Attachment 15 - Additional Information from the Appellant, received November 12, 2021Los Gatos Town Council
Town of Los Gatos
110 E. Main St., Los Gatos CA 95030
Date: Nov 12th, 2021
RE: Appeal of 17200 Los Robles Way Lot Line Adjustment (LLA) Application
Dear Town Council Members,
In light of the information of the Town Attorney’s untimely resignation, we are requesting the Town
Council directly consider the information presented below and the evidence already submitted with
regard to our Town’s Lot Merger ordinance.
It’s clear that other California towns, cities and counties have lot line adjustment and merger ordinances
or procedures which state in various ways and forms that you cannot use a lot line adjustment
procedure to make a non-buildable parcel, buildable. When I questioned the Santa Clara County
ordinance, found here, our Town Attorney responded that their ordinance is not in conflict with the
subdivision maps act. It does state that there can be no increase in the number of developable parcels
as a result of the lot line adjustment, and it goes on to describe how to determine whether a parcel is
developable. In bullet (iii) it states
(iii) Be a whole lot on a numbered tract map (recorded on or after February 3, 1931) or
a whole lot on a parcel map issued pursuant to a legal subdivision, and also be an
approved building site.
This would appear to be putting a condition on the existing parcel as to its buildability, and not on how
the resulting parcels will look with respect to conformance to the General Plan, and zoning and building
ordinances. So, what is the Town of Los Gatos missing in our interpretation of the application of our lot
merger ordinance relative to all these other ordinances that are in existence?
As we know, APN 532-36-077 has no approved building site. If you consider setback requirements there
is nowhere to build inside of the LRDA, making it unbuildable per our Hillside Development Standards &
guidelines. But most importantly, the land has no legal access. Per Town Code Sec 29.10.070, it does not
meet the criteria for using our lot line adjustment procedure, and mandates that land shall be merged.
Regarding the comments surrounding whether a new ROW could be created to access the landlocked
property, per the merger doctrine, you cannot create an easement over your own land. More details
can be found here:
https://schorr-law.com/property-owner-cannot-create-easement-over-own-land/
How exactly would a new ROW from Los Robles Way to the landlocked parcel be implemented?
ATTACHMENT 15
It is unusual that the enforceability of our ordinance is still being questioned, and that there is a
discussion around whether to enforce it or not. We have established that it can be enforced in
compliance with SMA 66451.11 per our lot merger procedure. The statement that the landowner might
sue the Town for enforcing a lot merger isn’t grounds to not enforce an ordinance that is written as
mandatory, especially with respect to the economic damage to numerous residents that abut the
property if this LLA is approved. APN 532-36-077 is clearly a landlocked parcel and the Merger Doctrine
prescribes that no new access could be created.
If the Town Council is reviewing the lot line adjustment application per our 2020 General Plan we have a
Land Use Element and a Safety Element that both need to be taken into consideration with respect to
this property and its future use. Policy LU-1.3 requires we preserve existing trees, natural vegetation,
natural topography, riparian corridors and wildlife
habitats. With respect to this, it’s clear from the
conceptual plans that the additional building sites
with access from Worcester Lane would result in
significant removal of protected trees and
unnecessary grading and scarring of the hillside to
install retaining walls and additional impervious
surface, that would not occur if the access
remains for APN 532-36-075 from Los Robles
Way. In addition, wildlife frequent the property
and it houses a coyote den. Please see photo
taken from our backyard of a family of 6 coyotes
living on the hillside right where the new
residence would be placed. This coyote
population helps manage the ground squirrel
problem on the land and subsequent neighboring
properties
Goal SAF-1 from the Safety Element also seems very clear on the restrictions of approving development
where there are potential geologic hazards, including slope instability etc.
We ask the Town Council to reconsider the request for lot merger of APNs 532-36-076 and 532-36-077
which we believe is clearly supported based on the evidence provided to date.
Yours Sincerely,
Alison and David Steer
From:Alison Steer
To:Ryan Safty
Cc:Jennifer Armer; Robert Schultz
Subject:Re: Lot Line Adjustment Application M-20-012 -Letter for Town Council
Date:Wednesday, December 1, 2021 11:07:18 AM
EXTERNAL SENDER
Hi Ryan,
I have reviewed the conceptual drawings that you shared with me today. This does not show how a 12ft driveway and turnaround would be implemented on the existing configuration that
would be adequate for emergency vehicle access. This would also need review from the Fire Prevention Department. Otherwise this lot is in fact required to be merged involuntarily.
I would request this be submitted for Town Council review ahead of the Dec 7th meeting.
Please submit this email for public record also.
Thank you,
Alison
From:Alison Steer
To:Ryan Safty
Cc:Robert Schultz; Jennifer Armer
Subject:Re: Lot Line Adjustment Application M-20-012 -Letter for Town Council
Date:Tuesday, November 30, 2021 5:03:04 PM
EXTERNAL SENDER
Hi Ryan,Yes, please save them to public record, Thank you for checking.
Alison
On Nov 30, 2021, at 15:59, Ryan Safty <RSafty@losgatosca.gov> wrote:
Hi Alison,
Please confirm if you would like your emails saved to the public record.
