Attachment 06 and 07TOWN OF LOS GATOS ITEM NO: 2
DESK ITEM PLANNING COMMISSION STAFF REPORT
Meeting Date: June 8, 2016
PREPARED BY:
APPLICATION NO.:
LOCATION:
APPLICANT/
CONT ACT PERSON:
PROPERTY OWNER:
APPLICATION SUMMARY:
EXHIBITS:
Erin Walters, Associate Planner
ewalters@losgato sca.go v
Architecture and Site Application S-14-056
18151 Overlook Road (Located on the north side of Overlook
Road, west ofWissahickon Avenue)
Urban West, LLC, Nicole King
Ronald M . Tate
Requesting approval to demolish an existing single-family
residence, to construct a new single-family residence, and obtain
a grading permit on property zoned R-1 : 8. APN 510-40-146.
DEEMED COMPLETE: March 11 , 2016
FINAL DATE TO TAKE ACTION: September 11, 2016
Previously received with April 13, 2016 Staff Report:
1. Location Map
2. Findings
3. Recommended Conditions of Approval
4. Project Data Sheet
5. Applicant's Letters of Justification, received August 14 , 2014
and February 17, 2016
6. Town's Consulting Arborist Report , received June 1, 2015
7 . Amended Town 's Consulting Arborist Report, received
September 21, 2015
8. Original Development Plans (elevations only), received
August 14 , 2014 and reviewed by the Town's Consulting
Architect
9. Town's Consulting Architect report, received April 29, 2015
10 . Amended Town's Consulting Architect Report, received
August 20, 2015
11. Amended Town's Consulting Architect Report, received
December 11, 2015
12. Email to Staff from Town 's Consulting Architect, received
January 6, 2016
13. Applicant's Outreach Letter to Neighbors, received August 5 ,
2015
14. Public Comments received by 11 :00 a.m. April 7, 2016
15. Colors and Materials, received January 6 , 2016
16. Development Plans, received March 11 , 2016
ATTACHMENT 6
Planning Commission Staff Report -Page 2 of 2
18151 Overlook Road/S-14-056
June 8, 2016
REMARKS:
Previously received with April 13, 2016 Desk Item:
17. Comments received from 11:01 a.m. on April 8 , 2016 to
11 :00 a.m. on April 13, 2016
18. Applicant 's Letter, Proposed Landscape Screening Plan, and
Photo Simulations of the Neighbor's View with Proposed
Screening, received April 12, 2016
19. Applicant's email correspondence with Neighbors, received
April 12, 2016 and April 13 , 2016
Previously received with May 25, 2016 Staff Report:
No exhibits
Received with June 8, 2016 Staff Report:
20. Letters from Applicant, received May 26, 2016 (three pages)
and May 27 , 2016 (11 pages)
21. Email to Neighbor, received April 29, 2016 (one page)
22. Applicant's Arborist Report, received May 26, 2016 (five
pages)
23. Landscape Privacy Screening Options, received May 26,
2016 (two pages)
24. Email from Neighbor, received May 25 , 2016 (three pages)
25. Photographs of Neighbor's View, received May 27 , 2016
(three pages)
26. Currently proposed Development Plans, received April 29,
2016 (12 pages)
Received with thi s Desk Item Report:
27. Comment received from 11 :01 a.m. on June 2 , 2016 to
11 :00 a.m. on June 8 , 2016
The attached public comment (Exhibit 27) was received after di stribution of the staff report.
Prepared by:
Erin Walters
Associate Planner
JP:EW:cg
pproved by:
Joel Paulson, AICP
Community Development Director
N :\DE V\PC REPORT S\2 01 6\0 verl oo kRd 181 5 1_6-8-I 6. A&S Des k ltem.docx
From: Rita Kelly [mailto:ritakellyl@comcast.net]
sent: Tuesday, June 07, 2016 12:11 PM
To: Erin M. Walters
Cc: David Kelly
Subject: Re: 18151 Overlook Road Los Gatos Kelly Letter
Erin,
This letter is in response to Mr. Tate's letter dated May 261h, 2016.
RECE\VED .
s--14 -0£?&
JUN O 7 2016
TOWN OF LOS GATOS
PLANNING DIVISION
We would like to convey to the town and Mr. Tate that we were not trying to make him feel
personally attacked. In fact, I enjoyed meeting Mr. Tate and found his life story to be admirable and
interesting . Unfortunately, we have felt personally attacked ever since the two large trees were
removed on the Overlook property and the story poles were erected destroying our privacy.
We are very disappointed that we could not come to terms with Urban West but we are exhausted
from this whole process. Based on the way it was handled by Urban West, there was no way for us
to come to agreement and it seemed they were not really serious in trying to get the privacy trees
put in our yard. This is demonstrated by the legal document that was given to us placing all the
burden of doing the work and liability on us and Mr. Tate's continued advice that our best option was
to let them put the privacy screen on the Overlook property .
In addition, we felt they were using a hard line approach on us by demanding that we complete tasks
based on a timeline they needed to meet. And they put additional pressure on us by stating that the
Town of Los Gatos was requesting that we complete tasks by defined dates as demonstrated in a
May 23rd email from Kelly Mozumber of Urban West where she wrote "The Town is requesting a
response from you before Friday regarding this viewing of the proposed trees." We later
found out The Town had not made such a request.
In addition to the barrage of emails that we were re ce iving starting Monday night (May 23rd) and
Tuesday morning, Urban West was calling us on our cell phones and even called our arborist
insisting that we look at the tree s---most of the calls were before 9 AM on Tuesday the 23 rd. I was
on the phone with my parents discussing my father's impending surgery and had just got my family
off to school and I was trying to get prepared for a meeting that I had scheduled for 11 AM . It was
very stressful and I felt like I was being a harassed.
