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Attachment 5 - September 28, 2022 Planning Commission Verbatim MinutesLOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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: Melanie Hanssen, Chair Jeffrey Barnett, Vice Chair Kathryn Janoff Steve Raspe Reza Tavana Emily Thomas Town Manager: Laurel Prevetti Community Development Director: Joel Paulson Town Attorney: Gabrielle Whelan Transcribed by: Vicki L. Blandin (619) 541-3405 ATTACHMENT 5 LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 HANSSEN: We will move on to the third item on the agenda, and that is we are going to be reviewing the proposed draft ordinance for SB 9, and the action requested from the Commission is to make a recommendation to Town Council who will ultimately make the deciding action on this. Item 3 is considering amendments to Chapter 29, Zoning Regulations of the Town Code regarding regulations to comply with the requirements of Senate Bill 9. Town Code Amendment Application A-22-002. Location: Townwide, and our Applicant is the Town of Los Gatos. I will turn to Staff to give us a Staff Report on behalf of the Town. RYAN SAFTY: Thank you and good evening. Before you tonight is the draft permanent ordinance to implement the requirements of Senate Bill 9. SB 9 went into effect on January 1, 2022 and requires ministerial approval of certain housing development projects and lot splits on a Single-Family zoned parcel with the intent to increase Residential densities within Single-Family neighborhoods across the LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 State. The law allows for two new types of development activities that must be reviewed ministerially without any discretionary action or public input. First is a two-unit housing development, which includes two homes on an eligible Single-Family Residential parcel; and two, an urban lot split, which is a one-time subdivision of an existing Single-Family Residential parcel into two lots. When used, SB 9 will result in the potential creation of four dwelling units on an existing Single- Family zoned parcel. In contrast, Single-Family zoned parcels are currently permitted three units throughout the State, including a primary Single-Family dwelling, an Accessory Dwelling Unit, and a Junior Accessory Dwelling Unit. SB 9 also outlines how jurisdictions may regulate SB 9 projects. Jurisdictions may only apply objective zoning, subdivision, and design standards to these projects, and these standards may not preclude the construction of up to two units of at least 800 square feet each. Jurisdictions can conduct objective design review, but may not have hearings for units that meet the State rules. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 On December 21st of last year Town Council adopted an Urgency Ordinance to implement local Objective Standards for SB 9 applications. This Urgency Ordinance was extended and is valid until the end of the calendar year. The draft ordinance, provided as Exhibit 1 with the Staff Report, includes amendments to the Urgency Ordinance in response to State feedback, such as inclusion of HR zones, additional definitions and exclusion areas, new Hillside Standards, utility connection requirements, replacement housing, relationship with ADUs, and owner attestation statements. Details on each of these are provided in Section A of the Staff Report. Staff has also made edits to the draft ordinance in order to help clarify existing standards based on questions from the public that arose in this past year, which are described in detail in Section B of the report. Last week the Town hosted a community meeting to discuss developing a permitted SB 9 Ordinance and foster public participation. The public comments gathered during this meeting, as well as all other written public comments that were submitted this year, are included in the packet and discussed in the Staff Report. Of the public comments received there are seven comments that were repeated, which LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 are described in Section C of the report. Additional public comments were forwarded with today’s Desk Item report. Staff looks for direction from the Planning Commission on the topic included in Sections C and D of the Staff Report, as well as any questions or comments on the drafted ordinance. This concludes Staff’s presentation and we are happy to answer any questions. CHAIR HANSSEN: Thank you for your presentation, and thank you for the thorough Staff Report. I’d like to find out if any Commissioners have questions for Staff before we go to public comments. And you will have another opportunity to ask questions after we take public comments. I don’t see any Commissioners raising their hands right now, so I will turn to Verbal Communications and offer this as an opportunity for any members of the public to speak on this item. I would like to preface that by saying we’re very thankful to all those who participated in the community meeting last week as well as sent in comments that were included in our Staff Report, and in addition we got additional comments from the public in the Desk Item today, and now would be an opportunity to speak in Verbal Communications on this item, and you will have up to three LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 minutes. Please raise your hand if you would like to speak on this item. JENNIFER ARMER: If anyone would like to speak on this item, Senate Bill 9 permanent ordinance, please raise your hand now. We’ll give them just a moment in case anyone wishes to speak. All right, we’ve got a couple of people who are interested in speaking. The first will be Lee Quintana. You should be able to unmute and speak now. LEE QUINTANA: My most important question has to do with the fact that the ordinance contains a provision that once the lot split has occurred that the construction on the lots can be processed as a discretionary project. I don’t understand that since I believe the bill says that you need to use Objective Standards when implementing SB 9, and SB 9 covers both the lot split and two-unit developments by only requiring the lot split to be objective or building up to four units on a parcel that is not a lot split, but allowing once the lot split has taken place. To allow the resulting projects to be discretionary doesn’t seem consistent with my understanding of the law. I have other questions, but I’m going to reserve them until I see the report that comes out for the Council. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 CHAIR HANSSEN: Thank you for your comments. I wanted to find out if any Commissioners have questions for Ms. Quintana? I don’t see any hands raised. Staff, in terms of responding to the comments, we’re just going to proceed as we normally do in a hearing and not directly address them, but I do have a question on her comment for Staff. JENNIFER ARMER: That is correct, though if the comments and questions from the public bring up questions for the Commissioners, Staff is happy to provide clarification. CHAIR HANSSEN: I will hold off on that for now, and we will ask if there’s anyone else that would like to speak on this item? JENNIFER ARMER: Yes, Tony Jeans. You may go ahead. TONY JEANS: Yes, would it be possible to show the very last page on the public comments? JENNIFER ARMER: Just a moment. Let me see if we can pull that up. TONY JEANS: While that’s being pulled up, I’d like to say that what I’d like to do is show you the dilemma that I have when I am asked by clients to consider a lot split on their property, and I would like you to LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 consider one change to the existing draft ordinance. Okay, if you could make that a little larger. What you’re seeing there is a lot on the left- hand side, and the same lot is on the right, and it’s a 12,800 square foot lot. I just picked a lot that was 80’x160’, a typical lot that you might find in an R-110 neighborhood. The way I have to split that lot, if a client comes to me and says, “Could you split this lot for me and give me 60% for my main house on the front, and split a lot at the rear of 40% that I could sell?” what I have to do at the moment is first of all I do a calculation of 40% of the lot size, and 40% of 12,800 is 5,120. That is what I have to create at 40%. The existing ordinance requires me to have a 20’ wide right-of-way to the back lot on the left hand side that is shown in the purple color, and it is counted as part of the 5,120 square feet. So when you take the 5,120 square feet you can see what a small piece of property you end up with at the back, because the flagpole, the panhandle, whatever you want to call it, is 20’ wide and it has to be part of the 40%. I don’t believe that that is a property that you want to create and subsequently have houses designed for. I LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 think it’s a disaster waiting to happen, and I would ask you to change it to the way every other jurisdiction has it—go to the picture on the right hand side—which is you split it 60%/40%, that is the line through the middle, you are allowed an easement to the back lot, and SB 9 specifically requires the Town to give you either street frontage for the property or provide a means of access to the street, which every other jurisdiction—Monte Sereno, Saratoga, Santa Clara, San Jose—have all interpreted to mean an easement. Furthermore, the width of that easement only needs to be wide enough for a fire truck ingress/egress easement to access the rear lot for safety. Twenty feet just happens to be what the current Town Code is and they haven’t changed it. So what you have is a really, really difficult situation. Also, the 20’ width requirement means that it is incredibly difficult on most lots, unless they’re very large, to not demolish the house, because it tends to go closer to the side property lines than 20’. I would like you to look at changing that to the way every other jurisdiction does it, which is allow an easement to the back parcel and treat it that way. Thank you. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 CHAIR HANSSEN: Thank you for your comments, and I would note that you made multiple comments through the process and we really appreciate that, including the drawings as well. It looks like Commissioner Janoff has a question for you. COMMISSIONER JANOFF: Thank you. Just briefly, Mr. Jeans, you indicate that every other jurisdiction has used the 12’-15’ width. Is that something that they have done in conjunction with their SB 9 ordinance or with a different ordinance? Is their response to SB 9? And could you be specific, when you say every other, are they using 12’, or are they using 15’, or is it a mix? TONY JEANS: In every case, as I see it, it is a specific response to SB 9 to implement it according to the literal terms of the law, which I believe requires the town to allow it. The choice of width varies from jurisdiction to jurisdiction. Some it is not defined, some it just says sufficient for fire access ingress/egress. The City of San Jose says anywhere between 12’-15’ either as a fee title ownership to the rear lot, or as an easement. The City of Saratoga does not define the width, but it allows an easement. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 So you have a wide range of options, but I think that if you were to put footage on it, 12’-15’ is good, because the fire access requirement to a property is 12’ wide, so if you provide a minimum of 12’, you’re okay. CHAIR HANSSEN: I think that answered the question. I just wanted to clarify, because you had sent in multiple documents, and I have a couple of questions. First of all, on this particular issue you’re asking for multiple things and I just wanted to make sure that I’m clear about this. One is that you feel that the 20’ is too wide, and it sounds like you’re neutral to whether it’s 12’ or 15’; it just should be in that range. Then secondly, you are opposed to counting the driveway at the access as part of the square footage of either parcel, and by doing an easement that would solve that problem. Is that the right way to look at it, what you are asking for? TONY JEANS: I think my primary concern is that an easement should be allowed. If you allow an easement you could choose to—I don’t think you should, but you could choose to—take that square footage off the front lot. I don’t think you should. I think an easement is an easement. I think it gives the simplest way to do a 60%/40% split and end up with reasonable lots so that you’re not cramping a design of either house on the front or the back. I think if LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 you go away from 20’ fee frontage, which is what the Town has in its code now, I think there’s no rational basis for taking away that corridor from either lot. We’re dealing with relatively small lots, I don’t think that it’s beneficial, so I think the main thing is allow an easement as an option instead of requiring it to be a 20’ wide fee frontage. CHAIR HANSSEN: Thank you. That clears up my question. Are there any other Commissioners that have questions for Mr. Jeans? I don’t see any other hands raised, so I’d like to ask if any other members of the public would like to speak on this item? JENNIFER ARMER: If anyone else would like to speak on this item, please raise your hand now. I’ll give them just a moment in case there is anyone else who would like to share their thoughts on this. David, you should be able to unmute, and you have three minutes. DAVID: Thank you. I’d like to just comment on two things. The first is of course we all know the point of this is not to make everyone happy, the point of this is to provide an orderly rollout of the State law, so that makes a lot of sense to me. