Item 04 - 19 Highland Ave - Staff Report Exh.31GECO
Grasscfti Environrnento Consulting
Marni F. Moseley, AICP, Associate Planner
Town of Los Gatos Planning Division
110 East Main Street
Los Gatos, CA 95030
August 15, 2016
SUBJECT: 19 HIGHLAND AVENUE CREEK AND CEQA ISSUES
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 as previously designed on June 2, 2016. This letter presents an update to
those comments, based on a review of the currently proposed plans.
On the basis of communications between our client and your office, we understand that the
Town intends to use the 2010 CEQA Initial Study/Mitigated Negative Declaration as the
CEQA documentation for the proposed project. Similarly, based on email communications,
we understand that the Town and/ or applicant 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 these determinations, as well as overall adequacy of the
CEQA document. In summary, I have concluded that, based on a review of available
information, there is no evidence supporting the use of the 20-foot setback (the
appropriate creek setback on the project site is 25 feet), the Initial Study 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
Town-Required Setbacks
The Town of Los Gatos is a participant in the Santa Clara Water Resource s Collaborative
(SCWRC). The Guidelines and Standards for Land Use Near Streams (G&S) was developed by
th e Collaborative to protect in-stream and riparian water quality, resources , and habitat. The
G&S contains the requirements and guidance for de ve lopment adjacent to streams. The Town
Council adopted a re solution implementing the G&S on February 20, 2007. Specifically, th e
Town adopted C hapters 2 and 3 of th e G&S as Town requirements. Chapter 2 de scribes how
7008 Bristol Drive, Berkeley, CA 94705
EXHIBIT 3 1
(510) 849 -2354
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Creek and CEQA Comments
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August 15, 2016
streams a nd setback zones are delineated. Chapter 3 describes stream protection policies and
require ments, including required stream setback s. The Town is responsible for implementing
these standards. It is required to rev iew potential impacts to streams as part of the development
rev iew process. Projects adjacent to streams are required to be forwarded to the SCVWD for
comment.
As detail ed on p. 3.8 of the G&S, to minimi ze impacts to streams, structures are required be
setback from the s tream. The required setback between the stream and the structure is called the
"slope stability protection area ". The "Slope Stability Protection Area" is an area between a
structu re and the stream2 .
STABILITY PROTECTION AREA
Stream with Little Structurally .l Ephemera l
or No Hardening Engineered System Stream
Size of Protection 25-20 fe et 1 5 feet 10-15 feet
Area (as measured
from Top of Bank)4
Notes: Potential Additions to the Slope
A. For a large lot (greater than 10,000 sq. ft), add 5 feet . (emphasis added)
B. For a large home in which the FAR triggers a discretionary review, work with applicant to ensure that
impacts such as drainage are redirected away from a stream and pursue opportunities to increase the slope
stability protection area to better protect the stream (and home) from impacts. For example, consider
decreasing the required front yard setback in order t o accom modate an increased rear yard se tback/s lope
stability a r ea.
1 Single Family Unit refers to both (a) new single-family units on existing lots of record and (b) new s in gle-
family remodels/rebuilds as defined by local regulationsjpolicyj guidelines
2 In addition to protecting this area, BMP's should be used that are refl ective of Guidelines and
Standards, for activities adjacent to these areas where discretionary review is used (i.e redirecting drainage
away from the stream and no r e m oval of native riparian plants
3 A ''structurall y engineered system" is designed to provide slope stability. It may be a concret e-lined channel
(U-frame or trapezoidal) or a s tream substantially modified with riprap, gabions, structurally engineered
sacked co ncr ete, etc.
4 Area measured for Slope Stability Requirement to be measured based on location of Top of Ba nk, whether
stream is on or off of property.
A detailed in our June 2 letter, surveys by both Michael Wood and Pacific Biology found the
creek to be intermittent and not ephemeral. The Pacific Biology Report was included as
Attachment 1 to our June 2, 2016 letter. The Wood Biological Consulting report was
included as Attachment 2 to that l etter. Both are hereby incorporated by reference. As
described above, an intermittent stream is subject to applicable setbacks applicable to that
class of stream. In the case of this large-lot site, applicable setbacks to the structures would
be 25 feet because, in addition to the stream being "intermittent", the lot is a large lot
(i.e. over 10,000 sq. ft., as defined in the SCWRC G&S). Proposed decks and stairways,
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as well as portions of the house itself, now overhang the setback zone, further reducing the
de facto setbacks of the house. Therefore the proposed setbacks do not meet the Town's
requirements, and the project must be redesigned to meet these setbacks and limit project
impacts to the creek.
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 !near 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.
Improper Regulatory Agency Consultation
As discussed in our June 2, 2016 letter, the Town failed to appropriately consult with
regulatory agencies with jurisdiction and public trust responsibilities for wildlife habitat
and water quality. Instead of involving the California Department of Fish and Wildlife and
San Francisco Bay Regional Water Quality Control Board through the standard CEQA
process, the Town allowed the applicant to send an eight-sentence letter to each of these
agencies 1 . That letter included neither biological reports nor proj e ct plans. It simply stated
"At this time, what I'm requesting, (sic) is correspondence from you (sic) dept. regarding
any requirements, permits/policies etc. that may have changed since the planning approval
for this site in 2010."
It is our understanding that the town continues to consider the agencies' non-response to
these letters to constitute a lack of concern over the project's potential impacts on affected
resources. As discussed in our June 2 letter, these letters do not constitute adequate
agency consultation and the agencies' lack of response does not indicate lack of impacts or
lack of agency concern. No documents or plans were provided to the agencies to review.
