Attachment 12Justification Letter
Union Orchards
258 Union Avenue
RECEIVED
FEB 2 4 2014
TOWN OF LOS GATOS
PLANNING DIVISION
The property at 258 Union Avenue in Los Gatos has been a vacant parcel since
2001. It sits at the boundary of the Town of Los Gatos and the City of San Jose.
From the date of purchase, we began searching for the best possible and most
attractive use of this property for residential living with the hope of providing a
pleasing transition between the two zip codes.
We were disappointed with Planning Commission's decision to summarily deny
the project basing upon a fundamental misunderstanding of the Condominium
format, ignoring the proposal's consistency with the General Plan and Housing
Element, and without evaluating the benefit to the town of the proposed BMR
unit and without offering an opportunity for a continuance to improve the
design of the project.
We look forward to this opportunity to present this project to the Town Council
by addressing the following concerns that were discussed in the Planning
Commission meeting:
Freestanding Condominium Is An Acceptable Type Of Building Ownership
With A Solid Legal Basis.
The denial of the 258 Union Avenue project was based upon Planning
Commission's fundamental misunderstanding of the State condominium
ownership laws.
The definition of a Condominium has evolved over time in the state of California.
A Condominium agreement describes a type of shared ownership, but does not
define a type of building. The term 'Condominium' no longer only applies to
blocks of attached multiple -story buildings.
This outdated definition was accurate prior to the enactment of DSA
(Davis - Stirling Common Interest Development Act) in 1985. "Under the DSA,
however, the unit no longer is required to be space within a building. The DSA
provides that the unit may be filled with air, earth, water or any combination
thereof and may be consist of an entire structure containing one or more
units "(please refer to Exhibit 1 for the opinion letter by counsel Jeffrey G.
Wagner of Miller Starr Regalia). Union Orchards meets the definition of what is
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legally described as a Condominium project in that there are 8 condominiums
that are individually owned, and "common area" are owned by all owners with
an undivided ME, interest.
Conditional Use Application Is A Valid Avenue For Project Approval
Chapter 29 of the Zoning Ordinance specifies residential condominiums as a
conditional use for properties with a C -1 zoning. This project, developed as
freestanding condominiums with common ownership in the land and managed
by a Condominium association, is a form of development that is an acceptable
use under the Town's Zoning Ordinance. Staff has supported this point of view
and has recommended approval of the project. During the December 11, 2013
Planning Commission meeting, it was confirmed by planning staff that, "The
Zoning Code allows a Conditional Use Permit for a residential condo in C -1 zone.
If that weren't a permitted use in the zoning code we wouldn't be having this
conversation in the first place, and so there's nothing that they are
circumventing from a code standpoint ". Furthermore, a precedent for
condominium development on land zoned C -1 can be found in the immediate
vicinity on Downing Oak Court.
Residential Use Is A Desirable Use For This Property
This particular neighborhood is a blend of commercial and residential properties.
Directly across from the proposed Union Orchards project, there is large retail
complex featuring many small businesses and a Safeway supermarket. Over the
past decade, it has been very difficult for the owner /property manager of the
retail complex to maintain full occupancy. There has been an average of 13 -20%
vacancy year over year. 258 Union Avenue has been vacant for more than 12
years and has never been considered for commercial development during that
time. Not only is the address on border of Los Gatos, being less desirable for
professional offices or retail, but also any structure that is built to accommodate
these businesses would severely alter the complexion of the neighborhood on
Union Avenue and severely impact the residential neighbors to the east. We
believe that if this property could be effectively developed as a commercial
building or professional building, plans for such projects would have been
proposed for such use a decade ago.
The Project Provides A Desirable Transition In The Neighborhood
The adjacent property to the north contains dense two -story single - family
homes in the City of San Jose. An office building abuts the south side, followed
by duplexes. Across the street to the west is the Downing Center which includes
retail, restaurant, office, bank and personal service uses. The residences to the
east are single family homes zoned R -1:8. Union Orchards, with its 8 detached
condominium structures, we contend, is the ideal transition from the north, the
15 units of single family home to the duplexes in the south as well as from the
Downing Center commercial complex and multi - family development of
Downing Oak Court in the west to the single family homes in the east. Please
refer to Exhibit 2 for project rendering of Union Orchards.
