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05 Staff Report - 15500 Francis Oaks Wayav~N MEETING DATE: 09/08/09 a ITEM NO. COUNCIL AGENDA REPORT !ps GAS S DATE: August 25, 2009 TO: MAYOR AND TOWN COUNCIL FROM: TOWN MANAGER SUBJECT: CONSIDER AN APPEAL OF A PLANNING COMMISSION DECISION DENYING A REQUEST FOR A TWO LOT SUBDIVISION ON PROPERTY ZONED HR-2 1/2. NO SIGNIFICANT ENVIRONMENTAL IMPACTS HAVE BEEN IDENTIFIED AS A RESULT OF THIS PROJECT AND A MITIGATED NEGATIVE DECLARATION IS RECOMMENDED. APN 527-11-005. SUBDIVISION APPLICATION M-06-4; NEGATIVE DECLARATION ND-06-4 PROPERTY LOCATION: 15500 FRANCIS OAKS WAY PROPERTY OWNER: MIKE AND ANN MOFFAT. APPLICANT/APPELLANT: TONY JEANS. RECOMMENDATION: 1. Open and hold the public hearing and receive public testimony. 2. Close the public hearing. 3. Uphold the Planning Commission's decision to deny Subdivision application M-06-04 (motion required). 4. Refer to the Town Attorney for the preparation of the appropriate resolution (no motion required). If the Town Council determines that the Planning Commission's decision should be reversed or modified relative to the appeal: 1. The Council needs to find one or more of the following (a) Where there was error or abuse of discretion on the part of the Planning Commission; or PREPARED BY: P Wendie R. Rooney, Director of Community Development Reviewed by: Assistant Town Manager ATown Attorney Clerk Finance ~ ommunity Development Revised: 8/25/09 8:29 AM Reformatted: 5/30/02 PAGE 2 MAYOR AND TOWN COUNCIL SUBJECT: APPEAL FOR 15500 FRANCIS OAKS WAY; FILE #M-06-04 & ND-06-04. September 8, 2009 (b) The new information that was submitted to the Council during the appeal process that was not readily and reasonably available for submission to the Commission; or (c) An issue or policy over which the Commission did not have discretion to modify or address, but which is vested in the Council for modification or decision. 2. If the predominant reason for modifying or reversing the decision of the Planning Commission is new information as defined in Subsection (2) above, it is the Town's policy that the application be returned to the Commission for review in light of the new information unless the new information has a minimal effect on the application. 3. If the appeal is granted, use the findings in Attachment 2, and modify the conditions in Attachment 3 as appropriate. 4. Refer to the Town Attorney for preparation of the appropriate resolution(s). BACKGROUND: The 7.96 property is located on the south side of Francis Oaks Way at the westerly terminus of the road. Francis Oaks Way is a private road and is not maintained by the Town. There is an existing single-family residence on the site that was approved by the Town Council in 2000. On December 13, 2006 the Planning Commission considered a two-lot subdivision with a different lot configuration and building site. The Commission voted unanimously to deny the application based on lack of compliance with zoning requirements and a finding that the proposed development was not appropriate for the property. The applicant appealed the Commission's decision on December 22, 2006. On March 5, 2007 the Council determined that there was new information that the Planning Commission did not have at the time the application was denied, and found that there was sufficient information to require reversal of the Commission's decision. The Council remanded the application and directed the Commission to review the application for compliance with all applicable Town ordinances, standards and guidelines concerning land development. The Council resolution is Exhibit 6 to Attachment 8. On June 24, 2009 the Planning Commission considered the revised subdivision plans. The Commission voted 6-0 to deny the application citing inconsistency with several findings of the State Subdivision Map Act. Attachment 6 is a verbatim transcript of the meeting. The applicant appealed the Commission's decision on June 30, 2009 (see Attachment 5). PAGE 3 MAYOR AND TOWN COUNCIL SUBJECT: APPEAL FOR 15500 FRANCIS OAKS WAY; FILE #M-06-04 & ND-06-04. September 8, 2009 PROJECT SUMMARY: The applicant is proposing to subdivide a 7.96 acre property into two lots of 4.89 and 3.06 acres. The existing residence will remain on the 4.89 acre parcel and a new residence will be constructed on the 3.06 acre parcel. A conceptual development plan has been provided to demonstrate that a house can be constructed on the vacant parcel that will be created by the subdivision. DISCUSSION: Slope Density The HR-2%2 slope density formula was applied to the property and resulted in a potential yield of 2.12 parcels. The HR-21/2 zoning indicates a lot size of 21h to 10 acres, although Section 29.40.260 of the Zoning Ordinance allows a minimum of 40,000 square feet. Provided the total number of allowable lots (gross lot area less public right of way divided by the minimum land area) is not exceeded, a lot of 40,000 square feet or greater complies with the Code. The proposed lot sizes are 4.89 and 3.06 acres. Least Restrictive Development Area As required by the Town's Hillside Development Standards & Guidelines (HDS&G), a plan showing the Least Restrictive Development Area (LRDA) has been prepared (see sheet 2 of the subdivision plans, Attachment 9). The proposed building site is within the LRDA and will be contained within an area that is relatively flat. However, the available development area is restricted on the north side by a storm drain easement and on the south side by slopes exceeding 30%. Lot Size and Configuration The proposed lot sizes are within the size range required by the Zoning Ordinance for the HR-2%2 zone (21/2 to 10 acres per dwelling unit). The average lot size of 398 acres meets the minimum average determined by the slope density calculations (3.75 acres). The building site is limited by the presence of a storm drain easement and slopes greater than 30%, and may not be able to accommodate the maximum allowable floor area. Neighborhood Compatibility The proposed lots sizes are within the range of existing properties in the surrounding area. The proposed building site is in a low lying area of the site and will have limited visibility. The site can be seen from Shady Lane, but is hidden from surrounding homes and undeveloped home sites in the Highlands PD by existing topography and trees. A house on the site will be isolated from homes on surrounding properties and will not be part of a neighborhood. PAGE 4 MAYOR AND TOWN COUNCIL SUBJECT: APPEAL FOR 15500 FRANCIS OAKS WAY; FILE #M-06-04 & ND-06-04. September 8, 2009 Access Access to Parcel 1 will remain on Francis Oaks Way. Parcel 2 is proposed to be accessed from Shady Lane through a private easement. If the subdivision is approved, Parcel 2 will be assigned a Shady Lane address. The grantor of the ingress-egress easement is contesting the ability of the applicant to subdivide the property and use the easement to access proposed Parcel 2 (see Exhibits 12 and 14 of Attachment S). The grantor has stated that the intent of granting the easement was to allow secondary access to the property for purposes such as maintenance and emergency access. The grantor's attorney maintains that subdividing the property will transfer the access from the house at 15500 Francis Oaks Way to the proposed parcel, which is not allowed under the terms of the Easement Agreement. The Town Attorney reviewed the Easement Agreement and the letters from the grantor's attorney and concluded that the applicant has legal access to the property and that it is not restricted (see Exhibit 13 of Attachment 8). The Town Code does not prohibit access by private easement. However, it is not as desirable to create a lot that will be landlocked should access rights be lost or severed as it is to have direct access from a public or private street. Building Site The proposed building site will be accessed from Shady Lane. The applicant submitted conceptual development plans for a new residence that could be up to 6,000 square feet (see sheet 2 of the subdivision plans). The plans were provided to demonstrate that the proposed second lot has a feasible building site with a conforming driveway and can support a relatively large home that complies with the HDS&G. There is one small oak in the vicinity that could be impacted by development although no trees are proposed for removal. General Plan Compliance The General Plan land use designation for the property and surrounding area is low density residential, 0 to 5 units per acre. The proposed density is less than .25 units per acre and is within the allowable density range. Trees The Town's Consulting Arborist visited the site and prepared an Arborist report (see Exhibit S of Attachment S). Parcel 2 can be developed without removing any existing trees. One oak tree is in close proximity to the building site and could be impacted. PAGE 5 MAYOR AND TOWN COUNCIL SUBJECT: APPEAL FOR 15500 FRANCIS OAKS WAY; FILE #M-06-04 & ND-06-04. September 8, 2009 PLANNING COMMISSION ACTION: The Planning Commission considered the subdivision application on June 24, 2009. The Commission voted unanimously to deny the application (Commissioner Bourgeois was recused). Section 66474 of the State Subdivision Map Act includes the following seven findings relative to subdivisions of land. These criteria are in essence reverse findings; should the deciding body (in this case the Council) make any of the findings, the Tentative Map application should be denied. a. That the proposed map is not consistent with applicable general and specific plans as specified in Section 65451. b. That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans. C. That the site is not physically suitable for the type of development. d. That the site is not physically suitable for the proposed density of development. C. That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. f. That the design of the subdivision or type of improvements is likely to cause serious public health problems. g. That the design of the subdivision or the type of improvements will conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. In denying the subdivision application the Commission determined that the prof ect is not compliant with zoning requirements and that the proposed development is not appropriate for the site (making findings c and d above). There was also discussion on whether a riparian area previously existed on the site and if riparian restoration was appropriate, although the Commission was unable to reach consensus on that issue. Staff recommended approval of the proposed subdivision when it was sent to the Commission as it met the technical requirements to split the parcel (slope density calculations resulted in a yield of two parcels, the minimum lot size could be provided and there is an available building site, albeit one with some constraints). The Commission exercised its discretion in determining that the building site is too restricted and not suitable for the proposed development. The Commission also determined that the proposed development intensity was too great and that it was not desirable to create a parcel that would not have direct street frontage. The Commission arrived at its decision based on site visit observations, public testimony, and the discussion that took place at the June 24 meeting. APPEAL; The applicant appealed the Planning Commission's decision based on his belief that the Planning Commission erred or abused its discretion in finding that the subdivision application is not consistent PAGE 6 MAYOR AND TOWN COUNCIL SUBJECT: APPEAL FOR 15500 FRANCIS OAKS WAY; FILE #M-06-04 & ND-06-04. September 8, 2009 with the Zoning Code, and in finding that the site is not physically suitable for the proposed density and/or type of development. Attachment 5 is the applicant's appeal statement. In considering a subdivision in the hillside, the Zoning Ordinance, General Plan, Hillside Specific Plan and the HDS&G are all applicable documents. While the zoning requirements, including minimum lot size, setbacks and height, can be complied with, the Commission was concerned that by approving a new building site with limited development potential, it would not be consistent with the intent of the Hillside Specific Plan and the HDS&G. ENVIRONMENTAL REVIEW: As required by the California Environmental Quality Act (CEQA), an Initial Study and Mitigated Negative Declaration have been prepared (see Attachment 4). The environmental review was completed by the Town's consultant, Geier & Geier Consulting. As part of this process a geotechnical investigation was conducted and was peer reviewed by the Town's Geotechnical Consultant and an arborist report was prepared by the Town's Consulting Arborist, Arbor Resources. The public comment period for the Mitigated Negative Declaration ended on April 28, 2009. Potentially significant impacts will be mitigated by the recommended mitigation measures, including a provision for arborist review when an Architecture and Site application is submitted and a requirement for utility lines that cross slopes greater than 30% to be installed without trenching. All mitigation measures have been included as conditions of approval (Attachment 3). In addition, a Mitigation Monitoring Program has been prepared (Attachment 2) to designate the responsible department or agency, and timing of each mitigation measure. CONCLUSION: The proposed subdivision is consistent with Zoning and General Plan requirements although it will create a parcel with limited development potential, and ono that will have no direct street frontage or relationship to homes on surrounding properties. There are no alternative building sites on the property. The Planning Commission determined that two of the findings for denial specified in Section 66474 of the State Subdivision Map Act could be made and denied the subdivision. FISCAL IMPACT: None Attachments : I . Required Findings (one page) 2. Mitigation Monitoring Program (two pages) 3. Recommended Conditions of Approval (seven pages) 4. Mitigated Negative Declaration 5. Applicant's Appeal Statement (one page with seven page attachment) 6. June 24, 2009 Planning Commission Verbatim Minutes (46 transcribed pages) PAGE 7 MAYOR AND TOWN COUNCIL SUBJECT: APPEAL FOR 15500 FRANCIS OAKS WAY; FILE #M-06-04 & ND-06-04. September 8, 2009 7. June 24, 2009 Planning Commission Addendum with Exhibit 17 8. June 24, 2009 Planning Commission report with Exhibits 1-15 9. Subdivision plans (two pages), received April 28, 2009 lei sfi-i bn i nn Mike & Ann Moffat, 15500 Francis Oaks Way, Los Gatos, CA 95032 Tony Jeans, T.H.I.S. Design, P. O. Box 1518, Los Gatos, CA 95031 WRR:SD N:SDEVISUZANNEICOUNCILIREPORTSTWD. TO MAPPEALSWOW 15500-090809.DOC TOWN COUNCIL - SEPTEMBER S, 2009 REQUIRED FINDINGS FOR: 15500 Francis Oaks Way Subdivision Application M-06-4 Negative Declaration ND-06-4 Requesting approval of a two lot subdivision on property zoned HR-21/2. No significant environmental impacts have been identified as a result of this project and a Mitigated Negative Declaration is recommended. APN 527-11-005. PROPERTY OWNER: Mike and Ann Moffat APPLICANT: Tony Jeans, T.H.I. S. Design FINDINGS: State Subdivision Map Act. In order to deny the application, the Planning Commission must make one of the following findings, as required by Section 66474 of the State Subdivision Map Act: a. That the proposed map is not consistent with applicable general and specific plans as specified in Section 65451. b. That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans. C. That the site is not physically suitable for the type of development. d. That the site is not physically suitable for the proposed density of development. C. That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. f. That the design of the subdivision or type of improvements is likely to cause serious public health problems. g. That the design of the subdivision or the type of improvements will conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. N:SDEV IPINDINGS120091FO W t 5500-TM. DO C ATTACHMM3T 1 Iz 0 a q o d ,'I- C? o qo Z Q I'D 0 o Z O r2 0 0Q~ o C'°o cn W) 0 C'3 W ~ AQ Le) N U 4 U 4-- u U 4- 0 AwUA cd cd o 4-4 C7, g O 4] p ¢.i ¢ ~i V cd bb p, N O gyp" 0. d~ ~ O - O lw, 15; ram„ 'd ~i O O 4, 4, U w •bp O a1 nun o 0 0 o 3 ° bb "C:j o w - U N b ' i-4 9 14 '+r ° i Sy r-i U U O 4- U m a ° Q G~ U Q cd c O O 3 4 O 04 O cd L3 U U U lei 41 ~ p ~ 'd N ~ N N O ~7 N u ' S 00 Q y , 't o o . E v 0 r2 -2 ~ N ~ O GO 11-1 .`4 4~j o ° V y U ~ y Aa UQ cd c O N 8 O i1 04 U cd` O U 0 N O r 0 P p U o ~ U ~ U cu * a~ U 'a ) 4 w o C) ~ y P r 1 F~ ' 0 Q d . ATTACHMENT 2 a~ t 3 t •y U U ~ O V] U p, O m p O O a> Pi U A ~ CC 4-4 0 0 01 -,z O o w 45 cd u bA N w O IL Cti y U ° O N CD cp ~ y d p o °o P4 y 'n vs a~i °ooa'o 04 0 O cd N C bA V) V3 0 0 0 A a~ P4 cal TOWN COUNCIL - SEPTEMBER 8, 2009 CONDITIONS OF APPROVAL 15500 Francis Oaks Way Subdivision Application M-06-4 Negative Declaration ND-06-4 Requesting approval of a two lot subdivision on property zoned HR-21/2. No significant environmental impacts have been identified as a result of this project and a Mitigated Negative Declaration is recommended. APN 527.11-005. PROPERTY OWNER: Mike and Ann Moffat APPLICANT: Tony Jeans, T.H.I.S. Design TO THE SATISFACTION OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: Planning Division 1. APPROVAL. This application shall be completed in accordance with all of the conditions of approval listed below and in substantial compliance with the plans approved on May 13, 2009 and noted as received by the Town on April 28, 2009. Any changes or modifications to the approved plans shall be approved by the Community Development Director or the Planning Commission depending on the scope of the change(s). 2. EXPIRATION OF APPROVAL. The Tentative Map application shall expire two years from the date of approval if a Final Map has not been recorded, pursuant to Sections 24.20.070 and 24.70.035 of the Subdivision Ordinance. 3. TOWN INDEMNITY. Applicants are notified that Town Code Section 1.10.115 requires that any applicant who receives a permit or entitlement from the Town shall defend, indemnify, and hold harmless the Town and its officials in any action brought by a third parry to overturn, set aside, or void the permit or entitlement. This requirement is a condition of approval of all such permits and entitlements whether or not expressly set forth in the approval, and maybe secured to the satisfaction of the Town Attorney. 4. ARCHITECTURE AND SITE APPROVAL REQUIRED. An Architecture and Site application and approval is required for the new residence on Parcel 2. 5. ARBORIST REVIEW. Plans for the new residence on Parcel 2 shall be reviewed and evaluated by the Town's Consulting Arborist during the Architecture and Site process. 6. LANDSCAPE PLAN. A landscape plan shall be included with the plans submitted with the Architecture and Site application for the new residence on Parcel 2. 7. BIOLOGICAL RESOURCES MITIGATION MEASURE-l. If land clearing, grading, tree and brush removal, tree trimming or demolition activities are to occur during the nesting season (February 1 to August 15), apre-construction survey for nesting migratorybirds shall be conducted by a qualified biologist from one to four weeks prior to the initiation of work. If no nesting birds are observed, work may proceed. If work is delayed more than four weeks from the date of the survey, and it is still within the nesting season, the pre-construction survey shall be repeated. ATTACHMENT 3 15500 Francis Oaks Way/M-06-04 Conditions of approval Page 2 of 7 8. BIOLOGICAL RESOURCES MITIGATION MEASURE-2. If occupied active nests of a migratory bird species are identified, a suitable buffer shall be established around the nest tree. Work within the buffer zone shall be prohibited until August 15th or until the young have fledged, as determined by the project biologist. The dimensions of each buffer zone shall be determined by the biologist in consultation with the CDFG. 9. BIOLOGICAL RESOURCES MITIGATION MEASURE-3. If future development plans include removal of any existing trees, the Town's Consulting Arborist shall determine conformance with the Town's Tree Protection Ordinance. Future development plans shall incorporate the Arborist's recommendations to reduce potential impacts associated with tree removal. TO THE SATISFACTION OF THE DIRECTOR OF PARKS AND PUBLIC WORKS: Engineering Division 10. FINISHED FLOOR ELEVATION. The finished floor elevation shall be a minimum of two (2) feet above the 100-year water surface elevation. Hydraulic calculations prepared by a licensed civil engineer shall be submitted with the grading permit application. 11. GRADING PERMIT. A grading permit is required for site grading and drainage. The grading permit application (with grading plans) shall be made to the Engineering Division of the Parks & Public Works Department located at 41 Miles Avenue. The grading plans shall include final grading, drainage, retaining wall location, driveway, utilities and interim erosion control. Grading plans shall list earthwork quantities and a table of existing and proposed impervious areas. Unless specifically allowed by the Director of Parks and Public Works, the grading permit will be issued concurrently with the building permit. The grading permit is for work outside the building footprint(s). A separate building permit, issued by the Building Department on E. Main Street is needed for grading within the building footprint. 12. UTILITY COMPANY REVIEW. Letters from the electric, telephone, cable, and trash companies indicating that the proposed improvements and easements are acceptable shall be provided prior to recordation of the final map. 13. WEST VALLEY SANITATION DISTRICT. All sewer connection and treatment plant capacity fees shall be paid either immediately prior to the recordation of any subdivision or tract maps with respect to the subject property or properties, or immediately prior to the issuance of a sewer connection permit, which ever event occurs first. Written confirmation of payment of these fees shall be provided prior to map recordation. 14. SURVEYING CONTROLS. Horizontal and vertical controls shall be set and certified by a licensed surveyor or registered civil engineer qualified to practice land surveying, for the following items: a. Retaining wall--top of wall elevations and locations b. Toe and top of cut and fill slopes 15500 Francis Oaks Way/M-06-04 Conditions of approval Page 3 of 7 15. TREE REMOVAL. Copies of all necessary tree removal permits shall be provided prior to issuance of a grading permit. 16. SOILS ENGINEER CONSTRUCTION OBSERVATION. During construction, all excavations and grading shall be inspected by the applicant's soils engineer prior to placement of concrete and/or backfill so they can verify that the actual conditions are as anticipated in the design-level geotechnical report, and recommend appropriate changes in the recommendations contained in the report, if necessary. The results of the construction observation and testing should be documented in an "as-built" letter/report prepared by the applicants' soils engineer and submitted to the Town before final release of any occupancy permit is granted. 17. PAD CERTIFICATION. A letter from a licensed land surveyor shall be provided stating that the building foundation was constructed in accordance with the approved plans shall be provided subsequent to foundation construction and prior to construction on the structure. The pad certification shall address both vertical and horizontal foundation placement. 18. PRECONSTRUCTION MEETING. Prior to issuance of any permit or the commencement of any site work, the general contractor shall: a. Along with the project applicant, attend a pre-construction meeting with the Town Engineer to discuss the project conditions of approval, working hours, site maintenance and other construction matters; b. Acknowledge in writing that they have read and understand the project conditions of approval, and will 'make certain that all project sub-contractors have read and understand them prior to commencing work and that a copy of the project conditions of approval will be posted on site at all times during construction. 19. RETAINING WALLS. A building permit, issued by the Building Department at 110 E. Main Street, may be required for site retaining walls. Walls are not reviewed or approved by the Engineering Division of Parks and Public Works during the grading permit plan review process. 20. SOILS REPORT. One copy of the soils report shall be submitted with the grading permit application. The soils report shall include specific criteria and standards governing site grading, drainage, pavement design, screening level slope stability analysis, retaining wall design and erosion control. Slope stability analysis shall be incorporated into the recommendation for foundation design. The reports shall be signed and "wet stamped" by the engineer or geologist, in conformance with Section 6735 of the California Business and Professions Code. The report shall be submitted for review prior to issuance of any permits. 21. SOILS REVIEW. Prior to issuance of any permit, the applicant's soils engineer shall review the final grading and drainage plans to ensure that designs for foundations, retaining walls, site grading, and site drainage are in accordance with their recommendations and the peer review comments. The applicant's soils engineer's approval shall then be conveyed to the Town either by letter or by signing the plans. 15500 Francis Oaks Way/M-06-04 Conditions of approval Page 4 of 7 22. PARCEL MAP. A parcel map shall be recorded prior to issuance of any permits. Two copies of the parcel map shall be submitted to the Engineering Division of the Parks & Public Works Department for review and approval. Submittal shall include closure calculations, title reports and appropriate fee. 23. TRENCHING MORATORIUM. Trenching within a newly paved street will be allowed subject to the following requirements: a. The Town standard "T" trench detail shall be used. b. A Town approved colored controlled density backfill shall be used. C. The total asphalt thickness shall be a minimum of 3-inches or shall match the existing thickness, whichever is greater. The final lift shall be 1.5-inches of half inch medium asphalt. The initial lift(s) shall be of three quarter inch medium asphalt. d. The Contractor shall schedule a pre-paving meeting with the Town Engineering Construction Inspector the day the paving is to take place. e. A slurry seal topping may be required by the construction inspector depending his assessment of the quality of the trench paving. If required, the slurry seal shall extend the full width of the street and shall extend 5-feet beyond the longitudinal limits of trenching. Slurry seal materials shall be approved by the Town Engineering Construction Inspector prior to placement. Black sand may be required in the slurry mix. All existing striping and pavement markings shall be replaced upon completion of slurry seal operations. f. A separate bond for trench saw cutting and paving may be provided at the time of building permit issuance. In the event such a bond is posted, the slurry seal provision above would be waived. 24. TRAFFIC IMPACT MITIGATION FEE. The developer shall pay a proportional the project's share of transportation improvements needed to serve cumulative development within the Town of Los Gatos. The fee amount will be based upon the Town Council resolution in effect at the time the building permit is issued. The fee shall be paid before issuance of a building permit. The traffic impact mitigation fee for this project using the current fee schedule is $ 5,742. The final fee shall be calculated form the final plans using the rate schedule in effect at the time the building permit is issued. 25. GENERAL. All public improvements shall be made according to the latest adopted Town Standard Drawings and the Town Standard Specifications. All work shall conform to the applicable Town ordinances. The adjacent public right-of-way shall be kept clear of all job related dirt and debris at the end of the day. Dirt and debris shall not be washed into storm drainage facilities. The storing of goods and materials on the sidewalk and/or the street will not be allowed unless a special permit is issued. The developer's representative in charge shall be at the j ob site during all working hours. Failure to maintain the public right-of-way according to this condition may result in the Town performing the required maintenance at the developer's expense. 15500 Francis Oaks Way/M-06-04 Conditions of approval Page 5 of 7 26. ENCROACHMENT PERMIT. All work in the public right-of-way will require a Construction Encroachment Permit. All work over $5,000 will require construction security. 27. PUBLIC WORKS INSPECTIONS. The developer or his representative shall notify the Engineering Inspector at least twenty-four (24) hours before starting any work pertaining to on-site drainage facilities, grading or paving, and all work in the Town's right-of-way. Failure to do so will result in rejection of work that went on without inspection. 28. EROSION CONTROL. Interim and final erosion control plans shall be prepared and submitted to the Engineering Division of the Parks & Public Works Department. A Notice of Intent (NOI) and Storm Water Pollution Prevention Plan (SWPPP) shall be submitted to the San Francisco Bay Regional Water Quality Control Board for projects disturbing more than one acre. A maximum of two weeks is allowed between clearing of an area and stabilizing/building on an area if grading is allowed during the rainy season. Interim erosion control measures, to be carried out during construction and before installation of the final landscaping shall be included. Interim erosion control method shall include, but are not limited to: silt fences, fiber rolls (with locations and details), erosion control blankets, Town standard seeding specification, filter berms, check dams, retention basins, etc. Provide erosion control measures as needed to protect downstream water quality during winter months. The grading, drainage, erosion control plans and SWPPP shall be in compliance with applicable measures contained in the amended provisions C.3 and C.14 of Order No. R2-2005-0035 of the amended Santa Clara County NPDES Permit. 