Item 04 - 19 Highland Ave - Desk Item & Exhibits 35-36TOWN OF LOS GATOS ITEM NO: 4
DESK ITEM PL AN NI NG COMMISSION STAFF REPORT
Meeting Date: August 24, 2016
PREPARED BY: Sally Zamowitz, Planning Manager
szarn owi t z(W,Iosgatosca.gov
APPLICAT ION NO.: Architecture and Site Application S-15-077
LOCATION: 19 Highland Avenue (north side of Highland Avenue just east
of 15 Highland Avenue)
APPLICANT/
PROPERTY OWN ER/
CONTACT PERSON: Ed Pearson
APPELLANTS: Badame, Roberts, Smullen, and Spalding Families
APPLICATION SUMMARY: Consider an appeal of a decision of the Development Revi ew
Committee appro ving an Architecture and Site application to
construct a new single-family residence and remove large
protected trees on property zoned HR-2 Yz . APN 529-3 7-033
EXHIBITS: Previously received with May 11, 2016 Desk Item Report:
1. Em ails from appellants, received May 11, 2016
Previously received with June 8, 2016 Staff Report:
2 . Location Map
3. Required Findings and Considerations
4. Recommended Conditions (nine pages)
5. Adopted Mitigation Monitoring and Reporting Program (3 pages)
6. Town Council Resolution (200 1-128)
7. December 8, 2010 Planning Commission me eting minutes (15
pages)
8 . Consulting Architect's Report, dated February 24,2016
9. 2010 Arborist Report (26 pages), dated February 15 ,2010
10 . Project Data Sheet
11. Letter from Anthony Badame, received March 24, 2016
12 . March 29, 2016 Development Review Committee minutes (two
pages)
13 . Appeal letter, received April 8, 2016 (four pages)
14. May 11 ,2016 Planning Commission meeting minutes
15 . Applicant 's response letter a nd Attachments (1-14), recei ved May
27 ,2016
16. Public comment received through 11 :00 a .m., Thursday, June 2,
2016
Planning Commission Staff Report -Page 2
19 Highland A venue/S-15-077
August 24, 2016
17. Additional letters from applicant (11 pages), received June 2 , 2016
18. Development plans (16 pages), received March 22 , 2016
Previously received with June 8, 2016 Addendum Report:
19 . Letter from appellant (58 pages), received on June 2, 2016
Previously received with June 8, 2016 Desk Item Report:
20. Revised neighborhood outreach statement (one page), received
June 6, 2016
21. Applicant's response to Appellant 's letter (five pages), received
June 8, 2016
Previously received at June 8, 2016 Planning Commission Meeting:
22. Communication from appellants (11 pages), received June 8, 2016
23. Presentation by appellants (15 pages), presented June 8, 20 16
24. Communication from applicant (5 pages), received June 8, 2016
Previously received with August 24, 2016 Staff Report:
25 . Presentation by applicant (37 pages), presented June 8, 2016
26 . Revised Recommended Conditions (10 pages)
27. Revised Development plans (15 pages), received July 11 , 2016
28. Revised Project Data Sheet
29. Consultant Reports ( 1 0 pages)
30. Addendum to 2010 adopted Mitigated Negative Declaration
(101 pages), dated August 2016
31. Communication from appellants (23 pages)
32. Communication from applicant (11 0 pages)
33. Revised Findings
Previously received with August 24, 2016 Addendum Report:
34. Revised version of Exhibit 31 , Communications from appellants
(53 pages)
Received with this Desk Item:
35 . Public comment, received August 24, 2016
36. Communication from appellants, received August 23, 2016 and
August 24,2016
Planning Commission Staff Report -Page 3
19 Highland A venue/S-15-077
August 24, 2016
REMARKS :
As clarification, items received at the June 8, 2016 public hearing are pos ted online with the
June 8, 2016 Pl a nning Commission agenda. Exhibit 35 contains publi c comment recei ved
Wednesday, Augu s t 24, 2016. Exhibit 36 contains communication fonn the appellants, received
Tuesday, August 23 , 2016 and Wednesday, Augus t 24, 2016.
Prepared by:
Sally Zamowitz , AlA
Planning Manager
JP:SZ :cg
Approved by:
Joel Paulson, AICP
Community Development Director
cc: Ed Pearso n, 239 Thurston Street, Los Gato s, CA 95030
Li sa Roberts, 78 Alpine A venue , Los Gatos , C A 95030
T heresa Spalding, 15 Highland A venue, Lo s Gatos, CA 95030
Dede Smullen, 25 Hi ghl and A venue, Los Gatos, C A 95030
Anthony Badame, 1 Hi g hl a nd A venue, Los Gatos, CA 95030
N:\DEV\PC REPORTS\2 0 16\Highland-19 -appeai-8-24 -16-ADD.d oc
Sally Zarnowitz
Subject: FW : 19 Highland Ave-Architecture and site application# S-15-077
From: Bill Edwards [mailto :Biii.Edwa rds@ me sa3.com]
Sent: Wednesday, August 24, 2016 10 :49 AM
To: Sally Zarnowitz
Cc: Kimberly Edwards
Subject: 19 Highland Ave-Architecture and site application# 5-15-077
Dear Los Gatos Planning Department,
My name is William 11 Bill" Edwards, and along with my wife Kimberly Edwards, are the owners of 106 Alpine Avenue, Los
Gatos for the last 13 years and I am writing this letter on behalf of both of us regarding the latest version of the
proposed house to be built at 19 Highland Ave, Los Gatos .
Firstly, when it comes to potential impact to houses on Alpine Ave., we believe we have arguably the most potential for
impact as not only does our back property line border the subject property, but it does so down at the creek level and
we have many windows and decks which face in that direction, whereas we believe the remainder of the potentially
affected Alpine properties do not have any frequently used portions of their property at that lower elevation and their
commonly used portions of their property are basically are on the hill above. Additionally, since our back yard slopes
down all the way to the creek, our view to the back from all the rooms in our house are towards the 19 Highland
property, as compared to our neighbors with flat back yards supported by retaining walls which tend to cut off their
view in that direction.
As we recall from prior hearings regarding potential building requests on the property, basically it is not a question if the
person has the right to build, it is a question of whether they are following all the rules & codes .
With all that said, in our opinion, when we compare the 2010 approved building plan to the currently submitted revised
proposal, this is a far better plan for the neighborhood. As noted in the current proposal, having far less trees removed
(one of which is already dead), having tress only removed on the far side of the proposed house from Alpine (west side
of house near driveway), having house located northwards on property for less view from Alpine, being built into hillside
more, being a shorter in height, being of reduced overall length, being farther from creek, and including more natural
materials and colors are all positive features that make this proposal a better option than what was previously approved
in 2010.
In conclusion, we are highly in favor of the current proposal and recommend approval.
Please feel free to call or write myself with any questions of comments you may have.
Bill Edwards
106 Alpine Ave.
Los Gatos, CA 95030
408-928-3006
1
tEXHIBIT 3 5
GECO
Grossctti Environmental Consulting
Marni F. Moseley, AICP , Associate Planner
Town of Los Gatos Planning Division
110 East Main Street
Los Gatos, CA 95030
August 24, 2016
SUBJECT: 19 HIGHLAND AVENUE CREEK AND CEQA ISSUES-COMMENTS ON APPLICANT
LETTERS AND ADDENDUM
Dear Ms. Moseley,
Grassetti Environmental Consulting (GECo) has been retained by a group of concerned
citizens to review California Environmental Quality Act (CEQA) compliance and creek
setback issues associated with the 19 Highland Avenue project. We submitted comments
on the project a s previously designed on June 2, and on the current design on August 15.
