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Attachment 19-20LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A P P E A R A N C E S: Los Gatos Planning Commissioners: D. Michael Kane, Vice Chair Charles Erekson Melanie Hanssen Matthew Hudes Tom O’Donnell Town Manager: Laurel Prevetti Interim Community Development Director: Joel Paulson Town Attorney: Robert Schultz Transcribed by: Vicki L. Blandin (510) 337-1558 ATTACHMENT 19 LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 P R O C E E D I N G S: CHAIR BADAME: Our next item is Item 3, for which I will be recusing myself due to a perceived conflict of interest with one of the four Appellants. Vice Chair Kane will take over, and I will return for Item 4. VICE CHAIR KANE: Item 3 tonight is 19 Highland Avenue. This is to consider an appeal of a decision of the Development Review Committee approving an Architecture and Site application to construct a new single-family residence and remove large protected trees on property zoned HR-2½. This is APN 529-37-033. This is an Appellant process, and the Appellants are Badame, Roberts, and Smullen, I believe. Ms. Zarnowitz, I understand you’ll be providing us with a Staff Report this evening. SALLY ZARNOWITZ: Thank you. As the Vice Chair noted, an Architecture and Site application for the subject site was approved by the DRC in March of this year utilizing a previously adopted Mitigated Negative Declaration for an approved single-family house on the site. The Development Review Committee approval was appealed and in June this Commission considered the appeal, continuing the matter and recommending the Applicant LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 consider revising the project in light of their comments. The direction included primarily reducing the size of the house, the extent of retaining walls, reducing development outside of the LRDA, and increasing the setback from the top of bank. A revised project was submitted in July. A note regarding the environmental review of the project. An addendum to the adopted Mitigated Negative Declaration, which is Exhibit 30 in your packet, was prepared for the revised project, including a brief explanation of why, based on the evidence, a subsequent MND pursuant to CEQA guidelines is not required for the current proposal. The Commission continued the matter to this evening in order to allow consideration of a recent CEQA case cited by the Applicants in September, and in response the addendum has been revised to specifically address the relevancy of the MND to the project. We have this evening the Town’s environmental and biological consultants available to answer questions as well. Regarding revisions to the project, briefly, the square footage of the house and its footprint, as well as the overall length of the house, have been reduced. The bulk is reduced by setting it further into the hillside, LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 especially as viewed from the neighbor’s driveway on the southern edge of the property. Changes to the driveway also reduced the extent of the retaining walls. Then, shifting the house to the south means it continues to fall outside of the LRDA, but it increases the minimum setback from the top of bank to 20’. As the Commission is aware, as the Town has purview over development adjacent to creeks based on the specific site conditions, exceptions to the recommended 20’-25’ setback for slope stability may be allowed with geotechnical studies, which is the case in this project. This evening we are recommending the Commission should consider whether the revisions adequately address your directions from June. Thank you. VICE CHAIR KANE: Thank you, Ms. Zarnowitz. Do we have questions for Staff? Commissioner Hudes. COMMISSIONER HUDES: Starting with an easy one. We had an Exhibit 38, and we also had an Exhibit 32. Are they identical to each other? I read everything, and I was trying to compare. SALLY ZARNOWITZ: I think there was a revision to 32 in Exhibit 38; that was a correction essentially in that exhibit. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER HUDES: Could you call our attention to that? Because it’s kind of difficult, as there are probably 50 pages in that exhibit. SALLY ZARNOWITZ: You’re looking at the September 14th Staff Report? COMMISSIONER HUDES: Well, Exhibit 38 is dated received August 18, 2016, and Exhibit 32 is dated received August 18, 2016. JOEL PAULSON: Commissioner Hudes, in the Staff Report that contains that Exhibit 38 is a revised version of Exhibit 32, which includes some attachments that were inadvertently left out of Exhibit 32 when it was originally provided, so there’s some additional exhibits is what the reference is called. COMMISSIONER HUDES: Exhibits to Exhibit 38, or additional pages? SALLY ZARNOWITZ: To Exhibit 32; that was corrected with Exhibit 38. COMMISSIONER HUDES: Okay. I had some other questions about the CEQA, particularly for the attorney. I wonder if this is an appropriate time to ask. VICE CHAIR KANE: Yes. COMMISSIONER HUDES: Two questions here. In the Staff Report it states that the addendum to the Mitigated LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Negative Declaration addresses the questions that were raised, but following that, in our Desk Item there’s a long letter that talks about the court case, and I don’t see anything in our Staff documents about that court case. What is the importance of that court case? Is it relevant? And why isn’t it addressed in the Staff Report? ROBERT SCHULTZ: With regard to the addendum, after our last meeting we looked at the Friends case and what it required us to do, and we went back and we made changes to the addendum, and the changes that were made had to do with when there’s a proposed project change, as is here, “The Town must determine whether the previous environmental document retains any relevance in light of the proposed project.” So you have to make some findings about the relevancy of that previous Mitigated Negative Declaration to the proposed project now, so those changes were made in the addendum so that it would comply with the Friends. I didn’t address the legal arguments that were made in the Desk Item, but I certainly can right now, because quite frankly, they’re absurd. They do not comport to what the Friends case said, and I can cite you specific language to the Friends case. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In a nutshell, what they’re trying to claim is the fair argument standard applies now based on the Friends case, and that Court didn’t say that. That’s what the plaintiffs were trying to argue in that case, but that Court specifically says the fair argument does not apply, the substantial evidence case applies, and I can cite you where it says, and I’ll quote, “Plaintiff argues that application of the substantial evidence standard to projects initially approved via Mitigated Negative Declaration,” which is right what we have right now, “creates a loophole in the statuary scheme, allowing agencies to evade their obligation to prepare an EIR based on more demanding fair argument standards.” That’s exactly what the Appellants are trying to state, that this case states. But the Court said, “Plaintiff’s argument would have the force if the guidelines did in fact create such a loophole, but the substantial evidence test referred in the guidelines does not.” The Court then went on to state, “It would be absurd to require agencies to restart the entire process of environmental review from scratch each time the agencies proposed any change, not matter how minor, simply because the project was previously approved by a Negative Declaration.” LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So it’s quite clear that you do not apply the fair argument standard, you do the substantial evidence test. I don't know why they’re coming up with this argument, but it’s not what that case states. I can cite you throughout the whole case where they go into it, and it’s substantial evidence test, so I looked at it from what we needed to do legally to meet that requirement in the addendum, and we did that based on attaching the relevancy to the two arguments, but I didn’t do a whole brief on the fair argument test, because it’s very clear and I didn’t need to do that. VICE CHAIR KANE: Mr. Schultz, when you say Friends, you’re referring to the social name for the Supreme Court case that we were awaiting. ROBERT SCHULTZ: Yes. VICE CHAIR KANE: You get ahead of guys like me, and I don’t… It’s a good TV show. ROBERT SCHULTZ: It’s the San Mateo case, yes. VICE CHAIR KANE: So this is the Supreme Court case they were waiting for? ROBERT SCHULTZ: It came out just a few days before the last one, and so we continued this hearing so we could take a look at that, and we did in fact make changes LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to our addendum based on that case, and so that’s why I thought we had resolved that issue, came forward with the addendum, and then obviously the Appellants are making an argument that the fair argument standard applies and all you need to do is find any fair argument to require an EIR, and this case said no, you have to find substantial evidence that the proposed project has new significant impacts, and the addendum did not find that. VICE CHAIR KANE: Mr. Hudes, I interrupted you. Do you have other questions? COMMISSIONER HUDES: Just as a follow up to that. So there was the original letter that initiated your legal research, and then there was a Desk Item that came in, I think, today, dated October 26, which is Comments to October 2016 Addendum, and to my simple mind it seems like someone is setting the foundation for litigation, either with another party or with the Town, and so do you feel that it’s important to address this in writing perhaps after we’ve made our… ROBERT SCHULTZ: Not at all. Not at all. COMMISSIONER HUDES: Okay. ROBERT SCHULTZ: It’s a legal argument that if they did want to file on that basis, I’m confident we would prevail, but it doesn’t need a written report to that. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We’ve done the analysis; we’ve done the addendum. It would have to go to an appeal to Council. Maybe at that point in time a written argument, but the case is so clear on this issue that I’m surprised it’s being raised. Now, there are other issues in the Desk Item that you need to address as a Planning Commission on whether that Applicant has met your previous requirements before they came back, so that issue is for you to decide, but from a CEQA standpoint we’ve met our requirements under CEQA; the CEQA document can be approved. And again, like we discussed in our workshop, CEQA documents can be approved because they meet the CEQA requirements, but you could still find the project doesn’t meet your guidelines or your zoning or your General Plan requirements. COMMISSIONER HUDES: I understand. My questions really only pertain to Points 1, 2, 3, and I believe 4, of the letter that we received today. ROBERT SCHULTZ: And I believe they all had to do with the fair standard argument, which we’ve met. COMMISSIONER HUDES: Thank you. I have a question for Staff on that very letter from Smullen, Badame, and Roberts. It’s the letter that precedes the discussion of the Friends case, which was an addendum so that’s being set aside, and my question is in that letter argument is made LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as to whether or not the Applicant has responded to the Commission’s guidelines. Now, Staff’s report was favorable to the Applicant regarding compliance and I’m wondering if you could answer the question. Was there anything in this letter that gave you second thought about that initial opinion? SALLY ZARNOWITZ: I think the Staff Report addresses the changes that were made and it’s, again, up to the Commission to decide whether or not those changes meet the direction that the Commission gave the Applicant. There was nothing in the letter… I mean, I could speak to the points in the letter, but I don’t think it changed the conclusions or the information provided in the Staff Report. VICE CHAIR KANE: Thank you. Other questions for Staff? Commissioner Hanssen. COMMISSIONER HANSSEN: I had two questions. One was just a quick follow up on the discussion about the Friends case. I actually went and read the legal opinion online, and I didn’t know if I interpreted it correctly, but it seemed as though that the Court came down and said that the Court would defer to the local agency in terms of determining whether or not there was a substantial event that required additional analysis, so it very much LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 