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Item 03 - 19 highland Ave - Desk Item & Exhibits 46-47TOWN OF LOS GATOS ITEM NO: 3 DESK ITEM PLANNING COMMISSION STAFF REPORT Meeting Date: October 26, 2016 PREPARED BY: APPLICATION NO.: LOCATION : APPLICANT/ PROPERTY OWNER/ CONTACT PERSON: APPELLANTS: APPLICATION SUMMARY: EXHIBITS: Sally Zamowitz, Planning Manager szarn o wi tz@lo s gato s ca. gov Architecture and Site Application S-15-077 19 Highland A venue (north side of Highland A venue just east o f 15 Highland Avenue) Ed Pearson Badame, Roberts , Smullen, and Spalding Families Consider an appeal of a decision of the Development Re view Committee approving an Architecture and Site application to co nstruct a new single-family residence and remove large protected tre es on property zoned HR-2 ~. APN 529-37-033 Previously received with May 11 , 2016 Desk Item Report: 1. Emails 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 meeting minutes (15 pages) 8. Consulting Architect's Report, dated February 24 , 2016 9. 201 0 Arborist Report (26 pages), dated February 15, 201 0 1 0. 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 Apri18 , 2016 (four pages) 14. May 11 , 2016 Planning Commission meeting minutes 15. Applicant's response Jetter and Attachments (1-14), received May 27,2016 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), recei v ed March 22 ,2016 Planning Commission Staff Report -Page 2 19 Highland A venue/S-15-077 October 26, 2016 Previous ly received with June 8, 2016 Addendum Report : 19. Letter from appellant (58 pages), recei ved on June 2, 2016 Previously received with June 8, 2016 Desk Item Report: 20. Revised neighborhood outreach statement (one page), received June6,2016 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, 20 16 23. Presentation by appellants (15 pages), presented June 8, 2016 24. Communication from applicant ( 5 pages), received June 8, 20 16 Previous ly received with August 24, 2016 Staff Report : 25. Pre sentation by applicant (37 pages), presented June 8, 20 16 26. Revised Recommended Conditions ( 10 pages) 27. Revised Development plans (15 pages), received July 11 ,20 16 28. Revised Project Data Sheet 29. Cons ultant Reports (lO pages) 30. Addendum to 2010 adopted Mitigated Negati ve Decl aration (101 pa ges), dated August 2016 3 1. Communication from appellants (2 3 pages) 32. Communication from applicant (II 0 pages) 33. Revi sed Findings Previously received with August 24, 20 16 Addendum Report: 34. Re vi sed version of Exhibit 31, Communications from appe ll a nt s (53 pages) Previously received with August 24, 20 16 Desk ltem: 35. Public comment, received August 24,2016 36. Communication from a pp e llants , received August 23, 20 16 a nd August 24,2016 Previously received with September 14 , 2016 Staff Report: 37. Communications received from applicants (three pages) 38. Revi sed version of Exhibit 32 (1 20 pages ) 39. Public comment received from 11:01 a.m., August 24, 20 16 to 11 :00 a.m., September 8, 20 16 Planning Commission Staff Report -Page 3 19 Highland Avenue/S-15-077 October 26, 2016 REMARKS: Previously received with September 28, 2016 Staff Report: 40. Revi sed version ofthe August 24, 20161etter s ubmitted by appellants in Exhibit 36 (five pages) 41. Public comments received from 11:0 I a.m., September 8, 2016 to 11 :00 a.m., September 22, 20I6 42 . Communication from appellants, received September 22, 20I6 (55 pages) Previously received with September 28, 2016 Addendum Report: 43. Communication from the appellants, received from II :OI a.m., September 22 , 2016 to 11 :00 a.m., September 27 , 2016 (8 pages) Previously received with October 26, 2016 Staff Report: 44. Response to Communication from appellants, received September 22, 20I6 (8 pages) 45. Revised Addendum to 2010 adopted Mitigated Negative Declaration , dated October 2016 ( 1 11 pages) Recei ved with this Desk Item: 46. Communi cation from the ap plicant, received October 26 , 20 16 (nine pages) 47. Communication from the appellants (nine pages), including PowerPoint presentation ( 46 pages), received October 26, 20 16 Ex hibit 46 contains communication from the applicant, received Wednesday, October 26, 2016 pri o r to 11:00 a .m. Exhibit 4 7 contains co mmunication from the appellants, including a PowerPoint prese ntation, received Wednesday, October 26, 2016 pri o r to II :00 a .m. Prepared by: Sally Zamowitz , AlA Pl ann ing Manager JP:SZ :cg N :\D EV\PC REPORTS \20 16 \Highland -19-appeai-10-26-16-DESK .doc pproved by: Joel Paulson, AICP Co mmunity Development Director Sally Zarnowitz From: s...t: To: SUbject: Hi Sally, Teresa Spalding <teresaspalding@hotmail.com > Thursday, September 22, 2016 3:22 AM Sally Zamowitz 19 highland ave. -s-1s-on I'm writing you regarding 19 Highland Ave. Architecture and site application S-1 S-077 Please remove me from the appellant case . I have reviewed the changes noted at the last meeting and I am removing myself from the appellant case. Thanks so much Sally, 1 T e r e s a s p a 1 d 1 n g I s H i g h l a n d A v e 19 Highland Ave -Architecture and site application # S-15-077 Bill Edwards Wed 8/24/2016 10:49 AM To:SZarnowitz@losgatosca.gov <SZarnowitz@losgatosca.gov>; ccKimberly Edwards <lgk:edwards@gmaiJ.com>; Dear Los Gatos Planning Department, My name is William "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 Hi1hland 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 Alpi ne (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_~1pl~~-~ve. Los Gatos, CA 95030 409:929:3005--···· September 10, 2016 Ms. Sally Zamowitz, Planning Planner Planning Department, Town of Los Gatos 110 East Main Street Los Gatos, CA 95030 Re: Letter of Support, 19 Highland Avenue; Architecture and Site Application S-15-077 Ms Samowitz: We write this letter as long time residents of Los Gatos and more specifically as residents of Alpine Ave for several years. In addition, we now own 140 Foster Road and are in the process of building a home on this site. We are one parcel away from 19 Highland. Having worked with the town of Los Gatos over the last year to design a home in keeping with the goals and