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 Some of the provisions that don’t make sense, for instance, Tony brought up a good example. Even if the ordinance goes through like this and it is required that you eat into the front lot and it’s not an easement, then surely nobody would divide their lot that way. Well, this is attractive enough for some homeowners that they will divide the lot that way and you will get these non-optimal solutions and non-optimal results just for people trying to follow the letter of the law so that they can get what they see as a perceived benefit from this ministerial process in terms of their time and money. I think with that in mind, and a couple of points I’m about to comment on, it makes sense actually to provide the fewest restrictions possible within reason for this orderly rollout of State law, because the more restrictions there are, the more sort of non-optimal results you’ll get when people are attracted toward trying to follow this ordinance but they find a funny way around it that really no one is happy with, they’re not happy with, the planners are not happy with, and perhaps the neighbors are not happy with. If a proposed projects fails on any one point in this local ordinance it becomes ineligible, so some of the ways we might want it to fail is if they’re trying to LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 create a very large house, so that fails because there’s a square footage slide and we don’t necessarily want anyone to build anything with this law, or if they’re trying to build closer than 4’property line, of course that is not eligible. But it can also fail in other ways that are not intended, like the one that Tony Jeans has pointed out. Another way I’d just point out is, for instance, with an urban lot split. Lot lines need to be right angles to the street. That’s not practical. Not every lot in Los Gatos can be divided with lot lines that are at right angles to the street or radial to a curve. Consider the irregularly shaped lots, or if what Tony is saying is implemented by the Planning Commission, meaning that this becomes an easement and not actually part of the rear parcel, then that lot line, which Tony draw horizontal, would not be parallel to the street. I would worry that implementing any rule in this that cannot be followed, is simply impossible for every lot in Los Gatos to follow, is a violation of State law, that requiring lot lines to be at right angles to the street is not always possible. Another example is a minimum public frontage of, I think, 20’ on public roads. There are many houses and lots that are not on a public road, they’re on a private LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 road, so it’s not clear how they comply without further clarification, or perhaps just reduced restriction. For instance, if this minimum public frontage requirement was deleted from the text, I wonder if that would solve this particular problem? That’s all I have to say. Thank you. CHAIR HANSSEN: Thank you very much for your comments, and also for the written comments that you sent in as well as part of our packet. I’d like to ask if any Commissioners have any questions for David? Vice Chair Barnett. VICE CHAIR BARNETT: I’d also like to thank you for your written submission to the Commission in the attachment to the Staff Report that we received as a Desk Item, I believe. Would it satisfy your concerns if an easement was used for access rather than a fee simple grant, and also if the requirement of right angles or radial was deleted? DAVID: That would satisfy that aspect. I only had three minutes, so I didn’t talk to some of the architectural points and concerns, but that certainly satisfies the particular point that I raised tonight, yes. CHAIR HANSSEN: All right, thank you for that. Do any other Commissioners have questions for David? I don’t see any additional hands up, so I will open it up to anyone LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 else from the public that would like to speak on this item, and this is the only opportunity to speak on this item, because I will be closing the public hearing and we will be having the discussion of our recommendations amongst the Commissioners. JENNIFER ARMER: So one more opportunity if anyone wishes to speak on this item, share thoughts, or questions that have come up on Senate Bill 9 implementation. I’m not seeing any additional hands raised. CHAIR HANSSEN: Very good. I will remind everyone that is watching from the public that there will be other opportunities to comment on this item. You can send your written comments into Staff following this meeting. When the Town Council hears this item you’ll have an opportunity to send written comments as well, as well as speak at their meeting when they’re actually making the deciding vote on going forward with this SB 9 Ordinance, so there will be multiple opportunities to speak going forward. That being said, I will close public comments and we will go back to the Commission and to Commissioner Rasp. COMMISSIONER RASPE: Thanks, Chair. Actually, I’m curious to hear from Staff as to their thoughts on the easement issue and then the perpendicular right angle issue for our streets, and why we’re currently apparently the LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 outlier on it and if there’s a rationale for using a different approach. CHAIR HANSSEN: It looks like our Town Attorney has a comment for you. ATTORNEY WHELAN: I’ll address the easement question first. The proposed ordinance referenced the fee interest because the thought was that we would be consistent with what is required for other flag lots in town, but I do think that the speakers have raised a good issue with regard to the language of SB 9. They are correct that SB 9 simply requires that both parcels have access to right-of-way, and they are correct that access could be provided via either the fee or the easement interest, so that is a valid comment. With regard to the line being parallel to the right-of-way, SB 9 does require that agencies ministerially approve lots that meet a set of criteria and none of those enumerated criteria include that the lot line is parallel to the right-of-way, however, there is a subsequent section of SB 9 that says, “A local agency may impose objective subdivision standards that do not conflict with this section.” It’s kind of interesting, because the legislation is setting forth the criteria under which the lot split is LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 to be approved, yet it’s also giving agencies the ability to impose objective subdivision standards, and there’s really a question as to whether an extra requirement conflicts with the enumerated requirements in the statute, so if I don’t have a definitive answer on that second issue regarding the parallel line, perhaps Jennifer has a thought on that. JENNIFER ARMER: Yes, thank you, Town Attorney. I would just add the idea behind including that provision. The goal there really was just to keep things relatively orderly, trying to find an Objective Standard, something that could be put in place to try to make sure any subdivision is done in a relatively simple, straightforward, orderly way, but as with many of the Objective Standards that have been included in here, if that is something that the Planning Commission recommends modifying, that’s definitely one that could be removed or modified. COMMISSIONER RASPE: Thanks, that answers my question. Chair, one follow up question as long as I’ve got the lawyer close by. Assuming that there would be use of easements, would we envision that we’d leave the terms of the easement up to the developer, for instance, who is responsible for LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 maintenance and payment, or would that be something we’d have to dictate as part of our SB 9 Town Code regulations? ATTORNEY WHELAN: What I would recommend is that maintenance, and one Commissioner asked about requiring that the parties agree that attorney’s fees will be paid in the event of a dispute, my recommendation would be that terms like that be negotiated between the two property owners, but I do think that it would make sense for the Town to impose as a condition of approval that access always has to be maintained so that the access can’t be blocked. JENNIFER ARMER: I would add to that that Staff does review the map and we do send it over to Parks and Public Works for a preliminary review as well, and generally they would be looking to make sure that there is an easement shown both for access and for any utilities to get to the rear walk. COMMISSIONER RASPE: Thanks to you both for answering those questions. CHAIR HANSSEN: Before I go to Commissioner Janoff or anyone else, I did want to say that what we decided for this meeting is to go through the issues that are outlined in the Staff Report starting on page 6 for this item, which is page 124 in the packet. They mention C LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 and D relative to public comments. I was going to bring up each and every one of those issues and get some resolution on that, but since we are on the subject of the easement, and it’s fresh on our minds, as well as with the access, maybe we should take that issue first and see if we can get a recommendation that gels with the Commission that we can make to Town Council. So why don’t we continue this particular discussion and see what other comments and suggestions we have from the Commission? Commissioner Janoff. COMMISSIONER JANOFF: Thank you. I did have a question about the minimum frontage comments, but if we’re going to get to those as we proceed, then I’ll hold off on that. CHAIR HANSSEN: If you’re talking about the 20’, but there’s also the minimum frontage for any portion to the street, right? COMMISSIONER JANOFF: Right, and I was just curious what the Town Attorney might interpret along that particular issue. ATTORNEY WHELAN: Is this a good time, Chair Hanssen? CHAIR HANSSEN: Go ahead, since it was brought up. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 ATTORNEY WHELAN: The only requirements that I see in SB 9 are the 40%/60% difference and that one lot can’t be smaller than 1,200. I’m not recalling a portion of SB 9 that addresses minimum street frontage. COMMISSIONER JANOFF: And I think minimum street frontage is in our code elsewhere, so SB 9 does not drive it. I would be in favor of the developer having the choice of a fee, whatever that’s called, or an easement. Different properties are shaped differently. The example that Mr. Jeans provided is a long lot. You could have a wide lot, you could have an oddly shaped lot, you just don’t always have the same structure, so I would allow that to be a choice that the developer would make in the determination of the lot split. At least, I would be in favor of that. Same issue with regard to right angles, and Ms. Armer, you talked about an organized split, and that probably means something to you. I can imagine what that means. I think what you’re saying is you don’t want something jury-rigged with a lot of angles and strange shapes in order to get to some percentage that isn’t really useable. There’s probably a better way to say that than the right angles. I know, for instance, in my neighborhood we LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 don’t have any right angles. None of the plots have right angles, but they have angles, so I think moving away from the right angle terminology is a good thing, but talking about simplified shapes or something would maybe make more sense in trying to convey the idea that we want something organized. CHAIR HANSSEN: Commissioner Janoff, since you have the floor, could you also comment on your thoughts about the width of the access. COMMISSIONER JANOFF: As I said, as I recall from previous Planning Commission meetings when we talked about flag lots, I think the 20’ access is related to the Flag Lot Ordinance that we have. I could be mistaken. But I would be in favor of reducing that for sure. I think the argument that it creates a potentially unworkable remaining shape for the structures is a good argument. If you’re talking about between 5’-8’, that makes a big difference, and so I would say if the Fire Department says 12’ minimum, I think 12’ minimum is fine. The only comment I would say to that is elsewhere we say 12’-18’ I can’t remember what it is, a driveway or something, and then the hillsides it says 12’ but no maximum, so whatever we use, if we’re using a number or a range, we should be consistent with that in SB 9 and also LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 in the other guidelines, even if that means making some change to our code. CHAIR HANSSEN: Okay, fair enough. Commissioner Tavana. COMMISSIONER TAVANA: Thank you, Chair. I guess I’m a little bit confused in terms of the square footage requirements in parcels with respect to nonconforming conditions. On page 12 of the draft ordinance, I guess #5, it says, “Nonconforming conditions. The Town now requires as a condition of approval the correction of nonconforming zone conditions, however, no new nonconforming conditions may result from the urban lot split other than interior side or rear setbacks as specified in Table 1.2.” So my question is are we creating many nonconforming lots by splitting these lots into smaller pieces? Because across town, at least in my neighborhood, every lot is nonconforming, so what controls do we have in place to prevent nonconforming lots or small flag lots? Just a general question, maybe surface level. CHAIR HANSSEN: Staff, could you respond relative to what we have in the ordinance right now? RYAN SAFTY: Yes, thank you for the question, and Ms. Armer, if there’s anything else to add afterwards, please feel free. