Attachment 6 Appellant ltrApril 12, 2015
Marni Moseley
110 E. Main Street
Los Gatos, CA 95301
Re: Appeal of A&S Application #S -14 -072
Dear Ms. Moseley,
(via email)
I present the following as reasons for the Town Council to grant my appeal:
1. New information re previously determined (on June 15, 2009) Town policy, which is
presented below, is now available for the first time. The DRC and Planning Commission (and
apparently staff) didn't have this information and it wasn't readily and reasonably available
to the latter at the time of their March 11, 2015, meeting.
2. Planning Commission and staff erred in not applying numerous Town policies as set by
the Town Council at its meeting of June 15, 2009.
3. Application is incomplete because it lacks the required HDS &G "potential for being
visible" analysis of the proposed house after those trees slated to be removed, or that might
be affected by construction, are included.
4. Planning Commission did not have authority to make the decision, which it needed to
be able to make, so that it could apply the "common sense" doctrine set by the Town Council
on June 15, 2009, as to alternative Viewing Platforms (VP option #5 in the HDS &G, page 13,
B.1.5). The opinion that the TC, and not the PC, is the governing body that has the power to
determine where "other location' Viewing Platforms (VP) are located, was voiced by
Councilman Pirzynski at the June 15, 2009, TC meeting. Town Attorney Korb agreed, at that
same meeting, that policy decisions re code interpretations rest with the TC.
I will now address several issues that support my above contentions as they relate to the
visibility issue of the proposed house. When I refer to Town Policy below, this includes
ATTACHMENT. 6
what is stated in the HDS &G and what was decided by the TC at its June 15, 2009, meeting.
For historical context, I will refer to the following documents since they assist in
understanding the intent of the HDS &G and the application of its provisions.
1. Transcript of the Planning Commission Meeting of August 27, 2003, on the
HDS &G.
2. Minutes of the Town Council Meeting of January 5, 2004, on the HDS &G.
3. Video of the Town Council Meeting of June 15, 2009, - appeal of S08-087,20105
Foster Rd.
Ouestion #1: How should the Viewing Platforms for Lot 7 be chosen?
Town Policy. Employ those 4 enumerated Viewing Platforms from pages 13 and 14 of the
HDS &G plus other locations provided for by option 5 on page 13 of the HDS &G, the latter
that can be chosen using "common sense."
Documentation and Discussion: According to Vice Mayor McNutt, the June 15, 2009, TC
meeting was the first time they had considered an application that talked about visibility
since the HDS &G were passed in 2004. As such, she believed this to still be a new document
that would require some fine - tuning of policy questions that needed to be clarified re
visibility. She also believed that "common sense" needed to be used when interpreting
intent and meaning.
While the application under appeal on June 15, 2009, also used the same VP #1 as
this Highland's proposed lot 7, other viewing platforms not specifically listed in the HDS &G
were readily discussed and utilized because it made common sense to do so. The applicant's
representative provided % visibility from several VP. For instance, he discussed doing
visibility studies along Los Gatos Blvd. at the Acura dealership; along Los Gatos Blvd. at
Leroy; and from Glenridge Ave. Councilman Pirzynski used common sense and the
flexibility provided by VP option #5 to "move up and down" from the corner area. He even
went across the street to the old Swanson Ford site and moved as far south as the Acura
property along Los Gatos Blvd., probably some 3/4 of a block total covered, he estimated. Mr.
Pirzynski said that the HDS &G are very specific re the purpose of looking at visibility - he
also mentioned the 5th VP of "other location(s) as deemed appropriate by the deciding
body." Vice Mayor McNutt, in her successful motion, said that she was open to considering
Glenridge Avenue as a one time viewing platform for this application. And all 5
Councilpersons disclosed that they had visited the formal and "informal" viewing platforms
before the hearing took place. Clearly the TC favored flexibility and common sense when
trying to uphold one of the basic intents of the HDS &G as stated on page 9: "Maintain the
natural appearance of the hillsides from all (my emphasis) vantage points including the
valley floor." This intent was stated slightly differently, but even more strongly, at the TC
meeting of January 5, 2004, when the HDS &G were ratified: (as quoted from the minutes)
"Council absolutely wants to protect the hillside viewshed from any visible new structures
that are constructed."
I also don't believe that this TC wants to get into a nit - picking semantics game re
interpretation of wording in the HDS &G. For instance, what about the meaning of the word
"corner ?" Seems pretty straightforward, but maybe not so simple when applied to Viewing
Platform #1 at the "southwest corner of the intersection of Blossom Hill Road and Los Gatos
Boulevard;' where these 2 roads meld not at a 90 degree angle but with a large, gradual,
rounded curve. So where exactly is that "corner ?" Such word games can be avoided by
employing common sense in choosing VP and keeping in mind the intent of the visibility
analysis.
