Attachment 2 - September 8, 2021 Planning Commission Verbatim MinutesLOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
Kathryn Janoff, Chair
Kendra Burch, Vice Chair
Jeffrey Barnett
Melanie Hanssen
Jeffrey Suzuki
Reza Tavana
Emily Thomas
Town Manager: Laurel Prevetti
Community Development
Director:
Joel Paulson
Town Attorney: Robert Schultz
Transcribed by: Vicki L. Blandin
(619) 541-3405
ATTACHMENT 2
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
P R O C E E D I N G S:
CHAIR JANOFF: Now we’ll move on to the public
hearing, Agenda Item 2, which is to consider an appeal of a
Development Review Committee decision approving a lot line
adjustment between three adjacent lots on property zoned R-
1:20 located at 17200 Los Robles Way. APNs are 532-36-075,
-076, and -077. Lot Line Adjustment Application M-20-012.
Property owner is Daran Goodsell, Trustee and Mark Von
Kaenel. Applicant, Tony Jeans; and Appellants Alison and
David Steer, Terry and Bob Rinehart, Nancy and Jim Neipp,
Gary and Michelle Gysin, and Gianfranco and Eileen De Feo;
and project planner is Ryan Safty.
Are there any disclosures related to this item? I
don’t see any hands raised. I understand, Mr. Safty, you’ll
be giving the Staff Report tonight.
RYAN SAFTY: Thank you. Good evening, Planning
Commissioners. Before you is an appeal of a Development
Review Committee decision approving a lot line adjustment
between three existing legal parcels at 17200 Los Robles
Way zoned R-1:20.
No construction is proposed at this time. The
future driveway and building footprints shown in the
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
project plans are conceptual and are not being reviewed
with the Lot Line Adjustment Application. A future
Architecture and Site Application will be required for the
construction and grading work.
There is an existing residence on Parcel 1, which
would remain. Parcels 2 and 3 are vacant. Parcels 1 and 3
take access off Los Robles Way and Parcel 2 is landlocked.
There are four existing nonconformities
associated with the three parcels, including setback of the
existing residence, minimum lot size of Parcel 2, and
minimum frontage requirements for both Parcels 1 and 2.
The proposed lot line adjustment would have
Parcels 2 and 3 take access off of Worcester Lane while
Parcel 1 would continue to access off of Los Robles Way.
All existing nonconformities would be resolved except that
Parcel 1 frontage on Los Robles Way will continue to be
nonconforming.
The DRC approval was appealed for a variety of
reasons, which are summarized in the Staff Report. The
whole 90-page appeal packet is included as Exhibit 11 and
the Applicant has responded to the Appellant’s concerns,
included as Exhibit 12.
Staff recommends that the Planning Commission
deny the appeal, uphold the decision of the Development
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Review Committee, and approve the Lot Line Adjustment
Application.
A Desk Item was prepared and distributed today
amending the Parks and Public Works Conditions of Approval
to insure the consent from all holders of deeds of trust on
the parcels I provided prior to recordation of the map.
This concludes Staff’s presentation. Planning
Staff, Parks and Public Works Staff, and the Town Attorney
are available for questions. Thank you.
CHAIR JANOFF: All right, thank you for your
report, Mr. Safty. Do any commissioners have questions for
Mr. Safty or other members of Staff at this time?
Commissioner Hanssen.
COMMISSIONER HANSSEN: I have two questions if I
may, Chair?
My first one is one of the things we’re asked to
look at is the compliance with the provisions of the
General Plan, so I’m asking Staff what aspects of the
General Plan should we be considering relative to this
specific application? And then I have a second question.
JOEL PAULSON: I can jump in. Most projects you
have to consider the General Plan. With this becoming more
conforming for the most part except for, as Mr. Safty
mentioned, the one nonconforming frontage that’s going to
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
continue, they’ll continue to have a nonconforming frontage
for one of the lots.
Right now this is simply putting parcel lines on
the paper, so there’s no development. That development
would be in line with provisions in the General Plan such
as looking for ensuring that we’re minimizing grading and
tree removal and things like that, so this project really
doesn’t affect any of that, but ultimately the future
projects as Architecture and Site Applications and/or
associated Grading Permits come forward, then we’d be
looking at specific items related to development.
COMMISSIONER HANSSEN: Just to summarize what I
thought I heard is that the real issue that’s on the table
today is a zoning code, not a general plan, and that when
the Architecture and Site Application comes in, then we’ll
be considering aspects of the General Plan, is that
correct?
JOEL PAULSON: That’s correct.
