Attachment 11 - June 22, 2016 PC Verbatim MinutesLOS GATOS PLANNING COMMISSION 6/22/2016
Item #7, 341 Bella Vista Avenue
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A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
D. Michael Kane, Vice Chair
Kendra Burch
Charles Erekson
Melanie Hanssen
Matthew Hudes
Tom O’Donnell
Town Manager: Laurel Prevetti
Community Development
Director:
Joel Paulson
Town Attorney: Robert Schultz
Transcribed by: Vicki L. Blandin
(510) 337-1558
ATTACHMENT 11
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P R O C E E D I N G S:
CHAIR BADAME: I will be recusing myself from
Item 7, as the project application is within 500’ of my
residence. Vice Chair Kane will be presiding over the
duration of the hearing.
Those of you who wish to speak on this item,
please complete speaker cards and bring them up to the
Staff member or myself before I leave.
Vice Chair Kane, we will need to get Commissioner
Hudes back in.
COMMISSIONER O'DONNELL: There he is.
CHAIR BADAME: All right.
VICE CHAIR KANE: This is Item 7, 341 Bella Vista
Avenue, Architecture and Site Application S-12-103,
Subdivision Application M-12-008, and Negative Declaration
ND-16-001, requesting approval to merge two lots, construct
a new single-family residence, and remove large protected
trees on property zoned R-1:8. This is APN 529-23-015 and
-016.
May I see a show of hands from Commissioners who
have visited the site? Are there any disclosures?
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Ms. Moseley, I understand you’ll be providing us
with a Staff Report this evening.
MARNI MOSELEY: I will be. As you are aware, the
Planning Commission previously considered the application
on both April 13th and April 25th. After sufficient expert
testimony, from the Applicant’s team and consultants of the
Town, the Commission determined on May 25th that the
technical concerns of the proposed project, such as the
stability of the slope, impacts to trees, and accuracy of
the slope analysis 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 residences.
The Applicant has provided more information
regarding the proposed reductions and modifications that
were discussed on May 25th. Several of the neighbors have
been able to meet with the Applicant to discuss these
modifications, and several of the comments from these
neighbors are included in the packet materials.
Additional clarification is also provided within
your report, and Staff and the Applicant’s team—including
their architect, and I believe their landscape architect;
maybe he’s not here yet—are available to answer any
questions in regard to clarification for those
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modifications and the privacy mitigation measures that are
proposed to be implemented within the most recent sets of
plans.
Staff is here to answer any questions you may
have. This concludes my report.
VICE CHAIR KANE: Thank you, Ms. Moseley. Are
there any questions for Staff? Commissioner Hanssen.
COMMISSIONER HANSSEN: I wanted to thank you for
the additional clarification about the floor area ratio,
but I’m still not clear on how the numbers came out between
the Hillside Design Guidelines and the Zoning Code, because
it’s important for any lot that has a slope of that
severity; there are some impacts to the size of the lot.
If I read the Hillside Design Guidelines
correctly it sounded like you’d need to adjust the lot
size, reduce it by 60%, when you have this type of slope on
a lot. Then Table 2 that’s in our Hillside Design
Guidelines says net lot area of 11,000 square feet or less,
floor area ratio of 34.5%, allowable floor area of 3,800.
And he said that if it was the Hillside Design
Guidelines it would be 3,800, but my question is why would
a lot that is 11,000 square feet and a lot that’s 2,000
square feet both be eligible for 3,800 square feet, or did
I not get that right?
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MARNI MOSELEY: The chart is used a little
differently than you would the Zoning Code where you’re
really looking at a specific number. That chart looks at up
to, so for example, a 19,001 square foot lot would be
subject to that next section of allowable floor area. As
far as Joel and I are aware, ever since those were approved
in 2004, we’ve not used the ratio; it’s always been the
number within the chart.
COMMISSIONER HANSSEN: Now I understand it
correctly. I thought it was that you would apply the 34.5%
to the actual net square footage; but that’s not the case,
you just give them the 3,000 square feet if they use the
Hillside Design Guidelines. That’s why you use the Zoning
Code regulations, because it’s the more restrictive of the
two, and it came out to slightly under 1,500 square feet.
MARNI MOSELEY: Correct.
COMMISSIONER HANSSEN: Thank you.
VICE CHAIR KANE: Other questions for Staff?
Seeing none, thank you, Ms. Moseley.
I’ll now open the public portion of the hearing,
and allow the Applicant and their team ten minutes to
address the Commission. State your name and address for the
record.
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BARTON HECHTMAN: Good evening, Vice Chair Kane
and members of the Commission. I’m Bart Hechtman, back
again for the Applicant, the Ross family.
At the conclusion of the hearing on May 25th, as
Ms. Moseley has just described, the Commission reached
consensus that it had sufficient information on a number of
issues, including traffic, trees, and geotechnical safety,
and asked the Rosses to further investigate what they were
willing to do to address the visible mass and bulk of the
proposed home, the privacy concerns of the downhill
neighbors, and safety concerns regarding the driveway.
The Commission asked the Rosses to invite the
neighbors to meet to review and discuss the Rosses further
efforts on these topics, and strongly encouraged the
neighbors to accept that invitation when it was offered and
to take that opportunity to have meaningful discussions.
So that’s what the Rosses have done, and I’m
going to focus our presentation tonight on the additional
information various Commissioners requested at that
hearing, much of which you’ll find in your Staff packet.
Here’s a more detailed listing, from our
accounting if you will, of the items the Commission asked
to be addressed. Show the widened driveway and potential
turnaround in the driveway; further address privacy related
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to bulk and mass; update the landscape plans, including
initial plant size, growth rates, and mature heights, with
color renderings showing existing and new trees; and
exhibits showing ways to limit views. There is a list of
different tools that could be used for those purposes, and
then neighbors to meet and provide input.
I’m going to lead you through a series of slides
showing the Ross’s efforts to address these issues, and
then the project architect can answer your questions.
Just to refresh, this is the evolution of the
plans in response to Planning Commission, neighbors, and
Council over the past seven years. We started with the two-
home proposal that is shown at the bottom. Then we move to
the very top, which was the single home proposal that first
came to you. In the middle is the modified version that is
in the plans that have been submitted in your current Staff
packet.
As we reviewed last meeting, compared to the two-
home proposal, 42% reduction in square footage of the home,
a 40% reduction in the lineal feet of rear elevation, and a
46% reduction in rear elevation wall mass square footage.
Now, these reductions are before consideration of the new
revisions to the plans that further reduce height, bulk,
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mass, and square footage of the home, which I’ll discuss a
bit later.
At the last hearing one of the Commissioners
asked if we’d consider widening the driveway to allow cars
to turn in the driveway and pull out headfirst. Before you
is a reconfigured driveway that allows for onsite
turnaround and nose out first. This plan also includes the
widened mouth of the driveway that we had a sketch of at
the last hearing; if you’ll recall it was sort of drawn in.
It’s now built into the plan, on the right side of the
driveway now. If the Commission prefers this design to the
one in the application packet, then it can be added as a
Condition of Approval, which is acceptable to the Rosses.
Regarding additional screening, we asked David
Fox, the landscape architect, to provide a series of layers
of landscape, screens, and buffers for additional privacy,
and we have included four layers in the plans. There are
multiple landscape and screening elements and features of
privacy that have been included.
At the property line, which is at the top of the
green, plantings have been added for immediate privacy.
Then at the lower level of the property plantings added
with green screens, or the wood panels, which I believe
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were a prior feature, to completely eliminate views and
address privacy from the lower level.
The lower and first level of the home I’ll review
in a moment, but windows have been removed or changed at
the lower and first level to maximize privacy.
On the roof, the north roof deck is now a planted
green roof and totally inaccessible, so there is no
interface issue there with people at that space looking
down at the townhouses on Maggi Court.
We’ve added deep shelves and planters to
eliminate downward views from the driveway area. The patio
has been located at the north end to eliminate views and
interaction and address privacy, and the Rosses would also
be agreeable to a Condition of Approval requiring them to
seek neighbors’ input in the field as to the location and
types of trees to be planted, although we do have a full
landscape plan presented to you as part of the package
tonight.
