Item 03 - 19 Highland Ave - Staff Report & Exhibit 44TOWN OF LOS GATOS ITEM NO: 3
PLANNING COMMISSION STAFF REPORT
Meeting Date: October 26, 2016
PREPARED BY: Sally Zarnowitz, Planning Manager
szarno wit z@ losgatosca .go v
APPLICATION NO.: Architecture and Site Application S-15-077
LOCATION: 19 Highland Avenue (north side of Highland Avenue just east
of I 5 Highland A venue)
APPLICANT/
PROPERTY OWNER: Ed Pearson
CONTACT PERSON: Ed Pearson
APPELLANT: Badame, Roberts, Smullen, and Spalding Families
APPLICATION SUMMARY: Consider an appeal of a decision of the Development Review
Committee approving an Architecture and Site application to
construct a new single-family residence and remove large
protected trees on property zoned HR-2 Yz . APN 529-37-033
EXHIBITS: Previously received with May 11, 2016 Desk Item Report:
1. Emails from appellants, received May I I, 2016
Previously received with June 8, 20I 6 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 (2001-128)
7. December 8, 2010 Planning Commission meeting minutes
(15 pages)
8 . Consulting Architect 's Report, dated February 24 , 2016
9. 20I 0 Arborist Report (26 pages), dated February I 5, 201 O
10. Project Data Sheet
11. Letter from Anthony Badame, received March 24, 2016
12. March 29 , 2016 Development Review Committee minutes
(two pages)
13. Appeal letter, received April 8, 2016 (four pages)
14. May 11, 2016 Planning Commission meeting minutes
15. Applicant's response letter and Attachments (1-14),
received May 27 , 2016
Planning Commission Staff Report -Page 2
19 Highland A venue/S-15-077
October 26, 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), received March 22, 2016
Previously received with June 8, 2016 Addendum Report :
19. Letter from appellant (58 pages), received on June 2, 2016
Previously received with June 8, 2016 Desk Item Report:
20. Revised neighborhood outreach statement (one page),
received June 6, 2016
21. Applicant's response to Appellant's letter (five pages),
received June 8, 2016
Previously received at June 8, 2016 Planning Commission
Meeting:
22. Communication from appellants (11 pages), received June
8,2016
23. Presentation by appellants (15 pages), presented June 8,
2016
24. Communication from applicant (5 pages), received June 8,
2016
Previously received with August 24 , 2016 Staff Report:
25. Presentation by applicant (37 pages), presented June 8,
2016
26. Revised Recommended Conditions (10 pages)
27. Revised Development plans (15 pages), received July 11,
2016
28. Revised Project Data Sheet
29. Consultant Reports ( 10 pages)
30. Addendum to 2010 adopted Mitigated Negative
Declaration (101 pages), dated August 2016
31 . Communication from appellants (23 pages)
32 . Communication from applicant (110 pages)
33. Revised Findings
Previously received with August 24, 2016 Addendum Report:
34. Revised version of Exhibit 31, Communication from
Appellants (53 pages)
Planning Commission Staff Report -Page 3
19 Highland A venue/S-15-077
October 26, 2016
REMARKS:
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 version 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
Previously received with September 28, 2016 Staff Report:
40. Revised version of the August 24, 2016 letter submitted by
appellants in Exhibit 36 (five pages)
41. Public comments received from 11:01 a.m., September 8,
2016 to 11:00 a.m., September 22, 2016
42. Communication from appellants , received September 22,
2016 (55 pages)
Previously received with September 28, 2016 Addendum Report:
43. Communication from the appellants, received from
11:01 a.m., September 22, 2016 to 11 :00 a.m., September
27, 2016 (8 pages)
Received with this Staff Report:
44. Response to Communication from appellants, received
September 22, 2016 (8 pages)
45. Revised Addendum to 2010 adopted Mitigated Negative
Declaration, dated October 2016 (111 pages)
At their September 28, 2016 meeting, the Planning Commission continued the matter to the
October 26, 2016 Planning Commission meeting in order for staff to review the September 19,
2016 Supreme Court CEQA decision in Friends of the College of San Mateo cited in a
communication from the appellants, received September 22, 2016 (Exhibit 42). Exhibit 44 is a
response to that communication. Based on the review of the Supreme Court decision, the
Addendum to the 2010 adopted Mitigated Negative Declaration (MND) has been revised
(Exhibit 45) to address the relevancy of the adopted MND to the satisfaction of staff and the
Town Attorney.
