Attachment 17I
— �COXCASTLENICHOLSOhIb--
T
December 21, 2011
Mayor Rice and Members of the Town Council
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95031
File No. 64140
Re: Renovation and Expansion of Riviera Terrace 135 Riviera Drive
Honorable Mayor Rice and Members of the Town Council:
On behalf of Sobrato Interests IV, the applicant seeking Planned Development
approval for the renovation and expansion of the Riviera Terrace complex (Project), I write to urge
the Town Council to adopt the Project's Mitigated Negative Declaration (MND) and approve the
Project. The record before the Town Council provides uncontroverted substantial evidence
supporting adoption of the MND. With implementation of the mitigation measures recommended
in the MND, and as revised and presented to the Planning Commission on September 14, 2011, the
Project will not have a significant effect on the environment. In fact, the Project will greatly
improve the condition of the existing riparian corridor along Los Gatos Creek adjacent to the Project
site.
At its September 14, 2011 meeting the Planning Commission recommended that the
Council not adopt the MND and deny approval of the Project. Specifically, Commissioner Sayoc
expressed concern regarding a comment letter from the Santa Clara Valley Water District (SCVWD)
suggesting that, in its opinion, the Project was not consistent with the SCVWD's Guidelines and
Standards for Land Use Near Streams. However, as detailed below, expert evidence documents that
the Project, as revised, will work in concert with the Guidelines to substantially improve the
conditions of the riparian habitat adjacent to the Project. The record before the Town demonstrates
that development of the revised Project and implementation of the mitigation measures proposed in
the MND will result in mitigation of all potentially significant impacts of the Project. The MND is
My compliant with CEQA and should be approved together with the Project.
The Riparian Corridor
As detailed in the MND, a comprehensive riparian assessment was completed for the
Project by Wood Biological Consulting in August of 2010 (Wood Report). Based on this Report,
the MND documents that Los Gatos Creek currently extends along the Project site's eastern
boundary with the Creek's ordinary high water mark (OHWM) extending approximately 15 feet
along side either side of the Creek. The western OHWM runs roughly up to an existing bollard and
chain link fence on the eastern edge of the Project site. Within the fence line the eastern edge of the
Property is currently paved and landscaped. This included three trees within the fence line that form
6414014124068v2
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D Cox, Castle & Nicholson LLP
Q1
555 California Street, 10`" Floor
San Francisco, California 94104 -1513
TOWN OF LOS GAT 392.d2oo F
PLANNING DIVISI J e E. Mudge
415.262.5107
amudge @coxcasde.com
Los Angeles I Orange County I San Francisco
AiTACHMEL' ' l l
Town Council
December 21, 2011
Page 2
a oak and sycamore canopy that is continuous with the riparian vegetation along the Creek. The
sycamore tree was rated by an arborist as being in "fair" condition. It is leaning at a 45 degree angle
and was recommended by the arborist for removal.
Further expert review of existing conditions (see discussion of Boursier Report below)
determined that the current riparian corridor does not allow for wildlife movement due to the chain
link fence, and is dominated by invasive groundcover, with English ivy contributing to the recent
death of several large trees and threatening numerous sycamore trees. The riparian corridor within
the fence line on the Project site is of "low quality" and "restricted to providing only `canopy
riparian."'
The Project
The Project, which will renovate the apartment complex and add 50 units of
housing, will not expand into the riparian corridor beyond the existing chain link fence that
currently demarks the edge of the development. It will also include a new drainage and stormwater
system to ensure that any runoff from the existing and expanded parking lot which may flow
towards the Creels will first be treated — a substantial improvement from existing conditions. As
originally proposed, the Project would have increased the impervious area within the fence line (in a
location considered part of the riparian canopy) by 7,915 square feet due to the expansion of a
parking lot. The MND recommended eight mitigation measures to reduce the Project's potential to
result in direct and indirect effects on the riparian zone and concluded that the "proposed
encroachment upon the riparian canopy is not likely to result in significant adverse effects on
biological resources or the creek environment." (MND at p. 8 - 11.) (See Biological Resource
mitigation measures, Exhibit A .) The mitigation measures include requirements that an invasive
species eradication programs be implemented for the Creek along the upstream and downstream
property boundaries, with retention of a qualified Restorationist to guide the work and to submit
reports on its status to the Director of Community Development. (Id.)