COMMISSIONER HANSSEN: Okay. So, my follow up
question is on the findings in Exhibit 2, and it’s about
this Subdivision Map Application and it talks about in C
and D that the site is physically suitable for the type of
development and that the site is physically suitable for
the proposed density of developments, so my question is
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
since there is no Architecture and Site Application how do
we weigh that into this decision that is about the lot line
adjustment without considering the broader implications of
this, which is that there will be development at least on
Lot 1, if not on the others?
JOEL PAULSON: Those are related to the
Subdivision Map Act findings. This is technically a
Subdivision Application for the Town, but they’re not
creating any new lots, so I wouldn’t take that very much
into consideration. We do, as Mr. Safty mentioned, ask them
to put conceptual access and conceptual building areas on
there, but ultimately all of those details will be dealt
with moving forward.
Again, this is a little unique; it’s not an
actual subdivision. If this was one parcel and they were
subdividing into three lots, then I think a lot of that
stuff would come into play similarly with the General Plan,
because it is simply lot line adjustment for three existing
parcels that were legalized and certified with a
Certificate of Compliance.
COMMISSIONER HANSSEN: So, what you’re saying is
that we shouldn’t give a lot of weight to the Subdivision
Application findings relative to this hearing?
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
JOEL PAULSON: From Staff’s perspective none of
those findings for denial can be made, so we look at them
as whether they’re applicable or not. None of those from
Staff’s perspective can be made.
COMMISSIONER HANSSEN: Okay, thank you.
CHAIR JANOFF: Other questions for Staff? I do
have one.
Staff, I’d like to ask you to confirm—perhaps
this is for the Town Attorney—but I wanted to draw
attention to the last sentence of the Staff Report, page 8.
This is the Town Attorney’s Office comment and I quote from
that. It says, “The Town must confine its approval of a lot
line adjustment on its conformance to the local General
Plan, any Specific Plan, any applicable coastal plan, and
zoning and building ordinances resulting from the lot line
adjustment.”
So this is a pretty narrow scope for the Planning
Commission. Could the Staff or the Town Attorney speak a
moment to the narrowness of our task tonight?
ROBERT SCHULTZ: I think exactly what you said is
exactly your task, to look how the lot line adjustment will
comply with our General Plan and zoning. The reason for
this statement and the law that cited it is that the
Appellants are trying to state that you can’t do a lot line
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
adjustment if it currently is nonconforming to make it
conforming, and that simply isn’t how state law in cases
are. You don’t look at what currently exists, it’s what is
it going to be when the lot line is completed and how does
that comply with your General Plan and ordinances. So,
that’s why that statement and that law were explained to
you. It’s they’re trying to say because it currently these
lots are nonconforming you can’t change them and that’s
simply not what the law states.
CHAIR JANOFF: So, that clarifies that. Any other
questions for Staff? I don’t see any hands raised.
Now we will open the public hearing, and we’ll
start with the Appellants who will receive five minutes to
address the Commission. There are a number of parties
speaking on behalf of the Appellants, so we’re looking for
primary speakers to summarize your appeal.
JOEL PAULSON: Thank you, Chair. The Appellant,
Ms. Steer, will be allowed to talk. And again, Ms. Steer,
you and your group have up to five minutes.
ALISON STEER: Okay, thank you. Just a minute, I’m
going to start my clock.
All right, so good evening and thank you very
much for your time this evening. I’m speaking on behalf of
the Appellants.
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
First of all I’d just like to speak to that
discussion you just had regarding the Subdivision Map Act.
The Town Attorney cites the Subdivision Map Act Section
66412, shown here, but I respectfully contest this
interpretation of the government code to be overly broad.
The Subdivision Map Act is silent on when lot line
adjustment procedures can be used, whereas the ordinance is
explicit that it cannot be used under these circumstances
and therefore takes precedence.
The Subdivision Map Act in fact allows
jurisdictions to decide how they regulate lot line
adjustment procedure and loosely provides the minimum
requirements that need to be met, so I would just contest
exactly what was just said prior to us being able to speak.
I would encourage the Planning Commission to read this
Subdivision Map Act section and draw its own conclusions.
Again, if you read it really carefully the
Subdivision Map Act states that, “If the lot line
adjustment is approved by the local agency, then the local
agency shall limit its review to whether or not the parcels
resulting from the lot line adjustment will conform to the
local general plan and that no conditions shall be
imposed.” Again, I encourage you all to read it carefully
for your own conclusion before you make a decision.
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Taking a non-buildable site and making it
buildable is not allowed in Los Gatos, and I’ve found
examples of other counties that do the same. I also have
found this with the land use (inaudible).
