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Attachment 11TOWN OF LOS GATOS ITEM NO: 4 ADDENDUM PLANNING COMMISSION STAFF REPORT Meeting Date: August 24, 2016 PREPARED BY: Sally Zarnowitz, Planning Manager szarnowi tz@lo s gato sca. gov APPLICATION NO.: Architecture and Site Application S-15-077 LOCATION: 19 Highland Avenue (north side of Highland Avenue jus t east of I5 Highland A venue) APPLICANT/ PROPERTY OWNER/ CONTACT PERSON : Ed Pearson APPELLANTS: Badame, Roberts , Smullen, and Spalding Families APPLICATION SUMMARY: Consider an appeal of a decision of the Development Re v iew Committee approving an Architecture and Site application to construct a new single-family residence and remove large protected tree s on property zoned HR-2 Y2 . APN 529-37-033 EXHIBITS: Previously received with May 11, 2016 Desk Item Report: 1. Emails from appellants, received May 11 , 2016 Prev iously received with June 8, 20I6 Staff Report: 2. Location Map 3. Required Findings and Con siderations 4 . Recommended Conditions (nine pages) 5. Adopted Mitigation Monitoring and Reporting Program (3 pages) 6. Town Council Res olution (200 1-I28) 7. December 8 , 20 I 0 Planning Commission meeting minutes (15 pages) 8. Consulting Architect's Report, dated February 24,2016 9. 201 0 Arborist Report (26 pages), dated February 15 , 20 I 0 I 0. Project Data Sheet II. Letter from Anthony Badame, received March 24,2016 12. March 29, 2016 Development Review Committee minutes (two pages) 13. Appeal letter, received April 8, 2016 (four pages) 14. May I1, 20 16 Planning Commi ss ion meeting minutes 15 . Applicant's res ponse letter and Attachments (I-I4), received May 27,2016 16. Public comment received through I1 :00 a.m., Thursday, June 2 , 2016 ATTACHMENT 11 Planning Commission Staff Report-Page 2 19 Highland A venue/S-15-077 August 24,2016 REMARKS: 17. Additional letters from applicant (11 pages), received June 2, 2016 18. Development plans (16 pages), received March 22,2016 Previously received with June 8, 2016 Addendum Report: 19. Letter from appellant (58 pages), received on June 2, 2016 Previously received with June 8, 2016 Desk Item Report: 20. Revised neighborhood outreach statement (one page), received June 6, 2016 21. Applicant's response to Appellant's letter (five pages), received June 8, 20 16 Previously received at June 8, 2016 Planning Commission Meeting: 22. Communicati on from appellants (11 pages), received June 8, 2016 23. Presentation by appellants ( 15 pages), presented June 8, 2016 24. Communication from applicant (5 pages), received June 8, 2016 Previously received with August 24, 2016 Staff Report: 25. Presentation by applicant (37 pages), presented June 8, 2016 26. Revised Recommended Conditions (1 0 pages) 27. Revised Development plans (15 pages), received July 11 , 2016 28 . Revised Project Data Sheet 29. Consultant Reports (10 pages) 30. Addendum to 2010 adopted Mitigated Negative Declaration (I 01 pages), dated August 2 016 31. Communication from appellants (23 pages) 32. Communications from applicant (11 0 pages) 33. Revised Findings Received with this Addendum Report: 34. Revised version of Exhibit 31, Communications from appellants (53 pages) Exhibit 34 contains attachments that were inadvertently omitted from the materials provided in Exhibit 31 of the August 24, 2016 staff report. Exhibit 34 is a revised vers ion of Exhibit 31. Planning Commission Staff Report-Page 3 19 Highland A venue/S-15-077 August 24 , 2016 Prepared by: Sally Zamowitz, AlA Planning Manager JP:SZ:cg pproved by: Joel Paulson, AICP Community Development Director cc: Ed Pearson, 239 Thurston Street, Los Gatos, CA 95030 Lisa Roberts, 78 Alpine A venue, Los Gatos, CA 95030 Theresa Spalding, 15 Highland A venue, Los Gatos, CA 95030 Dede Smullen, 25 Highland A venue, Los Gatos, CA 95030 Anthony Badame, 1 Highland A venue, Los Gatos, CA 95030 N :\DEV\PC REPORTS\20 16\High1and-19-appea1-8 -24-16 -ADD.d oc Grossetti Envir-onmental Consulting Marni F. Moseley, AICP, Associate Planner Town of Los Gatos Planning Division 110 East Main Street Los Gatos, CA 95030 August 15, 2016 SUBJECT: 19 HIGHLAND AVENUE CREEK AND CEQA ISSUES Dear Ms. Moseley, Grassetti Environmental Consulting (GECo) has been retained by a group of concerned citizens to review California Environmental Quality Act (CEQA) compliance and creek setback issues associated with the 19 Highland Avenue project. We submitted comments on th e project as previously designed on June 2, 2016. This lette r presents a n update to those comments, based on a review of the currently proposed plans. On the basis of communications between our client and your office, we understand that the Town intends to use the 2010 CEQA Initial Study /Mitigated Negative Declara tion as the CEQA documentation for the proposed project. Similarly, bas ed on email communications, we understand that the Town and/or applicant now considers the applicable s e tback of the proposed house from the creek as 20 feet (increase d from the previous 15 feet). This lette r addresses the appropriateness of these determinations, as well as overall adequacy of the CEQA document. In summary, I have concluded that, based on a review of available information, there is no evidence supporting the use of the 20-foot setback (the appropriate creek setback on the project site is 25 fe e t), the Initial Study is d eficient in addressing the setback issue, and the Town's impermissible CEQA process has resulted in a denial of resource agency and public review of the proposed project. Creek Setback Issues Town-Required Setbacks The Town of Los Gatos is a participant in the Santa Clara Wate r R esources C oll aborati ve (SCWRC). The Guidelin es and St a ndards for L a nd Use Ne ar Streams (G&S ) w as developed by th e Collaborati ve to protect in-stream and rip a rian w ate r qual ity, resources, and habi tat. Th e G&S c ontains th e requirem ents and gu idance for develo pm e nt adj ace nt t o streams. Th e T own C ouncil adopte d a resolution implementing th e G&S on February 20 , 2007. Specifi call y, th e Town adopted C hapters 2 and 3 of th e G&S as Town requirem ents. Cha pte r 2 describ es ho w 7008 Bristol Drive, Berkeley, CA 94705 (510} 849-2354 19 Highland Avenue Creek and CEQA Comments Page 2 August 15, 2016 streams and se tback zones are delineat ed . Chapter 3 desc ribes s tream protection policies a nd req uire ments, including required stream setbacks. The Town is responsible for implementing these standards. It is required to rev iew potential impacts to streams as part of the development review process. Projects adjacent to stream s are required to be forwarded to the SCVWD fo r comment. As detailed o n p. 3.8 of the G&S, to minimize imp acts to streams, structures are required be se tba ck from the stream. T he required setback between the str eam and th e structure is called the "slope sta bili ty protecti on area". The "Slope Stability Protection Area" is an area betwe en a stru c ture and the stream2 . STABILITY PROTECTION AREA Stream with Little Structurally 3 Ephemeral or No Harde nin g Engineered System Stream Size of Prot ection 25-20 feet 15 feet 1 0-1 5 feet Area (as measured from Top of Bank)4 Notes: Potentia l Additions to the Slo pe A. For a large lot (greater than 10,000 sq. ft}, add 5 feet. (emphasis added} B. For a large home in which the FA R triggers a discret ionary review, w o rk with applicant to ensure t h at imp act s s u ch as drainage are r edirected away fro m a stream and pursue opportunities to increase t he s lope stabili ty protection area t o better protect the s tr eam (and ho me) from impacts. Fo r example, consider d ecreasing the required front yard se tb ack in order to accom modate an in creased rear yard setb ac k/slo pe stability area. 1 Single Family Unit refers to both (a) ne w s in gle-fam il y units on existing lots of record and (b) new single- fami ly remodels/rebuilds as defined by loca l regulations j poli cyj g uideli nes 2 In a ddition to protecting this area, BMP 's s h o uld be used that are reflective of Guidelines a nd Standards, for activities adjace nt to these areas where discretionary review is used (i.e redirecting drainage away from the stream a nd no removal of native ri parian plants 3 A "structurally engin eered system" is d es igned to provide s lope stability. It may be a concrete-lined channel (U-frame or trapezoi d a l) or a s t ream s ub stantiall y modified w ith riprap, gabio ns, structurally engineered sacked co nc rete, e t c. 4 Area measured fo r Slope Stab ility Require me nt to be measured based on lo cation of Top of Bank, whether strea m is on or off of property. A d etaile d in our June 2 letter, surveys by both Michael Wood and Pacific Bio logy found the creek to be intermittent and not ephemeral. The Pacific Biology Report was included as Attachment 1 to our June 2, 2016 letter. The Wood Biologica l Con s ulting report was included as Attachment 2 to that letter. Both a re h e reby incorporated by r efe rence . As des cribed above, an intermittent stream is subject to applicable setbacks applicable to that class of stream. In the case of this large-lot site, applicable setbacks to th e structures would be 25 feet because, in addition to the stream being "intermittent", the lot is a large lot (i.e. over 10,000 sq. ft., as defined in the SCWRC G&S). Pro posed decks and stairways, 2 19 Highland Avenue Creek and CEQA Comments Page 3 August 15, 2016 as well as portions of the house itself, now overhang the setback zone, further reducing the de facto setbacks of the house. Therefore the proposed setbacks do not meet the Town's requirements, and the project must be redesigned to meet these setbacks and limit project impacts to the creek. In addition to the setback issue, under the current plans, the bioswales essential to assuring that project runoff is adequately filtered before entering the creek have been substantially reduced compared to the previous design. The previous design included two 40'-long swales, and one each of 30', 25', and 10' lengths (total of 145 !near feet). This has been reduced to one 35' swale, one 25' swale, and a 20' swale (total of 80 linear feet). Absent a hydrologic analysis, it is impossible to determine whether the reduced bioswale capacity is adequate to treat anticipated runoff. This issue should be addressed in the IS. Improper Regulatory Agency Consultation As discussed in our June 2, 2016 letter, the Town failed to appropriately consult with regulatory agencies with jurisdiction and public trust responsibilities for wildlife habitat and water quality. Instead of involving the California Department of Fish and Wildlife and San Francisco Bay Regional Water Quality Control Board through the standard CEQA process, the Town allowed the applica nt to send an eight-sentence letter to each of these agencies 1. That letter included neither biological reports nor project plans. It simply stated "At this time, what I'm requesting, (sic) is correspondence from you (sic) dept. regarding any requirements, permits/policies etc. that may have changed since the planning approval for this site in 2010." It is our understanding that the town continues to consider the agencies' non-response to these letters to constitute a lack of concern over the project's potential impacts on affected resources. As discussed in our June 2 letter, these letters do not constitute adequate agency consultation and the agencies' lack of response does not indicate lack of impacts or lack of agency concern. No documents or plans were provided to the agencies to review. No setbacks or riparian zones were identified. Further, for projects of this type, the CDFW typically only reviews planning-related documents through the CEQA process and then only upon payment of its required CEQA document review fees, or through its Streambed Alteration Agreement process. The RWQCB typically also typically responds via the CEQA or permit processes. The Town's failure to correctly implement CEQA on this project ensured that the agencies would not comment on the project. Failure to Correctly Implement CEQA The Town apparently is relying on the 2010 Initial Study and Mitigated Negative Declaration (IS/MND) for a previously proposed house on the site as the CEQA 1 Letters from Ed Person to the California Department of Fis h and Wildlife and San Francisco Bay Region a l Water Quality Control Board date d january 28, 20 16. 3 19 Highland Avenue Creek and CEQA Comments Page4 Augu s t 15, 2016 documentation for the current project. In a May 24, 2016 email to Dorothea Smullen, Marnie Moseley, Associate Planner, stated: T h e Initial S tudy and Mitigated Negative D eclaration were circulated and adopted in compliance with t he req uire m e nt s o f CEQA in 20 I 0. No comm ents we re received . T h e d ocument was adopted by the Pl anning Commi ssio n . As di scussed , th e IS a nd MN D do not expire. T he p roposed project conforms w ith th e a n a lysis provided w ithin th e 20 I 0 document and w o ul d be s ubject to th e M it igation M easures fro m the ad o pte d M M RP . Re -c ir culating t h e d oc ume nt wou ld be inconsistent with CEQA regulation s. T he a d o p te d d ocu men t continues to b e availa ble fo r review wi th in the p ublic file. Staff did reach out to both C D F W a nd R WQC B afte r we tal ke d last to sec i f they had any comm ents that they di d not prov id e to th e appl icant within th e 30-d ay p e r io d 2 No additional comm en ts were provided to sta tT. The Town's CEQA and agency consultation approach fails to meet the mos t basic CEQA requirements. First, it is important to note that the current project is not identical to the previously proposed development considered in the 2010 IS/MND. In addition, at least two new biological resource analyses have been prepared for th e current project. The current proj e ct has setbacks that continue to not meet Town requirements and the current project design differs from the 2010 d e sign both in des ign and placement o f the house and driveway. In addition, new biological information h a s been developed since publication of the 2010 IS. Although the Town has conducted biological reviews of these s etbacks, the peer review identified the need for additional work regarding the setbacks, and the Pacific Biology report identified additiona l sensitive r esources on the s ite not previously considered in the old IS . The Wood Biological Resources r e port, prepare d for the 2010 IS/MND, also classifies much of the part of the site p r oposed for development as "riparian" habitat, yet the 2010 IS/MND did not address this potential impact. The general public and the State resource agenci e s have not been afforded a n opportunity to comment on those analyses via the CEQA process. The 2010 IS/MND also states that the project plans have been reviewed by CDFG (now CDFW) with respect to a Streambed Alteration Agreement (SAE). This was incorrect in 2010 and is incorrect with respect to the cu r rent project, neither of which applied for such an Agreement. This deficiency remains applicable to the current project. Further, the 2010 approvals have lapsed and the applicant has changed. This is clearly a new project, the approval of which triggers a new CEQA review. CEQA define s a project as an "action", which is, in this case, approval of the proposed house plans. The action is not a previous approval. Therefore the CEQA process begins de novo . As detailed in our June 2, 2016 letter, CEQA allows use of a previous Initial Study, if applicable, to a new project, and sets forth a specific series of actions that a lead agency (in this case, the Town of Los Gatos) must take to comply with CEQA. CEQA Guidelines 15063 describes the use and required conte nts of an Initial Study, including the use of an earlier 2 Based on the letters sent to the regulatory a ge ncies, it w as not the Town who reache d o ut, b ut rathe r t h e a pplicant As d escribed above, this approach t o agency co n s ulta tion is v irtuall y guaranteed to result in a no n- r esponse from the agencies. 