supported the opinion that you just gave us, right? So that was one thing. The second question I had was because this has gone on through several hearings, I was going back and trying to determine what the appropriate document was to determine what findings we need to make. The original document we got talked about compliance with CEQA, and then when we looked at it in August there was an update to the findings, but I never saw where there was the addendum included, because that was new as of September, and we didn’t get with our current Staff Report a new findings document. We did have additional revised Terms and Conditions on August 24th. So if you could just guide me to what we should be looking at to make our decision. SALLY ZARNOWITZ: Right, they would be the findings that were provided to you in August, but in addition, should you want to approve the project, we would have additional language to put into the findings for CEQA this evening—and I can give you those at that point, if you like—essentially to consider the addendum and state that it was prepared in accordance with CEQA, and add that into your CEQA findings. COMMISSIONER HANSSEN: And the Terms and Conditions and Conditions of Approval, if it were to be LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 approved, are the ones that we got in our August 24th Staff packet? SALLY ZARNOWITZ: Correct. COMMISSIONER HANSSEN: Which included some of the biological issues. SALLY ZARNOWITZ: Correct, some project conditions. COMMISSIONER HANSSEN: And all of the mitigations that were in the MND. Okay. VICE CHAIR KANE: I have 48 exhibits on the case. Could you remind me which exhibit that was for the Conditions of Approval? I’ve got Exhibit 37 in my head, but I don't know if that’s right. SALLY ZARNOWITZ: It’s Exhibit 26. VICE CHAIR KANE: Exhibit 26. So that’s the sheet we’ll be working off of, if we get there. SALLY ZARNOWITZ: That’s what I just heard. Is that correct? JOEL PAULSON: Exhibit 26 is the conditions. VICE CHAIR KANE: Thank you. JOEL PAULSON: And then the findings are Exhibit 33. VICE CHAIR KANE: Other questions for Staff? Seeing none, I’ll invite the Appellant to come up and talk LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to us for ten minutes, and please ensure I’ve got the necessary speaker cards. Do I have a card from you, sir? ANTHONY BADAME: No. VICE CHAIR KANE: You can give us a card when you’re done. Just give us your name and address before they start the timer. ANTHONY BADAME: My name is Anthony Badame, and I live at 1 Highland. I thought we were on the docket for the second item, and Lisa Roberts is not here, nor is Dede Smullen and our team. Was there a change in the agenda? VICE CHAIR KANE: No, I believe you’re Item 3, so we had minutes, we had a consent calendar and a continuation, and then you. ANTHONY BADAME: Okay. VICE CHAIR KANE: Well, hang on a second. We’re going to move forward. So in a moment you will have ten minutes. ANTHONY BADAME: I stated my name, Anthony Badame, and I live at 1 Highland. The motion at the June 8th Planning Commission meeting was to continue the public hearing in order for the Applicant to work with neighbors and consider design modifications. So how did that go? Well, in working with neighbors the developer essentially presented a take it or LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 leave it proposition for us. The design modifications, in a nutshell, were de minimus. This is a summary of the changes as submitted by the developer, and I will touch on each of these throughout my presentation. At the June 8th meeting the Commission directed the developer to design a substantially smaller structure, and substantially was emphasized. The response was to increase the height by 1’, decrease the FAR into the single digit range, and decrease the length by 2.1%. That 2.1% represents 26” in a structure over 100’ long. The 20’ to 25’ creek setback was deemed credible. There were 6’ to 16’ structural setbacks in multiple areas. There was advice to attempt to comply with the LRDA. The developer went in the opposite direction, increasing the breach from 34% to 40-45%. There was advice to read and follow the Hillside Development Standards and Guidelines. There are still multiple violations. There was much discussion on reducing the retaining walls. The astonishing amount of retaining walls was reduced to still an enormous amount, and when you add in all retaining structures, that 200 figure jumps up to over 400. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 There was advice to fit into the natural surroundings. The bulk, mass, and volume are perceptually unchanged. There was sage advice to fully validate the old CEQA. That was rejected in favor of a flawed addendum. And lastly, to work with neighbors. The neighbors input was rejected. Let’s go into the details of that. The Commission guidance to work toward LRDA compliance. The developer went in the opposite direction, increasing it from roughly 33% to 45%. The breaches occur in Area 2; the more appropriate area for an LRDA breach is in Area 3. There would be less hit to the trees, less hit to the road, and less overall visual impact. And yes, it can be done. This is taken from the Town’s consultant. The number of retaining walls. The length was decreased to 210’, but if you include all the retaining structures, the house, foundation, and the walkways, which are effectively acting as surrogate retaining walls, it jumps up to over 400’. The rear yard retaining wall doubled now to a net 10’; that is worse. Grading is worse. The rear elevation now completely cuts into a 35% grade. That is a patent standards violation. This photograph highlights and LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 emphasizes the standards violation, and I think I was being rather conservative with the 35% slope. Grading at creekside, there is an enormous amount of fill that is occurring precariously close to the top of bank, and “it is not the preferred option,” because placement of fill in riparian areas can damage streamside resources. That fill would create a height differential from pavement to creek of 10’, and the drop-off is sharp and in certain areas violating the 2:1 guideline. This photograph emphasizes the impact of grading at the creekside. There is a 10’ height differential. The sharp slope occurring precariously close to the top of bank. There is still potentially excessive tree removal, maybe worse. Thirty immature trees potentially will be destroyed. The developer states that only seven are planned for removal, but when pressed, he admits that… I know that three are nearly certain to be destroyed, and there is another nine that are questionable survival, so that is 19 trees, which is more than the previous plans. The starred trees here represent a tree cluster that is marked in peril for destruction. This will have a significant, and in CEQA terms, a “substantial,” impact with road stability, with privacy, with the overall visual character, with tree canopy coverage, and with light and LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 air in the riparian area, among other things. This view is from the Smullen’s perspective, and those starred trees would be replaced with a two-story, side yard wall plane extending over 100’ long, hugging the road. The photograph on the left was taken one week prior to our last June 8th meeting. The creek is alive with water and with thriving vegetation. Three-and-a-half weeks later is the picture on the right. This is after all the discussion we had on the creek and preservation of the natural environment. I appears that a strategic clear cut of only the driveway and turnaround area occurred. The entire understory was removed and dumped into the creek, and this is a patent Fish and Wildlife violation; the developer acknowledges this. Why did he do it? These photographs emphasize the targeted clear cut. Whatever the reason for the clear cut—and the weed abatement excuse doesn’t hold water—the issue now becomes one of grading restriction. If there is no obstacle to the top of bank, then there is no grading restriction. It’s not the preferred option, but it’s allowable. However, if there is an obstacle, i.e. vegetation, well you just simply remove the obstacle and now there’s no restriction, and a grading baseline has been established, albeit in violation of code. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The setback conflict issue is still unresolved. There are the same concerns, but worse. There is no street presence with this house, and it is now much closer to the road. This photograph demonstrates the relationship of the story poles to the road, and actually these story poles should be much closer to the road, but because the house had not changed substantially in size the developer was not required to re-adjust his story poles, so he didn’t. The setback is 10-15’ from the road. The side yard wall plane soars two stories and extends over 100’ long, 10-15’ from the road. There has been specious attempt to comply with the creek setback with creative cantilevering and crafty levitation of the building pad, but when you clear the smoke there are multiple structural setbacks at 6-16’, violating the 25’ stream mandate. This is the site plan with an overlay, and there are over 160 linear feet of encroachment, and that is in contrast to the addendum, which states only a few areas of encroachment. Lisa Roberts wrote an eloquent dissertation on CEQA. She is supposed to be here tonight, and hopefully she will make it in time. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The driveway issue is worse now. There is the overlay. There is not one, but two, driveways. They are less than 20’ apart, extending over 175’ long, and now there’s an impractical driveway turnaround. There is no way that a decent size vehicle will be able to smoothly back up, turn around, and nose out of this driveway. Instead, vehicles will be forced to back up this curvilinear driveway 175’ long. That’s not going to happen. Cars will be forced to park in the fire turnaround, defeating the purpose of the fire turnaround and obviating the need for all that concrete poured in the valley next to the creek. Here are the multiple violations. Alternatives exist; they were ignored. The architecture should blend, be respectful, and compatible, and compatible is just not house size, which was the only criterion mentioned in the Staff Report; architectural compatibility is also important. The neighborhood is defined by historic and traditional homes. Placing a contemporary home in the midst of all this shows no connection with these homes; it’s incompatible and inconsistent with the guidelines. The maximum allowed height issue is still unresolved. That’s because there’s an existing grade discrepancy. The topography was altered to meet height LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 limitations, and now the developer refuses to provide the existing grades for these cut sections on the revised plans. Why? This needs to be cleared up. The General Plan states as a standard, “A maximum of two stories shall be visible from every elevation.” Elevation here refers to an orthographic projection; it does not refer to wall plane. Clearly, there are three stories visible here. In the north elevation, clearly there are three stories, and there’s a possibility of a stacked three-story, but we don’t know, because the developer refuses to provide the existing grade for this cut section. Does the building form reflect the hillside form? No, it does not; it abruptly cuts into the hillside. VICE CHAIR KANE: Thank you. Is it Doctor Badame? ANTHONY BADAME: Yes. VICE CHAIR KANE: Thank you, Doctor Badame. Could we have lights, camera, action? Thank you. Questions for the speaker? Commissioner Hudes. COMMISSIONER HUDES: Thank you, and thank you for the very clear presentation. I had some questions that are a little farther down in the presentation, and maybe you could go to the slide on FAR. There’s no slide number, but there’s a table; it looks like it’s a few slides ahead. It just says “FAR,” and then there’s a table on it. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ANTHONY BADAME: It’s coming forward. COMMISSIONER HUDES: There’s a lot in here. Keep going. Yeah, that one. I’m trying to understand the argument that it’s one of the largest contiguous masses, and most constrained. I’m trying to evaluate the FAR objectively, and I’m looking at a neighborhood where there’s a lot of variability in lot size. I mean, every lot size is different here, so to me FAR becomes pretty important as compared to just looking at the size of the residence, because some of these are on enormous lots and some of them are on lots that are considerably smaller, so that’s where I rely on the floor area ratio, to me, to help with neighborhood compatibility. I’m looking at these and it looks like there are about 19 properties on the table, and 12 of the 19 are the same or larger FAR. So is my conclusion correct that this proposed property is in the bottom quartile, in the bottom five out of the 19 or so? ANTHONY BADAME: The bottom five as far as size? COMMISSIONER HUDES: In terms of floor area ratio, looking at the column where it says that the revised project is .09. I mean this is your chart, so… ANTHONY BADAME: I see the column. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER HUDES: So when I look at .09, and I look at the others where three-quarters of them are larger floor area ratio, that tells me that this is in the bottom quartile of floor area ratios. ANTHONY BADAME: I think it’s important to take note that this table erroneously includes cellars in the total square footage, so that to me would have a direct effect on the FAR. I think it’s an inaccurate and actually misleading table; I don’t think you can take valuable information out of this. I think you need to compare apples to apples, not apples to oranges. This is a house that has no cellar. It’s a contiguous mass, unlike many of these homes, which are broken up masses. COMMISSIONER HUDES: Well, I can ask Staff, because this was a Staff table that you’ve included it in your presentation… ANTHONY BADAME: Right. COMMISSIONER HUDES: I can ask Staff whether that causes an inconsistency, but the conclusion that I’m reaching in looking at this is that this is not one of the larger homes in FAR compared to the others that are here. ANTHONY BADAME: Dede will comment on that. COMMISSIONER HUDES: Okay. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEDE SMULLEN: I’m one of the Appellants, representing the Smullen family. The problem with looking at this FAR exclusively is it doesn’t take into consideration the topography of the lot and the constraints of the creek, so whereas some of these lots don’t have the constraints that 19 Highland has, so it would be really… You’re looking at it in a complete vacuum based on the site. COMMISSIONER HUDES: Right. Could you state your name and address, please? DEDE SMULLEN: Dede Smullen, and my address is 15363 Peach Hill Road in Saratoga. I’m representing the family of Smullen at 25 Highland. COMMISSIONER HUDES: Right. VICE CHAIR KANE: And you’ll give us a speaker card later, please. LISA ROBERTS: There are 17 properties on that FAR chart. Of the 17, nine are not even zoned the same as this property is. They’re R-1 as opposed to Hillside, so they have no relevance whatsoever, as far as I can see, in terms of this particular property on the hillside. Secondly, the vast majority of those homes were built many years ago, including, for example, my home, which was built in the 1940s and then remodeled in I think LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it was the 90s under entirely different sets of rules. Mine, for example, was prior to the Hillside Design Guidelines, and if I recall, I believe it was Commissioner Kane last time that commented that it’s not helpful to compare this property to properties that have been approved under entirely different sets of rules. COMMISSIONER HUDES: If you’re responding to my question, maybe you can state your name and address, please? LISA ROBERTS: I’m Lisa Roberts; I’m at 78 Alpine Avenue. COMMISSIONER HUDES: Okay, I don't know if you heard my question, but it was specifically about FAR; it wasn’t about other things. LISA ROBERTS: No, and I’m sorry, I didn’t realize we were going to be switched, so I apologize for being late. COMMISSIONER HUDES: Okay, thank you. I don’t think you were switched, I think you were Item 3, so thank you. VICE CHAIR KANE: And give us a speaker card later on. Thank you. Other questions? Commissioner Hudes. COMMISSIONER HUDES: I’m not sure whom this is for, but this is regarding Exhibit 32. It looks like these LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pages are not numbered; I apologize. It’s the fifth page, which is titled “Neighborhood Meetings,” and there was a question that’s raised about an easement and whether the easement is consistent with the actual access road. I wonder if you could provide some further information; it’s Item 5 on that page. It says, “The Smullens use this easement for ingress/egress to access their home at 25 Highland. We spoke about how the current paved road is not at all where easement states it is. I expressed my concern about this. She said she would look into it. To date, she’s not contacted me in any way concerning this issue.” Are you aware that there’s an issue of where the easement is and where the actual access road is located? Okay, could you explain to me what’s going on there? DEDE SMULLEN: There is a discrepancy, but I’m not sure why the Applicant is so eager to address it. The road has been in the same place for probably—I don't know, maybe Derek knows—50 years, longer. The house was built around the turn of the century, so the road has never moved. When I looked at it, it didn’t help him any to align the easement with the road; it didn’t change what the setback would be, it didn’t give him any more space. It’s something we can take care of, it’s not a problem, it’s LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 just not an issue, and so I’m not sure why he’s bringing it up. COMMISSIONER HUDES: But my understanding is that the Applicant is living with a situation where there’s a road for someone else’s benefit that’s not located where the easement says it should be. DEDE SMULLEN: Correct. COMMISSIONER HUDES: Thank you. DEDE SMULLEN: But it’s not relevant to the setback. He’s only bringing it up to say that we’re not being responsive, and we will. If he’s really eager to do it, we can change the location, but it actually would make his setback harder to achieve. COMMISSIONER HUDES: I’ll ask him as well. Thank you. VICE CHAIR KANE: Other questions? I have a couple, Doctor, if you’d return to the mike. In your presentation you said the revision. Now, by revision I mean what’s being presented tonight and what was presented last time when we gave them, I think, four considerations to take a look at. You said that the revision, as opposed to reducing the size, bulk, et cetera, the mass of the house, that actually the height had increased? LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ANTHONY BADAME: Yes. I can show you on a table, if you’d like. VICE CHAIR KANE: Give me a reference for that. I thought it went down. ANTHONY BADAME: No, it did not. But I do have a table, and it enumerates all the levels. VICE CHAIR KANE: That’s okay. ANTHONY BADAME: Well, two more, three more. It’s very clear; it’s a clear table. VICE CHAIR KANE: Staff can probably address it for me. Let me ask you another question. You were discussing the retaining walls, and on one of your exhibits… ANTHONY BADAME: Here it is, if you like. VICE CHAIR KANE: Overall height? ANTHONY BADAME: I looked at the revised plans and original plans, and you could take a look at the plans yourself. VICE CHAIR KANE: I’ll find it. ANTHONY BADAME: This is what I pulled off. VICE CHAIR KANE: Thank you. You were talking about retaining walls and said that there had not been much of an improvement consistent with the guidelines that we gave them, and my understanding is the retaining walls, LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because the whole house has been shifted, were reduced from 653’ to 210’. That seems to be a significant reduction. ANTHONY BADAME: And if you include the house foundation and the walkways, which are effectively acting as surrogate retaining walls. The point here is the house is not smoothly going with the slope, it abruptly cuts into the slope, so it’s 90°. The house cuts in and it’s straight at 90°, so that’s an effective retaining wall, and the walkway is a retaining wall. You put steps on top of a retaining wall and you call it a walkway, and now you obviate the need…you call it not a retaining wall; that doesn’t make sense. VICE CHAIR KANE: I got it. Thank you. Other questions? Commissioner Hudes. COMMISSIONER HUDES: I’m concerned, as I was in the previous hearing, about the setback from the creek, and you have some different figures than what the Applicant has. One of the figures you mentioned is 160 lineal feet of encroachment. Could you explain that to me? Is that the driveway, or… ANTHONY BADAME: The driveway takes the bulk of that, and that is a structure and should be included. I think there is roughly 30’ of house structure that’s included, maybe more. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER HUDES: Okay, because I’ll address that with Staff in terms of the definition of structure, and I am concerned about the driveway as well, so I appreciate you clarifying that for me so that I can understand what that 160’ is comprised of. Thank you. VICE CHAIR KANE: Other questions? Seeing none, thank you. I’m going to invite the Applicant to address us for ten minutes, and hopefully you have your speaker cards. BESS WIERSEMA: Good evening, Commissioners. Good to see you again for this project. You’re familiar with the history of the site and the project. It’s been before you three times; it’s been before the Town several times before this. As you know, it’s a somewhat contentious project because of only three Appellants. Often attention is given to those who speak the loudest, not necessarily buffeted by fact or reality. This graphic represents the quieter, yet equally valid, support of the project, and some of these folks are here tonight to talk to you. Also, here are several of the experts, as well as some of the peer review experts, to speak to the technical details, should you have questions. You’ve seen this. This is a diagram stating what the 2016 DRC approved proposal was, and then modifications LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 made to the project based on the last Planning Commission. Of significance, I have a 9% reduction in the overall floor area, reducing it by 429 square feet. The footprint is reduced by 21%, a reduction of 620 square feet. The lot coverage is reduced by 13%, an overall reduction of 905 square feet. Creek setbacks have been increased to the 20’ minimum-plus, and at the driveway from a minimum stated prior of 3’ to a 10’, and we do have a driveway slide later, Commissioner Hudes, if you’ve got questions related to driveway grading. This is a significant reduction, and just continues the attempts we’ve made to handle the feedback. Grading is up. This is mostly due to snuggling the house into the hillside to further comply with Hillside Design Guidelines, and then also we lowed the footprint of the house to reduce the overall bulk and mass in terms of its finished floor level relative to the site conditions. Retaining walls have been reduced by 60% from 653’ to 210’. Tree removal has also been reduced. There are approximately 90 trees on the site; we’re proposing to only remove seven. We do believe that we comply with Hillside Design Guidelines. We went through these before; we can go through them again. Locate buildings within the LRDA. This is something that is up of question, because we have a very complex LRDA on this particular site due to the shape, the LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 slope, and creek. Preserving views of highly visible hillsides. Obviously we are not viewable from any Los Gatos viewing platform, and neighbors’ views are quite clearly protected, and most neighbors can’t even see this property from their home. Protecting riparian corridors. Per Ed’s and the Town’s peer review biologists; this is not deemed a riparian corridor. Protected wildlife. There is no protected wildlife officially determined on this site, and per Hillside Design Guidelines we’re upholding the no fencing policies, so that deer and squirrels and whatnot can meander through and visit the creek, et cetera. Chris is here tonight to speak about the percent of the slope. As you know, the LRDA suggests that we want to have a 30% slope or less, and it clearly states and it’s in the blue diagram here, that it shall be avoided unless no other alternative site is available, which is what we’ve tried to do here. This is a diagram of the LRDA. I think what’s important to understand is that technically speaking the LRDA is actually the green area. The pink dash line is the 20’ creek setback. The dashed black area is the slope less than 30%. The property line is obviously this, and the green/blue lines are relevant to building setbacks. So when you do that all and you overlay