We contend that this ordinance is not in any way
inconsistent with the Subdivision Map Act and is in fact
enforceable. The Town’s Zoning Ordinance 2910-070 exists
specifically to prevent developers and property owners from
taking a non-buildable parcel and turning it into a
buildable parcel using lot line adjustment procedure. The
Town ordinance includes the requirement of a Certificate of
Compliance but also lays out seven other requirements
before lot line adjustment procedure can be used.
In Napa County, for example, they also reference
compliance with the section of the Subdivision Map Act, but
they specifically state that a non-buildable parcel will
not be made buildable by lot line adjustment procedure and
then go into what they determine as a building site, which
it has to be free of geotechnical hazards and also has
reasonable access, which this land does not; it’s a
landlocked parcel.
And the same goes for Santa Cruz County where it
states that the lot must be buildable before a lot line
adjustment can be approved. A lot that is not buildable for
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
whatever reason, for example, lack of access or an unstable
slope, it cannot be make buildable by means of a lot line
adjustment. Essentially Santa Cruz says that the lot line
adjustment between parcels cannot result in more buildable
parcels than before, which is what this developer is trying
to do. We only have two buildable parcels on this lot and
you are turning it into three buildable parcels.
We have provided incontestable evidence to the
signed Harding Avenue quit claim deeds that no legal access
exists today for APN 532-36-077 and therefore this land
fails to meet the criteria and the Town’s Zoning Ordinance
for a lawful parcel of land. This alone is sufficient
grounds for the Planning Commission to grant this appeal
and deny the lot line adjustment.
Staff has made a recommendation to deny our
appeal, but for the Town to blatantly disregard their own
Town ordinance would set the stage for legal challenges and
set a precedent for future illegal use of the lot line
adjustment procedure to establish a conforming parcel. We
are specifically focusing on Bullet 5, which requires there
to be legal and adequate access of vehicles and safety
equipment, while I would also call into question Bullet 4,
the Slope Stability Standards. Here this lot has slopes in
excess of 30-percent. I would ask why the Town has not
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
required the developer to provide evidence of slope
stability on this hillside before utilizing the lot line
adjustment procedure, and why would this ordinance even
exist?
The developer has contested that it would not in
fact be required to build within the LRDA but the Los Gatos
Hillside Development Standards says otherwise. The Hillside
Standard also applies to R-1 zones with hillside
sensitivity. There is no suitable place (inaudible)
emergency vehicle turnaround on this parcel with the
consideration to the LRDA, and we have already proved there
is no legal access.
So, hypothetically if a right-of-way existed the
driveway to exit this property would be greater than 150
feet and would need an over 70-foot turnaround implemented,
not exceeding 5-percent grade in any one direction. Where
and how would this be implemented on the existing parcel?
You must clearly show you meet all eight criteria in the
Town ordinance before you can use LRDA procedure.
Next slide please, which I’m probably not going
to get to because of the time limit, but thank you very
much for your time tonight and I hope that your decision
was already made before you came that you would take
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
careful consideration of the interpretation of the
Subdivision Map Act section that was referenced earlier.
CHAIR JANOFF: All right, thank you for your
presentation, and I have a question for the Town Attorney
at this time.
Based on the presentation by Ms. Steer can you
please comment on whether the points she’s asking us to
reconsider are valid or not? We do trust our Town Attorney
also, and so for the Planning Commission to do a legal
interpretation of material just presented, we’ll call on
you to guide us.
ROBERT SCHULTZ: I’ve given my legal opinion in
that the changes, the lot merge language, is inapplicable
and unenforceable by the Subdivision Map Act and we’ll show
the lot line adjustment language that she quotes. If you
read the next sentence it says exactly your narrow scope is
to look at the lots when they’re completed and not as they
currently exist.
CHAIR JANOFF: And so just to clarify, is it fair
to say that the establishing criteria that this is
developable property is at this time theoretical in the
sense that we don’t have plans for development, and should
the development plans come forward and it’s determined by
engineering review or experts that it is not a buildable
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
site, that it is unstable, then it would practically not be
possible to build, is that correct? Question for Staff.
ROBERT SCHULTZ: It is possible at the end of the
day to find out there’s no buildable space. We’ve had many
projects where there might be slope stability or grading
issues and other things where the building pad is very
limited. I’m thinking of Bella Vista, how many changes we
went through that to limit the development of that that
went through a lot line and certification and so we could
have that same situation. When you’re said and done it
could be a very limited building envelope at the end of the
day, but that’s what will occur during the Architecture and
Site review.
CHAIR JANOFF: All right. Thank you for that
clarification, and again just to confirm, that discussion
about buildability is not really the purview of the
Planning Commission’s task this evening, is that correct?
ROBERT SCHULTZ: That’s correct.
CHAIR JANOFF: All right, thank you. Any other
Commissioners have questions for the speaker or for Staff?