But does it even matter, for this application under review, where one decides that
the corner is? Well, the answer is a resounding "yes." The applicant presented a photo at the
PC hearing of March 11, 2015, analyzing the visibility of the proposed house from VP #1,
and presented a visibility figure of 21.9 %. Not stated anywhere in the presentation to the
PC, or in their photos, or in Exhibit 11 (their letter to Ms. Moseley dated February 17, 2015)
is the methodology used to calculate this 21.9 %. These methodological unknowns are
important because in all 5 (the proposed house and 4 alternatives) Davidon submitted color
photographs, only the foreground is somewhat in focus. Which results in the actual
Highland site, over a mile away, conveniently being out of focus. Plus we have no idea how
enlarged the actual photographed site was rendered when the visibility calculations were
made. This fact alone is enough to question the accuracy of the Architect's numbers,
especially when their photos are compared to those I have supplied that show much greater
detail. How does the expression go? "junk in ... junk out" But, in any case, and by inference
from their drawing overlay on the photos, it appears that any part of the orange netting and
story poles (and proposed house) that are blocked by the close - proximity palm and
redwood trees in King's Court on the left side of the photo or the Chevron gas station on the
right, are not counted as visible. This is a very strange, and convenient, definition of
visibility, achieved by using a narrow vision- corridor created by "screening" from 3 planted,
non - native trees and a building, all of which are some 1.3 miles away (as measured on
Google Earth) from the proposed house.
Plus the applicant subjectively manipulates the "corner" for their benefit: When I
take a photo of the story poles from 1.5 to 2 feet to the north of where the photographer
was standing for the Davidon photo, and still within the markings of the crosswalk, l get a
very different view because of the extreme tunneling effect provided by the trees and the
gas station- see my attached photo #1 taken with a 400 mm lens. From this slightly
different viewpoint (which I can replicate if I stand where Davidon's photo was taken and
simply lean to my left), I can now see the entire story poles on the southern most edge of the
proposed house. And I still see almost the exact same amount of the northern part of the
proposed house. Now I don't have the sophisticated program that Bassenian Lagoni
Architects has to make the desired visibility calculation, but it appears the percentage of
visibility in my photograph from moving just this small distance, would be significantly
greater than the 21.9% when compared with Davidon's photo. On the other hand, maybe
Bassenian Lagoni doesn't have a sophisticated program - we don't know because Davidon's
letter of February 17th only says that they "...performed a visual analysis of the structure,"
which could mean just about anything. In any case it appears that someone has, clearly,
been disingenuous in not doing a good faith visibility analysis from the "corner."
Proposed Actions. (1) Reanalyze the visibility of the lot 7 house. Given the restrictive
nature of the 'viewing tunnel' in the area of the corner of Los Gatos Blvd and Blossom Hill,
new "common sense" photos should be taken 140 feet farther south along Los Gatos Blvd.
where an essentially unobstructed view of lot 7 is obtained (see my attached photo #2). (2)
1 also think that staff and the Planning Commission should be given the authority and
discretion to select and require alternative, "common sense' viewing platforms so that
every application with this consideration doesn't have to come before the Town Council.
Question #2: Why s this application incom 1P ete?
Town Policy. The HDS &G (page 13) states the following: "Each development project with
the potential for being visible ... from any established viewing platform shall be subject to a
view analysis. ( "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.)" The
above HDS &G policy was reaffirmed by the TC in the passed motion of Vice Mayor McNutt,
4
at the June 15, 2009, meeting. In fact, Vice Mayor McNutt clarified her motion to address
how "potential' percent visibility is to be calculated, which I cite verbatim because of its
importance (her clarification starts at 2:20:40 on the video): "Visibility as written in the
Hillside Guidelines does take in account vegetation and trees that exist on both the subject
property and surrounding properties but (my emphasis) does not include, as it states,
vegetation and trees that would be harmed or eliminated by construction and that the
viewing platforms that are appropriate for analyzing visibility for this property are the 4
traditional viewing platforms and I would be open to also considering Glen Ridge because of
the unique location of this property, but that doesn't mean that would be included in all
further applications."