Here are some images of the green screen. You can
see it’s sort of a three-dimensional fencing material that
green materials can grow through and fill out. The Rosses
would defer to the Planning Commission on a Condition of
Approval to include either this kind of green screening or
the wood panels that were part of the prior plans.
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Then next, and I’m sorry for the small size of
this—I know it’s difficult to see from your vantage, and
it’s different to see from mine—but these are images of the
planting varieties proposed. Again, we’re open to Planning
Commission Conditions of Approval for any additions,
locations, size, type, and placement, but this is the
palette of vegetation that’s being proposed.
The Commission also asked for renderings showing
existing and proposed landscaping. You can see here the
plans without planting; that’s the upper row. The plans
with existing and proposed, that’s the middle row. The
shading is a little bit difficult to see here, but the
existing are these very lightest gray bulbs, and then
everything darker is proposed. Then at the bottom what
we’re showing—and I’m sorry this looks like it’s too dark
to really see-is the existing tree canopy.
Let me go to the next slide, where hopefully it’s
a little better. If it’s not, I’m sorry.
I’m sorry you can’t see this better. This is the
existing tree canopy on the bottom, and this on the top is
actually the house scaled to this photograph, so you can
line up. Where you see the house in the upper, you slide it
down into this tree canopy, and I think there are two large
trees that I’m pointing to now that get removed to make
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room for that house. I’m not saying that those are the only
two trees, I’m just saying that there are two very large
trees that are; you can see them on the plans.
I do want to note that these images only include…
For example, this drawing at the top, it only includes the
plantings on the Ross’s property, and they haven’t included
the existing shrubs and trees on Maggi Court properties,
which are already there to screen.
In terms of the work done to address privacy,
they’ve removed windows; raised other windows to eliminate
views or otherwise inhibit the views using privacy
(inaudible) and other measures; eliminated the cantilevered
bump-out, which decreased the home by 172’ and moves the
home farther away from property lines and neighbors; we
covered that at the last meeting.
The main square foot living area was 1,278; now
it’s 1,106, which is 74% of the allowable max FAR. The
1,106 main level, plus 204 square foot lower level gives
you countable FAR of 1,310, 88% of allowable, so the Rosses
are not maxing development of these parcels.
These are images that perhaps you might want to
ask the architect about, because these show the before and
after in the context of the screening, but I don’t have
time to cover them now. These are a summary of the various
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privacy issues, ways we’ve addressed privacy. You’ve seen
this slide before. We’re in compliance with everything, all
of your requirements.
Lars Guy, who is the project architect, is here.
David Fox, the landscape designer, is supposed to be here;
we don’t know why he’s not; we’re sorry. But they’re here
to answer your questions. Thank you for allowing us to
update you on our progress, and if any of you want to ask
me about interface with the neighbors, that’s the one thing
I didn’t have time for.
VICE CHAIR KANE: Thank you, Mr. Hechtman. I’m
going to do something unusual before I open this up to the
public hearing. I’ve gone over the latest revisions that
you’ve submitted, and I received another batch of letters
from the neighbors, and on the major points there seems not
to be any movement was sort of where we were, with a lot of
noble attempts.
BARTON HECHTMAN: Thank you.
VICE CHAIR KANE: And I thank you for your noble
presentation as well, but the thing is I don’t think we’re
getting anywhere necessarily, and I was wondering if you’d
be interested in… I would like to have your agreement on
this, and I will need the agreement of the Commission, but
I’m wondering if you’d like to have an up or down decision?
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I don’t see movement. I’m just wondering if I can
facilitate this in any way.
BARTON HECHTMAN: We would like a decision from
the Planning Commission, absolutely. In terms of up or
down, I guess I would say if it’s up, with the caveat that
we’re open to conditions, as I’ve tried to indicate in our
presentation. We’ve tried not to make a take it or leave it
presentation tonight.
VICE CHAIR KANE: Right.
BARTON HECHTMAN: Right? And so as long as the
Commission understands that, that we’re open to that kind
of flexibility, we’ve made I think a tremendous effort to
address concerns.
VICE CHAIR KANE: I think your presentation was
gracious. I don’t think it has affected the bottom line of
pros and cons and gray and mass and scale. What’s the joke
about location? Location, location. It’s mass and scale,
mass and scale.
BARTON HECHTMAN: But it’s visible mass and
scale, and I should point that out.
VICE CHAIR KANE: Did you just say no? Do you
want to do a yes or no? Because I want to ask the
Commission what they think. Would you like an up or down
vote?
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BARTON HECHTMAN: Your question was do we want an
up or down vote, and I think our answer was yes, we would
like a decision by the Commission, recognizing that we’re
open to conditions.
VICE CHAIR KANE: All right. Commissioner
Erekson, did you have your hand up?
COMMISSIONER EREKSON: I guess I’m not sure when
the appropriate time for me to make the comments I would
like to make are, other than the Vice Chair opened the
door. I think the Vice Chair took the initiative to
represent the Commission on the fact that there was no
progress being made, and I think that was presumptive on
the part of the Vice Chair.
VICE CHAIR KANE: So you disagree. That’s all I
need. We’ll go forward.
COMMISSIONER O'DONNELL: He can talk.
VICE CHAIR KANE: Yeah.
COMMISSIONER EREKSON: So I think it was
presumptive and I think inappropriate to do.
VICE CHAIR KANE: So that’s a disagreement, so
we’ll go forward.
JOEL PAULSON: I would jump in just to offer that
the intent, I think, was just to get that question
answered. We always were going to go through the hearing
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process, as it typically would be done, so I assumed you
were just looking for that input up front…
VICE CHAIR KANE: Yes.
JOEL PAULSON: …as we move through the process.
VICE CHAIR KANE: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I just want to be clear,
to make sure our understandings are the same. My
understanding is normally when you say you want an up or a
down decision, it basically means you either agree with us
or you don’t. He has told us, my understanding, if you have
some changes that you would like to make, we would consider
those, so it isn’t up or down, because to the extent that
what is before us is not necessarily what we’ll wind up
with tonight, saying up or down now is probably not as
helpful as you hoped it would be.
That’s just a comment of mine, not a criticism,
but let’s keep in mind that they seem… If it were relevant,
and I don’t want to prejudge this, if we came up with some
conditions that in the majority of our minds might improve
the project if it were necessary, they would entertain
those. Now, they might not accept them, but they would
entertain those.
BARTON HECHTMAN: Exactly right.
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VICE CHAIR KANE: And do we have questions for
the speaker? Commissioner Burch.
COMMISSIONER BURCH: I would like for you to walk
me through the neighborhood outreach. We received some
letters as Desk Items today that sound like perhaps it
didn’t go as smoothly as I had hoped, so I would like you
to please walk me through all the steps that you have done
since our prior meeting.
BARTON HECHTMAN: I will do that, and I will
confess that I haven’t seen the letters that you received
as Desk Items today.
First let me say that the process for the Rosses
of gathering the additional material, the landscaping
plans, the images that are in your packet and shown
tonight, that took a bit of time, because they basically
had to line up behind whoever else was already in line with
the contractors they used, so it took more time than the
Rosses wanted.
But Mr. Ross hand delivered a letter to his
neighbors, offering to meet and to receive input on the
plans and the privacy measures. He was contacted by a group
of neighbors early last week who wanted to meet last
Wednesday, and he met with four neighbors from Maggi Court
last Wednesday at the Los Gatos Community Center.
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Because the meeting was set up on short notice,
he didn’t have copies of all the plans that have now been
submitted, because those plans were being finalized; they
were actually being printed that night and the next
morning. But at the meeting he showed them what he had,
described what else was coming, and asked for feedback. The
neighbors, according to Dan, were disappointed that he
didn’t have complete plans with him and they declined to
offer any feedback at the meeting.
So then he offered to hand deliver on Thursday
copies of the plans and meet again, and asked for email
addresses so he could provide the plans electronically. The
four neighbors there said they didn’t want hard copies. He
sent an email to the only resident that was willing to give
Dan an email address, providing a link to the plans and an
offer to meet Saturday, Sunday, Monday, Tuesday, or today,
to review the plans, and Dan never heard back from that
neighbor.