Still I was trying to make things work and I had just set a possible time with my arborist when I
received Mr. Tate's email stating the following "These are the trees will be planting on our side of
the fence in the event that you find them not to be acceptable. We have been very
accommodating, understanding and patient to your requested privacy screening. However,
every day of the delay of the Town approval of the new home is very costly. I need your
approval or disapproval of the proposed trees by Thursday."
It should also be noted that we were not given any notification on the week before that we needed to
do this and in fact I had to inquire if their arborist had inspected the trees. (We were told he
inspected them on Friday May 201h and we rece ived his report on the afternoon of Tuesday May 23rd
attached to Mr. Tate's ultimatum email referenced above .)
After I received this email, I decided it was futile to continue. The whole process has placed undo
stress and work on us and it is not addressing the real problem that the house is too big.
EXHIBIT 2 7
Mr. Tate was offended that I referred to the project as a "flip" and I apologize if I used the term
improperly. He is rebuilding a house, that he does not intend to live in, for a profit. And please note
that I am not opposed to him profiting from a rebuild or flip. I am opposed to him building a house
that diminishes the value of my house by severely impacting my privacy and potentially changing the
character of my neighborhood by setting the precedent that it is okay to build homes that tower over
their neighbor's yards.
In addition, he also states that it would be improbable that the new owners would remove the privacy
trees and I would agree except that we just experienced such an improbable event when Urban
West removed the two large privacy trees that once shielded our yard .
Mr. Tate also mentioned that we signed a form letter saying we received the plans for the Overlook
property. This is true and my husband called Lance Tate to discuss what the plans meant since they
were printed on an 8 "x11 " sheet and were impossible to read. Lance left my husband with the
impression that the new house was not going to be any taller than the existing structure and so we
were very excited to have a new house behind us. It was not until the trees came down and the
story poles went up that our excitement turned to disappointment and stress.
We are opposed to the plans for this house and the impact it will have on us and our neighborhood.
Thank you,
Rita and David Kelly
LOS GATOS PLANNING COMMISSION 6/8/2016
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A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
Mary Badame, Chair
D. Michael Kane, Vice Chair
Kendra Burch
Melanie Hanssen
Matthew Hudes
Tom O’Donnell
Town Manager: Laurel Prevetti
Community Development
Director:
Joel Paulson
Town Attorney: Robert Schultz
Transcribed by: Vicki L. Blandin
(510) 337-1558
ATTACHMENT 7
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P R O C E E D I N G S:
CHAIR BADAME: Item 2 is our public hearing
that’s continued from May 25th of 2016, 18151 Overlook Road,
Architecture and Site Application S-14-056, requesting
approval to demolish an existing single-family residence,
construct a new single-family residence, and obtain a
Grading Permit on property zoned R-1:8, APN 510-40-146.
May I have a show of hands from Commissioners who
have visited the site? Any disclosures from Commissioners?
Commissioner Hudes.
COMMISSIONER HUDES: When I visited the site at 9
Chestnut I had incidental communications, but did not
discuss the project.
COUNCIL MEMBER JENSEN: Thank you, Commissioner
Hudes. I too had incidental contact with Rita Kelly
yesterday while viewing the project from Chestnut Avenue.
Ms. Walters, I understand you’re going to be
providing the Staff Report this evening.
ERIN WALTERS: Yes, good evening, Planning
Commissioners.
The Planning Commission considered the proposed
application on April 13th and concerns were raised at the
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meeting that included height, building mass and privacy.
The application was continued to May 25th in order for the
Applicant to address two main points: lowering the building
height, and addressing the rear neighbor’s privacy
concerns.
To address the Commission’s height concerns the
Applicant has proposed lowering the finished floor by 6”;
the proposed building height has been reduced from 27’3” to
27’9”.
To address privacy concerns the Applicant has
proposed lowering the second floor rear bedroom window by
8”. The two proposed changes would result in a reduction of
the window height of 14”, as described in the Applicant’s
architect’s letter in Exhibit 20.
To further address privacy concerns the Applicant
and the rear neighbor at 9 Chestnut have met and had
communication to discuss the landscape screening along the
rear fence. The Applicant has proposed to pay for the
planting and maintenance of the screening trees to be
planted along the rear neighbor’s fence, so that the
neighbor could be in control of the privacy screening.
The rear neighbor has provided a letter that’s
found in Exhibit 24 describing concerns with the proposed
legal ramifications of installing the trees on their
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property and communication with the Applicant. The rear
neighbor continues to have concerns with the overall
building height and mass, as well as privacy impacts to
their property. The modified development plans include
planting the screening trees on the subject property due to
the current concerns expressed by the rear neighbor, and
this Desk Item tonight is further correspondence from the
rear neighbor.
That concludes Staff’s presentation. I’m happy to
answer questions. Thank you.
CHAIR BADAME: Thank you, Ms. Walters. Questions?
Vice Chair Kane.
VICE CHAIR KANE: This may be a Denzel Washington
question. Explain it to me like I’m a six year old. What is
the significance of lowering a window? If I’m looking at a
wall and there’s a window in it, and the window gets lower,
that just makes it easier for me to look down. I know we’ve
had occasions to raise the window up so that folks
couldn’t… What’s the significance of lowering the window?
ERIN WALTERS: The architect’s exhibit and letter
shows that it’s just a decreased line of sight to the
property in the rear.
VICE CHAIR KANE: You’re not reaching Denzel
Washington yet. I can look down if the window is lowered.
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If it’s raised, then all I see is sky or the top of the
roof.
JOEL PAULSON: That is true. I think the
Applicant’s architect can provide further justification,
but the idea was to lower the window. You’re absolutely
correct, however, depending on the height of that top sill—
and I’m not sure if Ms. Walters knows that—you get to a
position where it’s lowered, but you still, depending on
the height of the height, will be able to see through
there; it does inevitably (inaudible).