29. DUST CONTROL. Blowing dust shall be reduced by timing construction activities so that paving and building construction begin as soon as possible after completion of grading, and by landscaping disturbed soils as soon as possible. Further, water trucks shall be present and in use at the construction site. All portions of the site subject to blowing dust shall be watered as often as deemed necessary by the Town, or a minimum of three times daily, or apply (non-toxic) soil stabilizers on all unpaved access roads, parking areas, and staging areas at construction sites in order to insure proper control of blowing dust for the duration of the project. Watering on public streets shall not occur. Streets will be cleaned by street sweepers or by hand as often as deemed necessary by the Town Engineer, or at least once a day. Watering associated with on-site construction activity shall take place between the hours of 8 a.m. and 5 p.m. and shall include at least one late-afternoon watering to minimize the effects of blowing dust. All public streets soiled or littered due to this construction activity shall be cleaned and swept on a daily basis during the workweek to the satisfaction of the Town. Demolition or earthwork activities shall be halted when wind speeds (instantaneous gusts) exceed 25 MPH. All trucks hauling soil, sand, or other loose debris shall be covered. 30. SITE DRAINAGE. Rainwater leaders shall be discharged to splash blocks. No through curb drains will be allowed. A detailed site drainage plans with drainage management system to maximizes on-site drainage percolation and maintains storm run-off from the site at the pre- development levels is required to be submitted and approved prior to issuance of any permits. 15500 Francis Oaks Way/M-06-04 Conditions of approval Page 6 of 7 31. NPDES. On-site drainage systems shall include a filtration device such as a bio-swale or permeable pavement. 32. SILT AND MUD IN PUBLIC RIGHT-OF-WAY. It is the responsibility of contractor and home owner to make sure that all dirt tracked into the public right-of-way is cleaned up on a daily basis. Mud, silt, concrete and other construction debris SHALL NOT be washed into the Town's storm drains. 33. UTILITIES. The developer shall install all utility services, including telephone, electric power and all other communications lines underground, as required by Town Code §27.50.015(b). All new utility services shall be placed underground. Underground conduit shall be provided for cable television service. 34. RESTORATION OF PUBLIC IMPROVEMENTS. The developer shall repair or replace all existing improvements not designated for removal that are damaged or removed because of developer's operations. Improvements such as, but not limited to: curbs, gutters, sidewalks, driveways, signs, pavements, raised pavement markers, thermoplastic pavement markings, etc. shall be repaired and replaced to a condition equal to or better than the original condition. Existing improvement to be repaired or replaced shall be at the direction of the Engineering Construction Inspector, and shall comply with all Title 24 Disabled Access provisions. Developer shall request a walk-through with the Engineering Construction Inspector before the start of construction to verify existing conditions. 35. CURB AND GUTTER. The developer shall repair and replace to existing Town standards any curb and gutter damaged now or during construction of this project. New curb and gutter shall be constructed per Town Standard Details. The limits of curb and gutter repair will be determined by the Engineering Construction Inspector during the construction phase of the proj ect. 36. AS-BUILT PLANS. An AutoCAD disk of the approved "as-built" plans shall be provided to the Town prior to issuance of a Certificate of Occupancy. The AutoCAD file shall include only the following information and shall conform to the layer naming convention: a) Building Outline, Layer: BLDG-OUTLINE; b) Driveway, Layer: DRIVEWAY; c) Retaining Wall, Layer: RETAINING WALL; d) Swimming Pool, Layer: SWIMMING-POOL; e) Tennis Court, Layer: TENNIS-COURT; f) Property Line, Layer: PROPERTY-LINE; g) Contours, Layer: NEWCONTOUR. All as-built digital files must be on the same coordinate basis as the Town's survey control network and shall be submitted in AutoCAD version 2000 or higher. 37. SANITARY SEWER LATERAL. Sanitary sewer laterals are televised by West Valley Sanitation District and approved by the Town of Los Gatos before they are used or reused. Install a sanitary sewer lateral clean-out at the property line. 38. SANITARY SEWER BACKWATER VALVE. Drainage piping serving fixtures which have flood level rims less than twelve (12) inches (301.8 mm) above the elevation of the next upstream manhole and/or flushing inlet cover at the public or private sewer system serving such drainage piping shall be protected from backflow of sewage by installing an approved 15500 Francis Oaks Way/M-06-04 Conditions of approval Page 7 of 7 type backwater valve. Fixtures above such elevation shall not discharge through the backwater valve, unless first approved by the Administrative (Sec. 6.50.025). The Town shall not incur any liability or responsibility for damage resulting from a sewer overflow where the property owner or other person has failed to install a backwater valve, as defined section 103(e) of the Uniform Plumbing Code adopted by section 6.50. 010 of the Town Code and maintain such device in a functional operating condition. Evidence of West Valley Sanitation District's decision on whether a backwater device is needed shall be provided prior to issuance of a building permit. 39. CONSTRUCTION NOISE. Between the hours of 8:00 a.m. to 8:00 p.m., weekdays and 9:00 a.m. to 7:00 p.m. weekends and holidays, construction, alteration or repair activities shall be allowed. No individual piece of equipment shall produce a noise level exceeding eighty-five (85) dBA at twenty-five (25) feet. If the device is located within a structure on the property, the measurement shall be made at distances as close to twenty-five (25) feet from the device as possible. The noise level at any point outside of the property plane shall not exceed eighty-five (85) dBA. 40. HAULING OF SOIL. Hauling of soil on or off-site shall not occur during the morning or evening peak periods (between 7:00 a.m. and 9:00 a.m. and between 4:00 p.m. and 6:00 p.m.). Prior to the issuance of a building permit, the developer shall work with the Town Building and Engineering Department Engineering Inspectors to devise a traffic control plan to ensure safe and efficient traffic flow under periods when soil is hauled on or off the project site. This may include, but is not limited to provisions for the developer/owner to place construction notification signs noting the dates and time of construction and hauling activities, or providing additional traffic control. Cover all tracks hauling soil, sand, and other loose debris or require all trucks to maintain at least two feet of freeboard. TO THE SATISFACTION OF THE SANTA CLARA COUNTY FIRE DEPARTMENT: 41. REQUIRED FIRE FLOW. Required fire flow is 1,750 GPM at 20 psi. residual pressure. 42. PUBLIC FIRE HYDRANT. Provide a public fire hydrant on Shady Lane. The location shall be determined jointly by the Fire Department and San Jose Water Company. Maximum fire hydrant spacing shall be 500 feet with a minimum single hydrant flow of 2500 GPM at 20 psi, residual. 43. FIRE HYDRANT LOCATION IDENTIFIER. Prior to final inspection the general contractor shall ensure that an approved fire hydrant location identifier ("blue dot") has been placed in the roadway for each new hydrant as directed by the Fire Department. 44. PREMISE IDENTIFICATION. Parcel 2 shall have a Shady lane address. Approved addresses shall be placed on all new buildings so they are clearly visible and legible from Shady Lane. Numbers shall be a minimum of four inches high and shall contrast with their background. N:1DEVICONDITN512009WOW 15500-TM. DOC NOTICE TOWN OF LOS GATOS ENVIRONMENTAL IMPACT REVIEW MITIGATED NEGATIVE DECLARATION Lead Agency: Town of Los Gatos Community Development Department 110 East Main Street Los Gatos, CA 95031 Project Title and Location: 15500 Francis Oaks Way Subdivision Application M-06-4 Negative Declaration ND-06-4 Project Description: The project applicants are requesting approval to allow the subdivision of a 7.96- acre parcel into two lots. Lot 1 would be 4.894 acres and Lot 2 would be 3.065 acres. The existing residence would be located on Lot 1, while the new residence would be constructed on Lot 2. Lot I would extend from Francis Oaks Way on the north to the Highlands of Los Gatos boundary on the south. Lot 2 would consist of the southwestern corner of the project site, and the western and southern boundaries of this lot adjoin the Highland of Los Gatos site boundary. The proposed conceptual plan indicates that the proposed Lot 2 could accommodate development of a future home on the northern portion of the site within the area delineated as the parcel's LRDA (Least Restrictive Development Area). The conceptual plan indicates that access to the future home would be provided by a proposed access driveway that would extend westward from the future home to the recently constructed extension of Shady Lane on the Highlands of Los Gatos property. The driveway alignment would coincide with an existing storm drain easement that extends from this roadway to the western project boundary, then continues eastward across the project site. Determination: Although the proposed proj ect could have a significant effect on the environment, there will not be a significant effect in this case because the mitigation measures listed below have been added to the project, mitigating potential impacts to a less-than-significant level. An Environmental Impact Report will not be required. Statement of Reasons to Support Finding: 1. Aesthetics: The proposed subdivision and development of Lot 2 would result in development of a new residence on the southern portion of this lot, at the base of a drainage contiguous to the Highlands property. The home would be accessed from Shady Lane. Development of a home on proposed Lot 2 would not obstruct or adversely affect any available scenic vistas from adjacent properties located on Francis Oaks Way or from residential lots on the Highlands property. The future residence on proposed Lot 2 would be visible primarily from the Highlands property. Specifically, from the extended Shady Lane (where it curves south right near the project site) and from the Highlands Lot 2, which is contiguous to the site's western boundary. Although the Highlands Lots 4 and 9 overlook the proposed Lot 2 and are contiguous to the southern project boundary, intervening mature oak trees and topography would likely obscure views of the future home on proposed Lot 2 from MARCH, 2009 1 ATTACHMENT 4 MITIGATED NEGATIVE DECLARATION - 15500 FRANCIS OAKS WAY future homes on these three Highlands lots. Intervening trees and vegetation would also obscure views of the future home from existing homes located along Francis Oaks Way. The project site is located within the area subject to the Town's Hillside Development Standards and Guidelines (HDS&G). The HDS&G requires a "view analysis" for any development project with the potential for being visible1 from any established viewing platform. However, since the proposed Lot 2 would not be visible from any viewing platforms, the Town will not require this view analysis. Specific development plans for the future home will be subject to design review as part of the Architecture and Site review process. During this process, the proposed design will be evaluated for consistency with the Town's HDS&G. As part of Architecture and Site review, the Town will require the future home's design to be consistent with the HDS&G for site planning, development intensity, architectural design, site elements, and landscape design. The HDS&G also emphasizes minimizing grading and preserving natural features (including drainage channels and trees). Outdoor lighting would be provided on the exterior of any future home on proposed Lot 2. The Zoning Ordinance (Section 29.10.09035) would prohibit the production of direct or reflected glare (such as that produced by floodlight) onto any area outside the project boundary. Any future development proposal on this lot also will be required to adhere to lighting restrictions in the Hillside Design Standards and Guidelines (January 2004). Any future home's lighting design would be evaluated by the Town during the Architecture and Site review process. 2. Agriculture Resources: The project parcel is currently developed with one single-family residence and the site's agricultural potential is limited by existing surrounding residential development, topography, and current zoning. Therefore, the project would not adversely affect any existing agricultural resources at the site. 3. Air Quality: The project would be consistent with the Bay Area Air Quality Management District's (BAAQMD) Clean Air Plan (CAP). The most recent CAP was completed in 2000. The consistency of the proposed project with the CAP is determined by comparing the project's consistency with the Los Gatos General Plan. Since the CAP is based on the Town's General Plan land use designations and population projections of the Association of Bay Area Governments (ABAG) that were in effect at the time the CAP was approved, consistency with the General Plan would indicate consistency with the CAP. The project would be consistent with the use and density allowed on the project site by the Los Gatos General Plan, and therefore, the project would be consistent with the CAP. The San Francisco Bay Area Air Basin is classified by the BAAQMD as non-attainment for ozone and inhalable particulates (PMto). According to the Town Planning Department, the proposed project would result in a net traffic increase of 10 daily trips, with 1 AM peak hour trip and 1 PM peak hour trip. Air emissions increases associated with the proposed project would not be considered significant since the size of the proposed project would not exceed the Bay Area Air Quality Management District's (BAAQMD) threshold levels for potential significance. The BAAQMD threshold level for potential significance is 375 single-family units. At or above this size, traffic generated by the project would have the potential to generate significant local and regional air quality impacts, and an air quality impact assessment would need to be prepared and submitted to the BAAQMD for review. 1 "Potential" is defined as capable of being seen from a viewing platform if trees or large shrubs are removed, significantly pruned, or impacted by construction. 2 Since the proposed Lot 2 is located at about the same elevation as the Highlands Lot 2 and this lot was determined to not be visible from any viewing platforms, the future home on Lot 2 would also not be visible from any viewing platforms. MARCH, 2009 2 MITIGATED NEGATIVE DECLARATION -15500 FRANCIS OAKS WAY Adjacent residential uses are considered to be sensitive receptors. Proposed grading activities would generate short-term emissions of criteria pollutants, including suspended and inhalable particulate matter and equipment exhaust emissions. The proposed Lot 2 would be 3.065 acres, but future driveway and home construction would result in surface disturbance of less than one acre. The BAAQMD does not require quantification of construction emissions, but considers any project's construction-related impacts to be less than significant if required dust-control measures are implemented. The Town's standard dust control conditions require implementation of the BAAQMD's standard dust control measures (required on sites of four acres or less), which would mitigate the project's construction-related air quality impacts to a less-than-significant level. In 2006, California passed the California Global Warming Solutions Act of 2006 (Assembly Bill No. 32; California Health and Safety Code Division 25.5, Sections 38500, ct seq.), which limits statewide greenhouse gas (GHG) emissions to 1990 levels and establishes a goal of achieving these emissions reductions by 2020 (representing a 25 percent reduction in emissions). AB 32 requires the California Air Resources Board (CARB) to adopt a comprehensive blueprint for limiting greenhouse gas emissions by the end of 2008 and complete the necessary rulemaking to implement that plan by the end of 2011. Pursuant to this requirement, CARB released their Proposed Scoping Plan in October 2008, which estimates reductions from the combination of a cap-and-trade program and a set of measures in the transportation (emissions reductions), energy efficiency and conservation (solar and renewable energy), and industrial measures (such as recycling and waste). Since the CARB has not adopted a methodology or defined quantitative thresholds that can be applied to a specific development project to evaluate an individual project's contribution to GHG emissions (particularly, for a project as small as one single-family residence), no significance determination for the proposed project can be made at this time. However, until such time that a methodology is adopted and mitigation can be applied, it is recommended that energy efficiency measures be incorporated into the proposed residence to the maximum extent feasible. It is also recommended that solar access to existing adjacent structures be maintained to the maximum extent feasible. It does not appear that the future home on Lot 2 would shade or block solar access on adjacent properties, although shading is a design issue that will be reviewed as part of the Architecture and Site review process. While the future home will be required to comply with energy efficiency requirements of the California Energy Code (Title 24, Part 6 of the California Administrative Code), the Town will also require completion of the GreenPoint Rated checklist for these homes (pursuant to the Town's adoption of three near-term policy recommendations from the Santa Clara County Cities Association Green Building Collaborative in April 2008) or any other GHG reduction requirements being implemented by the Town at that time. 4. Biological Resources: The 7.96-acre site generally consists of two hillsides separated by a seasonal drainage that enters the project site at its southeastern corner, extends through the project site in a northwestern to western direction, and leaves the property at its western perimeter. The drainage swalc constitutes one of the three biotic habitats on the project site; the southern (north-facing) hillside on the site is characterized as oak woodland while the northern hillside includes large areas of non-native annual grassland with oaks scattered on the lower part of this hillside immediately above the drainage swale. A previous development plan for the property indicated there were 41 trees, primarily oaks and some pines, on the lower part of the northern hillside area; the site's existing residence on proposed Lot 1 is located on the upper portion of the property in the northwestern corner of the site. Portions of the northern hillside have been cleared by construction activities associated with the installation of two water tanks required for fire control at the existing residence. The seasonal drainage on the project site is a segment of the drainage that originates on and re-enters the Highlands property to the west. MARCH, 2009 MITIGATED NEGATIVE DECLARATION-15500 FRANCIS OAKS WAY The project application proposes the creation of a second lot (Lot 2) consisting of 3.065 acres of the 7.96-acre property. The new lot comprises the southwestern portion of the property, and would be roughly square in shape, extending southward from the seasonal drainage to the southern property boundary. The proposed Lot 2 would include most of the property's northern hillside that includes non- native grassland and 12 trees, consisting of 10 oaks and 2 pines. Additionally, the new lot would include the seasonal drainage channel that crosses this area from cast to west as well as a portion of the southern hillside containing oak woodland. This channel drains into a culvert just upstream and to the north of the future home site. The proposed subdivision of project site would have no direct effects on the vegetation and habitat of the project site. Future residential development of Lot 2 would be limited to a building envelope that is designated approximately 100 feet east of the extended Shady Lane on the Highlands property. According to the conceptual plan for future home development, no tree removal would be required to develop the home and associated driveway access. As a result of recent utilities construction along the western margin of the subject property, the area where the proposed home and driveway are proposed is devoid of vegetation. Therefore, no significant impacts on vegetation as a result of future home construction is expected based on the proposed conceptual design. The subject property's tree canopy supports suitable nesting habitat for raptors and migratory passerines. Site clearing activities could result in a take of protected migratory birds. Disturbance during the nesting season could result in the potential nest abandonment and mortality of young. This would be a potentially significant impact. Policy O.P.3.3 of the Open Space Element of the Los Gatos General Plan emphasizes preservation of public and private landscaping along Town streets. The Los Gatos Tree Protection Ordinance states that the preferred tree replacement is two or more trees of a species and size designated by the Director of the Parks and Public Works Department. Tree replacement requirements are based on canopy size, which is defined in Table 3-1 of the Ordinance, Tree Canopy - Replacement Standard. Tree canopy replacement requirements range from two to six 24-inch box size trees or equivalent larger box size trees, depending on the canopy size of the tree to be removed. Any tree removal that occurs as part of future home development on Lot 2 will need to be evaluated by the Town Arborist for conformance with the Town's Tree Protection Ordinance. The proposed subdivision would not directly result in home or driveway development, nor would any trees be removed. However, future development of a home on Lot 2 and infrastructure improvements (as depicted on the proposed conceptual plan) could result in the above impacts. When specific development plans are submitted to the Town for Architecture and Site review, the following measures shall be required to reduce any future development's impacts on biological resources to less-than-significant levels: MITIGATION: If land clearing, grading, tree and brush removal, tree trimming or demolition activities are to occur during the nesting season (i.e., between February 1 and August 15), a pre- construction survey for nesting migratory birds shall be conducted by a qualified biologist from one to four weeks prior to the initiation of work. If no nesting birds are observed, work may proceed. If work is delayed more than four weeks from the date of the survey, and it is still within the nesting season, the pre-construction survey shall be repeated. MITIGATION: If occupied active nests of a migratory bird species are identified, a suitable buffer shall be established around the nest tree. Work within the buffer zone shall be prohibited until August 15'h or until the young have fledged, as determined by the project biologist. The dimensions of MARCH, 2009 4 MITIGATED NEGATIVE DECLARATION 15500 FRANCIS OAKS WAY each buffer zone shall be determined by the biologist in consultation with the CDFG. Buffer zones vary depending on the species and site topography, with passerines typically requiring 75 to 100 feet and raptors 200 to 500 feet. MITIGATION: If future development plans include removal of any existing trees, the Town will require an evaluation by the Town's consulting arborist to determine conformance with the Town's Tree Protection Ordinance. Future development plans will be required to incorporate the Arborist's recommendations to reduce potential impacts associated with tree removal. MITIGATION MONITORING: The Planning Division of the Community Development Department will be responsible for ensuring that the survey for nesting migratory birds is completed prior to construction and all recommendations made by the arborist are reflected in final project plans. The Parks Division of the Parks and Public Works Department will be responsible for ensuring that all tree protection measures are properly implemented during construction. In addition to the potential effects on the project site's oaks, the proposed subdivision of the site entails the creation of Lot 2, which includes a segment of the seasonal drainage channel that crosses the site. The characteristics of this drainage channel were evaluated extensively as part of the EIR for the Highlands of Los Gatos project.' In brief, the EIR analysis indicates: "For the most part, vegetation within the drainage channel was undifferentiated from the surrounding upland habitats of the site. The dominant plant species observed within the channel, along with their U.S, Fish and Wildlife Service (USFWS) wetland indicators, include Italian ryegrass (UPL), perennial ryegrass (Lolium perenne) (FAG), coyote brush (UPL), Italian thistle (UPL), soft chess (FACU), and poison oak (UPL). " This description of seasonal drainage channel habitat would also apply to the segment of the drainage channel that traverses the project site, including the portion within the proposed Lot 2. As part of the public agency consultation process for the Highlands EIR, the U.S. Army Corps of Engineers (USAGE) indicated that there are no jurisdictional waters of the United States on the Highlands site, including the seasonal drainage channel discussed above. To the extent that the project site's seasonal drainage is a middle segment of the drainage channel referenced by the USACE, it could be inferred that the USACE would also have no jurisdiction over the drainage channel and associated habitat on the project site. In order to determine the potential for USACE jurisdiction over the seasonal drainage swale on the project site, the project applicant retained H.T. Harvey & Associates to assess the drainage conditions and characteristics of the seasonal channel that crosses the project site. The consultant conducted a review of previous background studies and performed a field survey of the drainage swale to determine the potential for agency jurisdiction over the channel. Based on the review of background information and field inspection, the consultant concluded that: "field characteristics used by the Corps or CDFG in establishingjurisdiction are entirely absent on site. Nowhere on the property was there a co-occurrence of the requisite three parameters (hydrophytic vegetation, hydric soils and wetland hydrology). The drainage swale is without an "ordinary flow" and there is a total absence of wetland or riparian vegetation along this reach of the Swale. " Consequently, no permits from the USACE or CDFG would be required for the proposed subdivision of the project site or for the future development of one single-family home on Lot 2. MARCH,2009 MITIGATED NEGATIVE DECLARATION -15500 FRANCIS OAKS WAY 5. Cultural Resources: The project site is currently undeveloped, and the potential for encountering cultural resources during project construction would be low due to the subject property's relatively steep topography. There is a seasonal drainage that traverses the proj ect property. Although there is typically a higher potential for encountering archaeological resources in areas adjacent to or near a river or creek, the seasonal nature of this drainage channel combined with the steep topography of the site and its vicinity would limit the potential for encountering cultural resources. In addition, the fixture home site is located contiguous to the Highlands property and a portion of the proposed access driveway is located on the Highlands property. The archaeological records search and survey on the adjacent Highlands property determined that there would be a low potential for encountering archaeological resources and no further mitigation was required. 