I totally agree with your characterization that
it didn’t go as you had hoped. I was here, I understood
completely the neighborly interaction that you were looking
for, and from my perspective it definitely didn’t happen,
but an effort was made by the Rosses to get it to happen.
COMMISSIONER BURCH: Thank you.
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VICE CHAIR KANE: Are there other questions?
Commissioner Hudes.
COMMISSIONER HUDES: I was curious; you showed us
a sheet L-1.0 in your presentation that appears to be
different from what we have in our packet.
BARTON HECHTMAN: Early on the…
COMMISSIONER HUDES: Early on, yeah. It’s the
landscaping plan, L-1.0. There we go.
BARTON HECHTMAN: This one?
COMMISSIONER HUDES: Yes.
BARTON HECHTMAN: Do you have a colorized
version, or not colorized?
COMMISSIONER HUDES: No, not just colorized, also
things seem to be different as well. Is that simply that
we’re missing some information because it’s not in color,
or is this a different version that we have?
BARTON HECHTMAN: I’m not sure. You can see on
the version on the screen, it shows the revised driveway
with the little turnout area. Does your plan show that?
COMMISSIONER HUDES: No, it doesn’t show that
gray shading of the turnout, it shows a retaining wall at
approximately a right angle along that corner. My question
is which one is correct, and if it’s this one, can we get a
copy of that, please?
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BARTON HECHTMAN: The one being shown on the
screen is the correct, updated one. It apparently came to
us late. Do you have a copy yet?
MARNI MOSELEY: Let me clarify. The landscaping
that is provided on the L-1 is the same as the landscaping
shown on what is in the PowerPoint. The difference is that
they have overlaid the information that was provided in the
addendum as far as the backup and the possibility for
moving that wall. This is the only change that is different
from sheet L-1 in your packet, as well as the color
differentiation.
COMMISSIONER HUDES: So the landscaping hasn’t
changed since August 9, 2015?
MARNI MOSELEY: I can’t speak to the dates that
are provided on here. Sometimes those dates don’t change
accurately, but the information that’s provided here
matches what is shown on the screen, just in color.
BARTON HECHTMAN: Mr. Ross is telling me you
should in your plan set have a second landscape plan called
“Rev,” I guess for Revision B.
COMMISSIONER HUDES: L-1.0 as well?
BARTON HECHTMAN: We’ve got to look at our plan
set.
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VICE CHAIR KANE: We seem not to have that
particular sketch.
DAN ROSS: Dan Ross, Applicant. What David Fox
did was add a second row to this one. You see the smaller
plants on the property line? He did add some additional
trees in this gap right here, and I thought it was in the
packet, so I apologize for that, but the intention here,
and part of our conversation, is that to get neighbor and
Town input when the date comes to plants, trees, and
shrubs, based on sun patterns, shade patterns, that kind of
thing, so that’s something we can get to.
COMMISSIONER HUDES: This is what you’re applying
for, not what’s in here, is that correct?
DAN ROSS: This is the same plan. We were just
able to add some colors. To show you, the dark green is
established trees that are there already, the lighter green
is proposed new trees, and then additional shrubs along the
property line.
VICE CHAIR KANE: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: Could I just interrupt
for one moment? The confusion I have at least is forget the
landscaping. You were showing on that plan, if I read it
correctly, a backup. Now, maybe my fellow commissioners
have it. I don’t find it in my package. Forget the
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landscaping. I don’t have the backup shown, so if I don’t
have it, it’s possible we don’t have it, so that was my
comment.
Now, to the extent that the latest landscaping
plan may be different too, I don’t think I have that
either, so there are two things. You had begun this evening
by saying you essentially had an alternate and you didn’t
care which one you did. One would allow the car to turn
around nose out.
BARTON HECHTMAN: Correct.
COMMISSIONER O'DONNELL: So I understood from
you, you said to us take your pick, so there would be two
of them.
BARTON HECHTMAN: Yes.
COMMISSIONER O'DONNELL: So the question wouldn’t
be is this your current proposal, it would be is this one
of your two current proposals on turnaround? But as far as
the landscaping is concerned, we only have the older plan,
I believe. But we can look and see, and if we have
questions, we can ask.
VICE CHAIR KANE: That’s a good question. Do we
have other questions for the speaker? Commissioner Hanssen.
COMMISSIONER HANSSEN: I wanted to follow up on
the interactions with the neighbors. I may possibly be
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misinterpreting things, but based on what I heard described
it sounded like it took some time to get the revised plans,
and that the neighbors never got to see those revised
plans, and even though that was offered, this was like less
than a week ago. So if it was really important to get the
neighbors’ input, did you consider, given how long it took
to get the additional information, maybe continuing this
until the neighbors had a chance to actually review it?
Because it seemed to me from some of the letters, and I
can’t really speak for them, that they were willing to hear
it, but that the information wasn’t there when they were
present, and so then they kind of got frustrated. So I just
wondered if you considered continuing this so that the
neighbors could have actually had time to review the plans?
BARTON HECHTMAN: Yes, we did. We did, but we
felt that the history of interactions, including the
interactions that took place last week, made pretty clear
to us that the neighbors weren’t interested in a neighborly
dialogue. They had an opportunity, four of them sitting in
a room, to get physical copies of the plans Thursday
morning, which yes, it’s less than a week ago, but we got
the Staff Report even later than that, so there is plenty
of time for people who want to engage in dialogue between
last Thursday and tonight to have a dialogue, and our
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feeling is, honestly, that it doesn’t matter how long we
put this off, these neighbors don’t want this house; they
just don’t.
COMMISSIONER HANSSEN: Okay.
VICE CHAIR KANE: Questions for the speaker?
Seeing none, thank you. I’m going to open the public
portion of the hearing for inviting comments from members
of the audience. If you wish to speak to us tonight, please
fill out a speaker card, and I’ll begin calling two in a
row, so the second person knows that they’re up in a
moment. Nicholas Williamson. Mr. Williamson, you will have
three minutes.
NICHOLAS WILLIAMSON: Good evening. There still
are significant issues, as we’ve established, and really,
the root cause seems to be the size of the house, so I just
want to focus a little bit on the FAR and the role that
that’s playing in this house. The FAR we talked about, I
think it’s less than what is in the Staff Report, but we
can come back to that.
Mr. Ross will argue that he’s designed to the
FAR, but usually the FAR describes living areas, and it
typically doesn’t include areas which are the storage and
not living area, so things like the garage and the cellar
are outside of the FAR, because it’s trying to describe
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living areas. Well, the lower floor of this house is quite
clearly a living area. It’s all living area; it’s bedrooms,
and they’ve all got patio door windows that face out. Even
the bathrooms have got windows. Everything is living area
there, and is designed to be living area. It’s not a
cellar, and it’s not any way near a cellar in its purpose.
It’s not storage, and it should be included in the FAR, and
that would push the house well beyond the FAR limit.
The house actually though has been designed to
maximize square footage, which is contrary to the Hillside
Standards and Guidelines. It actually wants that lower
floor area. It makes up more than 50% of the entire house,
and it’s very crucial to this design. Everything that’s
been chopped off this in the last week or two weeks or
whatever it is, is keeping the inflated structure, and that
inflated structure is creating bulk and mass and visibility
issues, and it’s really not fair, it’s not reasonable, and
it’s contrary to the guidelines.
The dead space argument that comes up, it doesn’t
wash, because the argument gets made that the space
underneath the building would otherwise be dead space, but
this is the wrong way to think about things. The design of
the building has to solve the bulk and mass issues. If the
design has a lot of dead space and the bulk and mass issue,
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turning the dead space into livable space does not solve
that issue; it just creates more issues, privacy issues, on
top of bulk and mass issues. The whole design of this has
been designed to maximize square footage, which is creating
bulk and mass issues, and really, it’s an abuse of the law
around the Cellar Policy.
Cellars are for storage, we know that, and
cellars are excluded because you’re not supposed to live in
them. If it was truly a cellar, it would be subterranean
and people probably wouldn’t choose to live down there,
because it would be dark, and then it would be clearly for
storage. This is not; it’s a livable area.
