble for saying this, but I agree
that 30’ from the house may not be adequate. Maybe 40’ is
more reasonable, but not an open-ended ability to get an
approval and then add to it. And like I said, swimming
pools, I believe accessory structures, they’re all allowed
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certain things, but they can’t necessarily if they’re more
than 30’ connected to the house.
VICE CHAIR KANE: I think you’ve answered the
question. Thank you very much.
LEE QUINTANA: Yeah, I have. Sorry about that.
VICE CHAIR KANE: Other questions for the
speaker? Thank you.
LEE QUINTANA: Could I just ask you to check on
the 25% of the population affected by this ordinance? I
don’t think 25% live in the hillsides.
VICE CHAIR KANE: I’m sure Staff will make a note
of that. I have a question for Staff. A comment was made
that if I had a playground outside the 30’ perimeter, that
I would be allowed to fence that area for the protection of
the children. Is that accurate?
JOEL PAULSON: I believe Ms. Quintana is
referring to the exceptions, which are on page 6 of Exhibit
8, and the first one is fencing around swimming pools,
outdoor sports courts, and similar structures. I’m assuming
she’s lumping playgrounds into similar structures, and that
would be the exception. There’s nothing in the code
currently that explicitly says playgrounds.
VICE CHAIR KANE: But there would be some wiggle
room to look at that?
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JOEL PAULSON: There would be, yes.
VICE CHAIR KANE: Thank you. Rick Tinsley, Steve
Doughty, and David Weissman.
RICK TINSLEY: Hello everyone, my name is Rick
Tinsley; I live at 16555 South Kennedy Road. I’ve lived
there for 16 years, and that’s about a mile-and-a-half out
of town, and it is hillside.
The proposed ordinance is, quite frankly, very
burdensome and completely impractical. During the 16 years
that I’ve lived in my property I’ve from time to time grown
grapes, blueberries, blackberries, figs, lemons,
nectarines, pomegranates, all sorts of vegetables, flowers,
and ornamental plants, of course. None of these would have
been at all possible if not for a fence surrounding the
area where I grow things, which tends to be all over my
property, that would be in direct conflict with the
guidelines. And granted, that’s already built historical,
but I’ve been there 16 years. I just built the third
fence. Fences don’t last forever; they have a finite life.
Essentially this ordinance would prevent anyone from, let’s
say, enjoying their property the way I have for the past 16
years.
The reality is hillsides have very limited
planting zones. Not planting zones as nicely defined in the
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geometry of the proposed ordinance, but there are slopes,
trees, sun exposure, irregular lot sizes and shapes, and so
forth that limit where various items can be planted. This
ordinance effectively prohibits all but decorative fences,
and with the thriving deer population we have, it’s pretty
clear that the explosion of development that we’ve seen,
certainly since I’ve been in town over the last several
decades, and the explosion of fences that would be in
direct conflict with this ordinance, have not put a dent in
the deer population.
Anyone who thinks actually the deer population
has suffered by virtue of these types of developments, I
invite you to come over to my house early some morning or
late in the evening sometime. Probably the deer population
here is at an all time high, and I would grant any of the
well-intended people who are concerned about that to
provide any empirical evidence that deer have actually
suffered. I’m from the east coast, and there many towns
have sort of already gone through this cycle of protecting
deer, and now actually getting rid of deer, because they’ve
become too numerous, which creates all sorts of other
problems.
In terms of insects, we’ve heard a lot about
ticks, and we’ll hear a lot more about ticks. Again, I grew
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up on a farm, I know all about ticks, I’m not afraid of
ticks, but fleas one summer actually prevented my kids from
using their playground, the trampoline and the play set.
This was many years ago when our kids were small, and it’s
one of the few flat places on our property and the deer
love to lie there in the afternoons, and we thought they
were beautiful of course, but the play yard became so
infested with fleas my kids couldn’t use it for the entire
summer, and we all were covered in flea bites that summer.
From a practical standpoint, this ordinance is
non-enforceable. I mean we could talk about leaf blowers
and all the other things that are mentioned with hillside
regulations. The mark of a good government is a legislature
that doesn’t pass laws that it has no capability, nor,
honestly, the intention of enforcing.
So in summary, and most importantly to me, with
all the very real and very serious and evident problems we
have with traffic, parking, school crowding, school
quality, and a $50 billion-plus unfunded pension liability,
I really want to know why is our government choosing to
fight this particular fight? I encourage you to reconsider
A) What real problem we’re actually trying to solve, and B)
whether this is the appropriate solution.
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VICE CHAIR KANE: I’m going to thank you, Mr.
Tinsley. Let’s see if there are any questions for the
speaker. Commissioner Burch.
COMMISSIONER BURCH: I was going to ask a
question of Staff, is that okay? It has to do with what the
speaker said. I want to make sure I’m reading the
exceptions correctly. In Section E, #3, it says, “Enclosed
fencing around vineyards, orchards, and vegetable gardens
do not have to be wildlife friendly.” Is that anywhere on
the property, or is that limited to within 30’ of the home?
JOEL PAULSON: That’s anywhere on the property,
but believe Mr. Tinsley was referencing… He didn’t
necessarily have an orchard, he just had various trees
planted around, and so he fenced in his…
COMMISSIONER BURCH: Yeah. And then that wouldn’t
necessarily, because it’s not a designated…
JOEL PAULSON: We’d have to look at that on a
case-by-case basis.
COMMISSIONER BURCH: Okay, thank you.
RICK TINSLEY: If I could respond to that.
VICE CHAIR KANE: There was no question. What’s
your response?
RICK TINSLEY: Practically speaking, I do, I have
trees, and Joel has been out, he knows what my place looks
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like. I have trees in various places, and grapes on the
north side of the hill, and the vegetable garden in one of
the few sunny places where I have enough sun to grow
vegetables. I could build like three or four or five or six
small fences, which would be of course an incredible
eyesore to do that, versus a perimeter fence around the
back half of the property, which is what is the common
sense solution that most people use today.