This letter presents an update to those comments, based on a review of letters prepared by
the applicant and his attorneys, the Town's Staff Report and on the Addendum to the 2010
IS prepared for the Town.
Based on staff report and Addendum, we understand that the Town now considers the
applicable setback of the proposed house from the creek as 20 feet (increased from the
previous 15 feet). This letter addresses the appropriateness of that determinations, as well
as overall adequacy of the CEQA approach. In summary, I have concluded that, based on a
review of available information, there is no evidence supporting the use of the 20-foot
s etback (the appropriate creek setback on the project site is 25 feet), the Initial Study
Addendum is deficient in addressing the setback issue, and the Town's impermissible CEQA
process has resulted in a denial of resource agency and public review of the proposed
project.
Creek Setback Issues
Our June 2 and August 15 letters detail why the required creek setback is 25 feet. A more
detailed analysis of the currently proposed project plans indicates that the project as
proposed fails to meet even the 20-foot standard arbitrarily applied by the applicant and
Town staff. Specifically:
7008 Bristol Drive, Berkeley, CA 94705 (510) 849-2354
19 Highland Avenue
Creek and CEQA Comments
Page 2
August 24, 2016
Decks and overhangs encroaching into the 20-ft. setback. The applicant seems to find this
permissible based on a different section of the Guidelines and Standards document that
prohibits overhang of the creek itself. That section (liLA) does not refer to single-family
residential development. Single-family residences are specifically governed by the 25-ft
setback cited in our previous letters.
Additionally, the proposed driveway also extends well into even the 20-foot the setback
area -there is nothing magical about a house vs. a driveway; both have similar impacts to
the environment and both would be subject to similar hazards associated with creeks and
slopes, therefore the required setbacks apply to the driveway as well as the house. The
slope protection guidelines apply to "all improvements", except some very minor work (see
below).
(http:/ jwww.losgatosca.gov /DocumentCenter /View /14607):
The following structures/uses are not allowed within the slope stability protection
area:
(i) Any structure larger than 120 square feet in area (including accessory and
other structures)
(ii) Decks over 30-inches in height
(iii) Swimming pools
(iv) Parking lots
(v) Other structures subject to the Uniform
Building Code
Please note the inclusion of decks and parking lots as "structures" in the requirements.
Their inclusion in this list means that they cannot encroach into the 25-foot setback zone.
Further, based on the inclusion of parking lots as "structures", it is reasonable to assume
that drive ways also are considered "structures" and therefore subject to the setback
requirements.
Response to Applicant Attorney's CEQA Process Comments
The applicant's attorney (Bart Hechtman, July 11, 2016) letter goes on at length regarding
applicable CEQA Guidelines, and concludes that because the project is a minor modification
of a previously approved project, the 2010 IS can be used, along with an updating
Addendum. Setting aside for the moment the technical problems with the Addendum, the
main area of disagreement on CEQA implementation between my previous letter and the
Hechtman letter is that Hechtman assumes that the currently proposed project constitutes
a modification of a previously approved project, while I contend that it is a new project,
requiring de novo review under CEQA. It is interesting to note that nowhere in the 6-page
long letter does Hechtman state the reasoning behind his contention that the current
project is just a modification to the 2010 project.
My reasons for considering the current project de novo are:
2
19 Highland Avenue
Creek and CEQA Comments
Page 3
August 24, 2016
• The current project cannot be a modification of a previously approved project
because there is no previously approved project-the approval for the previous
project has lapsed, meaning that there is, in fact, no approved project to modify.
• The current application is not for an amendment or modification of a previously
approved project; it's a new application for a new project, submitted by a new
applicant.
• This is not the same house as 2010 with just minor modifications; in fact, there are
no "modifications" shown on any of the plans. It's a new design on a new footprint.
In addition to changes to the house and driveway, changes from the 2010 design
also involve a substantial reduction in stormwater treatment facilities .
• In addition to the above, there have been changes to on-site vegetation, new
information on riparian resources presented in the Pacific Biology report, and
changes to the creek itself (which are not assessed in the IS or the Addendum).
The Hechtman letter relies on the Gentry decision to support the Addendum approach vs.
preparing a new Initial Study. In Gentry, the project did not change at all, but the lead
agency changed. That has no bearing on this case. A more applicable case is Friends of the
College of San Mateo Gardens v. San Mateo Community College District (Case No. S214061),
in which the appeals court found a low threshold for considering a project 'new' rather
than 'modified', and ruled the use of an addendum to be impermissible. That case is
currently before the State Supreme Court.
Finally, there is a substantive difference between the Addendum approach and doing a new
IS. As detailed in our previous letters, failure to do a new IS has effectively cut out the state
resource agencies from review of the currently proposed project.
Technical Issues with the 2010 IS and Addendum
The Addendum and 2010 IS continue to fail to correctly identify the riparian areas on the
site, per the Pacific Biology report submitted along with our June letter. In addition, the
Addendum fails to address any of the factual conclusions of the Pacific Biology report.
In addition to the setback issue, under the current plans, the bioswales essential to assuring
that project runoff is adequately filtered before entering the creek have been substantially
reduced compared to the previous design. The previous design included two 40'-long
swales, and one each of 30', 25', and 10' lengths (total of 145 linear feet). This has been
reduced to one 35' swale, one 25' swale, and a 20' swale (total of 80 linear feet). Absent a
hydrologic analysis, it is impossible to determine whether the reduced bioswale capacity is
adequate to treat anticipated runoff. This issue should be addressed in the IS.
3
19 Highland Avenue
Creek and CEQA Comments
Conclusions
Page 4
August 24, 2016
As summarized above, the project continues to fail to comply with required stream
setbacks. The Town has failed to consult with applicable state resources agencies, and
failed to meet CEQA procedural requirements for impact assessment, public and agency
disclosure, and review. In addition, based on information provided in the Wood and Pacific
Biology reports, the Addendum continues to incorrectly characterize the stream and
associated riparian zone, failing to address the issue in a meaningful way. A simple
determination would be possible by just asking CDFW or the RWQCB to review the various
biological resources report or visit the site. The Town staffs approach eliminated that
possibility. The reduced bioswale capacity also should be evaluated in the IS.
It is my professional opinion that the project should be re-designed to comply with the
Town's creek setback standards and a new or revised IS should be prepared and circulated
for public and agency review according to CEQA requirements. Please feel free to contact
me at 510 849-2354 if you have any questions regarding this letter.
Sincerely,
Richard Grassetti
Principal
Grassetti Environmental Consulting
4
Sally Zarnowitz
Subject:
Attachments:
FW : 19 Highland Grading Near Streams
grading near streams.pdf
From: Anthony Badame [mailto:abderm@qmail.com]
Sent: Tuesday, August 23, 2016 10:04 AM
To: Sally Zarnowitz
Cc: Joel Paulson; Dede Smullen; Lisa Roberts; Teresa Spalding
Subject: 19 Highland Grading Near Strea ms
Hi Sall y,
Does the 19 Hi ghl and development meet grading guidelines as described in the attachment? If so, please
explain.
Thank yo u .
Anthony
An tho n y J. Badame, MD
an th ony@ b ad a m e.co m
1
DES I GN GU I DE 9
GUIDELINES A N D STAN D AR DS V.A
GRADING OPTIONS NEXT TO STREAMS
I
DEVELOPMENT ---<l>----SCVWD R/W OR RIPARIAN PROTECTION AREA
DETAIL
OPTION 2
VAR IES I Exist. Ground
DETAIL
OPTION 1
PREFERRED
Exist. Ground
DEVELOPMEN T-----<:>------SCVWD R/W OR RIPAR IAN PROTECT ION AREA
RE IN F. CONCRETE OR BLOCK RETAINING
WALL WITH ARCH ITEC TURAL
TREATMENT ON FACE
Exist. Ground
DETAIL
OPTION 3
SC ALE• N .T.S
GRADING ADJACENT
TO STREAMS
Sheet29.dwg
~
REVISED
USE R MANU AL: GUID F.LINE S & STANDA RDS FOR LAN D USE NEAR STREAMS 4 .17
DESIGN GUID E 9
G U I DE LI NE S AN D S TANDARDS V.A
GRADI .NG OPTIONS NEXT TO STREAMS
Option 5 is not the preferred option because placement of fill in riparian areas can damage
stream side resources. If fill must be used in riparian areas, the type of fill used must support
riparian vegetation and the a rea should be rev egetated .