No setbacks or riparian zones were identified. Further, for projects of this type, the CDFW
typically only reviews planning-related documents through the CEQA process and then
only upon payment of its required CEQA document review fees, or through its Streambed
Alteration Agreement process. The RWQCB typically also typically responds via the CEQA
or permit processes. The Town's failure to correctly implement CEQA on this project
ensured that the agencies would not comment on the project.
Failure to Correctly Implement CEQA
The Town apparently is relying on the 2010 Initial Study and Mitigated Negative
Declaration (IS/MND) for a previously proposed house on the site as the CEQA
1 Letters from Ed Pe rs on t o the Ca lifornia De partme nt of Fish a nd Wildlife and San Franc isco Bay Re g ion a l
Water Qua lity Co ntrol Board dated january 28, 2016.
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documentation for the current project. In a May 24, 2016 email to Dorothea Smullen,
Mamie Moseley, Associate Planner, stated:
Th e Initia l Stud y and Miti gate d Negat ive D ecl aration we re circ u lated and adopted in compliance wit h
t he requ ir em e nts o f CEQA in 20 I 0 . No comm ents we r e re ce ived. The document was adopted by th e
Pl an n ing Commi ss ion . As d isc ussed , th e IS and M ND d o no t exp ire. Th e propose d project conforms
w ith th e anal ys is prov id ed w it h in the 20 I 0 do cum ent a nd w oul d be s ubj ect to th e Mitigatio n Measures
f ro m the a dopted MMRP. Re -c irc ul ating th e d oc um e nt w ould be inconsistent wi th C EQ A regulat io ns .
T he a d o pted doc um e nt co nti nues to be av a ila bl e fo r review wi th in the public file . Staff did reach out
to bo th C DFW and R WQCB after we tal k ed last to see if they had any comments that they di d not
provi d e to the applicant wi thi n the 30-day p e r iod ~. No a ddit ional comments were provided to s taff.
The Town's CEQA and agency consultation approach fails to meet the most basic CEQA
requirements. First, it is important to note that the current project is not id entical to the
previously proposed development considered in the 2010 IS/MND. In addition, at least
two new biological resource analyses have been prepared for the current project.
The current project has setbacks that continue to not meet Town requirements and the
current project design differs from the 2010 design both in design and placement of the
house and driveway. In addition, new biological information has been developed since
publication of the 2010 IS. Although the Town has conducted biological reviews of these
setbacks, the peer review identified the need for additional work r egarding the setbacks,
and the Pacific Biology report identified additional sensitive resources on the site not
previously considered in the old IS. The Wood Biological Resources report, prep a red for
the 2010 IS/MND, also classifies much of the part of the site p r opos ed for development as
"riparian" habitat, yet the 2010 IS /MND did not address this potential impact. The general
public and the State resource agencies have not been afforded an opportunity to comment
on those analyses via the CEQA process. The 2010 IS/MND also states that the project
plans have been reviewed by CDFG (now CDFW) with respect to a Streambed Alteration
Agreement (SAE). This was incorrect in 2010 and is incorrect with respect to the current
project, neither of which applied for such an Agreement. This deficiency remains
applicable to the current project.
Further, the 2010 approvals have lapsed and the applicant has changed. This is clearly a
new project, the approval of which triggers a new CEQA review. CEQA defines a project as
an "action", which is, in this case, approval of the proposed house plans. The action is not a
previous approval. Therefore the CEQA process begins de novo.
As detailed in our June 2, 2016 letter, CEQA allows use of a previous Initial Study, if
applicable, to a new project, and sets forth a specific series of actions that a lead agency (in
this case, the Town of Los Gatos) must take to comply with CEQA. CEQA Guidelines 15063
describes the use and required contents of an Initial Study, including the use of an earlier
2 Bas e d on the lette rs sent to the regulatory agencies, it was not the To w n w h o r eache d out, but r a ther the
applicant As described above, this appro ach to agency cons ulta tion is v irtually guar a nte ed t o r e sult in a n o n-
response from the agencies.
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Initial Study. Regarding the use of a previous CEQA document, Section 15063(d)(3) state s
that the IS contents must include,
Identification of environm ental effec ts by use o f a chec kli st, matri x, or othe r method prov ided th at
e ntri es on a c hec kli s t. .. are brietl y explain ed to indicate th at there is so me evidence to su pp ort the
e ntries. T he brie f ex pl anation may be eit her t hr o ugh a na rr ative or a reference to anothe r info rm at ion
source s uch as .... an earlie r EIR or nega t ive decla ration .
The CEQA Guidelines also set forth requirements for agency consulta tion with responsible
and trus tee agencies (Section 15063(g)), a nd a specific process fo r adoption of a Mitigated
Negative Declaration (Sections 15072, 15073, and 15074). This process involves
circulation of a Draft Initial Study and Notice of Intent to Adopt a Mitigated Negative
Declaration, public and age ncy review of th e IS/MND, and consideration and adoption of
the MND. The Town has sidestepped the required CEQA process in favor of another
process of its own making. This is expressly prohibited by CEQA case law. In the Salmon
Protection and Watershed Network v. County of Marin decision (December 2004), the
Court of Appeals ruled:
Re liance upon mi tigat io n measures (w hethe r included in the app lic at ion o r late r ado p ted) in vo lves an
eva lua tive process of assessing those mitigat ion meas ur es and we igh ing th em agai nst potential
env ironm enta l impacts . and that process mu.~t he conducted under estahlishetl CEQA standards and
procedures for EIR.~ or n egatil•e declarations. (emphasis added)
As clearly stated in this decision, a Lead Agency must perform its evaluation under the
procedures established by CEQA , and may not make up its own parallel CEQA process.