Commissioner Suzuki.
COMMISSIONER SUZUKI: Because this is very
important I’d like to ask the Town Attorney to repeat his
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
opinion on the presentation. I’m just taking pretty close
notes right now. Specifically on what is disputed.
ROBERT SCHULTZ: The Appellant’s argument is that
our ordinance overrules the Subdivision Map Act and the
case law that has determined how mergers occur—but I don’t
hear much on mergers so I think maybe they’ve dropped that
argument and now we’re concentrating on the lot line
adjustment—and the Subdivision Map Act is very clear in
what your scope is and it’s limited to the effect of after
the lot line is completed.
I’ve been doing this 32 years and the argument
has never been that if there are unbuildable lots you
cannot do a lot line adjustment, and I’m trying to look up
Napa County’s to see where they have, but I do know that’s
a county, there might be different rules with counties, but
I have not found any city that has the same language that
we have that requires you to apply the lot line beforehand,
and all I can assume is the ordinance is very old, around
the time the Subdivision Map Act was applied, and we do
need to go back and change the merger language and the lot
line language so it confirms the Subdivision Map Act. The
Subdivision Map Act language is very clear that you apply
what the lots will be afterwards and not before.
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CHAIR JANOFF: And just to clarify, the
Subdivision Map Act takes precedent over our local
ordinance?
JOEL PAULSON: Yes.
ROBERT SCHULTZ: State and case law will always
take precedence over (inaudible).
CHAIR JANOFF: All right, thank you. Any other
questions at this time? Commissioner Barnett.
COMMISSIONER BARNETT: For Mr. Schultz. Is it
correct that the lot line adjustment if approved would
obviate the need for a subdivision map?
ROBERT SCHULTZ: Yes, it does. I mean, you don’t
need a subdivision map because they already have three
legal lots there, so they’re just doing a lot line
adjustment.
COMMISSIONER BARNETT: Thank you.
CHAIR JANOFF: Now we will move on and give the
Applicant up to five minutes to address the Commission.
JOEL PAULSON: Thank you, Chair. Looks like the
Applicant, Mr. Jeans, we’ll now allow him to speak and you
have up to five minutes.
TONY JEANS: Yes, could you put my first slide up
so that we can start when that is up? Thank you.
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
All right, well, as we’ve heard these are already
three legal lots recognized by the Town of Los Gatos. A
Certificate of Compliance has been recorded.
Parcels 1 and 2 can be accessed from Los Robles
Way but also have access from Worcester Lane; it’s just
never been used. Parcel 2 was created with Harding access
and never used; it’s now accessed from Los Robles Way.
Parcel 1 and Parcel 2 have common ownership and the owner
can decide how to access that and where to put the
emergency turnaround.
A portion of Parcel 2 is buildable. The LRDA, one
main configuration there is just showing that there are
trees, so we tried to avoid trees when showing the LRDA,
but that it is buildable.
So this is the current configuration. This is how
we want it to be. You can see that it’s a much more
appropriate use of the space. Parcel 1 would continue to
have the house on it and it would no longer have
nonconforming setbacks. Parcel 2 and Parcel 3 would be
accessed from Worcester Lane and the current dead end of
Worcester Lane, which terminates at a fence, would be
improved by a cul de sac, again not part of this
application but when Parcels 2 and 3 would be developed
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
this would be the configuration that would provide
conforming access to Parcel 2 and Parcel 3.
So if you look at what the land is all about you
can see the three parcels, 1, 2, and 3 and you can see how
close the property is to the lot line between 3 and 1,
which is why we want to reconfigure the lot lines. Also,
you can see a good amount of space that is available
reasonably for building without dramatically impacting
trees. There’s an area on Parcel 1 where the house is.
There’s a further area on Parcel 1 towards Worcester Lane,
and an area on Parcel 3, which is fully accessible from
Worcester Lane and could be built on.
So if you look at how the configurations move on
the next slide you can see that Parcel 1 retains better use
of the land for the existing house, Parcel 3 would have
good access for a buildable area right in the center, and
Parcel 2 would have a very nice almost one-acre area. Even
though it’s R-1:20 and the adjacent areas R-1:8 it would
have plenty of room to get separation from any existing
homes on the adjacent lots, which has been one of the
primary concerns that people have had. Using access as a
means to shoot this down really just belies the fact that
what they don’t want is a couple of additional houses next
to them.
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
If you have questions about this the details are
on the plans and I have put rebuttals in for each of the
points that have been brought up by the Appellant. I think
that this is a reasonable reconfiguration of the three lots
which as has been determined are currently legal, and the
Subdivision Map Act and the Town of Los Gatos rules really
don’t give you a lot of room to disallow this
configuration, so I ask you to ratify the unanimous
decision of the approval of the Development Review
Committee, which found no reasons, and deny the appeal.