Comments submitted by SCVWD on the MND expressed concern about the
Project's consistency with SCVWD's Guidelines and Standards for Land Use Near Streams
(Guidelines). The Town requested, and Grier & Grier Consulting Inc. prepared, a detailed response
to SCVWD's comments. Grier & Grier's analysis concluded that SCVWD's comments did not
identify any new significant impacts or require substantial revisions to the MND. Further, the
SCVWD did not contend, or provide evidence to suggest, that the Project would result in a
unmitigated significant impact to the riparian corridor.
Revisions to the Project
At its July 13, 2011 meeting on the Project, the Planning Commission directed
Sobrato to further address the Commission's concerns about the Project's potential impacts on the
riparian corridor. Accordingly, on September 14, 2011 Sobrato presented the Commission with
plans for a revised Project, under which Sobrato would remove only approximately 2,000 square feet
of existing riparian canopy within the fence line (due to the removal of the single sycamore tree).
Sobrato also proposed to go well beyond the required mitigation measures to:
6414014124068x2
Town Council
December 21, 2011
Page 3
• Plant two additional trees within the proposed parking lot expansion area;
• Plant vines along the chain -link fence to prevent headlights from entering off -site
riparian habitat;
• Complete up to 10,000 square feet of riparian enhancement planting in off -site
riparian habitat on land owned by Sobrato through Creek Restoration Plan to be
developed by HT Harvey Ecological Consultants;
• Use indirect lighting in areas adjacent to the off -site riparian habitat;
• Use 7,000 square feet of permeable pavers on -site as part of the Project's parking lot.
(See Exhibit B .)
Expert Review of the Project
Sobrato also presented the Commission with the letter report of Principal Senior
Plant Ecologist Patrick j. Boursier, Ph.D, an expert with H. T. Harvey Ecological Associates, who
reviewed the Project, technical studies prepared for the Project, as well as conducting a field survey
of the riparian corridor both onsite and off. (See Exhibit C .) Dr. Boursier specifically reviewed
SCVWD's statements regarding the Project's consistency with the Guidelines. Dr. Boursier also
testified at length as to his findings before the Planning Commission on September 14, 2011.
Dr. Boursier's Report details (as did his testimony) that the provisions of the
SCVWD's Guidelines contain considerable flexibility. He noted that the citations to the Guidelines
in the SCVWD letter did not actually reference any of the specific recommended measures included
in the Guidelines. Dr. Boursier reviewed each of the relevant Guidelines measures (I.A. E,
Protection of the Riparian Zone, I.B. Native Plant Removal, and I.G Land Uses Next to Riparian
Corridors /Streams) and concluded that they "provide a lot of flexibility in regards to the riparian
corridor issue, that allow for a consideration of site - specific conditions, professional biological
opinion and incorporation of mitigation."
Given this, and considering both the mitigation measures in the MND and the
additional improvements proposed by Sobrato, Dr. Boursier concluded "the proposed mitigations
will substantially improve the condition of the off site riparian habitat and will more than offset any
impacts that the project will have .....Overall the Project will significantly improve biotic
conditions, both in terms of providing off site riparian habitat and improving water quality of Los
Gatos Creek; a condition that will not improve if the Project does not move forward as proposed."
Staff Recommends Adoption of the MND and Approval of the Project
Staff has recommended adoption of the MND and approval of the Project, and
noted that the Town has discretion in its application and interpretation of the application of the
Guidelines, and does not have a specific policy or standard that it must necessarily follow in every
641401412406M
Town Council
December 21, 2011
Page 4
event. Staff also stated that Project elements such as the replacement of segments of the parking lot
with permeable pavers to improve filtration and drainage (6,960 square feet more permeable pavers
than required for compliance with C3 Stormwater Management Plan provisions), as well as riparian
restoration including removal of non - native and invasive species and plant of new trees are
Community Benefits which, pursuant to the requirements of the Town's General Plan, recommend
the Project's approval.
Substantial Evidence Supports Adoption of the MND and Approval of the Project
Given the evidence in the record including the Wood Report, the MND, the Grier
& Grier responses to the SCVWD letter, the Boursier Report, and the testimony of Dr. Boursier, as
well as the revisions to the Project developed by Sobrato, substantial evidence in the record
demonstrates that the Project will not result in a significant impact to the environment. Further,
this evidence is uncontroverted. Absent substantial evidence in the record showing that a project will
result in significant adverse impacts it is appropriate for a lead agency to adopt an MND and the
mitigation measures recommended in the document. (See Perley v. Board of Supervisors (1982) Cal.