DEVELOPMENT ---0--SCVWD R/W OR RIPAR IAN PROTECTION AREA
I
HOODED INLET WITH
12" CMP* DIRECTED
TO EXI STING STORMDRAIN
h
DETAIL
OPTION 4
* CO RRUGAT ED ALU MINUM OR STEEL PIPE
USE ONLY WHERE THER E IS NO RIP ARIAN CORRIDOR
I r --[·---_ ... ·-· --
Extsf. Ground
~e5~~~.~~A
P hone (408)265-2600 U
SCALE• N.T.S.
~
REVISED
DETAIL
OPTION 5
---EXISTING BANK
GRADING ADJACENT
TO STREAMS
4.1 8 USE R M/>.NUA L: GUI DELINES & STA NDAR DS FO R LAND USE NEAR STREAMS
August 24, 2016
Planning Commission
Town of Los Gatos
11 0 E . Main Street
Los Gatos, CA 95030
RECEIVED
AUG 2 4 2016
TOWN OF LO S GATO$
PLANNING DIVISION
Re: Appeal of Architecture and Site Application S-15-077
Continued Hearing Set for August 24, 2016
Dear Commissioners:
The undersigned Appellants are submitting this letter in preliminary response to the following
documents:
1. Letter from Applicant not dated but marked "received" by the Town on August 18, 2016
("Applicant's 8/18 Letter");
2. Letter dated August 16, 2016 from Monarch Consulting Arborists LLC and included with
Applicant's 8/18 Letter ("Monarch Letter");
3. Letter dated July 25 ,2016 from Applicant ("Applicant's 7/25 Letter");
4. Letter dated July 5, 2016 from H.T. Harvey & Associates included with Applicant's 7/25
Letter ("Harvey Letter");
5. Letter dated July 11 , 2016 from Matteoni O 'Laughlin & Hechtman (the "Hechtman
Letter");
6. Letter dated July 21, 2016 from Live Oak Associates, Inc. ("Live Oak Letter");
7. Addendum to the Previously Adopted Mitigated Negative Declaration (the
"Addendum"); and
8. Planning Commission Staff Report for the August 24, 2016 hearing ("Staff Report").
Additional comments will be provided at the hearing.
A. Appellants' Prior Submissions for the Upcoming H earing
On August 10 ,2016, Appellant Lisa Roberts submitted a Jetter of that date ("Roberts 8/10
Letter") to the members of the Planning Commission. By email to Staff, she requested that the
letter be delivered promptly to the addressees. She also anticipated that Staff would
simultaneously copy the letter to Applicant. Instead, while Staff promptly provided a copy of the
letter to Applicant, it held the Jetter from the Commission until eight days later, on August 18 ,
for inclusion with the submission package for the hearing .
As Ms. Roberts had explained to Staff, she had worked hard to finish and submit the letter given
the many matters at issue on this appeal and the desire to provide the Commission members with
additional time to consider those issues. We are disappointed that her efforts were in vain as to
the Commission.1 However, based on that s ubmi ssi on , Applicant has had the opportunity to
rev iew the 8110 Letter and to respond to it , as he states he has done by his 8/1 8 Letter.
Similarly , on Augu st 18 , 2016, Appellant Dorothea Smullen submitted correspondence to the
Staff with a request for prompt delivery to the Commission, specifically an August 15, 2016
lette r from Grassetti Environmental Consulting ("GE CO 8/1 5 Letter"). Likewise , while Staff
apparentl y promptly deli ve red the letter to Applicant, it declined to forward the letter to the
addre sses as reque sted, holding it until submission of the August 18 package. Again, however ,
Applicant has had ample time to review and respond to the letter.
B. Applicant's Lack of Justification for Having Failed to Make the House Substantially
Smaller.
In his 8/18 Letter, Applicant state s:
We acknowledge that some members of the Planning Commission requeste d a smaller
home, but the discu ss ion of floor areas was not a consensus and did not represent the bulk
of the conversation.
(Applicant's 8/18 Le tter p. 1.) Thi s statement is completely inconsiste nt with the Commission's
directions at the June 8 hearing . The Commission expressed keen concern over size, and it
clearly and repeatedly urged Applicant to design a substantially smaller house. Size was literally
the first (and perhaps even the last) issue rai sed in deliberations; it was identified as
Commissioner O 'Donnell's biggest problem with the project; it was raised not just because of
the sheer size but al s o because of the effect of the size on other i ssues such as creek setback and
LRDA; it was expressly mentioned by a plurality ofthe Commissioners, each using the
"substantially smaller" standard ; and no voice was rai se d in favor of Applicant's attempt to
maximize FAR on the site.
As set forth in the Roberts 8/10 Letter, neither Applicant nor hi s Archi tect could have concluded
that a mere single-digit percentage reduction was required (8'h percent), and, indeed, as set forth
in the Roberts Letter, Applicant has himself ta ken the pos ition that hi s rede sign d id not result in a
sub stantial modification .
Applicant's 8118 Letter al so argues that the proposed house "is not a significantly large home by
Los Gatos standards." (ld.) The letter does not cite to any authority for this statement but
presumably relies on the Neighborhood Analysis Table included in the Staff Report. As
discussed below, that Table include s irre le vant and infla ting information and i s not dependable.
Moreover, thi s site i s unique, with constraints of which Applicant was or should have been aware
when he purchased the property , including its shape, slope, terrain , creek, and trees. Other sites
without these constraints may well accommodate the hou se Applicant is propos ing. This one
does not.
1 We hav e since learned that the full letter was not delivered to th e Commiss ion in the August 19 package; that, e ven
th o ugh the letter wa s sent with its exhibits in a s ingle pdf file , the exhibits were excluded from the package; and that
the Comm ission did not re ceive the ex hibits, including Exh ibit D, Ro be rts' extens ive di scuss ion of the tree issue as
to thi s proj ect, until the a fternoon o f August 22.
2
Finally, Applicant's 8/18 Letter claims th at th e house "will not be significantly vi s ible due to its
locat ion and topography." (/d.) Appl icant does not prov ide any explanation or s upport for this
statement. Nor does he attempt to counter, and cannot counter, the true facts set forth in the
Roberts 8/10 lette r: the house, from all visible points, lo om s as a three -story house uncommonl y
close to the road , w hich , as will be shown at th e hearin g , is actually hi gher in the ai r than
Applicant's p ri or, unacceptable design.2
C. Applicant's Manufactured, Inadequate, and Illegal Creek Setback.
T he repotts that have previous ly been s ubmitte d by Appellants and thei r experts have
demonstra te d that the applicable creek setback for thi s prope rty is 25 feet, and further testimony
in thi s regard will be offered at the hearing.
The following are merel y some additional comments:
1. The Staff Report states that, at the June 8, 2016 hearing, the Commission recommended
that Applicant consider , among other things, "increasing th e setback from the intermittent
tributary to 20 feet." (Staff Report p. 4 .) It is correct that th e Commission suggested
increas ing the setbac k from the "in te rmittent tributa ry." However, it is not correct that
the Commiss ion spec ifi ed a 20-foot setback. In stead, it s members referred to a "20 to
25" foot se tback without determination at that time of which was applicable.