6. Geology and Soils: A review of the Town's hazards maps indicates that the project site has a high potential for fault rupture, moderate potential for slope stability hazard (moderate hazard adjacent to Shady Lane), moderate to low potential for seismic shaking, low shrink-swell potential, no potential for liquefaction, and very high erosion hazard. Debris flow hazards were identified over most of the project property. The Town's Fault Map identifies lineation indicative of faulting at the eastern boundary of the subject property. Given the property's sloping topography, there would be a high potential for erosion hazards if soils are subject to concentrated runoff flows. Future development plans for proposed Lot 2 will be subject to Architecture and Site review, and at a minimum, standard Town conditions will include provision of a complete erosion control plan (including interim erosion control measures and drainage controls such as energy dissipators), and such requirements are expected to reduce potential erosion hazards to a less-than-significant level. As part of Architecture and Site review of future development plans and the building permit process, the Town will require preparation of a soils report as well as a screening-level slope stability analysis prior to submittal of a building permit application for the proposed Lot 2. The Town will also require that the results of the slope stability analysis be incorporated into recommendations for foundation design. A detailed engineering geologic investigation was prepared by Steven F. Connelly, C.E.G. in August 2008 and a peer review of the Connelly report was completed for the Town by AMEC Geomatrix in November 2008. Copies of these studies are on file at the Los Gatos Community Development Department. This study involved review of published maps and aerial photographs, excavation of three test pits, and a site reconnaissance. This investigation concluded that the proposed subdivision and future development of a new residence on Lot 2 are feasible and the building envelope delineated by the LRDA on the proposed conceptual plan appears to be geologically suitable for the proposed development provided it is constructed according to recommendations of the project geotechnical engineering firm. In its peer review of this report, Geomatrix concurred with this conclusion, but noted that no design-level geotechnical engineering investigation report with recommendations or civil plans for the future residence were provided. The following discussion is based on information presented by Connelly and Geomatrix. The property is mapped as being underlain by a block of Monterey Shale mantled by colluvium between the potentially active Blossom Hill and Shannon faults. The site lies within the seismically active Bay Area, but is not within any of the "Earthquake Fault Zones" established by the Alquist-Priolo Earthquake Fault Zoning Act of 1972. No known active or potentially active faults traverse the project site. The Blossom Hill fault is located 300 feet northeast of the subject property and the Shannon fault is located between 4,400 and 600 feet north of the northern project boundary. Therefore, the potential for primary fault ground rupture is considered to be low. However, the property will be subjected to strong ground shaking during a major earthquake on the Blossom Hill fault, Shannon fault, San Andreas fault, or one of the other active or potentially actives faults in the Bay Area during the life of the future structure. It is MARCH, 2009 MITIGATED NEGATIVE DECLARATION -15500 FRANCIS OAKS WAY possible that secondary fissures or ground cracks may damage the subject property during an earthquake on these faults. It should be noted that most of the Bay Area as well as surrounding residences are subject to similar groundshaking hazards. The future home on Lot 2 will be required to meet seismic design parameters specified by Uniform Building Code (UBC) for site grading, drainage, pavement design, retaining wall design, erosion control, and foundation design. By implementing applicable UBC requirements and sound engineering practices, the Los Gatos General Plan EIR determined site development would be at no higher risk of potentially significant impacts due to seismically-induced ground failure from seismic shaking than any other similarly situated area. No evidence of landsliding on or near the proposed home site was observed by Connelly during the field reconnaissance, in test pits, or in the review of aerial photos. Springs or seeps were not observed on or near the proposed home site during field investigations or Connelly's review of aerial photos. Connelly concluded that the potential for deep-seated landsliding on the proposed home site is very low; the potential hazards from debris flow landsliding, ground subsidence, and the lateral spreading are very low or negligible; and the potential for liquefaction is low. In addition, Connelly found that the project site is located in an area free from the hazard of seiches and flooding caused by dam failure. Connelly recommends that measures be provided to control surface water from the area upslope of the future home site to prevent water from flowing across the home site. Assuming the surface water is effectively controlled, Connelly concludes that the future home site should be relatively stable during an earthquake on the nearby faults. Connelly also concluded that construction of a future residence at location indicated on the conceptual plan would not alter existing hydrologic conditions or create an elevated risk associated with potential earthquake-induced landsliding, provided the residence is constructed according to recommendations of the project geotechnical engineering firm. 7. Hazards and Hazardous Materials: The project site is not included on any Hazardous Wastes and Substances Sites List. Since the site is undeveloped, the potential for encountering hazardous materials during project construction would be low. Therefore, potential public health risks would be less than significant. According to the Los Gatos General Plan, the project site is located in a fire hazard area. General Plan Policy S.P.2.3 encourages design and siting of new development in fire hazard areas to minimize hazards to life and property, such as fire preventive site design, access, landscaping and building materials, and use of fire suppression techniques. In addition, the project will be required to comply with the following standards contained in the Town's Hillside Development Standards and Guidelines (January 2004) to minimize fire hazards: ■ Building locations shall minimize exposure to wildfires. A landscape plan shall be provided and will be reviewed by the Town staff for consistency with the Fire Department's recommended plant list. The landscape plan shall create defensible space around the home, and if there is afire ladder on the property, it shall be eliminated in an environmentally sensitive manner. ■ Development shall have adequate fire access. ■ A dependable and adequate water supply for fire protection and suppression purposes, as required by the Santa Clara County Fire Department, shall be provided for all properties. ■ Water for f re suppression shall be available and labeled before any framing may begin. ■ Above ground water tanks shall not be located in required setback areas. MARCH, 2009 7 MITIGATED NEGATIVE DECLARATION-15500 FRANCIS OAKS WAY Hillside Development Standards and Guidelines also provide the following recommendations or guidelines for reducing fire hazards: Development should avoid areas subject to severe fire danger. In order to achieve this, development should be set back from the crest of a hill, not be located on or adjacent to slopes greater than 30%, and not be located within densely wooded areas. If this is not possible, measures designed to assure the highest degree of fire prevention and fast effective means of evacuation and fire suppression shall be provider. The fuel load within a defensible space should be minimized by use of selective pruning, thinning and clearing as follows: removal of flammable species and debris, removal of dead dying or hazardous trees, mow dead grasses, removal of dead wood from trees and shrubs, and thin tree crowns (maximum of 25 percent). ■ Discontinuous fuel sources should be created and maintained within a defensible space through use of the following techniques: thin vegetation to form discontinuous groupings of trees or shrubs, limb trees up from the ground, and establish a separation between the lowest branches of a tree and any understory shrubs. ■ Landscaping within a defensible space should be designed with fire safety in mind. Landscaping in defensible space should be: fire resistant and drought tolerant, predominantly low growing shrubs and groundcovers (limit shrubs to 30 percent coverage), limited near foundations (height and density). A Above ground tanks should not be located in areas of high visibility..." Project consistency with the above policies cannot be determined at this time since no development or landscaping plans have been prepared for proposed Lot 2. Consistency of future development plans with these policies will be considered as part of Architecture and Site review. However, preliminary review of the LRDA delineated on the proposed conceptual plan indicates that the future home site would have adequate fire access (via the extended Shady Lane) and also avoids the crest of a hill, slopes over 30%, and densely wooded areas. Future home development on Lot 2 would be subject to Santa Clara County Fire Department requirements (e.g., installation of an automatic fire sprinkler system and/or water tanks) to minimize fire hazards. With its connection to the extended Shady Lane, secondary emergency access for emergency equipment is available. 8. Hydrology and Water Quality: The subject property is located on both a south-facing hillside and north-facing hillside, south of Francis Oaks Way and east of the extension of Shady Lane. The property is located at an elevation of approximately 610 feet at its northern boundary, descending to as low as 510 feet at the base of the seasonal drainage in the center of the property, and then ascending to approximately 680 feet at its southern boundary. The majority of the subject property has slopes over 30%, except for the areas in the vicinity of the existing residence, the proposed building envelope on Lot 2, the seasonal drainage, and dirt road located south of this drainage. The surface drainage on the subject property is characterized as uncontrolled sheet flow across the property from the northern and southern upper elevations to the seasonal drainage extending across the center of project site. Storm water runoff from the project site flows into an existing storm drain on the property, located at the western boundary, approximately 200 feet east of Shady Lane and north of a future home site on Lot 2. Accumulated runoff enters the Town of Los Gatos storm drain system, which drains to Short and Ross creeks, and ultimately into South San Francisco Bay. MARCH, 2009 MITIGATED NEGATIVE DECLARATION - 15500 FRANCIS OAKS WAY Storm Drainage. No development would occur with the proposed subdivision application. While the proposed conceptual plan does not indicate any changes to the existing storm drain facilities or easement on the project site, future development of proposed Lot 2 would result in increased impervious surfaces. The resulting incremental increase in peak surface flows due to these impervious surfaces would be less than significant due to the small size of the affected area. Flood Hazards. The Santa Clara Valley Water District's (SCVWD) flood zone maps and the Town of Los Gatos Safety Element Flood Hazards Map both indicate that the project site is not located within the 100-year floodplain as defined by the Federal Emergency Management Agency (FEMA) Flood Insurance Rate Maps for the project area. Although the project site is not subject to flooding, runoff from the project site affects flows along Short and Ross creeks. The SCVWD reports that currently there are frequent flooding problems along Short Creek. Therefore, drainage features for any future development proposal on proposed Lot 2 will need to offset any project-related increases in peak flows to minimize potential effects on existing flooding problems on Short Creek. When specific development plans are submitted to the Town for Architecture and Site review, the following measure shall be required to reduce any future development's impacts on Short Creek to less-than-significant levels: MITIGATION: Detailed development plans for the future driveway improvements and home on Lot 2 shall specify proposed drainage improvements, showing how runoff will be conveyed from the roof, patio, driveway to the storm drain system in Shady Lane. The detailed plans shall specify a drainage management system that maximizes on-site percolation of drainage flows and maintains storm runoff from the site at pre-development levels. The storm drainage system associated with future development on Lot 2 shall also be designed to limit post-project 100-year stormwater runoff rates to pre-project rates on Lot 2. Any required stormwater storage facility shall be located within the Least Restrictive Development Area. MITIGATION MONITORING: The Parks and Public Works Department will be responsible for ensuring that specified drainage improvements are reflected in future detailed development plans. Design and sizing of on-site percolation areas will be subject to review and approval by the Town, and such approval would reduce the potential for downstream flooding and erosion hazards associated with proposed storm drain improvements to a less-than-significant level. Water ualit. More stringent water quality regulations of the Clean Water Act have recently been triggered because the NPDES (National Pollution Discharge Elimination System) permit program has failed to protect beneficial uses of Santa Clara County's creeks and the South San Francisco Bay, as evidenced by such observations as violations of ambient water quality criteria, high concentrations of toxic substances, and fish consumption health advisories. These new regulations require that all discharges shall comply with Provision C.3, New and Redevelopment Performance Standards of Order No. 01-024 of the NPDES permit program. The project site is located within the Ross Creek watershed. Runoff from the site would discharge to the Town's storm drains in Shady Lane, flowing into Short and Ross Creeks. North of Blossom Hill Road, Ross Creek flows mostly through San Jose, joining Guadalupe River approximately five miles downstream of the project site. Stream flows ultimately discharge into San Francisco Bay via Alviso Slough. Ross and Short creeks are Santa Clara Valley Water District (SCVWD) water management facility, although these creeks are located approximately one-half mile west of the site. When detailed development plans for proposed driveway improvements and future home on Lot 2 is submitted, they will be subject to Town review to determine if proposed drainage improvements meet MARCH, 2009 9 MITIGATED NEGATIVE DECLARATION --15500 FRANCIS OAKS WAY Provision C.3 non point source requirements and whether a stormwater pollution prevention plan is required for the project (if site disturbance area exceeds one acre and/or creating 10,000 square feet or more of impervious area). In addition, as a condition of project approval, the Town will require the preparation and submittal of interim and final erosion control plans to the Engineering Division of the Parks and Public Works Department. Future development plans will be required to demonstrate that runoff from impervious surfaces is directed into landscaped areas and bio-swales, providing stormwater treatment facilities on the site, as well as provision for on-site percolation. 9. Land Use and Planning: The Los Gatos General Plan designates the project site for "Hillside Residential" and this designation allows for residential uses at densities of zero to one unit per acre. The Zoning Ordinance designates the project site as "Hillside Residential (HR-2%z)," which suggests lot sizes of 21/z to 10 acres for each dwelling unit, but the minimum required lot size is 40,000 square feet. The proposed subdivision would create one 4.894-acre parcel (Lot 1) and a second 3.065-acre parcel (Lot 2); the proposed subdivision would be consistent with the minimum density allowed by the Zoning Ordinance and General Plan as well as the minimum required lot size. The project site is located adjacent to existing residential uses. There are residences developed or approved for development on all surrounding contiguous parcels. The proposed residential use would be consistent with surrounding single-family residential uses. Therefore, the proposed project would not pose any land use compatibility problems. 10. Mineral Resources: The Los Gatos General Plan does not identify any regionally or locally- important mineral resources on the project site or in its vicinity. 11. Noise: The Town Noise Ordinance (Chapter 16) restricts construction activities to the hours of 8:00 a.m. to 8:00 p.m. on weekdays and 9:00 a.m. to 7:00 p.m. on weekends and holidays. This ordinance also limits noise generation to 85 dBA at the property line or 85 dBA at 25 feet from each individual piece of equipment. Project construction would result in temporary short-term noise increases due to the operation of heavy equipment. Construction noise sources range from about 82 to 90 dBA at 25 feet for most types of construction equipment, and slightly higher levels of about 94 to 97 dBA at 25 feet for certain types of earthmoving and impact equipment. If noise controls are installed on construction equipment, the noise levels could be reduced to 80 to 85 dBA at 25 feet, depending on the type of equipment. With controls, construction noise levels could be made to comply with the Town Noise Ordinance. Residential uses are generally considered to be noise-sensitive uses or sensitive receptors. At present, there are no existing residential uses located adjacent to the future home site. There are several undeveloped residential lots on the Highlands property that are located near the future home site, but building envelopes on those lots are located at least 250 feet from this home site. At this distance, construction, the ordinance noise limit (85 dBA at 25 feet) would result in maximum noise levels of 65 dBA at the closest residences to the west and south. Temporary disturbance (e.g., speech interference) can occur if the noise level in the interior of a building exceeds 45 to 60 dBA. To maintain such interior noise levels, exterior noise levels at the closest residences (with windows closed) should not exceed 70 to 80 dBA and this exterior noise level is used as a significance threshold or criterion. Based on this distance, enforcement noise level standards contained in the Town Noise Ordinance would maintain construction noise levels at acceptable levels. Therefore, it is anticipated that construction noise impacts could be maintained at less-than-significant levels with proper implementation of Town Noise Ordinance restrictions. l i MARCH, 2009 10 MITIGATED NEGATIVE DECLARATION - 15500 FRANCis OAKS WAY Long-term noise increases associated with the project would result from increased traffic on Shady Lane and residential activities (i.e., operation of appliances and maintenance equipment such as lawnmowers, blowers, etc.) in the project vicinity. Traffic increases associated with the project would be minor and would not significantly or measurably increase ambient noise levels along Shady Lane. The EIR for the Highlands of Los Gatos project evaluated cumulative noise increases along Shady Lane as a result of the Highlands project and other potential development in the vicinity, and the EIR concluded that cumulative traffic and associated noise increases on Shady Lane would not significant increase noise levels on Shady Lane or Short Road. Noise generated by project residential activities would be similar to noise generated by adjacent or nearby residential uses and would not conflict with the existing residential noise environment in the neighborhood. 12. Population and Housing: The proposed project would subdivide a single parcel into two lots, which would increase the development potential for the site by one residential unit. Inducement of one residential unit is considered to be a less than significant impact based on Section 15303 of the CEQA Guidelines (Categorical Exemptions, New Construction). The project site is currently developed with one existing housing unit, but no displacement of existing housing would occur with the proposed project. 13. Public Services: Services are currently provided to other residences in the surrounding area. The addition of one residence would not significantly increase demand for public services since services are already provided to the project area. The Santa Clara County Fire Department provides fire protection services to the project area and any future development on proposed Lot 2 will be subject to Department requirements, which could include provision of an automatic fire sprinkler system, water tanks, and adequate access (driveway width, grade, and length) and turnaround. 14. Recreation: The proposed addition of one residential unit would incrementally add new population to the area, and thereby increase the demand for recreational services. This incremental increase would not be expected to be significant given the small size of the project. 15. Transportation and Traffic: The Town's Traffic Impact Policy (Resolution 1991-174) specifies that a project with a traffic impact of 19 or less additional AM or PM peak hour trips could be approved without a comprehensive traffic report if it is determined that the benefits of the project to the Town would outweigh the impact of increased traffic. However, the project would be subject to payment of a traffic mitigation fee. The proposed single-family residence would result in a net increase of 10 trips per day, with I trip occurring during the AM peak hour and I trip occurring during the PM peak hour. According to the Town's traffic determination, traffic generated by the proposed project would represent a minor impact and no additional traffic studies would be required. The extended Shady Lane on the Highlands property would provide access to the future home on Lot 2 via a proposed driveway extension that would connect to this roadway. Traffic increases on this roadway due to the project would be minor. The EIR for the Highlands of Los Gatos project evaluated cumulative traffic increases along Shady Lane as a result of the Highlands project and other potential development in the vicinity, and the EIR concluded that cumulative traffic increases on Shady Lane and Short Road could be accommodated from a traffic capacity standpoint and would not significantly affect the service level operation of key intersections in the project vicinity. 16. Utilities and Service Systems: Utilities currently extend to adjacent parcels and, therefore, no major off-site utility improvements are expected to be required. It is likely that water and sewer lines would be extended from the extended Shady Lane on the adjacent Highlands property to the west, but these extensions will be specified when development plans for the future home are prepared. Based on the location of the future home site, it appears that future utility extensions could avoid slopes over 30%. MARcH, 2009 11 MITIGATED NEGATIVE DECLARATION -15500 FRANCIS OAKS WAY Any future development proposal will be subject to the Town's requirement of preparing and implementing an erosion control plan (including interim erosion control measures) to reduce potential erosion hazards to a less-than-significant level. Copies of the Initial Study used to make the above recommendation are on file and available for public inspection during regular business hours at the Town Community Development Department, 110 East Main Street, Los Gatos, California. Date Wendie R. Rooney, Director of Community Development MARCH, 2009 12 FILING FEES $297.00 Residential 51,193.00 per Commercial, Multi- family or Tentative Map Appeal 't'own of Los Gatos Office of thf 'own 110 E. Main St., Los Gat APPEAL OF PLANNING CO 1, the undersigned, do hereby appeal a decision of the Planning Commission as follows: (PLEASE TYR f°~~ DATE OF PLANNING COMMISSION DECISION: G\ i 3 PROJECT/ APPLICATION NO: ob - 13 ] Ij- I M aV ,k95030 EO A J u ~ 30Z,pp9 OR P CLERK Pursuant to the Town Code, the Town Council may only grant an appeal of a Planning Commission decision in most matters if the Council finds that one of three (3) reasons exist for granting the appeal by a vote of at least three (3) Council members. Therefore, please specify how one of those reasons exist in the appeal: tia 1. The Planninor Commission erred or abused its discretion becauso''-11T sksc_:L, I-G ON r ' fpVj-r VIV _Cr[l 00 (9-V Thee-~r~~w~~I~ mFm ►orr°t~iv'arrt~~"Ye° - able artll~tim~`a o~1=rentb~e~ri~s~n=d~~is~1~1~-s-~ (please attach the new information if possible): OR The Planning Commission did not have discretion to modify or address the following policy or issue that is vested in the Town Council: IF YIORE SPACE IS NEEDED, PLEASE ATTACH ADDITIONAL SHEETS. IMPORTANT: 1. Appellant is responsible for fees for transcription of minutes. A $500.00 deposit is required at the time of filing. 2. Appeal must be filed within ten (10) calendar days of Planning Commission Decision accompanied by the required fling fee. Deadline is 5:00 p.m. on the 10" day following the decision. If the tU' day is a Saturday, Sunday, or Town holiday, then it may be filed on the workday immediately following the 10 day, usually a Monday. 3. The Town Clerk will set the hearing within- 56 days of the date of the Planning Commission Decision (Town Ordinance No. 1967) 4. An appeal regarding a Change of Zone application or a subdivision map only must be filed within~tlie time limit specified in the Zoning or Subdivision Code, as applicable, which is different from other appeals. 5. Once filed, the appeal will be heard by the Town Council. 6. If the reason for granting an appeal is the receipt of new information, the app I' ation will ups ly be returned to the PI nni❑ Commission for reconsideration. tom;; l «~`~i f t~''+ i jji PRINT NAME: s[GNATV: ,ter DATE: f J ~,Cl o ADDRESS: d= ( i L ~ ( i a PHONE: L 6 * * OFFICIAL USE ONLY * * * DATE OF PUBLIC HEARING: Pending Planning Department Confirmation DATE TO SEND PUBLICATION: CONFIRMATION LETTER SENT: Date: TO APPLICANT & APPELLANT BY: DATE OF PUBLICATION: Vt DEVrURLISPIannmg2905 ]°urms~Plamm~g Cum mission Appeal :vpu ATTAGHMNT 5 is 1;'OfiR > w ~4 G w Id 11 O fd Id a) V 6) s o b o to 4J N H NC b) W A -4 m Cd o w V w 3 0 O 0)) ri -.H 0) Q N ) L N W W W N N N N -H S4 H 0 'A a) a) al qA b 41 W A R 3 O -A W !-i O y A W O V a w O N N X e~ w° w N LO w O H A W G) 0 U) r~ 11 E+ E 9~ cW7 V a) -A 3 N 5 03 TO U jj H a LA o .11 a) •,A a O W U zz W N P: U O 7-1 M J~ ~ O aAi O z H C U O a) 0 -H A O O S l tt* A N o O o -l N H W Pl r[ U) rFH N a) W 54 0 U W U H b u V O -.i .C O O ~ G D U of s~ U O to W 0 N N 41 .,I ~4 N A V a) to • ~j W U N O W 9 to N rl N W f4 V U . * .1 a ri Q) 41 ~d CWG N W (D o 4J ro o Co F~ C W N L SAi NeO H E y a) -A w i h W o -0 ~11 04 10 A! 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W rd W k 7 V) i u i m w I w 7 w 7 w 7 Z A O 7, O , m " m c ,-r k 'z, C O 7. b 2 6 Z O O iJ n O m n ; j C O k rd -H w O ra i 7 O n c) n o n H - H - O O m m ,i,' ~ H - H - M - H - W to O M O u !1 'd JJ k in U O U) 'd O rn O U) O H -ri W H 11 M 'd k O m la G' H 44 Ri H V Ri H R: H M V U U W to ro EO U M U U u u . u u u k k C rl 'CI o m -H ri o {a ri a) H u LU •N JJ iJ 0 'd as ,-I o C Q) O -H JJ U ) Q SA M O W -~A a) In L JJ C } L 11 IV u O JJ 3 P, Li ri N ~ m .n ~ c- m a , H .i N ri sl H H w H r H H ri N .H N N N w N N 0 d~ Itl N X 0 0 H O m m -H u U G, H o H L[1 ri a W N rn O C7 H O LO TOWN OF LOS GATOS ITEM NO.: PLANNING COMMISSION STAFF REPORT ADDENDUM `~s eat~g Meeting Date: June 24, 2009 PREPARED BY: Suzanne Davis, Associate Planner APPLICATION NO.: M-06-04, ND-06-04 LOCATION: 15500 Francis Oafs Way (south side of Francis Oaks Way at upper, westerly terminus of the road) APPLICANT: Tony Jeans, T.H.I.S. Design PROPERTY OWNER: Mike & Ann Moffat APPLICATION SUMMARY: Requesting approval of a two-lot subdivision on property zoned HR- 21/2. APN 527-11-005. DEEMED COMPLETE: May 1, 2009 FINAL DATE TO TAKE ACTION: June 21, 2009 EXHIBITS: L-16 Previously received 17. Petition supporting application (two pages), received June 18, 2009 DISCUSSION: Exhibit 17 is a petition from residents on Francis Oaks Way supporting the proposed subdivision. ~wza~'Q' hatl?"T Prepared by: Suzanne Davis Associate Planner A roved by: Wendie ~ey Director of Community Development WR: SD cc: Mike & Ann Moffat, 15500 Francis Oaks Way, Los Gatos, CA 95032 Tony Jeans, T.H.I.S Design, P.O. Box 1518, Los Gatos, CA 95031 MADEV5REPORTM2009\Francis0a" 15500-TM-061009-dsk.doc 2 ATTACBMENT 7 JUN 1 2009 A Lot Split ou w*= oft-S Lot'KJggq,'PJl1*6V 0ctks Way, LOS Gatos. ft OF March 2009. T am a nearby resident of the proposed lot split on Francis Oaks Way. I have had an opportunity to review the plans, which will not increase the number of properties on Francis Oaks Way, and have no objections to the project as currently proposed. 1 Name tAddress Phone / 5 ! 6 Il Fig z1T H c: 5 L~~'17 3 ~Ll? kr- et 3, y J~ / ~ j f ~SE T J5Y&I 6. cexrrs , Lass, ~I d3 z x~sfy 7 32, f r 9. S f> ~ U Oaks uf~~ Lra C.' pr 1v CCT 7 10. ~ Q Cam, - c 641 T Exhibit 17 ec RECEIVED JUN 1 8 2909 A Lot Split TOWN OF LOS GATOS Lot 15000 Francis Oaks Way, Los &atOSLANNI~IG PLANNING-DIVISION March 2009. I am a nearby resident of the proposed lot split on Francis Oaks Way. I have had an opportunity to review the plans, which will not increase the number of properties on Francis Oaks Way, and have no objections to the project as currently proposed. Name Address Phone C)a'S LA6S 35t, ~-190 J 2. c~ 1!-3 3 ~r ~s ~ ~fQ mil` . s mss, 2- 6 - ~i3o ty 6,, 13v,4L r. 8. 9_ 1? 