Planning Commission Staff Report -Page 4
19 Highland A venue/S-15-077
October 26, 2016
Prepared by:
Sally Zamowitz, AIA
Planning Manager
JP:SZ :cg
Approved by:
Joel Paulson
, Community Development Director
cc: Ed Pearson, 239 Thurston Street, Los Gatos, CA 95030
Lisa Roberts, 78 Alpine A venue, Los Gatos, CA 95030
Dede Smullen, 25 Highland A venue , Los Gatos, CA 95030
Anthony Badame, 73 Mariposa A venue, Los Gatos, CA 95030
N:\DEV\PC REPORTS \2 0I6\Hi ghland-19-appeal-20 16-10-26.doc
kimley-horn.com 100 West San Fernando Street, Suite 250, San José, California 92113 (669) 800-4130
October 20, 2016
Sally Zarnowitz
Planning Manager
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95030
Re: 19 Highland Avenue – Response to Comments on Mitigated Negative Declaration Addendum
Dear Sally:
Kimley-Horn and Associates, Inc. (Kimley-Horn), acting as an “extension of Town staff” for the 19 Highland
Avenue Project, has prepared the following responses to address the general comments raised in the
comment letter prepared by Lisa Roberts and dated September 22, 2016. These responses address the
comments from Sections II, III, and IV of the letter. The comment heading from each of these sections is
provided in bold text below with the Town’s response following.
Section II. The 2010 MND is no longer relevant and a new initial study is required.
The Town does not concur that the 2010 MND is no longer relevant. The following text has been added
to the MND Addendum:
The 2010 MND is the relevant environmental document for the proposed project for the
following reasons:
The 2010 MND evaluated the construction of one single-family residence at 19
Highland Avenue in generally the same location within the property as the proposed
project; and
There have been no significant changes with regard to the surrounding land uses that
would result in new impacts from what was previously disclosed in the MND; and
There have been no changes to the Town’s General Plan designation or zoning
classification on the project site from what was previously evaluated in the 2010
MND; and
There have been no changes in circumstances in which significant new information is
now available that was not available at the time the 2010 MND was adopted such
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that new or more significant impacts would occur.
Therefore, the MND adopted in 2010 by the Town retains informational value regarding
the potential impacts associated with the proposed development of one single-family
residence at the 19 Highland Avenue site. The Town is the Lead Agency under CEQA and
has prepared this Addendum to address the potential for new or more severe
environmental impacts as a result of the proposed project changes when compared to
the baseline assuming buildout of the original project.
A new Initial Study is not required because the information provided in the 2010 study is still applicable
to the proposed project given the similarity between the two proposals; and because there have been no
significant changes to the baseline conditions evaluated in the 2010 MND.
Section III. An EIR is required because the there is substantial evidence that the proposed project may
have significant environmental effects.
While additional project-specific technical reports have been submitted by the applicant and peer-
reviewed by the Town as part of project review, the Town has found that there is no substantial evidence
that the project may have significant effects on the environment. As noted in Table 1 of the Addendum,
the proposed project will have a smaller overall footprint, increased setbacks from the creek, and will
remove fewer trees than the project evaluated in the 2010 MND. No changes in the baseline conditions
have been identified that would result in new impacts or increase the severity of previously identified
impacts.
This section of the comment letter does not identify any potential for new significant impacts.
Section IV. The Application must be denied for two separate and independent reasons: (A) There is
substantial evidence that the 2010 MND prepared for the Orphan Project is not relevant to the Pearson
Project and (B) There is substantial evidence – a fair argument – that the Pearson Project may have
adverse environmental impacts.
A. The addendum is incomplete, misleading, biased, and otherwise insufficient and improper.
While the MND Addendum does explain changes in the project description as compared to the original
project, the Town does not concur that the MND Addendum document is incomplete, misleading, biased,
and otherwise insufficient and improper. The comment does not outline how any of the changes in the
proposed project or additional project-specific information submitted as part of project review, would
result in new or more significant impacts.