So I just think these issues, I think
Commissioner Kane is right; they’re really at an impasse.
This is a very, very difficult lot, and my personal
favorite, it’s a sticky wicket we heard last time, which is
a peculiar phrase for this country, but it is. It’s a
hugely difficult lot with no LRDA, and 100% of this house
outside the LRDA. I just urge you to deny it.
VICE CHAIR KANE: Thank you, Mr. Williamson.
Questions for the speaker? Commissioner O'Donnell.
COMMISSIONER O'DONNELL: Did you have an
opportunity to look at the proposed privacy wall that they
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put in, and they’ve illustrated some lines of sight for the
lower part of the house? Have you seen those drawings?
NICHOLAS WILLIAMSON: I’ve seen everything that
you saw on the website on Friday evening. I was not given
anything before that.
COMMISSIONER O'DONNELL: I saw those plans fairly
recently myself, and I looked at them and I did see the
attempt to deal with the concerns of looking down into
somebody’s house, and I just wondered, did you look at
those drawings?
NICHOLAS WILLIAMSON: Yes, I did, and honestly,
it’s very conceptual on paper. I think that the Hillside
Standards are a special responsibility, and hiding walls
with large fences, very large fences over 10’ I read in
there, and then hoping that something grows on it, or even
buildings more walls to hide walls, and retaining to keep
the plants from thriving, because it’s so steep, it’s so
conceptual that really, until the building is addressed, I
don't know how the privacy issue… I think the privacy issue
is secondary to the building issue.
COMMISSIONER O'DONNELL: Thank you.
VICE CHAIR KANE: Thank you. Commissioner Hudes,
did you have your hand up?
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COMMISSIONER HUDES: Thank you. I appreciate your
testimony, as you’ve provided, I think, a very, very
concise and simple way of looking at some of the issues
here. I’d like to maybe just draw in a little further on
the screening and the landscape privacy issue. There were
some alternatives presented in terms of green screen versus
wall. Do you have an opinion about that?
NICHOLAS WILLIAMSON: I don’t at this stage,
because as I say, I think the building issue needs to
addressed first, and I think it’s very conceptual. I
haven’t seen any of these in real life.
I mean obviously anything living in the
hillsides; I think that that should be our preference. We
want the rural landscape, so living is a good thing, but I
have a huge living wall outside my office and in three
years it’s found it very hard to thrive, and my company has
got a lot of resources to try to make it thrive, so that’s
putting a lot of burden on the owners that will come in,
the occupants that will come in, to try to keep something
alive. On the other hand, a wall just fills me with horror,
really.
I just say the building issue first. Privacy is
very important, and I’m glad for all of your comments on
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privacy last time and your concern right now, but it’s
hugely conceptual.
I know what works at the moment, and it’s the
very big oak trees that are in the middle. They provide a
huge amount of privacy and protection. Replicating that is
almost impossible once they’ve gone. I don’t think they’ll
ever grow back, and I’ve consulted my company’s arborist on
growing those things. Part of the reason they’re split from
the base is because it’s so different to grow and to
thrive.
VICE CHAIR KANE: Thank you. Other questions for
the speaker? Thank you, Mr. Williamson.
NICHOLAS WILLIAMSON: Thank you very much.
VICE CHAIR KANE: Ken Lown, followed by Patrick
Tillman. You’ll have three minutes. Give us your name and
address, please.
KEN LOWN: Thank you. My name is Ken Lown; I live
at 156 Maggi Court. I was traveling on business all of last
week, so I was not able to make the meeting; my wife did
make the meeting, and she may say something about it
tonight.
I think the Commission and my neighbor Nick
really hit on the crux of the differences between the
neighbors and Mr. Ross: It’s the size of the building. It’s
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huge. Everything looks really tiny on the model. I think
you’ve all looked at the site. You’ve looked at the story
poles. I think at least some of you have looked at it from
the perspective of Maggi Court, and it is enormous. The
reductions being compared to a previous proposal of two
houses that was rejected, and the communication of Dan
Ross, personally, I think has been clear. I think it’s been
clear from the neighbors’ objections. I think it’s been
clear from comments from the Commission, at least in the
previous proposal of the two homes: Reduction of mass and
scale.
The building is still huge. The cellar does not
accomplish the spirit of the Hillside Guidelines, because
it does not hide bulk and mass from the neighboring homes,
and that’s really all I have to say tonight.
VICE CHAIR KANE: Thank you. Questions for the
speaker? Thank you, sir. Mr. Tillman followed by Natalia
Stulskaya.
PAT TILLMAN: Good evening, Pat Tillman; I live
at 150 Maggi Court. I live with Mary Badame, the
Chairperson.
On February 13, 2013 at a study session, one of
the Commissioners said, “You have a problem I can’t solve.
Merging the lot and having one big building is not going to
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happen.” That’s a quote; I provided that in one of my
letters. Because of some of the comments at the last
meeting, I need to address a few things.
The authority of this panel is by virtue of a
government code section, which kind of presupposes some
consistency with the state law. One of those laws is
Evidence Code 11, and it defines the words “shall” and
“may.” The folks in Los Gatos defined it themselves the
exact same way in the General Rules at 18.04.020,
Subsection C. It was then again reiterated in the Hillside
Standards on page 10; it’s exactly the same as the Evidence
Code and it means exactly what you think it means: Shall is
mandatory, may is permissive. With that in mind, the
Hillside Standards on page 10 emphasize full compliance
with all standards. Emphasize it. They already defined; now
they emphasize it.
Now, I provided a laundry list of things that are
not in compliance in my April 4, 2010 letter: privacy, cut
and fill, FAR, three stories, height, bulk, mass,
compatibility, and I think I heard today—I should have put
it in first—neighborhood compatibility. None of them have
been addressed by their plans. They’re abusing every single
one of them.
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The Hillside Standards say you must have a
compelling reason to offset or sidestep a standard. I have
not heard one yet, and I haven’t ever in the last five
years.
Because of the comments that were made last
month, with all due respect, you shouldn’t take these
standards or the rules that we put in place so lightly.
They’re important to us. We bought our homes in large part
based on them. We didn’t anticipate this.
Separate issue. We have also defined the cellar.
The cellar is in 18.04.030 and in the Zoning Code
29.10.020. It includes when you read that, if you do,
finished grade. With those two, you can’t say this is a
cellar. You have three open sides of that 1,300 square foot
building stuffed into the side of a hill. Three fully
exposed sides, and no courtroom will support that
definition of a cellar. That’s important.
VICE CHAIR KANE: Let me see if there are any
questions. Seeing none, thank you, sir.
PATRICK TILLMAN: There was a question, and this
is a brand new issue. The explanation of FAR…
VICE CHAIR KANE: There’s no question from us,
Mr. Tillman.
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PATRICK TILLMAN: Could I get one about the FAR?
The explanation you were given from Ms. Moseley was wrong.
VICE CHAIR KANE: Thank you.
PATRICK TILLMAN: Would you?
VICE CHAIR KANE: I shall, but I’m done with you.
We’re done. Ms. Moseley, do you care to comment on the FAR
question?
MARNI MOSELEY: The clarification provided
earlier is the policy of the Town at this time.
VICE CHAIR KANE: Thank you. Natalia Stulskaya
followed by Rob Dinapoli.
NATALIA STULSKAYA: Good evening, Natalia
Stulskaya, 152 Maggi Court.
As the Planning Commission instructed during our
last hearing, I’m one of the neighbors mad with the
builder. I asked some questions and looked at the plans for
the proposed changes. Also we looked at some brochures for
the landscaping proposal.
In a short summary, these changes are
insignificant and the structure is oversized for the lot,
and also the proposed structure significantly affects
adjacent property owners’ privacy, because of it’s size.
Numerous times over the last ten years everyone
in the neighborhood repeatedly stated to Mr. Ross at our
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public hearings and also in our letters to the Commission,
please construct a house that fits the size of the lot,
takes into account the steepness of the hill, and doesn’t
violate privacy; and make the house smaller by like around
170’, which constitutes just 6% of the overall square
footage, and would be very appropriate for removing a small
imperfection in design. But having a massive house with 48%
bonus space marked as a cellar is not an adjustment that we
would consider appropriate.