54) 34 10 " TOWN OF LOS GATOS ITEM NO.: PLANNING COMMISSION STAFF REPORT cos ~ASOS Meeting Date: June 24, 2009 PREPARED BY: Suzanne Davis, Associate Planner APPLICATION NO.: M-06-04, ND-06-04 LOCATION: 15500 Francis Oaks Way (south side of Francis Oaks Way at upper, westerly terminus of the road) APPLICANT: Tony Jeans, T.H.I.S. Design PROPERTY OWNER: Mike & Ann Moffat APPLICATION SUMMARY: Requesting approval of a two-lot subdivision on property zoned HR- 21/2. APN 527-11-005. DEEMED COMPLETE: May 1, 2009 FINAL DATE TO TAKE ACTION: June 21, 2009 RECOMMENDATION: Approval, subject to conditions PROJECT DATA: General Plan Designation: Zoning Designation: Applicable Plans & Standards Parcel Size: Surrounding Area: Low Density Residential HR-2V2 State Subdivision Map Act Subdivision & Zoning Ordinances General Plan 7.96 acres i Existing Land Used General Plan Zoning North _j Single Family Low Density HR-1 East I Single Family South! Single Family Low D_ensity_E HR-1 Low Density HR-21/2:PD_ West ! Single Family Low Density i HR-21h:PD CEQA: It has been determined that the project will not have a significant effect on the environment and a Mitigated Negative Declaration is recommended. FINDINGS:. ■ As required by Section 66474 of the State Subdivision Map Act. 2 ATTACHMENT 8 Planning Commission Staff Report - Page 2 15500 Francis Oaks Way/M-06-04, ND-06-04 June 24, 2009 ACTION: The decision of the Planning Commission is final unless appealed within ten days. EXHIBITS: I. Location map (one page) 2. Mitigated Negative Declaration (12 pages) 3. Mitigation Monitoring Plan (two pages) 4. Required findings (one page) 5. Recommended conditions of approval (seven pages) 6. Town Council Resolution 2007-029 (three pages) 7. Letter from applicant (two pages), received May 4, 2009 8. Letter from Dave Weissman (four pages), received April 28, 2009 9. Environmental Consultant response to comments (eight pages), received May 1, 2009 10. Applicant's response to MND comments (two pages), received May 4, 2009 11. Letter from Dave Weissman (three pages with eight pages of attachments), received May 21, 2009 12. Letter from Robert S. Kahn (two pages), received May 15, 2009 13. Response letter from Town Attorney (one page), dated May 18, 2009 14. Letter from Robert S. Kahn (two pages), received May 29, 2009 15. Letter from applicant (one page), received June 4, 2009 16. Tentative map & conceptual development plan (two sheets), received April 28, 2009 BACKGROUND: The 7.96 property is located on the south side of Francis Oaks Way at the westerly terminus of the road. Francis Oaks Way is a private road and is not maintained by the Town. There is an existing single-family residence on the site that was approved by the Town Council in 2000. On December 13, 2006 the Planning Commission considered a two-lot subdivision with a different lot configuration and building site. The Commission voted unanimously to deny the application based on lack of compliance with zoning requirements and a finding that the proposed development was not appropriate for the property. The applicant appealed the Commission's decision on December 22, 2006. On March 5, 2007 the Council determined that there was new information that the Commission did not have at the time the application was denied, and found that there was sufficient Planning Commission Staff Report - Page 3 15500 Francis Oaks Way/M-06-04, ND-06-04 June 24, 2009 information to require reversal of the Planning Commission decision. The Council remanded the application and directed the Commission to review the application for compliance with all applicable Town ordinances, standards and guidelines concerning land development. The Council resolution is attached as Exhibit 6. This application was originally scheduled for the May 13, 2009 meeting, but was continued to May 27, 2009 and subsequently to this agenda to allow additional time to address access and environmental issues that were raised following advertisement of the project. PROJECT DESCRIPTION: A. Project Summary The applicant is proposing to subdivide a 7.96 acre property into two lots of 4.89 and 3.06 acres. The existing residence will remain on the 4.89 acre parcel and a new residence will be constructed on the 3.06 acre parcel. A conceptual development plan has been provided to demonstrate that a house can be constructed on the vacant parcel that will be created by the subdivision. B. Location and Surrounding Neighborhood The project site is located at 15500 Francis Oaks Way, on the south side of the road at its westerly terminus. Properties to the north, east and west are developed by single family residences. Land to the east and south of the property is part of the Highlands of Los Gatos Planned Development (PD). Two new homes have been approved within the PD, but have not yet been constructed. C. Architecture and Site Approval If the subdivision application is approved, an Architecture and Site application will be required for the new residence on parcel 2. D. Tentative Map Approval Approval of a Tentative Map application is required for the proposed two-lot subdivision. Subdivision Map Act findings are included in Exhibit 2. If any of these findings can be made, it is grounds for denial of the subdivision. Planning Commission Staff Report - Page 4 15500 Francis Oaks Way/M-06-04, ND-06-04 June 24, 2009 E. Zoning Cogiliance Minimum Requirement Parcel1 Francis Oaks Way Parcel2 Shady Lane lot size (Zoning Ordinance) 40,000 sq. ft./ 92 acres 4.89 acres 3.06 acres land area (slope density) 2.5 acres lot width 100 feet 388 feet 309 feet F. General Plan Compliance The General Plan land use designation for the property and surrounding area is low density residential, 0 to 5 units per acre. The proposed density is less than .25 units per acre and is within the allowable density range. ANALYSIS: A. Lot Size & Configuration The proposed lot sizes are within the size range required by the Zoning Ordinance for the HR-21/2 zone (2%2 to 10 acres per dwelling unit). The average lot size of 3.98 acres meets the minimum average determined by the slope density calculations (3.75 acres). The building site is limited by the presence of a storm drain easement and slopes greater than 30%, and may not be able to accommodate the maximum allowable floor area. B. Access Access to Parcel 1 will remain on Francis Oaks Way. Parcel 2 is proposed to be accessed from Shady Lane through a private easement. If the subdivision is approved Parcel 2 will be assigned a Shady Lane address. The grantor of the ingress-egress easement is contesting the ability of the applicant to subdivide the property and use the easement to access proposed Parcel 2 (see Exhibits 12 and 14). The grantor has stated that the intent of granting the easement was to allow secondary access to the property for purposes such as maintenance and emergency access. The grantor's attorney maintains that subdividing the property will transfer the access from the house at 15500 Francis Oaks Way to the proposed parcel, which is not allowed under the terms of the Easement Agreement. The Town Attorney reviewed the Easement Agreement and the letters from the grantor's attorney and concluded that the applicant has legal access to the property and that it is not restricted (see Exhibit 13). Planning Commission Staff Report - Page 5 15500 Francis Oaks Way/M-06-04, ND-06-04 June 24, 2009 The Town Code does not prohibit access by private easement however, it is not as desirable to create a lot that will be landlocked should access rights be lost or severed as it is to have direct access from a public or private street. C. Neighborhood Compatibility The proposed lots sizes are within the range of existing properties in the surrounding area. The proposed building site is in a low lying area of the site and will have limited visibility. The site can be seen from Shady Lane, but is hidden from surrounding homes and undeveloped home sites in the Highlands PD by existing topography and trees. A house on the site will be isolated from homes on surrounding properties and will not be part of a neighborhood. D. Trees The Town's Consulting Arborist visited the site and prepared an Arborist report (see Exhibit 8). Parcel 2 can be developed without removing any existing trees. One oak tree is in close proximity to the building site and could be impacted. E. Geotechnical Review A revised geotechnical investigation was prepared for the building site. The report was peer reviewed by the Town's Geotechnical Consultant, AMEC Geomatrix. No geologic constraints to site development were identified. A design level geotechnical engineering investigation will be required when plans are developed for a new residence. The Geotechnical Consultant will review development plans and a supplemental site-specific geotechnical report as part of the Architecture and Site application review. F. State Subdivision Map Act The State Subdivision Map Act includes seven findings relative to subdivisions of land (see Exhibit 4). If any of the findings can be made the subdivision should be denied. G. CEQA Determination As required by the California Environmental Quality Act (CEQA), an Initial Study and Mitigated Negative Declaration have been prepared (see Exhibit 2. The environmental review was completed by the Town's consultant, Geier & Geier Consulting. As part of this process a geotechnical investigation was conducted and was peer reviewed by the Town's Geotechnical Consultant and an arborist report was prepared by the Town's Consulting Arborist, Arbor Resources. The public comment period for the Mitigated Negative Declaration ended on April 28, 2009. Planning Commission Staff Report - Page 6 15500 Francis Oaks Way/M-06-04, ND-06-04 June 24, 2009 Potentially significant impacts will be mitigated by the recommended mitigation measures, including a provision for arborist review when an Architecture and Site application is submitted and a requirement for utility lines that cross slopes greater than 30% to be installed without trenching. All mitigation measures have been included as conditions of approval (Exhibit 5). in addition, a Mitigation Monitoring Program has been prepared (Exhibit 3) to designate the responsible department or agency, and timing of each mitigation measure. PUBLIC COMMENTS: Public hearing notices were sent to more than 30 surrounding property owners and residents. House occupants were noticed in addition to the property owner where the owner does not reside on the property. One neighbor submitted written comments on the Mitigated Negative Declaration (See Exhibit 8). A response to comments was prepared by the Environmental Consultant (Exhibit 9) as well as the applicant (Exhibit 10). In addition, one letter of opposition was received (see Exhibit 11). The applicant's response to this letter is Exhibit 15. CONCLUSION AND RECOMMENDATION: A. Conclusion The proposed subdivision is consistent with Zoning and General Plan requirements although it will create a parcel with limited development potential, and one that will have no direct street frontage or relationship to homes on surrounding properties. There are no alternative building sites on the property. If the Planning Commission determines that any of the findings for denial specified in Section 66474 of the State Subdivision Map Act can be made, the Subdivision application should be denied. Final action must be taken at this meeting unless the applicant and Town agree to a continuance. B. Recommendation To approve the Subdivision application, the following actions should be taken: 1. Make the Negative Declaration; 2. Adopt the Mitigation Monitoring Plan (Exhibit 2); 3. Determine that none of the findings for denial of the tentative map can be made (Exhibit 3); 4. Approve Subdivision application M-06-04, subject to the conditions in Exhibit 5. Planning Commission Staff Report - Page 7 15500 Francis Oaks WUffl-06-04, ND-06-04 June 24, 2009 s Prepared by: Suzanne Davis Associate Planner -e-) " 4~1)CLL' "'r- Approved by:1 Wendie R. Rooney Director of Community Development WR:SD cc: Mike & Ann Moffat, 15500 Francis Oaks Way, Los Gatos, CA 95032 Tony Jeans, TIIIS Design, P.O. Box 1519, Los Gatos, CA 95031 Dave Weissman, 15431 Francis Oaks Way, Los Gatos, CA 95032 N:1DEVIREPORTS520041FrmcisOaks 15500-TM-061009. do c 15500 Francis Oaks Way Exhibit I 1 xl 5./ 1 le F 0 I k U 1(I I jl' 1 a ~ 1 m 1 d~ ~ m I r, Ws mV W ~ _°~.L` a U Z H NN W W Z lD Z W J J Q w 3 I I I I ;n ~m N 2 } W CY U a O a 0 a af a a L: z u z z tom. a u 3 RECEIVED T.H.I.S. DESIGN & DEVELOPMENT Box 1518, Los Gatos, CA 95031 Fax: 408.354.1823 Tel: 408.354.1863 MAY 4 2009 TOWN OF LOS GATOS PLANNING DIVISION 110 E. Main Street Eros Gatos, CA 95032 Attn: Suzanne Davis, Planning Department May 4th, 2009 Analysis of Weissman Comments re: Mitigated Neg Dec M.-06-4 The Weissman submission date of 4/28 would appear to be outside the comment window for this project. However, it has been allowed into the file, so I will respond. Question 1: Is the 1990 Blossom Hill Open Space Study's [BHOSS] Designation of the Drainage Swale on the Moffat property as a "Riparian Restoration Area" still relevant? • What is a "Riparian Restoration Area"? It would appear to be best defined as an area that is not at present a Riparian Area, but one that Could be Considered Suitable to be developed into one. • So why was the Moffat Drainage Swale and the swale above it identif led as suitable for such development in the BHOSS? Presumably because the area below it Now a part of Highlands] was designated as an Existing Riparian area. [see Weissman attachment: Corridor Overlay from BHOSS] • What has happened in the 2 decades since the 1990 BHOSS in relation to this this area? Firstly there would appear to be less runoff than there used to be; secondly the previous owner [appropriately or not] lined the Swale with river rock; thirdly the Highlands project has been approved and implemented. o Runnoff changes may revert, but do not appear to be significant from the 33 acre catchment area above the swale. o An existing owner should not be held liable for work performed by a previous owner almost a decade earlier. Weissman brought this up, together with many other concerns of his, many years ago and the Town investigated and addressed potential infractions at that time. o The Highlands Project with its 19 lots was looked at carefully by the town and a full Environmental Impact Report was performed. Ultimately, the subdivision was approved. The supposed Riparian area below the Moffat land was determined NOT to be a riparian habitat and the first 1,000 ft of drainage swale was placed underground in a 24" culvert. The next 1,000 ft comprise a drainage channel bordered by a concrete wall. Additionally the upslope designated Riparian Restoration Area above Moffat was, and still is, used for construction material storage during the development of the Highlands infrastructure. Exhibit 10 Answer to Question 1: The relevance of the Moffat Drainage Swale as a Riparian Restoration Area is ZERO. This is shown from the upslope and downslope approvals given for the development of this land as well as the evidence reported by the various consultants who have researched and reported on it. In the approval process for the Highlands Subdivision, the Town of Las Gatos requested that Moffat designate an easement across their property as a Public Storm Drainage Easement, granting Town employees the right to maintain and improve the drainage channel from time to time. This is not an area for future riparian restoration, but rather an important storm drain channel, both above and in below ground culverts that has benefited the Town of Los Gatos in allowing it to approve the Highlands subdivision; thus bring much needed water to the neighborhood. Question 2: Is an EIR appropriate based on Weissman's concern about the potential runoff into Short & Ross Creeks? Answer to Question 2: The Initial Study addressed Drainage to Short and Ross Creeks. The reason they prepared a Mitigated Neg Dec and not a Neg Dec was based primarily on this question. Mitigation measures for the development of Parcel 2 on the Moffat land require "the implementation of a drainage management system that maximizes on-site percolation of drainage flows and maintains the storm runoff from the site at pre-development levels' In Summary: Dr Weissman is duly proud of his PhD in Biology, and I applaud him for it. However, it is Geier and Geier to whom the Town turns to provide an impartialanalysis of the many different facets encounfered in any proposed subdivision. They are the experts to whom we must listen for an analysis of Aesthetics, Agriculture Resources, Air Quality, Cultural Resources, Geology/Soils, Hazards & Hazardous Materials, Hydrology/Water Quality, Land Use Planning, Mineral Resources, Noise, Population & Housing, Services, Recreation, Transportation/Traffic, Utilities/5ervice Systems and Mandatory Findings of Significance as well as Or Weissman's Biological Resources. I see no evidence provided by Weissman that has not: • previously been addressed by the Town Las in: prior landowners' actions} • been proven no longer relevant by the Highlands subdivision. • been well addressed by Geier & Geier in their Initial Study. and I urge the Town not to delay this matter further. Tony Jeans for T.H.I.5. Design Cc Mof fat RECEIVED To: Planning Commission, Meeting of May 27, 2009 MAY 2 1 2009 Re: Subdivision Application M-06-4 TOWN OF LOS GATOS PLANNING DIVISION From: Dave Weissman, 15431 Francis Oaks Way, Los Gatos 95032 Because I will not be able to attend the Planning Commission meeting of May 27th, please allow me to present some arguments against the Moffat's proposed subdivision. The old real estate mantra, "location, location, location," truly applies to this application, for here is a house in search of ANY location on the Moffat's 8 acre property. Many commissioners will remember the great expense and time required for the Moffat's first abortive attempt to subdivide their property in 2006. Never mind the facts of the case: the removal of a heritage oak tree, construction on greater than 30% slopes, etc. These were all problems that should have been anticipated. And that location was the Moffat's first choice. Now the Moffats return with Plan B, another ill-thought-out proposed house siting and subdivision. Apparently the Moffats have not learned the lesson articulated by both the Council and Planning Commission in 2006: that just because a lot can be mathematically subdivided, doesn't mean that it should. Such a position is eminently addressed on page 10 of the Hillside Development Standards and Guidelines (HDS&G): "Site characteristics and constraints along with the implementation of the Hillside Standards and Guidelines may not allow a specific site to achieve the maximum density or intensity otherwise permitted by the zoning ordinance." So, what is wrong with this new proposed site? Well, for starters, how about: 1. The totally ignored 1989 Open Space Study for the Blossom Hill Area that designated this area for "Riparian Restoration." In the Town's 2007 "Guidelines and Standards for land use near streams," a stream is defined as "A body of water that flows at least periodically or intermittently through a bed or channel having banks. The body of water may include a surface or subsurface flow that supports or has supported (my emphasis) riparian vegetation, fish and/or aquatic life." In testimony and photographs that I submitted to the Town on April 28, 2009, two of the above conditions are met to qualify this drainage area as a stream: (1) Water that flows at least periodically or intermittently (Exhibit 1) and (2) A surface flow that has supported, as recently as 1998, riparian vegetation (horsetail - Equisetum sp.). As such, I believe that this area may come under the jurisdiction of the U. S. Army Corps of Engineers Exhibit 11 (and probably SCVWD, CA RWQCB, CDFG, and CEQA) following the guidelines outlined in the "Routine Determination Method" in the Corps of Engineers Wetlands Delineation Manual (Environmental Laboratory 1987). 1 detail in my April 28, 2009, letter why the Moffat's environmental consultant came to a different conclusion in 2005 regarding the "stream" quality of this site: (1) Runoff characteristics of the neighboring hillsides were altered by the illegal grading and clearing of almost all ground vegetation by the previous owner in 1998 and (2) This illegal clearing also removed all riparian type vegetation, specifically the Equisetum. Additionally I believe that hillside soils were not saturated when the consultant visited the site on January 13, 2005, and both the winters of 2003 and 2004 (other periods of his observations) were both below average rainfall (especially 2003). It is thus my professional opinion that the Initial Study is inadequate and an EIR is necessary to adequately assess the environmental impact of this proposed subdivision. 2. The Moffats have never complied with all the conditions mandated by the Town's Public Works Committee at its August 20, 2008, meeting. Specifically they were required to do the following: A. Justify why all road easements should not be subtracted from the property's total area when doing slope-density calculations. To which Tony Jeans replied in October, 2008: "Private ingress/egress easements need not be, and are not typically removed from the gross area when calculating slope. This is consistent with Town Ordinances." Actually, the HDS&G defines "net lot area" as "area of the lot exclusive of rights-of-way or ingress-egress easements for public or private use." Under this definition, I would expect to see the area of the 40' Francis Oaks Way right-of-way (according to applicant's engineer Dunbar & Craig), and those unrestricted easements for ingress-egress that bisect the Moffat property that belong to three Francis Oaks Way neighbors (Ribar, Kranzusch, and Nolan), subtracted from this 7.96 acres. It is still unclear today, just as it was in 2006 during the Moffat first application, if this parcel actually meets the minimum area requirements for subdivision. Additionally, Town Code Section 29.10.020 defines "lot area" as "the total horizontal area... except... any land determined to be riparian habitat." Turning, again, to the HDS&G, one finds "riparian corridor" defined as "an area comprised of habitat strongly influenced and delineated by the presence of perennial or intermittent streams." The area of the riparian corridor should also have been subtracted from these 7.96 acres. B. Show conceptual grading to provide necessary two foot freeboard. To which Tony Jeans replied in October, 2008: "Grading plans and earthwork quantities will be submitted with the A&S application." That is all very nice except that once this subdivision is granted, a second house is assured, even if the amount of grading necessary is excessive and retaining walls massive. The proposed plans clearly look like a shoehorn will be necessary to fit the house and guesthouse within the confines of the surrounding 30% and greater slopes. Thus, it would be helpful to have such earthwork quantity numbers beforehand to permit a thorough evaluation of this proposal. 3. Three properties on Francis Oaks Way, the old Trimble lots presently owned by Ribar, Kranzusch, and Nolan, all have Title Company insured easements for unrestricted ingress and egress right through the center of the drainage swale where the Moffats want to place the driveway and turn around for their new house. Imagine the surprise of the new owner of this proposed house should one of the Trimble successors want to activate their easement rights? All these concerns are not new information to the Moffats, since the impossibility of placing a second house on the property was recognized as far back as the 1970s. In fact the flyers advertising the Moffat property for sale in 1998, from 3 different realty companies, specifically note (see Exhibits 2, 3, and 4) that the 8 acres are "not divisible", a fact known to the Moffats when they purchased in 2000. Additionally, in 2000, several neighbors were involved in an easement dispute with the previous owner. Submitted sworn testimonies (see Exhibits 5, 6, and 7) relating to that dispute, claim that there is a location for only one house on the 8 acres. That is where the present Moffat house sits. And these 2000 statements were not referring to any slope density calculation but to just the physical characteristics of the site. These affidavits, all submitted under penalty of perjury, were signed by Larry Schaadt (Exhibit 5), the property owner at that time, Marvin Kirkeby (Exhibit 6), his land surveyor, and Tony Jeans (Exhibit 7), his architect. Yes, the same Tony Jeans that is now the Moffat's architect. Are we supposed to believe that all three of these people lied and would risk going to jail? Or, more likely, I believe, all three were convinced that there is only one viable building site because of slope constraints, tree cover, and drainage characteristics of this parcel. In any case, the only detail that has changed about this property since 2000, is that now the Moffats own it. I submit that this proposed subdivision should be denied under criteria B, C, D, and E of the CA Subdivision Map Act. Quite simply, there is not a place to site a second house and the Moffat's subdivision application should be denied once and for all. FRANCIS OAKS WAY Ra.s. is/-Tv CC+ p/1y pRIINCIS oa+cs wnr HOMESITE 6 a.~onc. GR. - 4.513AC. GR. 2.430 AC. GR. 1 $ •a. \ trpZ• 12 „r' R LOS GATOS 8 ACRE HOMESITE LOCATED IN THE FOOTHILLS OFF BLOSSOM HILT. ROAD SERENE PASTORAL VIEWS OF THE LOS GATOS MOUNTAINS Offered at $349,000 PG&E, PHONE, CABLE TV M UNION SCHOOL DISTRICT WATER SOURCE AVAILABLE* SHARED PRIVATE ROAD NOT DIVISIBLE SEPTIC REQUIRED PRIVATE ESTATE AREA RRIVATE YET CLOSE TO TOWN s HILLSIDE VIEWS *CALL AGENTS FOR DETAILS 16 FOX & GARSKADON LOS GAI All mr.-mmenla Exp+etrx FOX & CARSIUDON, (408)354-5174 JOHN LESLIE CA 95030 ices me npryroxlmale, 5onrce of Inrormalfnn deemed to t-wb • I+L1 nn[ ¢tsarnnlreo 3 0 iE FRANCIS OAKS WAY LOS GATGS 8 ACRE HOMESITE LOCATED IN THE FOOTHILLS OFF BLOSSOM HILL ROAD SERENE PASTORAL VIEWS OF THE LOS GATOS MOUNTAINS . offered at $3 owo ■ PG&E, PHONE, CABLE TV IN UNION SCHOOL DISTRICT WATER SOURCE AVAILABLE* 0 SHARED PRIVATE ROAD w SEPTIC REQMRED B NOT DIVISIBLE ■ PRIVATE ESTATE AREA PRIVATE YET CLOSE TO TOWN ■ HILLSIDE VIEWS B *CALL AGENTS FOR DETAILS S r ~ls tr CONTEMPO REALTY -3542295 43 .30MN LESLIE Votcr MAzu 983.8070 C w~a~eww+wu xy ~prt+i~e[e. 3r:wn d af4+~rtN+ Is..ww w ■at ~*~4 ; ~ i ^ f, FRANCIS OAKS WAY Ra.s. r~/sv +o 60' RfW FRANCIS OAKS W A Y _ 8.70AC. GR. HOMES I'VE 5 z.~ 4.513AC. 6R. e 3 y i c e e `221 F~ 12 ,*r LOS GATOS S ACRE HOMRSITE LOCATED IN THE FOOTHILLS OFF BLOSSOM HILL ROAD SERENE PASTORAL VIEWS OF THE LOS GATOS MOUNTAINS Offered at $430,000 PG&E, PHONE, CABLE TV WATER SOURCE AVAILABLE* NOT DIVISIBLE PRIVATE ESTATE AREA K HILLSIDE VIEWS h g A AV Nl UNION SCHOOL DISTRICT 5 , SHARED PRIVATE ROAD R S PTIC REQUIRED PRIVATE YET CLOSE TO TOWN *CALL AGENTS FOR DETAILS FOX & CARSKADON: (408)354-5174 MIKE RUGANI AND JOHN LESLIE 95030 :s....,:..: aplstnW"U, Rolit w of Infonmlion deemcd LmUmb1c, La! not ruami" 1. I. 21 3 4 5 • fi on the property on Francis Oaks Way purchased b . Pl...i- f . 3• The home will be located on what is a onl buildable" spot of the 8.7 acre parcel purchased by plaint sement claims in Parkside's property that have been made by the Weissmans and McLaughlins run over Parkside's property in the very location where we must build the home. r 0, '0 ,i 1 2 3 4 5 6 7 9 10 11 12 13 14 15 17 19 211 "A I 271 24, 1998 with regard to the McLaughlin property on Francis Oaks Way, which I received in the normal course of business. 9. As a developer I have independently confirmed that both title reports were true and accurate as of the dates they were issued and I am informed and believe that both reports reflect the state of the title of both properties today. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, that I am competent to testify to same of my personal knowledge and that this declaration se, California on January 28, 200( 6 Ma 3 Parkside parcel"). My investigation included a careful review of the public records, including,the Putnam-Joust transaction, recorded in 1897. 3. Francis Oaks is a private road that serves approxi- mately seventeen property owners along its route. The last 75 6~ 7 8 9 10 11 13 14 15 16 17 1$ H 21 22 23 24 25 2G 27 28 feet of Francis Oaks is located on Parkside's parcel and serves only the property owned by the McLaughlin, Parkside and the three parcels across Francis Oaks from Parkside's land (the Trimble property). 4. I have surveyed the Parkside parcel and prepared a topographical map as well as a map depicting the location of various alleged easements, including the 1897 Putnam Joust document. 5. Attached as Exhibit '!A" hereto is a parcel map which properly depicts the subject property as parcel #5, the McLaugh- lin property as '#2 and the Weissman property as parcel #4. i 6. Attached as Exhibit "B" hereto is my map of the Parkside parcel showing the location of the Putnam-Joost trail, per my survey of same. 7. The Parkside parcel consists of approximately 8.7 acres. It is fenced and gated (at two points) and appears to have been for many decades. The Parkside parcel is primarily comprised of hillside land and because of this has only one viable location for a residential, building site and that site is located on the upper portion of the 1897 Putnam-Joost trail E'. where Tony Jeans has proposed to place the home Parkside wants to build. maw 1tWt6iT6, ' 1647 LO: I declare under penalty of perjury under the laws of the 27 State of California that'the foregoing is true and correct, that 28 1650 2 I aik competent to testify to same or my personal knowledge and 3 that this declaration to executed in San Jose, California on 4 January 27, 2000. XMIN KZRM~Y r 7- tom. UWI Exp. "IA" 1.6 fig l~'6'~ f~.• 0 f 21 a.•:4•*CtM 11:40 4882@8233; 9 3 6 " 7 8 1 tl 1I 12 13 14 28 D BROW ESC FAX PA5E P.S Altar Parkside hired 84 to design a house for this proPestY ? acntaated Marvin xirkeby, a civil onglnser. we --~af-~aa~t~r-sr~f.<di~~ciud~Q Shat thisei ht acre ills.ids parcel a l ontained one viable bu di x1pill 1111 to f.or a hoes, the location Of which is just where David Weissman claims an WA 09 h t': -his dog. Y declare under penaltyof perjury under the laws of this itat• Of California that "a forsgoinq is true and correct, that Z aM ooWpatent t4 testify tv ■aane of my personal knowledge and that this declaration is execut Ln san Joae, California on January Zooo. TOKY Jule I$ 17 18! a EacM+IiT THE LAW OFFICE OF ROBERT S. KAHN Real Estate, Business & Civil Litigation ROBERT S. KAHN May 15, 2009 Orry Korb Los Gatos Town Attorney 110 E. Market Street Los Gatos, CA 95030 Re: The Highlands of Los Gatos - Sandy Harris Wrongful Claim of Access Easement by Michael Moffat Dear Mr. Korb: - Via E-Mail Only This office represents Sandy Harris and The Highlands of Los Gatos LLC ("THLG"). On or about April 22, 2008 an easement agreement was entered into between Mr. Harris on behalf of THLG and Michael Moffat who is one of many contiguous land owners to THLG site.' The easement right granted to the Moffat residence and property was in response to the desire to have a secondary convenience easement to the lower portion of the property and nothing more. To assure this, and prevent the precise effort now underway to subdivide the property and use the secondary easement as primary access to a new and different parcel, the following language was expressly included in relation to the subject easement: #10 All of the rights and liabilities herein created are intended to be perpetual and appurtenant to the land to which they relate, they are intended to be covenants that "run with the land" to which they relate and shall bind each successive owner of the affected properties. The rights and liabilities herein created are not to be severed from the land with which each runs and cannot, in and of themselves (and without transfer of the land to which it attaches) be transferred. It is submitted that the current effort to subdivide the lower portion of the land from the upper portion and change the nature of the easement to primary, would sever the easement "from the land upon which it runs" and be tantamount to a "transfer of the land to which it attaches", i.e. a violation of the very purpose of the included language and expressed intent of the agreement of the parties. It would also result in extinguishment of the easement and Town exposure in the all but certain litigation that would follow. Please know that I am currently out of the State and unable to attach a copy of the complete easement at this time. I will arrange to have Mr. Hams mail or deliver a copy to you. 25263 TERRACE GROVE ROAD LOS GATOS, CALIFORNIA 95033-9705 RECEIVED Telephone (408) 353-3456 Facsimile (408) 353-1776 KAHNLAW aIEARTHLINK.NET MAY 15 2009 TOWN OF LOS GATOS PLANNING DIVISION Exhibit 12 Orry Korb Los Gatos Town Attorney May 15, 2009 Page 2 Absent a flag lot access easement created over the upperportion of the existing Moffat parcel where the residence is located, the proposed parcel would be land locked. The proposed parcel would also not legally qualify for any claim of easement bynecessity in that its owner and the Town would have allowed its creation with knowledge of the absence of access. I will return to the Bay Area around the end of the month. Should you feel it would be helpful, Mr. Harris andmyself would be pleased to meet with you and/or zoning and planning officials to further discuss this issue and answer any questions. Thank you. Very truly yours, The Law Office of Robert S. Kahn Robert S. Kahn RSK/dj Cc: client TOWN OF LOS GATOS OFFICE OF THE TOWN ATTORNEY Phone (408) 354-6880 Fax (408) 354-8431 May 18, 2009 Robert S. Kahn, Esq. Law Office of Robert S. Kahn 25263 Terrace Grove Road Los Gatos, California 950333-9705 Re: The Hibhlands of Los Gatos - Sanely Harris Dcar iVlr. Kahn: Civic CENTER 110 E. NIA- N STRm P.O. Box 949 Los GATOS, CA 95031 RECEIVED MAY 18 2009 TOWN OF LOS rATOS PLANNING DIVISION Thank you for you letter elated May 15, 2009. I have reviewed the letter- and understand your position that Michael Moffat does not have a right to access his proposed second parcel from your client's property on Shady Lane. Nly job, among other things, requires that I advise the Planning Com illission and, if necessary, the Town Council, regarding any issues arising from land use applications such as that filed by Mr. Moffat. If asked about access to Mr. Moffat's proposed second parcel, my advice would be that he apparently possesses all LITINStricted easement for that purpose. I would base my opinion on the April 22. 