Should the Town choose to rely o n the analyses in the 2010 ISJMND, augmented by the
more r e cent biological resources reports, the CEQA process for this project would be to
prepare a new IS/Notice of Intent to Adopt and MND (including the new project plans,
setba cks, new biological analyses, etc), circulate it to the public and applicable resource
age ncies, consider public and agency comments, and then, should the Town choose to
approve the project, adopt the IS and a new Mitigation Monitoring and Reporting Plan.
Therefore, it is my professional opinion that Town's substitute process is impermissible
a nd fails to meet the public and agency involvement and goals of CEQ A.
Conclusions
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
fa iled to m ee t 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 2010 MND does not accurately characterize the stream and ass ociated
riparian zone. The reduced bio swale capacity also should be evaluated in the IS.
It is my profe ssional opinion that the project should be re-designed to comply with the
Town's creek s etback s tandards, a new or revised IS should be prepared, and that
document s hould be re-circulated for public and a gency rev iew according to CEQA
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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
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Lisa C. Roberts
78 Alpine Avenue
Los Ga tos , CA 95030
lroberts@.rehonroberts.com
408-859-7585
August 1 0, 20 16
Mary Badame, Chair
Michael Kane, Vice Chair
Kendra Burch, Commissioner
Charles Erekson, Commissioner
Me lanie Hanssen, Commissioner
Matthew Hudes, Commissioner
Tom O'Donnell , Commissioner
Planning Commission
Town of Los Gatos
1 I 0 E. Main Street
Los Gatos, CA 95030
Re: Appeal of Ar chitecture a nd S ite Applica tion S-15-077
C ontinued Hearing Set for Au gus t 24, 2016
Dea r Commissioners:
l reside at 78 A lpine Avenue, Los Gatos. I am one o f the appellants ("Appellants") in the
above-referenced appeal (the "Appeal") of the decision of the Development Review
Committee ("DRC") approving Application and the Appeal Site Application S-I 5-077
(the "Application") by the Applicant Ed Pearson ("Applicant") regarding 19 H ighland
A venue (the "Property'') des igned by Bess Wiersema (the "Architect"). I am submitting
this letter for review and consideration for the upcoming August 24 hearing on the
Appeal.
l believe that a beauti ful home can be built on this beautiful site, and I look forward to
having new neighbors who will enjoy the neighborhood as much as I and my family ha ve
fo r the last 28 years . It is not Appellants' right, or job, to design or redesign Applicant's
house. We as k only that whoever builds a house on this site complies with the law,
including CEQA , as well as the Town's very thoughtful and important guid elines
govern ing hillside and creekside development.
I. I ntroduction and Request
At the June 8 Hearing, this Commission gave Applicant the choice of whether to accept a
granting of the appeal and the opportunity to appeal that decision to the Town Council or
to revise his plans. Applicant elected to revise his plans.
The members of the Commission worked hard at the hearing to articulate their concerns
to guide Applicant's revisions. As discussed below, the revised plans demonstrate that
Applicant did not take the Commission's concerns seriously. Rather, it appears that
Applicant merely chose to revise his plans in order to avoid the immediate granting of the
Appeal and in the off~chance that the Commission might accept de minimis changes the
second time around.
Also as discussed below, Applicant failed to honor the Commission's request that
neighborhood input be considered in the revision process. Rather, Applicant and his
Architect effectively excluded Appellants from the process until only days before the date
on which this submission was due for the then-set hearing of July 27 , 2016, and then
essentially presented the revisions to Appellants on a take it or leave it basis.
For these reasons, as discussed below, I request that the Commission uphold the Appeal
and deny the Application.
II. Summary of Commission Comments and Directions at June 8 Hearing
The Commission of course is in the best position to recall and characterize its comments
at the June 8 hearing, but set forth below is my understanding of those comments and
directions based not only on my attendance at the hearing but my thorough review of the
video proceedings including most importantly the deliberations of the Commission. As
concluded by the Commission, as I understood the Commission 's comments:
I. The structure must be substantially smaller.
2. The structure must provide a 20-25 foot setback from the creek.
3 . In revising the plans, Applicant must comply with , or at least make a serious
attempt to comply with, the LRDA.
4 . In revising the plans, Applicant must also comply with the Hillside Development
Guidelines including their impact on FAR.
5. Applicant should consider the concerns stated by Commissioner Hanssen
regarding the amount of retaining wall.
6. The structure must fit into its natu ral surroundings.
7. For both his protection and the Town's, Applicant should consider whether he can
rely on the CEQA report that is several years old relating to a different project or
whether he needs to do more to comply with CEQA. 1
As discussed below, with the exception of a change in the creek setback, Applicant failed
to take to heart any of the Commission's comments, and, even as to the creek setback, the
change is inadequate as explained below and it also results in an even deeper and more
material encroachment o f the structure outside the LRDA.2
III. Summary of Defec ts in t he Revised P lans a nd the Proposed Project, I ncluding
Appli can t's Fai l ures t o Address t he Co ncerns Sta t ed by the Commission
Appellants may need to provide further information at or before the hearing, but, based
on what I have been able to determine for inclusion in this submission, the revised plans
fail to address the Commission's concerns and the project is otherwise defective in at
least the following ways:
1. The structure is not substantially smaller.
2. The structure does not accommodate the required creek setback.
3. The structure even more seriously intrudes into the area outside the LRDA.
4. The structure still does not comply with the Hillside Development
Guidelines, including their effect on FAR.
