Draft Mins 01.25.12Planning Commission Minutes Page 1 January 25, 2012
DRAFT
TOWN OF LOS GATOS
PLANNING COMMISSION MEETING
ACTION MINUTES
TOWN COUNCIL CHAMBERS
110 E. MAIN STREET
WEDNESDAY, JANUARY 25, 2012
Chair Marico Sayoc called the meeting to order at 7:00 p.m.
ROLL CALL
Present: Chair Marico Sayoc, Vice Chair Marcia Jensen, Commissioner John Bourgeois,
Commissioner Charles Erekson, Commissioner Thomas O'Donnell, Commissioner
Margaret Smith, and Commissioner Joanne Talesfore.
Absent: None
Others: Town Attorney Judith Propp, Planning Manager Sandy Baily, Associate Planner
Jennifer Savage, Assistant Civil Engineer Trang Tu-Nguyen, and Recording
Secretary Linda Rowlett.
PLEDGE OF ALLEGIANCE
Led by Chair Marico Sayoc.
APPROVAL OF MINUTES OF DECEMBER 14, 2011
Motion by Commissioner John Bourgeois and seconded by Commissioner Joanne Talesfore
to approve meeting minutes of December 14, 2011.
Motion carried 7-0.
WRITTEN COMMUNICATIONS
Chair Marico Sayoc noted that there was a desk item for Item #2 and Item #3.
REQUESTED CONTINUANCES - ITEM #1
Motion by Vice Chair Marcia Jensen and seconded by Commissioner Charles Erekson to
grant continuance of Item #1 (16828 Kennedy Road) to February 22, 2012.
Planning Commission Minutes Page 2 January 25, 2012
Motion carried 7-0.
SUBCOMMITTEE REPORTS
General Plan Committee -- Commissioner John Bourgeois reported that the committee met
tonight to review the State Density Bonus Law and Town Housing Assistance Program and
heard a presentation by Mid-Peninsula Housing on developing affordable housing in the Bay
Area. This was in preparation for developing the Affordable Housing Overlay Zones.
Historic Preservation Committee -- Commissioner Charles Erekson reported that the
Committee met this afternoon and recommended approval of exterior modifications to the Los
Gatos Theatre, reviewed conceptual plans for a second story addition at 106 Massol Avenue,
and continued a request for exterior modifications on a property at 301 University Avenue.
VERBAL COMMUNICATIONS (AUDIENCE)
Patti Elliot
Commented that she lives on Marchmont Drive and that she is concerned about the Hillbrook
School issue. Over the past few years, the school has ignored and violated several important
conditions in its Conditional Use Permit (CUP) that were put in place to preserve the
character of the neighborhood and to mitigate the dangerous conditions caused by the traffic.
Commented that Hillbrook has routinely ignored Condition #12 which limits the number of
vehicles during morning drop-off and afternoon pick-up periods.
Commented that the neighborhood is inundated by traffic all day long and requested that the
Commission instruct Town staff to require Hillbrook School to provide all the documentation
of its programs and also those programs that it has allowed outside groups to run.
CONSENT CALENDAR -- NONE
CONTINUED PUBLIC HEARINGS -- NONE
NEW PUBLIC HEARINGS
1. 16828 Kennedy Road. Minor Residential Development Application MR-11-010.
Requesting approval to construct a new second story on a single-family residence on
property zoned R-1:8. APN 532-35-076. PROPERTY OWNER: Hillbrook School.
APPLICANT: Kim Midstokke. PLANNERS: Marni Moseley/Jennifer Savage.
Continuance granted to February 22, 2012. See Requested Continuances above.
2. 15220 Oak Ridge Way. Architecture and Site Application S-11-059. Requesting approval
to construct a new single family residence on a vacant lot zoned R-1:20. APN 424-30-120.
PROPERTY OWNER/APPLICANT: Robert Herzig. PLANNER: Jennifer Savage.
Chair Marico Sayoc opened the public hearing.
Planning Commission Minutes Page 3 January 25, 2012
Associate Planner Jennifer Savage presented the staff report.
Commissioner John Bourgeois
Asked if an expert was brought in to look at the site regarding the vernal pool.