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The MND Addendum is not misleading because it does not include or address public comment letters that
provide contrary opinion to the conclusions in the Addendum analysis. This is not a requirement for an
Addendum. The letters and reports submitted to the Town by members of the public are included as part
of the administrative record and are provided to the Town’s decision making bodies for their consideration
when considering a project application.
A consultation with the California Department of Fish and Wildlife (CDFW) and the Regional Water Quality
Control Board (RWQCB) is not required. The 2010 MND was circulated for public agency and public review
prior to its adoption by the Town. The proposed project does not result in any new or additional impacts
on resources managed by either the CDFW or the RWQCB. In fact, the proposed project has a smaller
development footprint and creates larger setbacks from the creek and removes fewer trees than the 2010
original project. Similar to the 2010 original project the proposed project would not result in any impacts
below the top of the creek channel. Therefore, no permits from CDFW are required. The addendum has
found that the information in the 2010 MND is relevant, applicable to the proposed project and that no
new CEQA document is required. Therefore, no new or additional CEQA analysis, including consultation
with responsible agencies is required.
B. Based on Evidence, the Application must be Denied on CEQA Grounds
The Town does not concur that 2010 MND is not relevant to the proposed project. Please see Response 1
above.
No evidence has been identified that the proposed project would result in new previously unidentified
significant environmental impacts or would increase the severity of previously identified significant
effects. Pursuant to CEQA State Guidelines Section 15064(f)(7), “Under case law, the fair argument
standard does not apply to determinations of significance pursuant to section 15162, 15163, and 15164.”
Woodland and Trees
Neither the habitat nor the trees onsite have been identified as special status plant species that would
require avoidance or additional mitigation. The habitat is identified as coast live oak/California bay
woodland. This habitat type is not a critical habitat of a sensitive plant or animal species and has not been
designated as sensitive habitat by any regional, state, of federal agencies. Information concerning
threatened, endangered, and other special-status species that could occur in the project region was
reviewed by a qualified biologist, including information from the following sources:
California Natural Diversity Database (CNDDB) and its associated species accounts (CNDDB 2016)
Federally listed species information for the vicinity from the website of the U.S. Fish and Wildlife
Service (USFWS) (https://ecos.fws.gov/ipac/)
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California Native Plant Society (CNPS) Inventory of Rare and Endangered Plants of California (CNPS
2016)
Relevant scientific literature, technical databases, and resource agency reports
Visual confirmation of the absence of any sensitive plant species was conducted by a qualified biologist
as part of the project biological resources report and confirmed by a peer review (including a site visit) by
the Town’s biologist.
The proposed removal of seven trees onsite is in compliance with the Town’s Tree Preservation Ordinance
in which the intent of the ordinance is to, “regulate the removal of trees within the Town in order to retain
as many trees as possible consistent with the purpose of this section and the reasonable use of private
property.” Additionally, Mitigation Measure 2 requires that the applicant implement the
recommendations under the Design Guidelines of the Arbor Resources Tree Report (February 15, 2010)
section addressing tree retention and relocation, soil disturbance, mulching, trenching, drainage, facilities,
and installation of new trees. The report also provides recommendations for Protection Measures before
and during development, encompassing fencing, removal of hardscape, demolition, work within tree
canopies, etc. The 2010 MND assumed that the original project would remove a total of 31 trees. A total
of 18 trees were removed from the property by the previous owner. The proposed project would remove
a total of seven additional trees. This would make a total of 25 trees to be removed which is less than the
31 proposed with the original project.
Therefore, no new or more significant impacts as a result of the proposed project have been identified
and the analysis within the 2010 MND is relevant to the analysis in the MND Addendum.
Habitats and Special Status Species
The Town does not concur that the project site has the potential to contain habitat and Special Status
Species. The project-specific HT Harvey Report (March 31, 2016, page 8) determined that the presence of
sensitive bat species (both Townsend’s big-eared bat and pallid bat) were not expected to occur on the
site after conducting focused surveys for roosting habitat.