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 Via SB 9 we are required to allow a 1,200 square foot minimum lot size. The terms nonconforming, we’re no longer looking at the zoning requirements for minimum lot size, so generally an R-18 zone, 8,000 square foot is the minimum lot size. SB 9 does come in and say the minimum lot size we can require is 1,200, so it is a lot smaller than what we’re used to. JENNIFER ARMER: What I can add to that is that language about the Town shall not require a correction of nonconforming zoning conditions, that’s actually directly from the State law that as part of an application if there’s a nonconforming situation, we can’t make them fix that as a condition of an SB 9 subdivision. There clearly are a number of components here where it is allowed under these regulations where it otherwise would not be allowed. Minimum lot size is an obvious example where a subdivision wouldn’t be allowed through the standard process, because the lot isn’t double the minimum lot size, but SB 9 would allow it. CHAIR HANSSEN: Commissioner Tavana, does that help answer your question? COMMISSIONER TAVANA: Yes, it does, thank you. CHAIR HANSSEN: Just to keep things on track for the same subject that we’re on, there will be an LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 opportunity to bring up whatever you want, but I do want to make sure we answer all the questions, so I would like to find out from any other Commissioners if you have comments on any of the things that have come up so far, which is the fee or easement discussion, the width of the access for the flag lots, whether or not it could be less than what’s in the code, or should we revise the underlying code as well, and the issue about the right angles? I just want to clarify with Staff, the issue of counting the access in the square footage is a separate issue, or does that get resolved if we use an easement? JENNIFER ARMER: Thank you for that question. We would use the current standard practice, which is the area that is in the easement as he showed it. What was shown in that image was that the new rear parcel would gain access to the street through an easement over the front parcel, and so the area that easement goes over is still part of the front property and would still count as part of the area of the front property. For example, the size of the house that would be allowed on that front property would be based on the full lot size, it would not be reduced based on that flagpole area, because it’s an easement, whereas the standard practice right now for flag lots, if there is a flagpole LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 that is dedicated, that’s part of the land for the rear lot, that area is actually removed from the lot size before you calculate the floor area, that’s a net lot size, and so that, I think, is part of the component of what they were talking about with the benefits of having an easement being used. I also did want to provide a little more clarification to the question of the perpendicular property lines. Since we have had to expand the application of this ordinance to include the hillside lots, it is correct, we’ve dealt with more irregularly shaped lots. The perpendicular, I think, was primarily focused on rectangular parcels, which is a lot of what we have in the flatlands. It does have a provision that if you have a curved front lot line, like at the end of a cul-de-sac, that it would be a radial, so it’s kind of perpendicular to the curve, and we have successfully used that. For example, on a hillside lot that came in recently, they have kind of, if you think of a pie slice, it’s a quarter of a pizza, and they wanted to divide that in half. They basically cut that into two slices, and if the road is on the curved crust side of that pizza, then the line is cutting it into two similar sized pieces, and so the line was perpendicular to the curve of that lot, and LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 so it is possible even with irregular lots to find a way to use that requirement and make it function for that site. That is just additional context for your discussion. CHAIR HANSSEN: Can I ask a question to respond to that to make sure I understand? Since it’s not in the State’s SB 9 ordinance, why are we including this in there? What are we worried would happen if we don’t have it in there? JENNIFER ARMER: As I said, it really was intended to not have oddly shaped, complex, kind of jury rigged shapes, to have something in there to provide guidance as to how to do a standard layout for the sites. That really was the goal. If it feels to the Planning Commission that it’s overly restrictive, then it’s not something that we have to have in there. CHAIR HANSSEN: I was just asking the question, but thank you for that, and we’ll see what the Commissioners think about that. Just another question for Staff in terms of process that I should have asked yesterday, when we’ve done the General Plan and some other things we’ve voted on sections of things, but we have a lot of individual issues that are on the list to go through, what would be the best thing? Do you want us to try to vote on everything, or to LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 see if we have consensus and then hopefully we can put together a motion at the end? JENNIFER ARMER: I think it would be fine if you wanted to do it either way. If somebody wants to keep track of the consensus items and make a final motion at the end of what additional changes should be made, that would work. But it also would be equally fine if you wanted to make interim motions of changes that are agreed upon. I will also defer to the Town Attorney if she has anything to add. ATTORNEY WHELAN: I agree with those suggestions. CHAIR HANSSEN: All right, so we’re flexible. We are only making a recommendation; it’s not a deciding vote that will go into law. Vice Chair Barnett. VICE CHAIR BARNETT: I have a question for the Town Attorney, which is whether you can articulate any benefits to using a simple access road versus having an easement. We talked about both, and I don't know if there would be a situation where the fee would be preferred. ATTORNEY WHELAN: The only benefit that came to mind for me was consistency with what the Town requires for other flag lots, but other than that I can’t think of a benefit of one versus the other. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 CHAIR HANSSEN: I’m going to ask a follow up on the Vice Chair’s question, which is since this is for specific kinds of projects is it problematic that we have things in the ordinance that are different than what’s in our Zoning Code? ATTORNEY WHELAN: No. JENNIFER ARMER: And I would say that it’s not a problem. If you think of the regulations that were adopted for Accessory Dwelling Units, there are situations there, for example, the setbacks that are allowed for those Accessory Dwelling Units, the floor area that is allowed for those additional Accessory Dwelling Units, and the fact that they can be a second story on a detached structure, those are all things that otherwise wouldn’t be allowed, but are allowed for that specific type of use or process. CHAIR HANSSEN: All right, that’s helpful. So the issues that we’re talking about right now, and I would like to hear more from the other Commissioners, is this issue about the fee simple or easement, or both, which is certainly an option, for how to provide access. The issue of the access and how it’s counted, and then the issue of the right angles. Commissioner Raspe. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 COMMISSIONER RASPE: Thank you, Chair. My thoughts on the easement issue, I think we should make available to the developer either/or and give them the most amount of flexibility, because as we know in this town, every lot is different and I think any more flexibility also adds to supporting the general purpose of SB 9. The only caveat to that is, as Town Council notes, if we are going to do an easement, at a minimum the user of the easement should be responsible for the maintenance of the easement so that at least there’s always access, and no property can block another from use of that easement at any given time. On the radial versus perpendicular line issue, again, I would counsel flexibility, because it seems to me that probably more than half of this town is nonconforming in its shapes and sizes, and so again, whatever allows us the greatest benefit and of use, let’s use that standard, so I don’t think we should have a hard and fast rule that it be 90% or any other. In my view, more flexibility in that regard is better. Back to the easement issue, who owns and holds that, I think it’s whoever owns the land, that portion of the land should be allotted to their interests. That’s my thinking. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 CHAIR HANSSEN: Very good. Oh, and the width of the access? COMMISSIONER RASPE: It seems to me that 20’ is entirely too large, so I would be happy with any number between 12’-15’. It should probably be a standard number, and I would defer to experts on that one if there were a standard in the industry that’s more. And again, I think the only issue is in the hillsides. They’ve recommended, I think, 18’ because of fire reasons. Let’s maintain that one, because I think the Fire Department has already opined that they need a wider access on the hillsides. CHAIR HANSSEN: Can Staff clarify about the access in the hillsides? Is it 18’? RYAN SAFTY: Thank you. The guideline says 12’ for driveways in the hillsides. COMMISSIONER RASPE: Okay, I stand corrected. Thanks. CHAIR HANSSEN: All right, good. Vice Chair Barnett. VICE CHAIR BARNETT: I agree with Commissioner Raspe in terms of giving a developer the option to use a fee interest or an easement, but I think we need to keep in the requirement that in the case of the fees means that the LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 lot size has to be considered without that fee interest. That’s the way (inaudible) read. CHAIR HANSSEN: Is that possible if they use the fee simple structure to not count that as a reduction of the square footage that they have available? JENNIFER ARMER: Just to ask for some clarification, what you’re saying is if the rear lot included the flagpole, so they own that area rather than having that as an access easement, that you are interested in having the rear lot being able to use the flagpole area in terms of calculating their maximum house size, is that what you want? VICE CHAIR BARNETT: I read the current draft of the ordinance. In the case of the fee interest grant to establish the right-of-way to both parcels that there would be a reduction in the minimum parcel size. Maybe I had that wrong. JENNIFER ARMER: My understanding of the way that it’s written so far—and Mr. Safty, you can correct me if I’m wrong—is that when we are looking at the lot size for the rear parcel in terms of what maximum allowed floor area, we just calculate that rectangle in the rear; we do not include the purple area. I believe that’s what we’re talking about, or are you talking about the lot area in LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 terms of the 40%/60% split? I guess there are a couple of different components here. VICE CHAIR BARNETT: My understanding from reading the ordinance, and perhaps I’m wrong, is that the fee grant as opposed to the easement would reduce the available square footage for the improvements with Parcel 1 or Parcel 2. JENNIFER ARMER: That is correct, because when it’s fee that is part of the lot area for the rear, but it doesn’t count towards when they’re calculating the maximum floor area, so that is correct, whereas if it was an easement, then the entire parcel size is divided between the two and can be used towards that calculation. My understanding then is what you’re suggesting, that when the flagpole is fee rather than easement, that that would not be excluded from the net lot size of the rear parcel. VICE CHAIR BARNETT: Correct. I think we’ve got it now. JENNIFER ARMER: I think I understand what you’re suggesting, hopefully. CHAIR HANSSEN: Just to add on to this discussion, so the chart that you just had up from Mr. Jeans where he was showing that the back lot would only have half of what they thought they had because you’re LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 including the flag, that’s not what our ordinance says, is that what you’re saying? Because counting it as part of the overall lot and then deciding that you could build less on account of it because of FAR, those are dramatically different things that we would be worried about, because you wouldn’t be able to get the desired result? JENNIFER ARMER: I think part of what is causing some confusion in this situation, if you look at the first example that he provided you can see that for Parcel 2 there is the gross lot area, which includes the purple, and then there’s the net lot area, which does not include the purple area, and the reason that there is a net lot area in this case is that the Town’s current regulations for flag lots say that when you calculate your floor area it needs to be based on that net lot area excluding the flagpole. So you still have the gross floor area that’s the equal between these two examples, but because so much of that is for the 20’ flagpole it ends up very uneven in terms of net lot size that can be used for the purposes of calculating the house size. CHAIR HANSSEN: So I’m going to say, at least from my perspective, that that’s an undesirable result, because they’re sharing that for access and you shouldn’t penalize them in terms of the square footage of the house LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 they should build, so is there a way we can make it so that that’s to the case? JENNIFER ARMER: I’ll actually defer to Community Development Director Paulson to see if he has thoughts to add. JOEL PAULSON: Thanks. Not to add more confusion to what’s already seemingly confusing to folks here. The current code actually doesn’t include the flag portion as part of the lot, so for meeting the minimum requirement, and as Ms. Armer mentioned, it also reduces the potential FAR. Obviously, the simplest way to deal with that is if someone chooses not to do a flag lot because the lot is small, as in Mr. Jeans’ instance, but you could have much larger lots in the R-120 or the HR, for instance, where that’s not going to be as much of an issue, but I think the easement really cleans that up. Having the option, I think, is probably the best way to go, and that way if they do run into an issue where it is significantly restricting the FAR, for instance, or impacting the lot at the rear because it reduces the net lot area by so much, then that easement really is going to be the provision that allows them to have the most flexibility. CHAIR HANSSEN: Okay. Commissioner Tavana. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 COMMISSIONER TAVANA: Thank you. Just a quick question for Staff, and I would be remiss if I didn’t ask this out loud actually tonight. Is there a minimum square foot size for the urban lot split in terms of the applicability in terms of how large a lot should be that’s applicable? ATTORNEY WHELAN: I can answer that one. There are two requirements. Neither of the two lots can be smaller than 1,200 square feet, and the ratio of the lots to one another needs to be 40%/60%, so you can’t have one tiny lot and one huge lot. COMMISSIONER TAVANA: So what you’re saying is we can start with a 2,400 square foot lot, and divide it by two to have two 1,200 square foot lots? ATTORNEY WHELAN: Yes. COMMISSIONER TAVANA: And that’s the requirement that’s coming down from the State? We can’t circumvent that anyway? ATTORNEY WHELAN: Yes. COMMISSIONER TAVANA: Okay. I just wanted to make sure. Thank you. CHAIR HANSSEN: And the 40%/60% as well, so if the 40%/60% made it that the lot was bigger than you LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 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 described and their minimum lot size would go up for the 40% if the lot was big enough. COMMISSIONER TAVANA: Got it. CHAIR HANSSEN: Unless I misunderstood the Town Attorney. I think it would be (inaudible) the 1,200 square feet if it violated the 40%/60%. ATTORNEY WHELAN: That’s correct. CHAIR HANSSEN: All right. I was just going to weigh in on the issues that we’ve been discussing so far. I would advocate for as much flexibility as possible to encourage production as long as we’re not going to create unintended consequences. On the issue of the fee simple or the easement, I think we should offer both, and if the fee simple does result in a reduced square footage I would want to make that go away if we can do that, because I think that should be on a level playing field based on whether or not they choose one access form or another, and I also agree that we should have something very specific in there that there’s no way that access can be denied to that second lot, so I would say that. Then on the issue of the width of the access, I think we should go with 12’. That’s minimum required for Fire, and that’s what we do in our hillsides. Whether or LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 38 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 not we adjust the Zoning Code as a follow up to this to reduce it from 20’ is a subject that could be considered, but I think we want to make flexibility while still holding to our standards. Then on the issue of the right angles, I would vote for more flexibility. I can’t imagine what could go wrong, and there might be something that could go wrong, but since it’s not in the SB 9 Ordinance from the State, or law from the State, we should probably just not discuss it here, because I think we would find that there are issues where it wouldn’t apply and we wouldn’t want to throw them in a discretionary review. Do any others have comments on these issues so far before we move on? All right, I’m going to back to page 6 of 9 in the Staff Report and the issues that is titled, “Proposed Changes that Resulted from the Public Comment.” We’ve been discussing some of that already, but there are some other items in here that we haven’t discussed, and the first one that they have is applicable zones, and the issue is that it has to be a Single-Family Residential zone, but it might not be called that per se, so what Staff was asking is could we consider allowing SB 9 permits with other zoning designations? Possibilities could include Multi-Family zones, or in any zone where the existing use LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 39 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 is a Single-Family use. I was curious from Staff’s perspective what other zones would that be specifically? Or are there too many to discuss? JOEL PAULSON: I’m happy to jump in, and then if Mr. Safty or Ms. Armer has any other comments. This is a comment we received from a property that’s in the RM:5-12, and so they were built as detached condos, so they’re detached Single-Family homes in the Multi-Family zone but they’re under condo ownership. There’s an interest from at least one party who I have spoken to to be allowed to subdivide using SB 9, and we have those instances in the RM:5-12, probably not so much in the RM:12-20, although I could think of at least one. Those are the two that really came to mind. We also have nonconforming uses where there are Single-Family homes in Commercial zones. I think that might be a bridge too far, but ultimately we wanted to at least get some input from the Planning Commission to see if there was any interest. Again, we’re not obligated to allow that, but as with some of the other discussions this evening it’s kind of that balance of do you want to be to the letter of the law or do you want to allow a little more flexibility? So that’s really the question, whether they should be LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 40 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 allowed in any other zones, or none other than what we have currently proposed? CHAIR HANSSEN: Let me just ask one clarifying question before I go to Mr. Safty. The law from the State basically excludes the Historic District, and I understand that some people have asked to get off the historic inventory on account of SB 9 so that they can do this kind of stuff, but since the State has said historic properties are not part of SB 9, if we wanted to go there, and I don’t know that we do, are we allowed to be more lenient than the State on that issue of historic? ATTORNEY WHELAN: Yes, SB 9 says that cities can be more expansive than SB 9 if they choose to. CHAIR HANSSEN: So other zones, and it could include Historic, even though we’re protected by the State to not include Historic if we want to go there? ATTORNEY WHELAN: Yes. JOEL PAULSON: Yes. Staff wasn’t intending including Historic districts. The comment that you reference about other properties, as you all know we have (inaudible) levels of Historic, so it may be a pre-1941 home but it’s not in the districts. Those are some of the ones that we will probably see asking to be removed so that they may be able to take advantage of these new LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 41 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 regulations. We don’t envision opening up the Historic Districts, but of course that’s something the Planning Commission could discuss if they feel that that’s something. CHAIR HANSSEN: I’m only asking the question. I wanted to ask about the condo example that you gave. If they have condo ownership and they did a lot split, what would happen with the land? Because the land is owned by the condo association, right? They would have their buildings, so would they just divide it amongst the individual condo owners? How would they handle the land and the access if they did a lot split on a condo? JOEL PAULSON: Thank you. Vice Chair Barnett or Commissioner Raspe might have some additional comments, but technically the condos are just air space, so they would have to undo the condo map and simultaneously record an urban lot split, which would give them the land. Currently, as you mentioned, there is a one lot and then there are two air space condos that encompass their Single-Family homes, so now they would each have a portion of the existing underlying lot rather than just air space rights. CHAIR HANSSEN: So Commissioner Raspe. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 42 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 COMMISSIONER RASPE: Thank you, Chair. I think Director Paulson is essentially right. It’s actually tough to envision how it’s going to work mechanically. Chair, you raised the question with respect to applicable zones and how it’s currently applicable to HR zones and do we want to push that into other Multi-Family. My thought as we’re talking tonight, I’m all for as much flexibility as we can, but we’re kind of venturing into the unknown a little bit, and so my thinking is perhaps at our first cut at the SB 9 implementation we leave it to its current confines and not expand it into Multi-Family or condos, or certainly not Commercial. Then let’s get our feet under us a little bit, and if we have to come back and revisit that issue, we can always do that, but I think as a first cut I would feel more comfortable limiting its scope to what it’s currently drafted to be. CHAIR HANSSEN: Thank you for that, Commissioner Raspe. By the way, that was my initial reaction as well reading through this, but we were asked by Staff to consider this, but I think it’s still pretty new and I agree. I think a lot of studies should be done, or understanding of where this could go to add a bunch of other zones, because we’re taking on the hillsides as it is. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 43 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 Barnett. VICE CHAIR BARNETT: I think in the case of a condo association where every owner has an undivided share or percentage in the project as a whole, the buildings, the land, it would probably take 100% of the owners and the lenders to approve a lot split under SB 9, so I would agree with Commissioner Raspe that we hold off on that as not being practical or certainly deserving of further investigation. In the case of Planned Development forms of common interest developments where everyone owns their own home and the land under it but the association owns the common area, in that case there’s usually very little common area space and building our buildings on that would certainly impair that open space, so I’m generally against it, but I think the Council could look at it and see if they would come to the same conclusion. Thank you. CHAIR HANSSEN: Thank you for that. Any other thoughts on increasing or adding other applicable zones at this point with our first permanent ordinance? Commissioner Tavana. COMMISSIONER TAVANA: I would just say I would highly advise against it. That’s all. Thank you. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 44 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 HANSSEN: And as was said, this is a recommendation to Council, so I think what we’re asked to do is discuss it and consider the issues around it, and what I’m hearing is don’t go there on adding more applicable zones since we’re adding on the hillsides and having to digest that, and let’s see how it goes, because we can always do more later. Let’s move onto the grading limitation. We have the grading limitations from the hillsides. A lot of people have expressed objections to the 50 cubic yards grading limit, and there is also the cut and fill that was included from the Hillside Design Guidelines. The issue that was brought up is there are people that want to get rid of it entirely, and then there are some that would want a carve out for the driveway, or Staff also suggested the light well, so thoughts on that. Keep it in there? Modify it? Commissioner Thomas. COMMISSIONER THOMAS: I have a question for Staff about grading and I guess grading limitations and SB 9, if people take this route and how CEQA comes into this whole picture. JENNIFER ARMER: I’ll start with the CEQA question. SB 9 applications are explicitly exempt from CEQA, so there wouldn’t be any CEQA review under this. If LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 45 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 somebody came in for a new two-unit development, they were building two units and they complied with the regulations that we had, then it would go through an exempt project under CEQA. If you could clarify what other questions you had, I could describe what the current regulations are for grading and how it would work with SB 9 if that would be helpful, or if there’s something else you wanted clarified. COMMISSIONER THOMAS: Thank you. I think that sometimes we can pass ordinances and come up with some regulations surrounding them knowing that if projects are going to have to abide by CEQA then we have some safety with regard to environmental issues. Grading is not necessarily an area that I am an expert on, and I see Commissioner Janoff raise her hand, but I don’t want grading to be limiting, because we want people to be able to use SB 9 in a productive way to create more housing that we need in town, but I also don’t want us to be creating any major environmental consequences associated with it incidentally. CHAIR HANSSEN: Thank you. Commissioner Janoff. COMMISSIONER JANOFF: I had a couple questions on this section, but before I ask, we sort of left the question of Historic Districts unanswered, and I would be LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 46 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 an advocate of exempting Historic Districts from SB 9, just in case that was something that we needed to cover. But back to the grading, my understanding is that if the grading is in excess of a 50 cubic yard net, then there’s a grading permit required. There was an implication from the public that that would cause the whole thing to be taken out of the SB 9 queue and move it into the discretionary queue. That’s not my understanding, but if Staff could comment about whether that is in fact what would happen. Is this one of those gotchas that if you’re over the 50 cubic yards you’re no longer eligible for SB 9? RYAN SAFTY: Thank you for the question. As currently drafted, and this is also the same with the Urgency Ordinance, if you were triggering more than 50 cubic yards—again, we’re not talking about excavation for the main house, but grading associated with the driveway or the yards—you would not be able to use an SB 9 two-unit development. That doesn’t mean you can’t use any of the provisions of SB 9. You could still go through the urban lot split, you could still theoretically get a discretionary permit for the grading permit and then proceed with the administrative two-unit development process. It’s not saying that you can’t use anything with SB 9, but if grading or 50 cubic yards is triggered you LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 47 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 would need that separate discretionary application as one part of the process. COMMISSIONER JANOFF: So if they had that, then they could still continue with the SB 9 two-unit. Okay. I’m generally in favor of keeping the grading pretty low, because we’ve seen a lot of pretty crazy examples of people digging a whole ton of dirt out, not to be literal, so I’d be inclined to keep it low and let that grading permit be triggered, and then it can still go back into the SB 9 lane if they get that grading permit. I had a question too about the light wells. As written in the Staff Report it seems to be the opposite of what we would want. It says, “Additional clarification could be added to state light wells that do not exceed the size required by the Building Code would also be considered excavation,” and it seems to me that we would do just the opposite, light wells that do exceed the size required by Building Codes would be considered excavation if it’s within the envelope of the Building Code it seems to me that that shouldn’t be counted as excavation. JENNIFER ARMER: And that is correct. Currently we don’t count light wells as excavation, but we have seen situations where a light well becomes a below-grade patio, or it becomes a cut-out around the entire back perimeter of LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 48 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 an existing building, and so one thought was to try to have this be an Objective Standard that we could tie the limitation that it’s exempt from the grading calculation, but only when it is just the minimum required for light and access by the Building Code. COMMISSIONER JANOFF: So what you’re stating is opposite of what this sentence reads, and it’s what I would advocate, but if the light well is within the envelope required by the Building Code it does not count as excavation. Anything beyond that, and yes, we’ve seen all kinds of excessive grading to create patios and other things in various requests, and I think I would even be inclined to say once you go outside the Building Code it all counts. You can’t say up to the Building Code doesn’t count and anything beyond that does count. I’d say if it’s within, it doesn’t count, and if it’s over, it all counts. I don't know if that’s excessive, but it just seems to me that it flirts with a lot of it’s within this but it’s not there kind of arguments, and so that’s my thinking. RYAN SAFTY: Just to clarify, the reason it was written that way, excavation is actually exempt from a grading permit, so the light well we were saying would count as excavation for the house and therefore not trigger the 50 cubic yards. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 49 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 COMMISSIONER JANOFF: That’s a nuance. I would maybe write that differently. Thank you. CHAIR HANSSEN: I’m going to weigh in and agree with Commissioner Janoff. In the years I’ve been on the Planning Commission people buy properties in the hillside and then they have big slopes and all that stuff and they wish it wasn’t that way. They want it to be flat, and so they want to go put in a 20’ retaining wall and excavate thousands of yards of soil. We’ve seen some of these things, and sometimes they’ve even come to us for code compliance issues, so the temptation is way too high for people to try to make the hillsides not be hillsides so that they can be fully usable by them for their property, which is understandable in terms of idea, but we should be trying to guard our hillsides and keep them the way they are. I would be personally in favor of allowing the driveway and the minimum required for light wells and the house, but not the rest to make it completely flat for the purpose of (inaudible). I would definitely not take it out. Vice Chair Barnett. VICE CHAIR BARNETT: The comment from the public was that additional grading should be allowed for driveways, fire access, and turnarounds, and I wonder if LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 50 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 Staff could give some idea of how often permits are pulled for that kind of additional grading. RYAN SAFTY: Thank you for the question. Ms. Armer, if you have a specific number, chime in as well. Fairly often in the hillsides, especially with the new fire requirements for driveway widths and turnarounds, a grading permit is triggered just solely based on the Fire Department requirements. JENNIFER ARMER: I would agree. CHAIR HANSSEN: We’ve seen a few in the last year where the grading for the driveway was the thing that threw it over the 50 cubic yards or the maximum cut and fill. VICE CHAIR BARNETT: So my input would be that we perhaps submit a recommendation to the Council to at least consider adding additional grading for those specific purposes without getting a permit. CHAIR HANSSEN: Any other comments? So what I heard is the support is there for keeping the grading limitation in there, but having exemptions for the building is already in there maybe to add the driveway, and then to make sure that the light well is limited to a light well. I think I captured that correctly, so does anyone see it differently than that? LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 51 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, so then we can move on. The next is Fire review, and it was about requesting Santa Clara County Fire Department be included in the review. This would not need to be included in the ordinance but could be recommended as part of the implementation of the project review process. Staff, if you could clarify, I saw one comment from one of the architects or developers that when they started going through the process Fire came in later, and then that might have been the thing that threw it out of the ministerial process, so they wanted them to be included earlier in the process, like at the beginning. Is that where this came from? JENNIFER ARMER: Yes, I believe that is correct. We actually have a number of Accessory Dwelling Unit examples in the hillsides where they submitted an application for an Accessory Dwelling Unit, they received that permit, and then they came in for their building permit and during the building permit review there is review by Santa Clara County Fire Department, and at that time they were told they needed to have a fire truck turnaround, for example, on the site because of the new dwelling unit, and that was either infeasible or caused additional problems. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 52 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 I believe we have an application in right now where they’re going through the Architecture and Site review process because of site grading that’s associated with an Accessory Dwelling Unit, so there is a desire by some applicants to get early pre-review or review by Fire during the SB 9 application process, and what we tried to convey in our Staff Report is that if you had review by Clara County Fire as part of an SB 9 application that that causes some real problems in terms of timelines and cost, and so that is not something that we would recommend, but that we are happy to work with Santa Clara County Fire to see if there’s a possibility of setting up some sort of pre-review. I believe at least one other agency in the area has as a requirement of the application’s submittal for one of these SB 9 applications that they already have gone to Santa Clara County Fire, or whatever the applicable fire district is, for approval and have a letter saying that they can do this before the submittal is received. We would need to work further with the Fire District before establishing the details of that review. Hopefully that helps. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 53 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 HANSSEN: That helps. So what you’re looking for is for the Planning Commission to say whether that is a good idea or not? JENNIFER ARMER: We’re bringing this up because this is an issue that has been brought up by the public and we want to make sure that the Planning Commission has an opportunity to weigh in on it, but we would not recommend that it include any modification to the ordinance. CHAIR HANSSEN: Got it. But it could be as part of the process in our recommendation to Council that you ought to, or not, involve Fire early to make it more streamlined and to increase the ministerial part of this process. Commissioner Janoff. COMMISSIONER JANOFF: As I understand it that makes a lot of sense to have that step earlier in the process than later. It’s a whole lot less redo, and if we’re trying to make this as streamlined as possible I would be in favor of adding that as part of the implementation. CHAIR HANSSEN: I think that makes a lot of sense as well. Any other thoughts on that? Okay, so consider that a recommendation from the Planning Commission, not to be in the ordinance, but to be part of the process. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 54 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 The next one is windows. This was about the standards were originally included to minimize privacy impacts as State law limits setbacks to 4’ on the internal and rear property lines. The draft ordinance amends the windows standards to decrease restrictions so that all second stories within 10’ from the side and rear property lines can have clerestory windows and larger windows as needed for access. Some of the people were commenting that they wanted to just utilize the underlying zoning standards, so as it stands right now though it’s based on the 10’, is that right? RYAN SAFTY: If you don’t mind clarifying 10’ in terms of what exactly? CHAIR HANSSEN: Because there is some movement in this area. Maybe you could recap what’s in the draft ordinance right now, because people were complaining about that being too restrictive. RYAN SAFTY: Currently in the draft ordinance you need a 4’ side and rear yard setback. If you build a second story, that then needs to step in an additional 5’, so we’re saying if you are a little bit beyond that… I’m sorry, all second stories within 10’ from the side and rear property lines can have both the clerestory and the larger windows. What a lot of the members of the public were LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 55 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 hoping to see is that if they meet the underlying zoning for setbacks, for example, there’s one specific gentleman who lives in the Hillside zone, so if he incorporated a 20’ side yard setback would they still need to meet those clerestory and minimum egress/egress size requirements? CHAIR HANSSEN: And what is Staff’s recommendation on this? What problem would it cause to use the underlying zoning versus what we have in there now? RYAN SAFTY: I can start off, and Ms. Armer, if you see any other additional issues, let me know. This was included originally just solely to protect privacy, because again, the setbacks are reduced so substantially, so we don’t see any initial concerns with something like that. We would just be looking for recommendation from the Planning Commission to make that change. JOEL PAULSON: I would just add that, for instance, in the R-1 rezone the minimum side setback is 5’, so if you used just the underlying zoning that some people are requesting you could have a second story that’s 5’ from the property line with picture windows in it, but again, our recommendation currently carrying forward is in a similar vein to the Urgency Ordinance’s, if it’s 10’ or LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 56 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 more, then you can have a little more freedom from a window size perspective. CHAIR HANSSEN: Because the setback is only 4’, so we’re saying you have to get up to 10’ to do that. Okay. Commissioner Janoff. COMMISSIONER JANOFF: I think that’s a good change. Thinking about what this is going to do to add in terms of density, changing it from the underlying zone to have that 10’, say if it’s 5’ underlying zone, makes good sense to me, so I think this is a good change and I’m in favor of it. CHAIR HANSSEN: I wanted to ask the question as far as the Hillside since we do have bigger setbacks in the hillsides. Does this make it harder for them, because most of the lots are already more than 10’ anyway, or are the setbacks going to be reduced to 4’ for the Hillside? RYAN SAFTY: The setbacks would be reduced for 4’ in the Hillside. That is a standard requirement across all SB 9 applicable zones. CHAIR HANSSEN: All right, so then that makes sense. Any other thoughts on this? Basically what the draft ordinance says now is that if you want more flexibility with the windows you have to have 10’, and then automatically the setbacks for everybody under SB 9 LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 57 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 applications will be 4’, even including the hillsides. So this would be to help ensure privacy, and do we want to make it less restrictive is the thing that we were asked by some of the architects. Vice Chair Barnett. VICE CHAIR BARNETT: I don’t see making it least restrictive, but I’m kind of concerned, and maybe Staff can help me on this. I think the proposal was that if the underlying zoning requirements in terms of setbacks were met that they could have the standard windows that are allowed by the code now, and they didn’t want that changed by SB 9, so maybe I could get some clarification on that. CHAIR HANSSEN: Did I hear this wrong, that if it’s 20’ in the hillsides it’s not for SB 9, it’s going to be 4’? JENNIFER ARMER: That is correct. If you did a two-unit development, or an Accessory Dwelling Unit for that matter, in the hillsides, then the side and rear setbacks are only a 4’ requirement. In a case where maybe there’s a standard zoning setback of 5’ we would still have it as requirement that the second story must be set back at least 10’ from the property line before you could do a window that is greater than either clerestory or the minimum that’s required for egress. We need to have that LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 58 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 minimum for egress allowance, but all other windows would have to be clerestory unless you move the second story wall back so that it’s more than 10’ from that side or rear property line. If it’s more than 10’, then whether it’s complying with the underlying zone setback or not is not restricted. CHAIR HANSSEN: So if the issue is that, let’s just take the hillsides for example was an issue, we can’t revert to the underlying zoning for the hillsides because it’s now 4’ instead of 20’, so I would say what you guys put in there makes a lot of sense for anything that’s part of SB 9, since we can’t use the underlying zoning for the hillsides, unless I’m not hearing something right. Any other thoughts on this? So what I’m hearing by lack of disagreement is that we should stay with the language that’s in the ordinance right now, that we shouldn’t change it. Let’s see, second story stepback was the next issue. Comments received regarding the stepback requirement