Associate Planner Jennifer Savage
Commented that she was not aware of the Town bringing in outside experts, but she did not
know if the applicant had done so. Town staff determined that the vernal pool was not an
issue based on the physical characteristics of the site.
Chris Spaulding, Applicant, gave a presentation on the proposed project and provided
a letter from a soils engineer to the Commission stating that no evidence of subsurface flow was
found.
Commissioner Thomas O’Donnell
Asked if there is a gate blocking Wild Way when you turn right from Oak Ridge Way.
Asked which houses were used to determine neighborhood compatibility.
Chris Spaulding
Commented that there is a gate where Wild Way is no longer in use and is not a public way.
Commented that there are several houses in the neighborhood with larger square footage.
Commissioner Joanne Talesfore
Asked if trees will be providing privacy and asked what type they are and where they will be
located.
Commented that she would like to see a landscape plan.
Commented that the characteristics of the neighborhood that stand out to her are single-story
homes that are swept back with low slung roofs and eaves.
Asked how the architecture of the proposed home relates to the neighborhood.
Chris Spaulding
Pointed out the privacy planting on the overhead stating that the applicant has come to an
agreement with the neighbor regarding what type of trees will be planted.
Commented that there are two-story houses in the neighborhood. Some of the one-story
homes were built many years ago on very large lots and may not be suitable for comparison.
Commissioner John Bourgeois
Asked if they considered pushing the house farther back on the lot.
Chris Spaulding
Commented that they did push the house back an additional five feet that is not shown on the
drawings. The lot is not deep enough to push it back any farther.
John Livingstone
Commented that he is a planning consultant representing Mr. Chen and requested that the
item be continued to give Mr. Chen an opportunity to attend the hearing.
Planning Commission Minutes Page 4 January 25, 2012
Commented that the plans need to be modified to meet staff’s Condition #13 regarding
easements.
Commented that the proposed design requires the use of the easement for its day to day
functions.
Commented there is little parking available other than in the easement. The plans propose
three garage parking spaces. The only parking available is in front of the two-car garage.
Commented that the back balcony has a view into Mr. Chen’s yard, pool and spa area.
Commented that the staff report indicates that the size of the proposed project is not
compatible with the immediate neighborhood.
Asked that the item be continued due to the privacy issues, encroachment and lack of a
landscape plan so Mr. Chen can have further dialogue with the applicant.
Commissioner Thomas O'Donnell
Asked Mr. Livingstone if he has read the easement and asked where it starts and ends.
John Livingstone
Commented that he has read the easement and that it runs from the front of the lot and goes
all the way to the rear. The easement is used for maintenance of the back of the site and they
put gravel down for the working access.
Chair Marico Sayoc
Asked if there is anything currently on the easement.
Asked what is encroaching into the easement.
John Livingstone
Commented that the easement is currently a vacant lot.
Commented that the eaves of the single car garage are encroaching into the easement and
need to be modified per Condition #13.
Commissioner Margaret Smith
Asked about the back balcony and the location of Mr. Chen’s pool area.
John Livingstone
Pointed to the location of the pool and spa area. There are over 100 feet from the balcony to
the BBQ area.
Commissioner Joanne Talesfore
Asked if there is another road to the property in back.
John Livingstone
Commented that there is not another road to the back property.
Chair Marico Sayoc
Asked if there has been any communication between Mr. Chen and the property owner.
Planning Commission Minutes Page 5 January 25, 2012
John Livingstone
Commented that Mr. Chen has talked with the property owner but they would like further
communication with the architect and an opportunity to see a landscape plan.
Jean Hardwicke
Commented that she lives across the street from the project on Oak Ridge Way and that she
does not have issues with the house itself, but there is underground water on the site.
Commented that her main concern is parking. There is a parking issue on the streets and she
wants the Town to pay attention to Buena Vista Avenue and Oak Ridge Way during
construction to see that there is unimpeded access.
Charles Tripp
Commented that he lives across the street and one house down from the project on Oak
Ridge Way and that he objects to the size of the house.
Commented that he is concerned about the water situation during heavy prolonged rains. He
has installed six pumps and two drains and water still comes under his house.