VICE CHAIR KANE: A short person could see better
if the window is lowered.
JOEL PAULSON: Correct.
VICE CHAIR KANE: I don’t understand it.
JOEL PAULSON: True, yeah.
VICE CHAIR KANE: I mean we’ve requested
rectangular windows at an eye level to provide light, but
it seemed to be so important, it’s over and over and over,
we lowered the windows, and I don’t know what that
improves.
I have a second question, if I may?
CHAIR BADAME: Yes, Vice Chair Kane.
VICE CHAIR KANE: So the windows have been
lowered and that’s significant, I don't know why, and the
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building has been lowered 6”, and Staff has for the second
time recommended denial. Can I assume that in your view the
6” was not enough, or should I just say why are you still
recommending denial?
ERIN WALTERS: Staff feels that there still are
privacy concerns between the two neighbors and that it’s
not adequately addressed.
VICE CHAIR KANE: Two neighbors. All right, thank
you.
CHAIR BADAME: Ms. Walters, does that mean that
there are also mass and scale issues that are related to
the privacy issue? Because I read the Staff Report and
that’s how I interpreted it to be.
ERIN WALTERS: Per the first Staff Report that
was written, there were concerns regarding mass and scale,
and those continue to be concerns.
CHAIR BADAME: And I do have a question, if I
may? I’ll get to you next.
I’m looking at the neighborhood analysis on page
4 of the Staff Report dated April 13, 2016, and did that
neighborhood analysis include the use of cellars in the
immediate neighborhood?
ERIN WALTERS: It did not.
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CHAIR BADAME: All right, that being said, does
the existing home at 18151 Overlook have a cellar?
ERIN WALTERS: The existing home does not.
CHAIR BADAME: Okay. So that leads to my next
question. I just want to confirm something. As I read this,
the Applicant proposes a 2,326 square foot home, including
a cellar of 819 square feet, for combined livable space of
3,145 square feet, almost double the existing home, is that
correct?
ERIN WALTERS: That is correct.
CHAIR BADAME: Thank you. Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I also read it to say it
wasn’t compatible with the neighbors. Is that also correct,
in your view?
ERIN WALTERS: In Staff’s view (nods head yes).
COMMISSIONER O'DONNELL: Yes. Thank you.
CHAIR BADAME: Commissioner Hanssen.
COMMISSIONER HANSSEN: I had a couple questions.
First of all, at this moment in time I remember at the
first hearing we had a number of neighbors speak, but I
didn’t see anything in our packet. Are any other neighbors
beyond the Kellys dialoguing relative to not finding this
acceptable?
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ERIN WALTERS: Since the last meeting we’ve only
heard from the Kellys.
CHAIR BADAME: Then can you remind me of the
difference in the current height of the building and the
proposed height minus the reduction of 6”? What is the
total difference between the current height without any
development and the current proposal?
ERIN WALTERS: The existing height is 25’, and
then the proposed with the modification is 27’9”, so it’s
2”9”.
COMMISSIONER HANSSEN: 2’9” more than that. Then
my third question is I’m relatively new to the Commission
from last year, but this can’t be the first time we’ve ever
had an issue with privacy screening being a suggested
solution for dealing with privacy, and so it seemed to me
that looking at the Applicant’s comments, and we’ll hear
more, and the neighbor, that putting some privacy screening
in the back would be a solution, but there was some
disagreement about how to accomplish it.
So my question is—and maybe this is a legal
question or maybe it’s just a precedent question—when we’ve
had similar issues like this, would it be customary to
plant on the other side of the fence, or would it be
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customary for the applicant to take that on their side?
That struck me as maybe a bit odd, but I don't know.
ERIN WALTERS: Yes, we haven’t seen where an
applicant has planted on the adjacent property. They’ve
always planted on their property to address privacy through
landscape screening.
COMMISSIONER HANSSEN: And have we done that
successfully over a period of time? I know there was a
concern about pulling the trees out over some amount of
time, and have we been able to secure that those stay in
place? Do we write in a Condition of Approval? I don't know
how you would do that with the transfer of ownership.
JOEL PAULSON: We’ve had cases, and they are very
few, but sometimes people do plant—to get back to your
first question—on the adjacent property owner’s site,
because they want to have the control over the trees, so
that guarantees the control.
At the last meeting the Applicant offered to do
that. Apparently an agreement hasn’t been able to be worked
out, so now they’re proposing to plant it on their
property. Ultimately that will be that the house will
inevitably be sold multiple times over its life, and so
there will be landscaping, probably trimming, potentially
tree removals, it’s really trying to address the screening.
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There’s also existing screening on I believe the Kelly’s
side as well; they have some material on the other side of
their fence as well that has been trimmed, but there isn’t
any 100% guarantee that what gets planted there is going to
be there forever, if that’s the basis of your question.
COMMISSIONER HANSSEN: So we don’t have a
precedent for having set a Condition of Approval that would
transfer ownership?
JOEL PAULSON: The Condition of Approval will
follow the project until it’s done. We see this more with
privacy windows, because once the project is done and
built, then that approval is vested and complete. We’ve had
instances where a new owner has come in many years down the
road, the same neighbor lives next door, there was a
privacy concern when it originally was approved and frosted
glass, for instance, was used. They looked to replace it
without frosted glass, and so Staff works with the new
property owner, informs them of the previous issues, and
I’m not aware of any where we haven’t been able to compel
them to use the frosted glass and maintain that, but that
hasn’t really been tested all that far. I believe the Town
Attorney may have some additional input on that.
ROBERT SCHULTZ: I think Joel adequately
explained it, but we can put it in the Conditions of
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Approval and it does go with the land, it goes to new
owners. The problem is that sometimes if the vegetation or,
as you mentioned, frosted glass, is taken out, it then goes
into a code enforcement case, and we try to get voluntary
compliance, and many times it’s maybe just a new owner that
doesn’t know.