4 19 Highland Avenue Creek and CEQA Comments Page 5 August 15, 2016 Initial Study. Regarding the use of a previous CEQA document, Section 15063(d)(3) states that th e IS contents must include, Identification o f environm e n tal effects by use of a checklist, matri x , or oth e r method provided that entries o n a c he cklist. .. a re b ri efly explained to indicate that there is some evidence to s upport the entri es. The b r ief exp lanation m ay be either through a narrative o r a reference to another info r mation source s u.:h as .... an earli e r E IR or negative declaration. The CEQA Guidelines also set forth requirements for agency consultation with responsible and trustee agencies (Section 15063(g)), and a specific process for adoption of a Mitigated Negative Declaration (Sections 15072, 15073, and 15074). This process involves circulation of a Draft Initial Study and Notice of Intent to Adopt a Mitigated Negative Declaratio n, public and agency review of the IS/MND, and consideration and adoption of the MND. The Town has sidestepped the required CEQA process in favor of another process of its own making. This is expressly prohibited by CEQA case Jaw. In the Salmon Protection and Watershed Network v. County of Marin decision (December 2004), the Court of Appeals ruled: Reliance upon mitiga tion m easures (whether incl uded in the app licat ion or later adopted) involves an evaluative process of assessing those mitigation m easures and we ighing them against potential env ironmental impacts, and that process must he conducted under estahlishetl CEQA standards and procedures for E/Rs or neg(lfil'e declarations. (emplwsis added) As clearly stated in this decision, a Lead Agency must perform its evaluation under the procedures established by CEQA, and may not make up its own parallel CEQA process . Should the Town choose to rely on the analyses in the 2010 IS/MND , augmented by the more recent biological resources reports, the CEQA process for this project wou ld be to prepare a new IS/Notice of Intent to Adopt and MND (including the new project plans, setbacks, new biological a nalyses, etc), circulate it to the public and applicable reso urce agencies, consider public and agency comments, and then, should the Town choose t o approve the project, adopt the IS and a new Mitigation Monitoring and Reporting Pl an. Therefore, it is my professional opinion that Town's substitute process is impermissible and fails to meet the public and agency involvement and goals of CEQA. Conclusions As summarized above, the project continues to fail to comply with required stream setbacks. The Town has failed to consult with applicable state resources agencies, and failed to meet CEQA procedural requirements for impact assessment, public and agency disclosure, and review. In a ddition, based on information provided in the Wood and Pacific Biology reports, the 2010 MND does not accurately characterize the stream and associated riparian zone. The reduced bioswale capacity also should be evaluated in the IS. It is my professional opinion that the project should be re-designed to comply with the Town's creek setback standards, a new or revised IS should be prepared, and that docume nt should be re-circulated for public and agency review according to CEQA 5 19 Highland Avenue Creek and CEQA Comments Page 6 August 15, 2016 requirements. Please feel free to contact me at 510 849-2354 if you have any questions regarding this letter. Sincerely, Richard Grassetti Principal Grassetti Environmental Consulting 6 Lisa C . Roberts 78 Alpine A venue Los Gato s, CA 95030 lroberts(@.rehonroberts.com . August 10,2016 Mary Badame, Chair Michael Kane, Vice Chair Kendra Burch, Commissioner Charles Erekson, Commissioner Melanie Hanssen, Commissioner Matthew Hudes, Commissioner Tom O'Donnell, Commissioner Planning Commission Town of Los Gatos 11 0 E. Main Street Los Gatos , CA 95030 408-859-7585 Re: Appeal of Arc hitecture a nd Site Applicati on S-15 -077 Conti n ued H ea rin g Set for August 24, 20 16 Dear Commissioners: I reside at 78 Alpine Avenue, Los Gatos. I am one of the appellants ("Appellants") in the above-referenced app eal (the "Appeal") of the decision of the Development Review Committee ("DRC") approving Application and the Appeal Site Application S-15-077 (the "Application") by the Applicant Ed Pearson ("Applicant") regarding 19 Highland Avenue (the "Property") designed by Bess Wiersema (the "Architect"). I am submitting this letter for review and consideration for the upcoming August 24 hearing on the Appeal. I believe that a beautiful home can be built on this beautiful site, and I look forward to having new neighbors who will enjoy the neighborhood as much as I and my famil y have for the last 28 years. It is not Appellants' right, or job, to design or redesign Applicant's house. We ask only that whoeve r builds a house on this site complies with the law , including CEQA , as well as the Town's very thoughtful and important guidelines governing hillside and creekside development. I. Introd uction and Request At the June 8 Hearing, this Commission gave Applicant the choice of whether to accept a granting of the appeal and the opportunity to appeal that decision to the Town Council or to revise his plans. Applicant elected to revise his plans. The members of the Commission worked hard at the hearing to articulate their concerns to guide Applicant's revisions. As discussed below, the revised plans demonstrate that Applicant did not take the Commission's concerns seriously. Rather, it appears that Applicant merely chose to revise his plans in order to avoid the immediate granting of the Appeal and in the off-chance that the Commission might accept de minimis changes the second time around. Also as discussed below, Applicant failed to honor the Commission's request that neighborhood input be considered in the revision process. Rather, Applicant and his Architect effectively excluded Appellants from the process until only days before the date on which this submission was due for the then-set hearing of July 27, 2016, and then essentially presented the revisions to Appellants on a take it or leave it basis. For these reasons, as discussed below, I request that the Commission uphold the Appeal and deny the Application. II. Summary of Commission Comments and Di rections at June 8 Hearing The Commission of course is in the best position to recall and characterize its comments at the June 8 hearing, but set forth below is my understanding of those comments and directions based not only on my attendance at the hearing but my thorough review of the video proceedings including most importantly the deliberations of the Commission. As concluded by the Commission, as I understood the Commission 's comments: 1. The structure must be substantially smaller. 2. The structure must provide a 20-25 foot setback from the creek. 3. In revising the plans, Applicant must comply with , or at least make a serious attempt to comply with , the LRDA . 4. In revising the plans, Applicant must also comply with the Hillside Development Guidelines including their impact on FAR. 5. Applicant should consider the concerns stated by Commissioner Hanssen regarding the amount of retaining wall. 6 . The structure must fit into its natural surroundings. 7. For both his protection and the Town's, Applicant should consider whether he can rely on the CEQA report that is several years old relating to a different project or whether he needs to do more to comply with CEQA. 1 As discussed below, with the exception of a change in the creek setback, Applicant failed to take to heart any of the Commission 's comments, and, even as to the creek setback, the change is inadequate as explained below and it also results in an even deeper and more material encroachment of the structure outside the LRDA.2 Ill. Summary of Defects in the Revised Plans and the Proposed Project, Including Applicant's Failures to Address the Concerns Stated by the Commission Appellants may need to provide further information at or before the hearing, but, based on what I have been able to determine for inclusion in this submission, the revised plans fail to address the Commission 's concerns and the project is otherwise defective in at least the following ways: 1. The structure is not substantially smaller. 2 . The structure does not accommodate the required creek setback. 3. The structure even more seriously intrudes into the area outside the LRDA. 4. The structure still does not comply with the Hillside Development Guidelines, including their effect on FAR. 5. With the possible exception of the driveway retaining walls, the revised plans do not meaningfully alter the project's reliance on retaining walls and/or other unnatural grading. 6. The structure still does not fit with or respect the site's natural surroundings. 7. Applicant has incorrectly elected to continue to rely on a stale CEQA Report. 1 I provided my statement of my understanding of the Commission's comments in a June 23 email to Applicant, a copy of wh ich is attached as Exhibit A. I did so in an attempt to do my best to move the revi sio n and review process along. By then, over two weeks had passed since the June 8 hearing, and Applicant's fiance Ms. Cindy McCormick had advised that there was no news to report because Applicant's Architect was busy. (We later learned from Applicant that he and his Architect did not meet for the first time to discuss what plan changes to make until June 25 .) Given that there was only a period of 37 days between the June 8 hearing and the date, July 21, for submission of material s for the Commission package for the July 27 hearing and that it was already the 15 1h {and soon to be 17111 day) of that period without action by Applicant and his Architect , I was concerned about the delay and its impact on our ability to review and respond to the revised plans. In his June 25 response to my email (a copy of which is attached as Exhibit B), Applicant stated that he had a different interpretation of the Commission 's comments but did not explain in what regard . ~At the outset of the June 8 hearing , I presented n letter to this Commission, and the letter was di sc ussed, but it do es not appear that it was formally added to the r.le . Allached as P.x hibit C is another copy of the letter for inclusion in the file . 3 8. Applicant has failed to address other concerns properl y and legitimately raised by Appellants, including the proper preservation and protection of trees , reduction of elevation, and confonnity of design to Town guidelines. Each of these issues is discussed below. IV. Appli cant Ha s Failed to Revi se His P la n s to Meet the Concerns of t he Commi ssio n and th e Appella nts, a n d t he Appeal Shou ld Be Grant ed . A. A p pli ca nt's Revi sed Pl a ns Still Overly Maxi mi ze Size on a Site Callin g for No n-Ma xim iza tio n. The Commission called for a substantially smaller house. Applicant reduced the square footage by 8.45 percent (i.e., from 5,077 square feet to 4,648 square feet). Under no interpretation is that a substantial reduction . Further, in light of the comments by the Commissioners regarding the size and its multiple negative impacts on the project, it is inconceivable that either Applicant or his Architect truly believed the Commission was really asking for such a de minimis reduction.3 Nor would the other changes made by Applicant have any appreciable effect in reducing the size and mass of the house. The revisions merely nibble at the length of th e structure, reducing it by 2.5 feet, a negligible amount given the extreme length of the structure. Similarly, Applicant's 18-inch reduction in elevation, only on the rear end o f the house, while a step in the right direction, would not significantly alleviate the massive presence of the structure on the site. This is particular true given Applicant's simultaneous plan to encroach even more deeply than before outside the LRDA, into the slope, and closer to the road , in order to increase the creek setback without materially reducing house size. Size was arguably the most significant concern expressed by the Commission, and it was certainly the most encompassing. As stated by Commissioner O'Donnell, size is his biggest problem with the project, and, even if everything else were perfect with the project, he still would be concerned by the sheer size. Moreover, size was identified as the primary culprit for numerous other material problems with the project, including the lack of the proper creek setback; the violation o f the LRDA requirements; the violation of the Hillside Development Guidelines; and the interference of the planned structure with the natural environment and setting of the site. As noted by Commissioner Hudes, the setting of the site is very important to retain, and 3 Notably, neither Applicant nor the Architect denies that they were asked to make a substantial reduction. Also , notably, Applicant has effectively admitted that the reduction was not substant ial in his justification for not readjusting the story poles to show the new design . As he explained after a July 16 meeting, the rules require adjustment only if the plan s are modified substantiall y and the plans were "not substantially modified ." 