2008 easement agreement referred to in your letter. That agreement does not clearly, specifically, and unambiguously restrict the access granted therein, particularly in regard to a subdivision of ivlr. Moffat's parcel. The language you refer to in paragraph 10 of the agreement is consistent with that used to specify that an easement is appurtenant, in this case to Mr. Moffat's land, rather than in gross. The fact that Mr. Moffat's land would be subdivided does not seem to violate the character of an appurtenant easement which would continue to benefit the subdivided parcel. Of course I tivould be happy to consider any additional factual information or legal citations that You feel supports your client's position. Ve • truly yours. r ORRY I'. KORB `Fown Attorney OP opk c Susanne Day is, Department of CommLLnity Development INCORPORArr-D AUGUST 10, 1887 ~ Exhibit 13 %J THE LAW OFFICE OF ROBERT S. KAHN Real Estate, Business & Civil Litigation ROBERT S. KAHN 25263 TERRACE GROVE ROAD ATOS, CALIFORNIA 95033-9705 RECEIVeV Telephone (408) 353-3456 Facsimile (408) 353-1776 MAY 2 9 2009 KAHNLAW©EARTHLINK.NET May 29, 2009 Orry Korb Office of the Town Attorney 110 E. Market Street Los Gatos, CA 95030 Re: The Highlands of Los Gatos - Sandy Harris Wrongful Claim of Access Easement by Michael Moffat Dear Mr. Korb: In response to your letter of May 18, 2009, I submit the following: - Via E-Mail Only It is hard to understand why you, on behalf of the Town, would decide to act as the trier of fact and reach a conclusion that if nothing else, is subject to court resolution and interpretation and if followed, would place the Town's assets and resources at risk. You acknowledge and assert that the: [a]greement does not clearly, specifically, and unambiguously restrict the access granted therein . If nothing else, that premise if accepted only militates for the need for resolution and/or judicial interpretation and notthe conclusory position espoused byyou and upon which the Town might rely and place itself at risk. Also acknowledged by you, the language of paragraph 10 of the agreement between Mr. Moffat's property and The Highlands of Los Gatos through Sandy Harris states unequivocally that the easement granted: "cannot be severed from the land to which it attaches." It is irrefutable that the land to which it currently attaches is the entire Moffat parcel, not some subdivided portion of it. If the lower portion of the property is severed, the upper portion to which it was expressly stated it was also to benefit, would lose that benefit and the express purpose and intention of the parties would be modified. The decision to lose the benefit for the upper portion was not left to the whim of Mr. Moffat or any subsequent owner or the Town, but only to all the parties to the agreement. TOWN OF LOS GATOS PLANNING DIVISION Exhibit 14 Orry Korb Office of the Town Attorney May 29, 2009 Page 2 Whollycontrary to the position and advice ofyour office, a title company faced with this issue would most certainly not issue a title policy in this circumstance and place its carrier at risk. Instead, as a precondition, it would require the owner to resolve the issue. Why the Town would do differently is impossible to comprehend. Your advice leaves the Town to take on a risk with no countervailing reward. To require resolution leaves the Town with no down side. Proceeding based upon your advice most certainly makes it a party not just to the suit that will follow, but potential future litigation. If Mr. Moffat or the ultimate transfereeibuyer of the subdivided property loses the right in question in court and the Tow is wrong because it followed your interpretation and advice, then the Town's liability and ergo its assets and resources will be at risk as it is forced to defend its action. Why the Town would voluntarily elect to place itself in this position when it can be completely avoided is bewildering. As previously stated- [t]he current effort to subdivide the lower portion of the land from the upper portion and change the nature of the easement to primary, would sever the easement "from the land upon which it runs" and be tantamount to a "transfer of the land to which it attaches", i.e. a violation of the very purpose of the included language and expressed intent of the agreement of the parties. Itwouldbe prudent and advisable that you reconsider bothyour opinion andthe advice upon which the Town will rely. If not first required to be resolved, then this issue places the Town in jeopardy when judicious reflection would have it step away and avoid it. Thank you. Very truly yours, The Law Office of Robert S. Kahn 1,0X6, C~ i17, Robert S. Kahn RSK/dj Cc: Suzanne Davis via e-mail client 05-24-041Ltr to Korb - town attornoy/THLG T.H.I.S. DESIGN & DEVELOPMENT Box 1518, Los Gatos, CA 95031 Fax: 408.354.1823 Tel: 408.354.1863 110 E. Main Street June 4t", 2009 Los Gatos, CA 95032 Attn: Suzanne Davis, Planning Department Subdivision Application M-06-4 Pes onse to Dave Weissman Letter dated May 21St 2009 bavid Weissman, in his most recent letter, is attempting to delay and/or prevent Mike and Ann Moffat from subdividing their property- this time by bring up a series of "non-issues" that have either been addressed already or are not relevant to the issue at hand. These responses should be read in conjunction with the Weissman letter to which it relates. 1. This has been well addressed by Geier & Geier response to Weissman previous letter. 2. Application was "deemed complete" with all issues addressed on May 1St 2009. (a) This is only required for Public roads - not Private roads. (b) Hydrology showed that the SD pipe will be of sufficient capacity to accommodate a 100 yr storm. We have agreed to place the finished floor of the residence sufficiently above adjacent grade to allow for 'SD culvert overflow'. 3. (a) The easement argument was raised and rejected when the original house on the Moffat Land was approved. None of the neighbors in question have raised any objection. (b) Prior to the Highlands subdivision there was only one sensible house location for a house on the property [based on driveway, utilities, etc.]. Now there are two. Both the utilities and the driveway will come from the public street at Shady Lane for the new parcel. It is my ardent hope that the Planning Commission will look beyond the smoke to the substance of this application and make a determination as to its merits. To re-iterate Mike and Ann Moffat are asking for neither variances nor exceptions and are 100% compliant with all Town of Los Gatos General Plan and zoning regulations. They are providing a public benefit to the community in dedicating a Scenic Easement at the upper [most visible] portion of their land; and in dedicating a Storm brainage Easement to the Town of Los Gatos across both of the Parcels to facilitate the requirements placed on the Highlands Subdivision for Storm brainage runoff from portions of the Public streets being constructed. If there are any questions, please call me at 354-1833. Tony Jeans for T.H.I.S. Design Cc Moffat Exhibit 15 NOTICE TOWN OF LOS GATOS ENVIRONMENTAL N[PACT REVIEW MITIGATED NEGATIVE DECLARATION Lead Agency: Town of Los Gatos Community Development Department 110 East Main Street Los Gatos, CA 95031 Project Title and Location: 15500 Francis Oaks Way Subdivision Application M-06-4 Negative Declaration ND-06-4 Project Description: The project applicants are requesting approval to allow the subdivision of a 7.96- acre parcel into two lots. Lot 1 would be 4.894 acres and Lot 2 would be 3.065 acres. The existing residence would be located on Lot 1, while the new residence would be constructed on Lot 2. Lot 1 would extend from Francis Oaks Way on the north to the Highlands of Los Gatos boundary on the south. Lot 2 would consist of the southwestern corner of the project site, and the western and southern boundaries of this lot adjoin the Highland of Los Gatos site boundary. The proposed conceptual plan indicates that the proposed Lot 2 could accommodate development of a future home on the northern portion of the site within the area delineated as the parcel's LRDA (Least Restrictive Development Area). The conceptual plan indicates that access to the future home would be provided by a proposed access driveway that would extend westward from the future home to the recently constructed extension of Shady Lane on the Highlands of Los Gatos property. The driveway alignment would coincide with an existing storm drain easement that extends from this roadway to the western project boundary, then continues eastward across the project site. Determination: Although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because the mitigation measures listed below have been added to the project, mitigating potential impacts to a less-than-significant level. An Environmental Impact Report will not be required. Statement of Reasons to Support Finding: 1. Aesthetics: The proposed subdivision and development of Lot 2 would result in development of a new residence on the southern portion of this lot, at the base of a drainage contiguous to the Highlands property. The home would be accessed from Shady Lane. Development of a home on proposed Lot 2 would not obstruct or adversely affect any available scenic vistas from adjacent properties located on Francis Oaks Way or from residential lots on the Highlands property. The future residence on proposed Lot 2 would be visible primarily from the Highlands property. Specifically, from the extended Shady Lane (where it curves south right near the project site) and from the Highlands Lot 2, which is contiguous to the site's western boundary. Although the Highlands Lots 4 and 9 overlook the proposed Lot 2 and are contiguous to the southern project boundary, intervening mature oak trees and topography would likely obscure views of the future home on proposed Lot 2 from MARCH, 2009 1 Exhibit 2 MITIGATED NEGATIVE DECLARATION - 15500 FRANCIS OAKS WAY future homes on these three Highlands lots. Intervening trees and vegetation would also obscure views of the future home from existing homes located along Francis Oaks Way. The project site is located within the area subject to the Town's Hillside Development Standards and Guidelines (HDS&G). The HDS&G requires a "view analysis" for any development project with the potential for being visiblel from any established viewing platform. However, since the proposed Lot 2 would not be visible from any viewing platforms,z the Town will not require this view analysis. Specific development plans for the future home will be subject to design review as part of the Architecture and Site review process. During this process, the proposed design will be evaluated for consistency with the Town's HDS&G. As part of Architecture and Site review, the Town will require the future home's design to be consistent with the HDS&G for site planning, development intensity, architectural design, site elements, and landscape design. The HDS&G also emphasizes minimizing grading and preserving natural features (including drainage channels and trees). Outdoor lighting would be provided on the exterior of any future home on proposed Lot 2. The Zoning Ordinance (Section 29.10.09035) would prohibit the production of direct or reflected glare (such as that produced by floodlight) onto any area outside the project boundary. Any future development proposal on this lot also will be required to adhere to lighting restrictions in the Hillside Design Standards and Guidelines (January 2004). Any future home's lighting design would be evaluated by the Town during the Architecture and Site review process. 2. Agriculture Resources: The project parcel is currently developed with one single-family residence and the site's agricultural potential is limited by existing surrounding residential development, topography, and current zoning. Therefore, the project would not adversely affect any existing agricultural resources at the site. 3. Air Quality: The project would be consistent with the Bay Area Air Quality Management District's (BAAQMD) Clean Air Plan (CAP). The most recent CAP was completed in 2000. The consistency of the proposed project with the CAP is determined by comparing the project's consistency with the Los Gatos General Plan. Since the CAP is based on the Town's General Plan land use designations and population projections of the Association of Bay Area Governments (ABAG) that were in effect at the time the CAP was approved, consistency with the General Plan would indicate consistency with the CAP. The project would be consistent with the use and density allowed on the project site by the Los Gatos General Plan, and therefore, the project would be consistent with the CAP. The San Francisco Bay Area Air Basin is classified by the BAAQMD as non-attainment for ozone and inhalable particulates (PMto). According to the Town Planning Department, the proposed project would result in a net traffic increase of 10 daily trips, with l AM peak hour trip and 1 PM peak hour trip. Air emissions increases associated with the proposed project would not be considered significant since the size of the proposed project would not exceed the Bay Area Air Quality Management District's (BAAQMD) threshold levels for potential significance. The BAAQMD threshold level for potential significance is 375 single-family units. At or above this size, traffic generated by the project would have the potential to generate significant local and regional air quality impacts, and an air quality impact assessment would need to be prepared and submitted to the BAAQMD for review. t "Potential" is defined as capable of being seen from a viewing platform if trees or large shrubs are removed, significantly pruned, or impacted by construction. 22 Since the proposed Lot 2 is located at about the same elevation as the Highlands Lot 2 and this lot was determined to not be visible from any viewing platforms, the future home on Lot 2 would also not be visible from any viewing platforms. MARCH, 2009 2 MITIGATED NEGATIVE DECLARATION -15500 FRANCIS OAKS WAY Adjacent residential uses are considered to be sensitive receptors. Proposed grading activities would generate short-term emissions of criteria pollutants, including suspended and inhalable particulate matter and equipment exhaust emissions. The proposed Lot 2 would be 3.065 acres, but future driveway and home construction would result in surface disturbance of less than one acre. The BAAQMD does not require quantification of construction emissions, but considers any project's construction-related impacts to be less than significant if required dust-control measures are implemented. The Town's standard dust control conditions require implementation of the BAAQMD's standard dust control measures (required on sites of four acres or less), which would mitigate the project's construction-related air quality impacts to a less-than-significant level. In 2006, California passed the California Global Warming Solutions Act of 2006 (Assembly Bill No. 32; California Health and Safety Code Division 25.5, Sections 38500, et seq.), which limits statewide greenhouse gas (GHG) emissions to 1990 levels and establishes a goal of achieving these emissions reductions by 2020 (representing a 25 percent reduction in emissions). AB 32 requires the California Air Resources Board (CARE) to adopt a comprehensive blueprint for limiting greenhouse gas emissions by the end of 2008 and complete the necessary rulemaking to implement that plan by the end of 2011. Pursuant to this requirement, CARB released their Proposed Seeping Plan in October 2008, which estimates reductions from the combination of a cap-and-trade program and a set of measures in the transportation (emissions reductions), energy efficiency and conservation (solar and renewable energy), and industrial measures (such as recycling and waste). Since the CARB has not adopted a methodology or defined quantitative thresholds that can be applied to a specific development project to evaluate an individual project's contribution to GHG emissions (particularly, for a project as small as one single-family residence), no significance determination for the proposed project can be made at this time. However, until such time that a methodology is adopted and mitigation can be applied, it is recommended that energy efficiency measures be incorporated into the proposed residence to the maximum extent feasible. It is also recommended that solar access to existing adjacent structures be maintained to the maximum extent feasible. It does not appear that the future home on Lot 2 would shade or block solar access on adjacent properties, although shading is a design issue that will be reviewed as part of the Architecture and Site review process. While the future home will be required to comply with energy efficiency requirements of the California Energy Code (Title 24, Part 6 of the California Administrative Code), the Town will also require completion of the GreenPoint Rated checklist for these homes (pursuant to the Town's adoption of three near-term policy recommendations from the Santa Clara County Cities Association Green Building Collaborative in April 2008) or any other GHG reduction requirements being implemented by the Town at that time. 4. Biological Resources: The 7.96-acre site generally consists of two hillsides separated by a seasonal drainage that enters the project site at its southeastern corner, extends through the project site in a northwestern to western direction, and leaves the property at its western perimeter. The drainage swale constitutes one of the three biotic habitats on the project site; the southern (north-facing) hillside on the site is characterized as oak woodland while the northern hillside includes large areas of non-native annual grassland with oaks scattered on the lower part of this hillside immediately above the drainage Swale. A previous development plan for the property indicated there were 41 trees, primarily oaks and some pines, on the lower part of the northern hillside area; the site's existing residence on proposed Lot 1 is located on the upper portion of the property in the northwestern comer of the site. Portions of the northern hillside have been cleared by construction activities associated with the installation of two water tanks required for fire control at the existing residence. The seasonal drainage on the project site is a segment of the drainage that originates on and re-enters the Highlands property to the west. MARCH, 2009 MITIGATED NEGATIVE DECLARATION -15500 FRANCIs OAKS WAY The project application proposes the creation of a second lot (Lot 2) consisting of 3.065 acres of the 7.96-acre property. The new lot comprises the southwestern portion of the property, and would be roughly square in shape, extending southward from the seasonal drainage to the southern property boundary. The proposed Lot 2 would include most of the property's northern hillside that includes non- native grassland and 12 trees, consisting of 10 oaks and 2 pines. Additionally, the new lot would include the seasonal drainage channel that crosses this area from east to west as well as a portion of the southern hillside containing oak woodland. This channel drains into a culvert just upstream and to the north of the future home site. The proposed subdivision of project site would have no direct effects on the vegetation and habitat of the project site. Future residential development of Lot 2 would be limited to a building envelope that is designated approximately 100 feet east of the extended Shady Lane on the Highlands property. According to the conceptual plan for future home development, no tree removal would be required to develop the home and associated driveway access. As a result of recent utilities construction along the western margin of the subject property, the area where the proposed home and driveway are proposed is devoid of vegetation. Therefore, no significant impacts on vegetation as a result of future home construction is expected based on the proposed conceptual design. The subject property's tree canopy supports suitable nesting habitat for raptors and migratory passerines. Site clearing activities could result in a take of protected migratory birds. Disturbance during the nesting season could result in the potential nest abandonment and mortality of young. This would be a potentially significant impact. Policy O.P.3.3 of the Open Space Element of the Los Gatos General Plan emphasizes preservation of public and private landscaping along Town streets. The Los Gatos Tree Protection Ordinance states that the preferred tree replacement is two or more trees of a species and size designated by the Director of the Parks and Public Works Department. Tree replacement requirements are based on canopy size, which is defined in Table 3-1 of the Ordinance, Tree Canopy Replacement Standard. Tree canopy replacement requirements range from two to six 24-inch box size trees or equivalent larger box size trees, depending on the canopy size of the tree to be removed. Any tree removal that occurs as part of future home development on Lot 2 will need to be evaluated by the Town Arborist for conformance with the Town's Tree Protection Ordinance. The proposed subdivision would not directly result in home or driveway development, nor would any trees be removed. However, future development of a home on Lot 2 and infrastructure improvements (as depicted on the proposed conceptual plan) could result in the above impacts. When specific development plans are submitted to the Town for Architecture and Site review, the following measures shall be required to reduce any future development's impacts on biological resources to less-than-significant levels: MITIGATION: If land clearing, grading, tree and brush removal, tree trimming or demolition activities are to occur during the nesting season (i.e., between February 1 and August 15), a pre- construction survey for nesting migratory birds shall be conducted by a qualified biologist from one to four weeks prior to the initiation of work. If no nesting birds are observed, work may proceed. If work is delayed more than four weeks from the date of the survey, and it is still within the nesting season, the pre-construction survey shall be repeated. MITIGATION: If occupied active nests of a migratory bird species are identified, a suitable buffer shall be established around the nest tree. Work within the buffer zone shall be prohibited until August 15'0 or until the young have fledged, as determined by the project biologist. The dimensions of MARCH, 2009 4 MITIGATED NEGATIVE DECLARATION-15500 FRANCIS OAKS WAY each buffer zone shall be determined by the biologist in consultation with the CDFG. Buffer zones vary depending on the species and site topography, with passerines typically requiring 75 to 100 feet and raptors 200 to 500 feet. MITIGATION: If future development plans include removal of any existing trees, the Town will require an evaluation by the Town's consulting arborist to determine conformance with the Town's Tree Protection Ordinance. Future development plans will be required to incorporate the Arborist's recommendations to reduce potential impacts associated with tree removal. MITIGATION MONITORING: The Planning Division of the Community Development Department will be responsible for ensuring that the survey for nesting migratory birds is completed prior to construction and all recommendations made by the arborist are reflected in final project plans. The Parks Division of the Parks and Public Works Department will be responsible for ensuring that all tree protection measures are properly implemented during construction. In addition to the potential effects on the project site's oaks, the proposed subdivision of the site entails the creation of Lot 2, which includes a segment of the seasonal drainage channel that crosses the site. The characteristics of this drainage channel were evaluated extensively as part of the EIR for the Highlands of Los Gatos project. In brief, the EIR analysis indicates: "For the most part, vegetation within the drainage channel was undifferentiated from the surrounding upland habitats of the site. The dominant plant species observed within the channel, along with their U.S. Fish and Wildlife Service (USFWS) wetland indicators, include Italian ryegrass (UPL), perennial ryegrass (Lolium perenne) (FA C), coyote brush (UPL), Italian thistle (UPL), soft chess (FACU), and poison oak (UPL). " This description of seasonal drainage channel habitat would also apply to the segment of the drainage channel that traverses the project site, including the portion within the proposed Lot 2. As part of the public agency consultation process for the Highlands EIR, the U.S. Army Corps of Engineers (USACE) indicated that there are no jurisdictional waters of the United States on the Highlands site, including the seasonal drainage channel discussed above. To the extent that the project site's seasonal drainage is a middle segment of the drainage channel referenced by the USAGE, it could be inferred that the USACE would also have no jurisdiction over the drainage channel and associated habitat on the project site. In order to determine the potential for USACE jurisdiction over the seasonal drainage swale on the project site, the project applicant retained H.T. Harvey & Associates to assess the drainage conditions and characteristics of the seasonal channel that crosses the project site. The consultant conducted a review of previous background studies and performed a field survey of the drainage swale to determine the potential for agency jurisdiction over the channel. Based on the review of background information and field inspection, the consultant concluded that: 'Yield characteristics used by the Corps or CDFG in establishing jurisdiction are entirely absent on site. Nowhere on the property was there a co-occurrence of the requisite three parameters (hydrophytic vegetation, hydric soils and wetland hydrology). The drainage swale is without an "ordinary flow" and there is a total absence of wetland or riparian vegetation along this reach of the swale. " Consequently, no permits from the USACE or CDFG would be required for the proposed subdivision of the project site or for the future development of one single-family home on Lot 2. MARCH, 2009 5 MITIGATED NEGATIVE DECLARATION - 15500 FRANCIS OAKS WAY 5. Cultural Resources: The project site is currently undeveloped, and the potential for encountering 1 cultural resources during project construction would be low due to the subject property's relatively steep topography. There is a seasonal drainage that traverses the project property. Although there is typically a higher potential for encountering archaeological resources in areas adjacent to or near a river or creek, the seasonal nature of this drainage channel combined with the steep topography of the site and its vicinity would limit the potential for encountering cultural resources. In addition, the future home site is located contiguous to the Highlands property and a portion of the proposed access driveway is located on the Highlands property. The archaeological records search and survey on the adjacent Highlands property determined that there would be a low potential for encountering archaeological resources and no further mitigation was required. 