Thank you very much.
CHAIR JANOFF: All right, thank you, Mr. Jeans.
Do members of the Commission have any questions for the
Applicant? Commissioner Barnett.
COMMISSIONER BARNETT: Although it may not be
technically before us, can you clarify whether you’ve had
communications with the Fire Department concerning the
turnaround feasibility?
TONY JEANS: Yes, we have, and the Fire
Department said either with or without the cul de sac it
would be workable as long as we were to put turnarounds on
the sites themselves, Parcel 2 and Parcel 3. Parcel 1, we
have not had a discussion as to how we would improve that
to give better access and turnaround at the end of Los
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Robles Way, but when it is only one site involved we would
expect to put either a cul de sac at the end of the Los
Gatos Way extension or to put a fire truck turnaround there
in any event.
COMMISSIONER BARNETT: Good. Thank you for that.
CHAIR JANOFF: I do have a question for the
Applicant. Mr. Jeans, in one of your communications in our
report you… This won’t be verbatim, but there was a comment
regarding whether or not you would be allowed to build
strictly within the LRDA or not strictly within the LRDA
and your comment was it’s guidance and it’s not something
that you’re expected to hold fast to.
My question for you is this: Are you aware of the
recent decisions by this planning commission and previous
planning commissions and the trend of the Planning
Commission to restrict build within the LRDA and not allow
any build outside the LRDA?
TONY JEAN: Yes, I am, and I think that is
definitely the right way to go. The building sites that
have been shown on the map that accompanied this
application show that it is entirely reasonable to
configure the house, the turnaround, the driveway, all in
entirely the appropriate LRDA area.
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CHAIR JANOFF: Thank you for that. I just wanted
to make sure that you understood what the Planning
Commission has been deciding recently. This is not germane
to tonight’s conversation, but it would be germane should
plans come back to the Planning Commission.
TONY JEAN: I think it absolutely should be and I
am in favor of that.
CHAIR JANOFF: Great. All right, thank you. Do we
have questions? I don’t see any hands raised from the
Commissioners, therefore we will move on to the public
comments. Members of the public may choose to state your
name and/or address or speak anonymously, however please
understand this meeting is being recorded for the public
record. We ask that you limit your comments to three
minutes. Director Paulson, do we have any members of the
public who would like to speak on this item?
JOEL PAULSON: Thank you, Chair Janoff. I do not
see any members of the public with their hand raised at
this point. Let’s give it a second here. Seeing none,
Chair.
CHAIR JANOFF: All right, thank you. We will
close the loop back. We now give the Applicant and then the
Appellant each three minutes to provide concluding
comments. First up would be the Applicant. Mr. Jeans.
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
JOEL PAULSON: Mr. Jeans, I’ve allowed you to
speak. If other members from your team want to speak,
that’s perfectly fine as well.
TONY JEANS: Sorry, is it my opportunity to
speak? Thank you.
In the absence of any comment from the public
other than the original Appellant I have nothing further to
add other than to say that I think that the direction that
I was given and that I just had to comply with the Town
zoning and rules and Subdivision Map Act are applicable
here, and one of the things that we have ensured is that we
do not a have as many of the nonconformities that exist now
in the new configuration, and I think that you will agree
that the planned proposed configuration is substantially
better than the one that it is now, so I ask you to approve
it. Thank you.
CHAIR JANOFF: All right, thank you for that wrap
up. And now at this time we’ll ask the Appellant if the
Appellant has any further comments to add to close this
item?
JOEL PAULSON: Thank you, give me one second and
I will give the Appellant back the ability to speak. Ms.
Steer?
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ALISON STEER: Thank you. At the beginning of
this meeting Mr. Paulson mentioned this is a subdivision.
I’d like to question why we’re using the lot line
adjustment procedure for the changes that are being made
today?
I just really want to reiterate that the
Subdivision Map Act in fact allows jurisdictions to decide
how they regulate the lot line adjustment procedure. We’re
not talking about buildability, we haven’t seen what
they’re going to build, but there is Bullet 5 that says you
need legal access and a turnaround and that is in the Town
Ordinance. It says that you have to have a parcel…parcel
(inaudible) as we call it does not have this today and
that’s written in the ordinance.
What we’re asking for is for you to basically
deny this lot line adjustment and grant our appeal, but
also ask that you maintain the existing primary access for
these parcels from Los Robles Way. Quoting from the
Hillside Standard this would, “avoid unnecessary scaring
and destabilization of the hillside through grading and
removal of trees,” because if you’ve been to the property
you’ve seen what it looks like at the bottom of (inaudible)
Worcester Lane, and would, “assure a preservation of the
natural scenic character of the Town.”
