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Staff Report PREPARED BY: SUSIE PINEDA Contract Associate Planner Reviewed by: Town Manager, Town Attorney, Community Development Department Director, and Finance Director TOWN OF LOS GATOS COUNCIL AGENDA REPORT MEETING DATE: 12/06/2016 ITEM NO: 4 DATE: DECEMBER 1, 2016 TO: MAYOR AND TOWN COUNCIL FROM: LAUREL PREVETTI, TOWN MANAGER SUBJECT: ARCHITECTURE AND SITE APPLICATION S-12-103, SUBDIVISION APPLICATION M- 12-008, AND NEGATIVE DECLARATION ND-16-001. PROJECT LOCATION: 341 BELLA VISTA AVENUE. PROPERTY APPLICANT/ OWNER/APPELLANT: JAKE PETERS AND DAN ROSS. CONSIDER AN APPEAL OF A PLANNING COMMISSION DECISION DENYING A REQUEST TO CONSTRUCT A SINGLE-FAMILY RESIDENCE ON PROPERTY ZONED R- 1:8. APN’S 529-23-015 AND 529-23-016. RECOMMENDATION: Adopt a resolution denying an appeal of a Planning Commission decision denying Architecture and Site application S-12-103, and Subdivision application M-12-008 (Attachment 14). BACKGROUND: The project site is located on the west side of Bella Vista Avenue, approximately 50 feet north of Los Gatos-Saratoga Road (Exhibit 2 of Attachment 1). The site is surrounded by residential uses. Immediately to the rear and below the sloping site (west) are townhomes on Maggi Court. Properties fronting the site across Bella Vista Avenue (east) are developed with single- family homes. Although there are existing single-family homes along the west side of Bella Vista Avenue, there is a gap in the vicinity of the project site, and there are no abutting single- family homes on either side. The site currently contains two legal non-conforming parcels. A previous project proposal for development of the site included two new residences (339 and 341 Bella Vista Avenue). The Planning Commission denied the previous applications, and the decision was appealed by the applicant to the Town Council. At its April 2, 2012 meeting, the Town Council denied the appeal (Exhibit 12 of Attachment 1) with the finding that the applications did not address the concerns of the Commission related to floor area ratio (FAR), house size, and massing from the rear. PAGE 2 OF 9 SUBJECT: 341 BELLA VISTA AVENUE/S-12-103/M-12-008/ND-16-011 DATE: DECEMBER 1, 2016 S:\COUNCIL REPORTS\2016\12-06-16\04 Bella Vista Ave 341\04 Staff Report FINAL.docx 12/1/2016 5:33 PM SZ BACKGROUND (Continued): In December of 2012, the applicant submitted new applications for the current project to merge the lots and construct one new residence. The applicant’s letter of justification (Exhibit 11 of Attachment 1) discusses how the feedback from the Planning Commission and Town Council on the previous project proposal has been incorporated into the applications for the current project. The applications have been reviewed by staff and a Mitigated Negative Declaration (MND) has been prepared. The staff report to the Planning Commission (Attachment 1) contains analysis of the project as originally submitted. The applications for the project as originally submitted were considered by the Planning Commission on April 13, 2016. The verbatim minutes are included in Attachment 3. The Commission heard from the applicant and took public testimony. The concerns raised by the Commission and the neighbors included geotechnical hazards and slope stability of the site, tree removals, the proposed cellar, and the bulk and mass of the home from the rear. The applications were continued to May 25, 2016 to facilitate attendance by the Town’s consulting arborist, consulting geotechnical engineer, and environmental consultant; and the applicant’s civil engineer, and geotechnical engineer. The Commission also encouraged the neighbors to meet with the applicant and staff to discuss their concerns prior to the continued meeting date. Staff provided a sign-up sheet in the Town Council Chambers Lobby after the public hearing for neighbors to provide names and addresses for those who were interested in participating. The applicant’s response letter discusses his additional neighborhood outreach following the April 13, 2016 meeting (Exhibit 17 of Attachment 4). Based on the comments by the neighbors at the April 13, 20 16 meeting, the applicant made the following revisions to the previously submitted project (Exhibit 17 of Attachment 4):  Reduced the main level living floor area from 1,278 to 1,188 square feet;  Reduced the height of the residence at the southwest corner from 21 feet, eight-inches to 15 feet; and  Removed the rooftop deck and replaced it with landscaping. Additional comments received from the neighbors are included in Exhibit 16 of Attachment 4; Exhibit 18 of Attachment 5; and Exhibit 19 of Attachment 6. The Planning Commission considered the revised project on May 25, 2016. The verbatim minutes are included in Attachment 7. The concerns raised by the Commission and the PAGE 3 OF 9 SUBJECT: 341 BELLA VISTA AVENUE/S-12-103/M-12-008/ND-16-011 DATE: DECEMBER 1, 2016 S:\COUNCIL REPORTS\2016\12-06-16\04 Bella Vista Ave 341\04 Staff Report FINAL.docx 12/1/2016 5:33 PM SZ BACKGROUND (Continued): neighbors included geotechnical hazards and slope stability of the site, tree removals, the proposed cellar, and the bulk and mass of the