Respectfully,
Ryan Safty ● Associate Planner
Community Development Department ● 110 E. Main Street, Los Gatos CA 95030
Ph: 408.354.6802 ● rsafty@losgatosca.gov
www.losgatosca.gov ● https://www.facebook.com/losgatosca
COMMUNITY DEVELOPMENT HOURS:
Counter Hours: 8:00 AM – 1:00 PM, Monday – Friday/
Phone Hours: 8:00 AM – 5:00 PM, Monday – Friday
Town offices are now open. In accordance with the Santa Clara County Public Health Office
Order, we REQUIRE masks indoors regardless of vaccination status. All permit submittals are to
be done online via our Citizen’s Portal platform. All other services can be completed at the
counter. For more information on permit submittal, resubmittal, and issuance, please visit
the Building and Planning webpages.
P Think Green, please consider the environment before printing this e-mail.
From: Robert Schultz <RSchultz@losgatosca.gov>
Sent: Tuesday, November 30, 2021 1:22 PM
To: Alison Steer Ryan Safty <RSafty@losgatosca.gov>
Cc: Jennifer Armer <JArmer@losgatosca.gov>
Subject: RE: Lot Line Adjustment Application M-20-012 -Letter for Town Council
Alison,
Although I stated " Nothing contained within the Santa Clara county
ordinance violates SMA", the Santa Clara county ordinance has
absolutely no legal standing in the Town nor do any other ordinances
from other cities and towns that may or may not violate the SMA.
<image001.png>
From: Alison Steer
Sent: Tuesday, November 30, 2021 12:49 PM
To: Ryan Safty <RSafty@losgatosca.gov>
Cc: Jennifer Armer <JArmer@losgatosca.gov>; Robert Schultz
<RSchultz@losgatosca.gov>
Subject: Re: Lot Line Adjustment Application M-20-012 -Letter for Town Council
EXTERNAL SENDER
Hi Ryan,
Actually what I heard at the Town Council meeting from our Town Attorney is that
the Lot Merger ordinance can be enforced, including requesting a soils report,
however he believes that if enforced the owner would put in a new ROW in such that
the land would have legal access. Putting the merger doctrine aside, which says they
couldn't do this, Tony Jeans and planning department have failed to show that APN
532-36-077 has legal access which is adequate for vehicular and safety equipment
access and maneuverability. The DRC should confirm that the existing parcel could
implement a turnaround suitable for the fire department, per the attached. If this can
be done then it seems there would be no issue, if they can show where the 12ft wide
driveway to access the parcel would go. This is a mandatory ordinance that requires
the Town to do an involuntary lot merger should the parcel not meet any of the 8
requirements.
Secondarily, the Town Attorney has stated via email to the Town Council that "
Nothing contained within the Santa Clara county ordinance violates SMA". The Santa
Clara County Lot line adjustment ordinance copied below puts a condition on the
existing parcel that it must be an approved building site. This contradicts what the
Town is saying. I find it surprising that our Town believes that all these other Towns,
Cities and Counties have incorrectly interpreted the wording of the subdivision maps
act, given they all are putting conditions on the existing site before a lot line
1.a.
b.
c.
(i)
(ii)
(iii)
adjustment procedure can be used. The lot merger ordinance takes precedence. In fact,
failure to follow the guidance of the Town's own Lot Merger ordinance will certainly
lead to more situations where lot line adjustment will be used to create new buildable
parcels such as in this case.
https://library.municode.com/ca/santa_clara_county/codes/code_of_ordinances?
nodeId=TITCCODELAUS_APXIZO_ART5PRAD_CH5.55LOLIAD_S5.55.010PU
Category 1 - No Increase in Number of Developable Parcels.
No substandard parcel may be reduced in area by more than 20,000 square
feet or ten percent of its original lot area, whichever is less.Each adjusted lot must retain at least 90 percent of the real property included
in the parcel prior to the proposed lot line adjustment.
The lot line adjustment would not result in any additional developable parcels
or a greater allowable density than existed prior to the lot line adjustment. Indetermining if a parcel is developable, the parcel must meet at least one of the
following criteria:
Contain a legal dwelling or other legal building or structure constructed
pursuant to and in compliance with a validly issued Building Site Approval,Architecture and Site Approval (ASA) or Use Permit;
Be subject to a valid, unexpired Building Site Approval, ASA, or Use Permit for
the parcel, including a grading approval, if one is required. The owner must
demonstrate ability to comply with all conditions of approval and Countyrequirements and standards, including the issuance of the project clearance
form from the County Office of Development Services; or
Be a whole lot on a numbered tract map (recorded on or after February 3,
1931) or a whole lot on a parcel map issued pursuant to a legal subdivision,and also be an approved building site.
Sincerely,
Alison
On Tue, Nov 30, 2021 at 10:27 AM Ryan Safty <RSafty@losgatosca.gov> wrote:
Hi Alison,
The response packet from the applicant, which was forwarded to you last week,
shows how driveway and emergency vehicle access can be provided on each parcel
configuration resulting from the lot line adjustment.