Commented that his backyard soaks up millions of gallons of water and it flows underground
and goes right through where the proposed house is going to be. The underground water is
there.
Mary Keith Osborn
Commented that she lives on Wild Way and her objection is over the drainage of the vernal
pool. There is a lot of water when it rains heavily and it washes down her driveway.
Chris Spaulding
Commented that the 18-inch garage eave was intruding into the easement and they will cut
that off with a six-inch eave.
Showed drawings indicating that there is not a privacy problem with the pool.
Commented that his client is willing to work with the new property owners to get the access
they need to service the back of their property.
Vice Chair Marcia Jensen
Asked about the height of the eave.
Asked what types of trees have been selected.
Asked about the geotechnical engineering report and if subsurface water is the same as a
vernal pool.
Chris Spaulding
Commented that the eave starts at about nine feet above the ground and goes to about 14 feet.
Commented that evergreen carolinianas will be planted.
Commented that a vernal pool is a surface puddle and that is different from subsurface
water.
Planning Commission Minutes Page 6 January 25, 2012
Robert Herzig, Property Owner
Commented that he has talked with the neighbors about the types of trees and decided on
carolinianas for privacy.
Commented that the easement is not a daily easement but for seasonal pruning and
maintenance of the well.
Commissioner Margaret Smith
Asked about landscaping for the back of the house.
Robert Herzig
Commented that there is already some Italian Cypresses but they are willing to plant more
screening if necessary.
Commissioner John Bourgeois
Commented that neighborhood compatibility is an issue that the Commission will have to
address and asked Mr. Spaulding if he had anything to add on that issue.
Chris Spaulding
Commented that judging compatibility with two small houses built in the 1950s precludes
one from building a house that meets all the other zoning rules. As an architect, he does not
look at just the houses on either side but rather the entire streetscape.
Commissioner Joanne Talesfore
Asked if part of the design solution is to fit into the neighborhood.
Asked for Mr. Spaulding’s comments on the staff report regarding size and style.
Asked how the cellar is being used to address the massing.
Chris Spaulding
Commented that the houses to the right are set way back because they have the view and the
land to do so. This parcel is not like those parcels.
Commented that houses around this parcel are eclectic except for the ranches from the late
1950s. The newer house that is three houses to the right is similar to this lot and it was
recently approved. Immediately to the left is a tall two-story house with a steep roof.
Commented that the cellar does not address the massing. The FAR (Floor Area Ratio) was
used up above ground with the inclusion of the accessory building. The cellar is additional
square footage but, from the street, it is entirely underground.
Chair Marico Sayoc closed the public input portion of the hearing and returned to the
Commission for deliberations.
Commissioner Thomas O’Donnell
Commented that his only problem is compatibility with the neighborhood. He would not
hold the applicant to the same square footage as the older homes, but rather that the
architecture appears massive. He does not believe that the square footage is a problem, but
this particular design is unnecessarily massive.
Planning Commission Minutes Page 7 January 25, 2012
Commissioner Joanne Talesfore
Commented that she also noticed that the architecture stands out even though the square
footage is not a problem. A neighborhood in transition does not mean that you change the
character of the neighborhood, but rather preserve the characteristics.
Chair Marico Sayoc
Asked if there were any environmental studies done when this lot was subdivided into three
lots.
Planning Manager Sandy Baily
Commented that the subdivision was categorically exempt so there were no environmental
studies done.
Commissioner Thomas O'Donnell
Asked if the Commission can determine that a redesign is needed rather than turning down
the project.
Associate Planner Jennifer Savage
Confirmed that the Commission can ask for a redesign.
Commissioner Margaret Smith
Commented that she does not want to turn down the project but would like it to come
back with revisions to the architecture.
Commissioner Joanne Talesfore
Asked if a landscape plan could be included when it comes back to the Commission.
Commented that she would like to see what is going to be planted along the front of the
property.
Associate Planner Jennifer Savage
Commented that staff would recommend that privacy screening be included rather than
landscaping for the entire lot if the project comes back.
Commented that some of the trees in the front landscaping are scheduled to be removed.
Commissioner Charles Erekson
Asked how the construction will exacerbate the water problems in the neighborhood.
