Staff Report.Walnut Ave 33 - Appeal
PREPARED BY: Erin Walters
Associate Planner
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney and Community Development
Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 11/16/2021 ITEM NO: 23
DATE: November 10, 2021
TO: Mayor and Town Council
FROM: Joel Paulson, Community Development Director
SUBJECT: Consider an Appeal of the Community Development Director Determination
of Demolition on Property Zoned R-1:8. Located at 33 Walnut Avenue. APN
510-41-007. Building Permit B19-0482. Property Owner/Applicant/
Appellant: Jeffrey Siegel. Project Planner: Erin Walters.
RECOMMENDATION:
Deny the appeal of the Community Development Director determination of demolition on
property zone R-1:8, located at 33 Walnut Avenue.
BACKGROUND:
The subject property is located 185 feet from the northwest corner of Walnut Avenue and
Hernadez Avenue (Attachment 1). The property has frontage on both Walnut Avenue and
Wissahickon Avenue. The property contains a pre-1941 single-family residence and a detached
garage with a second story accessory dwelling unit (ADU) above. The detached garage and ADU
are under construction and are not associated with this appeal.
On August 22, 2018 and May 15, 2019, the Historic Preservation Committee (HPC) reviewed
and approved exterior modifications to the pre-1941 structure at 33 Walnut Avenue
(Attachments 2 and 3). Per Town Code Section 29.10.020, the scope of work did not result in
demolition of the historic structure and was therefore reviewed through a ministerial building
permit.
On April 21, 2021, Building Permit B19-0482 was issued for interior and exterior modifications
to the subject structure, as approved by the HPC. The property owner, architect, civil engineer,
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BACKGROUND (continued):
and contractor submitted a signed Demolition Affidavit acknowledging their understanding of
the Town’s demolition requirements for a historic structure per Town Code (Attachment 4).
On September 16, 2021, staff was informed by the property owner that the exterior siding had
been removed from the front elevation of the house. The owner also inquired about the
requirements to replace all of the original siding material to address fire concerns. The Chief
Building Official and Planning staff confirmed in the field that more than 25 percent of the
exterior wall covering (siding) was removed from the walls facing the public street without
notification of or approval by the Community Development Department prior to removal,
resulting in an unlawful demolition per Town Code (Attachment 5). On October 7, 2021, a
Notice of Unlawful Demolition from the Community Development Director was sent to the
property owner (Attachment 6).
On October 11, 2021, the decision of the Community Development Director was appealed by
the property owner (Attachment 7). Pursuant to Town Code Section 29.20.255, any interested
person as defined in Section 29.10.020 may appeal any decision of the Planning Director
including “(4) Determination of an unlawful demolition and/or the penalty and the cost
assessment for the unlawful demolition.”
Pursuant to Town Code Section 29.20.260, the appellant must file a written notice of appeal
with the Planning Director not more than 10 days after the date of mailing of written
notification of the Planning Director's decision. The notice shall state clearly the reasons why
the appeal ought to be granted. Pursuant to Town Code Section 29.20.265, the appeal should
be heard by the Planning Commission. After discussion between the Town Attorney and the
appellant, the appellant has chosen to elevate the appeal to be heard directly by the Town
Council. Staff is not treating this circumstance as a precedent for future appeals.
DISCUSSION:
A. Project Summary
The subject property is a pre-1941 historic structure. On April 21, 2021, Building Permit
B19-0482 was issued for the construction of a new roofed porch, interior remodel and
exterior door and window modifications to the pre-1941 structure, as approved by the HPC.
During the building permit process, the Town requested a Demolition Affidavit which
requires all parties of the project to review the Town’s Demolition Code requirements
(Attachment 4). The Town Code Section 29.10.020 states that the demolition of a historic
structure means:
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DISCUSSION (continued):
(1) Removal of more than 25 percent of the wall(s) facing a public street(s) (or a street
facing elevation if the parcel is a corridor lot or is landlocked) or 50 percent of all exterior
walls; or
(2) Enclosure or alteration (i.e.: new window and/or window relocation) of more than 25
percent of the walls facing a public street (or a street facing elevation if the parcel is a
corridor lot or is landlocked) or 50 percent of the exterior walls so that they no longer
function as exterior walls; or
All remaining exterior walls must retain the existing exterior wall covering. No new
exterior wall covering shall be permitted over the existing exterior wall covering. The
following are exempt from this definition:
a. Replacement. The exterior wall covering may be removed if the covering is not
original to the structure.
b. Repair. The removal and replacement of in kind non-repairable exterior wall covering
resulting in no change to its exterior appearance or historic character if approved by the
deciding body.
c. Removal. The removal of an addition(s) that is not part of the original structure and
which has no historic significance, as determined by the Historic Preservation
Committee. Demolition shall be determined by subsections (1) and (2) above for the
original structure, where walls enclosed by additions shall be considered as exterior
walls.