On behalf of my family, and also on behalf of the
60 neighs that signed the petition, I would like to ask the
Planning Commission to deny this project. Please uphold the
Hillside Standards and please help to preserve the
character and beauty of our town.
VICE CHAIR KANE: Thank you. Questions for the
speaker? Commissioner Hudes.
COMMISSIONER HUDES: Thank you. Did you have the
opportunity to review the new landscape plan and the
privacy plan, and do you have a preference between the
different types of screening that’s been proposed.
NATALIA STULSKAYA: The house is big, and the
landscaping is really a secondary option to solve anything
with this. Behind my house I have a small hill where for
the past ten years I’ve tried to grow trees. I bought that
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big tree at Costco; it’s still the same size. It’s just
very difficult land and soil and hill, and I don't know,
the dry years that we’ve had in the past. It’s just very,
very subjective at this point, because you can plant
beautiful trees, but will it grow to the same size as we
have it today on the hill? I don’t think so; you cannot
have a 100% guarantee on that.
VICE CHAIR KANE: Thank you. Other questions?
Thank you very much. Rob Dinapoli followed by Dr. Coughlin.
ROB DINAPOLI: Good evening, Commissioners. My
name is Rob Dinapoli; I live at 322 Bella Vista, directly
across from the proposed site.
I would like to talk a little bit about the 15
years I’ve lived there. One thing that’s happened that I’ve
noticed in the last few years is really a coming together
of the community in unanimous opposition to this proposed
development. In that 15 years, I’ve seen three homes built
on Bella Vista and the continuation, which is New York
Avenue. Three new homes built there, and then several very
significant remodels in the neighborhood, and never once do
I know of any objection from the neighbors for those
developments, at least nothing anything like what’s
happened here.
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I’ve seen that you have some discretion. I think
two agendas ago you had discretion in the FAR and you
allowed a few more feet to a developer, so I’m assuming you
have the same discretion to adhere to a set of rules, and
in particular the cellar that is proposed there and whether
that should be included in the FAR. The mass and size of
this development, and then allowing basically the living
space of the whole bottom floor to be considered a cellar,
I think those rules should be adhered to and that should
not be allowed.
The neighbors here object to it unanimously,
because of its size and mass, but also traffic, the trees,
the traffic and the safety issues up on top. There are a
lot of reasons why we object to this as a neighborhood, but
most of all, and it’s obvious with all the people that have
come out unanimously in opposition to this, there are a lot
of reasons to adhere to strict guidelines for the hillside.
VICE CHAIR KANE: Thank you. Questions for the
speaker? Thank you very much. Dr. Coughlin followed by
Shannon Susick.
DR. TIM COUGHLIN: Good evening, Tim Coughlin,
320 Bella Vista Avenue.
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I did have a chance to meet with the Applicant.
We had a cordial but brief meeting; I think we were able to
converse in a spirit of good will.
I would like to address a comment made by one of
the Commissioners last time about the impact of following
the FAR or not following the FAR, but I think the comment
was something like, “Well, if the house is going to be
built anyway, why penalize the builder by limiting the
size? Why not give that builder the benefit of the
downstairs being added?” This is my interpretation of what
I heard from one of the Commissioners. In other words, is
it because of we want to penalize them, or we want to have
some kind of a limitation on them for that sake? It’s not
that at all.
I think with the FAR, unless the Town somehow
gets more clarification on this cellar issue I think we’re
going to have a lot of trouble. If this goes through, it’s
going to become a precedent for other developments of this
kind, and I think that even though the FAR is mostly about
how much impact this place is going to have on the
environment, I think it also needs to be thought of in
terms of how many people are going to be in this house? If
it’s a 1,400 square foot house, you might have two people
in there, and maybe two cars. Now, if it’s 2,400 or 2,800,
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you’re going to have four cars; you could have teenagers
who are driving and so forth. I think there’s more of an
impact here than just some kind of nebulous philosophical
thing about whether we’re going to penalize the builder or
not. Any questions?
VICE CHAIR KANE: Question for the speaker?
Seeing none, thank you. Shannon Susick followed by Lee
Quintana.
SHANNON SUSICK: Hi, Shannon Susick. Thank you
for your time.
I submitted this late today. I had sent it in
earlier a few weeks ago to the Council and a couple of the
Staff, and it’s my formal request to review definitions
that are being addressed today, and have been. Also, for a
review of what the DRC is allowed to approve and deny, and
what should be sent to the Commission. And also to
consider—and I mentioned this before—creating a Town land
preservation fund, or something along those lines, for
parcels that are so contentious, such as this one.
In addition, I’d like to ask that this current
application be denied for all the reasons presented
earlier.
I’m going to address two things that I think are
really important.
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The removal of the heritage oak trees is
something that is just so big, and I know that we had the
geo report regarding the soil and such, but basically you
take one or two of the largest trees, it’s like taking the
mom and dad from the family, and the likelihood of that
stand remaining and growing, or continuing to grow, is
highly unlikely, and those are trees that have taken 100
years.
My other comment, again, is repeating, and I
don’t want to, but this misuse of the cellar and basement
and FAR, and just to simply state that it’s within the Town
guidelines is not sufficient.
Also, the impact on the Town and the services,
including the number of times that this Commission and
Council have to hear the same… This application has
basically the same parameters.
One other thing would be the lack of
comprehension by the Applicant as to the subjective nature
of all of our guidelines. They’re maximums, they’re not
minimums.
I would like to offer an idea if the Town does
create such a preservation fund that this Applicant,
instead of pursuing a project that absolutely no one is in
favor of, donate that parcel of land and it becomes a
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grove, perhaps the Ross-Peters Grove, and it would be open
space, it would enjoyed by all the residents, people that
walk and bike, and we wouldn’t be destroying a heritage oak
grove. Thank you so much.
VICE CHAIR KANE: Thank you. Questions for the
speaker? Thank you. Ms. Quintana followed by Mary Ann Lown.
LEE QUINTANA: Lee Quintana, 5 Palm Avenue.
Probably going to muddle through this, because I didn’t
expect to be here tonight. I expected to be in Oregon.
Things change.
I think the first speaker hit it on the head. The
issue is the building at this point; the landscaping is
secondary. The main issue is the mass and scale of the
structure that’s proposed in relation to the parcel size,
its constraints, and neighborhood compatibility. It’s not a
numbers game, or fixing the problems caused by the
development plan with landscaping.
The main focus should be on the mass and scale,
and the focus should be on whether it’s consistent with the
General Plan; cellars in lieu of visible space; the
Hillside Design Guidelines that say that you’re not
guaranteed the full FAR; and the Residential Design
Guidelines, which say that even though the FAR is not
considered in the hillsides, the cellar shall, and it uses
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“shall,” be included in the analysis of the bulk and scale
and the neighborhood compatibility.
So, that’s the basis of what I have to say. If I
have time, I’d like to talk a little bit about the history
of the in lieu cellar and the Hillside Design Guidelines,
how they’re connected.
But I would also like to say that in this
particular case it seems to me the major thing is the width
of this house. Granted, I don’t think you could put a house
on this site unless you set it into the hill and you have a
cellar or a basement, but, the house doesn’t have to be as
wide, and in addition, because of the patios that are to
the south, which there was testimony at the last meetings,
whoever it was, that the retaining walls that are necessary
to form those patios are not necessary for the stability of
the hillside, and the fact that they’re going out, they’re
going graded, they’re very tall retaining walls, that is
not consistent with the Hillside Design Guidelines, which
says that if you’re going to have something like that on a
side of the house or the rear, it’s only because it will
not require as much grading as otherwise. If those patios
weren’t there, the hillside could be restored up to the
house basically as it normally is.
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In relation to the cellar, the Cellar Policy, I’m
responsible for that Cellar Policy, me and two other
people; we wrote it and it went to the General Plan
Committee and they accepted it. Our intent was clearly not
what is being done here and on other hillsides. I hope
you’ll ask me to finish.
VICE CHAIR KANE: As the author of that policy,
I’m going to give you 15 more seconds to summarize. What
are you trying to tell us?