single-family home from the rear. The Planning Commission determined that the technical concerns of the proposed project, suc h as the stability of the slope, impacts to trees, and accuracy of the slope analysi s had been adequately addressed; and that the remaining items to discuss were in regard to mass and scale, neighborhood compatibility, and privacy for the adjacent residenc es. The Planning Commission voted (6-0) to continue the public hearing to the meeting of June 22, 2016 to allow the applicant to work with neighbors on issues of mass and scale, and privacy. The applicant submitted more information and another set of revised project plans for the revisions discussed at the May 25, 2016 hearing (Exhibit 22 of Attachment 8), and the Planning Commission considered the revised project plans on June 22, 2016. The verbatim minutes are included in Attachment 11. The Commission heard from the applicant and took public testimony. The applicant provided more information on the revisions discussed at the May 25, 2016 Planning Commission meeting (Exhibits 20 and 22 of Attachment 8). The revisions also included an updated landscaping plan which provides greater detail of the proposed screening and privacy mitigation measures. The applicant stated that he had discussed the proposed changes with several of the neighbors. Staff received additional comments from neighbors which are included in Exhibit 21 of Attachment 8; Exhibits 23 and 24 of Attachment 9; and Exhibit 25 of Attachment 10. The landscaping plans include a living wall for screening purposes. The proposed wall would vary in height and would average ten feet. Staff informed the applicant that Town Code limits wall heights in residential zones to no more than eight feet with approval of a fence height exception. The applicant provided more information on the proposed revisions, including a reconfigured driveway to allow for onsite turnaround, additional landscape screening, removing and repositioning some windows to increase privacy, and a reduction in square feet on the main level. The concerns raised by the Commission and the neighbors included neighborhood compatibility, tree removals, the proposed cellar, the bulk and mass of the home, and privacy and landscaping. After holding a public hearing and asking questions of the applicant, the Planning Commission voted to deny Architecture and Site Application S-12-103 and Subdivision Application M-12-008 on the basis of neighborhood incompatibility, and bulk and mass issues (5-0, Ereksen abstained and Badame recused). PAGE 4 OF 9 SUBJECT: 341 BELLA VISTA AVENUE/S-12-103/M-12-008/ND-16-011 DATE: DECEMBER 1, 2016 S:\COUNCIL REPORTS\2016\12-06-16\04 Bella Vista Ave 341\04 Staff Report FINAL.docx 12/1/2016 5:33 PM SZ BACKGROUND (Continued): The decision of the Planning Commission was appealed to the Town Council by the property owner, Dan Ross, on July 1, 2016 (Attachment 12). The appellant/applicant requested deferral of the appeal until December 6, 2016. The Town Council is the deciding body for the appeal. If the Council decides to uphold the appeal, it must make one or more of the following findings, in accordance with Town Code Section 29.20.300: a. There was error or abuse of discretion on the part of the Planning Commission; or b. New information was submitted to the Council during the appeal process that was not readily and reasonably available for submission to the Commission; or c. An issue or policy over which the Commission did not have discretion to mo dify or address, but which is vested in the Council for modification or decision. DISCUSSION: A. Project Summary  Subdivision Application The applicant is proposing to merge the two existing lots into one lot. The new lot would conform to the minimum lot size of 8,000 square feet for the R-1:8 zone, but would continue to be non-conforming because it would not meet the minimum lot depth requirement of 90 feet.  Architecture and Site Application The applicant is proposing a 1,392-square foot two-story, single-family residence with a 1,156-square foot cellar, and a 400-square foot attached garage (Attachment 8, Exhibit 22). The residence is proposed to have natural cedar siding and trim, a mixture of composition shingle roofing and green roof, and non-reflective aluminum windows. A color and material board will be available at the Town Cou ncil meeting, and Exhibit 7 of Attachment 1, includes general project data for the property. The proposed project meets the technical requirements for parking, setbacks, height, floor area, and building coverage. As previously mentioned, prior staff reports (Attachments 1, 4, and 8) analyze issues associated with neighborhood compatibility, mass, bulk, cellars, and other considerations identified in the Town’s Residential Design Guidelines and other land use policies. PAGE 5 OF 9 SUBJECT: 341 BELLA VISTA AVENUE/S-12-103/M-12-008/ND-16-011 DATE: DECEMBER 1, 2016 S:\COUNCIL REPORTS\2016\12-06-16\04 Bella Vista Ave 341\04 Staff Report FINAL.docx 12/1/2016 5:33 PM SZ DISCUSSION (Continued): B. Appeal to the Town Council The decision of the Planning Commission was appealed on July 1, 2016 (Attachment 12). The reasons for the appeal are listed below followed by staff comments in italic font.  