VICE CHAIR KANE: Thank you very much. Mr.
Doughty.
STEVE DOUGHTY: Okay, I am no where near as
eloquent, and I would probably say as prepared as everyone
else, but I am a Los Gatos resident since 1959 and I can
assure you that I agree with everyone on the deer
population.
When I grew up it was a blue moon to see deer,
coyote, or whatever. I do live up on Suview Drive; I have
three-and-a-half acres, which I worked very hard to buy. I
grew up on Kennedy, like I said, and I think that now I
have more deer and animals than I do have mice running
around on my property. I mean in all honesty, they’re there
all the time. I love them, we don’t mess with them, but I
will tell you the closer the deer are to our property and
our kids and our dogs, we do get ticks, we get fleas, and
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we have been putting in an active effort to try to push
them back a little bit.
I can assure you, they’ve probably chewed up
$20,000 to $30,000 worth of my gardens, so it’s not that I
wish to get rid of them, but 30’ wouldn’t even put my
guesthouse within my property limits or my pool, or my
gardens, or my garages or anything.
So I think that the rule of one rule fitting
everybody’s different property is not good. I do believe
that up where we live we have 25 acres with seven homes,
and everyone has only a small portion, fenced. The deer
roam on the roads, they’re everywhere, the coyote, the fox,
we even have a lynx that’s up all the time; I see it in my
back yard. So the animals are all over.
Really, the biggest thing for me is I moved back
into Los Gatos so that I could have more space, and I
believe that it’s just too cumbersome, someone telling me
that I’m stuck within 30’ of my property. I didn’t spend
that kind of money, and I know these people didn’t spend
that kind of money, to live up on a hill with a view to be
told 30’ is all you get. If you have more land, because if
I come down into the neighborhoods and I look everywhere
else, everyone’s property is fenced all the way to the hilt
and you see all the animals running around in the streets.
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So like I say, I’m not as eloquent, and I am a
contractor, and since this issue has come up, I work on all
the big houses. I’m a drilling contractor all over and up
and down the valley, and I can assure you the black cyclone
fence is used everywhere, and you see them in Woodside,
Portola Valley, all over the place, and I do agree with the
gentleman, they are definitely quite invisible, so I think
it would be bad to limit that one. But case-by-case basis I
think is good. One rule for everyone, I just don’t agree.
So please, let’s nix it.
VICE CHAIR KANE: Thank you. Questions for the
speaker? Seeing none, thank you, again. Dr. Weissman.
DR. DAVID WEISSMAN: Dave Weissman. In asking for
a revision of the current Fence Ordinance we attempted to
get codified various goals and standards already listed in
several locations within town documents. Specifically,
already in town documents are the following:
The Town’s 2020 General Plan use states,
“Preserving riparian corridors and wildlife habitats in new
and existing developments.” The Hillside Guidelines
similarly call for the following: “Protecting wildlife
corridors and avoiding wildlife usage areas to the maximum
extent possible.” Toward that goal the Hillside Guidelines
require that, and these are all quotes, “Fences shall not
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be allowed in areas that would impede the movement of
wildlife.” Two, “Only open fencing shall be located within
20’ of the property line adjacent to a street.” Three, “The
photograph on page 43 of the guidelines, “Rural character
of hillside fences allow wildlife to pass through,” and
lastly, four, “Deer fencing shall be limited to areas
around ornamental landscaping. Large areas shall not be
enclosed.”
And what do the Hillside Guidelines say about
hillside areas and the planting of ornamental landscaping?
Very clearly, “Formal gardens shall be limited to locations
immediately adjacent to the house, such as entryways or
small gardens at the rear, and all such formal plantings
shall be within planting zone 1,” which is defined in the
document as within 30’ of the house. Move farther than 30’
house, according to both the Hillside Guidelines and the
Tree Protection Ordinance, and only native species are
allowed.
So, we have a Tree Ordinance that protects the
trees in our hillsides, but a forest without its animals is
both non-sustainable, and now recognizes an important
resource and environmental issue as discussed at the last
fence meeting by three environmental organization experts.
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It is also very frustrating to have citizens
complain about their perceived inability to protect their
current orchards and vineyards, repair their current
fences, and protect their pets and children. These
objectives are all permitted under the proposed revisions
and within the framework of the goals and standards of the
hillside guidelines.
And once again, deer in California are not a
major carrier of Lyme disease ticks.
Living in the hillsides of Los Gatos is a balance
between property rights and ecological sustainability. We
have to share our hillsides with the animals that have
lived there before we did. I think that these revisions
strike a good balance, and I urge their passage tonight, as
recommended by Staff.
VICE CHAIR KANE: Thank you. Questions for the
speaker? Commissioner Badame.
CHAIR BADAME: The last speaker spoke about a
black chain-link fence, as did another speaker. Was there a
reason why this couldn’t be considered as plausible under
the new amendments, a black chain-link fence?
DR. DAVID WEISSMAN: Because animals can’t pass
through it. If you look on page 43 of the Hillside
Guidelines, there is a picture of a rural open animal
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friendly fence. All we’re asking is that this become the
standard for those areas of hillside properties that are
greater than 30’ from the main house. There are exceptions
built in for various sorts of things, and people have the
option of coming into the Town and speaking to the
Community Director, or coming to various sources to get
exceptions for play yards; we’ve already got the pool
exceptions and other things. But a chain-link fence is not
animal friendly.
CHAIR BADAME: Thank you.
VICE CHAIR KANE: Thank you. Other questions?
Commissioner Janoff.
COMMISSIONER JANOFF: The same question as
before. The Hillside Standards and Guidelines indicate a
30’ distance for purposes of landscape ornamental planting
around the house.
DR. DAVID WEISSMAN: Yes.
COMMISSIONER JANOFF: Can you point to the area
in the Hillside Development Standards and Guidelines that
specifically speaks to a fence at 30’ from the house?
DR. DAVID WEISSMAN: If you look on pages 42 and
43 in the Hillside Guidelines.
