Attachment 14Date: May 26, 2015
To: Los Gatos Town Council
From: Shawn Wang — Property Owner and Chris Kummerer- CKA Architects
Los Gatos Town Council,
The appeal filed by Ms. Quintana was accompanied by a letter with more than 53 different
assertions. Below is an itemized response to each individual point. The appeal was written
in a 'stream of consciousness' style with assertions that are wide ranging in their scope.
Many of the points could apply to any project that the Planning Commission reviews (i.e.
staff prepared insufficient information, Commissioners misunderstood facts, etc..). Other
objections are based upon her personal preferences (i.e. desire for a zoning change).
Lastly, many objections stem from not acknowledging the fact that the Zoning Ordinance
allows for Conditional Uses when the approving body can make the findings. While Ms.
Quintana is well intentioned and should be lauded for her involvement in the community,
her obvious desire to derail this project by any means has resulted in an appeal that is
poorly crafted, confusing and often contradictory.
Below are direct responses to the concerns outlined in Ms. Quintana's letter of March 7,
2015 regarding the approval of a new development at 258 Union Avenue. Each of Ms.
Quintana's comments is listed with a number and our response is directly below in bold
type.
Sincerely,
Shawn Wang and Chris Kummerer
Planning Commission Error or Abuse of Discretion:
1. The Commission approved a use that is inconsistent with the underlying General
Plan Designation, Zoning district and with the pattern of residential development
within the vicinity of the project, therefore the Planning Commission made an error
by not requiring an amendment to the GP Land Use Map and the Zoning Map.
The project is consistent with the current General plan designation, Zoning district
and as well as the pattern of existing residential development surrounding the lot. The
Zoning Ordinance clearly allows for application of a use permit for Residential
Condominiums on properties zoned C -1. Note that there is a neighboring property
(Downing Court) that is also zoned C -1 that has been developed with residential units.
The 258 Union project is not unique within the zoning district or even within the
neighborhood.
2. The Commission decision was based on incorrect assumptions regarding the
reasoning behind Council's action to uphold the appeal and Council's intent to
remand to the Commission for reconsideration.
The Commission's decision was consistent with Council's instructions to reconsider
the project using the available Ordinances, General Plan and Use Permit Findings.
ATTACHMENT 1 4
The Commissioners discussed the Council's direction extensively during deliberations
at the two ensuing Planning Commission meetings. The deliberation was lengthy,
considered and involved thorough questioning of staff and the Town Attorney.
3. The Commission based its decision on inadequate information
The Commission made its decision based upon adequate information from all sides,
including Staff and neighbors. The project has been reviewed by the Staff, Technical
Committee (2x), CADC Committee, Consulting Architect (2x), Environmental
Consultant, Planning Commission (3x) and Town Council (lx) since 2012. Adequate
time and effort has been devoted to a thorough study of 'information' about the 258
Union Project.
4. As approved, the underlying General Plan designation and Zoning designation no
longer reflect the Town's intended long term use for the site.
The Zoning Ordinance clearly allows for application of a use permit for Residential
Condominiums on properties zoned C -1. Note that there is a neighboring property
(Downing Court) that is also zoned C -1 that has been developed with residential units.
The 258 Union project is not unique within the zoning district or even within the
neighborhood.
5. The Planning Commissions' findings for the approval of the CUP are inadequate.
The commission made its decision on adequate information from all sides, including
staff and neighbors. The Commission discussed the (5) applicable CUP findings more
than once during deliberations. It is clear that the approved residential use will not
impair the integrity of the zone.
6. The Planning Commission made an additional error by approving major changes
to the project without additional Commission or Town Council review or public
input. This compromises the transparency of the Town's approval process.
The Commission made its decision to approve the project with modifications on three
rear units by directing the Applicant to work with Staff and within the applicable
regulations. The act of reducing the rear units was made as a compromise to appeal to
the concerns of the neighbors. This type of decision is within the authority of the
Planning Commission.
7. While the Commission's intent was to decrease impacts to the adjacent neighbors,
the changes will result in major changes to the site plan and architecture that may not
achieve the intended goal, and /or may create different impacts.