5. With the possible exception o f the driveway retaining walls , the revised
plans do not meaningfully alter the project's reliance on retaining walls
and/or other unnatural grading.
6. The structure still does not fit with or respect the site's natural
surroundings.
7. Applicant has incorrectly elected to continue to rely on a stale CEQA
Report.
1 I provi ded my stat ement of my understanding of the Commission 's comments in a June 23 email to Applicant, a
copy of which is attached as Exhibit A. I did so in an attempt to do my best to move the revision and review proce ss
along . By then. over two weeks had passed since the June 8 hearing. and Applicant's fiance Ms. Cind y Mc Cormick
had advised that there was no news to report because Applicant's Architect was bu sy. (We later learned from
Applicant that he and his Architect did not meet for the first time to discuss what plan changes to make until June
25.) Given that there was only a period of37 days between the June 8 hearing and the date , July 21 , for submis sio n
of material s for the Co mm ission package for the July 27 hearing and that it wa s already the 151h (and soon to be 17'11
day) of tha t period without ac tion by Applicant and hi s Architect , I was concerned about the delay and its imp ac t on
our abi li ty to revi ew and respond to the revi sed pl an s. In his June 25 res ponse to my email (a copy of which is
attached as Exhibit B), Applicant sta ted that he had a different int erpretation of the Commi ssion 's comments but did
not explain in what regard.
~At the outset of the June 8 hea ring , I presented a letter to this Commi ssion, and the letter was discussed, but it does
not appear that it wa s forma ll y added to the file . Attached as Exhibit Cis another copy of the Jetter for inclusio n in
the file .
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8. Applicant has failed to address other concerns properly and legitimately
raised by Appellants, including the proper preservation and protection of
trees, reduction of e levation, and conformity of design to Town guidelines.
Each of these issues is discussed below.
IV. Applicant Has Failed to Revise Hi s Plans t o Meet the Concerns of the
Commission and the Appellants, and the. Appeal Should Be Granted.
A. Appli can t's Revi sed Plans St ill Overly Maximize Size on a Site Callin g for
Non-Maximizatio n.
The Commission called for a substantially smaller house. Applicant reduced the square
footage by 8.45 percent (i.e., from 5,077 square feet to 4,648 square feet). Under no
interpretation is that a substantial reduction. Further, in light of the comments by the
Commissioners regard ing the size and its multiple negative impacts on the project, it is
inconceivable that either Applicant or his Architect truly believed the Commission was
really asking for such a de minimis reduction.3
Nor would the other changes made by Applicant have any appreciable effect in reducing
the size and mass of the house. The revisions merely nibble at the length of the structure,
reducing it by 2.5 feet, a negligible amount given the extreme length of the structure.
Similarly, Applicant's 18-inch reduction in elevation, only on the rear end of the house,
while a step in the right direction, would not significant ly alleviate the massive presence
of the structure on the site. This is particular true given Applicant's simultaneous plan to
encroach even more deeply than before outside the LRDA, into the s lope , and closer to
the road, in order to increase th e creek setback without materially reducing house size.
Size was arguably the most signi ticant concern expressed by the Commission, and it was
certainly the most encompassing. As stated by Commissioner O'Donnell , size is his
biggest problem with the project, and, even if everything else were perfect with the
proj ect, he still would be concerned by the sheer size.
Moreover, size was identified as the primary culprit for numerous other material
problems with the project, including the lack of the proper creek setback; the violation of
the LRDA requirements; the violation of the Hillside Development Guidelines; and the
interference of the planned structure with the natural environment and setting of the site.
As noted by Commissioner Hudes, the setting of the site is very important to retain, and
-------·--·--
j Notably, neither Applicant nor the Architect denies that they were asked to make a substantia l reduction. Also,
notably , Applicant has effectively admitted that the reduction was not substantial in his jus tification for not
readjus ting the story poles to show the new design. As he explained after a July 16 meeting, the rules require
adjustment only if the plans are modified substantially and the plans were "not substantially modified."
4
any decision by the Commission on the project must come down on the side of protecting
the environment that is there and the unique natural setting that makes the site so special.
The Commission's direction to Applicant and his Architect, both present at the hearing,
was clear. As voiced repeatedly by different Commissioners, Applicant needed to design
a "substantially" smaller house, and, as Commissioner Kane put it, a "nice house that
fits." Appli cant has not done so, and, just as Commissioner O 'Donnell pointed out w it h
respect to the original p lans, Applicant and h is Architect arc still trying to maximize size
on a site that calls out for non-maximization.
Applicant has failed to omit a single room from his plans. His house remains a fou r-
bedroom (including master suite w ith his and her closets), five-bathroom (including
powder room) house with a Jiving room, great room, study, deck and balcony, and other
such amenities as a wine room, a spacious laundry room, a kitchen with island and prep
bar and desk an d a pantry (albeit now renamed s imply "pa ntry" rather than "butler's
pantry"), and an oversized a ttached garage. Effectively , his design s t ill follows a cookie-
cutter developer's checklist of maximum luxury. Appellants believe that Applicant does
not need such a house to make a profi t. The Property is a jewel, one that, as described by
Commiss ioner Hudes, is "at the base of a hollow created by erosion and a stream." There
would li k ely be many buyers who would appreciate a house that respects, rather than
overwhelms, the rare beauty of the site.