2. As set forth in the Roberts 8/10 Letter, the revi se d plans do not comply even with a 20-
foot setback, and , as w ill be addressed by Appellants' expert, yet a further example of
that non-co mpliance is the considerable encroachment of th e proposed driveway into the
setback area.
3. Applicant 's cantil evering justification for intruding on the setback, and specifically hi s
reliance on Section IIIA of the G&S for Land Use Near Streams, is without merit. As
will be further discussed by Appellants ' expert, that section m erely precludes overhangs
beyond the top of bank. It does not affirmatively permit overhangs up to that point. Nor
does it vitiate the c lear and express creek setback provisions at p. 3.8 of the G&S. Those
rules contain their own requirements and exemptions that neither Applicant's proposed
cantilevering of inte rior floor space or cantil everin g of deck a rea over 30 inches above
g rade sati sfy.
2 It is notable that, by hi s Letter , Applicant does not acknowled ge th e relevance of the "perceived mas s" of the home
as to e levat io n rather than as argued before the inte rn a l technical s pecifications. (See Letter p. I [relat ing to
"perceived mass"] and Town Policy CD-14 .3 [focus ing on the vis ual effect of th e hous e].)
3 The driveway is among the structure s that may not intrude into th e setback area. The setback applies to "a ll
improvements" (except some very minor work, i.e. less than 3 cubic yards of earthwork); d ecks and park ing lots are
express ly included as "structures" in the requirements ; and driveways, just like houses, have s im ilar impacts on the
environme nt and are s u bject to s imilar hazards a ssociate d wi th creeks and s lopes .
(See http://www.lo s gatosca.gov/Docume ntCente rN ie w/ 14607 .)
3
D. Applicant's Continued, Increased, and U nnecessary Encroachment Beyond the
LRDA
App li cant's 8118 Letter does not de n y that hi s red esig n re sults in an even g reater e ncroachment
into LRDA than hi s original , unaccepta ble plan s. The letter purports to justify the encroachment
on the features and constraints of the prope rty, including the creek. Applicant's LRDA
encroachment under his revised plans, jus t like hi s e ncroachment under hi s original plans, is not
due to the features and constraints of the property but to Applicant's d es ire to maximize house
s ize for profit.
At th e June 8 hearing, Commissioner Hudes stat e d that he had not understood that the LRDA
needed to be exceeded on this project. Rathe r, he unders tood Staff to have said t hat the LRDA
neede d to b e exceeded only to retain the s ize of th e house. The same is true as to Applicant's
rev ised plan s. There still has bee n no s howin g that App li cant must exceed the L RDA in order to
accommodate the c reek setback a nd built a s uita ble ho u se . Stated otherwise, Appli cant has
fail ed to establi s h, or even assert, that he cannot build a s uitable home with in th e LRDA (or
even , less outside the LRDA). Just as before , A pplicant proposed to exceed the LDRA o nl y to
re ta in the (minimally altered) s ize of th e house.
Applicant a ls o seeks to justify the LRDA viol ation by arguing that the property "is not on a
ridgeline and i s not s ignificantl y v is ible f rom offsite." (Applicant's 8/18 Letter p . 1.) Applicant
has not cited any authority limiting LRDA requirements only to rid ge line pro p e rti es, and , in any
event, hi s argument is without merit. Whether or not located on a "ridgeline," the property-and
the overs ized house Applicant wants t o build o n it-wo uld be s ig nificantly v is ibl e from offsite,
including, as not denied b y Applicant, from Hi ghl a nd Avenue as well as from ho mes on Alpine
Avenu e.
E. Applicant 's Continued Attempt to Maximize F loor Area Ratio in Violation of the
Hillside Development Standards and Guidelines and Based on Irrelevant and
Inflated Existing Construction Info rmation
The Staff R e port includes a Neighborhood Analys is Table for the purpose of evaluating FAR.
(See Staff Repo rt p. 6 .) A s acknowledged in the Staff Report, the Table includes ce ll ars in t he
s quare footage information. (See id. at 6 ["[t]he provided floor areas m ay a lso inc lud e cella rs"].)
Cell ar s pace is not properly includ ed in the calcu la ti on of fl oor area or FAR. To th e ext ent that it
has been included, the flo or areas and F ARs of existing homes have been inflated. Thi s is not a
hypothetica l issue. Cellar space has in fact b ee n in cluded. Just looking at Appellants ' four
homes included in the Table, two have ce ll a rs whose floor area has b een inc luded in the alleged
floor ar ea with a re sulting s ig nificant infla ti on of F AR. U nlike as the gar age areas of the existing
home s, Staff has not id entifi ed and segregated cell ar space from the remaining floor area, and
th e re is th erefore no way t o d et e rmine the degree to w hich the floo r areas and F A R s have been
inflate d. The Tabl e , the refore, is not a dependab le g au ge of comparative FAR and Staffs
reliance o n it in its report is not justified.
The Table is undependable fo r yet another reaso n , including entire pro pertie s tha t are not
comparab le to the s ubject prope rt y. At leas t 9, if not more, of the 17 properties li st ed o n the
4
Table are zoned R-1 :20, not HR-2 Yz like the subject property. (See id. p. 6 [the Table] and p. I
[stating that properties to the East and North of the subject property are zoned R-1 :20].)
Applicant obviously has not agreed to comply with R-1 :20 as well as HR-2Yz zoning
requirements, and , thus , these properties are irrelevant to this project.
Additionally, the Table includes properties that were built years, so metimes decade s, ago, under
entirely different rule s. Both as to this point and as to the lack of zo ning parity just discuss ed ,
Commissioner Kane 's comments at the June 8 hearing are instructive: "comparisons to other
developments possibly done with different rules really don't help us ." (June 8 Hearing Video at
approximately 4:13 :33.)
F. Applicant's Continued Use of (Excessive) Retaining Walls in Violation of the
Hillside Development Guideli nes, as Well as Continued Failure to Justify the
Denuding of the Property and Dumping into the Creek
Appli cant 's 8/18 Letter has failed to respond effectively to the points made about retaining walls
in the Roberts 8110 Letter. Other than Applicant's continued insi stence on a larger proj ect than
appropriate for thi s unique property , Applicant has failed to justify the amount of retaining wall
that he still proposes for his project and hi s associated violation of Hillside Development
Standards and Guidelines which actually call not only for reduction but complete elimination of
retaining walls. (See HDS&G p . 1 9 ["elimination of retaining w a ll s is a priority").) Nor has
Applicant denied that, to the extent that he has reduced retaining wall , he has done so in large
part by substituting his house for retaining wall and thereby proposed to violate yet a different,
equally important prov ision of the HDS&G, providing that "[g]rading shall be kept to a
minimum." (!d. p. 58.)
In addition, neithe r Applicant's 8118 Letter nor his 7/25 Letter directly addressing his so-called
weed and invasive brush removal justifies the damage Applicant did to the property and creek to
accommodate hi s redesign of the fire turnaround and driveway.
First, he does not den y any of the facts relatin g to those actions set forth in the Roberts 8110
Letter. He does not deny that thi s action was taken deliberatel y without notice to Appellants or
other neighbors ; or that it accommodated his architectural team's meas uring , mathematical , and
other work to redesign that area; or that the timing of hi s actions correlated to hi s construction
design (the decision to revise the fi re turnaround design having been made the day before) rather
than to any weed or invasive brush removal deadlines (the removal having undeniably taken
place long after the February 19 lette r from the Fire Department requiring private fire prevention
measures as well as after the June 1 deadline for his compliance with that lette r); or that the work
denuded the affected areas; or that waste was dumped into the creek; or that he was required to
notify , and failed to notify, the Regional Water Quality Control Board under Fish and Game
Code section 1602 before hav ing taken th ese actions.