4 any decision by the Commission on the project must come down on the side of protecting the environment that is there and the unique natural setting that makes the site so special. The Commission's direction to Applicant and his Architect, both present at the hearing, was clear. As voiced repeatedly by different Commissioners, Applicant needed to design a "substantially" smaller house, and , as Commissioner Kane put it, a "nice house that tits." Applicant has not done so, and, just as Commissioner O'Donnell pointed out with respect to the original plans, AppJicant and his Architect are still trying to maximize size on a site that calls out for non-maximization. Applicant has failed to omit a single room from his plans. His house remains a four- bedroom (including master suite with his and her closets), five-bathroom (incJuding powder room) house with a living room, great room, study, deck and balcony, and other such amenities as a wine room, a spacious laundry room, a kitchen with island and prep bar and desk and a pantry (albeit now renamed simply "pantry" rather than "butler's pantry"), and an oversized attached garage. Effectively, his design still follows a cookie- cutter developer's checklist of maximum luxury. Appellants believe that Applicant does not need such a house to make a profit. The Property is a jewel, one that, as described by Commissioner Hudes, is "at the base of a hollow created by erosion and a stream.'' There would likely be many buyers who would appreciate a house that respects, rather than overwhelms, the rare beauty of the site. However, neither Applicant nor his Architect appears to assign any weight to the value, economic and otherwise, of a reasonably sized house befitting the natural setting. Indeed, they continue to maintain that Application is entitled to develop the site to its maximum . Applicant still contends that original plans complied with all Town requirements (as stated in his June 25 email to me). His Architect contends that Applicant "actually has the right to build a 4700 square foot home on this property," apparently referring to the current proposed size of 4,648 square feet. She also maintains that Applicant has the right to all the "current amenities" including an attached garage. The Architect maintains that the house will now look like a one-story from the road. Knowing how much Commissioner Kane enjoys hyperbole, I will offer the following: this is like saying that, if you built a tower emerging only one story above the crest of the Grand Canyon, it would look like only a one-story home. The front of the house with all its mass would be in full view from the road; the alleged one-story view would occur only higher up the road about midpoint of the side of the house; the house is clearly and obviously built deep into a high steep slope; and, unless you keep your eyes closed during the first part of your drive and half-closed for the remainder of your drive (so as not to notice the ditch between the road and house side), you are not likely to conclude that the house is a modest one-story. 5 Furthermore, this masquerade is not even arguable from other perspectives of the house. As noted , the full mass is on full view from at least Highland Avenue at the front side of the structure and likely at the back side as well. The view-and the mass-is perhaps even more profound from the perspective of properties on Alpine backing up to the subject Property, many of which extend downward into the hollow shared by the subject Property and view the property both from the level of Alpine and from creek level. It is my understanding, under Gene ral Plan CD-14.3, ·'[a) maximum of two stories shall be visible from every elevation." (See also HDS&G p. 36 ['"Three-story elevations are prohibited"].) There is absolutely no dispute what the structure as planned by Applicant would look like: an exceedingly long three-story edifice extending between the road and the creek. Because the visual cannot be denied, the Architect has resorted to the invisible, arguing that the structure is not really three stories because the upper floor is not stacked above the garage. Town Policy CD-14.3 does not address the invisible but the visible. The structure would have a devastating visible impact on a natural setting that, as concluded by the Commission , is very important to retain. Town Policy CD-14.3 is expressly written to consider visibility from all elevations. From part of Alpine and all of Highland (in other words , from all perspectives of the Property from the public and adjoining properties), the structure would effectively destroy the natural setting. This is neither proper nor necessary. Less profit motive and more sensitivity could easily result in a design with materially less adverse impact on the site. B. Applicant's Revised Pl ans Do Not Acco m modate t he Re q uired Creek Setback. As noted by Commissioner Hudes, the evidence presented at the June 8 hearing that the creek is ephemeral rather than interm ittent is not credible, and a 20-25 foot setback from the creek is required . Based on the Commission's statements of concern regarding the creek and the setback, it is also apparent that the Commission rejected Applicant's argument that the 20 -25 setback rule is intended only to ensure slope stability but is also intended for the protection and preservation of the creek and surrounding habitat. (The Commission will recall that, under Applicant's expert's reading of applicable law , nothing would preclude a structure right next to a creek as long as there was sufficient slope stability.) Additionally , Applicant and his Architect were urged to try to accomplish the creek setback through reduction of the structure rather than by resort to the LRDA . As noted by Commissioner O 'Donnell , reducing the size of the house would make it easier for Applicant to meet the intermittent-creek setback. The Commissioners did not specify which setback was required , whether a 20-foot setback or a 25-foot setback. However, in line with Commissioner Hudes 's comments, it appears that the testimony of Appellants' experts rather than the testimony of Applicant's expert was deemed credible, and Appellants' experts' testimony clearly stated that the 6 25-foot setback is required for this property.4 As testified by Richard Grassetti of Grassetti Environmental Consultants ("GECO"), for lots over 10,000 square feet, such as this one, the required setback is 25, not 20, feet. (See hearing video transcript starting at approximately 1:41 :55; see also GECO June 1, 2016 Report p. 1 ["the appropriate creek setback on the project site is 25 feet"].) Applicant's revised plans still do not comply with the required creek setback, for at least two distinct reasons. First, they provide for only a 20-foot setback, when, as discussed above, the size of the Property mandates a 25-foot setback. Second, Applicant's setback, even as to 20 feet, is illusory. The Architect did not consider either the health or preservation of the creek or the protection of water quality in her creek setback re-design, and her plans show it. As she advised (at a July 16 meeting), her re-design was based on slope stability. In other words, she continues to maintain that the sole purpose of a creek setback is to maintain slope stabilit y. Based on that approach, she has contrived a novel and completely illegitimate setback re-design which is contrary not only to the purposes of the creek setback but also to any normal or standard understanding of the noti on of a setback. Specifically, the Architect moved only the footprint of the structure 20 feet away from the creek. She then recaptured the otherwise lost square footage by cantilevering the structure back into the setback area. Even if the cantilevering were from the highest floor (what she calls the second but which visually appears to be the th ird), it would intrude in the setback, but, in fact , it is extremely low-lying (according to the Architect, only approximately 4 feet off the ground). There is nothing magical about 4 feet; under the Architect's approach, the canti levering could be one foot, or even one inch, off the ground. As long as it does not touch the ground (or affect slope stability), it wou ld meet the Architect's view of the setback requirement. The same absurdity follows from the Architect's approach to how far into the setback the cantilevering can extend. Here, the cantilevering reportedly extends 3 to 4 feet into the setback, filone improperly intruding into the required setback, but again, there is nothing magical about the distance selected by the Architect. The reasonable corollary of her approac h is that the cantilevering can go as close as it wants to the creek, as long as, again, it does not affect slop e stability or touch the ground. I am hardly an expert, but it would be very hard to deny that a creek, creek-bed, and surrounds would be affected by the installation of a structure within the setback not only on the ground but also minimally raised above the ground. In both instances , there is intrusion into the setback and interference with and impact on sunlight, plant life, and 4 It should not be forgotten that the reports in favor of Appe llants ' position a lso include a May 26 , 2016 report by Live Oak Associates that was part of the Town's file and erroneously not reviewed by the Design Review Committee in connection with their consideration and approva l of App li cant's application. 7 habitat, as well as myriad of oth e r things that may be considered by an environmental expert (and that were surely considered when the creek setback rules were made). Nothing in the creek setback rules provides for this approach. To the contrary, the approach is inconsistent with the language and purpose of the rules as wen as with any reasonable definition of setback. The 3-4 foot intrusions (which are actually, based on the proper 25-foot setback, 8-9 foot intrusions) result in only a 16 to 17 foot setback. Both because of the violation of the setback in this case and because of the dangerous precedential impact of accepting a setback rationale that would literally obliterate the setback, the Architect's approach should be rejected. Applicant and the Architect's solution to the setback issue is a contrivance devised only to maintain Applicant's desired, and inappropriate, house size; it is not protective of the creek or in compliance with the nature and purpose of the setback requirement; and it should not be accepted by the Commission. C. Unde r Ap pli can t 's Revised Plans, th e E ncroachm ent Past th e LR DA is Worse and Eve n Mor e I mpr ope r Than Befo r e. While the Commission did not set an absolute LRDA requirement on this project, there is no question that, based on the comments and opinion of the Commissioners , Applicant's first and foremost task in seeking compliance with the LRDA Guidelines (while also complying with the creek setback requirement) was to substantially reduce the size of his house. Commissioner Hudes stated that he had not understood Staff to have said that the LRDA needed to be exceeded on this project. Rather, he understood that the LRDA was exceeded only to retain the size of the house. He further advised Applicant to take a serious look at the LRDA Guidelines and use them as a way to plan a project that is more approvable. As discussed above, Applicant c ontinues to insist on a house that is too large for the site, and, therefore, the primary method by which he has (still inadequately) increased the creek setback has been to make even deeper and more drastic encroachments outside the LRDA . Initially, Applicant claimed that, under his revised plans, his LRDA encroachment was only 1150 square feet, but, later, estimated it as more like 1170 square feet, but, in any event, there is a 40-45 percent encroachment outside the LRDA, and, even more notable than the percentage, the structure would now literally hug the side of the road resulting in new and/or exacerbated problems. Under the revised plans, the structure would be rotated and relocated to cut deeply into the steep roadside slope, taking the place of the retaining wall and exterior walkway set forth in the previous plans . In other words, where there was to be an intervening space between the house and the road made up of the walkway, retaining wall , and a narrow band of leftover sloped planting area near the road, now there would be no open space between the house and the narrow planting area, the house would seemingly rise straight 8 up from a ditch, the structure would be only feet from the roadway, and the narrow sloping planting area could not even possibly allow for any kind of remotely natural- seeming screening from the road. One of the goals of the rules governing this project and compelling Appellants in this Appeal, and, I believe, the Commission, is the desire to respect the site and preserve the site's natural beauty, presumably not just from within the site but from its surrounds. It is very hard to imagine that that goal could be met by Applicant's redesign. While "hugging" is nonnally a good thing (the Architect refers to the structure as "snuggled in"), houses are not supposed to hug the road . No amount of Western Redbuds or Toyons or Wild Lilacs will disguise the proximity of the house to the road or the enormous mass of the structure. This is a site to be respected, not conquered. The solution posed by Applicant is driven solely by desire for size and should be rejected . D. Applicant's Revised Plans Fail t o Sufficiently Reduce the Amount of Retaining Wall, Result in Other Violations of the Hillside Development Guidelines, and are Associated with Further Disregard by Applicant for Preservation of the Property and the Creek. Applicant asserts that he has reduced the overall length of retaining wall from 653 feet to 21 0 feet. According to the Architect, he did so in two ways, first, by effectively pushing the house up to the slope at the road and having it act as a retaining wall, and, second, by re-planning the driveway and fire tum-around area. The result of the changes cannot be judged merely by the relative size of the reduction. The original 653 feet was an astonishing amount of retaining wall; the 210 feet of retaining wall is still significant given that, under the Hillside Development Guidelines, '·elimination of retaining walls is a priority." (HDS&G p. 19 , emphasis added.) Moreover, the methods for reduction are troubling. With respect to the substitution of the house foundation for retaining wall, while this technically reduces retaining wall per se , it in tum defeats the twin goal (and mandate) of the Hillside Development Guidelines to keep grading at a minimum. (See HDS&G p. 58 e'Grading shall be kept to a minimum].) The further shove of the house into the hillside through unnatural grading rather than following the natural topography further violates yet another requirement. (See HDS&G p. 36 [·'Buildings shall be designed to conform to the natural topography of the site"].) The driveway and tum-around revisions are troubling for yet another reason. In order to create his revised plans, Applicant denuded the area designated by his Architect for those structures. In doing so, he effectively created a cleared construction site without a construction permit and in the face of neighborhood controversy regarding the placement of the driveway and tum-around . 