Documentation and Discussion: This application is incomplete because the required
"potential" visibility study was not done. As clarified by the TC, this visibility screening
calculation is not to include (1) any trees scheduled for removal during construction plus
(2) those trees that will be harmed by construction. Davidon's proposed house will result in
the planned removal of 6 oak trees from lot 7. But almost as importantly, the Town
consulting arborist discusses in Table 1 of her final tree report dated December 10, 2014
(on page 4), how another 2 oak trees (trees #615 and 622) will be severely impacted by
construction. And there are another 4 oaks (trees #602, 613, 614, and 619) that she notes
will be moderate /severally impacted by construction. That is a total of 12 trees that should
be removed from the screening calculations of the proposed lot 7 house. I would hope that
the remaining 14 trees on site that the arborist notes will be low /moderate to moderately
impacted by construction can be saved by closely following Ms. Ellis' recommendations. l
also think that an appropriate threshold, of which trees to exclude from the visibility
calculations, is those trees that are severe or moderate /severely threatened by
construction.
Proposed Actions: (1) Reanalyze the visibility of the proposed lot 7 house from both the
"corner" and from the alternative viewing location on Los Gatos Blvd. after eliminating any
screening provided by the 12 trees that are scheduled to be removed or will be severely or
moderate /severely impacted by construction. (2) Mandate that all suggestions given by the
consulting arborist in Table 2 to protect those trees not slated for removal, be followed. (3)
Reaffirm as per the TC meeting of June 15, 2009, that any tree considered by the consulting
arborist to be severe or moderate /severely impacted by construction, should not be
considered as providing screening when calculating "potential" visibility since the viability
of said trees is clearly in question. Vice Mayor McNutt's motion, which passed 4 -11, to not
count any tree in "potential" visibility calculations if said tree would be harmed or
eliminated by construction is probably a little too general in that many insults can "harm"
oaks. Those trees that are categorized as moderate /severe or severely harmed by
construction seems like a reasonable place to draw the line on which trees to not consider
as providing screening. (4) The consulting arborist, on page 6 of her final tree report, wrote
that "The best treatment of the ground beneath the canopies of native oaks is nothing but
their own natural leaf and twig litter mulch." This recommendation is directly
countermanded by the recorded CC &Rs for the entire Highland's project where on page 24,
6.10, line 18, all homeowners are required as follows: "No weeds, underbrush, or other
unsightly growths shall be permitted to grow or remain upon any lot." But an oak woodland
is not just its trees. Without an intact understory, an oak woodland has no sustainability
because this is the nursery for the next generation of oak trees. The understory, with its
dead leaves, poison oak, fungi, and various animals is vital to the integrity and health of the
oaks. I thus ask Council to require that Davidon modify its homeowner CUR requirements
to forbid disturbance of the oak woodland understory when more that 30 feet from the
main structure. The HDS &G already restricts (page 53) ornamental landscaping to within 30
feet from the primary residence. Further protection is also required for the oak woodland
understory.
Question #3: What constitutes screening
Town Policy. Healthy on -site and healthy neighboring off -site trees in our urban forest "in
the viewscape" of the project, count as screening.
Documentation and Discussion: Policy clarification of "screening" was proposed by
Councilman Pirzynski ( "neighboring" was his word for which trees count) and
Councilwoman McNutt ( "surrounding" was her word for which trees count), and accepted
by a TC vote at the June 15, 2009, meeting that healthy on -site and healthy off -site
neighboring trees in our urban forest "in the viewscape" of the project, do count as
screening (the specific house under appeal at that June 15, 2009, TC meeting is located 1.9
miles [according to Google Earth] from the VP at Los Gatos Blvd and Blossom Hill Road).
Interestingly, before that meeting, staff was not counting any on -site or off -site neighboring
1 The 3 Council members on the TC in 2009 and who were also on the TC when the HDS &G
passed in 2004, all voted in 2009 to accept this interpretation of the HDS &G.
trees as screening. This Council now has another watershed moment in the further
interpretation and implementation of the HDS &G. Are we serious about (quoted from
HDS &G, page 15) "reducing the visual impact of buildings or portions of buildings that can
be seen from the viewing platforms ... to the greatest extent reasonable... "? The very next
sentence in that same section of the HDS &G says that "Providing landscape screening is not
an alternative to reducing building height or selecting a less visible site."
Proposed Actions: (1) Same as in Question #1 above. (2) Council should now go further and
clarify the situation where screening would be provided by healthy on -site or healthy
neighboring -site deciduous native trees. Does time of the year matter when visibility
studies are conducted since some of our hillside tree species (valley oak, blue oak, California
buckeye) are without leaves for 5 or more months of the year? And similar to this situation,
the consulting arborist in her final tree report for lot 7 dated December 10, 2014, discusses
on page 5 how the condition of deciduous oaks can't be accurately evaluated until they are
in "full leaf -out, around mid - June." It is my opinion that such a visibility study should be
restricted to time of year (i.e. winter) when house visibility from the valley floor would be
greatest because that is when some of the screening trees may be without leaves. (3)
Council should reaffirm that planted landscape and a building, both around 1.3 miles from
the application site in question, do not count as screening from a VP, although landscape
screening is already addressed (and discounted) on page 15 of the HDS &G.