But it is difficult from the standpoint that we
are a very small agency and have a very small staff. We
have one code enforcement officer and don’t even have an
attorney assigned; I do it. Our number one priority is we
have a code enforcement manual, but our priorities are
basically health and safety issues, so in a case of this
nature when you just had an uncooperative neighbor, it
could take a while if we had to file suit and get an
injunction requiring it. It would not be a high priority on
a code enforcement level.
COMMISSIONER HANSSEN: Okay, thank you.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: Returning to the windows, we
talked about the windows that were lowered. I want to talk
about the other windows in the bathroom. It’s making an
issue that these windows will be frosted. Every bathroom
I’ve ever been in the windows open, by the shower
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especially. What’s the point of frosting them if you can
slide them open, as most bathrooms allow for ventilation?
JOEL PAULSON: If you’d like to have windows that
are inoperable, we would have to look at building code,
because there are ventilation requirements. There also are
varying types of windows. They could put casement windows
in that have mechanisms that limit the amount of the window
rolling out. So if you’re concerned about people in their
bathroom having their windows open for the frosting
component, then that could be added to the project.
VICE CHAIR KANE: I’m not concerned about it; I’m
just saying that the frosting is irrelevant. Whether they
frost it or paint it, if it slides open, then the privacy
issue is right there. That’s all.
JOEL PAULSON: That’s a fair statement.
VICE CHAIR KANE: I don’t want to get mesmerized
by the frosting, because it doesn’t mean anything.
CHAIR BADAME: And to the Town Attorney, trying
to get an injunction for somebody who doesn’t cooperate,
that means the property owner who feels their privacy is
being invaded may have to suffer for years before we could
get an injunction.
ROBERT SCHULTZ: I wouldn’t say years, but like I
said, it would not be a high priority from our standpoint.
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We triage and deal with health and safety issues primarily,
but I wouldn’t say it would be years. We would find a way
to compel the property owner if in fact they were violating
their CUP.
CHAIR BADAME: Thank you. Any further questions?
Seeing none, I will open the public testimony portion of
the hearing and allow the Applicant and their team ten
minutes to address the Commission. I have a speaker card
from Lance Tate.
LANCE TATE: That’s correct. Good evening,
Commissioners. Thank you for your time again to revisit the
subject and consider our project.
When we left you last we had, at the suggestion
of Commissioner Burch, looked at the possibility of moving
the back of the house back. After consideration with my
architect and with our civil engineer we came to the
conclusion that that didn’t really provide the mitigation
of the visual impact that the Kelly’s were looking for, so
we did come up with the solution that we did, which is
lowing the house 8” and the window 6”.
Commissioner Kane, to answer your question, the
window is I believe our ingress and egress window. Chris,
is that our egress window? Yes. So we can’t raise that for
safety issues.
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The thinking that might be overlooked—and I might
be biased here—is the Town Architect, Larry Cannon,
determined that our house in mass, scale and size was
actually compatible with the neighborhood. The 2,300 square
feet above grade that we’re proposing is actually not even
the largest house on the street; something to consider.
As I said in my letter, we’re still open to
planting the trees on the Kelly’s side of the property. We
promised to work with them to a solution. We have a
solution. What we’re stuck with are the logistics of
executing on the solution.
If there are any questions, I’m here.
CHAIR BADAME: Thank you, Mr. Tate. Any
questions? Commissioner Hudes.
COMMISSIONER HUDES: In looking at the plan for
the master bedroom on the second floor, there are small
windows on the right side and there are large windows in
the rear. Did you consider reconfiguring to either have
small windows in the rear, or windows that are much higher
and smaller, and increase substantially the size of the
windows that are on the side?
LANCE TATE: Because of the close proximity to
our neighbors on our left and our right, we thought the
visual impact would be mitigated best by putting the larger
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egress windows on the back of the property where there’s a
larger distance between the neighbor and our property.
COMMISSIONER HUDES: What is that distance?
CHRIS SPAULDING: Chris Spaulding, architect. The
distance between the side neighbor or the rear neighbor?
COMMISSIONER HUDES: Between the proposed house
and the structure of the rear neighbor.
CHRIS SPAULDING: From the rear of our house to
the property line is 60’, and then to their house from the
property line is another approximately 80’, so about 140’.
Then from our upstairs windows to the neighbor on the
right, which you’re suggesting putting large windows, is
about 20’.
COMMISSIONER HUDES: So what you’re saying is you
would have more of a privacy issue by having the large
windows on the side, because they would be 20’, and on the
rear they’re 140’?
CHRIS SPAULDING: Yeah, and also the neighbor on
the right is down, so any windows that we had would
actually look right down into their rooms. We don’t try to
take somebody’s privacy and shove it on the neighbor that’s
not here to defend themselves.
COMMISSIONER HUDES: Okay, thank you.
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CHAIR BADAME: Any further questions? Seeing
none, thank you very much. I will now invite comments from
members of the public. I have two speaker cards. I will
call Rita Kelly to the podium.
RITA KELLY: Hi, I’m Rita Kelly and I’m the
neighbor behind the house with the privacy issue.
And yes, unfortunately we were unable to come to
agreement and we do not support the proposed plans, and I’d
like to explain why.
Urban West did modify the plans, reducing the
overall height, as stated. However, the structure still
towers over our back yard, and the windows, as you can see
represented by the plywood, sit on top of the roof of the
existing structure, so they can still see right into my
yard, and this is actually sitting on my sofa in the family
room.