The Density of This Project Is Moderate and Well Blended Into The
Neighborhood
As shown in the diagram attached in Exhibit 3, Union Orchards, with 9.3 units
per acre, has lower density than the San Jose homes to the north (14units /acre),
the duplexes to the south (11 units /acre) and the Downing Oak Court
multi - families (12.3 units /acre). It also acts a successful bridge between the
commercial Downing Center to the west and the lower density R1 neighbors to
the east.
The Project Is In Harmony With The General Plan
The proposed project is in harmony with the General Plan as noted in the
December 11, 2013 Staff Report. The project specifically fulfills Goal LU -7: 'to
use available land efficiently encouraging appropriate infill development'.
Additionally, Policy LU -7.3 specifies that 'infill projects should contribute to the
further development of the surrounding neighborhood by eliminating blighted
areas'.
Policy LU -7.4 states that 'infill projects shall be designed in context with the
neighborhood' and 'blend rather than compete with the established character
of the area'. The architecture of the proposed project complements the design
of the neighboring residences and is stylistically and historically compatible with
the neighborhood at large.
Policy LU -6.7 'encourages a variety of housing types and sizes that is balanced
within the Town and within neighborhoods that is compatible with the character
of the surrounding neighborhood'. The proposed project is a creative solution to
provide variety in housing types compatible with this neighborhood.
Furthermore, the strong community benefit of the BMP housing unit must also
be taken into account. Policy LU -2 notes that community benefit shall be part
of infill projects. Policy HOU 2.7 recommends the creation of affordable housing
opportunities using BMP units.
Lastly, the proposed project fulfills Policy LU 6.1 by 'protecting existing
residential areas from the impacts of non - residential development'.
Changes Have Been Made To Address The Concerns of The Neighbors and
Planning Commission
Ever since we started designing our project, we have had many conversations
with the neighbors on Howes and Hershner Courts. We made changes to
address their concerns in the planning commission application. We have made
further changes after the December 11, 2013 meeting to respond to concerns
of bulk, mass and privacy as it relates to the eastern neighbors.
Three rear units (Unit 6,7 and 8) have been completely redesigned (please refer
to exhibit 4 for new floor plan). Their second stories have been pushed back by
additional 10' -12' from the required 20' setback line, which creates a minimum
of 50' -52' distance to the nearest neighbors (please refer to Exhibit 5 for the
new site plan). The square footage of the second stories has been minimized
and stepped forms have been added to the mass and roofline to reduce bulk
and create variety. The units have been spaced further apart to further reduce
the perception of bulk. Rear - facing large bedroom windows have been
eliminated so that only high windows are proposed facing the eastern
neighbors. Because the sills of the high windows are designed at or above eye
level, privacy conflicts are eliminated. Two second -story rear facing balconies
have been eliminated.
Additionally, the common space has been extended to connect the property
frontage to create a stronger sense of community within the development and
to facilitate easy access for all residents to the common area. This is in direct
response to a concern of the Planning Commission over equal access to the
common space.
These revisions are being proposed in good faith to demonstrate a willingness
to address neighbor, staff and Planning Commission concerns in an effort to
create a design that is respectful of the context.
In the denial of the application at the initial hearing, the Planning Commission
failed to act in accordance with the stated goals of the general plan. Goal
CD -17 reads: "To conduct careful review of new projects and provide clear
direction to property owners, neighbors, and potential developers. " It is our
hope that the City Council will understand that by summarily denying an
application for which staff has recommended approval, the Planning Commission
has missed an opportunity to provide clear direction to a partner that is willing
to work with staff, neighbors and the Commission to develop a parcel that has
been vacant and blighted for more than one decade.
In summary, when we were presented with the opportunity to develop this
land, we did not move forward with haste or without consideration of the
regulations and requirements. We took detailed suggestions and direction from
the Town of Los Gatos Planning Staff. We made a proposal to CDAC to make
certain that we were on the correct path to turn this vacant lot into a flourishing
community which would benefit the Town of Los Gatos, keep in line with
General Plan and provide the wonderful first view of what Los Gatos represents.
We had numerous discussions with the planning staff and the town consulting
Architect to make sure our project is consistent with the Zoning Ordinance. The
planning staff made the recommendation of approval to the planning
commission. We were shocked to be denied by the commission without any
discussion of a continuance. With the further explanations above about this
project, we think we addressed all the concerns raised from the commission
members as well as the neighbors. Please approve our appeal and we will take
the honor to turn this vacant land into a wonderful community.