requesting that this be removed for two-story SB 9 units that meet underlying zoning setbacks. This standard provides both the reduction in potential privacy impacts as well as providing construction (inaudible) that extend the full height of the new two-story residence. Some of the LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 59 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 architects were saying it’s going to limit their design flexibility and whatnot. Commissioner Raspe. COMMISSIONER RASPE: Thank you, Chair. I just wanted to make sure I was reading it correctly. It’s Section B-5 of the (inaudible) ordinance, which says, “All elevations of the second story of a two-story primary dwelling shall be recessed by 5’ from the first story.” If I read that correctly, if the building has four walls, or four sides, every side has to be recessed on the second floor, is that correct? RYAN SAFTY: That is correct as currently drafted. COMMISSIONER RASPE: I could just envision that. I understand that has certain privacy benefits to the neighbors and everybody, but I can see it resulting in some kind of odd architectural choices if every wall has to be recessed, and so I’m curious if maybe there’s a way to limit it to those that are exposed or create privacy concerns? JENNIFER ARMER: I would add that as we stated in the Staff Report, it’s both for the privacy as well as we often see comments from the consulting architect about big, blank, tall, two-story walls, or the tall front of a LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 60 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 building in terms of compatibility with the surrounding neighborhood. COMMISSIONER RASPE: Absolutely. I agree that breaking up a façade with stepbacks is in many cases desirable. It just seems to me difficult to make it a requirement for all four sides of a building. I can’t envision it correctly in my mind perhaps. JENNIFER ARMER: It is similar to the discussion we had about Objective Standards previously. It’s hard to have Objective Standards and envision how to include those without going too far and causing odd architecture. COMMISSIONER RASPE: Agreed. CHAIR HANSSEN: Can you remind us—because we spent hours on the Objective Standards—where did we finally come out on the recommendation for the Objective Standards on the stepback? JENNIFER ARMER: I don't know if Mr. Safty has specific memory on that, but I do believe we had stepback requirements above the second story, so if you had a three- story building that that was going to be required. But I think in some cases it also was part of modify the façade so it might not have been for the entire length of that third story. We are still in the process of taking the LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 61 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 comments from the Planning Commission and putting it together in a revised document for Town Council. CHAIR HANSSEN: Fair enough. I’m going to agree with Commissioner Raspe. I’m having trouble envisioning a scenario where they would stepback, because most of the projects that we’ve seen here where they stepback the second story, it’s not all four sides necessarily, it could be parts that are facing other things or where they really need to break up the wall. I could see it as problematic to require it of all four sides, but then I wouldn’t want it to not be there, because we don’t want the big, blank walls, and we’ve seen those in proposals as well. That’s why I was asking what we ultimately decided, but the Objective Standards are for Multi-Family and this is for Single-Family, and it sounds like there might not be a way to make this an Objective Standard if it had to have a discretionary review just to decide what else is it facing and everything; I’m not sure about that. Commissioner Janoff. COMMISSIONER JANOFF: You kind of get the image of a small block on top of a bigger block, and that kind of gets your design ethic stuck, and I’m not sure that that necessarily would drive this. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 62 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 My recommendation would be to see if other jurisdictions have a stepback requirement. What’s Monte Sereno doing? What’s Saratoga doing? And if they have one that seems reasonable, great. And I think it’s a good idea to have a stepback, I think it makes for more interesting design, but if we make it a requirement for two sides where you have the closest proximity to a neighboring structure or something, I don't know, maybe not all four sides so that there’s some discretion about where you put that and taking into consideration the specific context, but I’d certainly want to see what other jurisdictions have tried. CHAIR HANSSEN: Ms. Armer, and then Commissioner Tavana. JENNIFER ARMER: Thank you, Chair. I just wanted to quickly answer the question that this was actually included based on the City of Campbell’s interim ordinance, so this was something that was taken directly from what they were putting in place. We were definitely looking at other agencies and what they have and what they included in their ordinance. CHAIR HANSSEN: So we’ve already gone through this process, and so what we’re doing wouldn’t be different than what others are doing is what you’re saying? LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 63 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 JENNIFER ARMER: That it was drawn from another example in the area. The other caution that I would share is that we are hoping to keep these regulations simple so that it is a straightforward thing for applicants to come in with a proposal, and so getting too complex about proximity to other buildings or property lines can cause unintended consequences in that direction as well. CHAIR HANSSEN: I had a thought on this, but I’m going to go to Commissioner Tavana and Commissioner Janoff first. COMMISSIONER TAVANA: Thank you, Chair. I’ll just quickly add that I agree with this second story stepback. I do think this is opportunity for us to shape how SB 9 projects are going to be seen in our town and I think a second story stepback, however that may look or may be feasible or not, will ultimately look better for these projects, so I would like to see this kept as is in the ordinance. CHAIR HANSSEN: Thank you for that, Commissioner Tavana. Commissioner Janoff. COMMISSIONER JANOFF: Given that Campbell is establishing something similar, I feel more confident that we could keep this. If we did any other benchmarking to verify that more than just Campbell is including something LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 64 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 along these lines, then that would be great if you’ve got time, but I’m comfortable leaving it as is. CHAIR HANSSEN: I think now that I heard that, I am as well. Vice Chair Barnett. VICE CHAIR BARNETT: I agree. I think having an Objective Standard on this particular subject would be the least worst solution. The double box structures are really unattractive in my personal opinion and I think we don’t want to encourage that type of construction. CHAIR HANSSEN: So you’re saying to leave it as is, or to change it? VICE CHAIR BARNETT: As is, yes, with (inaudible). CHAIR HANSSEN: I just wanted to make sure I heard it correctly. I started thinking about what we talked about was Objective Standards, but the second story stepback here is not about breaking up the façade, it’s about privacy, so if it’s about breaking up the façade, then there are a lot of other things you can do besides the stepback like we were talking about in the earlier hearing. So if it’s really about protecting privacy and we’re going into uncharted territory with having a lot of properties closer together because they’re splitting their lot or LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 65 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 adding additional buildings on their lot, I’m okay with leaving it as is. Any other comments on this one? We only have a couple more to go through, but there might be other things that you want to bring up, in which case I’ll do a check and see if we need to continue for the next meeting. Size limit. Comments have been received in opposition to the 1,200 square foot size limitation for the first new SB 9 unit. The original Urgency Ordinance included the 1,200 square foot size limitation for any SB 9 unit versus the new one. When the Urgency Ordinance was extended the Council modified this to only apply to the first new unit. The 1,200 square foot size limitation is consistent with the maximum size of ADUs, and the second unit is allowed to use the remainder of the floor area allocated based on the lot’s FAR. There was an example from a potential applicant, or an actual applicant, about the way they saw it is they wanted to build a 2,400 square foot second building and they had around 4,000 and they wouldn’t be allowed to do this because the limit would be 1,200 square feet for the additional building. Commissioner Janoff. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 66 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 COMMISSIONER JANOFF: This is really confusing to me, and I’ll explain why. Throughout the ordinance we were talking about primary units and then the second unit, and so I was really confused about what’s primary, and if you can demo the existing, then what’s the primary, and what’s the first new unit? It doesn’t make any sense to me, so I think we should be clearer in our terms. And I suggested that we might add a definition for primary, because if primary is intended to be the larger of the two, then that’s one thing, but I’m under the understanding that you can have two primary units on a two- unit lot split, so that’s unclear to me. I understand the 1,200 square foot limit, because that’s consistent with the ADU policy, but I’m wondering if we should just leave it at FAR and let the developer figure out whether they want a 3,000 square foot and a 1,200 square foot, or a 2,000 and a… I’m not sure that it makes sense to limit the… And I’m assuming that the first new unit means the existing stays and there’s one new unit, and that’s 1,200 square feet, but that whole terminology is very unclear to me, and I think I understand this pretty well. Anyway, I would think that we could do something different for the SB 9s and could make slightly larger units but stay within the FAR and FAR plus… I’m not sure if LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 67 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 the plus 10% applies to this or not, so there’s just a lot of confusion around these things for me. CHAIR HANSSEN: Thank you for that. I had the same reaction. I was listening to the example that was in our written comments about if you are in the hillsides and if you can go up to 6,000 square feet and you’re not there with your current house, why couldn’t you use the rest of your FAR for that? And I also am not 100% sure about how the 10% bonus applies to this, but to me they ought to be able to build whatever is within the FAR for the property. I’m not sure why to limit it, and I understand that we did it for ADUs, but if you’re talking about a second dwelling unit, the comment that was made, a lot of people couldn’t live in a 1,200 square foot unit. Ms. Armer. JENNIFER ARMER: Thank you, Chair. I wanted to offer some of the context based on the discussion with Town Council, which is where this requirement originated, and for exactly the reason that Commissioner Janoff was mentioning. We did actually add a new definition in the ordinance that lays out that a first residential unit means one of two housing units developed under a two-unit housing development that can be an existing housing unit if it LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 68 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 meets or is modified to meet the 1,200 square foot floor area limitation on first residential units. The way that I think of this requirement to try to envision how it works is that the idea is there’s a goal that we heard from the Town Council to try to have one of the two units be affordable, and so affordable by design by not letting it be too large. In addition to that then they said because with a two-unit housing development application under SB 9 you could submit an application on a vacant lot for a two-unit housing development going through this ministerial process but only propose a single housing unit, and so they wanted to make sure that if they’re proposing only a single housing unit that it be one that is affordable by design. If they chose to do two, then they can actually make use of their full floor area, but by requiring it to be the first of the two, then it ensures that one of them is the smaller unit and therefore affordable by design. In addition to that they then did decide that because they are putting this limitation they wanted to include the 10% additional floor area that is allowed for Accessory Dwelling Units. One of the things that we have discovered over these last few months is that it is important for us to have additional language like we have LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 69 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 for Accessory Dwelling Units, that that 10% is intended just for the use of that small unit. If you’ve got a large property, for example, say it’s an acre sized lot in the hillsides, the intent was not to allow a 10% of that full lot size, it really was meant to allow this smaller unit to be built even if the existing house used the full floor area that was currently allowed. Hopefully that is helpful in understanding what was behind this regulation when Council put it in place. CHAIR HANSSEN: That helped a lot, because honestly, if people are going to build a 2,500 square foot house as a second unit, it’s going to be worth several million dollars, so it’s not going to be affordable based on the way things are currently going here. Commissioner Janoff. COMMISSIONER JANOFF: Wow, that was a great explanation and completely changes my mind. Okay, yes, let’s try to keep these as affordable as possible; so keep that 1,200 square foot. I don't know whether there’s any opportunity for any preamble around the SB 9 Ordinance introduction, but I think that explanation about why the 1,200 is a