Regarding the privacy bushes, we thought, and
probably naively so, that it would be relatively easy for
us to let Urban West plant the trees on our side of the
fence. We assumed that they would come up with a plan for
us to approve and that we would give them permission to do
the work after approving the trees that they planned to
use. Instead, as I have described in my previous letters to
the Town sent on May 25th and June 7th, it turned into a very
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burdensome and stressful experience whereby we were given a
legal document which made us responsible for the planting,
execution, and assuming liability for the work, and put
into an unpleasant situation of being badgered by them to
complete tasks to meet deadlines required by the Town to
have their project approved.
And while Urban West has stated that it makes
more sense to put these bushes on the Overlook property,
and that it is improbable that anyone would remove the
privacy bushes along the fence, it leaves us without any
control of our privacy. And while it does seem improbable,
we have just experienced such an improbable event when
Urban West removed the two large trees from the Overlook
site that once shielded our property. We have no idea who
will live there or what they might do to the yard, as the
property is being built to sell.
In addition, Mr. Tate stated that we have
resorted to hardline tactics and personal assaults, and I’m
sorry if he feels personally attacked, because that’s never
our intention. I have met Ron Tate, and I like him very
much; I like Lance also. My husband and I are also self-
made people who have worked for everything that we have and
continue to work for everything we have, such as our home.
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However, our issue is that while Urban West says
they have been considerate and accommodating, in our
experience they have not been, and in fact they have been
imposing and demanding, as demonstrated by the emails and
calls that they have sent us insisting on completing tasks
at their convenience.
Therefore, we cannot support and do not want to
be associated with a project that sets the precedent of
degrading the character of our neighborhood by allowing a
house to be built that is too large and imposing, thus
diminishing the value of our home. We are trying to put a
Band-Aid on a problem that needs to be fixed from the
ground up. There has to be another house that can be built
that they can sell that doesn’t cause these problems and
future problems for us. The existing plan is always going
to be too big, and leaves us exposed to the potential loss
of privacy for the benefit of someone who is not going to
live there or be our neighbor. Thank you.
CHAIR BADAME: Thank you, Ms. Kelly. Questions?
Commissioner O'Donnell.
COMMISSIONER O'DONNELL: You apparently did have
some conversation about putting the trees up on your side
of the property…
RITA KELLY: Yes.
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COMMISSIONER O'DONNELL: …and then they would be
maintained for ten years, as I recall.
RITA KELLY: That’s correct.
COMMISSIONER O'DONNELL: And then that broke down
for the reasons you’ve described to us. Ultimately, we’re
going to have to decide what we’re going to do, and one of
the things we’ll be able to consider are conditions. So I
would like to know how you would feel if one of the
conditions were reasonable trees to your reasonable
satisfaction? When I say trees, I mean growth that would be
put on your property and maintained, as apparently agreed,
or suggested.
RITA KELLY: I don’t think it’s possible, because
we’ve already tried to do that, and the terms that we were
asked to agree to were unreasonable.
COMMISSIONER O'DONNELL: No, but I’m suggesting
that at some point it will not be a voluntary thing on
their part if we make a condition of it. All we would have
to do is make the condition reasonably acceptable to you.
So forget your bad past experience, I’m asking you, just
hypothetical, because I don't know what we’re going to do,
but if we could impose a condition that you felt was
reasonable, and the timing was reasonable and all that,
forget the bad past, would that help?
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RITA KELLY: I can’t be expected to do the work,
the planning, figure out how to do the walls that keeps the
roots in, how to make sure they’re not liable, and then
execute it all. That is not reasonable.
COMMISSIONER O'DONNELL: So you’re saying it
really wasn’t their problem; you wouldn’t do it anyway?
RITA KELLY: That’s not what I’m saying. I’m
saying they said that they would put them on our property,
but then came back with a legal document asking us to do
all the work and they would give us money and the plants to
do it, but then we had to assume all kind of liabilities
associated with that, and also figure out how to do the
work, which is a whole nother like landscape project which
I don’t have in my time budget right now.
COMMISSIONER O'DONNELL: Thank you.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: I want to clear up that one
point, because I don’t understand. I read the letter from
Mr. Tate and it seemed like, correct me if I’m wrong, they
were going to finance the whole thing. In other words, just
write a check and then you’d be able to do what you wanted.
I didn’t pick up the liability in the second letter. I felt
it was onerous that you got an email with all these terms
and conditions and legal stuff, but the second letter was
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okay, we give up on that, and we’ll pay for the trees and
we’ll pay for the maintenance and the contract, and in fact
if we overpay, you can keep the overpay. That’s the letter
I’m referring to.
RITA KELLY: That’s not how I understood it.
VICE CHAIR KANE: I understand we’re emotional,
but all you have to do is correct me.
RITA KELLY: Well, that’s not how I understood
it. Based on when I had my arborist out there, and their
arborist was there, and I think, Kelly, you were there, it
was I was told oh, you can ask this person to put in your
root barrier wall, and I wasn’t given the impression that
they planned to do any of the work or planning in terms of
how to get it on my property.
VICE CHAIR KANE: Well, this is a sticky wicket,
so let’s pretend, as Commissioner O'Donnell said, that my
reading of the letter, which may have been incorrect, and I
haven’t asked him if he’s interested in it, but let’s make
a deal. If they paid for it, just handed you the checks,
and you could put up what you wanted, and the maintenance
of that, it’s for ten years, I think I read that, and
they’d approximate the expense, you’d get to keep the
overage. In fact, you could put in twigs and keep all of
the overages, as I read the letter, because they’re not
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going to be involved in how you manage the question. So if
in fact my reading were correct, would that be of interest
to you, that you get whatever you want and they’ll pay for
it on a cost-plus basis?
RITA KELLY: The thing is we’re not contractors,
and what we understood the last time was that they were
willing to come do the work and put it on our property. If
you would have asked me last time are you willing to be
paid off so you can do whatever you want with the money? I
would say no, it’s not about money, it’s about my privacy;
it’s about my home.