LEE QUINTANA: I’m trying to tell you one, that
policy was written in a new section in the element called
Community Development, that it meant very literally cellars
in lieu of visible space. It was written before the
Hillside Design Guidelines were done—this is important—and
so we were focused mainly on the valley floor, because at
that time the cellars in the hillside were considered as
part of the square footage and as part of the mass and
bulk. So the Hillside Design Guidelines were not done until
four years later and cellars were the issue, and…
VICE CHAIR KANE: I’m going to stop you there,
and see if there are any questions for the speaker.
LEE QUINTANA: They were supposed to review the
Hillside Guidelines; that never took place, and this was
one of the issues that would have come up.
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VICE CHAIR KANE: Thank you. Mary Ann…
LEE QUINTANA: I request you deny it.
VICE CHAIR KANE: …followed by Janet Carmona.
MARY ANN LOWN: Hi, Mary Ann Lown; 156 Maggi
Court. I wasn’t going to speak tonight; I get nervous with
public speaking.
I did meet with Dan Ross last week, and we were
communicating through Nick, so there were many, many of us
that were planning on meeting with Dan Ross. Our intention
all along was to be able to review the plans by ourselves,
try to understand what they were about, then meet with them
and discuss them.
So what did happen, and my understanding through
Nick was he first reached out to Dan and said what’s going
on, and then they started the communication of starting to
get a date put in place of when I meet. I was on board that
I was going to be part of that; so was my husband, but he
ended up traveling.
So we kept getting postponed, and postponed, and
postponed, and where were we going to have it? So we
decided on our own, and everybody agreed, including Dan,
we’ll meet on Wednesday, because we knew we were going to
get the plans on Monday, but then they ended up being
Tuesday, but then we didn’t have them on Wednesday.
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So then on Wednesday we didn’t hear from Dan, we
didn’t see any plans, so we figured it was probably
cancelled. Our plan was to meet at 6:00 o’clock. So no
plans. I’m standing out front talking to my neighbors
saying what are we going to do, and got a phone call from
Dan saying, “I have the plans,” and it was 6:00 o’clock. So
we said what do we do? We said well if he has the plans,
let’s meet him, let’s pick them up and at least get them in
our hands. So we agree to meet at 7:15; that’s when Dan
said he would meet us and he would bring the plans. We
arrive, we meet, no plans.
We do continue to talk to him, and he says all
right I’ll have them for you tomorrow on your doorstep.
Well, some of the neighbors wanted them electronically, but
he was still committed to have them on our doorstep, and he
said, “I’ll also give them to you electronically.” So
that’s Wednesday. Thursday, no plans. Friday, no plans.
Friday late, and we were out of town already for
the weekend, that’s when we were notified that the plans
were online and we could review them, and then he continued
to communicate with Nick to say do we want to meet? Well,
no; at that point, no. Do you have any questions?
VICE CHAIR KANE: Any questions for the speaker?
Commissioner Hudes.
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COMMISSIONER HUDES: I understand the issue you
raised is due to your inability to review the plans. I want
to just ask you a question: Have you reviewed the new
landscaping privacy screening that’s been submitted?
MARY ANN LOWN: No, I have not.
COMMISSIONER HUDES: And if you had time to,
would you?
MARY ANN LOWN: I would review it, but my biggest
issue doesn’t have to do with the landscaping, and that’s
mostly what we talked about. He showed us his brochure from
his landscaper and we talked about different plants, but we
really couldn’t address… He kept asking me and others what
did I want him to do, and I wasn’t prepared to answer that
question without knowing what was in front of me, because
we saw the same plans we saw at the last hearing. There was
nothing new to look at till today, and today they look very
minor to me.
COMMISSIONER HUDES: Thank you.
VICE CHAIR KANE: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: My understanding at the
moment—I’m telling you, so you can correct me if I’m wrong—
is really the plans don’t make a lot of difference, because
what I’ve heard are objections that basically is this is
too big.
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MARY ANN LOWN: Correct.
COMMISSIONER O'DONNELL: So unless it were a
really substantial reduction in the size and mass of the
house, moving it here, moving it there, my perception is
you’re going to say it’s just too big.
MARY ANN LOWN: Yes.
COMMISSIONER O'DONNELL: Is that a fair reading
of what you’re saying?
MARY ANN LOWN: Absolutely.
COMMISSIONER O'DONNELL: All right, thank you.
MARY ANN LOWN: Plants are not the issue.
VICE CHAIR KANE: Thank you. Other questions?
Thank you very much. Ms. Carmona.
JANET CARMONA: Hi, good evening, Janet Carmona,
160 Maggi Court.
The Applicant continues to compare his
application to Maggi Court townhomes. Per Exhibit 20, he
has provided a letter comparing his application to the
Maggi Court townhomes and emphasizes that size should be
considered for the neighborhood compatibility. I completely
agree, and so do 62 other immediate neighbors who see the
difference between apples and oranges. Living space of
2,720 square feet is almost double the space of a single
Maggi Court townhome.
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Also, again, it is shaped like a shipping
container stuck on the side of a cliff, with modern
architecture that does not relate to any of the homes in
the neighborhood. Again, this home is not compatible.
Furthermore, any landscaping, if viable, will
take 10-20 years to take affect. Maggi Court has no control
to maintain or nurture plant growth, which is unlikely to
grow at the base of a steep slope and if drought conditions
continue to limit use of water.
I happen to be on the Landscaping Committee for
Maggi Court. I can provide first hand experience that the
soils are not conducive to plant growth. Landscaping is not
a viable option to mitigate mass, bulk, and scale of this
application.
I also wanted to point out the FAR calculated on
page 28 of the Hillside Standards, column 1, multiply by
column 2, you get column 3, and it’s rounded off to the
nearest hundred, so I wanted to point that out.
Please uphold the values of our town and deny
this application. Thank you.
VICE CHAIR KANE: I was finding page 28. Are your
remarks completed?
JANET CARMONA: Yes.
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VICE CHAIR KANE: Questions for the speaker?
Seeing none, thank you. I will now invite the Applicant and
his team to speak to us for up to five minutes. Additional
information, rebuttal, as you will.
BARTON HECHTMAN: Thank you, Vice Chair Kane and
Commission. Bart Hechtman, rebuttal.
First, I neglected to specifically point out the
model that’s in front of you that was designed at some
significant expense and actually flown in today to try to
give you a three-dimensional perspective of scale of the
house in relation to the neighborhood and in relation to
the vegetation, existing and proposed. This is something
that could be passed among the Commission. That’s terrific,
thank you. I didn’t want to let that pass.
I also wanted to focus a little bit on these
slides, which I hope are in your packet, because these show
a lot of the images of the perspectives of the house as
proposed to be designed set into the vegetative cover. I do
think vegetation is very important, because when you talk
about mass and scale, you are talking about visible mass
and scale. A 100,000 square foot building that is entirely
underground, you don’t have mass and scale concerns like
we’re talking about here, because what’s we’re talking
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about is what you see. That’s the issue, and so I think
that screening is very important.
Another point that I neglected to mention—I think
it’s in your papers—is that in the portions of the house
that do have sort of a straight view to the townhomes,
those windows have been raised up so that now the sill is
at 6’. That means somebody standing in the room I’m
pointing to here at the corner cannot look out and down.
They can look up at the sky, but not down.
It’s interesting. What you’ve heard is a request
that you apply the rules, and it’s odd for us to hear that
from the neighbors, because that’s what we’re asking you to
do, too. This town has a set of ordinances that tell you
what can be built and what the regulations are in terms of
size and setback, and as shown in your Staff Report, we
meet those rules. We comply with all of the requirements.
We don’t require any variances.
I realize that ideally for this Commission, like
any commission or council, you want to find a solution that
if not a win-win, it’s livable for everybody; everybody can
walk away grumblingly accepting it. Occasionally though,
you have situations where you can’t produce that result by
encouraging dialogue, and those are, frankly, the hardest
cases for decision makers, because you have to make a
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decision, you have to apply the rules of the Town, and I’m
afraid that tonight is one of those nights where you have
that hard decision.
