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Item 02 - 19 Highland Ave - Addendum & Exhibit 43TOWN OF LOS GATOS ITEM NO: 2 ADDENDUM PLANNING COMMISSION STAFF REPORT Meeting Date: September 28, 2016 PREPARED BY: Sally Zamowitz, Planning Manager sza rnowi tz@ losgatosca.gov APPLICATION 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 OWNER/ CONTACT PE RSON: Ed Pearson APPELLANTS: Badame, Roberts, and Smullen Families APPLICATION SUMMARY: Consider an appeal of a deci sio n of the Development Rev ie w Committee approving an Architecture and Site application to construct a new single-fami ly residence and remove l arge protected trees on property zoned HR-2 Yi. APN 529-37-033 EXHIBITS: Previously received with May 11, 2016 Desk Item Report: I. Emails from appellants, received May 11, 2016 Previously received with June 8, 20 16 Staff Repo rt: 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, 20 l 0 Planning Commission m eeting minutes ( 15 pages) 8. Consulting Architect's Report, dated February 24, 2016 9. 2010 Arborist Report (26 pages), dated February 15, 20 l 0 10. Proj ect Data Sheet 11 . Letter from Anthony Badame, recei ved March 24, 2016 12 . March 29, 2016 Develo pment 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 and Attachments (1-14), received May 27 ,20 16 16. Public comment received through 11:00 a.m., Thursday, June 2 , 2016 17. Additional letters from applicant (11 pages), received June 2 , 2016 18. Development plans ( 16 pages), received March 22, 2016 Planning Commission Staff Report -Page 2 19 Highland A venue/S-15-077 September 28, 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 , 2016 24. Communication from applicant ( 5 pages), received June 8, 2016 Previously received with September 28, 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 (I 0 pages) 30 . Addendum to 2010 adopted Mitigated Negative Declaration (101 pages), dated August 2016 31. Communication from appellants (23 pages) 32. Communications from applicant (110 pages) 33 . Revised Findings Previously received with August 24, 2016 Addendum Report: 34. Revised vers ion of Exhibit 31 , Communications from appellants (53 pages) Previously received with August 24, 2016 Desk Item: 35. Public comment, received August 24, 2016 36. Communication from appellants, received August 23 , 2016 and August 24, 2016 Previously received with September 14, 2016 Staff Report: 37 . Communications received from applicants (three pages) 38. Revised vers ion of Exhibit 32 (120 pages) 39. Public comment received from 11:01 a.m., August 24, 2016 to 11 :00 a.m., September 8, 2016 Planning Commission Staff Report -Page 3 19 Highland A venue/S-1 5-077 September 28, 2016 REMARKS: Previously received with September 28, 2016 Staff Report: 40. Revised version of the Augus t 24, 2016 l etter submitted b y appellants in Exhibit 36 (five pages) 4 1. Public comments received from 11 :0 I a.m., September 8, 2016 to 11 :00 a.m., September 22, 2016 42. Communication from appell ants, received September 22, 2016 (55 pages) Received with this Addendum Report: 43. Communi cation from the appellants, received from 11 :01 a.m., September 22, 2016 to 11 :00 a.m., September 27, 2016 (8 pages) Staff is recommending a continuance of the matter to the October 26, 2016 Planning Comm ission meeting in order to review the September 19 , 2016 Supr eme Court decision in Friends of the College of San Mateo c ited in an appellant 's letter of September 22, 2016 (Exhibit 42). Exhibit 4 3 contains communication from the appellants recei ved from 11 :01 a.m., September 22, 2016 to 11:00 a.m., September 27, 20 16, including: a res ponse to a biological evalu ation peer re view conducted by the Town's consultant; and a respon se to notification that a continuance would be requ ested. ~~;:.. Prepared by: Sally Zamowitz, AIA Planning Manager J P:SZ:cg Approved by: Joel Paulson, AICP Community Development Director cc: Ed Pearson, 239 Thurston Street, Lo s Gatos, CA 95030 Lisa Roberts , 78 A lpine Avenue, Los Gatos, CA 95030 Dede Smull en , 25 Highland A venue, Los Gatos, CA 95030 Anthony Badame, I Highland A venue, Los Gatos, CA 95030 N :\D EV\PC REPORTS\20 I 6\High land-19-ap peal-9-28-16-ADD.doc Sally Zarnowitz From: Sent: To: Subject: Attachments: Dorothea Smullen <dorothea .smullen@gmail.com > Thursday, September 22, 2016 7:29 PM Sally Zarnowitz Memo for inclusion in PC Packet 19HighlandAve_Bat_Issue_Response.pdf; A TTOOOOl.htm This was stuck in my outbox for some reason. It should have gone out to you this morning EXHIBIT 4 3 1 PACIFIC BIOLOGY ..J TO: 635 Carmel Avenue, Albany, CA 94706 Telephone/fax: (510) 527-1008 FROM: Richard Grassetti, Grassetti Environmental Consulting Josh Phillips, Principal Biologist DATE: SUBJECT: September 22, 2016 19 Highland Avenue -Response to Live Oak Associates' Biological Evaluation Peer Review The Biological Resources Review conducted by Pacific Biology for the 19 Highland ~venue Project raised the issue that potential impacts to roosting _ bats are not addressed in the 2010 CEQA document being used for the project. The results of the Biological Resources Review were presented in a memo dated June 2, 2016, which included the following comment regarding the potential of bats to roost on the project site: "Finally, the proposed project includes the removal of n!