All parties must sign the Demolition Affidavit confirming that they have read and
understand the Demolition Code requirements. Multiple discussions with the appellant,
project architect, and Town staff regarding the Town’s demolition thresholds for this
historic structure occurred.
The Town Code requires the Demolition Affidavit when the proposed project would result in
demolition of more than 40 percent of the existing exterior walls. Even for projects with
less than 40 percent demolition, staff requests the Demolition Affidavit be signed to ensure,
in the event additional demolition may be required beyond what is shown on the plans, all
parties understand the demolition requirements. The Town stamps a notice on the building
permit plans referencing that prior to removal of interior or exterior wall coverings to read
and review the Town’s demolition policy.
The approved Building Permit plans included a demolition plan showing that less than 25
percent of the walls facing the public street and less than 50 percent of all exterior walls
would be removed. Town Code specifies all remaining exterior walls must retain the
existing exterior wall covering. The approved building permit plans showed shear wall to be
placed on the interior walls of the front elevation in order maintain the required exterior
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DISCUSSION (continued):
wall covering (siding), so the work would not result in a demolition of a historic structure
per Town Code.
On September 16, 2021, staff was informed by the property owner that the historic siding
had been removed from the front elevation of the house. The property owner was
inquiring about replacing all of the existing siding with an alternative siding material, Hardi-
board, due to fire protection concerns. Replacement of historic siding requires review and
approval by the HPC and would result in a demolition per the Town Code.
Staff confirmed in the field that more than 25 percent of the exterior wall covering (siding)
was removed from the walls facing the public street without notifying the Planning Division
prior to removal, therefore resulting in an unlawful demolition per Town Code.
B. Community Development Director Determination of Demolition
On October 7, 2021, the Community Development Director provided a Notice of Unlawful
Demolition to the property owner stating that more than 25 percent of the existing wall
area (siding) facing a public street had been removed without notifying the Planning
Division prior to removal, resulting in an unlawful demolition per the Town Code
(Attachment 6). The notice included the following requirements:
i. Unlawful Demolition Penalty Fees
Per Town Code Section 29.10.09030 g.2.b. – If a structure was a historic residence
and does not have a Landmark Historic Preservation overlay zone, a fine shall be
equal to 10 percent of the building permit evaluation at the time of demolition, as
determined by the Planning Director. The Building Permit valuation for B19-0482 is
$78,372.80. The homeowner shall provide payment to the Town for $7,837.28
withing ninety days of receiving the Unlawful Notice of Demolition (January 5, 2022).
ii. Architecture and Site Application
Per Town Code, the property owner shall apply for an Architecture and Site
Application for the technical demolition of an existing pre-1941 single family
residence and construction of a new single-family residence. Per Town Code, double
application fees are required for work unlawfully completed, $11,202.18 x 2 =
$22,404.36. Per Town Code, the Architecture and Site application shall be reviewed
by the HPC.
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DISCUSSION (continued):
iii. Future Building and Engineering Applications associated with the Architecture and
Site Application
Per Town Code, double application fees are required for work unlawfully completed
which will be determined through the Architecture and Site Application process.
C. Appeal to Town Council
The Community Development Director Determination of Unlawful Demolition was appealed
on October 11, 2021, by the property owner, Jeffrey Siegel (Attachment 7).
The appellant has provided the following reasons, in bold, of why the appeal should be
granted. Staff’s response is provided in italics.
1. Appellant: The 25 percent rule was unknown to the appellant.
Staff Response: The appellant and appellant’s team signed the Demolition Affidavit as
part of the Building Permit submittal which references Section 29.10.20.020 of the Town
Code concerning the definition of an historic structure and the definition of demolition
and Section 29.10.09030 (f) through (I) of the Town Code concerning penalties
associated with unlawful demolition (Attachment 6). The approved building permit
plans are stamped with a reminder to read and review the Town’s Demolition policy
prior to the removal of any interior or exterior wall coverings.