values of the General Plan, we feel we are now well versed in the issues involved with building a home that falls within the hillside zoning. We have reviewed the initial submission to the Planning Department for 19 Highland Avenue as well as the substantially revised resubmission of this package. We feel the applicant has worked diligently to meet the requirements set forth by the Planning Commission at the June 8, 2016 meeting. Given the significant constraints of the site, the owner and architect have done a wonderful job designing a home that fits and blends into the surroundings. It is now a very modest and site sensitive structure with colors, materiRI~ and plantings in keeping with the neighborhood. It is our firm belief that once an owner has complied with the guidelines set forth in the General Plan of the Town, Planning approval should not be unreasonably withheld. The cost to redesign an already approved plan can become exorbitant. If the views of the Town's residents have changed in respect to color, style, size, height, materials, setbacks or any one of the myriad of conditions required to build in Los Gatos, then the Town should move forward to modify the Planning Department guidelines accordingly. The particular parcel at 19 Highland has a long history and it was well known that it would eventually be a home site. Neighbors who wish to retain a "park like" setting in their backyard had ample opportunity to buy this or any parcel on which they do not wish a home to be built. No one stepped up to this opportunity over a four year period. The current owner envisioned a home, complied with the Planning Department Guidelines, asked for a reasonable exemption, endured spurious neighborhood commentary and now it is time for the Planning Commission to approve this project. Respectfully, Ronald Weiner and Deborah Stanley September 22, 2016 Sally Zamowitz, Planning Manager Town Of Los Gatos Re: 19 Highland Architecture and Site AppUcation: S-15-077 Ms. Zamowitz, Hi . My name is Tom Ward my wife and I live at 107 Foster road in Los Gatos. I have worked in the town for 50 years and my family has been here for many generations, starting in 1857. My property is one parcel over from Mr. Pearson 's property. I have seen projects come and go for this parcel and I am in strong support of this application. Mr. Pearson has listened to the experts , listened to the neighbors, and listened to the Planning Commission. The town staff and town attorney have reviewed the project and recommended approval. The town hired unbiased consultants to peer review all of the reports and have recommended approval. Several neighbors have written letters j n support of the project and one of the appellants has dropped her opposition to the project. The remaining appellants are completely unreasonable and uncompromising. This is a very well designed and beautiful home that is correctly sized for this wooded site . I know it's a better project and you know it's a better project. Ifs time to stop the nonsense and approve this application . Sincerely, ,;JA_ ~ t'o.1(9 { T~~Ward 107 Foster Rd. Los Gatos, Ca. September 20, 2016 Ms Sally Samowitz R. Henry Richards, M.D. Jean R. Richards 118 Alpine Avenue Los Gatos , CA 95030 Town of Los Gatos Planning Department 110 East Main Street Los Gatos, CA 95030 RE: Architecture and Site Application s ,15,077, 19 Highland Avenue Dear Ms. Samowitz, I live at 118 Alpine Avenue and I have been a resident of Los Gatos for over 16 years. One of the principal reasons we chose to purchase this property is because it is situated on a slope overlooking a meadow above a "Winter stream". My property actually crosses the creek and nearly reaches Highland A venue on the opposite side. We have obviously been aware of the development of the property at 19 Highland Avenue which is immediately adjacent to my property line. I have obseived the erection of the "story poles" on the property with keen interest and have considered the impact a new house in that area might have on the natural beauty and privacy that I currently enjoy. I have been able to meet with the owner of the property who was most forthcoming in helping me review the currently approved plans for development including site location, building footprint, and building materials. In my opinion, Mr. Ed Pearson has made a special effort to build a home which blends and compliments the natural environment in which it will be situated. I do not believe that construction of this home as currently approved will have any negative impact whatsoever on my home or property. Therefore I have no objection and would support the Application to develop the property at 19 Highland Avenue as proposed. Sincerely, R.H. Richards, M.D. (signed electronically) R. Henry Richards, M .D. Site application S-15-077 Paul Pickering Sun 9/18/2016 8:54 PM In box To:szarnowitz@losgatosca.gov <sza rnowitz@losgatosca.gov >; Cc::epearsonz@outlook.com <epearsonz@outlook.com>; Sonnie Pickering <sonniepickerlng@gmail.com>; Ms Zarnowitz, I would like provide a letter of support for the referenced site application made by Ed Pearson . We live at 76 Alpine Ave and our property connects to the southern end of 19 Hillside Ave. We have had a chance to review the new plans and support the proposal to build designed house based on the materials, architecture and proposed setbacks. Respectfully, Paul and Allison Pickering 76 Alpine Ave, Los Gatos This Page Intentionally Left Blank October 26, 2016 Planning Commission Town of Los Gatos 110 East Main Street Los Gatos, CA 95030 Re: Dear Commissioners: 19 Highland A venue, Los Gatos, CA 95030 RECEIVED OCT 2 6 2016 TOWN OF LOS GATOS PLANNING 01vrsrON This letter is submitted by the Appellants in the Appeal of the approval by the Design Review Committee of the Application of the Applicant Ed Pearson for the above-referenced Project. The purpose of this letter is to provide the Commissioner with an Executive Summary of Appellants' position. The Commission enumerated seven different material concerns about the Project at the June 8, 2016 hearing. Each one was independently sufficient to deny the Application and