really important one, at least for me, and maybe it’s not important once we put it in place or Town Council approves LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 70 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, then it will be what it is, but I think it’s important for people to understand what we’re trying to achieve in the way of more affordable housing, so yes, I’m in favor of leaving it at 1,200. Thank you. CHAIR HANSSEN: I also wanted to ask a clarifying question, and then I’ll go Vice Chair Barnett. This was on another issue. It was about the occupancy, but I see that as applicable to this situation where they were talking about I go do a lot split, I sell the one lot, and then I want to build on the other, so then is it open territory or does that have to be 1,200 square feet? JENNIFER ARMER: The way that we look at something like that is we’re dealing with separate applications, so if they come in for an urban lot split, then we’re just looking at the sizes of those two lots, making sure that it’s meeting the 40%/60% split, all of those requirements for the urban lot split. Once that urban lot split is complete and recorded, then you have two legal lots and this actually does get to one of the questions that were asked by the member of the public. On those lots you have a choice. Do you want to go through a discretionary process so that you can do a Single-Family home that uses the full floor area that is LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 71 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 allowed on that new lot size, or do you choose to use the two-unit housing development application, which is more limited. The first unit on that parcel would have to be 1,200 or less, but you could do two units at the same time and therefore use the full floor area. CHAIR HANSSEN: So they could not go through this process, an urban lot split, and then build a Single-Family home and take advantage of a ministerial review? JENNIFER ARMER: Not if they want it to be more than 1,200 square feet. However, if you think of a house with an attached Accessory Dwelling Unit, as long as those were designed as two separate units, we don’t say that one has to be in front of the other, and because of this 1,200 square foot limit what we’re considering the first Single- Family unit is actually effectively the same as an Accessory Dwelling Unit, so there are ways around it a little bit, but they would need to meet some of these Objective Standards included in the SB 9 if they want the more limited process. CHAIR HANSSEN: Thanks for that clarification. Vice Chair Barnett. VICE CHAIR BARNETT: Thank you. In the context that we’re talking about I’m confused by paragraph 9 on 7 of 14 where it says, “The minimum living area of a primary LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 72 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 dwelling unit shall be 150 square feet subject to the Health and Safety Code.” JENNIFER ARMER: So that’s the minimum size for any dwelling unit. It can be larger than that, but we’re not going to count it as a dwelling unit if it’s only 100 square feet. Does that help? VICE CHAIR BARNETT: Yes, I’m trying to reconcile that with the 1,200 square feet limit. JENNIFER ARMER: I was going to say that the 1,200 is a maximum. The 150 is a minimum. VICE CHAIR BARNETT: Thank you. That’s very helpful. CHAIR HANSSEN: Other thoughts on this? Right now the current thinking, based on the Commissioners who have spoken, is to leave the additional unit at 1,200 square feet for all the reasons that went into the original ordinance to make more affordable housing. So are there any thoughts to change it from that? Okay, I’m going to say that’s a leave it as is. The last one that’s in Section C is the frontage requirement. Comments received regarding the minimum width required for the… Oh no, we did this already, the 20’. We didn’t have an additional comment about lot frontage if it’s not a flag lot, or did we? I’m trying to remember. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 73 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 JENNIFER ARMER: I believe we may have had a request that the lot frontage requirement be removed completely. It was often connected with the discussion of flag lots. Mr. Paulson, I don't know if you have additional thoughts on that. JOEL PAULSON: I would just say with the discussion previously tonight that really was tied to the 20’ for a flag lot, which has already been decided. So now the new minimum width, I would say would be if you’re doing a flag lot it’s 12’, but you also could have no frontage and do an easement, so I think that we can clarify that component and/or remove it. We’ll look at that prior to going to Council. CHAIR HANSSEN: All right, that sounds good. And was there anything else that we needed to consider, let’s see, you said in Section D? JOEL PAULSON: I think, Chair, in Section D you’ve talked about most of it except for the 16’ height limitation in HR zones, the 30% slope, and then the 40’ (inaudible). CHAIR HANSSEN: Thank you. I just wasn’t pulling up the right page. I have highlighted it here. So there are a couple of more things we need to talk about. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 74 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 The 16’ height limitation for HR zones. Some people have complained about it, because the way it goes in the Hillside Design Guidelines is it’s 25’ unless you’re visible, in which case it’s 18’, but now for the sake of simplicity it’s 16’, period. Some people are saying that’s not enough, so thoughts on that? Commissioner Janoff. COMMISSIONER JANOFF: We’ve struggled so much in the Planning Commission with these excessive heights or what’s visible and what isn’t visible. I’m thinking that the 16’ is perfectly reasonable, especially since in theory it’s a second unit on a property, so I think that’s reasonable. CHAIR HANSSEN: Commissioner Raspe. COMMISSIONER RASPE: I would agree. It seems to me that 16’ allows a two-story if you wanted to with 8’ plates, so I think it probably gives you all the height you’re going to need if you use it wisely, so I think 16’ seems like the right number to me. CHAIR HANSSEN: And going back to the discussion we just had on the 1,200 square feet, I’m sure there are some enterprising people that are thinking SB 9 is for building mega-houses, two on a lot, so we have to remember LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 75 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 the intent of SB 9 was not to do that, it was to make more housing, but affordable in smaller units. The next one is we adopted, as you’ve read in the Staff Report, quite a number of things from the Hillside Design Guidelines. Well, we actually adjust the square footage available, but the 30% slope restriction for buildings in the HR zones. So what it’s saying is if there’s a 30% slope that you cannot do SB 9? Let me make sure I understand that ordinance. Staff, could you clarify? RYAN SAFTY: That is correct. Specifically the building sites, it would prohibit a new two-unit development from being located in the area of the property where the slope is over 30%, and as you mentioned, that is to line it up with the Hillside Design Guidelines where that generally is a major exception or something that does Planning Commission approval whenever they are going beyond that 30%. JENNIFER ARMER: A lot could have areas that are greater than 30% slope as long as the proposed housing units are not located in those areas. CHAIR HANSSEN: So if there’s an LRDA and it’s not 30% on that property, let’s just say that the average slope of the property is 30% but there are some parts of it that are reasonably flat, they can still do SB 9? LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 76 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 JENNIFER ARMER: Correct. The 30% is just the building site, not the whole property. CHAIR HANSSEN: And we’ve had some submissions to the Planning Commission where they wanted to build on a huge thing, and I think what you guys are trying to avoid is having to do all these calculations to figure out the usable square feet, so just keep it simple and have it be if it’s 30% you can build there, is that right? JENNIFER ARMER: (Nods head yes.) CHAIR HANSSEN: I just am trying to make sure I understand the intent. JENNIFER ARMER: And reducing the grading involved. Right now the regulations say that the building should not be located in areas where there is a 30% slope or greater, and so we’re working just to be consistent with that. I see that Director Paulson has his camera on. He may have something to add. JOEL PAULSON: I’ll wait for Vice Chair Barnett and then see if there’s any additional. I think Ms. Armer covered it. CHAIR HANSSEN: Vice Chair Barnett. VICE CHAIR BARNETT: It was a comment from the public on this subject that the calculation of the 30% was LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 77 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 ambiguous as to what would be an average, for example, and maybe we could tighten that up in the proposed ordinance. JOEL PAULSON: We can definitely add that clarification. CHAIR HANSSEN: I definitely saw in a couple of the comments about if they have to do all kinds of different calculations before they even start on the SB 9 calculation, is it really a ministerial thing? But the idea of this for simplicity seems to make a lot of sense. Any other thoughts on the 30% slope? Then we already talked about the right angle requirement. Oh, there was the 3’ finished floor height limitation. It was increased from 18”, is that correct? RYAN SAFTY: That is correct. CHAIR HANSSEN: So now it’s 3’, and some of the architects have said it’s not enough for the hillsides, because you’re building on a sloped lot and you would be varying part of the home more than you’d want to. How did we come up with the 3’? RYAN SAFTY: Similar to the 30% that’s also from the Hillside Design Guidelines, it’s one of the guidelines that encourages you to step the building with the slope as opposed to building a flat pad. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 78 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 HANSSEN: Thoughts on whether or not to change this. I don’t think they were asking to eliminate it, or were they? RYAN SAFTY: The question was is 3’ too limiting, so I’m not sure there is one specific recommendation with a recommended number or removing it, but it was just to revisit it. CHAIR HANSSEN: Commissioner Janoff. COMMISSIONER JANOFF: If we’ve got a 3’ requirement for the Hillside Design Guidelines and this is the area that this is going to be problematic or not, it strikes me that we should be consistent. We’ve had the 3’ requirement for some time, yes? Or is it new? RYAN SAFTY: Correct, it’s been in the document, I believe, since its adoption. COMMISSIONER JANOFF: So if it’s been working well enough in that sense that we haven’t talked about needing to change it, then I would say that we could probably let the 3’ stand. CHAIR HANSSEN: My general thinking was the Hillside Design Guidelines have served us very well since they were created in 2004, and kudos to all the people that put those together, because they’ve been very, very helpful in so many hearings that we’ve had, and so if the 3’ has LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 79 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 worked for us, I’d say (inaudible) that over a long list of the other requirements will serve us well as we go into this SB 9 territory without making it too onerous. I’m sure there will be exceptions, but you have to put a stake in the ground. Any other thoughts on this 3’? I think we did the right angles. Then the rest of this says you’ve got questions and you can answer the questions. Town Attorney. ATTORNEY WHELAN: Thank you. In my notes I unfortunately didn’t write down where the Commission landed on the right angle issue. CHAIR HANSSEN: My sense of where we were is that we should not put the right angle limitation in there to give people more flexibility, and any Commissioners speak up if I didn’t get that right. I didn’t miss anything that was in your notes, I don’t think, because the other ones here were questions. It is 10:00 o'clock, but I do want to see if there are more things that people are worried about that we should continue this to our next meeting, and if there’s a lot of stuff that we haven’t covered, then we should continue, but if not we can see if we feel like we’ve gone through enough to make a recommendation. Vice Chair Barnett. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 80 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 BARNETT: One of the commentators suggested that we might want to have affordability requirements for the SB 9 units, and I’m not sure where I stand on that, but since we’re trying to mix low- and medium- and high-income residences throughout the town I think it might be worth discussion. CHAIR HANSSEN: Our Town Attorney has her hand up. ATTORNEY WHELAN: I think there was a discussion on that previously, and it’s my opinion that SB 9 would preempt imposing an affordability requirement. I don’t think SB 9 authorizes towns or cities to do that. CHAIR HANSSEN: Director Paulson. JOEL PAULSON: Yes, thank you, and to add onto that, because this obviously was an item of conversation throughout the Urgency Ordinance discussion through the Town Council, because our BMP requirements start at five units or more if we wanted to do something, as Town Attorney Whelan mentioned, I think it was mentioned previously that we would probably likely have to do a nexus study to bring that number down, since we’re only talking about a maximum of four units here, but appreciate that input. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 81 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 HANSSEN: Question for Staff. Could we do the same thing that we do with AUDs and we give them some kind of benefit if they sign a deed restriction on the additional property? ATTORNEY WHELAN: I do think that would be defensible. CHAIR HANSSEN: And I would also add, since I worked on the last Housing Element and we’re currently working on the current Housing Element, we tried to put affordability restrictions on the last Housing Element and it came back from HCD as no, because what they want is for stuff to get built and then the secondary goal is the affordability thing, and my sense is they would view that as trying to preempt SB 9 from being built by adding too many restrictions on it. Even though it’s counterintuitive to what you really actually want to have happen, it comes out that way in terms of their thinking. Are there other thoughts on affordability restrictions? It sounds like we can’t do it unless we offer a deed restriction. What would be the benefit to the applicants that were willing to sign a deed restriction? ATTORNEY WHELAN: I’m just going to throw out some ideas. Maybe the permit is processed faster. Maybe there are different, more lenient FAR rules, or more LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 82 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 lenient height rules. Those are the thoughts that spring to mind for me. JENNIFER ARMER: Or reduced fees. CHAIR HANSSEN: That’s what I recollect from the ADUs. I don’t know the current state of it, but the fees seem to be an issue, because they do have to pay fees for SB 9, right? Even though that’s ministerial the fees aren’t any less than we have for other things, or are they? JENNIFER ARMER: The fees currently align approximately with an Accessory Dwelling Unit application, but then they do still need to pay the fees for a building permit. If it’s an urban lot split they still need to pay the fees to do the recordation of the map. CHAIR HANSSEN: In terms of a recommendation from us, I don't know if the other Commissioners think that it might be worth exploring whether or not to offer a deed restriction and what benefits we could throw in with it, but I think it would require some more thought than the time that we have right now. Any other thoughts on this? Are there other things that Commissioners saw in the comments from the public, including all the architects, that we need to discuss that we haven’t? I think Staff did a great job of pulling these out and putting them in the Staff Report, and then they had the benefit of the LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 83 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 community meeting a week ago, so we have all that input as well. I feel like we’re probably in pretty good shape, but I just want to make sure we haven’t missed something. Vice Chair Barnett. VICE CHAIR BARNETT: I missed something when we were talking about driveways, which is the Desk Item from Adam Mayer that we received today, and he had thoughts about configurations of buildings that would require one driveway, for example, and then having two would preclude a viable architectural approach to Multi-Family use, so I would just suggest that we commend to the Town Council that they consider that. CHAIR HANSSEN: Thank you for bringing that up. I have a question for Staff. I was thinking that was kind of related to this whole access corridor discussion, but maybe there’s more to it, but he’s doing a four-unit thing on the property and it doesn’t sound like it was under SB 9. Should we consider this differently than the discussion we already had with the width of the access corridor and how to count the square footage and everything? I’m asking Staff. JENNIFER ARMER: I believe there was some confusion in terms of the driveway requirements when you’re talking about a two-unit development that’s on a single LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 84 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 parcel versus the requirements if you do a subdivision and so then you have two separate lots. I don't know if Mr. Safty or Director Paulson has more to add to that. JOEL PAULSON: I would just add that ultimately the example he has, as you mentioned, is a four-plex with one driveway, which would be on one lot. If we’re going to have a flag lot or an easement to a second lot we have to have at least a minimum of one driveway to each of those lots. I think otherwise it would be too challenging on most configurations. The only thing that comes to mind if there’s a big concern about that would be, from his comments, to limit the number of driveways to a maximum of one per lot. Again, that would be potentially restrictive for a large lot that maybe did a two-unit housing development where it might make sense to have different driveways, but that’s something the Planning Commission and ultimately Council could consider. CHAIR HANSSEN: So basically, thinking it through now that we’ve gone through this thing, Mr. Mayer’s suggestion was related to a four-plex, which is not permitted under the current SB 9, because you would have to have done a lot split to have four units. RYAN SAFTY: Unless of course there was an Accessory Dwelling Unit. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 85 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 HANSSEN: No, no, unless it was a Junior Accessory Dwelling Unit, yes. But what he showed us pictures of is not currently possible under SB 9 as written, is that right? JENNIFER ARMER: Unless all of the units were similar in size. Three of those units would have to be 1,200 square feet or less, so there is potential, I guess, that it could be something like that, but they probably wouldn’t be as large as was shown in his illustration. CHAIR HANSSEN: But if we wanted to make it so to encourage people to have multiple units on a property and we wanted them to have only one driveway, what would we have to do differently? JOEL PAULSON: As I mentioned earlier, you could impose a maximum of one driveway per lot and that would cover the scenario he has, which would be confined by our FAR ultimately, and then would also allow for access to a newly created lot if an urban lot split developed, so that would create a maximum of two with an urban lot split and a maximum of one if you decided to do a two-unit development and two Accessory Dwelling Units on one existing lot. CHAIR HANSSEN: Good. It took me a couple tries to get it. I actually think that sounds pretty good. Vice Chair Barnett, what do you think, since you brought up the LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 86 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 thing? I thought Mr. Mayer’s letter was great and I think that is the kind of thing that we’d like to see. VICE CHAIR BARNETT: I guess the challenge would be making that an Objective Standard when we want to have other situations with two driveways. I’m not sure how we could carve that out, but maybe it could be. CHAIR HANSSEN: Other thoughts on this? So maybe we could leave it at we think it’s good idea but maybe it needs more research to see if it would be problematic to limit the number of driveways. Are there other things that we missed in the comments or that are on peoples’ minds relative to SB 9 before we make a recommendation to Town Council? I’m not seeing anyone. All right, does anyone feel brave enough to make a recommendation that we could vote on, a motion? JENNIFER ARMER: If it would helpful for Staff to list out the modifications that have been discussed this evening, we could give that a try. CHAIR HANSSEN: If you could do that, that would be helpful. I made notes, but yes. JENNIFER ARMER: I’ll put a list out there and we’ll see if anyone has modifications or changes or additions to that. I heard nine items. Some were LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 87 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 modifications to the ordinance; some were just discussion items or recommendations. Number 1 was support for access easement for flag lots in addition to the way that it’s written right now. Number 2 would be to remove the 20’ requirement, reducing that to a 12’ width for that access to the rear lot. Number 3 was removal of the requirement of right angles for new lot lines. Number 4 was about grading. It was to keep the limits on grading but to allow light wells as minimally required by the Building Code, and allow driveways per fire requirements to be exempt from grading, so not trigger a grading permit. Number 5 was just a recommendation that Fire review early in the process would be good, but no modification to the ordinance. Number 6 was to provide some clarification on the frontage requirement. Number 7 was in regard to the 30% slope, again clarifying the language there that it just applies to where the homes would be located. Number 8 would be to explore an optional affordability requirement, that there might be some LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 88 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 benefits, and provide some information on that for Town Council. And number 9 was an additional discussion item about driveways, about whether restriction to one driveway per lot maximum or in some cases two, but no change to the ordinance. Mr. Safty, did you have anything different? RYAN SAFTY: Thank you. I did hear just one additional one, to be clearer in the definitions in terms of primary structure in relation to the Accessory Dwelling Units and Junior Accessory Dwelling Units. CHAIR HANSSEN: These weren’t actual changes, but things we decided not to change. Do we need to go over that as well? For example, we decided not to add any other zones. We didn’t want to change anything with the windows. JENNIFER ARMER: No, the motion can just be the changes that you want to recommend to the draft ordinance. CHAIR HANSSEN: Good. Did we miss anything else? Commissioner Thomas, and then Commissioner Janoff. COMMISSIONER THOMAS: Thank you, Chair. I just want to make sure, I think that we want to keep how the second story stepback is, but in looking at my notes I’m still a little bit confused about that one, so I just want LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 89 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 confirm what we all agreed to was we didn’t want to change that. JENNIFER ARMER: That is what I heard. CHAIR HANSSEN: That’s what I heard too. COMMISSIONER THOMAS: Okay, I just wanted to confirm. CHAIR HANSSEN: Commissioner Janoff. COMMISSIONER JANOFF: Back to the Historic Districts are exempted from SB 9 currently, or do we want to specifically say that? JENNIFER ARMER: Historic Districts and properties that are built pre-1941 are designated by our ordinance to be considered historic, and therefore SB 9 would not apply to those properties. COMMISSIONER JANOFF: That’s clear now. CHAIR HANSSEN: If you had a chance to read the actual SB 9, it clearly spells out that they intended to exclude Historic properties from this SB 9 law, as well as anything in an earthquake zone, although exceptions that were wetlands and stuff that were listed in our ordinance and listed in the SB 9 law. COMMISSIONER JANOFF: Right, but we could be more lenient and include those if we wanted to, so I just wanted to be sure where we stand. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 90 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 And to that point, I had a question. I think in the ordinance it talks about a limitation on excluding very high fire severity zones. I was under the impression that all of Los Gatos is in a high- or extremely-high zone, like even more extreme than Paradise, which burned, so can Staff just clarify, is this a relatively small area for Los Gatos, or is this a pretty large area? JENNIFER ARMER: Thank you for that question. No, this is actually something that there was extensive discussion both for the Town of Los Gatos and other agencies when SB 9 first was put into place, and there is that section that says that it doesn’t apply in those higher fire areas, but it basically says if you meet the Building Code and the Fire requirements for construction, then you can build. So in the end, because we’ve adopted the Fire regulations that they list there, and any new buildings have to comply with that, then they are allowed in those areas. COMMISSIONER JANOFF: Right. Okay, thank you for that. CHAIR HANSSEN: That was a great question to ask though, because that was such a big issue when we were working on our General Plan, and it’s an ongoing issue for everybody, not just in Los Gatos but all through LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 91 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 California, but it sounds like it’s not going to prevent SB 9. So is anybody ready to make a motion to recommend this to Council with the changes that we have recommended so far? Vice Chair Barnett. VICE CHAIR BARNETT: I move to recommend approval of Ordinance 2327 to the City Council together with the proposed amendments, changes, and recommendations that we have processed today. JENNIFER ARMER: If I may, Chair? We don’t actually have an ordinance number. What we would be recommending is that you are looking at Exhibit 1 to the Staff Report, which is the Draft Permanent Ordinance. It is based on the previous ordinance, but Exhibit 1 is what we would ask you include in your recommendation. CHAIR HANSSEN: Is the maker of the motion okay with that? VICE CHAIR BARNETT: I’d be happy to revise my motion to refer to Exhibit 4 instead of Ordinance 2327. CHAIR HANSSEN: Okay, thank you. Is Commissioner Janoff making a second? COMMISSIONER JANOFF: I’m making a second, but I think it’s Exhibit 1, not Exhibit 4. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 92 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 HANSSEN: Maker of the motion, is Exhibit 1 okay? VICE CHAIR BARNETT: Yes, that was my intention, Exhibit 1. CHAIR HANSSEN: All right, and then your second is good for Exhibit 1, yes? COMMISSIONER JANOFF: Yes, I second that. CHAIR HANSSEN: Any further discussion? We’ll do a roll call vote. Start with Commissioner Thomas. COMMISSIONER THOMAS: Yes. CHAIR HANSSEN: Commissioner Tavana. COMMISSIONER TAVANA: Yes. CHAIR HANSSEN: Commissioner Raspe. COMMISSIONER RASPE: Yes. CHAIR HANSSEN: Commissioner Janoff. COMMISSIONER JANOFF: Yes. CHAIR HANSSEN: Vice Chair Barnett. VICE CHAIR BARNETT: Yes. CHAIR HANSSEN: And I vote yes as well. I know the answer to this, but just for the sake of clarity, there are no appeal rights on this action by the Commission, correct? JENNIFER ARMER: That is correct, because it is a recommendation to Town Council. LOS GATOS PLANNING COMMISSION 9/28/2022 Item #3, Amendment to Town Code re: SB 9 93 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 HANSSEN: Good. Well, that was a great discussion. (END) This Page Intentionally Left Blank