As clarified by the Town Attorney during the Planning Commission and Town Council
hearings, the Town Code Section you have referenced (29.10.070-a-5) is not
enforceable. See excerpt from the Planning Commission staff report below.
A. Town Attorney’s Office
Part (b) of Town Code Section 29.10.070, requiring involuntary lot mergers,
was adopted in 1976 and amended in 1988. However, this provision of the
Town Code is unenforceable as it is inconsistent with the SMA. The SMA has
contained express merger provisions since 1976 and the current SMA merger
provisions were enacted in 1986. Government Code Section 66451.10 states
that, “two or more contiguous parcels or units of land which have been created
under the provisions of this division […] shall not be deemed merged by virtue
of the fact that contiguous parcels or units are held by the same owner.” The
SMA’s current merger provisions reflect two overall concerns. First, they
provide landowners with elaborate procedural safeguards of notice and
opportunity to be heard before their lots can be involuntarily merged (Morehart
v. County of Santa Barbara). Second, they reveal, “a state concern over local
regulation of parcel merger for purposes of development,” as well as for
purposes of sale, lease, or financing. In addition, California Civil Code Section
1093 requires an, “express written statement of the grantor,” of their intent to
alter or affect the separate and distinct nature of the parcels described therein.
Therefore, the legal merger of two parcels occurs only through the express
written statement of the grantor (ibid.) or through a local agency’s compliance
with the merger procedures contained in Sections 66451.10 and 66451.11 of the
SMA, including the due process requirements contained therein (See Morehart
v. County of Santa Barbara, supra, 7 Cal. 4th at p. 761 [SMA preempts the field
for parcel mergers]).
Additionally, part (b) of Town Code Section 29.10.070, disallowing a, “parcel
to be modified through a lot line adjustment procedure in order to meet the
criteria listed above,” is also unenforceable as it is inconsistent with the SMA.
The SMA states that for a lot line adjustment, “a local agency or advisory
agency shall limit its review and approval to a determination of whether or not
the parcels resulting from the lot line adjustment will conform to the local
general plan, any applicable specific plan, any applicable coastal plan, and
zoning and building ordinances.” Therefore, the Town cannot impose as
conditions to a lot line adjustment that the current configuration of the lots meet
certain criteria. Instead, the Town must confine its approval of a lot line
adjustment on its conformance to the local general plan, any applicable specific
plan, any applicable coastal plan, and zoning and building ordinances resulting
from the lot line adjustment.
Respectfully,
Ryan Safty ● Associate Planner
Community Development Department ● 110 E. Main Street, Los Gatos CA 95030
Ph: 408.354.6802 ● rsafty@losgatosca.gov
www.losgatosca.gov ● https://www.facebook.com/losgatosca
COMMUNITY DEVELOPMENT HOURS:
Counter Hours: 8:00 AM – 1:00 PM, Monday – Friday/
Phone Hours: 8:00 AM – 5:00 PM, Monday – Friday
Town offices are now open. In accordance with the Santa Clara County Public Health Office
Order, we REQUIRE masks indoors regardless of vaccination status. All permit submittals are
to be done online via our Citizen’s Portal platform. All other services can be completed at the
counter. For more information on permit submittal, resubmittal, and issuance, please visit
the Building and Planning webpages.
P Think Green, please consider the environment before printing this e-mail.
From: Alison Steer
Sent: Tuesday, November 30, 2021 7:36 AM
To: Ryan Safty <RSafty@losgatosca.gov>
Subject: Re: Lot Line Adjustment Application M-20-012 -Letter for Town Council
EXTERNAL SENDER
Thanks Ryan,
For access to the landlocked parcel, can we request conceptual drawings for the
Town Council to review on how the driveway and emergency vehicle turnaround
would be implemented to APN 532-32-077? Additionally the building site it would
access? Can Kenny Ip from the DRC please provide comment on whether this
parcel access meets bullet 5 of our mandatory ordinance?
(5) Has legal access which is adequate for vehicular and safety equipment access and maneuverability.
Thank you,
Alison
On Wed, Nov 24, 2021 at 8:58 AM Ryan Safty <RSafty@losgatosca.gov> wrote:
Hi Alison,
Please see attached response letter from the applicant.
Respectfully,
Ryan Safty ● Associate Planner
Community Development Department ● 110 E. Main Street, Los Gatos CA 95030
Ph: 408.354.6802 ● rsafty@losgatosca.gov
www.losgatosca.gov ● https://www.facebook.com/losgatosca
COMMUNITY DEVELOPMENT HOURS:
Counter Hours: 8:00 AM – 1:00 PM, Monday – Friday/
Phone Hours: 8:00 AM – 5:00 PM, Monday – Friday
Town offices are now open. In accordance with the Santa Clara County Public Health Office Order,
we REQUIRE masks indoors regardless of vaccination status. All permit submittals are to be done
online via our Citizen’s Portal platform. All other services can be completed at the counter. For
more information on permit submittal, resubmittal, and issuance, please visit
the Building and Planning webpages.
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