uphold the Appeal. The only thing that kept the Commission from going forward with a motion and vote to express its consensus was its graciousness and practicality in offering Applicant the option of revising his plans to address the Commission's concerns. The Commission was completely clear in articulating those concerns and in providing guidance to Applicant regarding the changes that would be required for approval of his project. The Commission's comments have since been repeated in the minutes of the hearing, subsequent Staff Reports, and in correspondence by Appellants to Applicant. Applicant has never indicated that he did not understand the Commission's comments. Nor at any time in the last four months since the June 8 hearing has he sought any clarification from the Commission. At the September 28 hearing on this matter, public comment was requested solely on Sta:ff s request for a continuance of the hearing to October 26, 2016. Trying to press Applicant's substantive case, Applicant's Architect argued that Applicant has spent over $50,000.00 since June 8. The Commission did not ask Applicant to spend over $50,000.00. It asked the Applicant to make the changes it outlined. Applicant has not done so. The same issues that compelled the Commission on June 8 still apply. Applicant's expenditure of money does not substitute for a proper project. Applicant did not comply with the Commission's instructions to make the structure "substantially smaller." The Commission gave Applicant clear instructions as to size. It told Applicant to make the structure substantially smaller. An 8.45-percent reduction is not substantial. It is only 3.45 percent more than what Commissioner Hanssen has stated would qualify as meaningless. (See Video of August 25 Commission Hearing on Alberto Way application at 2:56:25, emphasis added [agreeing with Commissioner O'Donnell that meaningful EXHIBIT 4 7 Planning Commission Town of Los Gatos October 26, 2016 Page2 targets for size reductions are important because "so many times when we give non-specific direction we come back and we get a 5, you know, percent reduction and it's not meaningfuI''].) All other comments by the Commission members at the June 8 hearing underscored the instruction to make the structure substantially smalier. These comments inciuded Commissioner Kane's call for a nice house that fits; Commissioner O'Donnell's statements that size was his biggest problem with the project, and that Applicant was trying to maximize size on a lot that calls out for non-maximization; Commissioner Hudes's statements regarding the importance of retaining the natural setting of the site and of building a structure fitting to a property that he described as one at the base of a hollow created by erosion and a stream; and Commissioner Hanssen' s concurrence with Commissioner Hudes' s comments. As discussed in detail in previous correspondence, it is inconceivable that Applicant truly believed that a single-digit-percentage reduction would quality as substantial---0r solve what at least one commissioner considered to be the biggest problem with the project and which the Commission in general identified as the main culprit behind many of the other numerous problems with the project. Rather, Applicant's revised plans are more likely based on Applicant' persistent belief, fueled by his Architect, that, regardless of the effect on Town rules, ordinances, and regulations, he has a right to maximize his square footage. As set forth in the August 10, 2016 Letter from Lisa Roberts (the "8/10 Letter") and not disputed by Applicant, Applicant's Architect continued to contend after the June 8 hearing that Applicant "actually has the righf' to build a 4700-square-foot home on the property. (8/10 Letter p. 5, emphasis added.) That 4700- square-foot home as designed by Applicant violates the law; Applicant does not have the right to build it. (See, e.g., General Plan CD-14.3 ["a minimum of two stories shall be visible from every elevation"]; JIDS&G p. 36 ["Three-story elevations are prohibited"]; note also the effect of the Hillside Development Standards on FAR limits as discussed by public comment at the June 8 hearing; see also below regarding Applicant's continued violations, because of his insistence on maximizing size, ofLRDA, setback, and other laws.) Applicant did not comply with the Commission's instructions to provide a 20-25 foot setback from the creek. As addressed in previous correspondence, the size of the Property demands a 25-foot setback, but still Applicant has not even allowed for a 20-foot setback. He has cantilevered over the setback at the house reducing the setback to 16 to 1 7 feet, and he has applied only a IO-foot setback to the driveway. As discussed in the attached Comments to October 2016 Addendum (the "Comments"), Staff has attempted to justify Applicant's refusal to comply with the 20-25 foot setback by asserting that the setback rules at the G&S for Land Use Near Stream at p. 3.8 are intended only for creek stability (in other words, that a structure can be built right next to a creek as long as the soil remains stable). However , Staff has not presented any legal authority for that assertion. Moreover, that assertion was already made and r ejected at Planning Commission Town of Los Gatos October 26, 2016 Page3 the June 8 hearing. Nor has Applicant presented any legal authority supporting his attempt to escape the creek setback rules by cantilevering over the setback area. While he initially attempted to rely on Section IHA of the G&S for Land Use Near Streams, he has not since disputed, as pointed out in the August 24, 2016 letter from Lisa Roberts (the "8/24 Letter"), that such guideline merely precludes overhangs beyond the top of the bank, and it does not provide for any affirmative right to overhanging up to that point. Under Applicant's theory, an applicant can avoid the creek setback by cantilevering at any height and at any distance into the setback area as long as the ground is not touched. Nor has Applicant provided legal authority for applying only a 10-foot setback from the driveway. As set forth in the 8/24 