However, neither Appl ica nt nor his Archi tect appears to ass ign any weight to the value,
economic and otherwise, of a reasona bl y sized house befitting the natural setting. Indeed,
they conti nue to maintain that Application is entitled to develop the site to its maximum .
Applicant still contends that origina l plans complied with all Town requirements (as
stated in his June 25 email to me). His Architect contends that Applicant "actually has
the right t o build a 4700 square foot home on this property," apparently referring to the
current proposed size of 4,648 square feet. She also maintains that Applicant has the
right to all the "current amenities" includ ing an attached garage.
The Architect maintains that the house will now look like a one-story from the road .
Knowing how much Commissioner Kane enjoys hyperbole, 1 will offer the fo llowing:
this is li k e saying th at, if you built a tower emerging on ly one story above the crest of the
Grand Canyon, it would look like only a one-story home . The front of the house wi t h all
its mass would be in full view from the road; the alleged one-story view would occur
only higher up the road about midpoint of the side of the house; the house is clearly and
obviously built deep into a high steep slope; and, un less you keep your eyes closed during
the fi rst part of your drive and half-closed for the remainder of your drive {so as not to
notice the ditch between the road and house side), you a re not like ly to conclude that the
h ouse is a modest one-story.
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Furthermore, this masquerade is not even arguable from other perspectives of the house.
As noted, the full mass is on full view from at least llighland Avenue at the front side of
the structure and likely at the back side as well. The view--and the mass-is perhaps
even more profound from the perspective of properties on Alpine backing up to the
subject Property, many of which extend downward into the hollow shared by the subject
Property and view the property both from the level of Alpine and from creek level. It is
my understanding, under General Plan CD-14.3, ·'[a] maximum of two stories shall be
visible from every elevation ." (See also HDS&G p. 36 ['·Three-story elevations are
prohibited"].)
There is absolutely no dispute what the structure as planned by Applicant would look
like: an exceedingly long three-story edifice extending between the road and the creek.
Because the visual cannot be denied, the Architect has resorted to the invisible, arguing
that the structure is not really three stories because the upper floor is not stacked above
the garage. Town Policy CD-14.3 does not address the invisible but the visible. The
structure would have a devastating visible impact on a natural setting that, as concluded
by the Commission, is very important to retain. Town Policy CD-14.3 is expressly
written to consider visibility from all elevations . From part of Alpine and all of Highland
(in other words, from all perspectives of the Property from the public and adjoining
properties), the structure would effectively destroy the natural setting. This is neither
proper nor necessary. Less profit motive and more sensitivity could easily result in a
design with materially less adverse impact on the site.
B. Applicant's Revised Plans Do Not Accommod ate t h e Re quired Creek
Setback.
As noted by Commissioner Hudes, the evidence presented at the June 8 hearing that the
creek is ephemeral rather than intennittent is not credible, and a 20-25 foot setback from
the creek is required. Based on the Commission's statements of concern regarding the
creek and the setback, it is also apparent that the Commission rejected Applicant's
argument that the 20-25 setback rule is intended only to ensure slope stability but is also
intended tor the protection and preservation of the creek and surrounding habitat. (The
Commission will recall that, under Applicant's expert's reading of applicable law,
nothing would preclude a structure right next to a creek as long as there was sufficient
slope stability.) Additionally, Applicant and his Architect were urged to try to
accomplish the creek setback through reduction of the structure rathe r than by resort to
the LRDA. As noted by Commissioner o ~oonnell, reducing the size of the house would
make it easier tor Applicant to meet the intermittent-creek setback.
The Commissioners did not specify which setback was required, whether a 20-foot
setback or a 25-foot setback. However, in line with Commissioner Hudes 's comments, it
appears that the testimony of Appellants' experts rather than the testimony of Applicant's
expert was deemed credible, and Appellants' experts' testimony clearly stated that the
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25-foot setback is required for this prope rty.4 As testified by Richard Grassetti of
Grassetti Environmental Consultants ("GECO"), for lots over 10 ,0 00 square feet , such as
this one, the required setback is 25, not 20, feet. (See hearing video transcript starting at
approximately 1:41:55; see also GECO June 1, 2016 Report p. 1 ("the appropriate creek
setback on the project site is 25 feet"].)
Applicant's revised plans still do not comp ly with the required creek setback, for at least
two distinct reasons. First, they provide for only a 20 -foot setback, when , as discussed
above, the size of the Property mandates a 25-foot setback.
Second, Applicant's setback, even as to 20 feet, is illusory. The Architect did not
consider either the health or preservation of the creek or the protection of water quality in
her creek setback re-design, and her plans show it. As she adv ised (at a July 16 meeting),
her re-design was based on s lope stabi li ty. In other words, she continues to maintain that
the sole purpose of a creek setback is to maintain slope stability. Based on that approach,
she has contrived a novel and completely illegitimate setback re-design which is contrary
not on ly to the purposes of the creek setback but also to any normal or standard
understanding of the notion of a setback.
Specifically, the Architect moved only the footprint of the structure 20 feet away from
the creek. She then recaptured the otherwise lost square footage by cantilevering the
structure back into the setback area. Even if the cantilevering were from the highest floor
(what she calls the second but which visuall y appears to be the third), it would intrude in
th e setback, but, in fact, it is extremely low -l ying (according to the Architect, only
approximately 4 feet off the ground). There is nothing magical about 4 feet; under the
Architect's approach, the cantilevering could be one foot , or even one inch, off the
ground. As long as it does not touch the g round (or affect slope stability), it would meet
the Architect's view ofthe setback requirement.