From the perspective of the neighbors, I
understand that perspective. When I look at the mapping, as
someone who didn’t know the history, I would have thought
that this hillside was actually part of the parcel down
below that has the townhouses. I wouldn’t have been at all
surprised if in a different world that somebody had said
this is our townhouse and we own that hillside, right? It’s
part of what the developer bought when we built this.
But that’s not the case. That hillside is private
property owned by somebody else, and it has development
rights. Today, as two parcels, we’re proposing to merge and
make it one parcel, and we’re asking that you apply the
rules and allow that development.
We’re asking that you recognize that the only
home that would satisfy these downhill neighbors and make
them feel that they had prevailed in convincing you is a
home that’s unrealistically small. They don’t want to talk
about landscaping; their only focus is to shrink the house
further, and I think that’s the reason that the dialogue
was unsuccessful. The house is small. It’s 88% of what’s
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allowed, it’s even smaller, and so we’re not even maxing
that.
Again, the architect is here to answer more
questions if you want to dig down into the design, but we
ask for your support. Thank you.
VICE CHAIR KANE: Thank you, Mr. Hechtman.
Questions for the speaker? Thank you, sir. I’m going to
close the public hearing and turn to my Commissioners for
any questions, comments, or a motion. Commissioner
O'Donnell.
COMMISSIONER O'DONNELL: I just want to throw out
some thoughts, because I find this very difficult, and I
think the difficulty starts with the lot; it’s a very, very
difficult lot. Then, if my memory serves, they came in with
two houses and somebody—I don’t want to say we, but
somebody—suggested that maybe it would be better if there
were one house. I think that was a good suggestion, but now
we’re at a point where I don’t see how these people can put
any house, or one house, on both lots that will satisfy—and
I don’t mean this in a critical sense—I can’t image that
you could build a house there that would satisfy the
downhill neighbors.
Then you say well, where does that leave us? And
then you say well, they’ve got two lots and they have a
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right to build two houses. Now, what the houses look like,
I don't know, we don’t know, although we had some previews.
I just find it hard to believe that anybody is
ever going to build one house or two houses there that the
people down the hill are going to think is okay—I mean
realistically, one could build a tiny house, I guess—and
that very much concerns me, because if we believe, as I
guess I do, that the owner of that property has a right to
build a home, it doesn’t get me home, because that doesn’t
tell me what the home should look like. I can agree with
the neighbors that if I were living downhill of this, it’s
going to look big. Now, they have done a lot of things, and
I think the line of sight things they did probably would
work as far as looking down into people’s houses.
The reason I’m saying all this right now is I
really am grasping and looking to my fellow commissioners
for some of their thoughts, because I don’t see a solution
that perhaps even makes me happy. I mean we’ve got to make
some decision, and I don't know what it is. Tonight, well,
we can make a decision; that’s why I’m looking for comments
from my fellow commissioners.
VICE CHAIR KANE: Thank you, Commissioner.
Commissioner Hanssen.
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COMMISSIONER HANSSEN: I agree with most of the
things that Commissioner O'Donnell said. There’s probably
not a design that’s going to satisfy the neighbors.
Having said that though, I’m particularly
troubled with a house where over half of the usable square
footage of the house is in a cellar. And I feel bad for the
Applicant; because of our policies he was directed to look
at a cellar, but the intent of the Cellar Policy was to add
square footage without visible mass, and since that’s at
the bottom and that’s what the people on Maggi Court are
looking at, there’s just no way that those two things can
work together.
I don't know what the right thing to do is, but
it seems to me that if the house were more in line with the
actual FAR without the benefit of the Cellar Policy, that
would at least be a big step in the right direction.
Again, I do feel bad that our Cellar Policy is
encouraging applicants to go in this direction, because
clearly that’s causing a problem with the visual bulk and
mass, and I do hope that the Town will be reviewing this
soon.
VICE CHAIR KANE: Thank you. Other comments?
Commissioner O'Donnell.
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COMMISSIONER O'DONNELL: Just going back to the
Cellar Policy, what I recall of the Cellar Policy, over the
years that we’ve dealt with the Cellar Policy, is we always
said cellar will reduce the bulk and mass. That may have
been wrong, but that’s kind of what we thought. This one
doesn’t do it, and Staff, I think, has told us yeah, but it
meets the definition.
So then you say well golly, if it meets the
definition, what was the point of it? I think most of us
have the view on flat land that a cellar is kind of mostly
subterranean. This necessarily can’t be that way, and Staff
says well, but that still fits the definition.
I personally say it may fit the definition, but
it was never my understanding of what the Cellar Policy
was. Then you get into the wonderful legal argument. Who
cares what my understanding is, what does it say? But I
really have trouble enforcing a rule or a law that in our
application of that law, for a long time we thought it
reduced bulk and mass, and if we were wrong, nobody ever
bothered to say. I’m not blaming Staff, because I don’t
have any question about your expertise; I’m just telling
you from a human standpoint, as a Commissioner I always
thought cellars were to reduce bulk and mass, and now we’re
presented with a situation where through no fault of the
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Applicant, I don’t think it does it. Well, maybe it does it
a little bit, but I don’t think it does it much. So that’s
what I wanted to say.
VICE CHAIR KANE: Well, you know, Commissioner
O'Donnell, you and I have been here longer than most of
them anyway. And the author told us, and that’s what I
remember as well. Commissioner Hudes.
COMMISSIONER HUDES: I do think the Cellar Policy
is a key part of this issue. I do think in many, many
cases, particularly where a home is on a hillside, the
Cellar Policy does reduce the bulk and mass, but that’s not
in a situation where you have windows adjacent to the
property looking right at that cellar.
My question is really more of a legal one. Do we
need to couple the actual language of the Cellar Policy to
the intent of reducing bulk and mass? Is there anything in
the Hillside Guidelines that draws that connection and that
if, for instance, the Cellar Policy did not reduce bulk and
mass, then we would not have to follow?
ROBERT SCHULTZ: The answer is no.
COMMISSIONER HUDES: Is there anything that ties
the Cellar Policy to bulk and mass?
ROBERT SCHULTZ: No, there is not, so you could
independently determine that the bulk and mass is the
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issue, as opposed to the cellar issue, and not have to deal
with the cellar issue because of the open interpretation,
and that’s the issue that we still have to deal with at a
later date.
VICE CHAIR KANE: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: We’re raising legal
issues, and one of the things that I’ve observed in a long
time is called “gloss.” When you apply a law and it says
everything is black, and if in 50 years everybody says that
really meant everything is red, at some point the gloss on
the reading of that statute supersedes my judgment, and I
think a lot of courts would support that.
Now, I can’t say that happened here, but I just
find it odd that I’ve been on this commission now for
hundreds of years, the fourth term, and I honest to
goodness thought we always applied that as bulk and mass.
Now, you can tell me the clear language of the ordinance is
contrary to that, and I couldn’t say you’re wrong, but all
I can tell you is that for the last 14 years or whatever
it’s been—I can’t multiply—that’s not what we did, and at
some point what we did I think supersedes your reading of
it. I’m not there yet. I’m just saying if in fact it’s true
that we have consistently applied that to mean reduction of
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bulk and mass, I think Commissioner Hudes is right, maybe
it does reduce something here.
But in my simple minded recollection of all this
over the years, we were trying to encourage people to put a
cellar in, because they were building these big houses, and
then they’d put a cellar in and they’d still build the big
houses, and we said what the point? So we had a lot of
discussions over this. And now, everybody is saying yeah,
but don’t worry about that, and I guess I do worry about
that.
ROBERT SCHULTZ: I think we might be confusing
what I was trying to interpret and what you are. I’m not
saying that the Cellar Policy, the intent of that was to
reduce bulk and mass. What I was saying is that we have
traditionally in the hillside used a cellar calculation on
that 4’ wall part and used it for the FAR calculations; we
have consistently done that, and haven’t had to deal in the
hillside with the mass and bulk issue.
On a mass and bulk issue, I see differently, but
we had always counted cellar. I think there were some
comments to the fact that cellar shouldn’t even be used for
housing purposes, it’s just for storage, and that’s not
true. We’ve never interpreted it that way either.