Letter and not denied by Applicant, Town rules provide that structures subject to setback rules include driveways. (See http://www.losgatosca.gov/DocumentCenterNiew/14607.) Applicant made no serious attempt to comply with the LRDA requirements. As noted by Commissioner Hudes at the June 8 hearing, Staff had not then stated that the LRDA needed to be exceeded for this project; rather, the indication from Staff was that the LRDA was exceeded only to accommodate the size of the house. Staff has still not stated that the LRDA needs to be exceeded for this project. Yet, not only do Applicant's revised plans continue to exceed the LRDA, they do so even more deeply and prominently than the original plans, with deep grading of the steep slope at roadside, elimination of the prior (even then minimal) open area between the road and the house, and the house now proposed to even more fully eclipse the natural beauty of the site and make the structure and not the site the commanding view from the road. Applicant did not comply with the Commission's instructions to comply with the Hillside Development Guidelines including their impact on FAR. Applicant's HDS&G violations noted above do not include the flaws in Staff's neighborhood FAR chart which render the chart, on which both Staff and Applicant rely in connection with this Application, undependable and irrelevant. As set forth in the 8/24 Letter (and not disputed by either Staff or Applicant), that chart includes houses that were built years, in many cases decades, ago under entirely different rules; it improperly includes cellar space in square footage; and, of the 17 homes listed on the chart, over half (9) are not even zoned the same as the subject property, zoned R-1 :20 and not HR-2Yz . As Commissioner Kane stated at the June 8 hearing, comparisons ofthis project with other developments done with different rules really do not help. Applicant did not respond appropriately to Commissioner Hanssen's concerns regarding the amount of retaining wall. Applicant failed to respond appropriately to Commissioner Hanssen's concern about the overuse ofretaining walls on the Project (in violation ofHDS&G p. 19 setting forth the Town's priority to eliminate the use of retaining wall). First, he has purported to address the overuse by violating yet other standards and guidelines while still not complying with the retaining wall rules. Still retaining 210 feet of visible retaining wall, Planning Commission Town of Los Gatos October 26, 2016 Page4 Applicant proposes to convert the house itself into a retaining wall by grading deeply and unnaturally into the roadside slope, and thereby violating not only HDS&G p. 58 requiring that grading be kept to a minimum but also HDS&G p. 36 requiring that buildings conform to the site's natural topography. Second, as set forth in the 8/24 Letter, Applicant has not denied any of the facts set forth in the 8/10 Letter the impropriety of his actions in deciding on changes to the retaining walls, including his denuding of the proposed tumarowid and driveway area and illegal dumping of mulch into the creek. Applicant failed to redesign the Project to fit into the natural surroundings. Applicant's revised proposed structure is even less befitting of the natural surroundings than his original one. His movement of the house to hulk close to the road, his ungainly (and not to mention non- compliant) cantilevering, and his persistence in maintaining the three-story visual of his house, all directed to maximize size to maximize profit, are at further expense to any semblance of a natural setting. Moreover, as addressed thoroughly in prior correspondence as well as in the attached Comments, Applicant's revised plans will put into severe p eril the health and continued existence of numerous trees making up what Applicant's Arborist calls a woodland; including, among others, the tree with the largest canopy on the property and a prominent bank o f trees at roadside. Applicant's non-compliance with CEQA has only become more evident. The sole reason that this matter was continued from September 28, 2016 to October 26, 2016 was to allow Staff time to review and consult with outside counsel regarding the September 19, 2016 decision of the California Supreme Court in Friends of th e College of San Mateo Garde ns v. San Mateo Commun ity C ollege District, Case no . S214061 ("Fr iends") and the September 22, 2016 letter from Lisa Roberts (the "9/22 Letter") regarding that decision. Yet, in its submission for this hearing, Staff does not even mention the Friends case, providing no legal analysis for the guidance of the Commission. Rather, it has elected to keep any such analysis within its own ranks, and, either based on any such analysis or not, to decide for itself what CEQA steps are proper. Either with Applicant's concurrence or not, Staff has prepared yet another CEQA Addendum, with associated costs of Staff time and presumably additional Applicant expense. Since Staff (despite presumably having gone forward with its consultation with outside counsel) has failed to contest the legal analysis in the 9/22 Letter, it must agree that the analysis is accurate, which it i s . As set forth in that letter, in Friends, the California Supreme Court held that, where the prior CEQA document is a negative declaration, the fair argument standard applies . Specifically, an initial study is re quired if there is enough evidence to support a fair argument that the project may have a significant impact. As set forth in the attached Comments to October 2016 Addendum, Staff (or Kimley Horn "acting as an 'extension of Town staff") Planning Commission Town of Los Gatos October 26, 2016 Page 5 refused to apply that standard; has instead applied a standard that, as stated in Friends, applies only where the prior document is an environmental impact report; has therefore dismissed evidence showing that the project may have significant environmental impact; has erroneously concluded that a further initial study is not required; and has presented to the Commission for approval a document that is fundamentaliy :flawed and improper. Approval