The same absurdity follow s from the Architect 's approach to how far into the setback the
cantilevering can extend. Here, the canti levering reportedl y extends 3 to 4 feet into the
setback, alone improperly intruding into the required setback, but again, there is nothing
magical about the distance selected by the Architect. The reasonable corollary of her
approach is that the cantilevering can go as close as it wants to the creek, as long as,
aga in , it do es not affect s lope stability or touch the ground.
I am hardly an expert, but it would be very hard to deny that a creek, creek-bed, and
surro unds would be affected by the installation of a structure within the setback not only
on the ground but also minimally raised above the ground. In both in stances, there is
intrusion into the setback and interference with and impact on sunlight, plant life, and
4 1t sho uld not be for gotte n th at the rep orts in favor of Appellants ' position also include a May 26 , 20 16 report by
Live Oak Associates th at was part of the Town 's file and erroneously not revi ewed by th e Design Review
Co mmittee in con nect ion with their co nsi derati on and ap pro va l of Ap pli cant's application .
7
habitat, as well as myriad of other things that may be considered by an environmental
expert (and that were surely considered when the creek setback rules were made).
Nothing in the creek setback ru les provides for this approach . To the contrary, the
approach is inconsistent with the language and purpose of the rules as well as with any
reasonable definition of setback.
The 3-4 foot intrusions (which are actually, based on the proper 25-foot setback, 8-9 foot
intrusions) result in only a 16 to 17 foot setback. Both because of the violation of the
setback in this case and because of the dangerous precedential impact of accepting a
setback rationale that would literally obliterate the setback , the Architect's approach
should be rejected. Applicant and the Architect's solution to the setback issue is a
contrivance devised only to maintain Applicant's desired , and inappropriate, house size;
it is not protective of the creek or in compliance with the nature and purpose of the
setback requirement; and it should not be accepted by the Commission.
C. Under Applicant's Revised Plans, th e Encroa chment Past t he LRDA is
Worse and Even More Improper Than Before ..
While the Commission did not set an absolute LRDA requirement on this project, there is
no question that, based on the comments and opinion of the Commissioners, Applicant's
first and foremost task in seeking compliance with the LRDA Guidelines (while also
complying with the creek setback requirement) was to substantially reduce the size of his
house. Commissioner Hudes stated that he had not understood Staff to have said that the
LRDA needed to be exceeded on this project. Rather, he understood that the LRDA was
exceeded only to retain the size of the house. He further advised Applicant to take a
serious look at the LRDA Guidelines and use them as a way to plan a project that is more
approvable.
As discussed above, Applicant continues to insist on a house that is too large for the site,
and, therefore, the primary method by which he has (still inadequately) increased the
creek setback has been to make even deeper and more drastic encroachments outside the
LRDA . Initially, Applicant claimed that, under his revised plans, his LRDA
encroachment was only 1150 square feet, but, later, estimated it as mo re like 1170 square
feet, but, in any event, there is a 40-45 percent encroachment outside the LRDA, a nd,
even more notable than the percentage, the structure would now literally hug the side of
the road resulting in new and/or exacerbated problems.
Under the revised plans, the structure would be rotated and relocated to cut deeply in to
the steep roadside slope, taking the place of the retaining wall and exterior walkway set
forth in the previous plans . In other words, where there was to be an intervening space
between the house and the road made up o f the walkway, retaining wall, and a narrow
band of leftover sloped planting area near the road, now there would be no open space
between the house and the narrow planting area , the house would seemingly rise stra ight
8
up from a ditch, the structure would be only feet from the roadway, and the narrow
sloping planting area could not even possibly allow tor any kind of remotely natural -
seeming screening from the road.
One of the goals of the rules governing this project and compelling Appellants in this
Appeal, and, I believe, the Commission, is the desire to respect the site and p reserve the
site's natural beauty, p resumably not just from within the site but from its surrounds. It is
very hard to imagine that that goal could be met by Applicant's redesign. While
"hugging" is normally a good thing (the Architect refers to the structure as "snuggled
in"), houses are not supposed t o hug the road. No amount of Western Redbuds or Toyons
or Wild Lilacs will disguise th e proximity of the house to the road or the enormous mass
of the structure. This is a s ite to be respected, not conquered. The solution posed by
Applicant is driven solely by desire for size and should be rejected.
D. Applicant's Revised Plans Fail to Sufficiently Reduce the Am ount of
Retaining Wall, Result in Other Vio lations of th e Hillside Development
Guidelines, and are Associated with Further Disrega rd by Applicant for
Preservation of the Property and the Creek.
App licant asserts t hat he has reduced the overall le ngth of retaining wall from 653 feet to
210 feet. According to the Architect, he did so in two ways, first, by effectively pushing
the house up to the slope at the road and having it act as a retaining wall, and, second, by
re-planning the driveway and fire tum-around area.
The result of the changes cannot be judged merely by the relative size of the reduction.
The original 653 feet was an astonishing amount of retaining wall; the 210 feet of
retaining wall is still significant given that, under the Hillside Development Guidelines,
•·elimination of retaining walls is a priority ." (HDS&G p. 19, emphasis added.)
Moreover, the methods for reduction a re troubling. With respect to the s ubstitution of the
house foundation for retaining wall, while this technically reduces retaining wall per se, it
in tum defeats the twin goal (and mandate) of the Hillside Development Guidelines to
keep grading at a minimum . (See HDS&G p. 58 ("Grading shall be kept to a m in imum].)