every single one of those LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 items, the green area is the area of LRDA. You can tell from our proposal we actually sit within that significantly. Slope in the LRDA. While there are areas in the LRDA that are less than 30%, the average slope of the building footprint in the LRDA is over 30%, but only by 2.6%, and I’ll let Chris speak to slope stability. CHRIS HUNDEMER: Briefly touching on slope stability with regard to the creek setback. Per the Town guidelines there are two different criteria for the creek setback. For slopes that are for sites that are located in zone not R-1, it’s the greater of 20’ inward from the top of bank, or it’s a ratio of 2:1 slope measured from the bottom of the creek bank. Within R-1 zones, if the lot is less than 10,000 square feet the same criteria applies. If the lot is more than 10,000 square feet, it’s a 25’ setback from the top of bank. To note, from our project here a 2:1 slope from a 3’ high creek bank would relate to a 6’ setback. The current proposed is a 20’ structural setback. Also of note, we are zoned in the HR-25, we’re not R-1, and so the 20’ ratio should be the maximum to apply. These guidelines were created to minimize impacts to the streams. In reality, there’s actually no magic LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 number associated with 20’ from a geologic perspective and from a biologic perspective. The 2:1 ratio is much more of an adherence that should be applied to. If a 2:1 slope works for a slope that is 10’ high or more, it should also work for a 3’ high, or slopes that are less than 10’. In conclusion, based on the geology and the footprint, all the foundations for the building are going to be in bedrock. All the foundations are outside of the 20’ creek setback line. There are portions of the house that are cantilevered within the 20’ setback line, but they do not touch the ground within that area. We akin this to a diving board hanging out over a pool. The pool water can move and it has no impact on the diving board. The diving board itself can be flexible and move; it has no impact on the ground. The proposed configuration meets the Town’s 20’ setback, it substantially exceeds the 2:1 slope setback, and there are no slope stability concerns within the creek bank area from the house. BESS WIERSEMA: This is just a reminder of visibility of the proposed home from the Appellant’s. The top left slide shows along the private drive, not a road, as does the bottom left photograph. The far right photograph shows the minimal netting that can be seen from Ms. Roberts’ property. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 What we’ve done this time to help address some of the issues that were brought up in the last meeting, we’ve rotated the house footprint farther into the portion of the hill, here you can see, in order to pull back from the 20’ creek setback. We’ve also changed the footprint. The current proposal is the red line here. The March DRC approval one that we saw last time is the green footprint. The previously approved, obviously, 2010 one is the blue one. You can see there’s a significant difference when you look at the creek setback, and we’ve tried to follow the line of the creek more graciously with the building footprint. Floor plan comparison; I’ll just jump right into each floor plan. Orange shows the previous submittal you saw. Black shows our current proposed submittal and the reduction overall of the footprint in different areas. Main level footprint. We have pulled the house in on both sides to reduce the length, pulled the house in also on the other sides, and this does make for a skinner house, but it does overall reduce the bulk and mass. We’ve shifted some of the areas from the private road hillside to the other side in order to further handle some bulk and mass. Again, the upper level has been reduced by 7’-10” on the Smullen side, and 4’-6” on the initial driveway access side. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Elevation changes. I do believe that your feedback last time did net a better house this time around in terms of us reducing the bulk and mass from a wall plane perspective. We shifted a lot of the rooflines around and broke up the overall bulk and mass by having some of the cantilever areas. You can tell the previous proposed and the current proposed elevations show how we’re more buried into the hillside. We are lowering the rooflines at the private drive side. I know that the Appellant believes we’re not following the Hillside Design Guidelines because of this one roofline that’s here, but I’d like to argue that that actually settles it down along the private road and makes the bulk and mass smaller to them as they drive by. The entry tower was also reduced and brought well inside the overall mass of the home. Again, you can see from the private road we brought the building down and introduced cantilevers, and reduced windows for privacy. The same on the creek side, again, reduction in windows, broken up more with more roofing that comes around, and moved the building in and out on each floor to one another in order to change the bulk and mass and have no sheer wall panels. This is a diagram of cantilevers, if you want to talk about it. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VICE CHAIR KANE: Thank you. Questions for the speaker? Commissioner Hudes. COMMISSIONER HUDES: Thank you. A lot of material here, and I’m trying to understand the reductions that have been made to the house. It looks like the main thing that’s been accomplished is the pull back from the creek, is that correct? BESS WIERSEMA: I think the pull back from the creek, and the overall reduction in length and massing of the home. COMMISSIONER HUDES: So the question I had was really almost the same question I had at the June 8th hearing, and I understand we have challenges with the LRDA, but it seems to me part of the reason we have challenges is because we’re making the size of the house a given. Have you done the exercise to look at what size house could be accommodated with complying with LRDA? Did you do this exercise at all, and what size did you come up with if you did? BESS WIERSEMA: Okay, so let’s see, to reiterate, technically the LRDA is only the green areas here. Velimir, can you do a quick takeoff based on the drawings of what the square footage of one of those areas might be? VELIMIR SULIC: (Inaudible). LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VICE CHAIR KANE: Could you repeat what he said, and give us his name, please? BESS WIERSEMA: Velimire; he’s a civil engineer on record. VICE CHAIR KANE: And he said? BESS WIERSEMA: And he said he doesn’t know exactly the area, but it’s very small. You can see from the site, it’s tiny little areas, so in order to fit in the actual LRDA and then also comply… You can see the organic shape of this. The building isn’t organic by nature. I would suggest that if we were to fit within one of these pockets, based on scale we’d probably we at a home that’s less than 1,000 square feet, because by the time I meet height requirements, and bulk and mass in a three dimensional way, it’s impossible for me to fit, as you can see, and have a room… I mean, think of this site. The site is very long and narrow. We have almost a credit card kind of house already in that it’s slot-driven on the house. Room size is already, or kind of, almost a code minimum. Our upper bedrooms are 10’x10’. Code minimum is 9’x10’. It’s not an excessive sized home. COMMISSIONER HUDES: Okay, thank you, and I reached a similar conclusion, that to comply with LRDA you have to make a house that about a third of the size of what LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you’re proposed, and maybe even less, and that seems to be about the number that you’re coming up with. BESS WIERSEMA: Right, and I think the driver on that does indeed have to do with the enhanced creek setback as well as the average slope kind of thing, so those comprise it, but I just want to remind you that it says, “shall be avoided unless no other alternative building site is available.” COMMISSIONER HUDES: I understand. Thank you. BESS WIERSEMA: If you want to understand the house on a partial portion of the property, Ed has made a model here so you can see it maybe more realistically in terms of an actualization. The model is in white, the topos are the cards, the green pins indicate existing trees to remain, and the red pins indicate… VICE CHAIR KANE: Excuse me, Bess. Is it heavy? BESS WIERSEMA: No. VICE CHAIR KANE: Pardon me. BESS WIERSEMA: Okay, so the driveway is on there, the topography is on there, the model is a 3-D printer model of the CAD file inserted in there. The green pins indicate existing trees to remain, and the red pins indicate proposed trees per the approved landscape plan. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I’d encourage you to get down on it at eye level and look at it from the road. What you’ll actually see from that is a better understanding of this. This is what you see from the private drive, the private drive of the homeowner, Ed and his fiancé Cindy. Not the developer, the homeowner. This is the most impacted view corridor of the property. VICE CHAIR KANE: I’m going to assume we have an answer? Yes. Did you have another question? Let me interject one while you organize. One of the prior speakers said that in this revision the height of the house was increased. Now, you’re saying the sides have come in, and when they came in, did it push up? BESS WIERSEMA: The sides have come in on the house. No, the height has not increased. No. VICE CHAIR KANE: Is it the same or is it less? BESS WIERSEMA: We dropped the foot actually 18” on half of the house, and stepped it down. This is part of what increased some of that grading that occurred as part of foundation grading. VICE CHAIR KANE: Thank you. Commissioner Hudes. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER HUDES: I had some questions about the driveway, and I guess the first question is why shouldn’t the driveway comply with the 20’ setback? CHRIS HUNDEMER: The first thing about the driveway is that it’s not a concrete driveway as was spoken before. It’s permeable pavers; it’s going to allow infiltration and surface runoff and everything natural process to get to the creek. It’s not a constricting structure like a poured concrete driveway would be. COMMISSIONER HUDES: Will there be less displacement in constructing the driveway than there would be in constructing the foundation of the house? CHRIS HUNDEMER: Absolutely, there would be. The excavations for this project, and the grading on this project, are to excavate the structure into the hillside. COMMISSIONER HUDES: And it’s your reading of the code that a 10’ setback is permissible for a driveway… CHRIS HUNDEMER: Yes. COMMISSIONER HUDES: …given that I believe we’re coming to the conclusion that this is an intermittent stream. CHRIS HUNDEMER: Yes, it is. COMMISSIONER HUDES: Then the other question I had was about the driveway. Have you looked at any LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 alternatives in terms of moving the driveway further away from the creek and maybe eliminating the bulb-out that is just adjacent to the garage—I’m looking at G-4 of the plans—for locating the turnaround for the fire trucks to the south side of the driveway rather than the north side? Were those alternatives that you considered that would cause the driveway to actually be further away from the creek than it is now? BESS WIERSEMA: Prior development plans looked at that and were run by the fire marshal. The fire marshal was unsatisfied completely with that. Also, it was discussed could we share a driveway turnaround with neighbors in order to almost eliminate it altogether. Again, the Fire Department said completely no, and what was approved and worked on with them was the current configuration that you see today, and that is what they deemed as permissible. We do know from civil studies that had we flipped it to the other side it would have increased retaining walls—that’s part of what one of our original issues was—and it would have impacted the site in terms of the grading and overall height matter in a worse configuration. The civil engineer came up with another alternative. Hold on, here he is. VELIMIR SULIC: I’m Velimir Sulic. If you move this driveway toward the existing driveway you create a LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hazardous driving condition, because you won’t have a retaining wall to support the lower driveway, but then you’ll have to build another retaining wall on the top driveway so the car doesn’t go over. You will have an upper driveway retaining wall, lower driveway, so it’s a very hazardous condition. COMMISSIONER HUDES: Okay, thank you. Then I had another question that was about the bulb-out. I’m referring to G-4 of the plans, and it appears that there’s a portion of the driveway that gets close to the creek. It looks like it’s just west of the garage. Is it possible to put G-4 up there? BESS WIERSEMA: I’m not sure if I have the G sheets on here, but we’ll see. Hold on. I don’t have the G sheet on the PowerPoint. (Paper plans are produced and put on overhead projector.) Here, let’s put it right on here. We don’t know how to work the technology of the Town. COMMISSIONER HUDES: Exhibit 27. What I’m talking about is that portion of the driveway that gets close to the creek, that sort of bulb-out. Yeah. CHRIS HUNDEMER: You’re talking about this? COMMISSIONER HUDES: Yes. CHRIS HUNDEMER: The top of the bank line is here. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER HUDES: Yes. CHRIS HUNDEMER: (Inaudible) relative 10’, we’re more than the 10’ away. COMMISSIONER HUDES: Right, but I’m wondering if it’s possible to leave even more space there to be more consistent with the 20’, at least for that portion of the driveway? VELIMIR SULIC: We need this area so the car, when it backs up, so they can turn around and go up the driveway. COMMISSIONER HUDES: I see, so it’s not possible to back out of the driveway, so that bulb-out is required to make a K-turn or something like that… VELIMIR SULIC: That’s correct. COMMISSIONER HUDES: …in order to get out of the garage. CHRIS HUNDEMER: Yeah, so we’ve complied with the 10’ setback for the garage from the creek by creating a place for this space to back up and then pull out the driveway. COMMISSIONER HUDES: Okay, thank you. VICE CHAIR KANE: Commissioner Hanssen, have a question? LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER HANSSEN: I had a question. The Appellants made a comment that they didn’t feel like your design had done what the Hillside Design Guidelines ask for, which is blending into the hillside. It wasn’t in our Staff Report, but I just was wondering if we could hear maybe from the geologic perspective and your design perspective how you’ve fit the design into the hillside? I also was a little concerned about the comment that they made about this big, huge wall coming up by the road. I mean, I thought you would just have the road and then the lot is kind of down from there. I don't know why anything would be protruding up over the road. BESS WIERSEMA: It’s not. I’ll show you a section. So how we fit into the first, or how we fit into the Hillside Design Guidelines? COMMISSIONER HANSSEN: I was referring more to fitting into the contour of the hillside, because there’s actually a diagram in our Hillside Design Guidelines that’s like Do This and Don’t Do That, and they were saying you’re doing the Don’t Do That instead of the Do This, and it was following the contour of the hillside. BESS WIERSEMA: Sure. I think probably of most significance is there one diagram that says our rooflines are going the opposite of the direction of the hillside, LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and you saw that in their presentation and guideline, and what they’re referring to. As you can see, here is the section cut of the grade and this particular roof section that’s here. We also have a little bit of it previous. We’ve modified and brought the rest of the building down in this direction here. If you look at those diagrams in the Hillside Design Guidelines they say This, Not This, and they’ve got actual a very modern, rustic, contemporary home, shed roofs. Most of the roofs do indeed go in the exact direction of the hillside. That’s a nice sketched diagram. We have taken that and tried to accommodate that for the most part everywhere where we can with our footprint from a geometric perspective. So you’ll see that we’ve got our major roof pitches that pitch toward the creek, do indeed kind of flow in the direction. This was obviously prior; this is proposed. The one that they bring up the most in terms of their specific statistical diagram is this piece of roof right here. This does go opposite the slope. There’s a reason for that. If you look at the overall height, if we went with the direction of the slope we would actually have a bulkier, more massive, taller building. It’s our architecture choice to make sure that we actually shut LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 down, providing privacy both to those who pass by on the private drive, one family, and then also to protect the home for our owner. If you look at this elevation you can see here is the height of the grade at that, and then this is our roof. If we had continued to pitch up relevant to this, obviously, geometrically it would have been taller, so we chose not to. I think this diagram helps to illustrate that. This line is indicative of the grade at the building wall itself. You travel farther up the hill, take a close look at that model, you’ll see that what you see on the private drive is only this portion of the home. Had we pitched this roof in the direction of the hill you would see more of a sheer wall, and we wouldn’t be in compliance with the two-story wall design guideline. We felt it was a better and more appropriate architectural response for that particular roof member to go in the direction that it does. I believe it reduces bulk and mass and protects privacy for everyone. If we look at the section cuts of the home exactly per the Hillside Design Guidelines, we’re bringing the house into the hillside. Of course there is a 90° cut; that’s how you build a foundation. People don’t have the slopey walls that follow the slope of the house. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Again, this is indicative of the road is up here, we’re sloping down, we have the foundation of our house. This is what you’re seeing in that other elevation from this section cut. Again, from the road piece. We do have our main roofs coming down in the direction with the slope, and it’s portions of them that are counter to that. We’ve made a tremendous effort to really shift the bulk and the mass in terms of the floor plan and the rooflines in the house to be responsive of everything. COMMISSIONER HANSSEN: Okay, thank you. VICE CHAIR KANE: Commissioner Hudes. COMMISSIONER HUDES: Thank you. My last questions are on trees and bioswales. I want to make sure we get the tree count correct, and it looks like there were a few different ones. I’m referring to Tree Inventory Assessment; it doesn’t seem to have an exhibit number. Maybe it’s part of Exhibit 32; I think it’s the back pages. Exhibit 32 or Exhibit 38, since they’re the same up to that point. I want to make sure we get the tree count correct, because I may ask for some things relative to this. My understanding is that there are 86 existing trees, that six will be removed, that there are 22 that LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have to be protected, and that leaves 58 when you do that subtraction. Then there’s one more tree that is in poor health that you’re proposing to remove, so that there will be 57 that are not affected, and 22 that are protected. So that’s 79 trees remaining, is that correct? RICHARD GESSNER: My name is Richard Gessner; I’m the consulting arborist that drafted that report. There was a little bit of confusion in the original report that I drafted, because I included trees that were on the adjacent property, and then I was asked to remove those trees from the report, so those were taken out and that brought us to the 86 number. I think that’s what it was, about 86. Then the new proposed plan, I believe it was nine trees, is that correct? Seven trees, and then there are other trees that are close to construction that would need to be protected during construction. The way that it’s stated in the report is that you have trees that are highly impacted that are within the footprint of the proposed plan; those trees have to be removed. Then you have trees that are close to the proposed plan, which would require some protection during the construction process. Then beyond that, you have trees that won’t be affected at all. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER HUDES: Okay, but I’d really like to verify the number that we’re dealing with. RICHARD GESSNER: Seven will be removed. COMMISSIONER HUDES: But I’m concerned making a good count of the existing trees before and after, and the remaining trees, so I just want to make sure you’re representing that there will be 57 plus 22 remaining, which is 79 trees? RICHARD GESSNER: That’s correct. COMMISSIONER HUDES: Okay, thank you. I had a question about bioswales, but I can wait. VICE CHAIR KANE: Go to Commissioner Hanssen. COMMISSIONER HANSSEN: I actually had a question about the trees. I had the same question as Commissioner Hudes about the accuracy, but I think you answered that. But then I looked at this model, and you said the green pins are the trees that stay and the red are the ones that are being removed, but there’s way more than seven red pins on there, so help me. BESS WIERSEMA: Green are the trees to remain, and red are the trees per the landscape plan that are replacement trees that are also put there for privacy and protection along the road. So red is new proposed trees per LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the landscape plan, green are existing to remain. Thirty- one new trees plans to be planted per the landscape plan. COMMISSIONER HANSSEN: So that doesn’t have a representation of what trees are actually being removed? BESS WIERSEMA: No, those are in the way of the model. We couldn’t put them on there; they’d be inside the building. VICE CHAIR KANE: Commissioner Hudes. COMMISSIONER HUDES: I believe in the revision there is a reduction of bioswales from five to three, is that correct, and what’s the reason for that? VELIMIR SULIC: The reason for that is because we reduced almost 432 linear feet of the wall, so we don’t need anymore sap drain behind the wall to concentrate water, and we reduced the size of the roof, and only would you have to justify pre-construction runoff versus post- construction runoff, and the difference is only 0.04 csf per second. Then you multiply that by 60 seconds, and ten minutes for duration of 2” rain, unbelievable rain. You are getting only 24 cubic feet for ten minutes, and we have right now 80 feet of bioswale, and if you take a section of the bioswale 7” deep, it gives you two square feet times 80 is substantially more than we need. Hydraulic calculations LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 show that we need only 12 linear feet of the bioswale, but we have 80. COMMISSIONER HUDES: I see, and that’s represented by three separate bioswales? VELIMIR SULIC: That represents all the water for one hour, continuously runs at 2” per hour; that would take this all water. COMMISSIONER HUDES: Right, but the construction is for three discrete bioswales? VELIMIR SULIC: It’s three bioswales. COMMISSIONER HUDES: Okay, thank you. VICE CHAIR KANE: Other questions for the speakers. Seeing none, thank you. I’ll invite members of the public, if you’ve turned in a speaker card. And Ms. Wiersema, we’ll need speaker cards from your team as well later on, ones I don’t have. Any speakers from the public? Then I will turn back to the Applicant and give the Applicant five minutes to chat with us further. BARTON HECHTMAN: Thank you, and good evening, Commissioners. VICE CHAIR KANE: You’re speaking for the Applicant. Let me explain what just happened. We have no public speakers, so the Applicant will now get five LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 minutes, and then we will conclude with the five minutes from the Appellant. Sir, you are? BARTON HECHTMAN: I am Bart Hechtman; I’m the land use counselor for the Applicant. I wanted to address some general points really that were referenced in the Commission’s dialogue at the last full hearing and have been touched on a little bit at this hearing. The first is that bulk and mass is generally an important planning tool, because it protects neighbors from negative visual impacts. But here the Appellants never identified even one personal impact to any of them from this house as currently proposed, or even as previously proposed before the revision. Not in more than 30 minutes of testimony over multiple hearings, and not in more than 150 pages of written materials they submitted. None of these three Appellants will see more than a little piece of the roof from their homes. From their homes, that’s the most they’ll see. The only neighbor who will see a substantial part of