_lmerous 1!:ees 1 ~ncluding one particularly large oak tree (of compromised health) with numerous cavities. This tree could be used as a roost by bats, including special-status bats species such as pallid bat (Antrozous pal/idus); potential impacts to roosting bats are not addressed in the 2010 CEQA document being used for the project." Live Oak Associates responded to this comnient in their Biological Evaluation Peer Review (dated July 21 , 2016). Their response included an erroneous as_sertion that pallid bat could not roost in the tree in question. Live Oak Associates asserted that pallid bat would not roost in the tree because "pallid bat typically uses buildings, caves, and rock crevices" for roosting. However, pallid bats are known to roost in trees, including oak trees. Radio-tracking efforts in the west, including California, suggest that the pallid bat is far more dependent on tree roosts than was previously realized. This species has been located in tree cavities in oak, ponderosa pine, coast redwood, and giant Sequoia (Rainey et al. 1992, Cross and Clayton 1995, Pierson and Heady 1996, as cited in Pierson and Rainey 1998). The Live Oak Associates memo also states that "there are less than a half dozen places where limbs have fallen that have created small, relatively shallow hollows, ranging in diameter from about 6 to 8 inches. There are also a few areas of exfoliating bark as a result of th e bark beetle infestation. These features do not provide potential matern ity or roosting habitat for special status bats such as th e Townsend's big-ea red bat or the pallid bat as these latter species do not use these types of features". A s discussed above, pallid bats do roost in trees , and the species doe s use hollows and cavities in trees. The Live Oak Associates memo states that the oak tree was evaluated with binoculars and that the hollows are "relatively shallow". If the hollows are shallow, then they would not provide suitable maternity roosting habitat. However, given the size of the tree (see photo below), it is not clear how the tree was thoroughly inspected and the depth of all of the hollows were evaluated with just binoculars. When trees are evaluated from the ground using binoculars, a bright focused light is generally needed to verify the depth of cavities. The Live Oak Associates memo does not mention using a bright focused light or other equipment (e.g., a ladder) to conclusively determine the depth of all the hollows in the tree. Photo 1: Photo of Oak Tree in Question r- ( Further, the Live Oak Associates memo goes on to conclude that "the small hollows and areas of peeling bark could be used as day roosts by certain common bat species, although these features wouldn't provide maternity habitat for any of these species". As established above, pallid bats do roost in trees, including oaks. Given this, and that Live Oak Associates concludes that "the small hollows .... could be used as days roosts by certain common bat species'', it is unclear why pallid bat also could not use the hollows as a day roost, or if the hollows are found to not all be shallow, it is also unclear why pallid bats or other bat species could not use the tree as a maternity roost. Finally, the Live Oak Associates memo acknowledges that a low number of roosting bats could be present in the tree and that tree "removal could impact a few individuals". Live Oak Associates includes an avoidance measure to address this potential impact. If only a low number of common bat species are present, then as implied by Live Oak Associates, the related impact may not be significant under CEQA. However, for the reasons discussed above, the information provided in the Live Oak Associates memo does not adequately support their conclusion that pallid bat (a special-status species) could not roost in the tree. If pallid bat uses the tree for day roosting (given that the species does use oak trees), or if pallid bat or another bat species use the tree as a maternity roost (if further evaluation finds that the hollows are deeper than described by Live Oak Associates), then impacts to roosting bats should be considered significant. and mitigation would be required. Further, if it is found that the hollows are deeper than described in the Live Oak Associates memo, and that the tree could therefore be used as a maternity roost, then the avoidance measure recommended by Live Oak Associates would need to be revised to also protect bats during the maternity roosting season (generally mid-April through August). It should also be noted that while the Live Oak Associates memo addresses Townsend's big- eared bat and presents reasons why the species is not expected to occur, the biological resources review conducted by Pacific Biology did not suggest that species could roost on the project site. Please feel free to contact me with any questions regarding this memo. Sincerely, 1)\ fk Josh Phillips REFERENCES Pierson, E. D., and W . E. Rainey. 