9 As noted above, on June 25, we were told that Applicant and his Architect had just met that day to discuss revisions to the plans, and one of the revisions was reduction of retaining walls. The very next day, Saturday, June 26, Applicant (by his crew or other laborers) clear-cut the proposed driveway/turnaround area and the creek next to it. His workers removed the entire understory of the area and dumped so much mulch from the clearing into the creek that the creek bed was not even visible. Applicant failed to notify us that he would be clearing this area, and, as he later acknowledged, his failure was deliberate. (See Applicant's June 29, 2016 email to Marni Moseley stating that he had considered notifying the neighbors but decided not to.) More importantly, Applicant also failed to notify the Regional Water Quality Control Board, as pointed out by Appellant Ms. Dede Smullen after she learned of the event from her niece. Under California Fish and Game Code section 1602, such notification, as well as application for a permit is required for any such activity. (See Section 1602 [requiring notification and application as to any activity that 44 may ... deposit debris , waste or other materials that could pass into any river, stream, or lake," including both episodic as well as perennial streams].) After discovery and complaint regarding his activity, Applicant claimed that he cleared the property to eliminate potential fire hazards pursuant to Town and County requirements. (See Applicant's June 29, 2016 email to Ms. Moseley.) The claim is manufactured . First, as noted above, the work occurred immediately after Applicant's meeting with his Architect and their decision to reduce retaining walls, and, as the Architect has since commented, the revisions required considerable review of the topography of the driveway/tum-around region. Second, were Applicant truly concerned about complying with Town requirements, he would have cleared the property by June I , 20 16, which was the Town deadline for taking down brush for fire protection, after which noncomplying property owners, including Applicant, were subject to a fine. Third, were Applicant truly concerned about fire protection (rather than about his plans and his project), he would have cleared his entire property. At a minimum, he would have started with areas far more susceptible to the start and spread of fire-such as the hillside right next to the proposed driveway/tum-around area. That hillside extends up toward Alpine and the houses on Alpine; because of its slope, it would act as a fire tunnel; and it is-and has long been-in dire need of clearing for fire protection, including clearing of long- dead fallen trees. Rather than focusing on that, Applicant literally stopped his clearing at the base of the hillside, going only so far as necessary to clear his planned (but not yet approved) construction site. Applicant has now finally acknowledged his obligations under the Fish and Game Code and reportedly (and belatedly) applied for a permit for the work. Regardless, the activities commissioned by Applicant for denuding the Property, dumping into the creek, and creating a construction site before issuance of a construction permit, must all be 10 considered in evaluating the good faith of his reduction in retaining walls, as well as his disregard for the preservation of the Property and the creek. E. Applicant Still Refuses to Comply Wit h CEQA. At the June 8 hearing, both for the sake of Applicant and for the sake of the Town, the Commission gave Applicant the opportunity to reconsider his position on CEQA. He has eiected not to take the opportunity . He continues to assert that he can rely on the 2010 CEQA Report, with the only requirement being to submit an internal addendum. Applicant has claimed that the addendum would be enough because the proposed design is not materially different from the design at issue in 2010. Indeed , by Ms. McCormick who is advising him on this question, he opines that the current project would have less material impact on the site. The environmental reports and testimony by Appellants' experts at the hearing cogently explain the need for a new and/or updated CEQA process in either case requiring recirculation of the Initial Study to the public and governing agencies. Additionally, the following points are critical: I. Ms. McCormick's opinion regarding the environmental impact from the 20 l 0 design and the current design does not substitute for professional, agency, and public review and satisfaction ofCEQA requirements, particularly since it is indisputable that the current design is different from the 2010 design, including in size and site placement. 2. It is likewise indisputable that the site itself has changed. Applicant has now verified that, in fact, the creek was moved since 2010. Additionally, as set forth in Exhibit D (as discussed below, the analysis of Applicant's tree protection plan), at least eighteen trees have been removed, and numerous other tree-related changes have occurred since 20 I 0 including tree growth, tree demise, and other changes. The years since 2010 have included years of drought and El Nino conditions. All these changes (and more detectable only by a professional environmental consultant) are material and likely have resulted in additional material changes to the site and its habitat. 3. There is the concept of a "stale" CEQA. Applicant's refusal to address the problems associated with the clearly old, and arguably very outdated, CEQA report is a disservice both to himself and the Town. F. Applicant's Tree Removal, Retention, and Protection P lan is Deeply Flawed. Exhibit D attached hereto sets forth separately my comments regarding Applicant's revised plan for tree removal , retention , and protection. As set forth therein, the plan is II outdated, incomplete, misleading, fundamentally flawed, and against both the Town Code and proper tree protection standards. G. Applicant Did Not Work With The Neighbors; He Presented His Revised Plans on a Take It or Leave It Basis. As set forth in the official minutes of the June 8 hearing, the motion made, seconded, and passed by the Commission was •'t o continue the public hearing for 19 Highland Avenue to the hearing of July 27,2016 in order for the applicant to work with neighbors and consider design modifications." Applicant did not work with the neighbors. Applicant has now admitted that Appellants were actively involved in review and discussion of his plans prior to the June 8 hearing, explaining that his Architect's claims to the contrary at the June 8 hearing were the result of a "misunderstanding." Appellants have been equally involved since June 8. As the Commission will recall, the continued hearing was set for July 27, the then earliest available hearing date, at the Architect's request. This meant that there would be only 42 days before the next hearing and only 37 days before the date for submission of materials to the package to the Commission for the hearing. Particularly given the time constraints (as well as foreseeable concerns regarding busy summer schedules), Appellants were very active in attempting communicate with Applicant regarding his revised plans. As noted above, prompted by Applicant and his Architect's lack of action on the plans, I sent my June 23 email to move the process along, as well as numerous additional emails toward the same end. The other Appellants also sent communications and otherwise engaged with Applicant in an effort to learn about the planned revisions, set meetings, provide input, and try to seek a resolution with Applicant. As discussed below, when we were finally provided with the plans, we attended two meetings, on July I 0 and July 16, to discuss them. Throughout the process, Applicant exhibited no interest in considering our input. As noted above, he and his architect did not even start working on the plans until weeks, after the June 8 hearing, specifically June 25 when he reportedly first met with his Architect to discuss revisions. Despite our requests, he refused to provide sufficient information regarding the planned revisions to allow comment (saying only such things as the size and retaining walls would be reduced without any indication of how and by how much). Applicant failed to provide the plans even by the date that he finally promised, July 7 . He finally provided the plans at a meeting on July 10, a meeting at which he had promised that his Architect would be present but that she did not attend. Applicant did 12 not make his Architect available as promised until a meeting on July 16, only days before the submission date for the then-set July 27 hearing . Starting the day after he provided the plans to us on July 10 and for the first time, Applicant threatened us with copyright infringement if we shared the plans with anyone, even, therefore , with our experts. Applicant allowed only that Ms. Smullen could provide them to her in-laws (whom, at least her mother-in-law as named Appellant, Ms. Smullen is representing in this Appeal). His Architect repeated these threats at the July 16 meeting. She expressly threatened Appellant Dr. Anthony Badame with copyright infringement liability if h e used the plans to create overlays for presentation to this Commission. She made this threat even though the plans had already been submitted to the Town for review and public posting and even though Staff later advised Dr. Badame (after consulting with Town counsel but without thereby providing legal advice) of no known prohibition against Dr. Badame's use of the plans for overlay and presentation to the Committee.5 Most discouraging, however, is the fact that Applicant presented the plans on a take it or leave it basis. He sought no input before the revisions, and he rejected all input after the revisions, including input on the matters addressed in this letter. The sole apparent aim of the meetings was to go through the motions of appearing to work with the neighbors . The sole substance o f the meetings from Applicant and his Architect's side was an aggressive defense of the plans. V. Conclu sion I believe the site is a beautiful one, as do the other Appellants and all of our neighbors, and I also believe that a beautiful home can be built on the site. It is close to the high school and town, and I imagine a family with school-age children enjoying that home and the natural setting for many years to come, just as my family and children have enjoyed our home. While we have had our differences with the Applicant-a developer whose goal is to maximize his profit from his investment-] recognize that he is entitled to invest and build. We have also had our differences with the Applicant's architect and candidly did not take well to her statement to the Commission that the site is a "pit" which is a chaiJenge rather than a blessing, as we see it. s Neither Applicant nor the Architect explained why they were suddenly raising copyright concerns, but the following is notable. No such claim was made at the June 8 hearing or thereafter unt il July 11. No such claim was made when the plans were provided to us at the July 10 meeting . The claim was not made until after, at the July 10 meeting , I happened to ask whether Applicant would make the site available for an architect to review. There does not appear to be any basis for Applicant's or the Architect 's s udden concern with copyright other than a desire to preclude independent architect review, preclude in structive overlays such as presented by Dr. Badame at the June 8 hearing, and deprive Appellants of the opportunit y to prov ide infonnation helpful to the Commission in deciding this Appeal. 13 But I and the other Appellants ha ve worked hard and sought to cooperate with the Applicant and the Architect to get past these differences to assist them and the staff to obtain approval for a home that is befitting that beautiful site. Unfortunately, Applicant 's house is not that home . For these reasons, I would ask that you uphold the Appeal and deny the Application . Thank you. Attachments 14 EXHIBIT A Lisa Roberts From: Sent: To : Subject: Hi Ed: Lisa Roberts Thursday, June 23 , 2016 9:34AM ed pearson (epearsonz@outlook.com} 19 Highland Thank you aga in for meeting last week (June 12) and please thank Cindy for her email to me yesterday. At the meeting, you said that you had been ill (I hope you are feeling better) and had not yet considered any rev isions to your plans. Cindy's ema i l says that there is still no news to report, that your architect has been busy, and that you w ill let everyone know once you have received and reviewed the revised drawings. My concern is that we will not be sufficient opportunity to review your revised plans and have an amicable dialogue to discuss them before the next hearing. It has already been two weeks since the June 8 hearing, and there are only five more weeks until the June 27 hearing, and we have still not seen any revised plans or been advised of any possible revisions that will be made. We need to have your revised plans in sufficient time to review and discuss them with you, and, if necessary, to prepare for the continued hearing. I understand that your architect has other projects, but she indicated to the Commission that she would be ready for a July 27 hearing knowing that, as Commissioner Bu rch had just stated, the Commission wants neighbor input and participation. We cannot provide that input and participation without seeing your revised plans (and in the interim being advised of the nature of the planned revisions). Additionally, as you know, because of the five or more schedules involved, we have had difficulty setting up meetings in the past (and, incidentally, I appreciate your explanation at our June 12 meeting that it was a misunderstanding that led your architect to blame the neighbors for this at the hearing), and we are now in the summer months w ith probable vacation plans to work around. I believe that you can build a lovely house while complying with the applicable rules including the LRDA and Hillside Development Guidelines, and all the neighbors are willing, and have always been willing, to work with you toward that end. Again, however, we need to see your plans as soon as possible in order to provide our input, particularly given the substantial changes that I anticipate that you will need to make to your plans based on the Commission's comments. So, even though it may be difficult to predict, would you please let us know when you think you might have plan revisions for us to review (and also whether you can advise us now of the likely nature of the changes)? I would also like discussion as soon as possible to set up a meeting (or series of meetings) w ith you and the neighbors to discuss those plans. Even if you only have potential ideas for revisions at this time, it would be very helpful to hear those ideas. As Teresa mentioned on June 12, It would likely have saved you considerable time and resources had you approached the neighbors earlier in the process with your original plans. The wisdom of early review is even more salient with the revised plans. In fact, the Commission made it clear that It wants neighbor participation to make sure that what is accomplished is fair for all, and the sooner we are able to review your ideas and plans, the more likely that goal can be met in order to achieve progress at or before the July 27 hearing. We have already stated our concerns regarding your existing plans in some detail, and I had hoped to be able by now to respond at least to some ideas by you on how your plans might be revised. In the interi m and to move this process along as best as I can without that Information, I note below the points that I understood were made by the Comm ission regarding your plans and the requirements for the revisions. Based on my understanding, the Commission indicated the following: 1 1. The house must be substantially smaller. 2 . It must accommodate a 20-25 foot setback from the creek. 3. It must comply with the LRDA and the Hillside Development Guidelines. 4. It must fit into its natural surroundings. 