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 .