6. Geology and Soils: A review of the Town's hazards maps indicates that the project site has a high potential for fault rupture, moderate potential for slope stability hazard (moderate hazard adjacent to Shady Lane), moderate to low potential for seismic shaking, low shrink-swell potential, no potential for liquefaction, and very high erosion hazard. Debris flow hazards were identified over most of the project property. The Town's Fault Map identifies lineation indicative of faulting at the eastern boundary of the subject property. Given the property's sloping topography, there would be a high potential for erosion hazards if soils are subject to concentrated runoff flows. Future development plans for proposed Lot 2 will be subject to Architecture and Site review, and at a minimum, standard Town conditions will include provision of a complete erosion control plan (including interim erosion control measures and drainage controls such as energy dissipaters), and such requirements are expected to reduce potential erosion hazards to a less-than-significant level. As part of Architecture and Site review of future development plans and the building permit process, the Town will require preparation of a soils report as well as a screening-level slope stability analysis prior to submittal of a building permit application for the proposed Lot 2. The Town will also require that the results of the slope stability analysis be incorporated into recommendations for foundation design. A detailed engineering geologic investigation was prepared by Steven F. Connelly, C.E.G. in August 2008 and a peer review of the Connelly report was completed for the Town by AMEC Geomatrix in November 2008. Copies of these studies are on file at the Los Gatos Community Development Department. This study involved review of published maps and aerial photographs, excavation of three test pits, and a site reconnaissance. This investigation concluded that the proposed subdivision and future development of a new residence on Lot 2 are feasible and the building envelope delineated by the LRDA on the proposed conceptual plan appears to be geologically suitable for the proposed development provided it is constructed according to recommendations of the project geotechnical engineering firm. In its peer review of this report, Geomatrix concurred with this conclusion, but noted that no design-level geotechnical engineering investigation report with recommendations or civil plans for the future residence were provided. The following discussion is based on information presented by Connelly and Geomatrix. The property is mapped as being underlain by a block of Monterey Shale mantled by colluvium between the potentially active Blossom Hill and Shannon faults. The site lies within the seismically active Bay Area, but is not within any of the "Earthquake Fault Zones" established by the Alquist-Priolo Earthquake Fault Zoning Act of 1972. No known active or potentially active faults traverse the project site. The Blossom Hill fault is located 300 feet northeast of the subject property and the Shannon fault is located between 4,400 and 600 feet north of the northern project boundary. Therefore, the potential for primary fault ground rupture is considered to be low. However, the property will be subjected to strong ground shaking during a major earthquake on the Blossom Hill fault, Shannon fault, San Andreas fault, or one of the other active or potentially actives faults in the Bay Area during the life of the future structure. It is J MARCH, 2009 6 MITIGATED NEGATIVE DECLARATION -15500 FRANCIS OAKS WAY possible that secondary fissures or ground cracks may damage the subject property during an earthquake on these faults. It should be noted that most of the Bay Area as well as surrounding residences are subject to similar groundshaking hazards. The future home on Lot 2 will be required to meet seismic design parameters specified by Uniform Building Code (UBC) for site grading, drainage, pavement design, retaining wall design, erosion control, and foundation design. By implementing applicable UBC requirements and sound engineering practices, the Los Gatos General Plan EIR determined site development would be at no higher risk of potentially significant impacts due to seismically-induced ground failure from seismic shaking than any other similarly situated area. No evidence of landsliding on or near the proposed home site was observed by Connelly during the field reconnaissance, in test pits, or in the review of aerial photos.. Springs or seeps were not observed on or near the proposed home site during field investigations or Connelly's review of aerial photos. Connelly concluded that the potential for deep-seated landsliding on the proposed home site is very low; the potential hazards from debris flow landsliding, ground subsidence, and the lateral spreading are very low or negligible; and the potential for liquefaction is low. In addition, Connelly found that the project site is located in an area free from the hazard of seiches and flooding caused by dam failure. Connelly recommends that measures be provided to control surface water from the area upslope of the future home site to prevent water from flowing across the home site. Assuming the surface water is effectively controlled, Connelly concludes that the future home site should be relatively stable during an earthquake on the nearby faults. Connelly also concluded that construction of a future residence at location indicated on the conceptual plan would not alter existing hydrologic conditions or create an elevated risk associated with potential earthquake-induced landsliding, provided the residence is constructed according to recommendations of the project geotechnical engineering firm. 7. Hazards and Hazardous Materials: The project site is not included on any Hazardous Wastes and Substances Sites List. Since the site is undeveloped, the potential for encountering hazardous materials during project construction would be low. Therefore, potential public health risks would be less than significant. According to the Los Gatos General Plan, the project site is located in a fire hazard area. General Plan Policy S.P.2.3 encourages design and siting of new development in fire hazard areas to minimize hazards to life and property, such as fire preventive site design, access, landscaping and building materials, and use of fire suppression techniques. In addition, the project will be required to comply with the following standards contained in the Town's Hillside Development Standards and Guidelines (January 2004) to minimize fire hazards: Building locations shall minimize exposure to wildfires. ■ A landscape plan shall be provided and will be reviewed by the Town staff for consistency with the Fire Department's recommended plant list. The landscape plan shall create defensible space around the home, and if there is afire ladder on the property, it shall be eliminated in an environmentally sensitive manner. ■ Development shall have adequate fire access. ■ A dependable and adequate water supply for fire protection and suppression purposes, as required by the Santa Clara County Fire Department, shall be provided, for all properties. ■ Waterforfre suppression shall be available and labeled before any framing may begin. ■ Above ground water tanks shall not be located in required setback areas. MARCH, 2009 7 MITIGATED NEGATIVE DECLARATION -15500 FRANCIS OAKS WAY Hillside Development Standards and Guidelines also provide the following recommendations or guidelines for reducing fire hazards: Development should avoid areas subject to severe fire danger. In order to achieve this, development should be set back from the crest of a hill, not be located on or adjacent to slopes greater than 30%, and not be located within densely wooded areas. If this is notpossible, measures designed to assure the highest degree of fire prevention and fast effective means of evacuation and fire suppression shall be provided. The fuel load within a defensible space should be minimized by use of selective pruning, thinning and clearing as follows: removal of flammable species and debris, removal of dead, dying or hazardous trees, mow dead grasses, removal of dead wood from trees and shrubs, and thin tree crowns (maximum of 25 percent). Discontinuous fuel sources should be created and maintained within a defensible space through use of the following techniques: thin vegetation to form discontinuous groupings of trees or shrubs, limb trees up from the ground, and establish a separation between the lowest branches of a tree and any understory shrubs. ■ Landscaping within a defensible space should be designed with fire safety in mind. Landscaping in defensible ,space should be: fire resistant and drought tolerant, predominantly low growing shrubs and groundcovers (limit shrubs to 30 percent coverage), limited near foundations (height and density). Above ground tanks should not be located in areas of high visibility... Project consistency with the above policies cannot be determined at this time since no development or landscaping plans have been prepared for proposed Lot 2. Consistency of future development plans with these policies will be considered as part of Architecture and Site review. However, preliminary review of the LRDA delineated on the proposed conceptual plan indicates that the future home site would have adequate fire access (via the extended Shady Lane) and also avoids the crest of a hill, slopes over 30%, and densely wooded areas. Future home development on Lot 2 would be subject to Santa Clara County Fire Department requirements {e.g., installation of an automatic fire sprinkler system and/or water tanks) to minimize fire hazards. With its connection to the extended Shady Lane, secondary emergency access for emergency equipment is available. 8. Hydrology and Water Quality: The subject property is located on both a south-facing hillside and north-facing hillside, south of Francis Oaks Way and east of the extension of Shady Lane. The property is located at an elevation of approximately 610 feet at its northern boundary, descending to as low as 510 feet at the base of the seasonal drainage in the center of the property, and then ascending to approximately 680 feet at its southern boundary. The majority of the subject property has slopes over 30%, except for the areas in the vicinity of the existing residence, the proposed building envelope on Lot 2, the seasonal drainage, and dirt road located south of this drainage. The surface drainage on the subject property is characterized as uncontrolled sheet flow across the property from the northern and southern upper elevations to the seasonal drainage extending across the center of project site. Storm water runoff from the project site flows into an existing storm drain on the property, located at the western boundary, approximately 200 feet east of Shady Lane and north of a future home site on Lot 2. Accumulated runoff enters the Town of Los Gatos storm drain system, which drains to Short and Ross creeks, and ultimately into South San Francisco Bay. MARCH, 2009 MITIGATED NEGATWE DECLARATION -1 5500 FRANCIS OAKS WAY Storm Drainage. No development would occur with the proposed subdivision application. While the proposed conceptual plan does not indicate any changes to the existing storm drain facilities or easement on the project site, future development of proposed Lot 2 would result in increased impervious surfaces. The resulting incremental increase in peak surface flows due to these impervious surfaces would be less than significant due to the small size of the affected area. Flood Hazards. The Santa Clara Valley Water District's (SCVWD) flood zone maps and the Town of Los Gatos Safety Element Flood Hazards Map both indicate that the project site is not located within the I00-year floodplain as defined by the Federal Emergency Management Agency (FEMA) Flood Insurance Rate Maps for the project area. Although the project site is not subject to flooding, runoff from the project site affects flows along Short and Ross creeks. The SCVWD reports that currently there are frequent flooding problems along Short Creek. Therefore, drainage features for any fixture development proposal on proposed Lot 2 will need to offset any project-related increases in peak flows to minimize potential effects on existing flooding problems on Short Creek. When specific development plans are submitted to the Town for Architecture and Site review, the following measure shall be required to reduce any future development's impacts on Short Creek to less-than-significant levels: MITIGATION: Detailed development plans for the future driveway improvements and home on Lot 2 shall specify proposed drainage improvements, showing how runoff will be conveyed from the roof, patio, driveway to the storm drain system in Shady Lane. The detailed plans shall specify a drainage management system that maximizes on-site percolation of drainage flows and maintains storm runoff from the site at pre-development levels. The storm drainage system associated with future development on Lot 2 shall also be designed to limit post-project 100-year stormwater runoff rates to pre-project rates on Lot 2. Any required stormwater storage facility shall be located within the Least Restrictive Development Area. MITIGATION MONITORING: The Parks and Public Works Department will be responsible for ensuring that specified drainage improvements are reflected in future detailed development plans. Design and sizing of on-site percolation areas will be subject to review and approval by the Town, and such approval would reduce the potential for downstream flooding and erosion hazards associated with proposed storm drain improvements to a less-than-significant level. Water Quality. More stringent water quality regulations of the Clean Water Act have recently been triggered because the NPDES (National Pollution Discharge Elimination System) permit program has failed to protect beneficial uses of Santa Clara County's creeks and the South San Francisco Bay, as evidenced by such observations as violations of ambient water quality criteria, high concentrations of toxic substances, and fish consumption health advisories. These new regulations require that all discharges shall comply with Provision C.3, New and Redevelopment Performance Standards of Order No. 01-024 of the NPDES permit program. The project site is located within the Ross Creek watershed. Runoff from the site would discharge to the Town's storm drains in Shady Lane, flowing into Short and Ross Creeks. North of Blossom Hill Road, Ross Creek flows mostly through San Jose, joining Guadalupe River approximately five miles downstream of the project site. Stream flows ultimately discharge into San Francisco Bay via Alviso ,Slough. Ross and Short creeks are Santa Clara Valley Water District (SCVWD) water management facility, although these creeks are located approximately one-half mile west of the site. When detailed development plans for proposed driveway improvements and future home on Lot 2 is submitted, they will be subject to Town review to determine if proposed drainage improvements meet MARCH, 2009 9 MITIGATED NEGATIVE DECLARATION 15500 FRANCIS OAKS WAY Provision C.3 non-point source requirements and whether a stormwater pollution prevention plan is required for the project (if site disturbance area exceeds one acre and/or creating 10,000 square feet or more of impervious area). In addition, as a condition of project approval, the Town will require the preparation and submittal of interim and final erosion control plans to the Engineering Division of the Parks and Public Works Department. Future development plans will be required to demonstrate that runoff from impervious surfaces is directed into landscaped areas and bio-swales, providing stormwater treatment facilities on the site, as well as provision for on-site percolation. 9. Land Use and Planning: The Los Gatos General Plan designates the project site for "Hillside Residential" and this designation allows for residential uses at densities of zero to one unit per acre. The Zoning Ordinance designates the project site as "Hillside Residential (HR-2'/)," which suggests lot sizes of 21/z to 10 acres for each dwelling unit, but the minimum required lot size is 40,000 square feet. The proposed subdivision would create one 4.894-acre parcel (Lot 1) and a second 3.065-acre parcel (Lot 2); the proposed subdivision would be consistent with the minimum density allowed by the Zoning Ordinance and General Plan as well as the minimum required lot size. The project site is located adjacent to existing residential uses. There are residences developed or approved for development on all surrounding contiguous parcels. The proposed residential use would be consistent with surrounding single-family residential uses. Therefore, the proposed project would not pose any land use compatibility problems. 10. Mineral Resources: The Los Gatos General Plan does not identify any regionally or locally- important mineral resources on the project site or in its vicinity. 11. Noise: The Town Noise Ordinance (Chapter 16) restricts construction activities to the hours of 8:00 a.m. to 8:00 p.m. on weekdays and 9:00 a.m. to 7:00 p.m. on weekends and holidays. This ordinance also limits noise generation to 85 dBA at the property line or 85 dBA at 25 feet from each individual piece of equipment. Project construction would result in temporary short-term noise increases due to the operation of heavy equipment. Construction noise sources range from about 82 to 90 dBA at 25 feet for most types of construction equipment, and slightly higher levels of about 94 to 97 dBA at 25 feet for certain types of earthmoving and impact equipment. If noise controls are installed on construction equipment, the noise levels could be reduced to 80 to 85 dBA at 25 feet, depending on the type of equipment. With controls, construction noise levels could be made to comply with the Town Noise Ordinance. Residential uses are generally considered to be noise-sensitive uses or sensitive receptors. At present, there are no existing residential uses located adjacent to the future home site. There are several undeveloped residential lots on the Highlands property that are located near the future home site, but building envelopes on those lots are located at least 250 feet from this home site. At this distance, construction, the ordinance noise limit (85 dBA at 25 feet) would result in maximum noise levels of 65 dBA at the closest residences to the west and south. Temporary disturbance (e.g., speech interference) can occur if the noise level in the interior of a building exceeds 45 to 60 dBA. To maintain such interior noise levels, exterior noise levels at the closest residences (with windows closed) should not exceed 70 to 80 dBA and this exterior noise level is used as a significance threshold or criterion. Based on this distance, enforcement noise level standards contained in the Town Noise Ordinance would maintain construction noise levels at acceptable levels. Therefore, it is anticipated that construction noise impacts could be maintained at less-than-significant levels with proper implementation of Town Noise Ordinance restrictions. i MARCH, 2009 10 MITIGATED NEGATIVE DECLARATION-15500 FRANCIS OAKS WAY Long-term noise increases associated with the project would result from increased traffic on Shady Lane and residential activities (i.e., operation of appliances and maintenance equipment such as lawnmowers, blowers, etc.) in the project vicinity. Traffic increases associated with the project would be minor and would not significantly or measurably increase ambient noise levels along Shady Lane. The EIR for the Highlands of Los Gatos project evaluated cumulative noise increases along Shady Lane as a result of the Highlands project and other potential development in the vicinity, and the EIR concluded that cumulative traffic and associated noise increases on Shady Lane would not significant increase noise levels on Shady Lane or Short Road. Noise generated by project residential activities would be similar to noise generated by adjacent or nearby residential uses and would not conflict with the existing residential noise environment in the neighborhood. 12. Population and Housing: The proposed project would subdivide a single parcel into two lots, which would increase the development potential for the site by one residential unit. Inducement of one residential unit is considered to be a less than significant impact based on Section 15303 of the CEQA Guidelines (Categorical Exemptions, New Construction). The project site is currently developed with one existing housing unit, but no displacement of existing housing would occur with the proposed project. 13. Public Services: Services are currently provided to other residences in the surrounding area. The addition of one residence would not significantly increase demand for public services since services are already provided to the project area. The Santa Clara County Fire Department provides fire protection services to the project area and any future development on proposed Lot 2 will be subject to Department requirements, which could include provision of an automatic fire sprinkler system, water tanks, and adequate access (driveway width, grade, and length) and turnaround. 14. Recreation: The proposed addition of one residential unit would incrementally add new population to the area, and thereby increase the demand for recreational services. This incremental increase would not be expected to be significant given the small size of the project. 15. Transportation and Traffic: The Town's Traffic Impact Policy (Resolution 1991-174) specifies that a project with a traffic impact of 19 or less additional AM or PM peals hour trips could be approved without a comprehensive traffic report if it is determined that the benefits of the project to the Town would outweigh the impact of increased traffic. However, the project would be subject to payment of a traffic mitigation fee. The proposed single-family residence would result in a net increase of 10 trips per day, with 1 trip occurring during the AM peak hour and I trip occurring during the PM peals hour. According to the Town's traffic determination, traffic generated by the proposed project would represent a minor impact and no additional traffic studies would be required. The extended Shady Lane on the Highlands property would provide access to the future home on Lot 2 via a proposed driveway extension that would connect to this roadway. Traffic increases on this roadway due to the project would be minor. The EIR for the Highlands of Los Gatos project evaluated cumulative traffic increases along Shady Lane as a result of the Highlands project and other potential development in the vicinity, and the EIR concluded that cumulative traffic increases on Shady Lane and Short Road could be accommodated from a traffic capacity standpoint and would not significantly affect the service level operation of key intersections in the project vicinity. 16. Utilities and Service Systems: Utilities currently extend to adjacent parcels and, therefore, no major off-site utility improvements are expected to be required. It is likely that water and sewer lines would be extended from the extended Shady Lane on the adjacent Highlands property to the west, but these extensions will be specified when development plans for the future home are prepared. Based on the location of the future home site, it appears that future utility extensions could avoid slopes over 30%. MARCH, 2009 11 MITIGATED NEGATIVE DECLARATION - 15500 FRANCIS OAKS WAY Any future development proposal will be subject to the Town's requirement of preparing and implementing an erosion control plan (including interim erosion control measures) to reduce potential erosion hazards to a less-than-significant level. Copies of the Initial Study used to make the above recommendation are on file and available for public inspection during regular business hours at the Town Community Development Department, 110 East Main Street, Los Gatos, California. Date Wendie R. Rooney, Director of Community Development i MARCH, 2009 12 0 Ad q o .a d 0 O O ~a a U O E-' o W 0 O~Q H ~Aa W U O O O ~4 "4d .Q U O 4d O U O p A a~.,UA a o o -45 t~ C) 0 O U c 4 a~ :4- k .U -4 o +01 o '(Du b ~vo 4 o 'Bl ° o 7 pUa~i P3 4 cd 'run r O O O 03 ° °0)0 on 14 Ou 81 -woo 4- 8 r, in., M - 0. 00 Od a 41 O U y Aa~.,Uq o o P P, GO) O 'O to ,sa R~C7 ' fib' c~ ~ 3 ° O cc 1 6b A O O 'C o O k td O p U Qp~L) td O o o Cd o PLC U O ~ O] Uip '84 24 a~ lb a rr' ( b D U O U cad ~ ~ ~ cd Fxhi-bit 3 v 0 p c°a 0 0 0 Aa cd C) O Cd t4D .O d ~ r. O 4 0~ ~ 075 1-4 Itr o v QO N o Oa ~ ~ ~ ~ 0 o ~ ° 0 Oaf 0 L4 w A PP- Q id c~ . 4 Cd mfg N PLANNING COMMISSION - MAY 13, 2009 REQUIRED FINDINGS FOR: 15500 Francis Oaks Way Subdivision Application M-06-4 Negative Declaration ND-06-4 Requesting approval of a two lot subdivision on property zoned HR-21/2. No significant environmental impacts have been identified as a result of this project and a Mitigated Negative Declaration is recommended. APN 527-11-005. PROPERTY OWNER: Mike and Ann Moffat APPLICANT: Tony Jeans, T.H.I.S. Design FINDINGS : State Subdivision Map Act: In order to deny the application, the Planning Commission must make one of the following findings, as required by Section 66474 of the State Subdivision Map Act: a. That the proposed map is not consistent with applicable general and specific plans as specified in Section 65451. b. That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans. C. That the site is not physically suitable for the type of development. d. That the site is not physically suitable for the proposed density of development. C. That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. £ That the design of the subdivision or type of improvements is likely to cause serious public health problems. g. That the design of the subdivision or the type of improvements will conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. N:kDEVSFRJD[NGSUOI]9%FOW15iO( -TM.DDC Exhibit 4 PLANNING COMMISSION - JUNE 24, 2004 CONDITIONS OF APPROVAL 15500 Francis Oaks Way Subdivision Application M-06-4 Negative Declaration ND-06-4 Requesting approval of a two lot subdivision on property zoned HR-21/2. No significant environmental impacts have been identified as a result of this project and a Mitigated Negative Declaration is recommended. APN 527-11-005. PROPERTY OWNER: Mike and Ann Moffat APPLICANT: Tony Jeans, T.H.I.S. Design TO THE SATISFACTION OF THE DIRECTOR OF COMMUNITY DEVELOPMENT: Planning Division 1. APPROVAL: This application shall be completed in accordance with all of the conditions of approval listed below and in substantial compliance with the plans approved on May 13, 2009 and noted as received by the Town on April 28 2009. Any changes or modifications to the approved plans shall be approved by the Community Development Director or the Planning Commission depending on the scope of the change(s). 2. EXPIRATION OF APPROVAL. The Tentative Map application shall expire two years from the date of approval if a Final Map has not been recorded, pursuant to Sections 24.20.070 and 24.70.035 of the Subdivision Ordinance. 3. TOWN INDEMNITY. Applicants are notified that Town Code Section 1.10.115 requires that any applicant who receives a permit or entitlement from the Town shall defend, indemnify, and hold harmless the Town and its officials in any action brought by a third party to overturn, set aside, or void the permit or entitlement. This requirement is a condition of approval of all such permits and entitlements whether or not expressly set forth in the approval, and may be secured to the satisfaction of the Town Attorney. 4. ARCHITECTURE AND SITE APPROVAL REQUIRED. An Architecture and Site application and approval is required for the new residence on Parcel 2. 5. ARBORIST REVIEW. Plans for the new residence on Parcel 2 shall be reviewed and evaluated by the Town's Consulting Arborist during the Architecture and Site process. 6. LANDSCAPE PLAN. A landscape plan shall be included with the plans submitted with the Architecture and Site application for the new residence on Parcel 2. 7. BIOLOGICAL RESOURCES MITIGATION MEASURE-1. If land clearing, grading, tree and brush removal, tree trimming or demolition activities are to occur during the nesting season (February I to August 15), a pre-construction survey for nesting migratory birds shall be conducted by a qualified biologist from one to four weeks prior to the initiation of work. If no nesting birds are observed, work may proceed. If work is delayed more than four weeks from the date of the survey, and it is still within the nesting season, the pre-construction survey shall be repeated. Exhibit 5 15500 Francis Oaks Way/M-06-04 Conditions of approval Page 2 of 7 8. BIOLOGICAL RESOURCES MITIGATION MEASURE-2. If occupied active nests of a migratory bird species are identified, a suitable buffer shall be established around the nest tree. Work within the buffer zone shall be prohibited until August 15th or until the young have fledged, as determined by the project biologist. The dimensions of each buffer zone shall be determined by the biologist in consultation with the CDFG. 9. BIOLOGICAL RESOURCES MITIGATION MEASURE-3. If future development plans include removal of any existing trees, the Town's Consulting Arborist shall determine conformance with the Town's Tree Protection Ordinance. Future development plans shall incorporate the Arborist's recommendations to reduce potential impacts associated with tree removal. TO THE SATISFACTION OF THE DIRECTOR OF PARKS AND PUBLIC WORKS: Engineering Division 10. FINISHED FLOOR ELEVATION. The finished floor elevation shall be a minimum of two (2) feet above the 100-year water surface elevation. Hydraulic calculations prepared by a licensed civil engineer shall be submitted with the grading permit application. 11. GRADING PERMIT. A grading permit is required for site grading and drainage. The grading permit application (with grading plans) shall be made to the Engineering Division of the Parks & Public Works Department located at 41 Miles Avenue. The grading plans shall include final grading, drainage, retaining wall location, driveway, utilities and interim erosion control. Grading plans shall list earthwork quantities and a table of existing and proposed impervious areas. Unless specifically allowed by the Director of Parks and Public Works, the grading permit will be issued concurrently with the building permit. The grading permit is for work outside the building footprint(s). A separate building permit, issued bythe Building Department on E. Main. Street is needed for grading within the building footprint. 12. UTILITY COMPANY REVIEW. Letters from the electric, telephone, cable, and trash companies indicating that the proposed improvements and easements are acceptable shall be provided prior to recordation of the final map. 13. WEST VALLEY SANITATION DISTRICT. All sewer connection and treatment plant capacity fees shall be paid either immediately prior to the recordation of any subdivision or tract maps with respect to the subject property or properties, or immediately prior to the issuance of a sewer connection permit, which ever event occurs first. Written confirmation of payment of these fees shall be provided prior to map recordation. 