5. You should seriously consider what you need to do to comply with CEOA. On size, I know that it was frustrating to Cindy and perhaps to you as well that the Commission members d id not specify a precise size, but I don't believe that they really had the information (or obligation) to do that. They did, however, I think, provide very clear guidance on size. They did not ask only for a smaller house but for a substantially smaller house. Commissioner O'Donnell expressly stated that, even if everything else were perfect with the project, he would still be concerned about the sheer size of the house, and he noted that size was his biggest problem with the project. Other commissioners expressed similar concerns, focusing as well on size requirements effectively dictated by the LRDA and Hillside Development Guidelines, the creek setback, and the natural state of the site. They all also appeared to agree with Commissioner O'Donnell's assessment that, under your current plans, you were trying to maximize size on a lot that calls out for non-maximization. it seems clear to me that your revised plans must include major changes to the size of the house to satisfy the Commission. You might debate whether you have flexibility on the creek setback, LRDA, and Hillside Development Guidelines because Commissioner O'Donnell remarked that that some people may disagree that the creek is intermittent and Commissioner Kane decli ned to set an absolute requirement for compliance with the LRDA. However, even in light of any possible debate, Commissioner O'Donnell still urged you to consider the intermittent designation in revising your plans (even noting that reducing the size of your house will also make it easier to meet the intermittent creek setback), and all other Commission comments were strongly in favor of applying the 20-25 foot setback. (You will recall Commissioner Hudes 's comments, to which as I recall Commissioner Hanssen agreed, that the ephemeral creek argument is really not credible and that the 20-25 foot setback should be applied.) Additionally, as to the LRDA, the only rationale you have given for non-compliance is the desired size of the house (and FAR), and it seems very unlikely that the Comm ission would accept that rationale. As noted, it instructed the design of a substantially smaller house; it gave close attention and respect to public comment on the Hills ide Development Guidelines and FAR; and Commissioner Hudes expressly stated that he had not interpreted Staff's comments to say that the LRDA needed to be exceeded but was exceeded only to retain the size of the house; and he further stated that you should take a serious look at the LRDA and the Guidelines and use them as a way to plan a project that is more approvable. As Commissioner Kane put it, the Commission members are looking to see "a nice house that fits." As Commissioner O'Donnell said, the property calls out for non-maximization. As Commissioner Hudes stated, the Commission's decision should come down on the side of protecting the "environment that is there," the setting is "very important to retain," and the structure needs to more fitting to a property "at the base of a hollow created by erosion and a stream." I believe the neighbors have the same goals. I also note here the remarks of Commissioner Hanssen about the retaining walls. You wilt recall that the commissioner specifically asked Marni whether she had been troubled by how much retaining wall was being proposed versus what is contemplated in the Hillside Development Guidelines, and Marni's only justification for having allowed the walls was that they were dramatically lower than the ones in the plans given soft approval in 2010. In light of the Town counsel's confirmation that that approval is of no current effect as well as Commissioner Kane's general comment that reference to other projects under different rules is not helpful, Marni's justification is no justification at all . Since the Commission, like the neighbors, appears serious about compliance with the guidelines, I do hope that your revised plans include serious alterations as to retaining walls. As you know, the neighbors have suggested several alternatives for reducing the size and mass of your house, bringing the house into compliance with the LORA and Hillside Development Guidelines, and lessening the impact of the house on the creek, the trees, and the otherwise natural environment of the property. Also as you know, I have definite concerns regarding the design of the house both under the Hillside Development Guidelines and under the goal of a nice home that fits the environment. All the neighbors have a good understanding of the property including the creek and 2 other natural features. (1 , for example, have lived next to the property and observed the creek as it has existed on my property and yours for over 26 years.) Prior to the Planning Commission hearing, you were willing to consider only a few of our suggestions and none related to the size of the house. I am hopeful that, now that you have guidance from the Commission, you will provide us with information as soon as possib le regarding your revised plans so that we can comment and work with you regarding those plans . On a final matter, thank you for agreeing to communicate by email which will better ensure full and accurate discourse. Thank you also for removing the Pr ivate Property signs that you placed on the trees facing my home. appreciate your cooperation in both these regards. I look forward to hearing from you. Thanks, lisa Usa C. Roberts REHON & ROBERTS, APC 830 The Alameda, San Jose , CA 95126 408-494.0900 Main 1408·387-5233 Dir 1408-494.{)909 Fax lroberts@rehonroberts .com 1 www.rehon roberts com 3 EXHIBITB Lisa Roberts From: Sent: To: Subject ed pearson <epearsonz@outlook.com> Saturday, June 25. 2016 10:56 PM lisa Roberts Re: 19 Highland Usa, We are currently expecting the plans to be available for review during the week of 7/4 to 7/8. There will be ample time for you and the neighbors to review the revised plans, and for us to meet to discuss them, before the July 2th hearing. We clearly have different views on the interpretation of the Commissioners' comments, but I don't see any point in you and I debating that. We are going to submit revised plans that conform to all Town requirements (as we believe the current plans do) and that respond to the concerns expressed by the Commissioners, you and your neighbors will take whatever positions you decide upon regarding those plans, if we can find room for further compromise we will, and the Planning Commission will make a decision . I'll notify you when the plans are available and we can figure out a convenient time for a group meeting after the neighbors' review of the plans. We will be making the following changes to the plans (in no particular order): -Increasing the creek setback -Reducing the length of retaining walls -Reducing the footprint outside the LROA -Reducing the floor area ---....:_Re?ucing the number of trees proposed for removal -----------------------. ~e..M-~ L .1<-Dba-J-Ts ' -, l)/Y\ e_ 2-~ 7-b l ~ ..e._ vv\ ~; I ___. I -1· o ~ h \c. h.. -(1A \\ \"'..a':. fo~ d ==- Ke=CJ4CTf_-:\) EXHIBIT C June 8, 2016 Mary Badame, Chair Michael Kane , Vice Chair Kendra Burch, Commissioner Charles Erekson, Commissioner Melanie Hansssen, Commissioner Matthew Hudes, Commissioner Tom O'Donnell , Commissioner Planning Commission Town of Los Gatos II 0 E . Main Street Los G a tos, CA 95030 Lisa C . Roberts 78 Alpine Avenue Los Gatos, CA 95030 Re: 19 Highland Avenu e Arc h itect ure and S ite Application S-1 5-077 Dear Commissioners: 1 am one of the Appellants who appealed the decision of the Development Review Committee ("DRC") approving Architecture and Site Application S-15-077 (the "Application") regarding 19 Highland Avenue (the "Property"). I live at 78 Alpine Avenue ("78 Alpine "). 1 am submitting this Jetter to provide further support for the Appeal. Among other things, this letter addresses arguments made by the applicant Ed Pearson (the "Applicant") and the Planning Department Staff (the "Stafr') opposing the Appeal. As you know, the papers submitted in opposition to the Appeal have been voluminous. They include not only discussions and analyses of reports on which the DRC relied in approving this project but additional newly prepared reports. Including the Applicant's architect's new reports, th e Applicant has submitted five new reports in opposition to this Appeal. These reports were not made available to Appellants until posted by the Town no earlier than Friday afternoon , June 3, 2016. Thus, this letter does not, and could not , address all the statements and arguments asserted in those reports or otherwise in the materials submitted by the Applicant and the Staff in opposition to the Appeal. It attempts to address some of the major issues which alone, I submit, mandate granting of the Appeal. I appreciate your consideration of this letter as well as all other materials and statements submitted in support of the Appeal.1 1 It is my firm belief that there is more than ample evidence on the record to grant the Appeal. However, given the plethora of new reports presented by the Applicant and the abbreviated time for review or rebuttal of those reports , should this Commission have any concerns about granting this Appeal outright, I request that Appellants be given further opportunity to provide a thorough response to the Applicant's new materials. l. The Violations o f State a nd O ther Mandatory Laws Outlined in the Grassctti Envi ro nm en ta l Consu lti n g an d P acific Bio logy Reports Requi r e Granting of the Ap p ea l. Appellants have submitted reports prepared for this Appeal after DRC approval of the Application , including reports by Grassetti Environmental Consulting ("GECO") and Pacific Biology ("Pacific") Reports . These reports ("Appellants' Reports") were prepared by highly reputable and experienced professionals; they are well-reasoned and amply supported by the law and the facts; and they reveal basic and profound deficiencies in the environmental and biological rev iew process employed by the Staff in connection with the Application and the resulting illegality of the project as designed and approved . Among other things, they establish that (i) the creek on the Property is not ephemeral as assumed by the Town in allowing only a 15-foot creek setback rather than the applicable 25-foot setback ; (ii) in concluding that the creek was ephemeral , Staff completely ignored another professional report already in its file advising that the creek was not ephemeral; (iii) the Initial CEQA Study/Mitigated Negative Declaration was deficient in its discussion of the setback issue; and (iv) the Town's impermissible CEQA process resulted in denial of resource agency and public review of the project (including the Town's failure to appropriately consult with, or even make contact with, the regulatory agencies with jurisdiction and public trust responsibilities for wildlife habitat and water quality). (See GECO Report pp. I, 3-5; Pacific Report pp. l-2; see also Report by Wood Biological Consulting dated January 2008 in the Town's file [the "Wood Report").) Even to the extent that the Applicant's new reports attempt to dispute Appellants' Reports, the Appeal must be granted. This Commission has not been provided with any basis on which to reject Appellants' Reports in favor of the Applicant's new reports. To the contrary, as discussed above , Appellants' Reports are not only highly reputable and well-supported , they are supported by an equally professional report in the Town's tile on this project that Staff admittedly ignored as discussed below. In any event, the very existence of a dispute mandates, at minimum , granting of the appeal for further consideration ofthe Application by Staff. 2. Staff's Adm itted Fa il u r e to Consider the Wood Report Further Mandates G r anting of t he Ap p ea l. As noted above, Staff failed to consider the Wood Report requiring a 25-foot setback based on a non-ephemeral creek. Staff has given no justification for having ignored the Wood Report. As indicated in the attached May 27, 2016 email from Ms. Marni Moseley, Staff reviewing the most recent Application on the Property was unaware that the Report was even in the file . (See Attachment A .) Staff was required to consider all pertinent matters submitted to it. It failed to do so. The Appeal must be granted for this additional, independent reason. 2 3. The Applicant's Po st-Approval Arborist Report Further Supports Granting of the Appeal. a. The Design Should Have All owed Preservation and Protection of Healthy, MatureTrees, Including Tree 30. Tree 30 is discussed here both as a special concern and as an example of the DRC's failure to follow the Town's rules and guidelines for the protection of mature trees. Tree 30 is located at an interior comer of the north side of the Property, only inches from the property line between the Property and 78 Alpine. It is a large, healthy, double-oaked oak soaring several stories and providing an important, probably the most important, single item of screening between 78 Alpine and the Applicant's planned construction.2 In connection with the public hearing, the Applicant placed red ties around the trees slated for removal, or allegedly did so. Tree 30 was not red-tied. The message was that the tree would remain. Only by happenstance did I determine otherwise. Recognizing the danger to the tree from construction regardless of its lack of designation for up front removal, I reviewed the plans and determined that, in fact, the Applicant's plans called for removal of the tree. The Applicant is not a lay person. He has repeatedly told me that he is a contractor, and not just a "paper contractor" but one who does the actual work. I am sure that he has a firm and deep understanding of the Property and the plans. As noted above, the tree is obvious, imposing, and important. The fact that Applicant d id not red-tie this tree, and thereby nearly misled me regarding the impact of his project on this tree , was and continue s to be of great concern to me. While Town rules do not require red-tying, the Applicant took it upon himself to red-tie; he did it in purported notice to the public; he had a duty which he did not perform of red-tying accurately. After this issue was brought to the Applicant's attention, he instantly agreed to not to remove the tree and to take measures to protect it, even as he admitted that the construction would not allow the measures that normally would be taken, himself volunteering that he could not stay away from the area within tree's drip tine. The Town's arborist report on which the Applicant relied for approval of his Application, the Arbor Resources Report dated February 15, 2010 (the "Arbor Report") as well as the arborist report he has commissioned for this appeal , the Monarch Consulting Arborists LLC 's Report dated May 10, 2016 (the "Monarch Report") demonstrate that the Applicant's agreement not to remove the tree is simply delaying the demise of the tree.3 2 The Applicant's architect Bess Wiersema of Studio Three Design claims that 78 Alpine will retain "a filtered view through very dense tree cover." (Studio Three Design Report p. 2.) This is utterly untrue. 3 With respect to the Applicant's agreement not to remove the tree, it is unclear what tree plan the DRC approved. When the notice of the DRC public hearing was given, the tree plan included, among other things, removal of Tree 30. One to two days before the public hearing, the Applicant purported to change the p lan to retain Tree 30 and remove other, different trees, including Tree 8. The DRC approved the "Application" without any clarification whether it was approving the plan as publicly noticed or thereafter revised. It is also not clear whether, if the latter plan was approved, how the revisions including at least one new tree for removal did not require public notice. 