Assistant Civil Engineer Trang Tu-Nguyen
Commented that construction should not impact the neighborhood because they have already
mitigated the water issues.
Chair Marico Sayoc
Asked if staff had any comments regarding the desk item.
Asked if Parks and Public Works (PPW) staff checked soil and vegetation when determining
the presence of a vernal pool.
Planning Commission Minutes Page 8 January 25, 2012
Assistant Civil Engineer Trang Tu-Nguyen
Commented that she came to the same conclusion that staff noted in Desk Item #2 regarding
groundwater.
Commented that PPW staff is not the expert, but when examining the soils and vegetation
this morning, it did not meet the definition or give the indication of a vernal pool.
Planning Manager Sandy Baily
Commented that the issue of a vernal pool has come up several times over the years at
different times of the year and PPW staff has never found evidence of a vernal pool.
Commissioner John Bourgeois
Commented that it is a serious claim that there is a vernal pool on the site. Filling a vernal
pool is illegal without a permit but they are extremely difficult to determine if present. He is
at a loss of what to do about this issue.
Commissioner Thomas O’Donnell
Commented that the only evidence is that there may have been vernal pools on the site years
ago. There is no evidence to support it at the present time.
Motion by Commissioner Thomas O'Donnell and seconded by Commissioner Joanne
Talesfore to continue Architecture and Site Application S-11-059 to March 14, 2012, to give the
applicant the opportunity to reduce the appearance of bulk and mass of the design for
neighborhood compatibility.
Commissioner John Bourgeois
Asked that a landscaping plan be part of the redesign.
Commissioner Thomas O'Donnell
Commented that his only sensitivity is how complete a landscaping plan is required.
Commissioner John Bourgeois
Commented that a conceptual landscaping plan showing size, species and location would be
fine.
Chair Marico Sayoc
Commented that screening between this property and Mr. Chen's property was an issue.
Commissioner Thomas O’Donnell
Commented that he would amend the motion to include a conceptual landscape plan, but
would not require that it include the back of the property.
Commissioner Joanne Talesfore
Commented that she agrees with the amendment.
Planning Commission Minutes Page 9 January 25, 2012
Commissioner Charles Erekson
Commented that he believes the applicant will respond appropriately based on tonight’s
feedback and does not believe that the motion needs to include a lot of specificity.
Commissioner Thomas O’Donnell
Commented that, as maker of the motion, he agrees with Commissioner Erekson’s
comment.
Commissioner Joanne Talesfore
Commented that, as seconder of the motion, she agrees with Commissioner Erekson’s
comments as well.
Motion carried 7-0.
3. 15043 Los Gatos Boulevard. Conditional Use Permit Application U-11-018. Requesting
approval to legalize a nonconforming bar (The Boulevard Tavern) on property zoned CH.
APN 424-07-086. PROPERTY OWNER/APPLICANT: Robert & Georgianna Spinazze.
PLANNER: Jennifer Savage.
Chair Marico Sayoc opened the public hearing.
Associate Planner Jennifer Savage presented the staff report.
Commissioner John Bourgeois
Asked about the periodic review for compatibility in relation to the North Forty Specific
Plan.
Associate Planner Jennifer Savage
Commented that they would review the CUP before the Specific Plan is adopted to weigh
against any plan that is adopted. The condition was meant to determine if use is not
compatible with future development if the Specific Plan is adopted.
Town Attorney Judith Propp
Commented that the Town wanted to allow the owners adequate time to be part of the
discussion rather than receive notice after the fact.
Commissioner Thomas O'Donnell
Asked about the language regarding legalizing a nonconforming bar.
Associate Jennifer Savage
Commented that the action is to approve a CUP.
Town Attorney Judith Propp
Commented that when granting a CUP it is considered a vested right. Staff has had lengthy
discussions with the property owner and the applicant about the potential change in
circumstance. Staff is recommending this as a use permit with conditions that it not
Planning Commission Minutes Page 10 January 25, 2012
necessarily continue if there is a rezoning in the area. It seemed unrealistic to deny a CUP
when there is an uncertainty of the future improvements.