COMMISSIONER JANOFF: I’m looking at pages 42 and
43.
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DR. DAVID WEISSMAN: There are a number of
statements, which I just read. This is page 43: “Deer
fencing shall be limited to areas around ornamental
landscaping. Larger areas shall not be enclosed.” Still on
page 43: “Fences shall not be allowed in areas that would
impede the movement of wildlife.” Page 43, also: “Only open
fencing shall be located within 20’ of the property line
adjacent to a street.”
COMMISSIONER JANOFF: So you’re equating the deer
fence with the 30’ restriction that’s speaking to the
landscape designs. That’s not a direct link, but you’re
making that connection. Thank you.
DR. DAVID WEISSMAN: What I’m saying is that
landscaping is limited to within 30’ of the house, because
that’s Zone 1. When you get farther than 30’ from the
house, the Hillside Guidelines on I believe it’s page 52
say that only native plants can be planted. So people that
are asking for fences out farther than 30’ for their
ornamental landscaping, the landscaping itself is in
violation of the Hillside Guidelines and also the Tree
Protection Ordinance.
VICE CHAIR KANE: Other questions? Commissioner
Hanssen.
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COMMISSIONER HANSSEN: I wanted to talk about the
exceptions, and I’m just going to come up with a
hypothetical example. So you have a property that’s, say,
four or five acres, and the house maybe takes up less than
half an acre of the property. I don't know if that’s valid
from a FAR perspective. But so the house is there.
DR. DAVID WEISSMAN: It would be a big house.
COMMISSIONER HANSSEN: And they decide that they
want to do the ornamental landscaping and they stay within
30’ of the house, but then they want to build a swimming
pool over here, and play structure over here, and some
other outdoor use over here, and then they want to have a
chicken coop somewhere else, and so how do you see that
playing out in terms of fencing? They’re spread out all
over the link. Are they going to have like little islands
of fences all over, or are they going to put a fence all
the way around, or how would you see that?
DR. DAVID WEISSMAN: Town codes already require
fencing around swimming pools. There is the General Plan,
in Section E-1, Fencing Around Swimming Pools, Outdoor
Sports Courts, and Similar Structures.” We could certainly
make that more specific to playground areas. And yes, you
could put separate fencing around these structures, which
would certainly be preferable.
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(Audience noise.)
VICE CHAIR KANE: I’m not really seeing the humor
in this. There are some important decisions to be made, and
there are values at stake, there are hillsides at stake. So
let the speaker continue, please.
DR. DAVID WEISSMAN: That would be preferable to
putting a fence around the whole four or five acres or
whatever, and the property owner has the option of coming
into the Town—and we’re obviously not going to think of all
eventualities—but coming into the Town and saying, “This is
what I’d like to do. What do you think?” And the Community
Development Director has that option to make that
exception.
I mean what we don’t want to do; we’ve already
got these requirements in the Hillside Guidelines. Either
change the Hillside Guidelines or let’s make them
enforceable. We’ve got this vision.
COMMISSIONER HANSSEN: I think you answered my
question. Thank you.
DR. DAVID WEISSMAN: All right.
VICE CHAIR KANE: Thank you. Other questions? I
have question. I know that you’ve worked on this for months
and months, if not years and years, the same with
protecting trees and you always seem to be there, but on
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this one you’ve actually worked with the Staff in
developing some proposed language.
DR. DAVID WEISSMAN: Yes.
VICE CHAIR KANE: Now, the Hillside Standards and
Guidelines are wonderful reading for those who live up
there and how much this goes to protect you. My name is on
it, in 2008 when Town Council approved this document. Lee
Quintana’s name is on it, and we’ve really tried to
passionately, albeit appropriately, to protect and defend
anything concerning those precious hillsides. So there may
be some immediate bumps we have here, and the issue of
respect earlier, and I may be getting out of turn, but Lee
and Dave have gone to hell and back to protect those
hillsides. I just want to share that with you. So you’ve
got a worker on your side, even though we currently seem to
have a bump that we will try to find our way around. Thank
you, Dr. Weissman. Michael Michaelis, Lisa Doughty, and
Todd Gummow.
MICHAEL MICHAELIS: Mike Michaelis; I live at
6800 Cypress Way. I wasn’t going to speak on this, but
obviously a lot of people have… You’ve seen a sense of a
dichotomy between people that live in the hillside and
people that don’t, especially when it affects the wildlife.
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At least from a layman’s perspective there’s a
lot of wildlife there, and the problem is they’re coming
down to feed more easily than they can where we’d rather
they lived, where they have vast open spaces. I think
you’ve heard from people that have really been impacted by
them. You’ve also heard from people that maybe haven’t been
impacted by them and think we ought to restrict things
more. Well, the Hillside Standards and Guidelines were
originally guidelines, and now they are gospel, and it
affects what people can do there already. But I worry about
the sort of discriminatory presence between people in town
and the people who live in the hillsides, and what right
they have to enjoy their own property and follow the
guidelines you're supposed to.
I really came to speak about the permitting
process, and why the standards for building a fence in town
should be different than building in the hillside. Why
there should be $2,200 fee and a review process to build
the same fence in the hillside that there is in town. The
government here exists to serve the interests of all
people. We all pay the same taxes, and we all should get
the same service that provides the protection that we
deserve for our property, our children, the landscape, and
ourselves.
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I just look to the Town to be equitable in how
you deal with this. It’s a tough issue, this interface
between the human population and the animal population, but
that’s life and that’s the world we live in. I think the
Town has done a fairly good job of doing this over time.
Los Gatos is still a great place to live. We all live here,
we enjoy it, and I think we’ve maintained this sense of Los
Gatos and what it’s about.
VICE CHAIR KANE: Thank you. Questions for the
speaker? Thank you very much. Lisa Doughty.
LISA DOUGHTY: Yes, hello, Lisa Doughty; I live
on 15284 Suview Drive since 2005. Previous to that we lived
over on Kennedy Road for about five years, 1985-1989.