In hi s 7/25 Letter, Applicant claims that, other than the area at issue, "there are no other places
on the property that have dense weeds/shrubs that re quired clearing for fir e dept." (7 /25 Letter p .
1 . ) He also claims that weeds were removed in areas "le ss that [s ic] 1OOft to several structures at
15 Highland " because the regulations "still apply" even if there is no structure on the subject
5
property and because "a defensible s pace of I OOft (a Green Zo ne) must be maintained around
homes and all accessory structures" (!d. p. 1.) He has submitted the Harvey Letter which
mentions two invas ive plant species at the prope rty , Vinca major and Rubus aremeniacus and
s tates that the Department of Fish and Game s upport the removal of these spec ie s . Finally, he
claims that he ultimately removed the debri s and left the site clean and that a representative of
the California Department of Fish and Wildlife "clearly stated that a permit for the completed
work is not necessary." (!d.) Much of the foregoing is inaccurate or misleading, and none of it
justifies Applicant's actions.
The implications that the work done was to create a 1 00-foot Green Zone and that there are no
other places requiring attention are simply untrue. It is simply after-the-fact convenient that the
area that he cleaned, the proposed fire turnaround/driveway area, was near structures on 15
Highland. As Applicant admits , a Green Zo ne is required as to all structures. (ld.; see also
February 19 ,2016 Letter from the Fire Depattment attached to hi s 7/25 Letter.) This includes
structures on adjacent property on Alpine A venue , which, as noted in the Roberts 8/1 0 Letter, are
next to the portion of Applicant 's property which his p lans describe as a "dense ly wooded area,"
which area i s in dire need of clearing, po ses a greater fire risk that the areas that Applicant
cleared, and was clearly ignored by Applicant because his motive in clearing was not fire
protection but redesign and construction.4
Applicant's remaining claims are also without merit. Regulatory support for removal of invasive
p lants does not override the need for notification and permitting before dumping of waste into a
creek. As for permitting, it is clear that, according to the CDFW, Applicant should have applied
for a permit, is not being required now to do so because the work has already been completed,
and that he must apply for a permit for any future s imilar work. (See Applicant's 7/25 Letter p.
I , emphasis added [stating that he was told that "a permit for the completed work is not
necessary, but that, "if future weed abatement for County fire protection goes into the creek bed,
that a permit should be filed with the CDFW"].) Finall y , as for Applicant's claim that he
ultimately cleared the debris and left the s ite "clean ," the obvious purpose of pre-notification and
permitting requirements of Fish and Game Code section 1602 is not to make s ure that a creek
and creek bed is "clean[ ed]" after dumping but to make s ure that it is not di sturbed in the fir st
place.
G. Applicant's and the Town's Continued Failure to Follow Proper CEQA
Requirements.
The report s that have previously been submitted by Appellants and their experts have explained
the still-continuing violations with CEQA, and further testimony in thi s regard will be offered at
the hearin g. As discussed in more detail in those reports , Applicant's proposal is a new project,
not a modification of an existing approved project. The Town's release of an Addendum to the
2010 IS is inad eq uate. The Addendum fails to evaluate new information regarding riparian
habitat, fails to adequately address the project's water quality impacts, fa il s to address required
4 As stated in the Rob erts 8/10 Lett er, Applicant 's property near 78 Alpine structure s co ntain ma sses of ta ng led
bru s h, dead tr ee limb s, and fallen trees. Not to dimini sh a ll tho se prob lems, one fallen tree is only app ro xi mate ly 30
feet away from structure s, is it se lf nearl y apparently 30-40 feet in length , and has been lyi ng on the ground , dying,
for yea rs.
6
setbacks, and fails even to correctly identify the stream 's intermittent status. At a minimum , that
document shou ld be circulated a long with the 20 10 IS and project plan s to the CDFW, RWQCB ,
and SCVFCO for review and comment.
The following are merely some additional comments:
The Hechtman Letter concluding that a new IS is not necessary is based on incomplete and
inaccurate facts. Without di scu ss ion, it asserts that the project changes have been "minor."
(Letter p. 2.) Without reference to the all the pertinent facts, it states that "[t)here a re no
changes to the circumstances of thi s vacant parcel or the s urrounding area s ince approval of the
MND, other than the environmentally beneficial changes of increa sed creek set back and
significant reduction in lot coverage and retaining wall he ight and length . (!d., see a lso p. 4.)
Focusing only on the isolated iss ues of creek setback and lot coverage (and, as di scussed below,
even then di scounting the new effects of the new project), neither the Hechtman Letter nor
Applicant's other submi ss ion s adequately address or in some cases even mention the many
"significant" changes and effects that have occurred both respect to the project and the
environment s ince 20 10 , including, a mong others:
I. The man-made redirection of the creek;
2. The obvious effects of the years of severe and unprecedented drought;
3. The admitted removal , death , and decline of trees that have reduced existing habitat and
plant life support;5
4. The re-location of the project on the site w ith resu lt in g diffe rent effect s on trees and land
stability;
5. The comp lete change in syste m protection of water qualit y from a d issi pator system to a
bioswale system -and , without explanation, Appli cant's elimination in hi s revised p lans
of 2 of the 5 bioswa le s previously planned for hi s project;
6. The Applicant's destruction of the understory at the proposed fire turnaround and
driveway and associated dumping into the creek; and
7. The s he er passage oftime s ince the original IS-6 , going on 7, years of ch ange.
With specific respect to the red irection of the creek , App li cant deni ed a t the June 8 hearing that
thi s had occurred (without any percipient knowl e d ge s ince he did not own the property at the
time). He has si nce confirmed th e redirection, but, now, the Live Oak Letter contends that the
redirection was a "natural process" res ulting from "erosion of a steep bank on the adjacent
property to the north" occurring "quite some time ago." (Live Oak Lette r p. 2.) Like Appl icant,
Live Oak has no percipient knowl edge, and it s conclusions a re wrong. Appellant Roberts has
testi fied , a nd wi ll testify again if asked, that the re -direction of the creek, which was promptly
5 In deed , the Staff Report hi gh I ights o ne significa nt cha nge , as to Tree 56. That tree , which was to be reta ined under
th e 20 I 0 plan s but is now to be removed und er th e current plans, went from Fa ir condition with a High suitability
for pre servation in Feb ru ary 2016 to Unstab le cond iti on with Poo r s uit ability for prese rvation in July 20 16. (See
February 15, 20 I 0 and July I 0, 20 16 arbori s t repo rt s.) Ju st as to th a t tree, Applicant and /or the Town fe lt compelled
to quest ion th e effect of it s removal on bat hab it at, and , while , contra ry to App ellants ' expert's co nce rn s, w ithout
public agency co mm e nt , and without public input , they have concluded that the removal wou ld not signi fi can tl y
affec t bat habitat, they have not performed the same review as to other tre es and changes, and , in any event , the
effect o n hab itat is one of the very question s that is s upposed to be addressed via a pub licly c ir cu lated CEQA
process.
7
reported by her to the property owner at the time, was man-made. A bulldozer, not a natural
process, moved the creek. Likewise, a bulldozer, not erosion, affected the adjacent steep bank.
The work was done at the instance of the owner of th e adjacent property. The purpose of the
work was to s hore up the bank. This was accompli s hed by digging a new route for the creek
several feet farther away from the bank, scooping out th e remains of the old c reek bed and
s urround s, and us ing those remains to build up the bank. A s not denied by Applicant or th e Live
Oak Letter, the changes in the bank s ize and creek location a re s ig n ificant. Live Oak's
misunderstanding of the facts relating to the creek re location undermines the validity of its
environmental conclusions .