this house from his home has written a letter of support. Now, the Town’s ordinances suggest that bulk and mass are not an issue, or at least not a significant issue, for structures that won’t be seen, for example, basement square footage. It’s not included in the calculation of LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 square footage of the house, because basement square footage can’t be seen and it has no effect on bulk and mass; it’s hidden. Here, this house has a beautiful design that is highly articulated, as Bess has explained, and there’s no change that could be made that would reduce any significant visual effect on any neighbor that’s complaining, but it doesn’t cause any significant visual effect on any neighbor that’s complaining. What I’m suggesting is that there’s no legitimate reason to change the design of this home in this location based on bulk and mass concepts. Next, I want to address statements to the effect that Mr. Pearson is trying to maximize the development on the site. First, I want to point out that maximizing allowed size does not conflict with the rules; by definition it complies with the rules, because it’s the rules that set the maximum. Here, the parcel is 45,000 square feet. Under your codes that would allow a house of up to 9,300 square feet, but your codes also include a provision that penalizes property for slope, and applying that provision this parcel is treated as though it was less than 20,000 square feet and can only have a 4,700 square foot house, plus a garage. The house proposed is 452 square feet less LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 than that, and that’s a lot. So we’re not maximizing the size of the home here, and in part that’s due to the Commissioner’s comments and urgings and the response of the Applicant. The point I’m trying to make is that when people talk about the need to reduce the size of the house due to site slope constraints, there needs to be a tempering recognition that your code already does that, and it does it in a way that is applied fairly and evenly to every parcel in the Town. I do want to remind the Commission that LRDA stands for Least Restrictive Development Area. If the Town Council in adopting the Hillside Guidelines had wanted to limit construction to that area, it would be called ODA, Only Developable Area, but it’s not, and it’s clear from the guidelines that development outside the LRDA is not prohibited, but rather the effect of the regulation or the guideline is to encourage applicants to use the LRDA first before looking to areas outside the LRDA, and clearly that’s been done here. Finally, in a letter that was submitted earlier today by the Appellants, the Appellants state five times that the Applicant or the Town, or sometimes both, have conceded some statement that the Appellants made in one or LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 another of their earlier letters by not expressly disagreeing with that statement. So I’m here to say on behalf of Mr. Pearson that we expressly disagree with all five of those statements, and I suspect that the Town Staff does too. Thank you. VICE CHAIR KANE: Thank you. Questions for the speaker? Commissioner Hudes. COMMISSIONER HUDES: I wonder if you’ve had a chance to read the Desk Item that we received today dated October 26, particularly the comments to the October 2016 addendum Items 1, 2, 3, and 4 that were the subject of our discussion earlier with the Town Attorney? BARTON HECHTMAN: I have. COMMISSIONER HUDES: As someone who practices in this area, what’s your opinion of the relevance of the Friends case, and if it has relevance, how would it affect this particular application? BARTON HECHTMAN: The Friends case is directly relevant, and for that reason it was appropriate for the Town to take the actions it took. But before the Friends case there were certain rules in place under CEQA for what you do when you approve a project with a Negative Declaration and you come back later after the project has been approved and make some changes to it. So there’s a set LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 body of rules, and the first addendum that the Town Staff prepared followed those rules. But the Supreme Court case, which happened to fall just before the last hearing, changed the rules. It required a new finding by the local jurisdiction based on substantial evidence that the prior environmental document, in this case the Mitigated Negative Declaration, retained relevance, it still retained some informational value in light of the changes that were being proposed. That requirement never existed until this case came out. It’s not anywhere in the guidelines, so the State Supreme Court created a new law. So that was a finding that had to be made, but it wasn’t addressed in the first addendum, because nobody knew that you had to make that finding. As I think reflected in your environmental consultant’s letter and in the addendum itself, they went through the analysis to determine whether that old Mitigated Negative Declaration still has relevance, and frankly not surprising to me, since this house is about 95% the same as the old house—just making up an estimate, but mostly the same—it still had relevance. It’s roughly in the same place, and a lot of the changes that have been made actually are reducing environmental impacts, so that was the first change that was made, and it had to be addressed LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in your document to make your document legally correct under the new law, and that’s been, I believe, done. The second change that the State Supreme Court did was it sort of reframed the question you ask once you’ve decided that the old document is relevant, and you frame that question, and I don’t have it up here, so I’m not going to try to quote the (inaudible) I’ll misquote it, but it’s framed around the changes. Since you’ve already looked at this project once, the only question before you is whether the changes that are now being proposed from what you already looked at and approved, have those changes created some new environmental impact that you didn’t study before, because the change didn’t exist? And again, the revised addendum looked at those things, it needed to, and it responded. Does that answer your question? COMMISSIONER HUDES: Yeah, it’s very helpful to at least understand your position on that. I had one more question, but I can let… VICE CHAIR KANE: Any other Commissioners have questions? Go ahead, Commissioner Hudes. COMMISSIONER HUDES: I’m not sure who this is for, someone on the Applicant team. The question I raised with the Appellant about the discrepancy between the LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 easement and the actual access road location, I wanted to ask the Applicant whether there was an issue with that, and whether that’s something that we should consider? BARTON HECHTMAN: I think I can answer that, and I haven’t looked at either Exhibit…wherever that statement came from. I think it was just sort of a statement of fact that where the private drive to the Smullen home is located doesn’t sit wholly within the granted easement, but it doesn’t affect the design of the house, and we’re not suggesting that that condition somehow be remedied as a part of this. COMMISSIONER HUDES: So the Applicant is okay with where it’s currently located? BARTON HECHTMAN: Yes. COMMISSIONER HUDES: Okay, thank you. VICE CHAIR KANE: Other questions? Before we decide that we’re done, I want to ask a question of one of the Commissioners. Commissioner Hanssen, you asked earlier about the Do and Don’ts that were in the Appellant’s letter that we received as a Desk Item today, where they show a picture of a house in the Hillside Guidelines and then the revised house? COMMISSIONER HANSSEN: Yes. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VICE CHAIR KANE: So that’s like on pages 20, 21, 22 of the letter, because they’re not numbered. Did you get a satisfactory answer to that? COMMISSIONER HANSSEN: Yes. I also noted before I asked the question that there was nothing in the Staff Report that indicated that they had violated anything in the Hillside Design Guidelines in terms of architecture or grading. The only issue that I saw—I guess we can ask the question again when we close the hearing—was that they are outside the LRDA. VICE CHAIR KANE: Okay, thank you, then I don’t have a question. I will turn to the Appellant and provide five minutes for you to provide additional information or rebuttal. LISA ROBERTS: I’m Lisa Roberts. Given the shortness of time, I will make this very brief. With respect to the CEQA issues, Mr. Hechtman overlooked one final finding by the Supreme Court, and that was that when the prior declaration or document is a Negative Declaration as opposed to an EIR, the fair argument standards applies thereafter; they have not applied the fair standard argument. Number two, with respect to neighborhood support, I see the house from my property, I see the house from my LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 upstairs, and I see the house from my back yard. I also see the tree that will doubtless die when this property is built. It is not correct that all these trees are being retained, because as I set forth in my tree report with my August 10th letter, and again with my August 24th letter, which has never been denied by Applicant, the tree protection measures are substandard; they’re contrary to those that are stated as being standard in the arborist’s report by the Applicant. Finally, with respect to neighborhood support, the chart that you were provided is incorrect. There is a large vacant lot you will see that is also on the opponent’s side, because it’s owned by the Smullens, who are opposing this project. In addition, one of the supporters has now sold his house. He was in the process of selling it when he gave his letter of support; he’s now sold the house. Third, with respect to the Appellant, Ms. Theresa Spaulding, who has withdrawn, she’s not done an affirmative statement of support; she has simply withdrawn. I can see how someone would be tired of fighting after a while. Thank you. VICE CHAIR KANE: Questions for the speaker? Or not at this point. You’re continuing. Sorry, Doctor. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ANTHONY BADAME: I’d like to go over the summary of changes that the developer submitted. Number one said the building footprint reduced by 620 square foot. That’s deceptive. The red shows the square footage that was not included. The analogy here is that if you have a 1’ pedestal supporting a 5,000 square feet house 2” above the ground, is the footprint 1’ or is it 5,000 square feet? The total floor area reduced by 429 square feet. That’s not substantial, and the developer admits that. The Hillside Guidelines are clear: “Ensure the development does not dominate.” This development dominates. It is an oversized structure for the site. The trees to be removed decrease from fifteen to six. That is false. The developer flat out acknowledged to us that another three are nearly certain to be destroyed, and there are a questionable nine that may not make it. Trees closest to the creek will be preserved for creek bank stability. That’s an overstatement. T-8 will be retained,T-13 has questionable survival, and T-16 will still be destroyed. That’s only one tree for certain. Retaining wall length decreased from 653’ to 210’. If you include all retaining structures, that jumps LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 over to 400’. The rear yard retaining wall is a net 10’ now; that is a patent standards violation. The house footprint reduced by 610 square feet. That’s a redundant statement; it’s a filler item. The house recessed into the hillside suggested by the guidelines. Here is the example, and the Pearson development. It’s textbook perfect for how not to set into the hillside. I’ll go back. Do This, Don’t Do This. Textbook perfect how not to set into the hillside. Distance from Tree 30 to building footprint increased from 15’ to 20’. That’s an incidental finding, and again, it’s a filler item. The overall height, massing, and length of the home have been reduced. That is false, worse, and trivial. The overall height has increased. The original home was 444’; it’s now increased by 1’ to 445’. I don't know where they’re getting the inches, but these are on the plans. The massing is worse, because the house is much closer to the road now. The creek setback has been increased from 15’ to 20’ from the closest point of the home’s footprint. The slope stability protection area is an area between a structure and the stream, not footprint. There’s over 160 linear feet of encroachment. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 If we look at a summary here, the design modifications, they lack meaningful changes. Some are deceptive, some are worse, and some are just patently false. VICE CHAIR KANE: Thank you. Questions for the speaker? Commissioner Hudes. COMMISSIONER HUDES: This is a question again about the letter dated October 26th, so I’m not sure whom that is for. It starts with a comment. It says that, “Neither the letter from Kimley-Horn nor the October 26th addendum were made available to the Appellants before end of the day on Friday, October 21, 2016,” and I’m concerned about that and the ability to respond. I wonder if whoever wrote that could respond to that. LISA ROBERTS: I will respond to that. Right after this hearing was continued from the 28th I made it clear with Town Council that I would like to discuss anything that occurred after that. I did not learn what was going to happen until finally last Wednesday I sent something to Town Council saying, “I haven’t heard or received anything. I presume there’s not going to be any CEQA related document, so is the hearing going forward?” The response was, “Yeah, the hearing is going forward, and I’m working on the CEQA related document. Hope to get it up LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 today.” Next day I send a question, status. “I’m hoping to get it out today.” I send an email saying, “Well, all right, I probably don’t need to ask this. I’m sure you do this anyway, but as soon as it is done, would you please make sure I get it?” I got no response, so I did not get that until it was publicized with the Staff Report. So basically Friends came out on the 19th. I submitted a letter on the 22nd fully analyzing it, a 23-page letter over a 20-page case, and I applied it to this case. A month goes by. I’ve never seen any written legal analysis either by Staff, Town Council, or Applicant’s attorney; I haven’t seen anything in writing. But I see an addendum, and so again, I’m able over the weekend, or with two business days, to come up with the little I could, the October 26th letter, or excuse me, 21st. COMMISSIONER HUDES: I’m specifically referring to what happened on Friday October 21st, last Friday. LISA ROBERTS: Yes. COMMISSIONER HUDES: My understanding is that the letter was published as part of the agenda packet at around mid-afternoon on Friday; I know that’s when I received my packet. Actually, that’s when I went online and read it. Was there a problem? Were you were not able to access it on the Internet or something? LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 LISA ROBERTS: No. No, no. I’m sorry, that differential would have been my fault as between the… I didn’t know it came out at the afternoon. I received it or got it late in the day. COMMISSIONER HUDES: Okay, so you did receive it on Friday? LISA ROBERTS: On Friday. COMMISSIONER HUDES: Okay, thank you. VICE CHAIR KANE: Other questions for any member of the Appellant’s team? Seeing none, thank you, sir. I will close the portion of the public hearing, and turn to my fellow commissioners for discussion, questions, or a motion. I have a question for Staff. How tall is this house? Some people say it’s shorter, some people say it’s taller. I have an Exhibit 28 that I’ve been referring to, and since things have revised I don't know if it’s current or not, but it says the existing height is 25’… I’m not sure what it says, 25’-35”? No. It’s Exhibit 28, and it’s existing conditions, then it says, “The proposed package,” and in fact it would appear that both of them are over the required permitted height of 25’. Do we know how tall the proposed structure would be? LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JOEL PAULSON: In reference to the document you’re referencing, there are two height requirements. There’s a maximum height at any given point, and there’s a maximum high to low; that’s the 25’ and 35’, so that’s why you see the two. VICE CHAIR KANE: Oh, 35’, that’s right. JOEL PAULSON: The maximum high to low. VICE CHAIR KANE: So from the proposal prior to this one to the current revision, did the structure stay the same, get shorter, or get taller? SALLY ZARNOWITZ: On the elevation sheet A-3.1 you can see elevations there. Again, the individual elevation is the 25’, and then overall it’s actually, I think, less than 35’. VICE CHAIR KANE: Okay. SALLY ZARNOWITZ: You can see those dashed lines on A-3.1 of your plan sets. You should be able to see how the house falls within those maximums. VICE CHAIR KANE: I thank you for that. I have the charts, but I wanted to hear it from Staff, because we’ve got people saying it’s higher, it’s lower, and I’d just prefer to go with Staff’s point of view, so thank you for clarifying. Other questions? Commissioner Hanssen. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER HANSSEN: I actually wanted to ask the question that Vice Chair Kane asked me and that I asked earlier essentially just to make sure that we’re hearing the same thing. The Appellant’s accusation that the house doesn’t meet the grading and contours of the hillsides, Staff didn’t flag that in the report, so do you agree to that, do you see any issue with that? I’d like to hear your thoughts. JOEL PAULSON: I’ll jump in, and Sally obviously has more intimate knowledge. Generally that exhibit is used for a lot for sites. We had a request to pull the house further from the creek bed, and so that was achieved, which did involve doing a more vertical cut deeper into the site. You also have to take into consideration the constraints across the contours and what the width of that house is. You can’t have the house stepping down every 10’. So those challenges, we have to kind of weigh those, and that’s something that the Commission should weigh and if they don’t think it’s appropriate, then that clearly can be the comments that are made, but those are some of the things we weigh in relation to that specific item, because this is a fairly narrow area in which the house is put. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER HANSSEN: Okay, that helps a lot. Can I ask a second question? VICE CHAIR KANE: Yes. COMMISSIONER HANSSEN: About the trees, I think you’ll say we could put it in as a condition, but I’m looking at supposing that we would approve this. I don't know if that’s the case, but the Condition of Approval, the arborist requirements, it just says, “The developer shall implement at their cost all of the recommendations, and the removal of trees and shrubs shall be minimized to the extent feasible.” That makes me really uncomfortable, given the statements that were made about they’re saying they’re taking out seven, but they might take out a lot more. Can we actually put a limit on the number of trees that are removed? JOEL PAULSON: You technically could. I think the challenge with any construction site, hillside or flatland, is there are recommendations from arborists of methods that can help ensure the life of those trees, but there sometimes are unforeseen instances. Removing a tree unto itself isn’t an environmental impact. We have a Tree Protection Ordinance that says if you remove one you have to replace it to meet the canopy size or pay the in lieu LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fee; we could start there. The challenge gets to be what’s that timeframe look like? COMMISSIONER HANSSEN: I see there are unforeseen impacts, but supposing the thing that happens is not that the tree gets less healthy because it was just going to happen anyway. We’ve heard this in some other cases where they actually just go remove trees, and then it’s up to us to try to figure out what happened. JOEL PAULSON: The Town Code has methods to remedy that, and that is they basically will have violated the Tree Removal Ordinance if they remove a tree that they weren’t supposed to remove or didn’t have a permit to remove, and so there are remedies in the Town Code to address that. ROBERT SCHULTZ: And are currently taking those steps on other properties to levy substantial fines for trees that were damaged during construction. VICE CHAIR KANE: Other questions? Commissioner Hudes. COMMISSIONER HUDES: I had a few follow ups to testimony that we heard; I guess the first one is about the driveway. I wanted to understand Staff’s position, and potentially the report, I think the MND, which I think is Exhibit 44, about the setback for the driveway. First of LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 all, is 20’ the correct setback for the structure, and why isn’t it 25’? SALLY ZARNOWITZ: We have Lisa Petersen, the Town Engineer, here this evening also, who could speak to the grading and to these issues as well. But the 20’, again, as it was noted in the Staff Report and I think in the MND addendum as well, it’s the Town’s discretion on the setbacks and development review adjacent to any kind of stream, and with a slope stability analysis, such as this case, that can be reduced. Our policies actually say that it would be 20’ in the R-1, and this is not in the R-1, but nevertheless, given that this is a residential district, even that 25’, which is what could be looked at, could be reduced with a slope stability analysis, and that’s what we have in this case. So that’s for the structure itself, and again, I’m sure Lisa can speak to that as well. COMMISSIONER HUDES: Well, that’s satisfactory to me. I understand that. SALLY ZARNOWITZ: Okay. COMMISSIONER HUDES: The second question is about the driveway and why should that setback be 10’ instead of 20’? Does it count as a structure, and why is that okay? LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SALLY ZARNOWITZ: Right, and so again Lisa could speak further on that, but it does not count as a structure. You can see in the guidelines that there is discussion about pathways and circulation. This wouldn’t be a parking structure; I think which the Appellants cited, this would be a driveway on a single-family home. I don't know if Lisa has anything more to add to that, but the 10’ setback as noted in the addendum would be more than adequate. LISA PETERSEN: Yes, Lisa Petersen, Town Engineer, thank you. Yes, that’s correct. It’s clear in our guidelines, actually it specifically says, that the roads can’t overhang and encroach beyond within the top of the bank. Now, additionally it’s also important to note that there was a slope stability analysis that was completed that actually did look at the road as a structure and made a determination that that was going to be okay as far as the slope stability. That was also reviewed by the Town’s geotechnical consultant as well, who agreed with that finding. COMMISSIONER HUDES: Thank you. I had one other area. VICE CHAIR KANE: One more. Go. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER HUDES: This is the cantilever issue. Could you explain to me how the setback relates to a cantilevered building, and where the property measurement should be taken for that setback? SALLY ZARNOWITZ: Again, I don't know if Lisa wants to add to this, but the cantilever… Is she nodding? LISA PETERSEN: Thank you. Yes, I can respond to that. We would not consider the setback from where the cantilever comes out to; it would be considered from where the structure is actually intersecting the soil. COMMISSIONER HUDES: And what’s the reason for that? LISA PETERSEN: It has to do with the loading, and you’re not having substantial loading that is coming from that overhang, so you’re really looking at the footing, and that’s where the load is being transferred into the soil. COMMISSIONER HUDES: Okay, thank you. VICE CHAIR KANE: Other questions at this time? I’m going to suggest, because I’ve been requested to do so, that we take a ten minute break, clear our heads, come back and get something done. We’ll be back in ten minutes. (INTERMISSION) LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 VICE CHAIR KANE: …some 40 exhibits to this case. It’s a complicated case. We needed some time to try to get our heads straight, but let us return now. Commissioner Hudes. COMMISSIONER HUDES: I’m prepared to make a motion, unless other Commissioners feel that there’s more need for discussion, or more questions. VICE CHAIR KANE: I would make my motion. COMMISSIONER HUDES: I move to deny the appeal and approve Architecture and Site Application S-15-077 for 19 Highland Avenue, APN 529-37-033, and include the following actions to support the approval. First, is to make the CEQA finding that the proposed application is in substantial compliance with the CEQA review completed in 2010, and will be subjected to the mitigation monitoring and reporting program adopted in 2010, Exhibit 33. I would