3 Specifically, the Arbor Report-on which the Application was approved-concluded that the tree would not survive construction, and the Monarch Report does not contradict this conclusion but further supports it. The Arbor Report expressly concluded that Tree 30 would be "adversely impacted by installing the proposed dissipater." It described it as among four trees that would be "subjected to such severe impacts that their premature decline and instability would result." (See Arbor Report pp. 3 and 4, bold in original.) It included it as among the 29 trees that "would either be removed or considered a loss (regardless if retained or removed)." (Jd. p. 4, bold in original.) The tree was ultimately slated for removal. (See Applicant's tree plan at time of notice of public hearing.) Similarly, the Monarch Report effectively admits that the tree cannot be protected under the current design. It contains a clear explanation of the need for protective fencing precluding construction work or activity for an area extending from a bare minimum of a distance equaling three times the tree's diameter at breast height ("DBH") to a recommended distance equaling five times the DBG . It concludes that placing fencing around the tree (which, as it notes, is located only 15 feet from the proposed house) is "not practical." (/d. p 9.) It the only possible "protective" measure is a wrap around the tree (which, of course, merely protects to trunk and provides no protection at all from the trunk) and a platfonn of plywood and mulch beside the tree on which the soil compaction from construction activities can be dispersed. (ld.) The Report does not say that this will protect the tree. To the contrary, as expressly stated in the Report under "Limits of the assignment," "[n]o tree risk assessments were perfonned." (/d. p. 1.) Nothing in the Monarch Report indicates that Tree 30 is not worthy of protection. To the contrary, while it denotes its condition as "fair," that description expressly denotes only "[m]inor problems, at least one structural defect or health concern, problems that can be mitigated through cultural practices such as pruning or a plant health care program." (/d. p. 4 .) Indeed, the Report remarks that a fair condition designation is "typical of an unmaintained woodland." (/d.) The Report does not elucidate what alleged problem has been detected in the tree. The appearance of the tree, including the trunk and canopy, is strong and healthy with no noticeable disruption of the roots. The Arbor Report expressly concluded that, but for the construction, the tree was "worthy of protection." It is worthy of protection, as are numerous other trees slated for destruction solely to accommodate a project that , here and otherwise, unnecessarily harms the natural resources of the site in violation of the intent and purposes of the Town's policies including tree removal policies. The Applicant has not presented a plan to save the tree, and his design should be altered. b. The Monarch Report Reveals That the Plan Approved by the DRC is Far More Destructive Than Previously Disclosed. Nowhere in the Application, including the Arbor Report, was it revealed that trees other than those placed on the tree removal list would also be endangered by the project. Now, post- approval, the Monarch Report has identified 14 retained trees that, by this report, the Applicant now admits are endangered by this project and must be protected. As noted further below, the Monarch Report is so out of whack with other reports that there has not been ample time to perform a detailed analysis, but, for example, the Monarch Report now admits that trees that the 4 Arbor Report listed assigned a suitability level of "high" and designated for retention without more are endangered and in need of protection, including Trees 8 and 11. Perhaps, as with other design approaches taken by the Applicant and his architect and accepted by the DRC, the Applicant was able to skirt the clear intent of rules and guidelines with respect to trees, identifying for review-and public notice-only trees that would be removed upfront while not mentioning the ones that would be rendered susceptible to a slower death. This does not, however, appear to be in keeping with the Town's professed mission to protect the Town's trees and other natural resources. c. The Striking Discrepancies Between the Monarch Report and the Arbor Report (and Stafrs June 8, 2016 Report) Justify tbe Commission's Disregard of the Report as Well as Granting of This Appeal. The Monarch Report attempts to establish that only a relatively small percentage of trees are being removed . The math is misleading and the facts are otherwise, but the main point to be made here is that there are so many discrepancies between the Monarch Report and other sources of infonnation that it should be disregarded in its entirety, and, for this additional reason, the Appeal should be granted. There is not even clarity as to how many trees exist (or did exist} on the Property , much less clarity as to , as now envisioned by the Applicant, what trees will or will not be removed. The Arbor Report counts 68 existing trees . The Staff Report counts 87 existing trees . The Monarch Report counts 91 existing trees . Only the first was of record at the time of approval. If the Monarch Report is correct, the Arbor Report on which approval was given was wrong. If the Monarch Report is not correct, inaccurate infonnation has been presented to this Commission. The discrepancies regarding tree disposition are equally serious. Again, for lack of time, only examples can be given that surely reflect the pattern. Tree 8 is, as noted above, designated as high in suitability in the Arbor Report and was to be retained . In an inexplicable manner just before the public hearing before the DRC , the Applicant advised me that, after my expressed concerns about Tree 30 (and thus after public notice of the Application was given), he "changed" the tree plan to retain rather than remove Tree 30. As set forth in his March 27, 2016 email to me (two days before the public hearing), he detailed other alleged changes including the removal of Tree 8. (See Attachment B.} Now, the Monarch Report states that Tree 30 will be retained and protected . (Monarch Report p. 19.) One might guess that this reflects that the Applicant's post-notice attempt to change his tree plan did not go through, but that is not the explanation. His post-notice changes also included the removal of Tree 27, which, since it was purportedly a change, altered the disposition of the tree under the Arbor Report, and that change, unlike the Tree 8 change, is reflected in the Monarch Report. These are serious discrepancies. They do disservice to the integrity of the Town planning process. They also warrant granting of this appeal. 5 4. The Applicant's FAR and Other Data is Inapt and Mislead ing. The Applicant's architect Ms. Wiersema has devoted considerable time and energy in preparing a FAR analysis that is successful only in emphasizing how large the Applicant's proposed house is compared to most neighboring properties, many if not all of which have much more spacious flat building areas and few if any of the other limitations of the Applicant's Property. Otherwise, the analysis is completely inapt. Ms. Wiersema's submission is designed to establish that the proposed house is appropriately sized for the site. Her analysis is fundamentally flawed . The issue before this Commission- like the issue before the DRC-is whether the project complies with today's rules. Were Ms. Wiersema to have presented data regarding the FAR of houses constructed on similar properties under the rules, Jaws, guidelines, and plans that exist today, or March 29, 2016 when the Application was approved , her data would perhaps have some relevant precedential value. She did not submit any such data, at least not in any recognizable fonn. Rather, as she admits, she relies on FAR data on houses that were constructed as far back as 1900, as well as under more recent but equally outdated rules (such as those effective in 1935, 1942, 1986, 1987, 1989). Effectively, Ms. Wiersema argues that a neighbor should not be entitled to object to construction of a new house, even if it violates every currently existing town rule, unless the neighbor is wiJling to chop off his or her long-existing house to meet today 's standards. The Applicant, an experienced and knowledgeable contractor, purchased the Property without an existing pennit, without entitlements. and without any pre-existing construction rights. His Application is independent of prior applications. It is governed by current rules. As will be explained at the hearing by Appellant Dr. Anthony Bad arne, because of the numerous existing vagaries of the Property, he is not entitled even to the current FAR maximum, and nothing about Ms. Wiersema's analysis alters that. 5. Granting of the Appeal is Also Warranted Based on an Apparent and Possible Violation of the Brown Act. As attendee at the DRC public hearing on this Application, it is my clear understanding based on statements by DRC members, including Ms. Moseley, that the DRC has already privately discussed and reached agreement to approve the Application before the public hearing. It therefore appears that the DRC may have violated the Brown Act by their private communications, notwithstanding any argument that they acted as "staff' rather than committee members during those discussions. 6. The Applicant and H is Architect Have Mi sstated the Communications Between the Applicant and Appellants. It is not the province of this Commission to decide the personality or other differences between the proponents before it, and it is unfortunate that the Applicant's Architect has resorted to assertions that the Applicant is "honest and neighborly" and Appellants are "re lentless and un- neighborly ." Were I not before this distinguished body, I would much enjoy addressing the Applicant's honesty and neighborliness. In the interest ofthe integrity of this process, I will 6 forego that pleasure and state simply that the Architect 's statements are not only outside of her personal knowledge, they are false . 7. Conclusion. As made clear at the DRC hearing and as will likely become further apparent at the hearing on this Appeal, in approving this Application S-15-077, the DRC rel ied heavily on the then existing Planning Commission's soft and now-expired approval of a different application (ApplicationS- 03-049) by the prior owner of the Property. This reliance was and is an inappropriate and ill- advised shortcut to a full and fair determination of this project under today's standards. It is appropriate to close with a comment made by Commissioner O'Donnell at the hearing on the prior application . As set forth in the minutes of that meeting, Commissioner O'Donnell "[c)larified that the owner has a legal right to build a house on the lot and the Commission does not have the right to determine whether or not a house is buill on the lot." While the Commission may not have the right to decide whether a house is built, it has full authority to decide what house is built, and, specifically, has full authority to ensure that the house that is built conforms to Jaw and the Town plan, rules, and, absent good reason for exception, guidelines. I do not oppose construction of a house on the Property. What I oppose is the construction of a house that breaks the law and flaunts the rules . It was the Applicant's job to design the house within the laws, plans, rules, and guidelines applicable to this Property, and it was the DRC's job to ensure that this was done. For the reasons set forth above and in the remaining materials submitted by Appellants, neither the Applicant nor the DRC performed their respective jobs, and I request that this appeal be granted to right the errors that have been made. Thank you for your consideration of this appeal and this letter. Attachments 7 Lisa Roberts From: Sent To: Dorothea Smullen <dorothea.smullen@gmail.com > Monday, June 06,201612:16 PM Lisa Roberts Subject: Fwd : 2008 Wood biological report survey 19 Highland Ave. -----Forwarded message--------- From : Dorothea Smullen <dorothea.smullen(a),gmail.com > Date : Wed, Jun 1, 2016 at 9:15AM Subject: Re: 2008 Wood biological report survey 19 Highland Ave. To: Marni Moseley <MMoseley @los L:,atosca.gov> Cc: gecons <gecons@aol.com > Did you get any more information about this report? We did get this report from your files so it obviously was submitted to the City . We were able to get an additional copy of the map directly from Woods. We will be submitting a letter with some attachments to be included in the PC packet. Yours, Dede 408-679-0254 (Mobile) On May 27 ,2016, at 3:13PM, Marni Moseley <MMo seley@losgatosca.gov> wrote : N o ne of the M ike W ood reports were ever submitted to the Town so I'm still resea r ching this with our o ld co n sultant. From: Dorothea Smullen {mailto :dorottJea .smul!en@amall.com] Sent: Friday, May 27, 2016 1:52PM To: Mami Moseley Subject: 2008 Wood biological report survey 19 Highland Ave. Can we get a copy ofthe wood biological report survey that shows the top of bank and the riparian setback. I cam pay fo r a copy if it cant be emailed. This is the report that is calling for a bigger setback. Is there a reason the recommendations of this report were not considered? Yours, Dede 408-679-0254 (Mobile) yours, De de 408-679-025 ./ 2 Lisa Roberts '---»:rom: Sent: To: Subject Attachments: ed pearson <epearsonz@outlook.com> Sunday, March 27, 2016 3:24PM Lisa Roberts 19 Highland items 2 Changes to Tree Plan .txt; 19 Highland Arborist Report.pdf HI Again Usa, here is the arborist report. Also please see changes letter attached . I would prefer to send you the corrected Landscape and Tree plan in the morning. I have to wait until my civil engineer gets to work in the morning to make the changes . He couldn't make it in today to do the changes .. hope that is ok. Happy Easter .. ed. -- changes to Tree Plan.txt '-1. Tree 28 was removed by previous owner 2. Tree 8 and 27 is to be removed 3 . Trees 29 and 30 will remain Page 1 EXHIBIT D: TREES ON PROPERTY Based on our review of the arborist reports that have been provided to us by Applicant and my discussion with Applicant's arborist, the foJiowing things are clear: A. The Town Arborist Report is Outdated, and a New T own Report S hould be Commissioned. The only independent guidance regarding trees on the Property is the report prepared by Arbor Resources for the Town dated February 15, 20 l 0 (the "20 1 0 Report"). That report was prepared over six years ago. It related to both a different construction project and a different environment. It is outdated, and a new independent report should be commissioned for the project now under consideration and based on the environment as it now exists . The 20 l 0 Report related to a now-expired application , Architecture and Site Application S-03-49 , by the former owner of the site, Dr. Angelo Orphan. The plans under that application are materially different from the plans now under consideration, not only in terms of size, dimension, and design , but also in terms of placement on the site. These changes have a direct effect on tree impact, as rellected by recent revisions to the proposed disposition of trees. The 20 I 0 Report also related to an environment that has changed. Since that time, there have been material changes to the site, including, for example, a relocation of a portion of the creek (which