The Commission made its decision to approve the project with modifications on three
units by directing the Applicant to work with Staff and within the applicable
regulations. The act of reducing the rear units was made as a compromise to appeal to
the concerns of the neighbors. This type of decision is within the authority of the
Planning Commission.
8. Since, it is unlikely the applicant will submit revised plans within the 10 day
appeal period, it is necessary to appeal the Commission's decision to keep the
process open and transparent.
The Planning Commission directed the Applicant to work with Staff to revise the three
rear units to single story. All projects are revised during the building permit phase
under the guidance of the Staff for further Zoning and Building code compliance. The
Town has entrusted Staff with the authority to regulate based upon the ordinances and
codes.
Consistency of General Plan designation, zoning district and proposed use:
9. Maintaining the current GP designation and Zoning district is inconsistent with the
intent of the General Plan to reflect the Town's long term land use goals. Even if the
existing General Plan designation and Zoning district are consistent with each other
they are not consistent with the land use approved by the Commission. While the
proposed land use may be consistent with numerous General Plan goals and policies
maintaining the underlying General Plan designation and zoning are inconsistent
with numerous goals and policies of the General Plan as well.
The project is consistent with the current General plan designation, Zoning district
and as well as the pattern of existing residential development surrounding the lot. The
Zoning Ordinance clearly allows for application of a use permit for Residential
Condominiums on properties zoned C -1. Note that there is a neighboring property
(Downing Court) that is also zoned C -1 that has been developed with residential units.
The 258 Union project is not unique within the zoning district or even within the
neighborhood. Furthermore, the project helps the Town meet many General Plan
Goals and Policies and helps to provide units to meet goals outlined in Los Gatos
Housing Element.
10. A residential use is not included in the General Plan description for
Neighborhood Commercial.
The Zoning Ordinance clearly allows for application of a use permit for Residential
Condominiums on properties zoned C -1. By incorporating the Conditional Use
Table — the Town has acknowledged that flexibility is required in zoning matters to
permit other uses which might be compatible with ordinarily allowed uses.
11. Neither the intent of the C -1 zoning or the list of permitted uses in the C -I zone
are consistent with including a 100% residential project.
The Zoning Ordinance clearly allows for application of a use permit for Residential
Condominiums on properties zoned C -1. By incorporating the Conditional Use
Table — the Town has acknowledged that flexibility is required in zoning matters to
permit other uses which might be compatible with ordinarily allowed uses. The
Conditional Use Table does not forbid construction of 100% of the conditional use.
12. The Table of Conditional Uses lists residential condos as a potentially allowed
use in the C -1 if a CUP is approved. Residential in the C -1 is an allowed use,
however, it is not a use permitted by right. In addition the Town has interpreted
residential condo to mean a unit in a multiple- unit structure so it is not clear if the
CUP table for residential condos should still apply
It's clear that the Commission found the Conditional Use Permit is applicable in
approving this project. California Law has affirmed that a Condominium is a `type
of ownership' and not a `type of building' since 1985. The Town Zoning Ordinance
refers to Title 6 of the State Civil Code in its definition of condominium.
13. The CUP is a discretionary approval for uses that may be allowed if listed in the
CUP table. That does not make it a use that is permitted by right, nor does the listing
of the use in the Table require the Commission to approve the use, even if all the
conditions for approval of h CUP can be met, which is not the case for 258 Union.
The Commission found the Conditional Use Permit findings can be made in
approving this project. The Zoning Ordinance clearly allows for application of a
use permit for Residential Condominiums on properties zoned C -1. The Town
defines `Conditional Use Permit' as an authorization allowing a particular use at a
specific location. By incorporating the Conditional Use Table — the Town has
acknowledged that flexibility is required in zoning matters to permit other uses
which might be compatible with ordinarily allowed uses.
14. Nothing in the Code or General Plan states or indicates that the use of a CUP is
intended to eliminate all commercial use and substitute a 100% non - commercial use
in a C- l zone.
The Conditional Use Table does not forbid construction of 100% of the conditional
use.
15. In addition, there is nothing in the Code to regulate the density or other
development standards and regulations for a solely residential project in a
commercial zone.
The C -1 zone has development regulations outlined in the Zoning Ordinance.