Question #4: How should Viewing Platforms be analyzed?
Town Policy: (from HDS &G, page 13) "After installing the story poles, the applicant shall
take photographs (note the pleural tense) of the project from appropriate established
viewing platforms (again, note the pleural tense) that clearly show the story poles... Visual
aids such as photo simulations or three dimensional illustrations and /or a scale model may
be required when it is deemed necessary to fully understand the impacts of a proposed
project"
Documentation and Discussion: At the PC Meeting of August 27th, 2003, Bud Lortz, the
then Director of Community Development, expected that a telephoto lens would be a
reasonable way to assess visibility (transcript page 15, lines 4 -19).
Additionally, while we all think that we know what "visible" means, we can disagree
on how to quantify it. A viewer, with their naked eyes and standing 1.3 miles away, can
probably see little of lot 7 besides the bare outline of the orange netting. But with a
telephoto lens one can easily see through on -site, partial- screening native trees (for
example, my photo #2). The ultimate impact, though, can be very different because while
orange netting will only provide an outline of the house, the final built house could be much
more visible to the naked eye, through the sparse vegetation, because of its mass and bulk
and color. Fortunately, Davidon has been kind enough to illustrate this difference: In my
attached photo #3, we see lot 7 with its story poles in place immediately adjacent to a
finished house on neighboring lot 6 (and for which no visibility analysis was conductedz).
The completed house on lot 6 is readily visible to the naked eye when standing along Los
Gatos Blvd. So, what would be the result if we now calculated the visibility percentage of
this house on lot 6 from this alternative VP? 1 suspect that very different numbers would be
obtained if one were dealing with out -of -focus story poles and orange netting vs. an actual
full scale mock up of the house.
Proposed Actions: (1) Council should clarify during what season visibility studies should be
conducted if screening is to be provided by any on -site or off -site neighboring deciduous
trees. If all screening trees are "evergreen', such as our most common hillside tree - coastal
live oak, then a visibility analysis could be done at any time of the year. (2) Require a more
realistic house mock up than just story poles when trying to assess visibility, at a significant
distance, from the valley floor. This is most important in two situations: (a) where screening
is provided by trees with more open canopies because story poles will only give a partial
impression of how visible the completed house would be and (b) where backlighting is
significant because such will readily outline the completed house. I suspect that both staff
and Davidon would appreciate these clarifications now because guidance on both situations
(1) and (2) above will be pertinent to Highland's upcoming lot 10 application. We see in my
attached photo #4 of the story poles presently on lot 10, that this proposed house has both
open- canopy screening trees and significant backlighting. Should a house be built there, it
will be visible from VP #2 (Los Gatos - Almaden Road/ Selinda Way) given its mass and color.
Such clarification and direction from the TC now could prevent an appeal later in the
process and save everyone time and money.
2 Using the narrow definition of a Viewing Platform as applied by Davidon to lot 7, lot 6
would have zero % visibility since the house is entirely blocked by the Chevron gas station.
Where is the common sense in that? How was staff not aware of the guidelines established
by the TC at their June 15, 2009, meeting, when lot 6 was considered at the DRC on July 3,
2012 (S -12 -032)?
0
Alternative building options The applicant presented visibility calculations at the PC
meeting of March 11, 2015, for 4 alternative houses. All alternatives were claimed to be
more visible than the proposed house supposedly implying that the original plan should,
therefore, be approved. It is not surprising that the alternatives are more visible than the
original proposal since the alternatives are less linear, of unknown square footage, and
located more in the "vision tunnel" created by the planted trees and the gas station. Plus
Davidon's analyses suffer the same shortfalls as expressed above re the visibility
calculations done for the proposed house: the story poles and netting are out of focus and
not magnified enough to accurately see. Additionally the applicant does not discuss the
methodology used in making their calculations. I'm sorry that the applicants may not be
able to maximize their profit but to say as Mr. Abbs does in his letter of February 17, 2015,
that a smaller house is not "compatible with the neighborhood ", undoubtedly made George
Orwell smile.
1 appreciate that staff normally recommends to Council the same decision, on a project,
made by the PC. It seems to me that given all of the new information presented here, the fact
that established Town precedents were ignored, and the fact the application is incomplete,
that had the PC received this above information from staff, their decision at the March 11,
2015, meeting would have been different. It is not too late for staff to modify their
recommendation to the Town Council.
Sincerely,
Dave Weissman
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