And you can see, the size of this building is
huge, and I can’t make it happen. I can’t do that right
now. I do not have the time to do that right. It’s not what
I do; it’s what they do.
VICE CHAIR KANE: So if I had a question, then I
think you’re telling me the answer is no, that would not be
of interest to you.
RITA KELLY: No, we’ve already been offered the
money so that we can do all the work, and the problem is
once we…
And actually, we were trying to work with that
option. We were trying to work with it, and then all of a
sudden on Tuesday morning, I think it was the 23rd, because
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9:00am I had about six or seven calls telling me that I had
to be down in Gilroy on Thursday to look at the trees or
they’re going to plant them on their yard anyway if I
didn’t like it. I don’t want to work with them, because
it’s stressful. I can’t sleep.
CHAIR BADAME: Thank you. Commissioner Burch has
a question for you.
COMMISSIONER BURCH: What if the burden of
install was taken from you? Because I understand that
that’s not something you really want to take on yourself.
But what if in the desire to make this agreeable the
Applicant said all right, he actually does know landscape
contractors whom you could meet and interview, and then
when you agreed on plants, what you thought would be
acceptable, the applicants hire a landscape architect and
installers would come and do this for you, including
irrigation, including root barrier system that needs to be
done. You have final approval on that; therefore really
it’s not eating into our time. You have final approval on
who is hired, the pricing of it. Then it’s on your
property, which I understand does protect your ability to
keep the trees and everything growing and protecting your
privacy, yet the burden of install is not on you?
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RITA KELLY: Well, that’s what I thought would
happen in the beginning, but then we were told that the
lawyers told them that they shouldn’t take on such
liability.
COMMISSIONER BURCH: But what we’re saying is we
up here actually have the ability to write conditions into
this that then have to be… Obviously I’m going to ask the
Applicant when he comes back up if he would be agreeable to
it, but if he is, we could have this written into the
Condition of Approval, and that’s what will happen or they
can’t get a permit. So I mean you have to understand that
if they don’t meet the Conditions of Approval, they can’t
move into the house, so they’re going to actively want to
follow that condition. If he is amenable to that type of
thing, would that we something you guys would be willing
to…
RITA KELLY: Based on the experience we’ve had so
far, which has been unpleasant to say the least, I’m not
very interested. I mean as creative as architects are and
all the different possibilities of houses that could be
built on that property, I don’t see why they can’t have a
house that’s not as big, as imposing, designed so that we
don’t have this problem at all, ever, and we don’t have to
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have 15’ to 20’ trees just to cover up the windows, not
even to cover up the top of the rest of the house.
COMMISSIONER BURCH: So then just to clarify,
we’re probably then—in your opinion, this is I’m asking
your opinion—not going to find a compromise if there’s a
second story on the house?
RITA KELLY: Not if it’s that much taller. I mean
you can’t really tell from the pictures, but if you come
out to the property…
COMMISSIONER BURCH: I’ve seen it.
RITA KELLY: …you can see that it’s basically
like a whole nother story on top of the property.
CHAIR BADAME: Any further questions? All right,
seeing none, thank you.
RITA KELLY: Thanks.
CHAIR BADAME: Next speaker is David Kelly.
DAVID KELLY: My name is David Kelly; I live in 9
Chestnut Avenue also, and just to answer some of the
comments.
We were presented with terms associated with
having the trees installed on our property, and those terms
basically cited that all the liabilities associated with
the work we had to forgive Tate Trust was who was in that
agreement. I don't know how they can do the work without
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having some kind of liability protection and this sort of
thing and ask us to forgive them, so I don't know how you
work it by having them do all the work to put the trees on
our property, and that’s my basic statement.
CHAIR BADAME: Vice Chair Kane has a question for
you.
DAVID KELLY: Yes, go ahead.
VICE CHAIR KANE: So the same question repeated,
because you were giving us a lot of non-verbal
communications before.
DAVID KELLY: Right.
VICE CHAIR KANE: What if we found a way to do
that? I mean I read the email that you felt was, I don't
know what your word was, something to the effect of
overwhelming or intimidating. I had a similar reaction to
it.
DAVID KELLY: Yeah.
VICE CHAIR KANE: But if possible, taking the
emotion out of this, what if you could get whatever kind of
trees you want on your property that they paid for? I don't
know what the liabilities are, I don't know why there would
be any, but if that was removed, is that a remedy for you?
I’m not saying it’s a remedy for us. I want to know what
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you can live with without them having to necessarily redo
the house.
DAVID KELLY: I wouldn’t even know how to answer
till I saw what the terms were that would require that,
because we got into this last time, and then it became hey,
it was a great idea, they would do whatever they could to
put the trees in our yard, and we thought that was what was
going to happen. Then when it got down to putting the trees
in our yard it was all about the terms it would take to put
it in, and it was all about we’ll just give you money so
you go away. I don't know how you get around not having
proper terms associated with putting the trees in, and I
would have to see the details of that before I could say
yes or no.
VICE CHAIR KANE: So let me paraphrase what you
just said. The first inning was just putting the trees in;
it looked real good. The second inning was all the red
tape, all the legal language, this and that. What if the
second inning didn’t occur? What if you were paid for the
expense of putting in those trees? Could you live with
that?
DAVID KELLY: Yeah, I don’t think we’re going to.
VICE CHAIR KANE: Thank you.
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CHAIR BADAME: Any further questions? Seeing
none. All right, I will invite the Applicant back up to the
podium. Mr. Tate, you have five minutes to address the
Commission.
LANCE TATE: I clearly can’t go on vacation
anymore. My dad took over this process, and I apologize for
any pain you guys have gone through with this. I love my
dad to death. He’s 80 years old, and he really wasn’t that
socially aware 30 years ago, so I think that might explain
some of what’s going on.