Additionally, returning to the Hechtman Letter, it ha s provided no legal s upport for its assertion
that the proj ect at is sue is not a new but only a chang ed project. Whi le the body of CEQA cas e
law is quite substantial , the Letter has cited only one case in thi s regard , and that case i s old
(1995), was decided by a Court of Appeal rather than the Cal ifornia Supreme Court, and
provides no support for the contention that this project i s continued a nd not new.6 Moreover, its
holding in the case before it demon strates the risk faced by Applica nt, and the Town, of moving
forward without a cl early proper C EQA history, void ing approv a l of the negative declaration in
that case, denying project approval , and awarding attorneys' fe e s to th e plaintiff based onl y on
proof of only a few of the numerous C EQA v iolations that plaintiff had asserted. (See Gentry v.
City of Murri eta (1995) 36 Cai.App.41h 1359, 1423 .)7
H . Illegality of and Lack of Current Information and Support for Applicant's Tree
Removal/Preservation Plan
The Robe rt s 8/l 0 Letter included a n exte nsive di scussion re lating to the tre es on the property,
and it included s even different bases on w hi ch the tree issue a lone shou ld pre clude Appl icant's
project. App li cant's 8118 Letter purports to respond , but fai ls to meaningfull y or effectively
respond , to the 8/1 0 letter or any of the points made in it.
Appli cant a sserts that, by the re lo cation of t h e house, "we were able to save several trees ."
(Applicants ' 8118 Letter p. 1.) Applicant provides no ex p lanation or s upport for this a ssertion,
and it runs direct ly contrary to th e facts set forth in the Roberts 8/10 Lette r that the "save d " trees
have s impl y been effectively transferred from the "re move immediatel y" li s t to "conside r lo s t
due to construction" li s t. Applicant's 8118 Letter does not otherwise rebut the points in the
Roberts 8/ I 0 Letter. 8
Nor doe s the Monarch Letter re but a ny of those points, even though Appli cant 's arboris t Mr.
Richard Gessner e xpressly sta tes in that letter that he rev ie wed the m. (See Monarch Le tter
attached to Appl icant 's 8/18 Letter ["I re v iewed the a ppeal documents prov ided by Mrs . Li sa
6 That case does not involve th e s ituation here o f a s in g le lot s ubj ecte d to a years -old IS . Th e re, the IS wa s rece nt, it
was issued a s to a n entire s ubdi vi s ion , and the q ues tion was wh eth er , and to w hat d egree, a ne w IS was r equ ired a s
to one of th e lots in the s ubdivis ion.
7 T he who le are a of new ver s us co ntinuing project is cun·e ntly (l o ng afte r th e 199 5 Ge nll y d e c is ion ) is a hot topic.
(See http ://www.ceqade ve lopm e nts .com/20 16/04/26/s upre me-c o urt -set-to -he ar-impo rt a nt-ceqa-subsequent-review-
c a se .)
8 Page 4 o f App lic a nt 's 8/18 Le tte r a lso di sc usses tre~s but d oe s not hin g more than re peat the tree plan without
address in g a ny ofthe points in th e Ro berts 8/10 Letter.
8
Roberts for site ApplicationS 15-077 d ated August I 0, 2016 regarding concerns about the
trees"].) Indeed, Mr. Gessner effectively supports the Roberts 8110 Letter and particularly its
discu ss ion of his comments re garding trees and th e tree plan to Ms. Roberts, expressly referring
to his conversation in that regard with Ms. Roberts and failing to take issue with her di scussion
of that conversation in her letter. (See August 16 Letter ["On Monday July 18 , 2016, I had a
lengthy conversation with Mrs. Roberts over the phone, at the property owner's expense, to
di scuss many of the issues addressed in the appeal regarding the trees and tre e protection"].)
Other than confirming that conversation, the Monarch Letter merely attests to Mr. Gessner's
objectivity and independence (which Appellants have not questioned either by the Roberts Letter
or otherwise), the nature of arboriculture as an "inexact science" (which, similarly, Appellants
have no reason to di spute), and hi s recommendation that a final tree protection plan should be
created before site di sturbance (to which we agree, except we believe that the tree protection plan
should be effective, legal , and in conformity with Town ordinances). (!d.)
In other words, with ample time to respond to and while purporting to respond to the concerns
regarding trees in the Roberts 8110 Letter, neither Applicant nor hi s arbori st have di sputed an y of
the points made in th at letter, including, among others, that the Application is based on an
outdated town arborist report; outdated information in other report s; a tree protection plan that is
in violation of Town Code; and a tree save and removal plan that purports to save tre es in the
face of evidence that the propo sed construction will de st ro y them. These defects, alone, warrant
denial of Applicant's application and upholding of this appeal.
I. Applicant's Failure to Work With Neighbors
When, at the June 8 hearing, Applicant elected to try to r edesign hi s house rather than have his
Application denied and the Appeal upheld, he was obviously expected to take into consideration
the points that had been made in the Appeal and by the Commi ss ion. But that is not all
Applicant was expected to do. He was also urged to -on a going forward basis-work with
Appellants regarding the redesign. The hearing was specifically continued "in order for the
applicant to work with neighbors and consider de s ign modificatio ns ." (Offi cial Minutes, June 8,
2016 hearing.) The Applicant did not do thi s.
Applicant's response to the Roberts 8110 Letter is telling as to both pre-and post-June 8
co mmunications . As to prior communications, it does not deny that, as Applicant ha s since
admitted, hi s architect's claim that Appellants had deliberately missed meetings and had not been
ac tively involved in communications with him were erroneous and the result of a
"misunderstanding." More importantly here, as to the post-June 8 communications during which
Applicant was to work with Appellants, Applicant does not dispute the fact s relating to tho se
communications set forth in the Roberts 8/10 Letter, including Appellants' repeated requests for
information relating to the intended redesign, Applicant's refu sal to elicit or accept input
regarding the potential revisions; Applicant's refusal to prov ide meaningful information
regarding the revisions he intended to make; Applicant's delay in providing the plans to
Appellants; Applicant's presentation of the revi sed plans as final rather than s ubject to c hange9 ;
9 Indeed , when the plan s were fir st presented to Appellants at the July 10 me etin g (on ly 17 day s before the then-se t
co ntinu ed hea ring of Jul y 27 and only 11 days before th e deadline for th e submi ss ion packet to the Comm iss ion),
Applicant's architect did not attend as promi se d because she was work in g to fi nalize all the last detail s of the plan s
9
Applicant's rejection of each and every suggestion made by Appellants as to the revised plans;
and Applicant 's use of the meetings relating to the plans only to justify and defend and not to
compromise.
Instead of denying any of this , Applicant's response merely seeks to divert attention away from
his failure to work with neighbors. First, he has purported to compile and offer all post-June 8
email communications. As noted by Commissioner Kane at the June 8 hearing, the "back and
forth " details are not helpful, and, further, it is the substance and quality of the communications
that matter, not the mere form and quantity. It cannot be gainsaid that Appellants and Applicant
have had many conversations both before and after the June 8 hearing. Indeed, the emails show
only a partial picture; the Smullens have generously opened their home for numerous meetings
both before and after June 8 , and most if not all of the Appellants can attest to having had
multiple additional communications with Applicant in person, by phone, by text, at the property,
and at other Appellants ' homes during the same time period . The point is not that Applicant
refused to talk to the neighbors; the point is that he refused to listen.