The Pacific Biology Report (June 2, 2016) simply states, “Finally, the proposed project includes the removal
of numerous trees, including 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 pallidus)…” but provides no further evidence that the tree is suitable for bat habitat.
In response to this comment, the Town’s biologist visually inspected this tree and concluded (July 21, 2016
Letter Report), based on evidence from the site, that the tree is not suitable roosting habitat. As a result,
the following text has been added to the addendum analysis:
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As a result of public comment, the Town’s biologist (Live Oak Associates) visually
evaluated tree #56, a large coast live oak tree, in July 2016. The tree was inspected with
binoculars for the presence of features such as hollows, exfoliating bark or deep bark
fissures that may potentially be used by bats for day roosting or maternity habitat. The
tree was relatively easy to evaluate since it is in the process of succumbing to a bark beetle
infestation and may also be highly drought-stressed, and therefore is almost barren of
foliage. 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 the bark beetle infestation. These
features do not provide potential maternity or roosting habitat for special status bats such
as the Townsend’s big-eared bat or the pallid bat as these latter species do not use these
types of features. Townsend’s big-eared bats require large cavernous areas such as
buildings, mines, caves, and less frequently large hollows in the bases of trees; while the
pallid bat typically uses buildings, caves, and rock crevices, so removal of tree #56 is not
expected to affect either of these special status bat species that could potentially occur
in the project vicinity. 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.
Subsequently, Pacific Biology submitted a letter dated September 22, 2016 stating that pallid bats could
roost onsite in tree #56 as pallid bats have been known to roost in oak trees elsewhere. The Town does
not concur that the project has the potential to adversely impact sensitive bat species. The March 31,
2016 Biological Resources report, prepared for the project provides the following information regarding
potential bat species, including focus surveys for sensitive bat species:
The Townsend’s big-eared bat (Corynorhinus townsendii), a State candidate for listing, historically
occurred in the Project region. Unlike other bat species which seek refuge in crevices, the
Townsend’s big-eared bat normally roosts in open, cavernous spaces, hanging in the top of a
natural cavity, or in the top corner of ceilings and walls of an undisturbed room (this species is
easily disturbed while roosting in buildings). A focused survey for suitable bat habitat on the
Project site did not detect any large cavities suitable for roosting Townsend’s big-eared bats.
Therefore, this species is not expected to occur on the Project site.
The pallid bat (Antrozous pallidus), a California species of special concern, historically occurred in
the Project region. However, a focused search for bat roosting habitat during the site visit located
no suitable habitat for pallid bat maternity roosts or large day roosts in trees within the Project
site. Therefore, this species is not expected to occur on the Project site.
The July 21, 2016 Live Oak report was focused on whether there was substantial evidence as to whether
pallid bats would use the tree #56. Based on all the evidence provided in the technical reports, including
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specific observations of tree #56, no evidence has been identified that pallid pats occupy this project site
including tree #56.
Nonetheless, the Town has required as a condition of approval, the recommendation provided in the July
21, 2016 letter from Live Oak Associates to remove tree #56 in a two -step process. The condition would
require the tree to be removed outside of the bat winter torpor (hibernation) season with a qualified bat
biologist present to avoid adverse impacts on non-special status bat species.
Therefore, no new or more significant impacts as a result of the proposed project have been identified
and the analysis within the 2010 MND is relevant to the analysis in the MND Addendum.
Creek
The Town does not concur that the proposed project provides inadequate setbacks or is not consistent
with the Guidelines and Standards for Land Use Near Streams (Guidelines). It should be noted that the
setbacks recommended in Chapter 3 of the (Guidelines) are for the protection of creek bank slope
stability. The proposed project maintains a minimum setback of 20 feet for the house structure and 10
feet for the driveway which is within the most conservative setback range of the 20-25-foot slope stability
protection area established by the Guidelines. The Town will determine the appropriate setback, based
on site conditions, and exceptions may be granted to allow a structure to be located within the slope
stability protection area where a slope stability analysis is provided and maintenance of the stream will
be provided. Within this range, the creek setbacks of the proposed project are consistent with the
intermittent creek designation provided on page 3.8 of the Guidelines.