Commissioner Thomas O’Donnell
Commented he would like the ability to give notice that the CUP will expire on as broad a
basis as possible rather than pin it to the North Forty.
Town Attorney Judith Propp
Commented that staff can recommend some language that would address the Commission’s
concerns.
Georgianna Spinazze, Property Owner, gave a presentation on the proposed project.
Commissioner John Bourgeois
Asked when the bar was established.
Georgianna Spinazze
Commented that the bar was established in the 1930s.
Commissioner Charles Erekson
Asked about the hours for deliveries and for trash collection.
Mike Ellenburg, Applicant
Commented that deliveries usually happen between 10:00 a.m. and 3:00 p.m. but they will
comply with any Town requirements.
Commented that trash is picked up on Friday morning around 7:00-8:00 a.m. and never in the
evening.
Bret Moore
Commented he lives on Los Gatos-Almaden Road and his family business is on Los Gatos
Boulevard.
Commented that Mr. Ellenburg has held several fund raisers at The Boulevard Tavern for
families in need.
Commented that Los Gatos Boulevard has become less of a destination and business should
be encouraged to stay there.
Strongly recommended granting of the CUP.
Amy Despars
Commented that she lives on Longridge Road and is representing uptown Los Gatos. They
are looking for restaurants, entertainment and retail on that side of Town. She feels that
uptown Los Gatos is getting the shaft.
Asked the Commission to support the CUP.
Commissioner Thomas O'Donnell
Asked why she feels that way.
Planning Commission Minutes Page 11 January 25, 2012
Amy Despars
Commented that she feels that way because of the number of lots that remain vacant along
with the retail and restaurants that have been denied. They want businesses, retail, and
restaurants in that area of town.
Commented that the McHugh site was a garbage dump for two years.
Commissioner Joanne Talesfore
Commented that Baja Fresh just opened up at the Trader Joe's New Town Center.
Amy Despars
Asked for a place like Double D’s, Sonoma Chicken Coop or Aqui’s on their side of town
where families can walk to.
Mike Ellenburg
Thanked the Planning Department and the Town for considering the CUP and showed a copy
of a Notice of Intent to Engage in the Sale of Alcoholic Beverages from 1955.
Commented that the property owners are willing to work with the Town.
Commented that the bar is an important part of that side of town.
Commissioner Margaret Smith
Commented that she hopes that Mr. Ellenburg and the neighbors stay involved in the North
Forty Specific Plan process.
Chair Marico Sayoc
Commented that there is nothing that says that the North Forty (Specific Plan) means that
they will lose their business. It is important to hear feedback to know what is important for
that side of the community.
Chair Marico Sayoc closed the public input portion of the hearing and returned to the
Commission for deliberations.
Commissioner Thomas O’Donnell
Commented that he is impressed with the owners of the business and the property. The
reason for dealing with this is because of the people involved; however, a CUP runs with the
land and they need to be careful for future owners. The applicant should be given a
reasonable opportunity should it be necessary to terminate a CUP.
Commissioner Charles Erekson
Asked if a CUP could be terminated with one year’s notice.
Town Attorney Judith Propp
Commented that this application is unique and there is currently a pending application for
rezoning that entire area. Staff is bringing options to the Commission.
Commented that on any CUPs where there is a concern, there are conditions that allow for
periodic review under certain circumstances.
Planning Commission Minutes Page 12 January 25, 2012
Vice Chair Marcia Jensen
Commented that 20 years ago she sat on the General Plan Committee and she was writing a
Specific Plan for the North Forty so it does not appear that there will be a rezoning any time
soon.
Commented that Condition #4 gives the Planning Commission the discretion on whether or
not to hold a public hearing following the two-year review and she is fine with it.
Commissioner Thomas O’Donnell
Commented that the Commission needs to be careful in its comments because Grosvenor is
spending a lot of money and time to develop that property.
Vice Chair Marcia Jensen
Commented that her comments have nothing to do with Grosvenor. She is just relaying her
experience over the last 20 years in working on the North Forty.
Commissioner John Bourgeois
Commented that a decision is being made tonight on whether it is a compatible land use and
does not see any value in reviewing it every two years if nothing changes.