2. The 25 percent rule conflicts with Historic Preservation practices.
Staff Response: Section 29.10.20.020 of the Town Code provides a definition of
demolition thresholds for historic structures.
3. Technical Demolition is an extreme overkill to a minor infraction and does not take
into account the situation context.
Staff Response: Town Code defines a threshold for demolition or “technical demolition”
for historic structures. The appellant for the subject property did not follow the
approved demolition plan or the approved shear wall plans of the approved building
plans. The approved building plans show shear wall to be placed on the interior walls of
the front elevation in order to preserve the existing exterior siding. The appellant did not
stop work in the field and contact the Planning Division prior to proceeding past the
approved demolition plan and unlawfully removed more than 25 percent of the existing
siding on the front elevation as shown in photos provided by the appellant (Attachment
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DISCUSSION (continued):
5). The appellant did not stop work in the field and make a request to revise the location
of the shear wall to be placed on the exterior front elevation.
The reasons presented by the appellant for why the Community Development Director’s
Determination of Unlawful Demolition appeal should be granted are in conflict with the
Town Code’s definition of demolition of historic structures and the property owner,
architect, civil engineer, and contractor signed the Demolition Affidavit (Attachment 4). The
appellant’s list of reasons of why the appeal should be granted challenges the existence of a
demolition violation (Attachment 7). The appellant’s appeal does not discuss penalty fees.
D. Required Findings
Pursuant to Town Code Section 29.20.265 the appeal should be heard by the Planning
Commission. After discussion with the Town Attorney and the appellant, the appellant
choose to elevate the appeal to be heard by the Town Council. For clarity, “Planning
Commission” has been replaced by “Town Council” as the deciding body in the text below.
Pursuant to Town Code Section 29.20.265 (b) for hearings dealing with an appeal of an
unlawful demolition and/or the penalty fee for the lawful demolition the Town Council
shall do the following:
(1) The Town Council shall consider any written or oral evidence consistent with its
rules and procedures regarding the violation, compliance by the violator or by the
real property owner, and the amount of the penalty.
(2) The Town Council shall make the findings and issue its determination regarding:
a. The existence of the violation; and
b. The appropriateness of the amount of the penalty fee.
(3) The Town Council shall issue written findings of each violation. The findings shall be
supported by evidence received at the hearing.
(4) If the Town Council finds by the evidence provided that a violation has occurred, the
Town Council shall affirm the decision of the Planning Director.
(5) If the Town Council finds that no violation has occurred, the Town Council shall state
a finding of those facts.
(6) The Town Council may approve or reduce the amount of the penalty, but not the
application penalty fee which is established by resolution.
PUBLIC COMMENTS:
Written notice of the Town Council hearing was sent to property owners and tenants within
300 feet of the subject property. At the time of this report’s preparation, the Town has not
received any public comment.
PAGE 7 OF 7 SUBJECT: 33 Walnut Avenue/Appeal of Determination of Demolition DATE: November 10, 2021
CONCLUSION:
A. Recommendation
For the reasons stated in this report, it is recommended that the Town Council uphold the
decision of the Community Development Director and adopt a resolution (Attachment 8)
denying the appeal with the required findings incorporated in the resolution.
B. Alternatives
Alternatively, the Town Council could:
1. Adopt a resolution to grant the appeal and determine that no demolition violation
occurred (Attachment 9) with the required findings incorporated in the resolution; or
2. Continue the application to a date certain with specific direction; or
3. Remand the appeal to the Planning Commission with specific direction.
COORDINATION:
The Community Development Department coordinated with the Town Attorney’s Office in
review of the appeal.
ENVIRONMENTAL ASSESSMENT:
This is a project as defined under CEQA, but is ministerial, therefore no further action is
required under CEQA.
Attachments:
1. Location Map
2. Historic Preservation Committee Meeting Minutes for August 22, 2018
3. Historic Preservation Committee Meeting Minutes for May 15, 2019
4. Signed Demolition Affidavit
5. Photos provided by Appellant
6. Notice of Unlawful Demolition
7. Appeal of the Community Development Director Decision, received October 11, 2021
8. Draft Resolution to Deny Appeal and Uphold the Director of Community Development
Determination of Demolition
9. Draft Resolution to Grant Appeal and Determine No Demolition Violation