During the time that I’ve lived here I have never
seen an issue with the animals being able to migrate or get
around or feed themselves in any way, and my question to
you is why? Why are we doing this? Because they’ve
increased in size and population and species over the time
that I’ve lived here, and obviously the ordinances that are
in place have been doing their job, so why are we changing
them now to something that is totally unreasonable to the
human population?
This ordinance does not take into effect every
single hillside property, and every hillside property is
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different in its own way. Ours is tiered. Are we to have a
different fence on every tier? Because we built on tiers,
because we’re a hillside property, and with a very small
percentage of development on our 3.5 acres there’s more
than enough land for animals to migrate and grow, to
populate. I’m sure they feed off a lot of vegetation,
whether it be natural vegetation, deer friendly vegetation,
or deer resistant vegetation, they eat everything, so I’m
sure we are feeding these animals as well.
I do not understand why we cannot just keep the
ordinances that are in place. They’re working, and we don’t
need to do anything else, because I would like to know
where the problem is. Where are they not migrating to?
Where’s the bottleneck? I can’t see it. So I propose that
you just disregard this.
VICE CHAIR KANE: Thank you very much. Questions
for the speaker? Thank you.
TODD GUMMOW: Hi, my name is Todd Gummow, 17144
Mill Rise Way. My wife and I have lived there for over 25
years now.
When I first heard about this ordinance I didn’t
think it involved me, and I wasn’t concerned about it until
I actually read it today, because I thought the large homes
that sit on like 10-20 acres on the side of the hill, you
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didn’t want them fencing it in. I understood all that, but
we actually live on a flat acre, and it deals with us as
well. And a lot of our neighbors are on flat parcels.
According to this rule I couldn’t have my
enclosed yard the way it is now, because I have the black
galvanized fencing on the back yard, and I have about 15’
of fencing that’s within 30’ of my house, so basically if
any of that gets damaged, I can’t replace what’s there.
I have three dogs, I’ve got young nieces, and my
children are grown but I expect to have grandchildren
someday, and I don’t want to have to have this 42” animal
fence that they can climb over and get to Kennedy Road.
Then on the front of our property we have two
large brick walls that are about 20’ wide each that were
there when we bought the property. If one of those got
damaged, we couldn’t replace it, because of the rule. I
think it’s over 50’ or over 25% is the way it’s written
now, and so the problem I have is if a truck comes and hits
one of our walls out front, this lovely old brick wall, we
couldn’t replace it; I’d have to put a 42” animal fence.
Obviously I agree with a lot of what they say
about the hillside homes, but it’s too broad. You’re
actually dealing with homes that are much smaller, on flat
parcels that are actually usable acreage, not ten acres
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with nine of it unusable, so the way it’s written just
doesn’t make sense. That’s it.
VICE CHAIR KANE: Thank you. Questions for the
speaker? Thank you very much, sir. Shoshana Ohriner
followed by David Klinger.
SHOSHANA OHRINER: Good evening, I’m Shoshana
Ohriner, 14320 Arnerich Road, and I agree with much of what
has been said tonight, but I want to speak to something
very specific about fair and reasonable use of the
property.
There are exceptions in this proposed ordinance
for fencing vineyards and fencing enclosures for animals,
but I wanted to speak about responsible livestock care. The
zoning for the Hillside Area allows for livestock, and what
is considered good practice for sustainable livestock
management is rotational pastures. That means you put the
animals in a small piece of your pasture. The next week you
move the fence, you put them in a different piece of the
pasture, let that first piece recover. You do that through
four or five different pastures. What that does is it
prevents erosion, it allows the land to regenerate better,
and it increases the water holding capacity of that land,
making it more drought resistant, all of which are things
that are highly important in a dry hillside area.
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The proposed ordinance has the necessity to apply
for a more than $2,000 permit for any fencing you want to
put in. My concern is that this will encourage people,
rather than moving fencing, because it’s unsustainable to
apply for a $2,200 permit every week, every month, whatever
that might be, to instead enclose a much larger area than
necessary permanently with subdivisions so that you have
that rotational pasture, and it would then go opposite to
the purpose of this ordinance, which is to provide more
open space for wild animals. So instead of having the deer
be able to come through two-thirds of the property most of
the time, that entire area would then have to be closed off
permanently in order for people to be in compliance with
the ordinance without having to continually apply and spend
the money and the time and all of those things for movable
fencing.
So while I agree with much of what has been said
here about whether or not this ordinance should be passed,
and I think that one-size-fits-all is not a sustainable
option. If this ordinance does go forward, I strongly,
strongly urge you to increase the exception for the use of
livestock to include the possibility for moveable fences
within an area to allow people to sustainably keep their
pastures the way that makes the most sense in this region.
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VICE CHAIR KANE: Thank you. Questions for the
speaker? Thank you very much. David Klinger.
DAVID KLINGER: Thank you, I’m Dave Klinger at
141 Potomac Drive. I’m speaking now, and I don’t wish not
to compete with the hillside issue, because it’s a real
issue that needs to be discussed. I would like to talk
about the flatland residential fence height. I have written
a letter to you. I also wrote a letter to City Council
where I tried to go into more detail; I didn’t see it in
the package tonight, but perhaps it’s there.
The bottom line basically is that many, many
fences in the flatland area are higher than 6’, which is
the standard. Having talked with Staff, almost no one
applies for an exception for that, and there is very little
enforcement action, according to the code compliance
officer. So people are okay with fences higher than 6’.
My request is that Staff be directed to determine
whether in fact there is widespread noncompliance with this
ordinance, and if there is, is that acceptable to the Town
that many people don’t comply? And third would be to bring
back some options for how to bring people into compliance,
because many people are not in compliance right now, I’m
absolutely sure of that.