of the Application would result in dangerous precedent. Approval of the Application would result in dangerous precedent on numerous individual scores including, among others, the following: (i) application of Applicant's creek setback argument which, by its rationale, would allow structural building right at Creekside as long as there is soil stability; (ii) application of Applicant's cantilevering argument which, by its rationale, would allow cantilevering at any height and for any depth of intrusion over creek setback areas and perhaps other types of setback areas as well; (iii) application of Applicant's comparable house size argument which, by its rationale and as done in this case, would allow size to be maximized, without regard to town ordinances, based on comparison of size to house built under different rules and even in different zoning areas; (iv) application of Applicant's tree "saving" approach which would allow an applicant to claim credit for saving trees by simply removing trees that will die as a result of the construction from the initial removal list; and (v) application of Applicant's tree "preservation" plan that would allow an applicant to use tree protection measures that are substandard and in violation of Town ordinance. Had Applicant listened to the Commission, he could now be well on his way to building a nice house on a still-beautiful site, as envisioned and required by Town rules. However, as unenviable as his current position may be, the concerns that the Commission expressed at the June 8 hearing have not become less important with the passage oftime. Applicant could have designed a lovely home which would honor its unique and treasured setting. He has chosen not to do so. The Application should be denied, and the Appeal should be upheld. COMMENTS TO OCTOBER 2016 ADD ENDUM Neither the October 20, 2016 letter from Kimley Hom (the "10/20 Letter") nor the October 2016 Addendum (the "Second Addendum") (collectively, the "CEQA Response") were made available to Appellants before the end of the day on Friday, October 21, 2016. Therefore, there may be numerous additional defects in the CEQA Response not outlined here. However, based on the following, it is clear that the Response is contrary to law and should be rejected. i. Staff has faiied to provide adequate guidance to the Commission regarding the impact and effect of the Friends case. It cannot be gainsaid that the recent decision of the California Supreme Court in Friends of the College of San Mateo Gardens v. San Mate o Community College District, Case no. 8214061 ("Friends") was momentous, if not landmark. While the case was still awaiting decision, Appellants called it to the Commission's attention in the August 24, 2016 letter from Lisa Roberts (the "8/24 Letter"). The case was decided on Monday, September 19, 2016, three day s before the submission deadline for the September 28, 2016 Staff Report. By a letter dated September 22, 2016 by Lisa Roberts (the "9/22 Letter"), Appellants advised the Commission of this decision and set forth a detailed analysis of the case and its effect on the Application and the Appeal. No other submissions were made regarding the case. Upon receipt of the 9/22 Letter, Staff requested a continuance of the September 28 hearing to review the letter and the case. At the hearing on the continuance, Staff indicated that it would be consulting with the attorney for the appellant in Friends, who, as Staff noted, had previously represented the Town in other matters. The hearing was continued to October 26, 2016. On October 21, 2016, Staff publicized its CEQA Response. No submission regarding either Friends or the 9/22 Letter was made by either Applicant or his CEQA counsel. The Staff's CEQA Response does not contain any legal analysis of Friends . It does not mention Friends. It does not refute, contest, or address the legal analysis of Friends in the 9/22 Letter. Therefore, the conclusion that must be drawn is that, after review of Friends, after consultation with outside counsel, and after review of the 9/22 Letter, Staff detennined that it has no basis on which to dispute Appellants' legal analysis. As set forth in that letter and below, that analysis, applied to the facts and evidence of this matter, requires an initial study. 2. Staff's Response refuses to apply the test required by Friends. As discussed in the 9/22 Letter, Friends makes a critical distinction between prior EIRs and prior NDs in applying the provisions of CEQA Section 21166 and CEQA Guidelines Section 15162 (the "Subsequent Review Provisions") to subsequently modified projects. Where the prior document is an EIR, the proper inquiry is whether the modified project will have significant environmental effects (for purposes of these Comments, the "EIR Test"). Where, the prior document is an ND, the proper inquiry is whether the project may have significant environmental effects. The prior CEQA document here is an ND; the Fair Argument Standard applies; and an initial study is required if there is enough evidence to support a fair argument that Applicant's project may have a significant environmental effect. Staff has improperly refused to apply the Fair Argument Standard as required by Friends , applying instead the inapplicable EIR Test. (See 10/20 Letter in passim including, e.g., p. 3 [asserting that there is no evidence that the project "would result" in significant environmental impacts] and pp. 2-5 [inquiring whether an impact "would" or is "expected" to result and dismissing impacts that "could" result]].) Staff is therefore presenting to this Commission for approval a document, the Second Addendum, that is based on a fundamental misstatement of the law that impugns all the conclusions in the document. The Commission should decline the invitation.1 3. Staff has dismissed substantial evidence that the project may result in significant environmental impacts requiring an initial study. As noted, the Fair Argument Standard requires only a potential of an adverse impact, and, additionally, that standard is met when there is enough evidence to support of fair argument of such impact ("substantial evidence") regardless of the existence of contrary evidence. Staff's faiiure to follow the Fair Argument Standard as required by Friends has led to concrete examples of its failure and refusal to identify potential adverse impacts from Applicant's project. A: One example is Staff's treatment of evidence relating to pallid bat roosting/maternity habitat. Staff has not argued that pallid bats are not a special species, or that a disturbance of its habitat would not be significant, or that Applicant's project would not affect such a habitat ifit w~re to exist on the site. It argues only that, based on its experts' reports, which it prefers over Appellants' experts' reports, pallid bats are not "expected" to use the site. However, as noted above, contrary evidence does not affect outcome under the Fair Evidence Standard. It is undisputed that Appellants' expert has presented substantial evidence, including its expert opinion, that the site, and particularly, tree #56, may be used for roosting and/or maternity habitat for special-species bats including the pallid bat. (See Pacific Biology Report dated June 2, 2016 p. 6 ["6/2 Report"]; Pacific Biology Report dated August 24, 2016 p. 3 ["8/24 Report"]; and Pacific Biology Report dated September 22, 2016 p. 1 ["9/22 Report"].) This is the end of the inquiry. The project may have a significant environmental impact, and an initial study is required.2 B: The second example may be even more striking; it is certainly wide-encompassing. Corollary to Staff's refusal to follow the Friends fair argument standard is Staff's excuse for having ignored 12 different documents in Staff file contrary to its position (the "Omitted Reports"). Staff disavows any obligation to 1 Staff's improper rejection of the Friends case is as deliberate as it is indefensible. As noted above, Staff does not address or even mention Friends, and that omission is very notable here. Staff not only refuses to mention Friends' Fair Argument Standard holding, it attempts a collateral attack on it, an attack that is as astonishing as it is miserably inadequate. Relying on CEQA Guideline 15064(f)(7), it asserts that the Fair Argument Standard does not apply under the Subsequent Review Provisions. (I0/20 Letter p. 3.) Staff's assertion is illegitimate and illogical. First, the California Supreme Court, not CEQA Guideline 15067(f)(7), is the highest authority on the interpretation of CEQA, and its findings in Friends are fmal and binding, including orr Staff. Second, even if Guideline 15067(f)(7) had the power Staff attributes to it, on its face, it provide no support for Staff's position. All it states is that, "[u]nder case law, the fair argument standard does not apply to determinations of significance pursuant to section 15162, 15163 , and 15164"].) At best, it accurately reflects case law in existence at the time that it was enacted. It does not even attempt to reflect, and could not reflect, case law decided after, and in the case of Friends long after, its enactment. 2 Even if Staffs contrary evidence could be considered to avoid the impact of the Fair Argument Standard, which it cannot, Staff has presented a distorted and incomplete statement of the arguments and counter-arguments. Staff's expert's report based its conclusion on the assertions that pallid bats do not roost in oak trees and that the tree's cavity depths are too shallow for roosting. Pacific Biology's 8/24 and 9122 Reports presented evidence refuting the assertion that pallid bats do not roost in oak trees. (See 8/24 Report p. 3 [including expert discussion and citation to the Roosting Ecology discussion in the Yolo County Conservation Plan].) Its 9/22 Report presented evidence that Staff had failed to conduct investigation even to speculate regarding the allegedly shallow depths of the cavities. (See 9/22 Report p. 2 [setting forth need to ladder up tree or use binoculars with bright focused light].) The need for proper investigation by Town Staff and its experts is particularly essential here where Applicant has officially refused to allow access to the site by Appellants' experts. Staff's expert has failed to respond, much less refute, the points made by Pacific Biology in its 8/24 and 9/22 Reports. 2 "address public comment letters that provide contrary opinion to the conclusions in the Addendum analysis." (10/20 Letter p. 3.) This is a remarkable disavowal. Under the fair argument standard, it is precisely the public agency's job not only to investigate potential environmental impacts in the first place but also to consider evidence presented to it showing such potential impacts. The very existence of such evidence raises the question whether an initial study is required, with the only further inquiry being whether the evidence is enough to support a fair argument, and a public agency cannot possibly conclude that the evidence is not substantial when it refuses even to consider it. Here, the Omitted Reports include not only legal and factual anaiyses by Appeilants but also reports by professional CEQA and biological experts including not only Appellants' experts' reports but also Wood Biological Consulting's 2008 report (a report that Staff elected to ignore in finding that the stream on the property is merely ephemeral). 4. Staff ignores and/or misstates other legal requirements that do not support its desired end result of avoiding further environmental review. It is not just the Friends case that Staff has failed to analyze, consider, and follow. Its Response also ignores-and thereby fails to refute--other legal requirements relevant to (and undermining of) its CEQA analysis. It ignores the lack of any legal authority for Applicant's cantilevering over the creek setback. It ignores (does not even address) the Town ordinances rendering Applicant's tree protection measures illegal. It even asserts that the creek setback requirements are solely for slope stability (and even appears to assert that there would not be a public interest in creek protection absent potential "impacts below the top of the creek channel") (see RA p. 6 [asserting without any support that "[i]t should be noted" that the setbacks are for slope stability] and p . 