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But certainly no, the Cellar Policy, I believe
that’s how most towns and cities do that. The reason why
you do that is to reduce the bulk and scale above, and
hopefully you can have living space behind. Unfortunately,
in the hillside usually when the cellars occur, you can’t
put them all underground, so there is some exposure to
that. We have done the calculation on FAR traditionally
just like we’ve done on this one, and Joel might weigh in a
little bit more.
COMMISSIONER O'DONNELL: Let me just say this,
that you’re almost in a, you used to be able to say no
man’s land—I guess you say a no person’s land now—because I
think we have applied this… I don’t disagree with what you
said at all about FAR, but as far as bulk and mass, so
we’ve done that.
Now we’re trying to apply it to the hillside and
we’re saying whoops, that’s a real problem, because most of
this is not really submerged, hardly at all, and yet say
you have to give some credence to the cellar, but it ought
to make a difference when you look at it. I’m not an
architect, and these guys have been working quite hard at
it, so I don't know what they can do, but I’d sure like to
see less impact on the bulk and mass, and I would like to
think that the Cellar Policy doesn’t take that away from
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us. But I mean that narrowly, because you can say bulk and
mass no matter what the Cellar Policy is, but I partly feel
like the Cellar Policy should not be used in these cases on
a steep hillside as an argument against the bulk and mass
being too great, and I don’t think you’re disagreeing with
that.
VICE CHAIR KANE: I don’t either.
COMMISSIONER HUDES: If I could maybe make
another comment?
VICE CHAIR KANE: Commissioner Hudes.
COMMISSIONER HUDES: Commissioner Hanssen pointed
out to me the language in Resolution 2002-167, which I’m
going to take into consideration when I look at the cellar
issue. It says, “Whereas the General Plan encourages the
use of basements and cellars to provide hidden square
footage in lieu of above-ground visible mass,” Policy LP-
21. This is the preamble to the actual cellar resolution. I
believe that the intent is laid out here that cellars are
used to encourage reducing visible mass, and I’ll take that
into consideration when I think about that part of it.
VICE CHAIR KANE: Thank you. Questions, comments,
a motion? You’re on.
COMMISSIONER BURCH: Well, I’m going to make an
attempt at this, because to be honest, I feel that this
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could probably spin for a very long time, if allowed, so I
think in light of probably allowing this to just move
forward I’m going make a motion to deny Architecture and
Site Application S-12-103, Subdivision Application M-12-
008, and Negative Declaration Northern District-16-001, my
thought being that we are not finding a way to make this
property compatible with the adjacent neighborhoods.
Clearly there’s an issue with bulk and mass, and
whether we tie that to the cellar or not, I’m going to
actually leave that alone; I think that’s a separate issue
that we need to probably look into further. I feel that at
this point we could painfully drag this on for a long time,
and I think it’s time that we don’t.
COMMISSIONER O'DONNELL: I will support and
therefore second the motion.
I just want us to all realize that I don’t want
to be sitting here in a couple of months looking at two
houses. If I were the Applicant, that very well might
occur, but that’s neither here nor there. I mean we just
have to do what we think is right for what we have before
us. That has bothered me, because I think they’ve spent an
inordinate amount of money and time, and I’d be very
frustrated were I in their shoes, and I might say okay, you
don’t want one house? I’ve got two of them. But that’s
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their problem and not my problem at the moment, so I do
support the motion.
VICE CHAIR KANE: We have a motion and second.
Discussion? Commissioner Hanssen.
COMMISSIONER HANSSEN: I just wanted to make a
comment on the point that you brought up, Commissioner
O'Donnell. I can’t say for sure, Staff would have to say,
but based on the concerns of the lot, if they come back
with two houses they’re going to have to be much smaller
than this existing one. The proposal that was made years
ago did not get approved, and so whatever those numbers
were… I think it was in the Applicant’s own letter that I
had seen something about how they were directed by Staff to
look at houses that were in the range of 800 square feet,
and I remember reading this in the letter today, that they
would be looking to add a cellar. So it might be back to
square one on the Cellar Policy, but nonetheless, I would
imagine even a two house proposal is going to be looking at
a much smaller footprint for either house in order to
comply with the guidelines.
VICE CHAIR KANE: Thank you. Commissioner
Erekson.
COMMISSIONER EREKSON: For the first time in
eight years of service on the Planning Commission, I find
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myself in the challenging position of needing to abstain
from the motion.
My understanding of the protocols of the Planning
Commission is that if you abstain from a motion you have to
state the reason for abstaining. My reason for abstaining
is I believe that we did not conduct a fair public hearing
this evening.
Prior to the public hearing portion, the public
testimony portion of the public hearing, Vice Chair Kane,
who was chairing the Commission, stated that no progress
had been made, and then asked the Applicant. What he did,
in my judgment, is he stated the conclusion of the very
nature of what the hearing was about tonight before the
hearing occurred, and before the Commission was given a
chance to deliberate on the merits of the case.
We have a duty, in my opinion, to actually
provide a fair hearing to the Applicant, and to neighbors,
and to interested parties, and members of the public. In my
opinion, when you state the conclusion of the very question
posed by the hearing itself, I cannot understand how one
could conduct a fair hearing, so therefore I will need to
abstain.
VICE CHAIR KANE: Other discussion? Seeing none,
I’m going to call.
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COMMISSIONER O'DONNELL: I have nothing but the
greatest respect for Commissioner Erekson, but let me just
say this from own personal vantage point.
I don’t believe what the Vice Chair said today
influenced my deliberation at all, and maybe that’s like
unringing a bell. I’m not arguing with you; I’m trying to
consider your comments and think it through. Without
commenting on that, I can’t imagine if he said it or didn’t
say it, I would have approached this matter in any
different way. I just at least want the record to reflect
my belief. Whether it’s correct or not, I don't know, but
that’s my belief.
ROBERT SCHULTZ: Mr. Kane, did you take into
consideration tonight all the evidence presented, all of
the witnesses that spoke, before you reached a decision?
VICE CHAIR KANE: Yes.
ROBERT SCHULTZ: A fair hearing was held. I’m
fine with the legal conclusion on that.
VICE CHAIR KANE: I also talked to the Director
of Community Development and Town Counsel before I did what
I did, and told them my reasons for it and to see if I
could expedite something, and that’s why I did what I did.
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ROBERT SCHULTZ: I would suggest you read the
record again, Commissioner Erekson, that there was a
completely fair hearing made tonight.
COMMISSIONER EREKSON: I don’t want to get into a
debate with the Town Attorney. You don’t work for me; you
work for the Council. I don’t want to get into a debate
with you, but I would be hard pressed for you to conclude
that before there was public testimony tonight that he
could have taken into account all of the things, but I’ll
leave that to your bosses.
COMMISSIONER O'DONNELL: Could I just have one
clarification? When the Vice Chair says he talked to the
Town Council, that might be a Brown Act violation, I
suppose.
ROBERT SCHULTZ: No, he talked to me as Town
Counsel.
COMMISSIONER O'DONNELL: Oh, spelling counsel
differently. Okay.
ROBERT SCHULTZ: And his question was whether he
could ask the Applicant whether they wanted a decision up
or down? That was what he was trying to get to, to find out
whether they wanted an up or down decision. He was not
preconceived on this, and he waited till all the evidence
was done. The record will be quite clear by the
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deliberation that occurred and the questions that were
asked for the last two-and-a-half hours that he did not
have a preconceived notion as to how he was going to vote
on it.
VICE CHAIR KANE: Commissioner Hudes.
COMMISSIONER HUDES: A comment on that. I also
felt that the comments were prejudicial, however, I felt
like I was able to put them aside and continue to hear the
deliberations, and so I don’t feel I was unduly swayed by
those comments, which frankly, I also felt were
prejudicial.
VICE CHAIR KANE: All right, I’m going to call
the question. All those in favor of the motion? All those
opposed? All those abstaining? We have five ayes and one
abstention. Are there appeal rights, Mr. Paulson.
JOEL PAULSON: There are appeal rights. Anyone
who is not satisfied with the decision of the Planning
Commission can appeal that decision to the Town Council.
The forms are available in the Clerk’s Office. There is a
fee for filing the appeal, and the appeal must be filed
within ten days.
VICE CHAIR KANE: Thank you, sir.