Second, Applicant purports to describe a single conversation in an effort to prove his diligence
and to blame Appellants for his failure to work with them. He contends that, on June 12 ,2016,
four days after the June 8 hearing, he met with three of the four Appellants "to discuss the
project," that he asked them what "an acceptable floor area would be ," and that he was told "that
it is not the appellant's job to design the project" and "to 'be creative'." (Applicant's 8118 Letter
p. 3.) Appellant has erroneously described substance and circumstances of the conversation.
Applicant did not call a group meeting on June 12 to discuss the project. As confirmed by
Applicant, he invited only Appellant Dr. Anthony Badame and his wife to meet with him and his
fiance Ms . Cindy McCormick at the property, and he did so just to "say hi and chat." He had not
invited the other appellants; he was clearly surprised at their presence; and they were present
only at the request of Dr. Badame. Applicant did not raise the issue of size or any other design
issue at the meeting. He focused immediately on criticizing Dr. Badame for having opposed his
project and in particular for having submitting his original letter of concern to the planning
department. It was the Appellants who raised the issue of size, as well as other revisions that
Applicant would be doing , and Applicant's response was that he had been ill and had not yet
considered what revisions he would be making. The only other comments regarding size were
Ms. McCormick's complaint that the Commiss ion had not given a specific number of square feet
by which the house needed to be reduced , and Appellants' reference to the Commission's
recommendation for a substantially smaller house (a reference that Appellants repeatedly made
thereafter as well). The comment that it is not for Appellants to design Applicant's house as well
as the reference to being creative were in the context of Dr. Badame' s gentle suggestion that
Applicant might want to obtain a second, and perhaps more creative, architectural opinion on
design. In fact, it is not Appellants' prerogative or right to design Applicant's house; Appellants
have been careful to remember that; and in keeping with the recommendation of the
Commission , Appellants have endeavored only to provide input and comment, all ofwhich has
in any event been rejected.
for s ubmi ss ion , the next day , to the Town . Thi s ma de th e followin g July 16 meeting even more of a meaningles s
process, other than to further cement Applicant's and hi s Architect"s di ~interest in con s idering neighbor comments.
10
For the foregoing reasons and tho se set for1h in previou s s ubmi ss ion s, we ask that you uphold the
Appeal a nd deny the Applica tion. T hank you.
Sincere ly,
~or o-ftt e ~ .5YVt. tA./1 e Yl
bj ~a~n_
Dorothea Smullen
f1 tl-fh 6, y 1j ~d4. ~ e-
b~ ~"\_12'6~
A ony Badame
~F-·~
Lisa C . Roberts
II
This Page
Intentionally
Left Blank
19 Highland Ave
Appeal Re-Justification
Action of the Developer
Work with Neighbors :
} T•kelto<L•'"•" chose not to seek neighbor input before the revisions
chose to reject all neoghbor input after the revisions
Design Modifications:
} De Mmm>i• Ch•"!l••
limited
new concerns
overwhelming b ulk, mass, a nd volume not materially mitigated
Motion of June 8 Planning Commission Meeting
Plannirog commission mmutes, June 8, 2016, p. 6
"to continue the public hearing ... in orde r fo r the applicant to
work with neighbors
and
consider design modifications "
June 8 Commission Comments & Response
Commission er's Comments Developer's Respon se
• Substantially Sma ller Structure •Height:1ft .FAR:8.5% .Length:2.1%
• 20 • 25' Creek Setback 6 '-16' Setbacks in MuHiple Areas
• AHempt to Comply with LROA LROA Breach: Before: 34% After: 40-45%
• Follow the HDS&G Multiple HDS&G Breaches
June 8 Commission Comments & Response I I Overview
I. Constraints Analysis
Commissioner's Comments Developer's Response
II. Grading and Retaining Walls
• Reduce Retaining Walls 653' .. 210' .. 400'' Ill. Setbacks
• Fit Into Natural Surroundings Bulk, Mass, Volume Perceptually Unchanged I V. CEQA
• Fully Validate Old CEQA Rejected
V. Dri veways
• Wor1< With Neighbors NeighbO(S Input Rejected
IV. Architecture
VII. Conclusion
LRDA
'Ensure that projects are designed
to fit with and avoid the site constraints ." HDS&G P 9
Comm1SS10n Gu1dance Worl< toward LRDA compliance
I . Constraints Analysis
II.
LRDA
L RDA Compliance -reasonable development
Mod est LRDA Exception -larger deve lopment
Grading and Retaining Walls
Yes , It Can Be Done!
Cannon Design Group, February, 2016 p. 2
Retaining Walls
. elimina tion of retaining wafJs is a priority.,. HDS&G p. J9
astoniSI'lng .. enormous
653' .. 210' .. 4QQ •'
• Erased on paper
• 1 0' drop (driveway to creek} without retaining wall
• 40' bioswale removed
• House foundation effectively a retaining wall
• Rear yard retaining wall •ncreasad to net 10 '
} Soil stabil rty
Erosion into creek
Runoff into creek
Grading
"Grading shall be kept to a minimum"
HDS&Gp. 58
Over 400 ' of retaining structures necessary to build house
'The ~ use of rete111mg wafls may be allowed" JCS4.G P .. s
Slopes within residence : 15% -40% <•-bet' •• 27' aner 211%)
"Grachng sh<wkf be aVOtded "' &'SSS where the slope IS (plater than 25 percent "H05&Gp ~
•aufldtng 111 areas wtth ll10f'8 than 30 percent sJope. shall be aVOided" HDS&Gp ,.
Rear yard flat pad artificially created <~><t o· ,.;.,"''lll"'•"l
"The etea/10() of pennan&rJt /18l pads should be aVOided " J«>SW p1r
~Rel81f'f100 walls shell tJOl be us«/ to cre81e Jatge flat yard a-eM '"~,~
"Grading large, IJ8t yaro areas should be aVOided. • R*JCO.J5J , w.n GP
Oiegrlm ttk..,lrom TOW!IInt:lloe. G.!oaW.,._, 19~ AIM.. Sbdo nne OM.gn, ShMtA32
Tree Cluster
Most Likely Dest royed
Due to Construction
(T62, T63, T65)
(Anhough not Marked
For Removal)
}• .::.. -I
' --·. __ , -
e Re<!:
e Green:
Yellow:
Denuding The Hillside?
• ... preservation oftrees ... is a priority.· HDs&G •· "
0
0 0
91' ~ ... rg:, ,.<P
Tree A~eady Removed
Tree A~eady Removed (Discrepancy in Reports)
Tree Planned or Destined For Removal
6S -~.
29 Mature Trees
Destroyed
One Directed to Smullen
Two Directed to Badame
Three Directed to Roberts
None Oireded 10 Htghland
Denuding The Hillside?
Excessive Tree Removal
-Compromise Sylvan Environment
-Compromise Privacy
-*Destabilize Creek Bed
-*Compromise Wildlife Habitat Through Lack of Tree Canopy Cover
-*Impact Wildlife & Sensitive Creek Habitat Through Increased Light & Glare
-*Impact Roosting An imals
• Above Not Addressed With Project's CEQA Documentation
Ill . Setbacks
Denuding The Hillside?
1. Strategic clear cut of only driveway/turnaround area 3. Fish and Wildl~e viOla tion (COde section 1602)
2. Entire understory removed -d umped 11\to creek 4 . Neighbors concerned about land abuse
Same Concerns
~
Neighboring
Se tbacks Conflict
Street Facade
Street Proximity
Pnvacy
Future
Development
Setbacks?