The Commission abused its discretion and erred because it was unwilling to apply the Town’s cellar policy consistently, finding that the proposed cellar caused the proposed home to exceed allowable bulk and mass and square footage; and The proposed two-story single-family home is 1,392 square feet. The proposed cellar is 1,156 square feet. Since the proposed home is located on a site with an average slope of 53 percent, a large portion of the lower level is visible from the rear elevation, which adds to the visible mass of the proposed residence. The Cellar Policy states that in reviewing plans for cellars, staff shall consider the following: “A cellar shall not extend more than four feet above the adjacent finished grade at any point around the perimeter of the foundation. Below grade floor area must meet the above definition to be excluded from the floor area calculations for the structure.” The area of the proposed lower level which does not extend more than four feet above the adjacent finished grade is considered cellar, the square footage of which is not included in the countable floor area for the home. The Cellar Policy also states that the purpose of the policy is generated from the General Plan policy L.P.2.3, which “encourage cellars to provide ’hidden’ square footage in-lieu of visible mass.” The proposed project is a two-story house with a lower level that is partially comprised of basement area (204 square feet) and largely comprised of cellar area (1,156 square feet). At 1,392 square feet, the proposed residence is under the site’s maximum allowable floor area of 1,486 square feet. Concerns were expressed by the Planning Commission that more than half of the usable square footage would be within the proposed cellar. The Commission also expressed a concern with the Town’s Cellar Policy which allows an applicant to consider a cellar as a possible solution to development on a challenging site, but may simultaneously cause bulk and massing issues on sloping sites. There was Commission discussion that in this case the proposed project may meet the definition, but not the intent, of the Policy which was to reduce visible bulk and mass by allowing below grade square footage. PAGE 6 OF 9 SUBJECT: 341 BELLA VISTA AVENUE/S-12-103/M-12-008/ND-16-011 DATE: DECEMBER 1, 2016 S:\COUNCIL REPORTS\2016\12-06-16\04 Bella Vista Ave 341\04 Staff Report FINAL.docx 12/1/2016 5:33 PM SZ DISCUSSION (Continued): Independent of the interpretation of the Cellar Policy, the Commission determined that the bulk and mass of the proposed home was out of character with the existing neighborhood.  The Commission proceedings were irregular, arising from comments made at the beginning of the hearing, which may have resulted in a failure to provide the Appellant substantive due process. The June 22, 2016 public hearing was opened, the Commission was given a chance to hear all evidence and deliberate on the merits of the case. The hearing lasted over two hours and the written transcript is 64 pages. The Vice Chair confirmed at the end of the hearing that he had considered all of the facts and testimony prior to making a decision on the applications. Two other Commissioners stated that the Vice Chair’s statements did not influence or unduly sway their deliberations of the decision. As stated in Andrews v. Agricultural Labor Relations Board, "The right to an impartial trier of fact is not synonymous with the claimed right to a trier completely indifferent to the general subject matter of the claim before him….Thus neither a prejudgment about the general issues in a case nor an ‘appearance of bias’ is legally sufficient to require a decision-maker to abstain. Instead, it must be shown that the decision-maker has a prejudice against a person affected by the decision and that the prejudice is sufficient to impair the decision-maker's ability to decide the matter on appropriate grounds.” It is the Town Attorney’s position that based upon the law and evidence represented at the Planning Commission hearing, there was not a violation of the Appellant’s substantive due process rights. Furthermore, even if there was found to be violation, the appeal hearing before Council provides further opportunity for a due process hearing. On November 23, 2016, the applicant provided new information not available at the Planning Commission hearing. Based on the comments at the June meeting, the applicant made the following additional revisions to the previously submitted project plans (Attachment 13):  Reduced the overall length of the residence at the northern end by four feet; and  Reduced the total square footage (including countable and cellar floor area) by 137 square feet; and  Removed some windows, and screened others. Due to the late submittal and report deadlines, staff has not analyzed the revisions. Staff will be able to answer questions about the revisions and prior project plans at the Council meeting. PAGE 7 OF 9 SUBJECT: 341 BELLA VISTA AVENUE/S-12-103/M-12-008/ND-16-011 DATE: DECEMBER 1, 2016 S:\COUNCIL REPORTS\2016\12-06-16\04 Bella Vista Ave 341\04 Staff Report FINAL.docx 12/1/2016 5:33 PM SZ CONCLUSION: It is recommended that the Town Council adopt the resolution in Attachment 14 denying the appeal and upholding the decision of the Planning Commission denying Architecture and Site application S-12-103 and Subdivision Application M-12-008 with the findings provided in Exhibit A of Attachment 14. ALTERNATIVES: Alternatively, the Town Council could: 1. Adopt a resolution (Attachment 15) granting the appeal and remanding the applications to the Planning Commission with specific direction, determining that the Planning Commission's decision should be reversed or modified, and finding one or more of the following, in accordance with Town Code Section 29.20.300: a. There was error or abuse of discretion on the part of the Planning Commission; or b. New information was submitted to the Council during the appeal process that was not readily and reasonably available for submission to the Commission; or c. An issue or policy over which the Commission did not have discretion to modify or address, but which is vested in the Council for modification or decision. 2. Adopt a resolution (Attachment 16) granting the appeal, making the required findings and considerations (Exhibit A of Attachment 16), approving Architecture and Site application S- 14-056, and Subdivision application M-12-006 subject to conditions (Exhibit B of Attachment 16), determining that the Planning Commission's decision should be reversed or modified, and finding one or more of the following, in accordance with Town Code Section 29.20.300: a. There was error or abuse of discretion on the part of the Planning Commission; or b. New information was submitted to the Council during the appeal process that was not readily and reasonably available for submission to the Commission; or c. An issue or policy over which the Commission did not have discretion to modify or address, but which is vested in the Council for modification or decision. 3. Continue the project to a date certain with specific direction. The Council must at least open the public hearing for the item but may continue the matter to a date certain if the Council does not complete its work on the item due to the length of the agenda. PAGE 8 OF 9 SUBJECT: 341 BELLA VISTA AVENUE/S-12-103/M-12-008/ND-16-011 DATE: DECEMBER 1, 2016 S:\COUNCIL REPORTS\2016\12-06-16\04 Bella Vista Ave 341\04 Staff Report FINAL.docx 12/1/2016 5:33 PM SZ ALTERNATIVES (Continued): If the Council determines that the appeal should be granted, specific facts supporting the finding(s) in Town Code Section 29.20.300 must be incorporated into the resolution (Attachment 15 if remanding to the Planning Commission or Attachment 16 if approving the applications). COORDINATION: The Community Development Department coordinated with the Town Attorney, the Parks and Public Works Department, the Los Gatos-Monte Sereno Police Department, and the Santa Clara County Fire Department in reviewing the proposed development applications. ENVIRONMENTAL ASSESSMENT: An Initial Study and Mitigated Negative Declaration (MND) were prepared for the project by the Town’s Environmental Consultant, Kimley-Horn, and are available online at: http://www.losgatosca.gov/DocumentCenter/Home/View/16041. The 20-day public review period began on March 4, 2016 and ended on March 24, 2016. Mitigation measures are required for Air Quality, Biological, Geology and Soils, Hydrology and Water Quality, and Transportation and Traffic. The Response to Comments on the MND is provided in Exhibit 4 of Attachment 1, and the Mitigation Monitoring and Reporting Program is provided in Exhibit 3 of Attachment 1. Mitigation measures have been incorporated into the recommended conditions of approval (Exhibit B of Attachment 16). Attachments: 1. April 13, 2016 Planning Commission Staff Report (Exhibit 1 sent under separate cover, Exhibits 2- 13 included, and Exhibit 14 has since been revised [see Exhibit 22 of Attachment 8]) 2. April 13, 2016 Desk Item (includes Exhibit 15) 3. April 13, 2016 Planning Commission Verbatim Minutes 4. May 25, 2016 Planning Commission Staff Report (includes Exhibits 16-17) 5. May 25, 2016 Addendum (includes Exhibit 18) 6. May 25, 2016 Desk Item (includes Exhibit 19) 7. May 25, 2016 Planning Commission Verbatim Minutes 8. June 22, 2016 Staff Report (includes Exhibits 20-22) 9. June 22, 2016 Addendum (includes Exhibits 23-24) 10. June 22, 2016 Desk Item (includes Exhibit 25) 11. June 22, 2016 Verbatim Minutes 12. Appeal of Planning Commission Decision, received July 1, 2016 (three pages) 13. Revised Project Plans, received November 23, 2016 14. Draft Resolution to deny the appeal and deny the project (includes Exhibit A) 15. Draft Resolution to grant the appeal and remand the project to the Planning Commission 16. Draft Resolution to grant the appeal and approve the project (includes Exhibits A and B) 17. Public Comment received by 11:00 a.m. Thursday, December 1, 2016 PAGE 9 OF 9 SUBJECT: 341 BELLA VISTA AVENUE/S-12-103/M-12-008/ND-16-011 DATE: DECEMBER 1, 2016 S:\COUNCIL REPORTS\2016\12-06-16\04 Bella Vista Ave 341\04 Staff Report FINAL.docx 12/1/2016 5:33 PM SZ Distribution: Dan Ross, 188 Villa Avenue, Los Gatos, CA 95030 Jake Peters, P.O. Box 3486, Ketchum, ID 83340