MILLER STARR
REGALIA
December 19, 2013
VIA E -MAIL shunliang.wang @gmail.com
Shawn Wang
ValleyOne Investments, LLC
12280 Saratoga /Sunnyvale Road, Suite 107
Saratoga, CA 95070
Re: Union Orchards
Dear Shawn:
Zxti� b11f 2L
1331 N. California Blvd. T 925 935 9400
Fifth Floor F 925 933 4126
Walnut Creek, CA 94596 www.msrlegal. com
Jeffrey G. Wagner
Direct Dial: 925 941 3254
Jeffrey. Wagner @msrlegal.corn
I understand that the Town of Los Gatos' Planning Commission denied your
project because of a concern that the condominiums were detached residences
rather than attached residences. While the typical condominium project consists of
attached residences, a project containing separate residential structures qualifies as
a condominium project under State law.
In order to be a legal condominium, each condominium must consist of the
following two ownership interests: a separate interest in space called a "unit "; and
(ii) an undivided interest in common in the "Common Area ". The statutory
requirements for condominiums are set forth in Civil Code §1351(f), which is a part
of the Davis - Stirling Common Interest Development Act (the "DSA "). I have
attached as Exhibit A is a copy of §1351(f) for reference purposes. Please note the
Legislature recently reorganized the DSA; and effective January 1, 2014, Civil Code
§1351(f) will be set forth in Civil Code sections 4125(b) and (c).
Prior to the enactment of the DSA in 1985, the legal definition of
condominium required that the "unit" be space situated within a building. In many
standard condominiums, the unit is space within a building (i.e. the living area) and
the common area consists of the building's structural components (roof, exterior
walls and foundation). Under the DSA, however, the unit no longer is required to be
VONE \51258 \922941.1
Offices. Walnut Creek / San Francisco / Newport Beach
Shawn Wang
December 19, 2013
Page 2
space within a building. The DSA provides that the unit may be filled with air, earth,
water or any combination thereof and may consist of an entire structure containing
one or more units. As a result, in a project with single family detached residences
situated within a single lot, the dimensions of the unit can be expanded so that each
residence is situated within the unit and is separately owned by the condominium
owners.
The condominium plan for a project of this type will show unit envelopes and
in each unit envelope is a residential structure. All of the property within the
condominium property but located outside the unit envelopes is Common Area.
Each unit owner owns an undivided interest in the Common Area satisfying the
Common Area interest element.
These types of condominium projects have been accepted by other cities
and counties, are recognized as legal condominiums by title companies and by
lenders for financing purposes. Attached are copies of recorded Declaration of
Restrictions (CC &Rs), condominium plan and subdivision map for a very similar
project containing single family detached residential condominiums that was
approved by the City of Palo Alto.
I will be happy to discuss this further with the Planning Staff or Town
Attorney.
Very truly yours,
R STARR REG
Je e
jgw:yda
Enclosures
cc: Tara Castro Narayanan (tara.narayanan @msrlegal.com)
Chris Kummerer (chris @cka- architects.com)
VONE15125M922941.1
EXHIBIT A — Civil Code Section 1351(f)
A "condominium project' means a development consisting of condominiums. A condominium
consists of an undivided interest in common in a portion of real property coupled with a separate
interest in space called a unit, the boundaries of which are described on a recorded final map,
parcel map, or condominium plan in sufficient detail to locate all boundaries thereof. The area
within these boundaries may be filled with air, earth, or water, or any combination thereof, and
need not be physically attached to land except by easements for access and, if necessary,
support. The description of the unit may refer to (1) boundaries described in the recorded final
map, parcel map, or condominium plan, (2) physical boundaries, either in existence, or to be
constructed, such as walls, floors, and ceilings of a structure or any portion thereof, (3) an entire
structure containing one or more units, or (4) any combination thereof. The portion or portions of
the real property held in undivided interest may be all of the real property, except for the
separate interests, or may include a particular three - dimensional portion thereof, the boundaries
of which are described on a recorded final map, parcel map, or condominium plan. The area
within these boundaries may be filled with air, earth, or water, or any combination thereof, and
need not be physically attached to land except by easements for access and, if necessary,
support. An individual condominium within a condominium project may include, in addition, a
separate interest in other portions of the real property.
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