The further shove of the house into the hillside through unnatural grading rather than
following the natural topography f urther violates yet another requirement. (See HDS&G
p. 36 [·'Buildings shall be designed to co n fo rm to the natural topography of the s ite"].)
The driveway and turn-around revisions are troubling for yet another reason. In order to
create his revised plans, Applicant denuded the area designated by his Architect for those
structures. In doing so, he effectively created a cleared construction site without a
constructi on permit and in the face of neighborhood controversy regarding the placement
of the driveway and t urn-around.
9
As noted abovet on June 25t we were told that Applicant and his Architect had just met
that day to discuss revisions to th e planst and one of the revisions was reduction of
retai ning walls. The very next day, Saturday, June 26, Applicant (by his crew or other
laborers) clear-cut the proposed driveway/turnarou nd area and the creek next to it. His
workers removed the entire understory of the area and dumped so much mulch from the
clearing into the creek that the creek bed was not even visible.
Applicant failed to notify us that he would be clearing this area, and, as he later
acknowledged, his failure was deliberate. (See Applicant's June 29, 2016 email to Marni
Moseley stating that he had considered notifYing the neighbors but decided not to.)
More importantly, Applicant also failed to notify the Regional Water Quality Control
Board, as pointed out by Appellant Ms. Dede Smullen after she learned of the event from
her niece. Under California Fish and Game Code section 1602, such notification, as well
as application for a permit is required for any such activity. (See Section 1602 [requiring
notification and application as to any act ivity that ~'may ... deposit debris, waste or other
materials that could pass into any river, stream, or lake," including both episodic as well
as perennial streams].)
After discovery and complaint regarding h is activity, Applicant cl a imed that he cleared
the property to eliminate potential fire hazards pursuant to Town and County
requirements. (See Applicant's June 29, 2016 email to Ms. Moseley.) The claim is
manufactured. First, as noted above, the work occurred immediately after Applicant's
meeting with his Architect an d their decision to reduce retaining walls, and, as the
Architect has since commented, the revisions required considerable review of the
topography of the driveway/tum-around region. Second, were Applicant truly concerned
about complying with Town requirements , he would have cleared the property by June I ,
20 16, which was the Town deadline for taking down brush for tire protection, after which
noncomplying property owners, including Applicant, were subject to a fine. Third, were
Applicant truly concerned about fire protection (rather than about his plans and his
project), he would have cleared his entire property. At a minimum, he would have started
with areas far more susceptible to the start and spread of fire -such as the hillside right
next to the proposed driveway/turn-around area. That hillside extends up toward Alpine
and the houses on Alpine; because of its slope, it would act as a fire tunnel; and it is-and
has long been-in dire need of clearing for fire protection , including clearing of long-
dead fallen trees. Rather than focusing on that, Applicant literally stopped his clearing at
the base of the hillside, going only so far as necessary to clear his planned (but not yet
approved) construction site.
Applicant has now finally acknowledged h is obligations under the Fish and Game Code
and reportedly (and belatedly) applied for a permit for the work. Regardless, the
activities commissioned by Applicant for denuding the Property, dumping into the creek,
and creating a construction site before issuance of a construction permit, must aJI be
10
considered in evaluating the good faith of his reduction in retain ing walls, as well as his
disregard for the preservation of the Property and the creek.
E. Applicant Still Refuses to Comply With CEQA.
At the June 8 hearing, both for the sake of Applicant and for t he sake of the Town, the
Commission gave Applicant the opportunity to reconsider his position on CEQA. He has
elected not to take the opportunity. He continues to assert that he can rely on the 2010
CEQA Report, with the only requirement being to submit an internal addendum.
Applicant has claimed that the addendum would be enough because the proposed design
is not materially different from the design at issue in 2010. Indeed, by Ms. McCormick
who is advising him on this question, he opines that the current project would have less
material impact on the site.
The environmental reports and testimony by Appellants' experts at the hearing cogently
explain the need for a new and/or updated CEQA process in either case requiring
recirculation of the Initial Study to the public and governing agencies. Additionally, the
following points are critical:
I. Ms. McCormick's opinion regarding the environmental impact from the
2010 design and t he current design does not substitute for professional ,
agency, and public review and satisfaction ofCEQA requirements,
particularly since it is indisputable that the current design is different from
the 20 I 0 design, including in size and site placement.
2. It is likewise indisputable that the site itself has changed. Applicant has
now verified that, in fact, the creek was moved since 2010. Additionally ,
as set forth in Exh ibit D (as discussed below, the analysis of Applicant's
tree protection plan), at least eighteen trees have been removed, and
numerous other tree-related changes have occurred since 2010 including
tree growth, tree demise, and other changes. The years since 2010 have
included years of drought and El Nino conditions. All these changes (and
more detectable only by a professional environmental consultant) are
material and li kely have resul ted in additional material changes to the site
and its habitat.
3 . There is the concept of a "stale" CEQA. Applicant's refusal to address the
problems associated with the clearly old, and arguably very outdated,
CEQA report is a disservice both to himself and the Town.
F. Applicant's Tree Removal, Retention, and Protection Plan is Deeply
Flawed.
Exhibit D attached hereto sets forth separately my comments regarding Applicant's
revised plan for tree removal, retention, and protection. As set forth therein, the plan is
ll
outdated, incomplete, misleading, fundamentally flawed , and against both the Town Code
an d proper tree protection standards.