Setbacks Conflict
Front I Rear (Unresolved)
4C: ;rt_....._~
Setbacks Conflict
Creek
Specious Attempt to Comply
Wood Biological Consulting 2008: lntennittent Stream
*H.T . Harvey Ecological Consultants 2016: Ephemeral Drainage
Live Oak Ecological Consulting 2016: Intermittent Stream Description
Pacific Biology 2016: Intermittent Stream
Intermittent Stream
25'
Developer
"Slightly Modified Design· • Addendum
Pearson Project
Before: 2'-12' After: 6'-16'
IV. CEQA
Conflicting Testimony
Appellants
• Sign ificant Enough Changes
• Procedural Missteps
~ I • Recirculate
/ ... £:··,~ CreekSetback
" }-..__ -..:, ... -·-;--., ' ' ,_ ----<:. ~·-
.<; .,. r. ----.. , .;:. ~-v '---~---:~~--.," 3 .,. ~~;>···!-..~· ...... <...
I
CEQA Breach
Grassett1 Environmental Consulting 2016
Standard CEQA Process of Involvement Not Followed
Dept. of Fish and Wildlife , and SF Bay Regional Water Quality Control Board :
• Improper Contact
• No Input
CEQA Breach
Grassetti Environmental Consulting 2016
CEQA Incorrectly Implemented
• 2010 IS/MND outdated and does not fully apply (setbacks)
• Agencies have not commented on revised setbacks via the CEQA process
Streambed Alteration Agreement was never applied for
• New IS/Notice of Intent to Adopt, & MND review by public/agencies required
Driveway Congestion
f, ,.,._~'• / Not"':'.?..t'.".t,two 1
/
Less than 20 fl a~art ' .. .~:.. ~. ""' IMpract•cal rry/'" •Y-roo .'1!f~~··
7-·-./~ ' .,-... --.. _ ....... '
'owndlosG~W.._.19
To 1 HI~Jhland
~-ShMC:G4
_./•
To 25 Highland
V. Driveways
HDS&G
• ... driveways... They should not greatly alter the physical and visual character
of the hillside ... by defining wide straight alignments." p. eo
·on adjoining properties, driveways should be spaced a minimum of 20 feet apart
or located Immediately adjacent to each other.· p. 23
"Shared driveways serving more than one lot are encouraged as a means of
reducing grading and impervious surfa ces. • p.23
G&S Land Use Near Streams
'Refrain from locating new paved areas ... within riparian corridors.· pH
• Detached Garage
• Elevated Garage
• Shared Turnaround
Alternatives Exist
Ignored
• Sharing Existing Driveway
• Shorter Driveway to Right of Parcel
• Split Property Access : Shorter Driveways to Left and Right of Parcel
• Confer with Neighbors for Further Ideas
Basic Tenets
HDS&Gp.Jt:
"in harmony and visually blends with the natural environment"
'respectful of the rural character of the hillsides "
·compatible with the surrounding neighborhood and respectful of neighbors"
VI. Architecture
Compatible With The Surrounding Neighborhood?
Hl.t"<icHome
Wood& Stone
Historic Sites
T,_.,.. Hor"n. o...g,.. of Var;w'IO StyiM
I Contemporary
· ,/t Modern
lndustnal
N•• Hlttoric Home
Wood&Snek
latortc foMe
Wood&"""'
Maximum Allowed Height
H DS& G PP~ 3S-36
"The maximum allowed height for homes in hillside areas shall be 25 feet."
"The height of the lowest finished floor(s) of a structure shall not be more than
four feet above the e xisting grade to ensure that buildmgs follow slopes."
Three Story Conundrum
"Three-story elevations are prohibited."
HDS&G p 3 6
rfi~lll
W'Mt~( .. Onl)
"A maximum of two stories shall be v is ible from every e levation ."
PollcyCD-14 3, p CD-21 GP
o.gr.m ~ trom TO'IW'I clt.o. Ge• WtbHio, 1SI ~ Plans. Slldo 1l-ne ~ st1e11t A3 1
Ex isting Grade D iscrepancy
Calls into qu estion height limitat ions
Cut Section 3
? ---------R'ev7s8<tPians-----------·
Cu t S ect ion 6
~ Original Plans
? -----------Re;,S&d~~·--------·
Developer refuses to provi de e xisting g ra des for these cut sections on the revised plans.
Oialgram'*ktn frorn Town oflO!tGet::II:W~.1SI H
North Elevation
(side facing creek)
stacked three stories?
. Sheet A3.2
p. 31
Does Building Form Reflect Hillside Form?
·sui/dings s hall be designed to conform to the
natural topography of the site• HDS&G P 36
HDS&G Example Pearson Development
Conforming to natural topography???
b ken from Town of Los Gatos W ebsite. 1Q H" . Stw.tA3.1
HDS&G Example
p. 18
H t into hlllcld.fbodcfilled
*t; ••
~lgh reta ining w all ...,.ted "•t pad
Do this Do n't do this
Does Building Form Reflect Hillside Form?
"Buildings sha ll be designed to conform to the
natural topography of the site" HDS&G p 36
HDS&G Example Pe arson Development
Conforming to natural topography???
m , Sheet A3.1
HDS&G Example
l----------___.:;P· 18
Pearson Development
cat into hilloi<lejbackfihd
Do t his Don 't do this
taken from Town d los Gatos Websita,19 Hi S'-1 A3 7
Roof Forms
HDS&Gp. 39
"The slope of the main roof shall generally be oriented in the same direction as the natural slope of the terrain .·
"Large gable ends on downhill elevations should be avoided. •
Do this Don't do this
TownoflosGWICW~. 1$ Ptent.. Roof Pt.n. Sll.Xiio n .... Sheet A2.2
Roof Forms
HDS&Gp. 39
"The slope of the main roof s hall generally be oriented in I he same direction as lhe natural slope of the terra in. •
"Large gable ends on downhill elevations s hould be avoided.·
Do this
ttktn frotnTO'I'I'I'IollosG.-W~. t9
Wall Planes
Pearson Development
~
Don't do thio
ShMt A3.2
"Avoid two story wall planes · Hos&G • ,.
·second stories should be stepp&d back so the difference in wall planes is visible from a distance · HDS&G p ,.
• Multiple 2 Story Wall Planes
• Bedroom 1 & Guest Suite Step Fo rward, Not Back
Dagram takwl from thl T011m of Lo$ Gotto~ Wfibslttl. 1Qi Pt.n&. Studio nw--D.gn, Sheet A2.1
FAR
Ma xi mum Allowed FAR:
5 100 sf
Pearson FAR:
Bef ore: 5077 s f -After: 464 8 s f
8 .5% Reduction*
Length : 1 02' 4 ' -:;:-1 00' 2 ' 2 .1% Reduction
FAR
'Greater weight shall be given to ...
height , building mass and scale, visual impacts, grading and compatibility.· HDS&G p. 27
Height:
Mass & Scale:
Visual Impacts·
Grading :
Compatibility:
All Parameters Remam Unchanged or Woro ;e
Quest ionable Existing Grade
Mass ively Long Buildi ng Spanning C lose to Street
3• Story Visua l Perception
40% Slope, 400• ft Reta ining Structures
Near Largest Home, Incom patible Arch itecture
FAR
• ... achieving the maximum floor area allowed is not g uaranteed
due to individual site constraints.· HDS&G p. 27
Site Constraints:
• Creek
• 4 0%Si ope
• Numerou s Mature Trees
M uniple site-speciftcconstraints limit maximum achievable F AR
FAR
Pearson P roject
• one of t he largest
• contiguous mass
• most constraoned
~
• cellars erroneously
onduded in FAR
• mixed zoning
Bulk Mass Volume
"Buildings s hall be designed to minimize Oulk, mass and volume• HDS&G p 3 ~
Wall Planes, Le ngth, Setbacks, FAR, Contiguous M ass, & 3-S tory Vis ual
A ll Combine t o Maximize Bulk, Ma ss , and Volu me
Recommendation
• Development Deeply Flawed
• Resistance to Make Meaningful Changes
Deny
V II. Conclusion