The Use Permit findings have been established for the purpose of evaluating
Use Permit Applications.
16. Research of past projects would likely find that residential projects approved with
a CUP in a commercial zone did not substitute a residential use for the commercial
use but rather allowed a residential use along with a commercial use within the same
development application.
This comment is speculative. The residential project on neighboring Downing
Court (zoned C -1) is entirely residential.
17. The project does not meet the findings necessary to approve a CUP. (also be
below Required Findings to Approve a CUP Cannot be Made.)
The Planning Commission is the deciding body and found the project meets the
findings to grant the CUP.
18. The proposed project does not adhere to the standards and regulations for the
underlying C -I designation. Instead, the proposed project cherry picks standards and
regulations from various zoning districts.
The project is consistent with the standards set forth in the C -1 designation. Staff
has been consistently checking compliance with the zoning ordinance for 3+ years.
19. While the applicant has stated that the project was designed to meet the
requirements of the R -M zone, the R -M zoning setback standards were not
consistently applied If the project was designed with the R -M in mind why not
change the GP and Zoning to match the project and actually use the R -M standards
and regulations?
The Applicant has not asked for rezoning. The project was designed by following
the C -1 regulations with suggestion from Staff to target density recommendations
found in R -M zones.
20. There is ample evidence in the record to support a conclusion that the C -I zoning
is no longer appropriate for this site. There is also ample evidence that residential is
the preferred use going into the future, (also see New I reformation below on the
question of Spot Zoning)
Residential is one of the Conditional Uses permitted under C -1 zoning. The
Appellant just stated above that residential usage is inconsistent with the
neighborhood and now admitted that residential is preferred.
21. Several Commission members indicated they could not support amending the GP
or zoning, at least in part, because requiring the project to go through these additional
processes would not result in different project and it would not be an example of
good governance to require a change in process after 5 hearings.
This project does not require changing zoning designation for this site. The
Conditional Use Permit is a legal mechanism outlined in the Zoning Ordinance.
22. This assumption is incorrect on several levels.
o R -1, R -D and R -M setback standards and regulation, while generally similar to
each other, differ from those of the C -1 zone. Therefore, if the GP designation and
Zoning district were amended the project site plan would necessarily be different
This project doesn't require the GP designation or zoning to be amended. The
Applicant has not asked for rezoning. The project was designed by following the C-
1 regulations with suggestion from Staff to target density recommendations found
in R -M zones.
23. The different setback standards and regulations required by a residential zoning
district would impose addition restraints to the site layout, but, alternatively, could
provide additional opportunities. This is particularly the case with an R -M zoning
which, along within setbacks that apply to the parcel as a whole, also regulates the
position of, and the relationships between structures on the lot.
This project does not require changing zoning designation for this site. The
Conditional Use Permit is a legal mechanism outlined in the Zoning Ordinance.
24. There may have been 5 hearings (4 and 1 continuance) but there were also at least
3 revisions of the original project.
Each revision was intended to make the project better.
25. In any case, the Commission's decision should not consider whether the final
project would be different, whether changes imposed by the Commission would
affect the developer's bottom line, or whether requiring a GP Zoning Map change
would delay the project. Nor should the applicant's choice to submit the project using
what they hoped would be the quickest path to approval, even if staff supports the
applicant's choice be considered.'
This project does not require changing zoning designation for this site. The
Conditional Use Permit is a legal mechanism outlined in the Zoning Ordinance.
The guidance and support by Staff has been valuable and is reflective of the
Town's investment in the Planning Department. Three years of the work of the
Town Planning Staff and the consideration /approval of the Planning Commission
should not be discounted.
Transcript and Comprehensive Information is Not Available:
26. The Planning Commission was not provided a transcript of the Town Council's
March 17, 2014, hearing on the appeal of the Planning Commission's decision, nor
did staff provide the Commission with a comprehensive summary of Council's
discussion and action.
The Planning Commission followed instructions from the Town Council,
reconsidered the project, and approved the project
27. Nor was the Commission provided with comprehensive information necessary to
clearly understanding the project. (See " New Information" below)
The Planning Commission found there was enough information to support their
decision to approve this project. The Commission made its decision based upon
adequate information from all sides, including staff and neighbors. The project has
been reviewed by the Staff, Technical Committee (2x), CADC Committee,
Consulting Architect (2x), Environmental Consultant, Planning Commission (3x)
and Town Council (Ix) since 2012. Adequate time and effort has been devoted to a
thorough study of `information' about the 258 Union Project.
