Attachment 5 - September 28, 2022 Planning Commission Verbatim MinutesLOS GATOS PLANNING COMMISSION 9/28/2022
Item #3, Amendment to Town Code re: SB 9
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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
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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
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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.
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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
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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
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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.
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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
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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
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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.
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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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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.
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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
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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?
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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.
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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?
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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?
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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
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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.
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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
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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.
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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.
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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
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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.
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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.
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CHAIR HANSSEN: Good. Well, that was a great
discussion.
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