App. 3d 424, 434.) Here, there is no evidence before the Council suggesting that the measures
proposed in the MND will not mitigate the potential for direct or indirect impacts to the Creek and
corridor.
We respectfully request that the Council adopt the MND and approve the Project.
Sincerely,
Anne E. Mudge
Attachments
64140\4124068,2
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Planning Commission Staff Report - Page 7
135 Riviera Drive /PD -10 -001 ND -10 -001
September 14, 2011
The applicant has presented detailed plans to demonstrate the merits of the proposed
project, including high quality architecture and construction, extensive landscaping, and
addition of desirable amenities to provide a better quality of life for residents of the
Riviera Terrace apartment complex. The project will provide quality rental housing to
the Town's housing stock which is consistent with the goals of the 2007 -2014 Housing
Element. The new buildings will step with the terrain and will be lower in height than the
existing buildings. The upgrades to the site and quality of the design will enhance the
property and retain compatibility with the neighborhood. Mitigation measures have been
included to ensure that the project will itot result in any significant environmental
impacts. The applicant has offered a creek restoration plan in addition to required
biological resources mitigation measures and has provided adequate evidence and support
for allowing the parking lot expansion within the riparian canopy. The project will result
in the restoration and enhancement of Los Gatos Creek as follows:
• A new drainage and stormwater system will be installed so any runoff that flows
into the creek will be treated.
• Pervious pavers will be used in drive aisles and for uncovered parking spaces to
increase on -site water percolation.
• Invasive species will be removed as recommended by the Town's Biological
Consultant (through the environmental review).
• Planting of native riparian species will be done to restore the canopy and enhance
the creek area. The Planting Program is being developed by HT Harvey Ecological
Consultants.
• Vines will' be planted along the existing chain link fence that parallels the creek to
create a "green screen" and provide more protection from hrunan activity and
lighting.
• Exterior and landscape lighting will be modified to reduce glare and light intrusion
into the creek area. Existing flood lights oil the carports that are directed toward the
creek will be removed. Low level, down directed fixtures will be installed.
Staff recommends that the Planning Commission forward a recommendation for approval
to the Town Council as outlined in the following redormnendation section.
B. Recommendation
The Planning Commission should take the following actions to forward the Planned
Development application to the Town Council with a recommendation for approval:
1. Make the required findings (see Exhibit 16);
2. Recommend that the Town Council make the Mitigated Negative Declaration and
adopt the Mitigation Monitoring Plan (Exh bit 17); and
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ATTACHMENT C
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H. T. HARVEY & ASS OCIATES
ECOLOGICAL CONSULTANTS
7 September 2011 R I KIE, "` D
Mr. Tim Steele :^ __ t).1
Sobrato Development Company
10600 North DeAnza Boulevard TOWN GF 1-173 Gl ,TOS
Cupertino, California 95014 -2075
PLAH'I'Slli`.'G 1)msjolq
SUBECT: Riviera Terrace Apartments, Riparian Corridor
Dear Mr. Steele,
Per your request, I've reviewed the various technical studies and proposed site development
plans prepared for the Riviera Terrace Apartments Project. I've also conducted a field survey of
the Los Gatos Creek riparian corridor, both on site and off site, and reviewed existing conditions
relative to lighting and drainage.
Below I've summarized a few key points regarding my thoughts on the comments received from
the Town of Los Gatos Planning Commission. I've also listed several elements relative to
biological resources both on site and off site along with the original and newly - proposed
mitigation measures.
Planning Commission Comments
As identified in the report prepared for the town by Wood Biological Consulting, and as
incorporated into the Town's Initial Study, the Project was described as being inconsistent with
the Guidelines for Land Use Near Streams (Guidelines) in three different ways:
1. The proposed project would not provide a buffer between new facilities and the riparian
zone. (citing as the authority the Guidelines, Chapter 3B- I.A.3, page 3.3).
2. The project would result in the removal of native vegetation within the riparian zone.
(citing as the authority the Guidelines, Chapter 313-I.13, page 33).
3. The project would place new paved and active recreational areas within the riparian
corridor. (citing as the authority the Guidelines, Chapter 3B -I.G, page 3.4).