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A simple solution that I have proposed—there may
be much better ideas—would be to stick with the 6’ high. If
people want to go 7’, which is kind of the de facto
standard with open lattice, and the neighbors all approve,
if that were allowable then almost everybody would be
compliant. You wouldn’t have to go to the Town and go
through the process and try to demonstrate a “special
privacy concern” to have a fence more than 6’. So I think
there’s an easy way out of this that would make a lot of
people a lot more compliant and you wouldn’t have the
compliance issue.
I’m just here as good governance. I already have
my fence, so I have nothing to gain or lose on it. Thank
you.
VICE CHAIR KANE: Questions for the speaker? Your
letter was in the packet, sir.
DAVID KLINGER: The recent one?
VICE CHAIR KANE: I said we received many good
letters, and yours was one of them. I had it out, and I
think Commissioner Burch took it, so I can’t find it right
now, but I want to thank you for that.
That concludes our speaker cards, so I’m going to
close the public portion of the public hearing, and take a
ten-minute break. Thank you.
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(INTERMISSION)
VICE CHAIR KANE: Well, we seem to have somewhat
of a sticky-wicket, at least as I see it; I don’t speak for
the other Commissioners. So what I’m going to do is ask
Staff to frame the issue before us. This is not an up or
down decision, per se. This is a recommendation to Council
that we deny the proposed revisions, or we revise them
further and send them Council where the final decision on
this proposed change would take place. So Mr. Paulson,
frame the issue and the path before us.
JOEL PAULSON: I will let Mr. Mullin take that
on, and if we have questions following that, then I’m here
to help.
VICE CHAIR KANE: Thank you very much. Mr.
Mullin.
SEAN MULLIN: The decision, if you will, tonight
in the recommendation is to provide a recommendation to
Council, and your recommendation could be to recommend
approval as the draft ordinance is written, recommend
approval with changes. You could also continue the item to
a date certain and provide some direction to Staff to make
changes and come back with a revised draft ordinance for
the same consideration. You could also forward the draft
ordinance with a recommendation of denial to Town Council.
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VICE CHAIR KANE: Thank you. Commissioners, we
have in our Staff Report a number of issues and questions
that we brought up in July where they’ve done some research
and responded to us. I want to make sure clearly we’re
aware of that, that a lot of work has been done, and a lot
of the questions we’ve attempted to answer. But I turn to
you for what Mr. Mullin just said, and give me a sense of
where you’d like to go with this. Recommended as is,
recommend with specific changes, or recommend to Council
that we deny it, and in the end analysis I will take that
as a motion. Commissioner Burch.
COMMISSIONER BURCH: I’m actually just going to
jump in with a pretty blunt statement, that I think the
Hillside Guidelines as they’re written are fine. I also
have a very hard time, and when I was reading this and
listening to all the testimony taking the one-size-fits-all
approach, I believe that there are… As we have seen with
the hillsides, the properties are all very unique. We take
them typically on an as-they-come basis, and I feel that
this falls under the same purview as that in my mindset.
Thirty feet feels entirely too small, and it really is just
being generated based on a landscape line item out of the
Hillside Guidelines.
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So to me I would not recommend this as approve. I
mean I did read all the Staff’s concerns, too, but I just
felt taking a higher level and just saying all in all, I
don’t think I would recommend it go on. I see too many
issues with this, and I see it actually becoming more of an
issue for Staff than what it would be if we took it on a
case-by-case basis, because everyone that builds a fence is
going to come asking for an exception.
So to me I feel like we’re creating more of a
bottleneck for Staff by doing this than if we keep the
hillsides as they are. We trust Staff’s review, we trust
them to be looking at the wildlife corridors, because they
do right now. They work with developers to create these
setbacks. They already do this, so to me this is not a
document I would forward, so that’s my overlying statement.
I would gladly hear what my other Commissioners think.
VICE CHAIR KANE: Commissioner Hanssen.
COMMISSIONER HANSSEN: I have a similar view to
Commissioner Burch. The Hillside Development Standards and
Guidelines generally speak to all the goals that we want to
accomplish, and if I understand the process, if someone is
going to go build a sport court or a play structure, or
whatever, and it crosses the need where they need a Town
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permit, I would imagine that the fencing would be part of
that discussion, unless there’s a standalone fence.
The one thing I did think that I could agree with
that was in the document is that I do think there’s a
difference between the flatlands and the hills in terms of
approaching fencing, but I don't know what about that isn’t
covered in the Hillside Design Guidelines, which doesn’t
apply to the flatlands anyway, because there’s a lot of
language… There’s a whole chapter here with a section on
fences, and so I’m not sure what in addition we get out of
changing our Town Code that would be beneficial to
addressing the issues when we already have the Hillside
Design Guidelines.
And I, too, was having issues with the one-size-
fits-all. The 30’ thing just doesn’t make sense to me. It’s
for ornamental landscaping, but not for any other land use,
and there are so many land uses that people have. Having
different height limits and 42” here and 60”, it just
doesn’t seem like it would work well with every property.
We have one-acre lots, we have five-acre lots, we have ten-
acre lots, we have slopes, we have not slopes, and I just
have this view of having hearings at the Planning
Commission about fences and fence exceptions, and the
Development Review Committee and Staff being all bogged up.
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And I, again, didn’t hear any problem. I heard some of the
testimony. We haven’t heard of any specific problems that
have happened by not having a tighter fence ordinance yet,
so generally speaking, I can’t think of what to keep in
here, except for the notion of the hills versus not hills.
As far as the permit part goes, at first I
thought it probably wouldn’t be a bad idea to require a
permit, but then I think a lot of people are going to go
and do a project in their back yard, like build a pool, and
part of the pool would be having to have a fence, and I
wouldn’t want people to have to get an extra permit for
their fence in addition to getting the permit for the pool.
As far as the standalone fence would go, I mean
we have these guidelines that have to happen. And then when
I heard the stuff about moving fences around, we have to
create more exceptions for livestock, so I don’t even know
if having the permit for the fence makes sense.
VICE CHAIR KANE: Thank you. Commissioner Badame.