Applicant himself has now verified); the removal of 18 trees by the prior owner pursuant to his then-effective but now expired application; and tree growth and other changes altering the size, importance, and status of the trees. (On the last point, Tree 30 is illustrative, having, as discussed further below, grown significantly in diameter since 201 0 .) The change in environment-and the need to obtain updated independent review-is underscored by Applicant's arborist reports, the May I 0, 2016 report by Monarch Consulting Arborists LLC ("Monarch") (the "May 2016 Report") and the July 10, 2016 report by Monarch (the "July 2016 Report"} (collectively, the "Monarch Reports"). They differ in material ways from the 20 lO Report, including as to tree condition, suitability for preservation, and impact from construction, and there is no way to tell whether the differences are due to changed conditions or fundamental disagreement with the town report.1 1 Only by way of examples, the condition of one tree , Tree 1, is more favorably stated in the Monarch Reports ("good" as opposed to "fair" as stated in the 20 I 0 Report); whereas the 20 I 0 Report placed Tree 2 in the middle of the scale in tenns of negative impact from construction , the Monarch Reports foresee only a low impact of construction on the tree ; whereas the 20 I 0 It should be noted that as to the one factor that one could conclude could and would change over time, tree size, the Monarch Reports provide no guidance. As discussed below, as to all the trees identified in the 20 I 0 Report, they simply adopt the size as measured in 2010 and set forth in that report. The need for an updated independent report is further shown by the lack of necessary information in the Monarch Reports compared to the {now outdated) 2010 Report. The 2010 Report was forthcoming regarding important issues that are not adequately addressed, if at all, in the Monarch Reports, such as the impact of construction on remaining trees on the property and adjacent properties. It expressly identi fled trees that-even though they were not slated for removal-should nevertheless be "considered a loss" given the expected impact of construction. (See 2010 Report p. 4; see also pp. 4-6 [identifying, e .g., trees planned for retention that "would otherwise be subjected to such severe impacts that their premature decline and instability would result"].) (All emphases are in original.) As discussed below, Tree 30 was included in the loss list. Also, the 20 I 0 Report expressly identi tied potential impacts to trees on adjacent properties with recommendations to avoid jeopardy to them. (See 2010 Report p. 5 [stating that the proposed underground utility trench "will conflict with four large oaks located on the neighboring western property"].) The Monarch Reports does not provide any of this type of information . They do not list trees to be considered a Joss; they do not mention the four oaks on the adjacent property; they do not address the impact of construction on any trees on adjacent property (or, really, except to recommend a tree protection plan, address any such impact on trees on the property). It is wholly unclear whether the omissions are due to changes in the plans or simply failure to provide important information . Also, the 20 I 0 Report set forth diameter and estimated canopy spread measurements for all trees contained in the Report (Trees 1-68). (See 2010 Report, Tree Inventory Table.) The Monarch Reports do not include any information regarding canopy spread, and, as to diameter, as discussed below, they rely on the outdated 20 I 0 Report for that information. Given all the foregoing and the Town's dedication to preservation of trees, it seems essential that the Town be guided by a complete and independent report that addresses the current plans, current woodland, and the potential impacts of the currently planned construction on that current woodland. -------------------------------------------------------------------------------------------------- Report reported that Tree 30 would be so impacted by construction that it would be a loss with the highest impact of construction rating, the May 2016 Report stated that the impact of construction would be only moderate and the July 2016 Report states that, if 5 more feet is placed between the tree and the structure, the impact will turn to low. 2 B. The App li ca nt 's Arbo ri st R epo rts Ar e Sus pect, Rely ing on th e O utdated Tow n Arbo r is t R epo rt fo r Tree Size. As noted, the 2010 Report set forth both diameter and estimated canopy spread measurements for all trees contained in the Report (Trees 1-68). (See 2010 Report, Tree Inventory Table.) According to the Monarch Reports, they were commissioned as well to determine size (specifically, trunk diameter). (See Monarch Reports , p. 1.) However, although they were prepared six years after the 2010 Report, they fail to provide any updated size infonnation. They do not address canopy spread at all. As for diameter, they rely on, and in their tree inventories simply repeat, the sizes set forth in the 20 I 0 Report. (See Monarch Reports, Tree Inventory.) Of course, the tree sizes have changed-at least some of them -in six years, and , indeed, as discussed below as to Tree 30, the size change has been significant. Size is criticaL It obviously relates to the condition, presence, and importance of a tree. As discussed below, it also dictates the proper measures to take for adequate tree protection during construction . The Jack of current size information is a critical tlaw in the Monarch Reports. C. The r e Has Bee n No Mitigation As to T r ees Already Removed From the Site. Apparently prior to the expiration of his permit on his prior application, the prior site owner Dr . Orphan removed 18 trees from the site. (Compare trees existing as of2010 Report and trees existing as of Monarch Reports .) Considerable time has passed since that removal , and, to date, there has been no replanting or other mitigation to compensate for the removed trees. This itself is problematic, and it also raises concerns that additional tree removal will occur in connection with a non-performed construction permit. In any event, mitigation should be required promptly, regardless of progress by Applicant as to his application. D. Co ncern Only for "Good" T rees is I na ppropriate for a Woodland Site Typica ll y M ade Up of "Fa ir " Trees. As reflected in the Monarch Reports, the condition ratings for trees run from exceptional, to good, to fair , to poor, to unstable. (See Monarch Reports p. 4.) According to those reports , most of the trees on the s ite are in fair condition. (According to the July 2010 Report, there are no exceptional and only 3 good trees.) Additionally, many of the trees that have already been removed from the Property and which are now requested by Applicant to be removed are , or in the 20 l 0 Report were , rated fair . There may be a sense that trees in fair condition are not worthy of protection, and , if so, this is wrong based on Applicant 's arborist's observation regarding woodland sites. 3 As stated in the Monarch Reports, "[m]ost of the trees are in fair condition which is typical of an umnaintained woodland." (Monarch Reports p. 4, emphasis added.) Were "fair" to be a barometer of a dispensable tree, then any woodland lacking maintenance could readily be wiped out. Since one can expect that it is in the very nature of woodland to be in fact natural and relatively unmaintained, this approach would wipe out most woodlands. In the context of a woodland , where fair is typical and the value is in the overall wooded nature of the site, something more than simply a fair rating should exist before part of that woodland is destroyed or endangered. E. Applicant's "Retain/Protect" Plan Merely ~ubstitutes Upfront Removal With Death From Construction. In response to concerns about the scope of tree removal, past and planned, Applicant has purported to reduce the number of trees to be removed, transferring certain trees into a "Retain/Protect'' category. (See May 2016 Report, Tree Inventory .) However, this re- designation promises only to forestall the immediate removal of the trees without otherwise adequately protecting them from the adverse consequences of construction. For the reasons set forth below, the tree protection measures for the newly retained trees (as well as potentially at least some of the already to be retained trees) are substandard, created by the demands of the construction rather than the needs of the tree, and literally expected by Applicant and his arborist to fail. These conclusions are based on the following facts based on a review of the arborist reports and discussions with Applicant and his arborist. l. No tree risk assessments performed by Applicant's arborist. The Monarch Reports state that "[n]o tree risk assessments were performed." (Monarch Reports p. 1.) Notably, the 20 I 0 Report did not include such exculpatory or limiting language. To the contrary, as discussed below, it expressly identified trees that, because of the construction risk, should be considered losses. 2. No specific construction impacts on specific trees addressed by Applicant's arborist. Also unlike the 20 1 0 Report, the Monarch Reports do not address specific construction impacts on specific retained trees, instead merely making general recommendations oftree protection based on the practicalities of fencing and mulching given the proposed construction. 3. No list of "loss" trees by Applicant's arborist. As noted above and in contrast to the 2010 Report, the Monarch Reports do not identify any trees that should be considered a loss even though not being immediately removed. The silence in the Reports implies, inaccurately, that all retained trees will survive the construction. 4 4. Applicant's and his a rboris t's a d m issio n tha t tree loss is antic i pated. While the Monarch Reports fail to include a loss list or otherwise address the possibility that, despite not being immediately removed, some trees will not survive the construction, Applicant has admitted otherwise. At a July 16 meeting, Applicant conveyed his arborist's comments that he could have justifiably called for removal of Trees 62, 63 , and 65 because of their condition , whereas 10 additional rather than 7 additional trees would be removed, but he retained them to reduce the number of trees being removed. As reportedly stated by the arborist to Applicant, "[h]opefully, all three will live; maybe we can save one of them." (Applicant's arborist confirmed this, referring in a July 18 telephone conversation to the option of just petitioning for removal of the trees and not bothering with them .) Applicant characterized the approach as giving the trees a "fighting chance." I n theory, a fighting chance might be better than no chance at all, but, first, the Monarch Reports (like the 2010 Report for the Town) should have been forthcoming on the risks, and, second, there is no indication within those reports o r by any comments by Applicant or his arborist that the recommended tree protection measures wi 11 protect the retained trees needing protection. 5 . A ntic ipa tion of r etaine d t ree loss further evinced fro m t h e J uly 20 16 Rep o rt. As indicated by the 2010 Report, the typical categories of disposition are "Remove" or "Retain." (See 2010 Report Tree Inventory.) The May 2016 R e port used these two categories but also created a third category labeled "Retain/Protect" to which, as noted above , certain trees previously slated for removal were transferred. (May 2016 Report, Tree Inventory.) The clear impHcation was that the trees in that category would in fact be protected. Only a close look at the July 2016 Report reveals the attempt to back off from any such promise. While that report continues to recommend and describe various kinds of tree protection, the Tree Inventory no longer employs a "Retain/Protect" category. Now, all affected trees are placed simply in the category of"Retain." No reason is stated for this rather material change, but the effect is clear-to promise only not to cut the trees down in the firs t place and to employ tree protection measures that may or may not be adequate, which measures, as discussed below, are not in fact adequate. 6 . T ree protection measures to accommodate constru ction, not safegu a rd trees. The tree protection measures recommended in the Reports, most recently the July 2016 Report, are not measures that will protect the tree but only measures that will provide the best protection possible given the construction. As explained by Applicant's arborist, this tree protection plan was not made in the ideal world prior to construction plans but where the construction had already been decided upon with the question presented of what trees to remove, retain, and try to protect give that construction plan. In other words, some if not all trees will receive inadequate tree protection, not because they can withstand the assault of construction or 5 because they are not worth saving, but solely because the construction as planned does not permit adequate protection. 