The liability of going on their property was the
issue, so we would handle all the planning. I mean pretty
much anything conceptually we would handle and pay for. The
Kelly’s would have to hire the person installing the plants
and then we would pay them to pay them, for lack of a
better explanation, and we’re still open to that solution.
Again, I don't know what happened the week I was
gone; I’m sorry. No more vacations for me.
So I mean, look, we’re open to that solution; we
always have been. Like I said, I live here. I live at
Benedict Lane in Los Gatos, plan on doing more developments
in Los Gatos, born and raised here, so I don’t want someone
unhappy with the final product that we put out.
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CHAIR BADAME: Thank you, Mr. Tate. Commissioner
O'Donnell.
COMMISSIONER O'DONNELL: I think what I heard,
and this is maybe a difference, you’ve now said they would
hire the contractor. I think they’re saying they don’t want
to hire a contractor; they want you, subject to their
approval, to hire the contractor, come onto their property,
and install it pursuant to the plans that they have
approved. Is that not agreeable to you?
LANCE TATE: The concern for us is the liability
in hiring a contractor to do work on someone else’s
property. That’s what the feedback was from our attorney.
COMMISSIONER O'DONNELL: You have to remember,
they don’t want you to do what you’re doing, and they also
don’t want to incur a liability because of what you’re
doing. If one were to put trees there to ameliorate what
you’re doing, they don’t want to have liability either. I
can understand how you two sides can’t agree, but we’re
going to be looking for either a solution or we’re going to
have thumbs up or thumbs down.
You’re adding a little more than 2’ to the height
of the building, as I understand it, so we’re talking about
a number of things, but obviously early on there was a
solution to this problem. It’s fallen out of bed, and as
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near as I can tell, they’re saying we’re sort of innocent
bystanders, why should we enter into a contract? If your
contractor, i.e. the people you use to put the trees in,
screws up, that’s your liability, not theirs. Once they
accept the trees, the trees are theirs, but until the job
is done, the trees aren’t theirs, and so they’re saying
they don’t want to sign a contract. And if you’re saying
you don’t want to sign a contract, tell me that.
LANCE TATE: I don’t think I can make that
decision to make the determination here on my own.
COMMISSIONER O'DONNELL: Well, then for tonight’s
purposes, you’re not willing to do that.
LANCE TATE: Okay.
COMMISSIONER O'DONNELL: Thank you.
CHAIR BADAME: Thank you. Any further questions?
Seeing none, thank you.
The public testimony portion of the hearing is
now closed. Do Commissioners have any questions, comments,
entertain a motion? Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I’ll direct this to our
Town Attorney. I realize some of the conditions we can
impose, but if we get into the point of saying you, the
Applicant, will enter into a contract to put the
landscaping on the neighbor’s property, subject to their
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approval, and you have the liability because you’re the
contracting party, and the beneficiary of the contract
would be the property owner.
We’ve heard both sides, and one side said we
don’t want to do that. It doesn’t seem to me to be an
unreasonable condition to say if you think landscaping is
the solution, then install it. Is that a condition we can
impose?
ROBERT SCHULTZ: You can. The difficulty would be
in a condition such that…and I think you’re assuming
putting the trees on the neighboring property.
COMMISSIONER O'DONNELL: Correct.
ROBERT SCHULTZ: The difficulty is what if the
neighbor says, “You’re not coming on my property”? You
still need consent to enter that property.
COMMISSIONER O'DONNELL: We can deal with that,
too.
ROBERT SCHULTZ: And in that case the condition
would read that if the property owner fails to give consent
or there cannot be a reaching of an agreement, then the
default would be landscaping on the property of the
development; that’s a possibility.
COMMISSIONER O'DONNELL: Yes.
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ROBERT SCHULTZ: So you’ve got to have that
default in case of that situation, because yes, you
certainly can as a condition require it on the neighbor’s
property, but you need that default provision of in case
it’s not worked out.
COMMISSIONER O'DONNELL: One final thing. This
should not be the most complex deal in the world, and yet
it sounds like having heard from both parties we need
somebody, like Staff, to say time out, this is… Meeting the
condition imposed by the Planning Commission, or not, if
they get bogged down in what they’re bogged down in now,
then the only thing I can think of is what you suggested.
Again, we would say our first choice is to put it on their
property, second choice is to put it on the Applicant’s
property, but one or the other is going to satisfy that
condition; they could do that.
ROBERT SCHULTZ: Correct.
COMMISSIONER O'DONNELL: Okay, thank you.
CHAIR BADAME: Vice Chair Kane.
VICE CHAIR KANE: I don't know what the
appropriate analogy would be, but we could be going down a
slippery slope of shrubs, and this issue may not be about
the trees, it’s about the mass and scale of the house, and
if we’ve got a massive scaled house, we’re trying to cover
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it with trees. I’m looking for input on the basic issue of
why Staff denied this thing. It wasn’t because they put up
a tree or they wouldn’t put up a tree, it’s because they
were saying it was too big.
As I look at the house, the one that’s there is
half the size of the one that’s going to be there, and the
house to the left and the house to right are one-stories.
My question is, is that a compatible neighborhood design?
Notwithstanding the angst that’s involved, let’s go back to
is that house too big?
CHAIR BADAME: I will chime in. I share those
concerns. I see this as more than just a privacy issue,
it’s related to mass and scale and neighborhood
compatibility issues. I also have some concerns with the
intent of the Cellar Policy being abused, because again,
we’ve got a house that’s double the size, and now, even
though we don’t count the square footage of the cellar, it
is meant to hide visible mass in lieu of, but it makes it
by far the largest house in the neighborhood. That being
said, it adds to the mass and bulk.
I can’t believe that we’re going to solve these
privacy issues between the two neighbors, so I’m looking at
the fact that I’m troubled by this, in putting in
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Conditions of Approval to solve a privacy issue, when I
think it is related more to mass, bulk and scale.