All Commissioners Not on the Same Page:
28. All members of the Commission did not base their decision on the same
information. Clearly some members of the Commission watched the video March 17,
2015, Council Hearing while others did not.
The members of the Planning Commission have had three opportunities to see the
project over three years and gather information in each case. Each commission
member has their own personal way of understanding and preparing for a decision
on a project. Planning Commission decisions can always be based on slightly
different information as various members tour the sites in different way and
different times, choose to read various documents etc.... If this argument was valid,
all projects in the Town would be appealed.
29. Several members of the Commission appeared to misunderstand the basis of
Council's decision to uphold the applicant's appeal and remand back to the
Commission for reconsideration.
The Planning Commission discussed the Council's decision to remand during their
deliberations.
Consequently their decision was based on incorrect assumptions, including the following_
Incorrect: The assumption that Council upheld the applicant's appeal based on
Commission error.
30. Fact: Council specifically determined that there was no Commission error.
This assumption itself was not true. It was never stated that the most recent
Planning Commission decision was based upon `discussions of the basis for the
Applicant's appeal to Council'. Instead, the Planning Commission voted to approve
the project based upon the findings of the Conditional Use Permit and the provisions
of the Zoning Ordinance / General Plan.
Incorrect: The assumption that Council had directed the applicant to submit the plans as
revised to the Commission.
31. Fact: The Council remanded the project based on new information (new plans
submitted by the applicant) without specific direction to the applicant.
32. Fact: Council's direction was for the Planning Commission to reconsider the
revised project within the context of all existing General Plan, Town Policies,
Ordinances, etc., that are currently available to regulate detached single family units
developed within a single lot.
The project was redesigned to be improved at each step of the process. This includes
for the City Council Appeal and again for the Planning Commission Hearing ( #2).
The Applicant did not resubmit the same plans from the Council Hearing to the
Planning Commission.
The Commission did not follow Council Direction.
33. 1 interpreted Council's intent to broaden the Commission's scope of review beyond
the Commission's primarily narrower focus on the definition and legality of detached
condominiums and the applicability of a CUP for this project.1
34. 1 interpret the Council's direction to the Commission to be:
35. First, identify all existing Town regulations and policies applicable to regulation of
multi - family developments on a single lot
36. Second, reconsider the proposed project within framework of all the regulations
identified in the first step.
37. Third, use the Commission discretion to deny, approve or modify the project based
on the results of steps one and two.
The Planning Commission understood Council's instruction well, followed the
instruction, reconsidered this project and approved it based upon the existing codes.
Required Findings for approval of a CUP cannot be made:
38. The Commission erred in finding the proposed residential use does not impair the
integrity or character of the C -1 zone, (required finding 2 of Sec. 29.20.190)
The Commission found that the project does not impair the integrity or character of
the zone. It is the responsibility of the Planning Commission to make these findings,
not the public, as stated in the Zoning Ordinance.
39. The Commission found the following:
"The proposed uses will not impair the integrity and character of the zone. The project
density will provide a transition between the townhouses to the North and the duplexes
to the South, will fit into the existing streetscape, and will improve the appearance of
the site which has been vacant since 2001 "2.
This finding does not address whether the project impairs the integrity of the
underlying C -I zone. Rather it address the compatibility of the proposed residential
project with other residential uses and residential zones in the project's vicinity
The Commission found that the project does not impair the integrity or character of
the zone.
40. There is insufficient evidence in the record to support finding that a 100%
residential use does not impair the integrity of the underlying C -1 Zone. Rather,
precluding all further commercial use doesn't just impair the integrity of the C -1, it will
totally destroy the integrity of the C -1 zone.
The Commission found that the project does not impair the integrity or character of
the zone. The Conditional Use Table does not forbid construction of 100% of the
conditional use.
Spot Zoning:
41. The Planning Commission was only provided with a simplified explanation of
"spot zoning and how spot zoning may apply to this site, whether it retains its current
C -1 zoning or is amended to a residential zone.