7. Inadequate tree protection planned. As clear from the reports and acknowledged by Applicant's arborist, the levels of tree protection described in the Monarch Reports (from protective fencing around the dripline, to protective fencing the distance of ~t least 5 times the tree diameter away from the tree, to protective fencing the distance of at least 3 times the tree diameter away from the tree, to plywood and mulch protection, to only wattle around the tree trunk) are in descending levels of protection, with the first level constituting the most protective and the others of decreasing protection. As noted above, the level of protection recommended for each tree was not based on an "ideal" world or a consideration of the site prior to construction plans. Rather, it was based on the highest level of protection possible given the structure already decided upon, the "best given the construction." All the trees now slated for actual removal are within the new footprint of the house with one exception for a tree considered particularly diseased. This means even trees close to the structure are to be "retained." The Monarch Reports calls for lower levels of protection, even down to just wattle, for the retained trees to be protected. F. The Proposed Tree Protection Plan Does Not Comply With the Town Code. The proposed tree protection plan does not comply with the Town Code in at least two respects. It fails to provide fence protection as required for all affected trees. It seeks exemption from required dripline fencing based on a fundamentally flawed TPZ (tree protection zone) approach . The Monarch Reports expressly cite Section 29.10.1005 of the Town Code. (See Monarch Reports p. 28-29 [Appendix D].) Applicant's arborist has confirmed his understanding that the requirements in Section 29.10.1005 are mandatory. Section 29.10.1005 expressly requires fencing for tree protection. (See "Tree Protection Zones and Fence Specifications" ~,11 and 2 and "All persons shall comply with the following precautions"~~~ and 2.) The only variable is the type of fence (chain link or orange plastic fencing) or the size of area to be fenced. (See "Tree Protection Zones and Fence Specifications" ~2.) Applicant's tree protection plan violates this requirement. It does not provide for fencing for all affected trees; it requires fencing only where, accepting the proposed construction as a given, the fencing would not be possible or practical. Thus, as to at least 20 trees affected by the construction, it recommends only straw wattle around the trunks because, given the location or proximity of the trees to the structure and/or to the surrounding work areas, fencing to exclude construction activity would be "impractical." (July 2016 Report p. 11.) Section 29.10.1005 does not contain any exception to the fencing requirement to accommodate construction (and particularly 6 not entirely new construction with no pre-existing structures), and the plan for these trees violates that section. The proposed plan further violates Section 29. J 0. J OOS's requirements governing the size of the area to be fenced. It requires a tree protection enclosure protecting the "entire dripJine area or at the tree protection zone (TPZ), when specified by a certified or consulting arborist." (Monarch Reports p. 28.) Implicit in this requirement is that any certification of a TPZ smaller than the drip line zone must be accurate. Here, the certification is fundamentally flawed . The Monarch Reports incorrectly assume that, since construction will occur on only one side of many of the trees including Tree 30, those trees do not need to be protected at the dripline but only on the construction side and only within the critical root zone ("CPZ") defined as a multiple ofthe diameter of the tree. (See May 2010 Report p. 8 [stating that, "because most of the trees will only be influenced on one side the CRZ [the critical root zone] will in effect be the TPZ [the tree protection zone] for this project and particularly for valley oak #30"Ji However, as Applicant's arborist has confirmed, this rule is intended for the norma) situation where root growth is relatively equal on all sides so that the side without construction can maintain the tree if the side with construction is protected only to the CPZ. With specific reference to Tree 30, he has further con finned that the tree does not fit this normal situation. The creek is on the non-construction side of the tree, and the tree is very near the creek. According to Applicant 's arborist, its roots "obviously" could not extend past the creek bank. In other words, most of Tree 30's roots may well be on the construction side, and there is not the normal basis for assumption that one-half of the root system will be undisturbed. This same concern applies to any other tree whose root growth is stopped at creek bank on the non-construction side, and, as to all those trees, the TPZ approach is flawed . G. The Plans Should Be Changed to Truly Protect I mportant Trees, Including Tree 30. As discussed elsewhere, Applicant's proposed construction is unsuitable for the site for numerous reasons including the nature of the site, the creek setback, the LRDA requirements, the Hillside Development Guidelines, the effect of the construction on the environment including the trees, and the potential concerns that could and should be raised via a timely CEQA relating to the current plans and current environmental conditions. Whereas Applicant's tree plan seeks to accommodate his construction, his 1 It is worth noting that the July 2010 identifies completely different trees to be governed by this CPZ approach. (See July 2010 Report p. 8 [no longer mentioning Tree 30 as a tree affected only on one side by construction and instead referring to Trees 27, 22, 23 , 38 , 40, 54, 62, 63, and 65].) 7 construction should instead accommodate the needs of the site and applicable tree preservation and other requirements. A notable example is Tree 30. There really is not any question that Tree 30 is worth preserving. It is a large , majestic , double-trunked, healthy, valley oak3 soaring several stories. It is located at an interior corner of the north side of the Property, only inches from the property line between the Property and 78 Alpine. It provides an important , probably the most important single item of screening between 78 Alpine and the Applicant's planned construction .4 It has important ecological and aesthetic value . It is visible from Highland Avenue as well as from at least three homes on Alpine Avenue. It provides significant screening between the Property and 78 Alpine. The 2010 Report expressly states that Tree 30, like others in its category, is worthy of protection . (See 2010 Report p. 3.) Based on the 2010 Report, it has the greatest canopy spread of any tree on the Property listed in the Report (80 feet). (See 2010 Report, Tree Inventory Table , p. 3.) Acco rding to Applicant's arborist, Tree 30 is 50 to 100 years old (and still in its youth with valley oaks typically having annual shoot elongation growth spurts of approximately 24 inches per year when young, i.e., during their first 300 years). For at least the past 28 years and likely for the 40-plus years of ownership by the prior owner of 78 Alpine, it has been the rough marker of the comer property line between 78 Alpine and the subject Property. According to the 20 I 0 Report, the diameters of the two trunks (or stems) of the tree were 20 and 16 inches in 20 I 0. (See 20 I 0 Report, Tree Inventory Report p. 3.) On July 15, 2016, a lay measurement showed significant growth since 201 Ot with the circumferences measured at 73 and 53 inches , with corresponding current diameter sizes of23.249 and 16.87 inches. The tree is located 15 feet away from the proposed construction under Applicant's original plans and 20 feet away from the proposed construction under Applicant 's revised plans. (See May 2016 Report p. 2 and July II, 2016 letter from Applicant to Town.) 3 As stated at in a report associated with San Francisco State University : Valley Oak (Quercus /obala) is the monarch of California oaks by virtue of its size , age and beauty (Pavlic et al. 1991 ). This magnificent tree is endemic to California and quite possibly is the largest North American oak, declaring it very unique . Descriptions of its remarkable stature appear in the diaries of many early visitors to California (Pavlic et al. 1991 ). (http:/ /on I i ne.sfsu.edulbholzman/courses/F all 02%20proj ects/valley oak. html.) 4 The Applicant's architect has claimed that 78 Alpine will retain "a filtered view through very dense tree cover." (Studio Three Design Report p. 2.) This is untrue. Even with Tree 30, the proposed structure will be extremely visible due to the over-sizing of the structure and the prior tree removal. Without Tree 30, there will be no screening as to most of the structure, including the portion that, regardless of technicalities , looks like a three-plus-story complex . 8 Applicant's original tree plan called for the removal of Tree 30. Prior to the March 29, 2016 hearing before the Development Review Committee, Applicant purported to put red ties on all trees slated for removal under his plans, but, in fact , did not put a red tie on Tree 30 even though his plans called for its removal. Only when I reviewed the tree plan did I discover that, contrary to his placement of the red ties, Applicant intended to remove this tree . Applicant then agreed to retain the tree, and the Monarch Reports set forth tree protection measures, but it is a near certainty that the measures will not save the tree from the impact of construction. The following facts, derived from the arborist reports and communications with Applicant and his arborist, are dispositive. Adequate protection is in fact completely possible, including with change in the size and location of the structure-a change consistent with other important goals including proper setbacks from the creek, compliance with Hillside Development Guidelines, and reduction in the size and mass of the house. But, under the current construction plans, Tree 30 is unlikely to survive. 1. The 2010 Report expressly stated that construction would result in the loss of the tree. The 20 I 0 Report expressly concludes the tree would be so severely impacted by the construction that it should be removed or considered a loss (p. 4 ["will be subjected to such severe impacts that [its] loss is anticipated"].) It further concludes that the intensity of the impact of construction on Tree 30 would be 1 (1 being the "highest" impact and 5 being the lowest) (p. 3 of Tree Inventory Table).5 2. The proposed tree protection is inadequate. As noted above, the Monarch Reports describe five levels of tree protection descending in quality from level to level. The May 2016 Report, relating to Applicant's original plans with the structure 15 feet away from Tree 30, concluded that such close proximity to the structure and the related construction work made fencing Tree 30 impractical. (See May 2016 Report p. 9 ["Valley oak #30 is approximately 15 feet from the proposed structure and to building the structure placing fence around this tree is not practical"].) It therefore called for wattle and plywood/mulch, the two lowest levels of protection (as well as one not condoned by the Town Code). Now, with the revised plans and only 5 more feet reportedly added between the tree and the structure, the July 20 16 Report claims that the tree can now be fenced in. (July ~The May 2016 Report comes to a different conclusion regarding the impact level for Tree 30, asserting that it is only moderate. [See May 2016 Report, p. 15.] It does not provide any explanation for the difference, whether based on change or circumstance or disagreement with the town arborist, and it provides another example of why a new town report is needed to provide independent review of Applicant's reports . 9 2016 Report p. 11.) Based on the following, the tree protection plan for Tree 30 is clearly substandard and violative of Town requirements. a . F lawed basis for CPZ approach. As noted above, the resort to a CPZ fence formula rather than a dripline measurement, including as to Tree 30, is fundamentally flawed and in violation of Town Code. Specifically, as to Tree 30, given the location of the creek bank beyond which the tree roots cannot extend, there is no justification for assuming that the roots on that non- construction side will be sufficiently strong or extensive enough to make up for impact on the construction side and allow tor a CPZ fence approach. b. No construction information in July 2016 R epo rt. The July 2016 Report fails to provide any information regarding the nature or location of the construction activity anticipated to take place ncar the tree and in particular in the area between the tree and the proposed structure. This is in contrast to the 20 l 0 Report which speci ftcally addressed the construction activity that would take place near to and affecting (and anticipated to result in the loss ot) the tree (20 I 0 Report pp. 4-5). It is even in contrast to the May 2016 Report prepared by Monarch that observed that "[t]renching for the foundation structure near tree #30 will be at the CRZ distance of five times the trunk diameter" (May 2016 Report p. 8). Such information is critical in assessing the adequacy ofthe tree protection measures (and, as demonstrated by the 20 I 0 Report, in determining whether, despite protection, the tree should be considered a loss). c. Need for fence protection at least 15 fee t f rom t he t ree. Even overlooking the fundamental flaw in the CPZ approach as to this tree, and applying the approach as instructe d in the Monarch Reports, the tree protection zone should extend at least 15, and probably over 16, feet from the tree. While the minimum zone is three times the tree diameter, the preferred zone is five time s the tree diameter. (See Monarch Reports p. 8, emphasis added [the critical root zone is defined as "the distance of three times the diameter of the tree at breast height ("DBH") in feet, and preferably five times"].) The Monarch Reports do not explain how a double-trunked tree's diameter is measured, but Applicant's arborist has confirmed that an acceptable approach is to count the diameters of both trunks, and this also seems reasonable given the additional mass and size and span of the tree afforded by the two trunks. As noted above, the diameter information in the Monarch Reports is outdated, but, even using the information as to Tree 30 (20 and 16 inches), the tree protection zone should be 15 feet. Based on the current Jay measurements (23.249 and 16.87), the zone should be over 16 feet ( 16 .717 feet). d. Applicant cannot credibly contend t ha t h is plans will afford Tree 30 the required t ree p r otection. Notably. the July 2016 Report does not state the 10 size of the fenced area nor even the precise formula to be used to de tennine the size (whether by a multiplier of 5 or 3 or s ome other way). Applicant's arborist has explained that the tre e will be fenced in along with other trees near the creek side. After discussion of the c urre nt planned distan c e of the tree from the structure (20 feet), he indicated that a fence could be installed 15 feet away from the tree and/or a fence could be installed and a remaining area protected by plywood and mulch . As no ted above, plywood and mulch does not me e t town requirements. As for a 15-foot placement of the fence , this is not credible. As noted above, the May 2016 Report concluded that no fence at all was possible when th e structure was proposed at 1 5 feet away from the fence . It makes no sense that the subsequent addi tion of 5 more feet between the structure and the tree somehow allows not onl y for a fence at all around the tree but for a fence 15 feet away from the tree . Further, as noted above, the May 20 16 Report observed that, when the structure was planned for 15 feet away , trenching for the foundation structure would be at the CRZ distance of five times th e trunk diameter as to Tree 30 . Thus, while the Jul y 2016 Report is silent on trenching, the 5-foot relocation oflhe structure would mean only a 5-foot change in trenching location . The tree protection zone is not measured from the structure; it is intended to protect the tree from construction activity; and, as set forth in the Town Code, all persons must "[p]roh ibit aiJ construction activities within the TPZ, including but not limited to: excavation." The proximity of the trenching, even under the revised plans; the lack of other . information relating to necessary construction activities; the lack of specificity fo r fencing in the July 2016 Report; and the suggestion of the use of plywood and mulch in lieu or in addition to fencing all indicate the lack of any assurance of the nature ofthe tree protection planned for Tree 30, that the protection will meet Town Code, or that it will truly protect the tree . II From : Anthony Badame [mailto :abderm@gmail.com] Sent: Tuesday, July 26, 2016 9:19PM To: Sally Zarnowitz Subject: Re: 19 Highland Hi Sally, Thank you for requesting that additional information be provided for sheet A4.1. Please also request that the existing grade be included given that this grade is used in determining building height limitations. Further, existing grade changed from the original posted plans to the plans approved at DRC. I have attached sheet A4.2 of each of these set of plans for your perusal. It is important that existing grade be verified for accuracy given the discrepancy. Sincerely, Anthony . __ ), ' .. , . -~ ~