Commissioner Thomas O’Donnell
Commented that rather than a two-year review, there could be a review whenever staff
believes the facts have changed.
Commissioner Charles Erekson
Commented that he does not see a need to put a specific time for review. He believes that the
Town would need to have findings for a basis to terminate a CUP.
Chair Marico Sayoc
Commented that there appears to be a consensus that the Commission would like the current
business to continue to operate until there is a specific zone change in that area.
Motion by Vice Chair Marcia Jensen to approve Conditional Use Permit Application U-11-
018 subject to the conditions as noted in Exhibit 3 of staff report dated January 25, 2012, with
the exception of Condition #4 with the alternative of upon or within one year of adoption of a
North Forty Specific Plan that the Town may review this CUP. The required findings were made
as noted in Exhibit 2 of staff report dated January 25, 2012.
Planning Manager Sandy Baily
Commented that this will be a recommendation to Town Council.
Vice Chair Marcia Jensen
Corrected that her motion is to recommend approval to Town Council.
Planning Commission Minutes Page 13 January 25, 2012
Commissioner John Bourgeois
Asked for clarification of the motion if it included a review of the CUP upon adoption of the
North Forty Specific Plan or at staff's discretion if there are any changes that would affect the
use.
Vice Chair Marcia Jensen
Commented that she purposely excluded that and if that means the death of her motion, so be
it.
Chair Marico Sayoc
Commented that the motion dies for lack of a second.
Commissioner Charles Erekson
Asked for clarification of Condition #7 regarding the Live Entertainment Policy that is not
yet adopted.
Commissioner Thomas O’Donnell
Commented that if the language says comply and the ordinance sa ys you are grandfathered,
you comply by being grandfathered.
Motion by Commissioner Thomas O'Donnell and seconded by Commissioner Charles
Erekson to recommend approval of Conditional Use Permit Application U-11-018 to the Town
Council subject to the conditions as noted in Exhibit 3 of staff report dated January 25, 2012,
except for Condition #4 as written. The condition would be changed to read that there would not
be an automatic review unless staff upon its determination that zoning in the immediate area or
the North Forty is adopted and such change is inconsistent with the use under this CUP. If that
finding is made, the applicant would be given not less than one-year's notice of cessation and
termination of the CUP. The required findings were made as noted in Exhibit 2 of staff report
dated January 25, 2012.
Commissioner Charles Erekson
Asked to change Condition #9 to limit deliveries between 9:00 a.m. and 5:00 p.m. and
Condition #10 to limit trash recycling from 9:00 a.m. to 5:00 p.m.
Commissioner Thomas O'Donnell
Agreed to the amendment to the motion.
Motion carried 7-0.
Planning Manager Sandy Baily
Noted that this item is tentatively scheduled for Town Council on February 21, 2012.
CONTINUED OTHER BUSINESS -- NONE
Planning Commission Minutes Page 14 January 25, 2012
NEW OTHER BUSINESS
4. Election of Chair and Vice Chair
a. Chair Marico Sayoc commented that Vice Chair Jensen has a unique perspective in
that she has worked with the General Plan as well as a previous Planning
Commission. She also thanked her for her valuable help over the past year.
Motion by Chair Marico Sayoc and seconded by Commissioner John Bourgeois to elect Vice
Chair Jensen as Chair for 2012.
Motion carried 7-0.
Motion by Vice Chair Marcia Jensen and seconded by Commissioner Joanne Talesfore to
elect Commissioner Erekson as Vice Chair for 2012.
Motion carried 7-0.
b. Vice Chair Jensen and Commissioner Erekson thanked Chair Sayoc for her
exceptional job as Chair during this past year.
5. Report from Director of Community Development
a. Planning Manager Sandy Baily reported that on January 17, the Town Council
introduced the ordinance for 135 Riviera Terrace to approve the housing
development.
6. Commission Matters -- None
ADJOURNMENT
Meeting was adjourned at 9:26 p.m.
TOWN OF LOS GATOS PLANNING COMMISSION
Wednesday, January 25, 2012
___________________________________________
Marico Sayoc, Chair
APPROVED AS TO FORM AND ATTEST:
_____________________________
Sandy L. Baily
Planning Manager