CHAIR BADAME: I would just like to clarify, and
this might be for the audience, that we’re having this
meeting at the direction of the Town Council. On January
31st of 2017 they held a study session to identify strategic
priorities for 2017, and at the study session four Council
members identified hillside fences as a strategic priority,
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and there were five goals that were identified as far as
making amendments to this Town Code. So I have a question
for Staff. Do these proposed amendments meet the five goals
that were identified per the study session at the direction
of Town Council?
SEAN MULLIN: I just wanted a chance to read
through them one more time. I believe that the draft
ordinance would address each of those issues.
CHAIR BADAME: Okay, so we have met the direction
of the Town Council. My thought is to forward this to the
Town Council. Do we necessarily have to take a vote to
approve or deny, or just give them our comments that maybe
there could be some revisions as a part of it, or just take
into consideration the comments made by the public? And I
see people shaking their heads.
JOEL PAULSON: You have many options. Typically,
we like to have a vote one way or the other, whether that’s
recommending denial, recommending approval, or recommending
approval with modifications. There have been instances
where the Planning Commission has moved forward without a
recommendation. The Town Council will get verbatim minutes
and/or choose to watch the video proceedings of this
meeting and the previous one on this item.
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Getting back to some of the issues that have been
raised, and yes, we have Hillside Guidelines. I think, and
I don’t want to speak for Dr. Weissman or any of the other
folks who are passionate about this issue as it relates to
hillsides, but because they are in guidelines there are not
any objective requirements to use, and so I think that was
part of the basis. Again, I don’t want to speak for Dr.
Weissman or anyone who is passionate about this issue, but
this helps put it into the code where the guidelines don’t
apply in numerous situations. If you don’t have a
development application coming through, there are no
requirements. They don’t have to come to town, nothing is
required of those folks, and so this was trying to set up
that process.
Definitely want to hear, and the Council for sure
will want to hear, whether or not you forward this with or
without a recommendation, folk’s concerns, folk’s views on
these issues, and then also even I believe we heard at
least one flatland issue as well, so that would be helpful,
I think, for the Council moving forward, again, whichever
way you decide to proceed.
CHAIR BADAME: All right, thank you, and I have
one more question if I may, Chair Kane, and that would
probably be for the Town Attorney.
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We’ve heard public testimony that has stated that
these amendments would restrict the reasonable use of their
property. Do you concur with that?
LYNN LAMPROS: I don't know what the standards
for that effect would be. Economic enjoyment is one of
them, so I think we would have to research that. I don't
know if the Community Development Director has an opinion
on that.
JOEL PAULSON: I would just offer, as we
provided, there are a number of jurisdictions that do
restrict fencing. They have maybe not as strict as this
Fence Ordinance, but they are restricting it. It is not
restricting the use of that. It is in some folk’s minds, as
you’ve heard tonight, and others who probably are not here,
it limits their security of using that or having their
children use that, or their pets. But we can definitely
research that if that’s something as it moves forward, then
we will have the Town Attorney and the Deputy Town Attorney
look into that further.
CHAIR BADAME: Thank you, and for discussion
purposes, that would be a concern of mine as we move
forward.
VICE CHAIR KANE: Other comments? Commissioner
Janoff.
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COMMISSIONER JANOFF: Thank you. As written, we
could probably agree that the recommended changes meet the
criteria that the Town Council set forth, but I think we
can also agree that modifications to what’s being
recommended could also satisfy the Town Council’s criteria.
I think we’ve heard enough tonight to compel me to think
that the fixed 30’ boundary around the perimeter of a house
or a structure seems to be unreasonable both for larger
lots and smaller lots. Mine is a one-acre property, and 30’
puts me directly at my property boundaries. That’s not
where you want my fencing to go, because that would
eliminate the corridors that do exist, so it kind of cuts
both ways negatively. So I would support some of the
changes, but in particular, that 30’ perimeter around the
house doesn’t seem reasonable.
I think we’ve heard testimony tonight, and I
think Mr. Mullin’s comments regarding Woodside from the
previous meeting, indicated that considerations with regard
to the property lines versus the boundaries of the house
might make more sense. And that could be a range. I don’t
think we ever want hard, fast numbers. It could be 10’ for
a parcel this to this size, it could be 20’ for a parcel
that to that size, and so if you’ve got the 20 acres, maybe
your setback from the property line is 100’. Just something
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that’s reasonable tied to the properties, but also provides
the wildlife corridors of movement that we’re looking for,
so that would be an issue for me sending this going
forward.
Excuse me, one more point. With regard to the
fees, I think that the $2,200 permit fee is terribly
onerous. I think your concept, Mr. Paulson, of a fixed fee
is going in a better direction, but pretty much nobody
wants to agree to a time and materials. People are
uncomfortable with time and materials, because you never
know where that might wind up; it would be more than the
$2,200.
So it seems like there could be an initial
compromise that you do require a permit, and the permit
might be for a two-hour minimum. One hour for a
consultation from Staff, plus one hour that involves
letting the permit, and then another hour at the back end
for an inspector to come and say yeah, all looks good. So
you’ve got a two-hour cost to that permit, and if the
inspector says that’s not going to work and there is some
negative thing, then you go into a different time and
materials perhaps. So I think there is good intent here,
but the hard and fast numbers are a problem for me.
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I was asking about this 30’ number, and I see
what has been described on page 43, that that’s tied to the
ornamental landscaping, but I think the false logic here is
that we assume deer fencing is only desired for ornamental
landscaping. There are a lot of reasons why you would want
deer fencing around parts of your property, not just the
ornamental landscaping. I would be in favor of
reconsidering whether Item 4 on page 43 makes sense as
written, considering all the other uses of deer fence that
might be appropriate for a property.
So in summary, I think that the proposed changes
don’t take into consideration the many, many purposes of
fencing. We’ve got boundary delineation, we’ve got privacy,
we’ve got human trespass, you’ve got animal trespass to
keep out, but we also want to provide corridors to allow
free movement. I think what we have is just too
restrictive, as some of our testimonials have said, too
restrictive with consideration of the animals and not
giving enough consideration to the human use and enjoyment
of property.