3 [top of creek assertion])-assertions that are not only unsupported by any legal authority but that have already rejected by the Commission at the June 8 hearing. 5 . To the same end (avoiding further necessary environmental review), Staff ignores facts and evidence that are not favorable to its position. Staff has simply ignored evidence showing additional potential environmental impacts as well as potential areas of impact that Staff has simply refused to explore. Only a few examples follow. A: After long denial, Staff has finally acknowledged that the creek has moved-as evidenced by a comparison of the site plan on which the 2010 MND was based and the current site plan. (See Live Oak 7 /21/16 report attached as Appendix A of the revised Addendum p. 2.) However, Staff continues to hew to the speculations of Live Oak Associates in its July 21, 2016 letter that the movement occurred as a result of natural processes quite some time ago, and it does so in spite of eye-witness testimony that it was not a natural process but a neighbor's bulldozer that relocated the creek. On this basis, Staff has failed even to meet its obligation to ask whether an associated environmental impact may exist. B: Staff also continues to hew to the masquerade that Applicant's revised plans will save trees previously slated for demolition, and it does so in the face ofuncontroverted evidence that numerous of the allegedly saved trees will likely die due to Applicant's construction. Both Applicant and Staff have had ample opportunity to respond to Appellants' showing that, under Applicant's Arborist's own tree protection analysis, the proposed protection for numerous trees that Staff's Response claims will be saved under Applicant's plans is substandard and unlikely to succeed (as well as, as noted above, in violation of town ordinance). Applicant himself explains his tree protection measures as giving the trees a "fighting chance." In other words, so that Applicant can maximize size and profit, the trees that Staff credits him 3 with saving will have to fight for their existence. This is not tree protection; it is Greek theatre. There is no dispute that the trees at issue are important. Staff clearly assumes so by vaunting the alleged saving of them. One of the trees is Tree 30 which has the largest canopy of any in the woodland providing not only great majesty and beauty but also essential screening (still not enough to hide the enormity of Applicant's proposed house but screening nonetheless). Another set of trees slated to fight for their lives to allow Applicant's over-sized project is a bank of trees prominently situated at roadside. 6. Staffs Response is otherwise deficient. Staffs Response is deficient in other important respects, including, for example only, the following. A: It focuses only on design and construction comparisons and criteria that it believes will support its case while ignoring equally pertinent comparisons and criteria that it fears will harm its case (such as focusing on the amount of soil to be exported from the project site while discounting the significance of the dramatic increase in cut and fill associated with this project as opposed to the project at issue under the 2010 MND (total of 868 cubic feet of cut and fill in 2016 compared to 530 in 2010). B: It attempts to justify the reduced storm drains (and thus conducts no investigation at all regarding the impact) because the revised plans substituted permeable pavers for impermeable surfaces on the driveway, when, in fact, Applicant's original plans also called for permeable pavers without any reduction of storm drains. C: It ignores the aesthetic impact on the natural woodland setting of a size-maximized house, indisputably visually appearing to be a three-story edifice with a comparably oversized attached garage, extending an exceedingly long length of the roadside of the site, and set, through deep and non-topographic grading, in unnaturally close proximity to the road, cutting off any plausible opportunity for natural screening or pretense of retaining the natural character of the site. Summary: As set forth in other correspondence, numerous material, important, and independent grounds exist for denial of the Application and upholding of the Appeal, of which non- compliance with CEQA is only one. Should the Commission feel that it must address this ground, in addition to all the other grounds compelling denial, it is clear that Staff has failed and refused to follow the standards mandated by Friends, has improperly ignored substantial evidence of potential environmental impact, has disavowed its investigative duties as staff for a public agency by refusing even to consider evidence presented to it, and has therefore failed in promoting either the best interests of the Town or the goals of CEQA. On this additional ground, the Application should be denied, and the Appeal should be upheld. 4 This Page Intentionally Left Blank 19 Highland Ave Appeal Re-Justification October26, 2016 RECEIVED OCT 2 6 2016 TOWN OF LOS GATOS PLANNING OIVISfON Motion of June 8 Planning Commission Meeting Planning commission minutes, June 8, 2016, p. 6 "to continue the public hearing ... in order for the applicant to work with neighbors and consider design modifications" Action of the Developer Work with Neighbors: } Take It or Leave It 'chose not to seek neighbor input before the revisions 'Chose to reject all neighbor input after the revisions Design Modifications: limited De Minimis Changes new concerns overwhelming bulk, mass, and volume not materially mitigated Exhibit 32* Submitted By Developer Summary of Changes The following is an abbreviated list of the changes made in consideration of the comments made by the appellants and the Planning Commission : Deceptive 1. Building Footprint reduced by 620 sq. ft . 