G. Applicant Did Not Work With The Neighbors; He Presented Hi s Revised
Plans on a Take It or Leave It Ba sis.
As set tbrth in the official minutes of the June 8 hearing, the motion made, seconded, an d
passed by the Commission was "to continue the public hearing for 19 Highland Avenue
to the hearing of July 27,2016 in order for the applicant to work with neighbors and
consider design modifications."
Applicant did not work with the neighbors.
Applicant has now admitted that Appellants were actively involved in review and
discussion of his plans prior to the June 8 hearing, explaining that his Architect's claims
to the contrary at the June 8 hearing were the result of a "misunderstanding."
Appellants have been equally involved since June 8. As the Commission will recall, the
continued hearing was set for July 27, the then earliest available hearing date, at the
Architect's request. This meant that there would be only 42 days before the next hearing
and only 37 days before the date for submission of materials to the package to the
Commission for the hearing. Particularly given the time constraints (as well as
foreseeable concerns regarding busy summer schedules), Appellants were very active in
attempting communicate with Applicant regarding his revised plans. As noted above,
prompted by Applicant and his Architect's lack of action on the plans, I sent my June 23
email to move the process along, as well as numerous additional emails toward the same
end. The other Appellants also sent communications and otherwise engaged with
Applicant in an effort to learn about the planned revisions, set meetings, provide input,
and try to seek a resolution with Applicant. As discussed below, when we were finally
provided with the plans, we attended two meetings, on July 10 and July 16, to discuss
them.
Throughout the process , Applicant exhibited no interest in considering our input. As
noted above, he and his architect did not even start working on the plans until weeks,
after the June 8 hearing, specifically June 25 when he reportedly first met with his
Architect to discuss revisions. Despite our requests , he refused to provide sufficient
infonnation regarding the planned revisions to allow comment (saying only such things
as the size and retaining walls would be reduced without any indication of how and by
how much).
Applicant failed to provide the plans even by the date that he 11nally promised , July 7.
He finally provided the plans at a meeting on July 10, a meeting at which he had
promised that his Architect would be present but that she did not attend. Applicant did
12
not make his Architect available as promised until a meeting on July 16 , only days before
the submission date for the then-set July 27 hearing.
Starting the day after he provided the plans to us on July I 0 and for the first time,
Applicant threatened us with copyright infringement if we shared the plans with anyone,
even, therefore, with our experts. Applicant allowed only that Ms. Smullen could
provide them to her in-laws (whom, at least her mother-in-law as named Appellant, Ms.
Smullen is representing in this Appeal). His Architect repeated these threats at the July
16 meeting. She expressly threatened Appellant Dr. Anthony Badame with copyright
infringement liability if he used the plans to create overlays for presentation to this
Commission. She made this threat even though the plans had already been submitted to
the Town for review and public posting and even though Staff later advised Dr. Badame
(after consulting with Town counsel but without thereby providing legal advice) of no
known prohibition against Dr. Badame's use of the plans for overlay and presentation to
the Committee.5
Most discouraging, however, is the fact that Applicant presented the plans on a take it or
leave it bas is. He sought no input before the revisions, and he rejected all input after the
revisions, including input on the matters addressed in this letter. The sole apparen t aim
of the meetings was to go th rough the motions of appearing to work with the neighbors.
The sole substance of the meetings from Applicant and his Architect's side was an
aggressive defense of the plans.
V. Concl usion
I believe the site is a beaut iful one, as do the other Appellants and all of our neighbors,
and I also believe that a beautiful home can be built on the si te. It is close to the high
school and town , and I imagine a family with school-age children enjoying that home and
the natural setting for many years to come, just as my family and children have enjoyed
our home.
While we have had our differences with the Applicant-a developer whose goal is to
maximize h is profit from his investment-I recognize that he is entitled to invest and
build. We have also had our differences with the Applicant's architect and candidly did
not take well to her statement to the Commission that the site is a ''pit" which is a
challenge rather than a blessing, as we see it.
s Neither Applicant nor the Architect explained why they were suddenly raising copyright concerns, but the
following is notable . No such claim was made at the June 8 hearing or thereafter until July 11 . No such claim was
made when the plans were provided to us at the July 10 meeting . The claim was not made until after, at the July 10
meeting, I happened to ask whether Ap plicant would make the site available for an architect to revi ew. There docs
not appear to be any basis for Applicant 's or the Architect 's sudden concern with copyright other than a desire to
preclude independent architec t review, preclude instructive overlays such as presented by Dr. Badame at the June 8
hearing, and deprive Appellants of the opportunity to provide information helpful to the Commission in deciding
this Appeal.
13
But I and the other Appellants have worked hard and sought to cooperate with the
Applicant and the Architect to get past these differences to assist them and the staff to
obtain approval for a home that is befitting that beautiful site. Unfortunately, Applicanfs
house is not that home.
For these reasons, I would ask that you uphold the Appeal and deny the Application.
Thank you .
Attachments
14
From: Anthony Badame [mailto:abderm@qmail.com]
Sent: Tuesday, July 26, 2016 9:19PM
To: Sally Zarnowitz
Subject: Re: 19 Highland
Hi Sally,
Thank you for requesting that additional infonnation be provided for sheet A4.1. Please also
request that the existing grade be included given that this grade is used in determining building
height limitations. Further, existing grade changed from the original posted plans to the plans
approved at DRC. I have attached sheet A4 .2 of each of these set of plans for your perusal. It is
important that existing grade be verified for accuracy given the discrepancy.
Sincerely,
Anthony
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