Then lastly, I do think it’s best if we
disassociate the hillside and the flatland fence
requirements. They’re just two different animals.
VICE CHAIR KANE: Commissioner Burch.
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COMMISSIONER BURCH: Chair, may I direct a
question more to my fellow commissioners for conversation?
VICE CHAIR KANE: Yes.
COMMISSIONER BURCH: I really, really like what
you just said, Commissioner Janoff, so what I would like to
ask my fellow commissioners is we’re giving guidance then
to Staff, because we’ve all been advised by Council to do
this.
In our packet Mr. Mullin gave us an example of
Portola Valley. Portola Valley breaks the zones down by
size: less then one-acre lot, one-acre district, and two-
plus-acre districts. So I wanted to know if perhaps we
looked at something more along this line, and rather than
setting the 30’ we looked at it based on lots, and then we
took what you gave us and/or looked at some type of
designated setback for the property lines to ensure that
there’s a wildlife corridor. Maybe some hybrid between
them, I don't know, but I would just look to my fellow
commissioners and see if you guys would feel that that
would be more of a compromise to the people that own the
property, so we’re not limiting to this small, but we are
still addressing what the Council has asked us to do.
VICE CHAIR KANE: Comment? Commissioner Hanssen.
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COMMISSIONER HANSSEN: If I was going to go back
and look at this, like could you agree with and move
forward with, I agree with Commissioner Janoff’s comments
about the 30’.
Starting from the top, as Mr. Paulson pointed
out, there is no way to have a checkpoint process with the
Town unless there’s a full development proposal, and so
having some language in the code and forcing some kind of
permit and review, that’s something I could agree with.
I can definitely agree that the hillside is
different than the flat areas, but the main issue is the
idea of the wildlife corridors. I happen to agree that the
better approach than having 30’ that applies to all
properties, and 42” here and 60” inches here, is to rather
say that similar maybe to Portola Valley there might be
different standards for one, less than an acre, acre, or
two-plus acres is one way to go about it, but I did like
what we heard in the public testimony that maybe instead to
look at what is the minimum amount of wildlife corridor and
maybe it’s tied to the size of the property, because on a
one-acre property…
I also have a one-acre property in the hillsides,
and if I did the 30’ I would be putting a fence in the
middle of my back yard, and then there would be another 20’
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on top of it, and it goes up a hill, and it would just look
awful. And maybe it would help the wildlife come through,
but you have to have this reasonable standard thing to
evaluate things by, and that’s why I was saying, and then
others have said, you can’t measure this against
everything.
But the best way to me to do it would be to go
after it with a minimum corridor that you need to have
based on the size of the property. There will still need to
be exceptions, because people’s properties are different,
or they have what they have already, but I think you could
kind of strike some of this language with the specifics.
I also wanted to comment on the notion of
wildlife friendly. I appreciate the attempt to define
wildlife friendly, but this is not a standard that any
inspector could live by. All fences, gates, and hedges, it
says, have to be wildlife friendly, and then wildlife
friendly is defined elsewhere saying that it’s any animal
could jump over or climb through or go under. I mean how is
an inspector supposed to evaluate that? I mean that’s just
a completely subjective use. I think it should be obvious
to most people that something that isn’t wildlife friendly;
we have a picture in our Hillside Guidelines about what’s
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wildlife friendly or not. I don’t think we need to define
it in our Town Code.
As far as some of these other specifics about the
spacing of fence posts and stuff, I think we’re getting
into details that we don’t need to. If you force the issue
of the permit, the review process could say this is
reasonable or not, based on the guidelines that we have in
the Hillside Standards. So that’s my input.
VICE CHAIR KANE: Thank you. Further comment? If
we had a motion, and I don’t know that we need one, but if
we did, I’d say by and large the clarity provided in the
revisions are necessary, with many exceptions.
I’ll begin by saying that the 30’, that section
landscaping in the Hillside Design Guidelines uses 30’ for
a number of different landscaping provisions, but I think
nowhere did we say that we needed to have a fence 30’ out.
Thirty feet was used in the guidelines for other
considerations, but not the fence, and clearly it seems it
will not work as a blanket provision, and there needs to be
a provision for case-by-case.
On many of these things I’m in favor of giving
wide discretion to the Community Development Director or
Development Review Committee, and where such a quasi-
judicial process would fail, then bring it to the Planning
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Commission. But I would suspect not too many of those would
fail if reasonable discretion were provided, so I’m
concerned about the 30’; I don’t think it works.
The fees. When I think about repairing a fence,
or moving a fence, or anybody wants to do anything they
want with their house, what is it, $2,333 is kind of
outrageous. The number $233 has been proposed, but that
could be as arbitrary as the $2,333. I do like the time and
materials provision where the Town is compensated for the
expenses that they incur, as they do with many other fee
structures. One would hope that the reviews were
expeditious, it didn’t take 55 visits to the site, and that
the time and materials was managed to keep it to a
reasonable minimum.
I like anything that has to do with mandatory
corridors. Setbacks are 20’, and so if we had two adjoining
properties we’d be looking at a 40’ corridor. Many
testimonies tonight provided clear awareness of the deer
trails by the property owners, and maybe we could start to
learn where those deer trails are. We know where our
riparian corridors are, because they’re pretty clear. We
could make an effort going forward as well to experience
them, to note that this is a trail used by the wildlife,
because I think that is terribly important and is the
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purpose of this exercise, to protect that movement, protect
those animals, for which reason I would never support the
chain-link fence, simply because they can’t get through it,
and that’s the purpose of this exercise, to define wildlife
friendly fences, and a chain-link is just not friendly.
I think an abiding consideration should be the
children. I have no record, evidence, awareness of any
child being injured or endangered, maybe barked and growled
at, but God forbid, I don't know of any child being
injured. That would have to be part of the Community
Development Director’s discretion. If there were infants
involved, we might have a provision for that, because
that’s just tantamount. There’s nothing more important than
protecting a child. So I’d underscore the concept of
discretion, and I’d underscore the concept of if and when
we find ourselves in a repetitious abuse situation we can
revisit the whole question.