Vice Chair Kane.
VICE CHAIR KANE: I wanted to add, and I hope
it’s germane, but we have a number of letters from
neighbors who point out that there’s a five-bedroom house
with a one-car garage, and if you’ve been on Overlook, and
I have, someone described it as a “raceway,” and from time
to time it is, and the street is narrow. Help me with my
concern about four additional cars potentially on the
street with a one-car garage. It looks like the house is
awfully big and the garage is awfully small, and I’m having
issues with suitability regarding that.
CHAIR BADAME: Any other Commissioners like to
chime in? Commissioner O'Donnell.
COMMISSIONER O'DONNELL: Well, unfortunately I
agree with everybody, including me. I tend to think that it
is too big, and if that’s the issue, then it solves all the
problems; we just don’t approve it.
If, on the other hand, we for some reason thought
we would approve it, then the prior discussion I had I
think would solve that problem. But you never get there. It
turns out this house is too big. When I went to the house
and looked at it, twice now I guess because it came before,
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it really does impress me that it’s too big, so I guess
maybe I’ve been trying to solve a problem without getting
to the root of the other problem.
CHAIR BADAME: Commissioner Hanssen.
COMMISSIONER HANSSEN: I just wanted to comment
that I agree with a lot of what was said. When we started
the discussion tonight I was hopeful that there was a
solution that would be amenable to both parties to do
landscape screening to ameliorate the issues, but it
doesn’t appear that that can happen no matter how we state
the Conditions of Approval, so I think that brings out the
bigger issue, which is the reason that the landscape
screening is an issue, because of the bulk and mass of the
house.
Than, as Chair Badame pointed out, adding the
Cellar Policy, even though we don’t count the square
footage, if you consider the bulk and mass of the house, it
does make it double its current size. So I too am troubled
with this proposal, and I don’t think there’s a solution on
the table right now that would ameliorate the concerns of
the neighbors.
CHAIR BADAME: That being said, I would be
prepared to make a… Commissioner O'Donnell.
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COMMISSIONER O'DONNELL: One thing. If, for
example, we turn this down tonight and they come back with
something else and it it’s 2’ higher, it’s 1’ or 6” or
whatever, that doesn’t deal with the issue, because if you
put a window back there that’s 140’ from their house,
you’re still going to have the same issue, as I understand
it.
So yes, we can deal with one of the issues, which
is it is too big, but if they say well okay, it’s too big
and now we have to build a smaller house, it’s hard for me
to believe that we will not be facing a window problem in
the back again. Maybe the solution is fine; let’s wait and
see.
CHAIR BADAME: I would say that the current
footprint of the house doesn’t impose a window issue as it
stands now.
COMMISSIONER O'DONNELL: That’s not where we are
in the sense that what they’re asking us for is to change
the way it stands now, and we’re saying you’re making it
too big, and all I’m suggesting is you can change the house
without making it too big, but that does not address the
privacy issue if they change the configuration, but not the
height, and they put a window back there. So that’s okay,
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because I guess that’s a problem that may or may not occur
downstream.
CHAIR BADAME: All right, that being said, I
would be prepared to make a motion, unless there is further
discussion. Seeing none, I move to deny Architecture and
Site Application S-14-056, 18151 Overlook Road, requesting
approval to demolish an existing single-family residence,
to construct a new single-family residence, and obtain a
Grading Permit on property zoned R-1:8, APN 510-40-146.
I can make the required findings for CEQA; I can
make the required finding for the demolition of the single-
family residence, but I cannot make the required compliance
with the Residential Design Guidelines; the project is not
similar in mass, bulk and scale of the immediate
neighborhood; the privacy concerns of the neighborhood have
been resolved; it does not meet the intent of the Cellar
Policy; it does not meet the goals of our General Plan
regarding land use, and that’s preserve and protect the
existing small town character and quality of the life for
the neighbors. The considerations were made in review of
Architecture and Site Application as required by Section
29-10.150 of the Town Code.
So I will look to see if I have a second.
Commissioner Hanssen.
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COMMISSIONER HANSSEN: I’ll second the motion.
CHAIR BADAME: Discussion? Vice Chair Kane.
VICE CHAIR KANE: So the question is always where
do we go from here, and without any specifics on height,
weight, and size, so we set up new limits that somebody
could hit.
I would recommend, as we have in the past, that
the Applicant work to understand the concerns of Staff and
see if Staff can get on board with the redesign, and the
silver lining on this is that you’ve certainly got an
architect who can do that. There are at least two
architecture legends in this room, and you’ve got one of
them.
I think a very fine house can be put on that
property. Neighbors may not like it; life is hard. But if
you comply with the Residential Design Guidelines and get
support of Staff, I would think you have a house. So that
would be my guidance on where we go from here.
CHAIR BADAME: Commissioner Hudes.
COMMISSIONER HUDES: I go back to the Staff
recommendation about denial based on height and mass, and I
am very sympathetic with that, and I will be supporting the
motion on that basis.
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However, I do think that a house will be put onto
that lot, and I do think there will be windows on the rear
of that house, and so I am not supporting the motion based
on privacy concerns, because I think those privacy concerns
are resolvable with the distance, which is 140’ from the
house, with proper screening, with proper design of
windows. For me, I’m supporting the motion, but I am not
weighing in on the privacy concerns, because I believe that
they are resolvable when people work together on it.
CHAIR BADAME: Thank you. Any further discussion?
All right, I will call the question. All in favor? Passes
unanimously. Mr. Paulson, are there appeal rights of the
actions of the Commission on this item?
JOEL PAULSON: There are appeal rights. Anyone
who is not satisfied with the decision of the Planning
Commission can appeal that decision to the Town Council.
Forms are available in the Clerk’s Office. There is a fee
for filing the appeal, and the appeal must be filed without
ten days.