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
In addition, this would ensure that the two
remaining buildable parcels, because there are only two
buildable parcels on this property, share a driveway and
minimize the impervious surface, because we have had issues
with flooding from this hillside, we’ve had issues with
landslide; it’s falling into people’s properties. We would
like to keep the property access from the top of Los Robles
Way the way it was originally intended.
Again, the Subdivision Map Act is very loosely
worded. Actually, when you read it it’s only defining what
would happen after the jurisdiction agrees to the Lot Line
Application, and the Lot Line Application does not meet the
requirements in the Town ordinance. I respectfully disagree
with the Town Attorney on this. I would ask to see if there
are any legal things that he can cite of court cases where
people have been able to overthrow lot line adjustment
using the Subdivision Map Act section that was specified
here.
You know, we know that Tony Jeans is talking
about these parcels being legal, but they’re only legal in
terms of the Certificate of Compliance and we know that
that is often issued on interior parcels that lack legal
means of access and can’t be built upon under existing
zoning codes. So yeah, unless you want to take the
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ordinance off the website and tell us what other ordinances
aren’t actually defendable in court, then I think this is a
valid ordinance.
CHAIR JANOFF: Thank you for your comments. Do
any Commissioners have questions for Ms. Steer at this
point? I do have one.
Ms. Steer, the Town Attorney has advised us that
state law takes precedence over local ordinances in this
instance. Do you still assert that we should be following
the ordinance contrary to state law? And that’s just a
simple yes or no question, please.
ALISON STEER: Yes, because the state law is very
loose in its requirements. It’s actually giving
jurisdiction to the local agency. There’s nothing in there
specific to how they’re to regulate the lot line adjustment
procedure.
CHAIR JANOFF: All right, thank you for your
answer. Any other questions from Commissioners? I don’t see
hands raised, so at this time I will now close the public
hearing on this item and ask if the Commissioners have
questions of Staff, wish to comment on the application, or
introduce a motion? Commissioner Hanssen.
COMMISSIONER HANSSEN: I have a question for
staff and then a comment.
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
After listening to all of this here’s what’s
troubling me. We have these findings in front of us in
Exhibit 2 and the findings are primarily in two areas: it’s
CEQA and the subdivision application. And if I go back to
what was said earlier by Staff and the Town Attorney we’re
basically not to consider any of the actual findings for
denial in the Subdivision Map Application because they’re
not relevant, but then we don’t have anything else to
consider in terms of making findings.
And if you just consider the worthwhileness of
the lot line adjustment in terms of making the property
more usable and more buildable, that’s very clear, but
that’s not in our findings.
And so I remain troubled. I understand that state
law trumps local law, but I can look at several of the
findings in the Subdivision Map Application, findings that
we have in Exhibit 2, and say that they don’t apply to this
project, but we’re not supposed to regard those.
So, I’m just wondering if Staff can tell me how
to sort through what we have to finding findings for versus
what I see in front of me?
JOEL PAULSON: So again, this is a Subdivision
Application, and so what you look at is whether it’s these
findings or we have other Town Code findings that you have
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
to make on a regular basis, and sometimes some of them
aren’t applicable. We still include them, or we say it’s
not applicable, and so maybe that would have been clear.
This one is a little bit different in that it’s
in the reverse. Typically you make these findings to deny a
Subdivision Application but the reverse actually is what
we’re looking to do here, which is make affirmative
findings. I think that was based on a case from not too
long ago regarding an actual Subdivision Application, not
in the Town but somewhere in the state.
I’m not sure if the Town Attorney has any
additional comments. From Staff’s standpoint we have three
legal lots and we have done a Certificate of Compliance
creating legal lots. They’re now looking to modify those
lots, the configuration of them, through a lot line
adjustment, and that’s the path that we would go forward
with and that’s why DRC considered it and approved it. I’m
trying to remember the last lot line adjustment that was
appealed but this is how this has been done for the last 21
years I’ve been here. I’m not sure if the Town Attorney has
any additional comments on that.
ROBERT SCHULTZ: I mean, my comment just goes
back to what the Subdivision Map Act says about lot line
adjustments, and even though the Appellant wants to say
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
that you have local authority under our local ordinances,
and it’s very clear, the language in it: “A local agency
shall limit,”—it’s a limit—“it’s review and approval to a
determination,”—so you’re going to make a determination—“of
whether or not the parcel’s resulting from the lot line
adjustment.”