With regard to the creek bank slope stability, a letter from the applicant’s geotechnical engineer (Upp
Geotechnology, February 2016) notes that the proposed project would not present a slope stability hazard
with a setback of 15 feet for the proposed structure (the structure has since been moved to a minimum
20-foot setback) and a 10-foot setback for the driveway. Additionally, the Town biologist (Live Oak
Associates) has determined that a 20-foot setback is an adequate setback to preserve biological functions
and values of the creek on the site. The Town biologist had also previously determined that a few areas
of encroachment would result in less than significant impacts on the creek.
The Guidelines were adopted by the Town in 2007 prior to the adoption of the 2010 MND. As such, the
Town found the setbacks of the original project satisfactory for slope stability including the removal of up
to 31 trees. The proposed project has increased the minimum setbacks from the top of bank compared to
the original project and reduced the number of trees that are to be removed.
Therefore, no new or more significant impacts as a result of the proposed project have been identified
and the analysis within the 2010 MND is relevant to the analysis in the MND Addendum.
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Grading, Erosion, Size, Footprint, Relocation
The Town does not concur that the changes in the project design would result in significant impacts on
grading, or erosion. As noted in the project addendum, the proposed building footprint has been moved
to increase the setback from the creek. As such, the proposed house has reduced the area outside of the
Least Restrictive Development Area (LRDA) established by the Town’s Hillside Development Standards
and Guidelines (HDSG). The HDSG are a relevant performance standard to reference in the analysis
because the project site is located within the area to which these standards and guidelines apply.
Development on this site must meet the requirements of the HDSG which seeks to minimize the amount
of grading, soil disturbance, and manufactured slopes.
While the total grading amounts for the proposed project increase by approximately 97 cubic yards, the
proposed grading is able to be balanced onsite and eliminates the need for approximately 154 yards to
be exported offsite. By moving the structure and driveway away from the creek, the total amount of
retaining walls is reduced by 54% (from approximately 457 lineal feet to approximately 210 lineal feet)
and reduces the overall height of the walls as no wall is proposed to be over six feet in height. These
adjustments combined with the fact that the proposed project has reduced its lot coverage by more than
1,000 square feet means that more of the project site is left in its natural state and results in less soil
disturbance during construction and fewer trees would have to be removed, particularly trees closer to
the drainage. These changes would reduce the potential for erosion because there is less soil disturbance
and the limits of construction are moved farther from the creek. None of the proposed design changes
have been identified to result in increased adverse effects from grading or increased erosion.
Therefore, no new or more significant impacts as a result of the proposed project have been identified
and the analysis within the 2010 MND is relevant to the analysis in the MND Addendum.
Storm Drainage
The proposed project results in a reduced need for bioswales because the project reduced the lot
coverage by 1,000 square feet and included pervious pavers in the driveway. This reduced the amount of
impervious surface on the project site and subsequently reduced the amount of the bioswale area
needed. No other changes as a result of the proposed project were identified that would result in
significant adverse changes to hydrological or water quality conditions from what was analyzed in the
2010 MND.
Therefore, no new or more significant impacts as a result of the proposed project have been identified
and the analysis within the 2010 MND is relevant to the analysis in the MND Addendum.
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Other Aesthetic and Environmental Changes
No changes to the aesthetic conditions evaluated as part of the 2010 MND have been identified. The
architecture of the building as well as building materials, building size, and building setbacks is reviewed
by the Town’s Consulting Architect as part of the Town’s Architecture and Site Permit process.
All lighting on the exterior of the homes must comply with the Town’s buildings codes which prohibit light
trespass over the property line. Exterior lights must be shielded to reflect the light downward and not
outward. Light fixtures are reviewed by Town staff during the review of the building plans prior to the
issuance of a building permit stage.
No new potential adverse effects as a result of the drought conditions in California have been identified.
Therefore, no new or more significant impacts as a result of the proposed project have been identified
and the analysis within the 2010 MND is relevant to the analysis in the MND Addendum.
Please do not hesitate to contact me at (916) 859-3625 or at alex.jewell@kimley-horn.com if you have
any questions.
Sincerely,
KIMLEY-HORN AND ASSOCIATES, INC.
By: Alex H. Jewell, AICP, LEED AP
Senior Project Manager