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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. This Page Intentionally Left Blank