So you’re limited to your review and approval and
determination of whether the resulting lot line adjustment
will conform to your General Plan and Specific Plan—there
isn’t in this case, we’re not in a coastal plan—and zoning
or building ordinances. So you’re limited to your review of
when the lots are completed. Not what’s there and whether
they’re buildable or not buildable, but when they’re
completed, these three lots, and are there any General Plan
or Zoning Ordinance that it’s in conflict with? And that’s
for your review.
COMMISSIONER HANSSEN: I think I understand it.
So, then if the Chair would allow me I would like to make a
comment.
My comment is this, that I totally understand
what is being said by Staff and the Town Attorney, and I
also understand what the Appellant is saying, and so aside
from the very narrow legal interpretation of this I feel
like the steps of this thing were all wrong.
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
It’s already been decided that there are three
lots, so subdividing a single parcel into three is already
a done deal, and so now we’re asking to reconfigure those
so that they appear more like buildable lots, which I
understand, and then we’re going to be forced into this
situation later on where we have property that’s in the
very-high Wildfire Interface Zone, which is very clear in
our upcoming Draft General Plan that we don’t encourage
additional density, and so we’re going to be forcing this
situation where when we get an Architecture and Site
Application it’s going to be very difficult. It might not
be possible to get the access approved to Lots 2 and 3, but
now the lots are bigger and people will assume that they’re
buildable and then we’re going to run into Bella Vista all
over again.
So, that’s my comment. I just consider the order
to things a bit problematic and that we’re putting the cart
before the horse by making all these things to appear that
it’s more buildable and sellable, and then we have to do
the hard stuff later. So, that’s all I have to say.
CHAIR JANOFF: Just to follow up on your first
question having to do with what the findings might look
like, I actually was surprised to see that there isn’t a
finding that says we can find conformance with the General
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Plan, and it would make me feel more comfortable given the
guidance from the Town Attorney that we at least include
that as a finding should this motion go forward.
And I think because the current General Plan and
the upcoming General Plan both are asking for a residential
build, so you can argue that even though this is not the
ideal spot, this may not be where the Planning Commission
would approve a lot, in theory you’re consistent with the
General Plan because the General Plan is asking for a
residential build, so I’m comfortable with that if that
makes sense to the rest of the Commission.
CHAIR JANOFF: Mr. Suzuki, did you have your hand
up?
COMMISSIONER SUZUKI: Yes, I did.
CHAIR JANOFF: Commissioner Suzuki.
COMMISSIONER SUZUKI: I have a question for
Staff. In the Planning Commission account, from my
understanding we can only account for what the completed
lots will look like, which leads me to my question. Can we
account for a reduction in nonconformities? For example,
from like four nonconformities to the one nonconformity
that exists, or is the Commission only allowed to account
for the one existing nonconformity? In other words, can we
account for this lot line adjustment fixes a bunch of
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
31
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
nonconformities, or do we just scrap the before and we only
look at the after? We only account for the one
nonconformity at the end of the day, not the reduction in
the nonconformities? Thank you.
JOEL PAULSON: Yes, I’d offer, and then if the
Town Attorney has any additional comments.
You’re free to take in whatever information you
want to which you use to base your decision ultimately.
From Staff’s perspective as you’ve mentioned, which is
outlined in the Staff Report, we’re generally trying to
reduce as many nonconformities as possible; this reduces
three of four. We are still left with one outstanding
nonconformity but there currently exists a nonconformity
for that parcel for the frontage, and so Staff, from our
perspective, this is improving the situation.
And I would just, back to Commissioner Hanssen’s
comments earlier, I think I mentioned earlier, if this was
one lot right now and they were coming in to subdivide it
for three lots, a lot more of this stuff would come into
play. It’s really a distinction between an actual
subdivision through a parcel map versus lot line
adjustments of three existing legal parcels.
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
So, hopefully that answers your questions, Mr.
Suzuki, and I’m not sure if Mr. Schultz had anything
additional on that one.
CHAIR JANOFF: I see Mr. Schultz shaking his head
no. Commissioner Thomas, did I see your hand up?
COMMISSIONER THOMAS: Yes, I was trying to just
add on to what you were saying, Chair. My interpretation
maybe is that if we find that this does comply with the
General Plan that is because that is written into the
Subdivision Map Act, there’s an assumption that that is
included as one of the findings, but I also agree with you
wanting to add that as a separate finding.
CHAIR JANOFF: All right. Any other comments or
concerns? Commissioner Barnett and then Vice Chair Burch.
COMMISSIONER BARNETT: My concern is that we have
a property owner in the Town of Los Gatos who has certain
legal rights, they’ve been confirmed by the Town Attorney,
and I think it would be inappropriate to deny the property
owner with these legal rights.
CHAIR JANOFF: Thank you for that comment. Vice
Chair Burch.