The Planning Staff had a discussion with the Planning Commission as a part of
their deliberations and as a part of the hearing regarding the concept of `spot
zoning'.
Project information and comparisons:
42. Project data and information may have been available; however, it was not
reasonably available, easily accessible or available in an easily understandable format.
All data and information were available to the public, just like all other projects in
the town.
The following is a list of new information pertinent to understanding the proiect that was
not provided to the Commission in an easily accessible and easily understood format:
43. The Planning Commission did not have a list or summary of existing Town
regulations and policies, etc., applicable to the regulation of detached single family
units developed within a single parcel, as suggest by the Council.
The Planning Commission was provided information by Applicant and by the
Applicant's attorney about the legal detached condo format. Lists of Town policies
and regulations are available to Planning Commission members (and the public)
upon their request and online.
44. The Planning Commission was not provided with a complete comparison of
differences between the various revisions of the project. Since changes were not
identified by a "cloud" it is very time consuming to determine this information
The Planning Commission was provided a clear comparison in the staff report about
the changes the Applicant has made. Applicant also showed extensive project history
during the meeting. Clouding the drawings from initial versions is not practical when
the project has changed extensively many times over three years. ( one giant cloud
would surround the property- as every unit location, layout, height and width has
changed).
45. A list or summary of all existing applicable Town regulation compiled from the
General Plan, Zoning Code, required findings, etc., that can be used to regulate
detached single family residential within a single parcel.
The legal basis for detached condo format is outlined in state law, not town codes.
The State laws and Town codes are available to Planning Commission by request of
Staff and online. The Staff Reports prepared for each hearing also addressed
pertinent issues.
46. A list of all pertinent text, goals and policies in the 2020 General Plan.
Planning Commission (and public) has access to the 2020 General Plan.
47. Text for the most applicable sections of the Zoning Code and General Plan
Planning Commission has access to the Zoning Code and General Plan. The Staff
Reports prepared for each hearing also addressed pertinent issues.
48. Figures comparing GP land use, zoning districts, existing land use, and existing
development patterns in the area.
As a part of project continuation, Appeal and Approval process, the Planning
Commission has the ability to ask Staff for desired comparisons that they find
helpful.
49. Table comparing zoning standards for R -1:8, R -D and R -M and C -1 districts
As a part of project continuation, Appeal and Approval process, the Planning
Commission has the ability to ask Staff for desired comparisons that they find
helpful.
50. Table showing the maximum possible units possible under each residential
zoning districts identified above when applied to 258 Union.
This was discussed during the meeting and planning commission had such
information before making the decision. As a part of project continuation, Appeal
and Approval process, the Planning Commission has the ability to ask Staff for
desired comparisons that they find helpful.
51. Table comparing condominium projects mentioned by staff and the applicant
(Forest Drive, Town Terrace, Hubble and Los Gatos Commons).
This information was provided in the meeting multiple times and planning
commission had such information before making decision. As a part of project
continuation, Appeal and Approval process, the Planning Commission has the
ability to ask Staff for desired comparisons that they find helpful.
The Planning Commission did not have discretion to modify or address the followin
policies or issues that is vested in the Town Council.
52. The Commission approved this project using a CUP. This is the first project
approved in Los Gatos for a 100% residential (condo) project on a site with a
commercial General Plan and use designation and a commercial zoning.
The project is in consistent with the current general plan designation, zoning
district and as well as the pattern of residential development around the lot. The
Commission found the Conditional Use Permit findings can be made in approving
this project. The Zoning Ordinance clearly allows for application of a use permit
for Residential Condominiums on properties zoned C -1. The Town defines
`Conditional Use Permit' as an authorization allowing a particular use at a specific
location.
53. The Commission has discretion to interpret existing policy. However, the Planning
Commission's action in this case went beyond interpreting policy and moved into the
realm of setting a new policy direction. Determining new policy or a new policy
direction is vested with the Town Council.
There is not a new interpretation being made. The Conditional Use table is a part of
the Zoning Ordinance and has likely been for many years. The approval of
Conditional uses has been made in the past and will continue to be made until / unless
the Zoning Ordinance is changed.
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