14. SURVEYING CONTROLS. Horizontal and vertical controls shall be set and certified by a licensed surveyor or registered civil engineer qualified to practice land surveying, for the following items: a. Retaining wall--top of wall elevations and locations b. Toe and top of cut and fill slopes 15500 Francis Oaks Way/M-06-04 Conditions of approval Page 3 of 7 15. TREE REMOVAL. Copies of all necessary tree removal permits shall be provided prior to issuance of a grading permit. 16. SOILS ENGINEER CONSTRUCTION OBSERVATION. During construction, all excavations and grading shall be inspected by the applicant's soils engineer prior to placement of concrete and/or backfill so they can verify that the actual conditions are as anticipated in the design-level geotechnicai report, and recommend appropriate changes in the recommendations contained in the report, if necessary. The results of the construction observation and testing should be documented in an "as-built" letter/report prepared by the applicants' soils engineer and submitted to the Town before final release of any occupancy permit is granted. 17. PAD CERTIFICATION. A letter from a licensed land surveyor shall be provided stating that the building foundation was constructed in accordance with the approved plans shall be provided subsequent to foundation construction and prior to construction on the structure. The pad certification shall address both vertical and horizontal foundation placement. 18. PRECONSTRUCTION MEETING. Prior to issuance of any permit or the commencement of any site work, the general contractor shall: a. Along with the project applicant, attend a pre-construction meeting with the Town Engineer to discuss the project conditions of approval, working hours, site maintenance and other construction matters; b. Acknowledge in writing that they have read and understand the project conditions of approval, and will make certain that all project sub-contractors have read and understand them prior to commencing work and that a copy of the project conditions of approval will be posted on site at all times during construction. 19. RETAINING WALLS. A building permit, issued by the Building Department at 110 E. Main Street, may be required for site retaining walls. Walls are not reviewed or approved by the Engineering Division of Parks and Public Works during the grading permit plan review process. 20. SOILS REPORT. One copy of the soils report shall be submitted with the grading permit application. The soils report shall include specific criteria and standards governing site grading, drainage, pavement design, screening level slope stability analysis, retaining wall design and erosion control. Slope stability analysis shall be incorporated into the recommendation for foundation design. The reports shall be signed and "wet stamped" by the engineer or geologist, in conformance with Section 6735 of the California Business and Professions Code. The report shall be submitted for review prior to issuance of any permits. 21. SOILS REVIEW. Prior to issuance of any permit, the applicant's soils engineer shall review the final grading and drainage plans to ensure that designs for foundations, retaining walls, site grading, and site drainage are in accordance with their recommendations and the peer review comments. The applicant's soils engineer's approval shall then be conveyed to the Town either by letter or by signing the plans. 15500 Francis Oaks Way/M-06-04 Conditions of approval Page 4 of 7 22. PARCEL MAP. A parcel map shall be recorded prior to issuance of any permits. Two copies of the parcel map shall be submitted to the Engineering Division of the Parks & Public Works Department for review and approval. Submittal shall include closure calculations, title reports and appropriate fee. 23. TRENCHING MORATORIUM. Trenching within a newly paved street will be allowed subject to the following requirements: a. The Town standard "T" trench detail shall be used. b. A Town approved colored controlled density backfill shall be used. C. The total asphalt thickness shall be a minimum of 3-inches or shall match the existing thickness, whichever is greater. The final lift shall be 1.5-inches of half inch medium asphalt. The initial lift(s) shall be of three quarter inch medium asphalt. d. The Contractor shall schedule a pre-paving meeting with the Town Engineering Construction inspector the day the paving is to take place. e. A slurry seal topping may be required by the construction inspector depending his assessment of the quality of the trench paving. If required, the slurry seal shall extend the full width of the street and shall extend 5-feet beyond the longitudinal limits of trenching. Slurry seal materials shall be approved by the Town Engineering Construction Inspector prior to placement. Black sand may be required in the slurry mix. All existing striping and pavement markings shall be replaced upon completion of slurry seal operations. £ A separate bond for trench saw cutting and paving may be provided at the time of building permit issuance. In the event such a bond is posted, the slurry seal provision above would be waived. 24. TRAFFIC IMPACT MITIGATION FEE. The developer shall pay a proportional the project's share of transportation improvements needed to serve cumulative development within the Town of Los Gatos. The fee amount will be based upon the Town Council resolution in effect at the time the building permit is issued. The fee shall be paid before issuance of a building permit. The traffic impact mitigation fee for this project using the current fee schedule is $5,742. The final fee shall be calculated form the final plans using the rate schedule in effect at the time the building permit is issued. 25. GENERAL. All public improvements shall be made according to the latest adopted Town Standard Drawings and the Town Standard Specifications. All work shall conform to the applicable Town ordinances. The adjacent public right-of-way shall be kept clear of all job related dirt and debris at the end of the day. Dirt and debris shall not be washed into storm drainage facilities. The storing of goods and materials on the sidewalk and/or the street will not be allowed unless a special permit is issued. The developer's representative in charge shall be at the job site during all working hours. Failure to maintain the public right-of-way according to this condition may result in the Town performing the required maintenance at the developer's expense. 15500 Francis Oaks Way/M-06-04 Conditions of approval Page 5 of 7 26. ENCROACHMENT PERMIT. All work in the public right-of-way will require a Construction Encroachment Permit. All work over $5,000 will require construction security. 27. PUBLIC WORKS INSPECTIONS. The developer or his representative shall notify the Engineering Inspector at least twenty-four (24) hours before starting any work pertaining to on-site drainage facilities, grading or paving, and all work in the Town's right-of-way. Failure to do so will result in rejection of work that went on without inspection. 28. EROSION CONTROL. Interim and final erosion control plans shall be prepared and submitted to the Engineering Division of the Parks & Public Works Department. A Notice of Intent (NOT) and Storm Water Pollution Prevention Plan (SWPPP) shall be submitted to the San Francisco Bay Regional Water Quality Control Board for projects disturbing more than one acre. A maximum of two weeks is allowed between clearing of an area and stabilizing/building on an area if grading is allowed during the rainy season. Interim erosion control measures, to be carried out during construction and before installation of the final landscaping shall be included. Interim erosion control method shall include, but are not limited to: silt fences, fiber rolls (with locations and details), erosion control blankets, Town standard seeding specification, filter berms, check dams, retention basins, etc. Provide erosion control measures as needed to protect downstream water quality during winter months. The grading, drainage, erosion control plans and SWPPP shall be in compliance with applicable measures contained in the amended provisions C.3 and C.14 of Order No. R2-2005-0035 of the amended Santa Clara County NPDES Permit. 29. DUST CONTROL. Blowing dust shall be reduced by timing construction activities so that paving and building construction begin as soon as possible after completion of grading, and by landscaping disturbed soils as soon as possible. Further, water trucks shall be present and in use at the construction site. All portions of the site subject to blowing dust shall be watered as often as deemed necessary by the Town, or a minimum of three times daily, or apply (non-toxic) soil stabilizers on all unpaved access roads, parking areas, and staging areas at construction sites in order to insure proper control ofblowing dust for the duration of the project. Watering on public streets shall not occur. Streets will be cleaned by street sweepers or by hand as often as deemed necessary by the Town Engineer, or at least once a day. Watering associated with on-site construction activity shall take place between the hours of 8 a.m. and 5 p.m. and shall include at least one late-afternoon watering to minimize the effects of blowing dust. All public streets soiled or littered due to this construction activity shall be cleaned and swept on a daily basis during the workweek to the satisfaction of the Town. Demolition or earthwork activities shall be halted when wind speeds (instantaneous gusts) exceed 25 MPH. All trucks hauling soil, sand, or other loose debris shall be covered. 30. SITE DRAINAGE. Rainwater leaders shall be discharged to splashblocks. No through curb drains will be allowed. A detailed site drainage plans with drainage management system to maximizes on-site drainage percolation and maintains storm run-off from the site at the pre- development levels is required to be submitted and approved prior to issuance of any permits. 15500 Francis Oaks Way/M-06-04 Conditions of approval Page 6 of 7 31. NPDES. On-site drainage systems shall include a filtration device such as a bio-swale or permeable pavement. 32. SILT AND MUD IN PUBLIC RIGHT-OF-WAY. It is the responsibility of contractor and home owner to make sure that all dirt tracked into the public right-of-way is cleaned up on a daily basis. Mud, silt, concrete and other construction debris SHALL NOT be washed into the Town's storm drains. 33. UTILITIES. The developer shall install all utility services, including telephone, electric power and all other communications lines underground, as required by Town Code §27.50.015(b). All new utility services shall be placed underground. Underground conduit shall be provided for cable television service. 34. RESTORATION OF PUBLIC IMPROVEMENTS. The developer shall repair or replace all existing improvements not designated for removal that are damaged or removed because of developer's operations. Improvements such as, but not limited to: curbs, gutters, sidewalks, driveways, signs, pavements, raised pavement markers, thermoplastic pavement markings, etc. shall be repaired and replaced to a condition equal to or better than the original condition. Existing improvement to be repaired or replaced shall be at the direction of the Engineering Construction Inspector, and shall comply with all Title 24 Disabled Access provisions. Developer shall request a walk-through with the Engineering Construction Inspector before the start of construction to verify existing conditions. 35. CURB AND GUTTER. The developer shall repair and replace to existing Town standards any curb and gutter damaged now or during construction of this project. New curb and gutter shall be constructed per Town Standard Details. The limits of curb and gutter repair will be determined by the Engineering Construction Inspector during the construction phase of the project. 36. AS-BUILT PLANS. An Auto CAD disk of the approved "as-built" plans shall be provided to the Town prior to issuance of a Certificate of Occupancy. The AutoCAD file shall include only the following information and shall conform to the layer naming convention: a) Building Outline, Layer: BLDG-OUTLINE; b) Driveway, Layer: DRIVEWAY; c) Retaining Wall, Layer: RETAINING WALL; d) Swimming Pool, Layer: SWIMMING-POOL; e) Tennis Court, Layer: TENNIS-COURT; f) Property Line, Layer: PROPERTY-LINE; g) Contours, Layer: NEWCONTOUR. All as-built digital files must be on the same coordinate basis as the Town's survey control network and shall be submitted in AutoCAD version 2000 or higher. 37. SANITARY SEWER LATERAL. Sanitary sewer laterals are televised by West Valley Sanitation District and approved by the Town of Los Gatos before they are used or reused. Install a sanitary sewer lateral clean-out at the property line. 38. SANITARY SEWER BACKWATER VALVE. Drainage piping serving fixtures which have flood level rims less than twelve (12) inches (304.8 mm) above the elevation of the next upstream manhole and/or flushing inlet cover at the public or private sewer system serving such drainage piping shall be protected from backflow of sewage by installing an approved 15500 Francis Oaks Way/M-06-04 Conditions of approval Page 7 of 7 type backwater valve. Fixtures above such elevation shall not discharge through the backwater valve, unless first approved by the Administrative (Sec. 6.50.025). The Town shall not incur any liability or responsibility for damage resulting from a sewer overflow where the property owner or other person has failed to install a backwater valve, as defined section 103(e) of the Uniform Plumbing Code adopted by section 6.50. 010 of the Town Code and maintain such device in a functional operating condition. Evidence of West Valley Sanitation District's decision on whether a backwater device is needed shall be provided prior to issuance of a building permit. 39. CONSTRUCTION NOISE. Between the hours of 8:00 a.m. to 8:00 p.m., weekdays and 9:00 a.m. to 7:00 p.m. weekends and holidays, construction, alteration or repair activities shall be allowed. No individual piece of equipment shall produce a noise level exceeding eighty-five (85) dBA at twenty-five (25) feet. If the device is located within a structure on the property, the measurement shall be made at distances as close to twenty-five (25) feet from the device as possible. The noise level at any point outside of the property plane shall not exceed eighty-five (85) dBA. 40. HAULING OF SOIL. Hauling of soil on or off-site shall not occur during the morning or evening peak periods (between 7:00 a.m. and 9:00 a.m. and between 4:00 p.m. and 6:00 p.m.). Prior to the issuance of a building permit, the developer shall work with the Town Building and Engineering Department Engineering Inspectors to devise a traffic control plan to ensure safe and efficient traffic flow under periods when soil is hauled on or off the project site. This may include, but is not limited to provisions for the developer/owner to place construction notification signs noting the dates and time of construction and hauling activities, or providing additional traffic control. Cover all trucks hauling soil, sand, and other loose debris or require all trucks to maintain at least two feet of freeboard. TO THE SATISFACTION OF THE SANTA CLARA COUNTY FIRE DEPARTMENT: 41. REQUIRED FIRE FLOW. Required fire flow is 1,750 GPM at 20 psi. residual pressure. 42. PUBLIC FIRE HYDRANT. Provide a public fire hydrant on Shady Lane. The location shall be determined jointly by the Fire Department and San Jose Water Company. Maximum fire hydrant spacing shall be 500 feet with a minimum single hydrant flow of 2500 GPM at 20 psi, residual. 43. FIRE HYDRANT LOCATION IDENTIFIER. Prior to final inspection the general contractor shall ensure that an approved fire hydrant location identifier ("blue dot") has been placed in the roadway for each new hydrant as directed by the Fire Department. 44. PREMISE IDENTIFICATION. Parcel 2 shall have a Shady lane address. Approved addresses shall be placed on all new buildings so they are clearly visible and legible from Shady Lane. Numbers shall be a minimum of four inches high and shall contrast with their background. N:\DEVICONDn NS520091FOW 15500-TM.DOC RESOLUTION 2007-029 RESOLUTION GRANTING AN APPEAL OF A DECISION OF THE PLANNING COMMISSION DENYING AN APPLICATION FOR A TWO LOT SUBDIVISION ON PROPERTY ZONED HR-21/2 AND REMANDING SAID APPLICATION TO THE PLANNING COMMISSION APN: 527-11-005 SUBDIVISION APPLICATION: M-06-4 NEGATIVE DECLARATION: ND-06-4 PROPERTY LOCATION: 15500 FRANCIS OAKS WAY PROPERTY OWNER/APPLICANT/APPELLANT: MIKE AND ANN MOFFAT WHEREAS: A. This matter came before the Town Council for public hearing on March 5, 2007, and was regularly noticed in conformance with State and Town law. B. Council received testimony and documentary evidence from the applicantlappellant and all interested persons who wished to testify or submit documents. Council considered all testimony and materials submitted, including the record of the Planning Commission proceedings and the packet of material contained in the Council Agenda Report dated February 27, 2007, along with any and all subsequent reports and materials prepared concerning this applications C. The appeal concerns a decision of the Planning Commission denying an application for a two lot subdivision on property zoned HR-2 1/z. The subject 8.1 acre property is located on the south side of Francis Oaks Way at the westerly terminus of the road. Francis Oaks Way is a private road and is not maintained by the Town. There is an existing residence on the site that was approved by the Town Council in 2000. The original application proposed lot sizes of 6.9 acres and 1.2 acres. D. The application was considered and denied by the Planning Commission on txh3bit 6 December 13, 2006. The applicant/appellant appealed the Commission's uecision on December 22, 2006. E. The applicarnt/appellant claims that the Planning Commission erred or abused its discretion in finding that the proposed subdivision is inconsistent with the zoning code, and in its finding that the site is not physically suitable for the proposed density and/or type of development. F. Given the Planning Commission's concern about the relatively small size of the second parcel, the applicant indicated a willingness to mace the parcel larger. G. Council finds that new information was presented that was not readily or reasonably available for submission to the Planning Commission at the time the applicant/appellant's application was denied: to wit, that the applicant is prepared to increase the size of the proposed second parcel to a size not less than 2.5 acres, as demonstrated in evidence presented to Council. This new information is sufficient to require reversal of the Planning Commission decision and to remand the application for further consideration by the Planning Commission. The smaller of the two lots shall be no less than 2.5 acres in size. The Planning Commission is directed to review the application for compliance with all applicable Town ordinances, standards and guidelines concerning land development. RESOLVED: That the appeal of the decision of the Planning Commission denying subdivision application M-06-4 is granted and the application is remanded to the Planning Commission for further review. PASSED AND ADOP i ED at a regular meeting of the Town Council of the Town of Los Gatos, California on the 19th day of March 2007, by the following vote. COUNCIL MEMBERS: AYES: Steve Glickman, Diane McNutt, Barbara Spector, mike Wasserman, and Mayor joe Pirzynski NAYS: None ABSENT: ABSTAIN: lj SIGNED: , WYOR OF TH OWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST:, r- C RK ADMINISTRATOR % TWN OF LOS GATOS, CALIFORNIA RECEIVED T. l.'.S. DESIGN & DEVELOPMENT Box 1518, Los Gatos, GA 95031 Fax; 408.354.1823 Tel; 408.354.1863 110 E. Main Street Los Gatos, CA 95032 Attn: Planning Commission MAY 4 2009 TOWN OF LOS GATOS PLANNING DIVISION August 1St, 2008 October 15th, 2008 Rev: May 4th, 2009 We have revised the Subdivision application and submitted a Tentative Map for the Moffat property with significant changes, based on feedback from the various meetings with the Town of Los Gatos and comments provided by the Technical Review Committee 8/20/08 and other governing bodies. It is our belief that these revisions respond to the direction of the Planning Commission and provide a solution that is consistent with the General Plan & the Hillside Guidelines and is 100% compatible with the neighboring properties. Main changes can be summarized as follows: • The proposed location of the new residence has been changed. The topography has been surveyed and a large area with slope significantly less than 30% has been identified. The trees on the property are not impacted. The entire proposal is consistent with the LRDA recommendations in the Hillside Guidelines and with land use planning of the General Plan in this location. • The Size of the proposed lot has been modified. The residential zoning for this district is HR - 2.5. The proposed lot is 3 acres, leaving the existing lot at approximately 5 acres. • Access to the proposed home will no longer be on Francis Oaks Way. By choosing to access the new home from the west of the property, the disruptions and impact to the neighbors due to sub-standard street access on Francis Oaks Way, are eliminated. • Access will be from the Highlands Subdivision. Street and infrastructure improvements have already been made for the Highlands development and using these improvements is more appropriate than Francis Oaks Way. Additionally Mike and Ann Moffat have been significant contributors to the improvements in the Highlands infrastructure, allowing a Storm Drainage Easement across their land, for the benefit of the Town of Los Gatos. A title report, together with color coded easements, has been provided to substantiate access to the proposed lot. Exhibit 7 • Neighborhood Compatibility. The proposed lot is entirely compatible with the neighboring Highlands subdivision in terms of lot size and slope. The actual building pad location is essentially level. See attached Highlands Plan. • Community Benefits. A storm drainage easement SUE has been provided to the Town to service a 33 acre catchment area identified as a portion of the Highlands Subdivision and a portion of the Ganal and Weissman properties. This easement has allowed the Town to approve the Highlands Subdivision in a manner consistent with the General Plan. Additionally a scenic easement SE has been provided at the highest elevations of the property to ensure that no adverse visual impact will result from this project in the Hillsides of Los Gatos. • Drainage Provisions. Calculations for the seasonal drainage swale show that the 24" culvert provided at the SDE for the Highlands Subdivision will accommodate a calculated 100 year runoff, worst case scenario. The finished floor of any proposed residence will be a minimum of 2 ft above this elevation. An Overland Release drainage swale to accommodate both this event and the possible blockage of the CMP will be incorporated into the final plans. • Geologic Report. A revised geologic report has been provided, based on a series of test pits at the new site, which concludes that the proposed subdivision and house siting are feasible. • Initial Study. An Initial Study has been performed concluding that the site poses no insurmountable risks for development and a Mitigated Negative Dec argues that Drainage needs to be mitigated to ensure that there is no significant additional runoff generated by the project, but that all other potential risks fail into a "Less than Significant" category. This work is typically addressed at A&S when the building footprint and landscape materials have been better identified. If there are any questions, please contact me at 354-1833. Thank you, Tony Jeans for T,H.I.S. Design Cc Moffat RECEIVED To: Town of Los Gatos Re: Mitigated Negative Declaration M-06-4 From: David Weissman 15431 Francis Oaks Way, Los Gatos, CA 95032 APP 2 8 2009 TOWN OF LOS GATOS PLANNING DIVISION I make the case that because the Initial Study for Subdivision Application M-06-4 is incomplete, and also ignores an important past Town study, that a Mitigated Negative Declaration is inadvisable and unwarranted. I present new and additional information below that justifies the Planning Commission requiring a complete EIR for this application. First off, the Initial Study makes no mention of the 1989 Open Space Study for the Blossom Hill Area. This study, performed by Tito Patri & Associates for the Town at a cost of $43,800, was to provide guidelines for the future development of the Los Gatos Hillsides in an effort to be sensitive and cognizant of the important biological and physical features of this 538 acre area. For those not familiar with this 52 page document (including, apparently, Geier and Geier), it presented to the Town several new open space planning tools such as an Environmental Sensitivity map, an Open Space Category map, and an Open Space framework matrix. Tito Patri envisioned that developers would be required to comprehensively show that proposed roads and structures are appropriately responsive to the ecological characteristics found on their sites. From that study, and relevant to the Moffat 8 acre property, and especially so to this application, is the map "Corridor Overlays" opposite of page 15 in the Open Space Study (see attached Exhibit 1, with Moffat property outlined in bold black), showing the drainage corridor adjacent to the proposed house and under the proposed driveway and turnaround, as a "riparian restoration area." In other words, Tito Patri thought such habitat so ecologically important that its value should be enhanced and certainly not paved over. This potential habitat appreciation is further indicated by the following sentences from page 14 and 15 of that Blossom Hill Open Space Study: Exhibit 8 Riparian Corridors: There are several important riparian corridors which occur in the following locations 1] In the Shady Zane Volley.....Zones upslope of riparian vegetation [such as the proposed development area on the Moffat property] but reflecting the convergence of adjacent slopes in the form of a drainage swale have been indicated as important corridor extensions for two reasons. The vegetation and soils in these zones should remain essentially undisturbed so as to prevent rapid runoff which could result in erosion undermining downstream riparian vegetation. Secondarily, such protection will encourage the succession of riparian vegetation further up stream over time,,, These extensions deserve protection and in some cases as noted in the open space plan, should be considered for restoration of riparian vegetation (my emphasis). The Moffat's hired environmental consultant, H. T. Harvey and Associates, had a different take on this drainage corridor: Patrick Boursier, Ph. D., H. T. Harvey's lead consultant, specifically comments that on his site visit of January 13, 2005, he saw minimal free flowing water despite the area just receiving several inches of rainfall. Elsewhere he comments that "there is a total absence of wetland or riparian vegetation along this reach of the swale." At present, I concur that there is no wetland or riparian vegetation on the Moffat site. But that was not the situation as recently as 1998, when at least 20 individual Fquisetum sp. (horsetail) plants occurred in the area of the proposed driveway and turnaround. What happened to those horsetail plants, which typically are associated with creeks, streams, river bed bottoms, and other moist situations? Unfortunately, it appears that Dr. Boursier is unaware of proximal events related to this 8 acre lot. Specifically, starting on October 2, 1998, the previous owner illegally removed, over a one month period, almost all native ground-cover vegetation, including over a dozen protected oak trees, from this 8 acre property (see Exhibits 2 and 3). This infraction was discussed by the Town Council on November 2, 1998. Subsequently, that same previous owner trucked in hundreds of tons of river rocks and lined much of the entire length of the newly reformed drainage catchment (see Exhibits 4 and 5) from the east end to the west end of the property, a distance of over 700 feet. Yet, in just 10 years, these rocks have been almost completely covered with silt that has washed down this seasonal watercourse (see Exhibit 6). So, why the apparent disconnect between Tito Patri's recommendation and the observations of H. T. Harvey? I believe that the timing of the visits and the illegal grading events of 1998-1999 offer a simple explanation. I have provided photos (Exhibit 7 and 8) taken in March, 1995, of the drainage corridor on the Moffat property, showing a veritable stream in the same area that Dr. Boursier found "minimal free flowing water." Such generous runoffs were common during wet late-winter/early-spring periods of the late 1980s (I moved into my house in 1986) and throughout the 1990s. Such extensive water runoff lasted days if not weeks, and I could hear this runoff from my front porch. By changing the ground cover of much of this 33 acre catchment basin (the surrounding hillsides on the Moffat property have still not recovered to their 1998 pre-clearing ground-cover condition), the drainage properties of this area were also changed. Thus this combination of a mid-winter observation time by Dr. Boursier (before the ground was saturated) and a change in water runoff characteristics of the surrounding slopes, undoubtedly explains the differences between his January 13th and my mid March observations. And that is just the point: H. T. Harvey was unable to adequately and accurately evaluate the ecological conditions of this area and the impact of this proposed subdivision. Such a proper evaluation requires the preparation of a full EIR that asks and provides answers to the following questions: 1. How much runoff that currently percolates on the subject property, would the proposed subdivision direct into Short and Ross Creeks. What is the environmental impact given that Ross Creek is an identified flood hazard? 2. What are the potential environmental impacts on the water quality and temperature of Short and Ross Creeks? What are the potential environmental impacts on the animals and other organisms that rely on these runoffs? 