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.
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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
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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).
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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.
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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.
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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.
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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.
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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
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Distribution:
Dan Ross, 188 Villa Avenue, Los Gatos, CA 95030
Jake Peters, P.O. Box 3486, Ketchum, ID 83340