1998. Pallid bat, Antrozous pallidus. In Terrestrial Mammal Species of Special Concern in California, Bolster, B. C., editor. Draft Bird and Mammal Conservation Program Report No. 98-14, California Department of Fish and Game. From: Lisa Roberts [mailto:lroberts@rehonroberts.com] 5ent: Tuesday, September 27, 2016 8:46 AM To: Sally Zarnowitz; Anthony Badame; Dede Smullen Cc: Joel Paulson; Robert Schultz Subject: RE : 19 Highland Continuance ' ' Sally : Thank you for advising that you will be requesting another continuance. Would you please advise who "we" is, the town or the applicant or both? Also, would you let me know the proposed date(s) for the new hearing so that the date(s) can be cleared with appellants and their experts? Already, I know that one expert is unavailable during the second half of October. Additionally, with respect to the request for the continuance, I would like you to consider the following: 1. I was able to prepare and submit a letter on the Friends case and related issues in time for the Thursday morning submission, and I do not understand why the applicant could not have done the same. Indeed, the applicant has more time than I took, still having the opportunity to r_espond by way of desk item on Wednesday as well as at the hearing itself. This is not a situation of ~urprise. The Friends case has been pending for considerable time; the decision has been long-awaited; and , most notably, it was known that the decision would be made by September 20 as required by Supreme Court rules . It came out a day before that deadline. Further, while it should not have been necessary, I specifically brought attention to the Friends case in my August 24, 2016 letter to the Planning Commission, referring the Commission (and thus the town and the applicant) to an article regarding it. 2. Other than the Friends case, there was nothing else "new" in my letter. My letter addressed vari ous environmental issues but all based on reports and information that had already been _maintained by or provided to the town and the applicant. As pointed out in my letter, the town and the applicant failed to address those issues when deciding to prepare ari addendum to the 2010 MND. The request for more time now to consider them underscores the accuracy of my point. 3. The CEQA issue is hardly the only ground for appeal; indeed, based on the appeal, the Commissioners raised seven different ·matters that Applicant needed to consider in revising his plans to avoid denial of his application, of which only one was CEQA. Those other grounds alone compel denial of the Application and upholding of the Appeal. 4. Please note that the appellants have never requested a continuance for more time. They requested rescheduling only when a hearing was set on a date on which they were simply unavailable . In contrast, this will be the second time that the town and the applicant hav~ requested a continuance for more time to respond to appellants (both times .of which related to the CEQA issue). 5. In every public notice, we are advised of the importance of community input, and at every step in this process, we have been diligent in timely and clearly providing that input both to the applicant and to the town. We have submitted our materials in time for review and consideration by the Commission, and we have attended the hearings (including the first hearing at which the Commission gave Applicant the opportunity to revise his plans rather than be denied his application for appeal to the Town Council, and the last hearing at which the hour grew so late that this matter needed to be continued). Our involvement and input has not been easy . Each of us has a professional career as well as personal and other obligations . We respect your request for a continuance, bl)t please note the time, effort, and diligence we have put into advising the town, the applicant, and the Commission of our concerns regarding this project and the numerous problems presented by the applicant's original plan and still not add ressed by the applicant's revised plans. Please forward this email for consideration by the Commission . Thank you .