3. What wildlife and microorganisms reside-on, move-through, or are fed by the waters of the subject property? What are the potential environmental impacts on these animals and organisms? As an alternative course of action, what beneficial consequences would accrue from enactment of a "riparian restoration" program for this specific drainage, as proposed in the Open Space Study for the Blossom Hill Area? 4. What cumulative impact will the project have on the Guadalupe watershed given that past projects have degraded other sections of the watershed? As a Ph. D. in biology, I can state that the proposed Moffat subdivision and development likely have cumulative, non-mitigated consequences. When 1 first moved into my house on neighboring Francis Oaks Way in 1986, 1 frequently saw medium and large sized mammals on my street and in my front yard: bobcats, coyotes, raccoons, skunks, opossums, and deer. in the last 10 years, I have seen no individuals of any of these animals except for deer, and even their numbers are down. My data are anecdotal, and why such a population level change occurs is always a difficult biological question to answer, but within my immediate area in this same 10 year period, there have been two new houses constructed, another house demolished and replaced with a structure 2X as large, acres of native vegetation removed with more new fences and ornamental vegetation planted, and the semi-riparian habitat obliterated on the Moffat property (and most of this before the adjacent Highlands work even started). It is difficult to believe that there is no cause and effect linkage here, but such "small" cumulative interactions have not been thoroughly investigated. Clearly these incremental developments appear to have had non-mitigated consequences. My April, 2009, pictures (Exhibits 9 and 10-compare with Exhibits 2 and 3 from 1999) of the Moffat drainage corridor indicate an impressive natural recovery in some 10 years. Also supporting such a recovery is my hearing tree frogs calling these last two winters and springs from the area of the drainage Swale. And while this drainage presently lacks any plant species typically associated with a riparian habitat, it has contained such species in the immediate past and, under a program of riparian restoration, could contain them in the future. But such speculation is just that, hence the need for the definitive studies that should be accomplished by an EIR. To: Town of Los Gatos'` Re: Mitigated Negative Declaration M-06-4 From: David Weissman 15431 Francis Oaks Way. Los Gatos, CA 95032; I make the case that because the Initial Study for Subdivision Application M-06-4 is incomplete, and also ignores an important past Town study, that a Mitigated Negative Declaration is inadvisable and unwarranted. I present new and additional information below that justifies the Planning Commission requiring a complete EIR for this application. First off, the Initial Study makes no mention of the 1989 Open Space Study for the Blossom Hill Area. This study, performed by Tito Patri & Associates for the Town at a cost of 543,800, was to provide guidelines for the future development of the Los Gatos Hillsides in an effort to be sensitive and cognizant of the important biological and physical features of this 538 acre area. For those not familiar with this 52 page document (including, apparently, Geier and Geier), it presented to the Town several new open space planning tools such as an Environmental Sensitivity map, an Open Space Category map, and an Open Space framework matrix. Tito Patri envisioned that developers would be required to comprehensively show that proposed roads and structures are appropriately responsive to the ecological characteristics found on their sites. From that study, and relevant to the Moffat 8 acre property, and especially so to this application, is the map "Corridor Overlays" opposite of page 15 in the Open Space Study (see attached Exhibit 1, with Moffat property outlined in bold black), showing the drainage corridor adjacent to the proposed house and under the proposed driveway and turnaround, as a "riparian restoration area." In other words, Tito Patri thought such habitat so ecologically important that its value should be enhanced and certainly not paved over. This potential habitat appreciation is further indicated by the following sentences from page 14 and 15 of that Blossom Hill Open Space Study: Riparian Corridors: There are several important riparian corridors it,hich occur in the follolving locations 1) In the Shady Lane Vallev..... Zones upslope of riparian vegetation [such as the proposed development area on the 1 1gffat propertyj but reflecting the convergence of adjacent slopes in the form of a drainage swale have been indicated as important corridor extensions for two reasons. The vegetation and soils in these zones should remain essentially undisturbed so as to prevent rapid runoff which could result in erosion undertnining downstreani riparian vegetation. Secondarily, such protection will encourage the succession of riparian vegetation f tither up stream over time,,, These extensions deserve protection and in some cases as noted in the open space plait, should be considered for restoration of riparian vegetation (nty emphasis). RESP0,YSE -tL1: Prepared nearly 20 bears ago, the Coniprehensive Open Space Stucly for Blossom Hill (Stucky; dated Januarv 1991) no longer reflects current or recent conditions at the proposed home site or on the Highlands property. Photos taken on 111areh 23, 2006 (Figure I) and on December 17. 2008 (Figure 2) represent site conditions before and after installation of'a storm drain inlet (cis part of the Highlands project) in the drainage eltcnattel near the proposed home site. These photos indicate that prior to construction of the stOt•171 drain inlet, there was no ripal•lan vegetation at the proposed home site nor was there a drainage channel at the proposed Exhibit 9 home site. Figure 3 (takers in 2004) also indicates there was no defined drainage channel on the Highlands property doit•nstream of the proposed horse site. Mith installation of the stornn drain inlet upstream of the proposed home site, the area in the viciniti, of the home site could riot support riparian vegetation. Therefore, the Study's designation of "Riparian Restoration " is no longer relevant or possible for the area tivlzere the proposed home site is located; the installation of a storm drain in this area as part of the Highlands project precludes ss fftcient drainage flows to support riparian vegetation. Hoivever•, it should be noted that drainage conditions at the home site do not eliminate the possibility that riparian restoration could occur ors portions of drainage stvale located upstr•eain of the storm drain inlet (Figure 4). A review of historical aerial photos dating back to 1948 indicate that this area eras developed with an orchard to the north and south of this drainage sivale and a dirt road extended along the swale area (swale was not evidernt in aerial photos). The Study (page 10) indicates that this study was based on field trips supplemented by interpretation of "topographic maps, aerial photos, and other map sources to separate out the di fferentfactors...ivhich constitute sensitivity. " With respect to identified Riparian Corridors, the Studv (page II) identifies the importance of retaining areas "upslope of riparian vegetation but reflecting the convergence of adjacent slopes in the_form of a drainage stvale" as important corridor extensions. The Study indicates that vegetation and soils in these zones should remain essentially undisturbed so as to "prevent rapid runoff which could result in erosion undermining downstreans riparian vegetation. " Implementation of 1Llitigation Measure 4 of the AMD, which requires provision of a drainage management system on-site (upstream of the hornesite) that nralimi_es ors-site percolation of drainage flows and maintains storm rssnoff front the site at pre- development levels, including aY required stormsrater storage.facilities, meets these Study's objectives. The Study also notes that protection of these areas will "encourage the succession of riparian vegetation further tip stream over time, generally enhancing stream stability and minimizing side slope erosion and increasing stream water quality. " JI'hile the Study notes that some of these extensions should be considered for restoration of riparian vegetation, this determination it-as not supported by site-specific hydrologic studies, Therefore, in order to consider- airy future efforts for riparian restoration upstreans of the proposed homesite, a hydrologic evaluation would be required to deternnine whether there is a water source that is su ffiCiernt to stlppol't riparian vegetation in this stvale, particularly in light of climate change (global tivarrmng) effects. Figure 1. Photo ofproposed home site taken on 'March 23, 2006 (see oak tree in upper left corner for reference comparison to Figure 2) Figure 2. Photo of proposed home site taken on December 17, 2008 23, 2006 Figure 4. Photo of drainage ehannel east of the proposed home site taken on March 23, 2006 The Moffat's hired envirom-nental consultant, H. T. Harvey and Associates, had a different take on this drainage corridor: Patrick Boursier, Ph. D., H. T. Harvey's lead consultant, specifically comments that on his site visit of January 13, 2005, he saw minimal free flowing water despite the area just receiving several inches of rainfall. Elsewhere he comments that "there is a total absence of wetland or riparian vegetation along this reach of the swale." At present, I concur that there is no wetland or riparian vegetation on the Moffat site. But that was not the situation as recently as 1998, when at least 20 individual Equisetion sp. (horsetail) plants occurred in the area of the proposed driveway and turnaround. What happened to those horsetail plants, which typically are associated with creeks, streams, river bed bottoms, and other moist situations? Unfortunately, it appears that Dr. Boursier is unaware of proximal events related to this 8 acre lot. Specifically, starting on October 2, 1998, the previous owner illegally removed, over a one month period, almost all native ground-cover vegetation, including over a dozen protected oak trees, from this 8 acre property (see Exhibits 2 and 3). This infraction was discussed by the Town Council on November 2, 1998. Subsequently, that same previous owner trucked in hundreds of tons of river rocks and lined much of the entire length of the newly reformed drainage catchment (see Exhibits 4 and 5) from the east end to the west end of the property, a distance of over 700 feet. Yet, in just 10 years, these rocks have been almost completely covered with silt that has washed down this seasonal watercourse (see Exhibit 6). RESPONSE -42: See Figure 5, a photo taken on llloffat property upstream of the proposed home site olt Illarch 23, 2006, which sloes iaot indicate siltation in the drainage channel, cis indicated b~ the commenter. Figure J. Photo taken on ?harsh 23, 2006 of drainage channel conditions east of the proposed home site So, why the apparent disconnect between Tito Patri's recommendation and the observations of H. T. Harvey? I believe that the timing of the visits and the illegal grading events of 1998-1999 offer a simple explanation. I have provided photos (Exhibit 7 and 8) taken in March, 1995, of the drainage corridor on the Moffat property, showing a veritable stream in the same area that Dr. Boursier found "minimal free flowing water." Such generous runoffs were common during wet late-winter/early-spring periods of the late 1980s (I moved into my house in 1986) and throughout the 1990s. Such extensive water runoff lasted days if not weeks, and I could hear this runoff from my front porch. By changing the ground cover of much of this 33 acre catchment basin (the surrounding hillsides on the Moffat property have still not recovered to their 1998 pre- clearing ground-cover condition), the drainage properties of this area were also changed. Thus this combination of a mid-winter observation time by Dr. Boursier (before the ground was saturated) and a change in water runoff characteristics of the surrounding slopes, undoubtedly explains the differences between his January 13th and my mid March observations. And that is just the point: H. T. Harvey was unable to adequately and accurately evaluate the ecological conditions of this area and the impact of this proposed subdivision. RESPONSE #3: il'itli current conditions being substantially different fr•oin those in 1998 as well as 2004, it would not be possible to confirm or rgfitte the commenters hypothesis, whether an EIR or YUND is prepared. The presence of horsetails in the vicinh), of the proposed borne site in 1998 could be attributable to fluctuations in rainfall amounts and patterns, not just changes in drainage conditions. Such a proper evaluation requires the preparation of a full EIR that asks and provides answers to the following questions: 1. How much runoff that currently percolates on the subject property, would the proposed subdivision direct into Short and Ross Creeks. What is the environmental impact given that Ross Creek is an identified flood hazard? RESPONSE 44: rlIitigation Measure 4 of the JVIND (page 16) requires provision of a drainage inanagenient system on-site that maxlmizes on-Site percolation of drainage flows and maintains storm runoff f orn the site at pre-developnient levels, including am required storintivater storage facilities. 11'I1ile rttrrofffr•om the site eventually drains into Short and Ross Creeks, this runoff ii,oltld ]rot eontr'ibitte to dort'nstr•eanr flood ha:-ar'cls becaitse of these required orr-site drainage facilities. In addition, before entering Short and Ross Creeks, project-related runoff would drain into an existing detention basin that was constructed as part of the Highlands project to detain 100 year peak Halts and to ensure appropriate filtration of storm lows to inaintain or improve water qualih,- conditions for sin face runoff 2. What are the potential environmental impacts on the water quality and temperature of Short and Ross Creeks? What are the potential environmental impacts on the animals and other organisms that rely on these runoffs? RESPONSE 95: Because of the required on-site drainage in nragenrent system that maximizes on-site percolation of drainage floats and maintains storrri runoff horn the site at pre- developinent levels, there would be no changes inflows to or in Short and Ross Creek (hence, no effect on water quality or temperatuure). 3. What wildlife and microorganisms reside-on, move-through, or are fed by the waters of the subject property? What are the potential environmental impacts on these animals and organisms? As an alternative course of action, what beneficial consequences would accrue from enactment of a "riparian restoration" pro grain for this specific drainage, as proposed in the Open Space Study for the Blossom Hill Area? RESPONSE -=6: Since riiiiof f floit's info (m exrstinla .storm drain i pstr-eani ofthe proposed hoine site and there is no drainage channel at the Koine site, development of this home site tit-ordcl Izt.nv no impact on animals or organis)rt.s that rch: on "waters of the subject propert•. ",4Iso, to clarif the _1LVD (page 9) states that there are 110 jurisdictional watcts of the United States oil the project site ah-cii that the U.S..1rim, Corps of'Engirrcers indicated there are no jurisdictional timters of the United States on the Highlands property, it'hich is inunediateh- downstreatrr of the proposed hotne site. 4. What cumulative impact will the project have on the Guadalupe watershed given that past projects have degraded other sections of the watershed? As a Ph. D. in biology, I can state that the proposed Moffat subdivision and development likely have cumulative, non-mitigated consequences. When I first moved into my house on neighboring Francis Oaks Way in 1986, I frequently saw medium and large sized mammals on my street and in my front yard: bobcats, coyotes, raccoons, skunks, opossums, and deer. In the last 10 years, I have seen no individuals of any of these animals except for deer, and even their numbers are down. My data are anecdotal, and why such a population level change occurs is always a difficult biological question to answer, but within my immediate area in this same 10 year period, there have been two new houses constructed, another house demolished and replaced with a structure 2X as large, acres of native vegetation removed with more new fences and ornamental vegetation planted, and the semi-riparian habitat obliterated on the Moffat property (and most of this before the adjacent Highlands work even started). It is difficult to believe that there is no cause and effect linkage here, but such "small" cumulative interactions have not been thoroughly investigated. Clearly these incremental developments appear to have had non- mitigated consequences. My April, 2009, pictures (Exhibits 9 and 10 - compare with Exhibits 2 and 3 from 1999) of the Moffat drainage corridor indicate an impressive natural recovery in some 10 years. Also supporting such a recovery is my hearing tree frogs calling these last two winters and springs from the area of the drainage Swale. And while this drainage presently lacks any plant species typically associated with a riparian habitat, it has contained such species in the immediate past and, under a program of riparian restoration, could contain them in the future. But such speculation is just that, hence the need for the definitive studies that should be accomplished by an FIR. RESPO.i'SE ~7: Under CF_O_I Section 15064(h), an EIR is not required if'hcn a project's contrrbatron to a significant cia]ndath,c Ititpact is rendered less than cItinulath,ch- considerable thrmi h ]nrtdgatlon tlreasures regidred in the mitigated 1lcgative declaration. CEO.4 Section 15125(a) recltrires that a projects Impact be compared to conditions "as the exist ...at the time the cin lrownental anali•sis is coiloncnecd. " Consistent with this reglrirement, the VAID (page S, paragraph 3) states that the area inhere the proposed home site would be located is devoid of ivgetatiotl (see Figure 7 above) and therefore, there is no significant impact on biological resources. Since there is rro biological impact associated with the project, the project's incremental impact is trot cuninlativeN considerable regardless of'past actions. Section 15064(h)(4) indicates that the mere existence of significant cumulative impacts caused bar other projects alone shall not constitute substantial evidence that the project's incremental effects are cumulatively considerable. CEQA Section 15064 (h)(1) Own assessing whether a cumulative effect requires an EIR, the lead agency shall consider whether the cumulative impact is significant and whether" the effects of the project are cumulatively considerable. An EIR must be prepared if the cumulative impact may be significant and the project's incremental effect, though individually limited, is cumulatively considerable. "Cunrrslatively considerable " means that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects. (2) A lead agency may determine in an initial study that a project's contribution to a significant cumulative impact will be rendered less than cumulatively considerable and thus is not significant. When a project might contribute to a significant cumulative impact, but the contribution will be rendered less than cumulatively considerable through mitigation measures setforth in a mitigated negative declaration, the initial studv shall briefly indicate and explain how the contribution has been rendered less than cumulatively considerable. (3) A lead agency may determine that a project's incremental contributions to a cumulative effect is not cumulatively considerable if the project will comply with the requirements in a previously approved plan or mitigation program which provides specific requirements that will avoid or substantially lessen the cumulative problem (e.g., tinter quality control plan, air quality' plan, integrated haste management plan) within the geographic area in which the project is located. Such plans or programs mist be specified in lair or adopted by the public agency with jurisdiction over the affected resources through a public review process to implement, interpret, or make specific the law enforced or administered by the public agency. If there is substantial evidence that the possible effects of a particular project are still cumulatively considerable notyithstanding that the project complies with the specified plan or mitigation program addressing the cumulative problem, an EIR mast be prepared for the project. (4) The mere existence of signif cant cumulative impacts caused by other projects alone shall not COrISlftrrtL' S1rbS1ClntlCll el'IdellCe tllCrt the proposed projects incremental effects are cumulativcl_.v considerable. T.H.I.S. DESIGN & DEVELOPMENT Box 1518, Los Gatos, CA 95031 Fax: 408.354.1823 Tel: 408.354.1863 110 E. Main Street Los Gatos, CA 95030 Attn: Town Council 15500 Francis Oaks Way Lot Split. M-06-04, ,Nb-06-04 August 24th 2009 At their meeting on June 24th, 2009 the Planning Commission's motion for denial of the Revised Application was based on three State Subdivision Map Act findings (c), (d), (e). Initially: We appealed because we believed that they erred in a number of ways: Firstly: the factual evidence overwhelmingly supports Non-Denial on all counts: (c) The site is not physically suitable for the Type of Development • We have shown that the Site can easily support the proposed Type of Development requested. A Single Family Home on this Site will be 100% compliant with the Hillside Standards and Guidelines. (d) The site is not physically suitable for the Density of Development • We have proposed 3 acres in HR 2.5 acre zoning and shown full compatibility with neighboring lots. (e) The design of the Subdivision or Proposed Improvements are likely to cause Substantial Environmental Damage or Substantially and Avoidably injure fish or wildlife or Their Habitat. • Evidence of ALL experts rejects this notion. Testimony agrees. Secondly: in relation to d the Council Agreed that a 2.5 minimum lot size would be appropriate to satisfy the Density considerations at this site. In denying this application based on Density, they have ignored Town Council direction in this matter. Thirdly: in relation to (e) the Planning Commissioners split 3-3 on their support for (e). As such, this fails, and there was no basis for including this in the final motion. Finally: The Planning Commission chose to include (e) [and were directed by Orrey Korb that "The motion includes all of those findings. If you vote on the motion then you are supporting all of those findings" Transcript Page 44 Lines 11-12]. Accordingly the vote was invalid, because three of the six Planning Commissioners' testimony showed that they were NOT in agreement with the motion to deny on the basis of all three findings. Subsequently: In reviewing the testimony in detail, both from the video and from the transcript, it is clear that there was an underlying "elephant-in-the-room" that the Planning Commission was skirting around that really formed the basis of their denial. Possible future litigation in relation to the granting of an ingress/egress easement and the desire not to have the Town become involved was a major concern. Most of the focus at the hearing was in relation to the Ingress/Egress Easement and Site Access. A detailed "time spent" breakdown showed that this took up: • 100% of Commissioners' questions to Staff and Council • 54% of Public Testimony • 67% of Commissioners' Deliberations 18% of Motion Discussions [and they only came off Access to discuss whether 2 or 3 motions should be used in the denial -79%] We now ask the Town Council to consider this as a Policy Issue vested in the Council. [What should the position of the Town be when there is a veiled Threat of Litigation?J: We feel the Planning Commission chose not to address this head on - but rather allow the Town Council to consider it in its denial of the project. "Lack of Access to a Site" would make a Site not Physically Suitable for the Type of Development [Single Family Residence]. We have provided evidence to support our claim of access by a recorded easement, but the easement is now being questioned. Orry Korb has indicated that he sees nothing in the easement language that would prohibit access, but the mere threat of litigation is hampering project approval. Two Community Benefits have been offered to the Town and the community: • A Scenic Easement at the most Visible Portion of the Property. • A Storm Drain Easement benefiting Town and the Highlands Project. I look forward to discussing this in more detail at the Town Council hearing. Thank you, Tony Weans for T.H.I.S. Design Cc Moffat State Subdivision Ma Act Condition C Cause f or Denial: That the Proposed Site is not Physically Suitable for the Type of Development V- Single Family Home In its Previous Denial, the Planning Commission stated several reasons for denying the project based on the Physical Suitability of the Original Site for the Type of Development proposed [Single Family Residential]: • The average slope was very close to 30% where the house was proposed • The potential impact on a significant oak tree • The setback - proximity to street [at Francis Oaks Way] • The lack of any viable useable yard for an eventual homeowner The Proposed Site specifically addresses ALL of these concerns: • The average slope is less than 5% at the proposed house location. • There is no impact on any trees • The setback from the street will be 150 ft [at Shady Lane] • There is a quarter acre of flat, useable yard for a homeowner to enjoy We have also shown that it would be very easy to construct a Single Family Home on the Site [See Type of Development] that would be 100% compliant with Hillside Guidelines, require almost no grading and have NO IMPACT on any present or potential neighbor. 90% of the Site would remain undisturbed. The Proposed Site is fully supported by- The Santa Clara Fire District, • The Town of Los Gatos Engineering Dept, • Town Geologic Consultant [Peer Review] • Town of Los Gatos Planning Dept, • Town of Los Gatos Department of Public Works, • Town Environmental Consultant [Initial Study], • Most neighbors on Francis Oaks Way. The Planning Commission did not cite specific reasons for denial based on the planned Type of Development [Single Family Home], but spent most time discussing the Ingress/Egress easement to the site from Shady Lane. Access by Easement was briefly mentioned as a possible concern in the Planning Commission deliberations. Access by Easement is very common in Los Gatos. In fact every house on Francis Oaks Way utilizes a series of Private Easements to access their house. i t r t ~ • i; ~ Lib. ~ '~a =u =r 4 Iv- 144, AL 4T tkS~~ ~ 1j SS f Ols too l; k k f N1ti 4 1. ' si C4 i 5 t4~ f"7 1 L I V State Subdivision Ma Act Condition D Cause for Denial: That the Site is not Physically Suitable for the Proposed Density of Development In its Previous Denial, the Planning Commission denied the project based on the Original Site of 1.2 Acres being inadequate for the Density of Development: In the Appeal to the Town Council, the applicant offered to reconfigure the 8 acre parcel to create a more reasonable lot configuration. The Town Council agreed, after discussion, that a 2.5 acre minimum lot size would be appropriate and remanded it back to the Planning Commission. The Proposed Site is now proposed at 3 acres: • It is fully compliant with the Town Council Density Directive. • It was increased in size to be more balanced [3acresl5acres] • It is compatible with the Highlands Subdivision lots [1.5 - 3.5 acres +1-] The Planning Commission did not cite any specific reasons for denial, but some time and questions was spent addressing Slope Density 1 Lot Size. Town Staff stated the following: • Private Street and Storm Drain Easements are NOT deducted from the Property size of 8+ acres. • The property may be split into 2 Parcels based on Slope Density [See the attached "Revision to Exhibit 1 provided to the Planning Commission.] 15500 Francis Oaks Way Lj Di- I Ci E3LQ .$UF,S,{ L N ly {i~ iCF? 1 { - 9aCgs~i _rNr 11 T t r3 ♦w•, - I3LOSSf94f 411- I LAN LHt:1 RO ~ I r ~ a A- Ac, V 1' l~i C t.1 - i. I w ? i Q _'1 1 M ~ NEIGHBpRW~oD GoWArIBILITY C p&N SITY OF DEVELO'P1+E1JTl a_L.7LJ~- 7 State Subdivision Map Act Condition (E) Cause for Denial: That the Design of the Subdivision or the Proposed Improvements are likely to Cause Substantial Environmental Damage or Substantially and Avoidably Injure Fish or Wildlife or their Habitat • The Blossom Hill Open Space Study [BHOSS] states clearly that the swale is NOT A RIPARIAN AREA, but that it might be suitable for Riparian Restoration in the future [extending possible Riparian habitat from the Highlands Land below]. • Harvey and Associates, in considering the Highlands Project, determined that this whole swale (from the upper area of Highlands. through the Moffat Land and across the lower area of Highlands) was NOT A RIPARIAN AREA. [The same area considered by BHOSS] • The EIR for the Highlands project determined that this same drainage swale (Highlands/Moffat/Highlands) was NOT A RIPARIAN ARF,A. [Again the same area covered by BROSS]. The Town of Los Gatos accepted this Determination for the Highlands Project and should NOT Reverse itself for the Moffat Project. • The Army Corps of Engineers also evaluated it. [BHOSS land] • Harvey and Associates evaluated the Moffat swale specifically and determined that is NOT A RIPARIAN AREA. • Geier and Geier undertook an Initial Study which evaluated it further and determined it is NOT A RIPARIAN AREA • Dr Weissman states clearly in his testimony that the Swale is NOT A RIPARIAN AREA, but rather questions why the Blossom Hill Open Space Study was not given due consideration by Geier and Geier. • Geier and Geier responded very well to the Weissman memo and pointed out again that it is NOT A RIPARIAN AREA NOR IS IT AN AREA SUITABLE FOR FUTURE RIPARIAN RESTORATION in the area of the proposed site for the residence. That is 8 documents, 4 experts, Dr Weissman and the Town of Los Gatos that clearly state that it is NOT A RIPARIAN AREA.