VICE CHAIR BIRCH: My question is a bit more to
the what next? The Appellants did a good deal of research
and obviously they care very passionately about it. The
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
33
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Planning Commission as a rule is rather limited to very
factual findings that we have to work with and then we are
not able to look down the road and make any decisions right
now based on future conditions, although I do believe that
Commissioner Hanssen is correct. When these come before the
Planning Commission there’s going to probably be some
difficult conversations and compromises are going to need
to be made.
Depending on how we go here I would just like to
understand from the Staff, do the Appellants then have the
ability to appeal our decision and move on to Council, or
does this end with the Planning Commission?
JOEL PAULSON: Thank you for your question, Vice
Chair. Every action that the Planning Commission takes from
a decision standpoint is appealable either by the current
Appellant or by the property owner or Applicant, depending
on the situation. So yes, after the Planning Commission
takes action, whatever that might be tonight, I will be
reciting those appeal rights.
VICE CHAIR BIRCH: Chair, if I may then make a
comment?
I do very much see both sides onto this, and I do
appreciate on both sides the amount of research that has
gone into this. It’s been actually a pretty enlightening
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
packet on both the history and the different ordinances and
different ways to view this, however, based on what we are
tied to as a Planning Commission for what we base our
decisions on I feel that we cannot grant the appeal, that
we will need to stay with the DRC’s decision, but I would
be very interested in hearing what my other commissioners
think before I attempt a motion.
CHAIR JANOFF: I’ll just weight in on that. I
think it’s very clear what the limitations of the Planning
Commission are tonight. We could continue this matter to do
more research, but I’m not a lawyer, I’m not prepared to
interpret the case law; that’s what I rely on our Town
Attorney to do. So, we’ve been advised in that capacity and
I think Commissioner Barnett raised a very important point.
And again, the only thing that we are doing is
approving the change in lot lines; we’re not approving a
development. The development that was presented as
potential was a required threshold or step to take in order
to say that these lot line revisions are reasonable, so
what we get in front of us, we can’t predict what will
come, if anything, before the Planning Commission, so we
really are constrained by this one pretty straightforward
question.
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
So, unless there are further comments I’d be
looking for a motion. Vice Chair Burch.
VICE CHAIR BIRCH: I’ll make a motion, and if I
misspeak I’m sure somebody can jump in and let me know.
I make a motion to deny the appeal of a DRC
decision approving a lot line adjustment between three
adjacent lots on property zoned R-1:20 located at 17200 Los
Robles Way. I can make the findings that the project is
categorically exempt from CEQA, and I can make the findings
as required by Section 66474 of the Subdivision Map Act,
and the findings in I believe Exhibit 2.
And I do believe however, it might have been
Commissioner Janoff or Hanssen, I’m not sure, there was
something you wanted me to add with the findings about the
General Plan. Can you remind me?
CHAIR JANOFF: I was concerned that we might want
to make the consistency with our General Plan more
specific, however, Commissioner Thomas did point out that
that’s already included in Item B of the next finding, so
I’m comfortable with it being there.
COMMISSIONER BADAME: Okay, great. Then that is
my motion.
CHAIR JANOFF: And so we want to add Exhibit 13?
I think that was also part of the…
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
36
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
VICE CHAIR BIRCH: My apologies. I knew I missed
a note. Yes, I do.
CHAIR JANOFF: Do we have a second for this
motion? Commissioner Barnett.
COMMISSIONER BARNETT: I second the motion.
CHAIR JANOFF: Thank you for that. Any further
comments or discussion of the motion on the table? I don’t
see any hands raised, so I’ll call the question.
Commissioner Suzuki.
COMMISSIONER SUZUKI: Yes.
CHAIR JANOFF: Commissioner Barnett.
COMMISSIONER BARNETT: Yes.
CHAIR JANOFF: Commissioner Hanssen.
COMMISSIONER HANSSEN: Abstain.
CHAIR JANOFF: Commissioner Thomas.
COMMISSIONER THOMAS: Yes.
CHAIR JANOFF: Vice Chair Burch.
VICE CHAIR BIRCH: Yes.
CHAIR JANOFF: And I vote yes as well, so the
motion passes, I guess it’s five with one abstention.
And Director Paulson, could you please comment on
the appeal rights for this item?
JOEL PAULSON: Yes, thank you, Chair Janoff. The
decision of the Planning Commission is appealable to the
LOS GATOS PLANNING COMMISSION 9/8/2021
Item #2, 17200 Los Robles Way
37
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Town Council. The forms are available online. The appeal
must be filed within ten days and there is a fee for filing
that appeal.
CHAIR JANOFF: All right, thank you.
This Page
Intentionally
Left Blank