8.5% Not Substantial 2. Total floor area reduced by 429 sq. ft . False 3. Trees to be removed decreased from 15 to 6, with one additional dead tree to be removed overstatement 4. Trees closest to creek will be preserved for creek bank stability Deceptive, Still Enormous 5. Retaining wall length decreased from 653-feet to 210-feet Deceptive, Redundant 6 . House footprint reduced by 610 sq. ft . (from 2,992 sq. ft . to 2,372 sq. ft.) Worse, Non-conforming 7. Hous e has been recessed into hillside as suggested in HDSG (requiring additional grading). Incidental 8. Distance from tree #30 to building footprint increased from IS-feet to of20-feet minimum Fal~, Worse?~Triviat39. Overall height! massini, and lengtlfofhome has been reduced Deceptive 10. Creek setback increased from 15-feet to 20-feet the closest point of the home's footprint *Reprint excerpt from exhibit 32 June 8 Commission Comments & Response Commissioner's Comments • Substantially Smaller Structure • 2Q -25' Creek Setback • Attempt to Comply with LRDA • Follow the HDS&G Developer's Response t-Height: 1ft •FAR: 8.5% •Length: 2.1% 6' -16' Structural Setbacks in Multiple Areas LRDA Breach: Before: 34% After: 40-45% Multiple HDS&G Vfolations June 8 Commission Comments & Response Commissioner's Comments • Reduce Retaining Walls • Fil Into Natural Surroundings • Fully Validate Old CEQA • Work With Neighbors Developer's Response 653'.. 210' .. 400+' Bulk, Mass, Volume Perceptually Unchanged Rejected Neighbor's Input Rejected I. Constraints Analysis II Grading and Retaining Walls Ill. Setbacks IV. CEQA V. Driveways IV. Architecture VII , Conclusi on Overview I. Constraints Analysis IV. CEQA Developer "Slightly Modified Oesign 1• Appellants Substantial Evidence That Project May Have Adverse Environmental lmpacts3 Addendum2 IS I EIR 1Unsupported :!California Supreme Court Case No. 5214061 2Misleadlng, Incomplete, Biased ("Friends ") 2016 V. Driveways • Detached Garage • E levated 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 VI. Architecture Bas i,c P rin c ipl es •Developer has every right to build • Not exempt from following the standards and guidelines • Important that the design conforms to the site rather than the site conform to the design Recommendation Motion of June 8 Planning Commission Meeting Planning commission minutes, June 8, 2016, p. 6 "to continue the public hearing ... in order for the applicant to work with neighbors and consider design modifications" I. Neighbors •ff a conflict occurs between a property owner's desire to develop their property and legitimate issues raised by a neighbor, a design solution will be sought that attempts to balance a/I Issues or concerns that are raised by both parties." HDS&G p.13 Meetings & Email Correspondence ~ Developer acknowledges that statements made of missed meetings and failure to communicate were erroneous. • 20 pages of emails purporting to satisfy motion to work with neighbors: quantity obscures lack of substance •Two relevant meetings: July 10, July 16 July 10: Sunday afternoon -"draft" plans presented to neighbors Next day -revised final plans subm itted July 16: Developer and architect justify and defend revised plans without seeking neighbor input *For further explanation, see Lisa Roberts' August 24, 2016 desk item letter (grouped with exhibits 35-36) Neighbor Letters • Personal Experience: Pressured to sign letter-of-support template before story poles erected. • No Appellant has approached any neighbor for appeal support. • Have supporting neighbors fully reviewed both sides before coming to a conclusion? •No letter, for or against, can supersede the HDS&G. •Withdrawn Appellant: Initially signed template. Saw the story poles and became an appellant. Withdrew after stating in an email "haven't stayed up on everything". To be commended for abstaining . Exh ibit 32* Summary of Changes The following is an abbreviated list of the changes made in consideration of the comments made by the appellants and the Planning Commission: Deceptive I. Duildini Footprint reduced by 620 sq. n. 8.5% Not Substantial l. Total floor area reduced by 429 sq. ft. False 3. Trees to be removed decrea:oied from 15 to 6, with one addilional dead tree to be removed Overstatement 4. Trees closest to creek will be preserved for creek bank stability Deceptive, Still Enormous 5. Retaining wall lcngth decreased from 653-fcct to 210-fcet Deceptive, Redundant 6. House footprint reduced by 610 sq . ft. (from 2,992 sq. ft. to 2.372 sq. ft.) Worse, Non-conforming 7. House has been recessed into hillside as suggested in HDSG (requiring additional grading). Incidental 8. Distance from tree #30 to building footprint increased from 15-teet to of20-feet minimum Fal~, Worse?~Trivial39. Overall height: massin g! and length3 ofhomc has been reduced Deceptive 10. Creek setback increased from 15-feet to 20-feet the closest point of the home's footprint "R epn nt excerpt from oxh lblt 3~ FAR •Ensure that development does not dominate, but rather visually blends and achieves harmony between the natural and built environment." HDS&G p.9 Before: 5077 sf l 8.5 % Reduction After: 4648 sf Not Substantial Oversized Structure for Site Exhibit 32* Summary of Changes The following is an abbreviated list of the changes made in consideration of the comments made by the appellants and the Planning Commission: Deceptive 1. Building Footprint reduced by 620 sq . fi. 8.5% Not Substantial 2. Total floor area reduced by 429 sq. ft. False 3. Trees to be removed decreased from 15 to 6, with one addilional dead tree to be removed Overstatement 4. Trees closest to creek will be preserved for creek bank stability Deceptive, Stin Enonnous 5. Retaining wall length decreased from 653-fcct to 210-fect Deceptive, Redundant &...-Hou::c footprint reduced b'i 610 aq. ft . {from 2992 aq. ft . to 2372 sq. ft .) Fiiier Item Worse, Non-conforming 7. House has been recessed into hillside as suggested in HDSG (requiring additional grading). Incidental 8. Distance from tree #30 to building footprint increased from 15-teet to of20-feet minimum Fals~. Worse?~Trivfai39. Overall height, massin ~ and length3ofhomc has been reduced Deceptive 10. Creek setback increased from 15-feet to 20-feet the closest point of the home's footprint *Reprint excerpt from exhibit 32 (blank) Summary !Design Modifications: • Lack Meaningful Changes • Some Deceptive •Some Worse • Some Patently False