To determine if in fact there is an inconsistency between what is proposed and the Guidelines, I
looked at the actual measures described in Chapter 3B. Guidelines and Standards for Land Use
Near Streams. In order of the comments listed above, the Guidelines state:
LA.3 Protection of the Riparian Zone. Adopt, as appropriate, riparian corridor buffers
consistent with onsite biotic conditions which may be determined by a qualified
professional to protect existing riparian habitat. Sensitive habitat areas should be
identified and assigned appropriate buffers.
I.B. Native Plant Removal. Native riparian vegetation is not allowed to be removed
unless there is a threat to public health and safety including an imminent danger of
983 University Avenue, Building D • Los Gatos, CA 95032 • Ph: 403.458.3200 • F: 408.458.1"' 4
Exhibit 19
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induced flooding and /or a biologist/arborist confirms that it will improve the stream
ecology or habitat. If`vegetation is proposed for removal in conjunction with a
development project, mitigation will be provided as defined through the CEQA process
and as agreed to by the local agencies and appropriate regulatory agencies.
I.G. Land Uses Next to Riparian Corridors /Streams. Avoid locating loading docks,
trash enclosures, chemical storage areas and stationary noise producing mechanical
equipment next to streams and riparian corridors. Refrain from locating new paved areas,
active recreational areas agriculhgal growing areas and grazing activities within.riparian
corridors.
Existing Conditions -On Site
• Riparian corridor includes existing parking lot maintained lawn, volleyball court and
concrete bench.
• Riparian corridor located off site beyond the development footprint is disconnected
entirely from on site areas, due to presence of existing retaining wall, bollard chain and 6-
foot tall chain -link fence which precludes wildlife movement onto the site.
• On site riparian corridor is of relatively low quality and is restricted to providing only
"canopy riparian'.
• Runoff derived from stormwater and excess irrigation currently discharges directly into
the creek either through an existing culvert or as overland flow across the parking lot.
• No screening exists between existing parking lot and adjacent off site riparian corridor to
prevent headlights from entering the off site riparian habitat.
• Direct lighting from pool security and parking lot lighting projects into off site riparian
habitat.
Existing Conditions -Off Site
• Off site riparian (i.e, within the property boundaries) dominated by invasive groundcover.
• There is presently little to no shrub and tree canopy along the off site riparian. I
• English ivy is very likely contributing to the recent death of several large trees in this area
and is threatening numerous sycamore trees.
Originaliv Proposed Mitigations
• Remove asphalt around two large sycamores within the existing parking area.
• Pretreatment of on and off site drainage.
• Control of invasive species within the off site riparian corridor.
Newly- Proposed Enhancements
• Plant two additional trees within proposed parking lot expansion area.
• Plant vines along back chain -link fence to prevent headlights from entering off site
riparian habitat.
• Up to 10,000 square feet of riparian enhancement planting in off site riparian habitat.
H. T. X7A R VEY & ASSOCIATES
• Use of indirect lighting in areas adjacent to the off site riparian habitat.
• Approximately 7,000 square feet of additional pavers to be used on site, above and
beyond the C3 Stormwater Management Plan requirements.
Summary
In summary, after reviewing the existing conditions at the Project site and reading through the
three applicable sections from the Guidelines I feel that the Guidelines provide a lot of flexibility
in regards to the riparian corridor issue, that allow for a consideration of site - specific conditions,
professional biological opinion and incorporation of mitigation.
I feel that the proposed mitigations will substantially improve the condition of the off site
riparian habitat and will more than off set any impacts that the Project will have on the on site
riparian corridor. Under_ the current conditions, invasive species, untreated stormwater runoff
and direct lighting are degrading the off site riparian habitat. The Project will remove
approximately 2,000 square feet of existing riparian canopy to make room for a proposed
building. - In its place, up to 10,000 square feet of additional native riparian canopy will be added
to the existing off site riparian habitat, which is currently dominated by invasive ground cover.
Overall, the Project will significantly improve biotic conditions, both in terms of providing off
site riparian habitat and improving water quality of Los Gatos Creek; a condition that will not
improve if the Project does not move forward as proposed.
I look forward to presenting this .information to the Planning Commission and discussing these
topics with them.
Sincerely,
C:;. (
Patrick J. Boursier, Ph.D.
Principal; Senior Plant Ecologist
H T. HARVEY& ASSOCL47E.S
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