And I totally support disassociating the Town
Fence Policy with the Hillside Fence Policy, and I support
what’s been said about taking a second look at the Portola
Valley standards on how they define which project should be
handled in which way. I’m not saying that’s a motion.
Oh yeah, here’s one other thing. On page 2 of 6
of the revision, down at the bottom, it’s defining riparian
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corridor. “Riparian corridor means an area comprised of
habitat, strongly influenced and delineated by the presence
of perennial and intermittent streams,” and for Staff and
Council, I’d recommend taking out the word “strongly.”
What’s is it going to be strongly for? If you’ve got a
riparian corridor, you’ve got to take care of it.
So those are my thoughts. If we could find a way
out of this to say we’ve said what we said, the minutes
will be a record of what we said. I don't know that we need
a motion beyond what the five of us have said, because I
think it’s terribly comprehensive. Be clear that I’m
supportive of this revision with those nine or ten items
that I’ve mentioned and other Commissioners have mentioned.
Commissioner Burch.
COMMISSIONER BURCH: On top of those items, can I
ask my fellow Commissioners about the comment of changing
in the flatland the 6’ to 7’ fence. He’s right, I think
that’s what everyone builds, and maybe rather than have a
document that has everyone out of compliance, would there
be any issue with us changing that? I’m asking the
Community Development Director.
JOEL PAULSON: There is no issue. He stated many
facts. He’s spoken to Council. I’ve had a conversation, and
I believe Mr. Mullin has had conversations with him as
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well. The Town doesn’t have a permit number for fence
exceptions. Anecdotally we know that not many people get
fence exceptions, and as you drive around town there are
many fences that are over 6’ in height. Current Building
Code doesn’t require a Building Permit for fences up to 7’
in height; however, our Town Code from the zoning
perspective still has a 6’ limitation.
So we could definitely modify that, whether it’s
modifying it to 7’, whether that’s 6’ and 1’ of lattice, or
whether that’s 7’ solid, we’d definitely be interested in
input from the Commission on their thoughts on that.
VICE CHAIR KANE: I’ve done some surveys,
amateuristic, and I’d be inclined to support a 6’ fence
with a 1’ lattice, and what I’ve done in my own home is
motivated the vines to get up there, and I did this with
the support of my neighbors, so I’d like the total 7’, but
the last 1’ be a lattice, specific to that.
Anyone else? Commissioner Hanssen.
COMMISSIONER HANSSEN: I had a question. I wanted
to go back to this permitting thing. I was making a
supposition, if a person is going to build a pool and it
includes a fence, did they require a permit for the pool
and then also a separate permit for the fence?
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JOEL PAULSON: No, we would roll that all into
one, because the permit requirement for a fence for a pool
is in the Building Code, so that’s an automatic
requirement.
COMMISSIONER HANSSEN: So this permitting fee
would essentially be for a standalone fence?
JOEL PAULSON: Correct.
COMMISSIONER HANSSEN: Okay, so maybe we need to
make that clearer, so that people don’t… I don't know if we
need to make it clear or not, but I wondered that as I was
thinking through it.
The other thing I wanted to ask was about front
yard fences. It didn’t appear to me that there was any
delineation in the Hillside Guidelines or in the code as
drafted that would say the height of the fence in the front
versus the back.
And I did notice in some of the other
jurisdictions that they would have a lower height of the
fence in the front, which made a lot of sense to me, facing
the street. Then you would have in other parts of the… And
so if your number is 6’, maybe in the front, unless there’s
a special circumstance, there may be some specific
landscaping in front where they need to have something
higher, but I wondered if that shouldn’t be looked at as
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putting a different height limit in the front that was
lower.
VICE CHAIR KANE: And in addition to that, I
would support what I’ve read in the Staff Report, that in
particular corner lots have a special standard for the
height of their fences, as can be used to help prevent
accidents.
I want to go back to what one of the speakers
said about the fences, and I don’t think it’s a secret that
there are many that are beyond what the permissible level
is, and I’d like to reiterate what I think I heard the
speaker say, that a law that’s not enforced is not a law,
it’s an embarrassment, and we have a lot of current
exceptions, so maybe this time the law should reach up to
where reality is.
Other comments? Commissioner Janoff.
COMMISSIONER JANOFF: Just also would support the
6’ high solid fence with a 1’ lattice.
VICE CHAIR KANE: Say again, please.
COMMISSIONER JANOFF: On the non-hillside
properties I would support a 6’ high solid fence with a 1’
lattice at 7’.
VICE CHAIR KANE: Thank you. Good. Other
comments? I’m going to see if I can get out of this easy. I
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don’t think a motion would serve any purpose. I think in
general the five of us are of a mind, in general, on most
of what has been said, and the minutes of this hearing,
especially the last three pages, would be of great value to
Town Council as opposed to a up or down vote, or even a
motion. How say you, Mr. Paulson?
JOEL PAULSON: I definitely will not require you
to make a motion, so if you’d like to forward this with
just the comments stated this evening, then we can do that,
and that doesn’t have to be by a motion either.
VICE CHAIR KANE: How say you, Commission?
CHAIR BADAME: I’m good with that. I can even
make it into a motion just to formalize it. So I will say
that I move to forward Town Code Amendment Application A-
17-002 to the Town Council for consideration of amendments
to Chapter 29, with consideration of comments from
Commissioners and the public, without giving an up or down.
VICE CHAIR KANE: That’s excellent. Do I have a
second? Commissioner Burch.
COMMISSIONER BURCH: I’ll second that.
VICE CHAIR KANE: Any further discussion? I’ll
call the question. All those in favor, say aye. Opposed? It
passes 5-0.
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In this case would there be any kind of an appeal
right on what the Commission has done?
JOEL PAULSON: There are not any appeal rights.
This is simply a recommendation to the Town Council, so
there are no appeal rights.