also add to that that it needs to be in compliance with Exhibits 44 and 45, Exhibit 45 being the addendum to the previously adopted Mitigated Negative Declaration. In addition, I can make the finding that the LRDA exception is appropriate and the project otherwise complies with the Hillside Development Standards and Guidelines, LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exhibit 33, and I can make the finding that the project complies with the Hillside Specific Plan, Exhibit 33, and also make the required considerations that are required by Section 29.20.150 of the Town Code for granting approval of a Architecture and Site Application, Exhibit 33, and approve the Architecture and Site Application S-15-077 with revised recommended conditions, Exhibit 26, and revised development plans, Exhibit 27. I would add to that that the Town in the conditions monitors the development to ensure that the 79 trees that exist shall remain, in addition to the new trees that will be planted. This has been a challenging exercise, particularly with regard to the LRDA. I can make the LRDA finding, because I don’t think there are other reasonable alternatives, and the LRDA exception is permitted when there are not other reasonable alternatives. I think that the factor is reducing the size of the house even smaller, but I believe that with the current version we are presented with an application that is already more than 16% smaller than the maximum allowed, and also finds itself in the lowest quartile of FAR, meaning the smallest impact in terms of the ratio of the floor area to the lot, so I can LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 make those findings with regard to the size of the property. With regard to the location of the building, I believe that the Applicant has maximized the opportunity to step the home into the topography, and for that reason they have minimized the bulk and mass on a hillside. In addition to that, I don’t think that the visual effects of this particular structure will affect others in the Town very much. I also think that the Applicant has gone to fairly great lengths in the architecture, through articulation of the wall and roof planes, to help reduce the building mass as well. Those are my reasons for the motion. VICE CHAIR KANE: Did Town Counsel want to add an addendum to the addendum, as was mentioned earlier? ROBERT SCHULTZ: No, he captured that language. VICE CHAIR KANE: All right, do we have a second? Commissioner Hanssen. COMMISSIONER HANSSEN: I will second the motion. VICE CHAIR KANE: Let us have discussion. Commissioner Hanssen. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER HANSSEN: I thought that Commissioner Hudes did an excellent job of summarizing most of key issues. I just wanted to add on a couple. One of the most contested issues here was this CEQA, and I was happy that we had a chance in our workshop to go over the CEQA again, but the thing that resonated with me is that even though a number of years have gone past this is basically the same type and nature of project, there really isn’t that much difference, so it doesn’t qualify as a new project, and that the existing conditions, nothing had really changed from the original project either, so I totally could understand the legal opinion that we got from our Town Attorney about why we can be comfortable with the existing Mitigated Negative Declaration. I further thought it was great that we have the addendum that kind of goes through the issues again, and takes another look, and says here is where we are now and here’s where we were then and this is why there aren’t any substantial changes, so I thought that was great. I would have hoped that there would have been more of a substantial reduction in the size, but I don’t think that was the most pressing issue, and I concurred with the issue about the LRDA. Because of trying to not be LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 close to the creek you have a choice. You can be close to creek or you can be close to the road, and that meant being further in the hillside, and I don’t think that absent reducing the size to a very, very tiny amount that there would be a way to stay totally with the LRDA, so I feel comfortable with that. VICE CHAIR KANE: Commissioner Ereksen. COMMISSIONER EREKSON: This was undoubtedly a very challenging issue for the Commission to consider, for the Town to consider and the Commission acting on behalf of the Town. It’s a very challenging site. The Town Code, the guidelines that govern this particular site, are intended to protect the interests of the Town, but appropriately, to give the deciding body some discretion when there are particular challenges. Many of the challenges that would face the deciding body came into play in this particular case. The Appellants appropriately challenged us to think carefully about the decision, so I appreciate the fact that you did that. That’s the best of decision making for the Town, so we appreciate your doing that, because you challenged us and challenged the Applicant to sharpen our thinking and the Applicant to sharpen their pencils, so I think that the LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 process in this case worked, and I’ll be happy to support the motion. VICE CHAIR KANE: Other comments? I’ll make a final comment. In 2001 a roughly similar application, certainly the same property, came before the Planning Commission to construct a single-family residence. The Planning Commission denied the application, and the decision was appealed to the Town Council. The result of that was Resolution 2001-128, and the Council said, I think, some pretty important words. “The project site is very sensitive in that the potential area is very limited. A significant redesign is necessary to ensure that the proposed project is compatible with hillside topography and vegetation, and that the structure is compatible with the neighboring structures in terms of mass and scale.” I don't know that we’ve met those archive resolution guidelines 100%, and I don't know that I’m satisfied regarding the Appellant’s pages 20, 21, 22, 23, and 24 where they take excerpts from the Hillside Guidelines and say Do This/Don’t Do That, and it’s borderline. I hear Staff’s guidance, and I still have concerns about the three-story argument that we had, and I hear Staff’s guidance, and I’m still concerned about the cellar arguments that we’ve had. LOS GATOS PLANNING COMMISSION 10/26/2016 Item #3, 19 Highland Avenue 80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But I don’t think it’s worth resisting at this level any further. There have been significant changes, and I appreciate that. I appreciate the work of the Appellants and the outstanding letters; somebody over there is a really good writer, because it kept me up. But I’m likely going to reluctantly agree with the motion. Other discussion? Hearing none, I’m going to call the question. All those in favor? Opposed? Carried unanimously 5-0. Mr. Paulson, are there appeal rights? JOEL PAULSON: There are appeal rights. Anyone who is not satisfied with the decision of the Planning Commission can appeal that decision to the Town Council. Forms are available in the Clerk’s Office, there is a fee for filing the appeal, and the appeal must be filed within ten days. VICE CHAIR KANE: Thank you very much. FILING FEES $370.00 (PLAPPEAL) Residential $1,487.00 (PLAPPEAL), per Commercial Multi-family or Town of Los Gatos Office of the Town Clerk 110 E. Main St., Los Gatos CA 95030 . Tentative Map Appeal APPEAL OF PLANNING COMMISSION DECISION TRANSCRIPTION $500 (PLTRANS) I, the undersigned, do hereby appeal a decision of the Planning Commission as follows: (PLEASE TYPE OR PRINT NEATLY) DATE OF PLANNING COMMISSION DECISION _ _.,O..,ctmo.,.B~ifi:IO"'Y""'M_D,.......,-....n TOWN OJ LOS GATOS PROJECT I APPLICATION NO : S-16-007 NOV -7 2016 ADDRESS LOCATION: 19 Highland Ave Pursuant to the Town Code , the Town Council may only grant an appeal of a Planning Commission decisio~m~ ~~/e~"t~NT Council finds that one of three (3) reasons exist for granting the appeal by a vote of at least three (3) Council members. Therefore, please specify how one of those reasons exists in the appeal: 1. The Planning Commission erred or abused its discretion because _P_Ie_a_se_S_ee_Att_a_c_h_ed ___________ _ _______________________________________ ;OR 2 . There is new information that was not reasonably available at the time of the Planning Commission decision, which is Please See Attached -----------------------(please attach the new information if possible): OR 3. The Planning Commission did not have discretion to modify or address the following policy or issue that is vested in the Town Council : ____ P_Iea_s_e_s_ee_A_tt_a_ch_e_d ___________________________ _ IF MORE SPACE IS NEEDED, PLEASE ATIACH ADDmONAL SHEETS. IMPORTANT: 1. Appellant is responsible for fees for transcription of minutes. A $500.00 deposit is required at the time of filing. 2. Appeal must be filed within ten (10) calendar days of Planning Commission Decision accompanied by the required filing fee . Deadline is 5:00p.m. on the lOth day following the decision. If the lO th day is a Saturday, Sunday, or Town holiday, then it may be filed on the workday immediately following the 1Oth day, usually a Monday. 3. The Town Clerk will set the hearing within 56 days of the date of the Planning Commission Decision (Town Ordinance No. 1967). 4. An appeal regarding a Change of Zone application or a subdivision map only must be filed within the time limit specified in the Zoning or Subdivision Code, as applicable, which is different from other appeals. 5. Once filed, the appeal will be heard by the Town Council. 6. If the reason for granting an appeal is the receipt of new information, the application will usually be returned to the Planning Commission for reconsideration. 408-679-0254 SIGNATURE: A~~ Q 8~ 25 Highliifld¢Los Gatos CA ADDRESS: ~ r-e: .C(2.. Jzev~ __ v._.,~"i~~-=-·L..!..,;I*';'..:..(I:..:t:......:..~---=;,v,=:.t7 ...... lto=-=-=>:......:....(.,'-'4::""'f-'-'c.:..::~'-'-"c V't ***OFFICIAL USE ONLY*** ~ PRINT NAME: DATE: PHONE : Badame, Roberts and Smullen Fami lies 11/7/2016 DATE OF PUBLIC HEARING : CONFIRMATION LETTER SENT: Date: Pending Planning Department Confirmation TO APPLICANT & APPELLANT BY: DATE TO SEND PUBLICATION: ______ _ DATE OF PUBLICATION : N :\DEWORMS\Planning\20 1 ~1 7 Fonns\Appe.d -PC .doc 71'01 12016 ATTACHMENT 20 Attachment to Appeal of Planning Commission Decision (October 26, 2016 Decision as to Application No. S-16-007 at 19 Highland Avenue) 1. The Planning Commission (the "Commission") approved a project that involves numerous significant violations of the law, including but not limited to (a) violations of the Town Code, the Town's General Plan, the Town's Hillside Development Standards and Guidelines ("HDS&G"), the Guidelines for Land Use Near Streams (the "Stream Guidelines"), the California Environmental Quality Act ("CEQA"), and the Guidelines to CEQA (the "CEQA Guidelines"). 2. The Commission failed to grant Appellants' appeal from the approval of the project by the Design Review Committee (the "DRC") despite the clear merit of the Appeal as to the plans approved by th,e DRC (Applicant's "Initial Plans"). In lieu of granting the Appeal, either for Applicant's appeal to the Town Council or for a renewed application with different plans to the DRC, it gave Applicant tlie option of revising his plans. 3. The Commission gave Applicant clear instructions on what changes would be required to make his project approvable, but, after Applicant prepared revised plans (Applicant's "Revised Plans"), the Commission failed to follow the yardstick for approval that it had set. 4. The Commission's original conclusions that size was the biggest problem with the project, that Applicant was trying to maximize size on a lot that calls out for non- maximization, that the natural setting of the site needed to be retained, and that the project needed to be made substantially smaller to be approvable were correct. Its subsequent acceptance of a single-digit percentage size reduction (8.45%) was not. 5. The Commission's original instruction that, pursuant to the Stream Guidelines, the project must be set back 20-25 foot from the stream on the property was correct. Its subsequent acceptance of significant intrusions into that required setback was not. 6. The project approved by the Commission continues to be visible as a three-story edifice; it continues to intrude severely-into the creek setback and beyond the LRDA; it continues to rely on grading inconsistent with the topography of the hillside; and it continues to guarantee severe destruction of the aesthetics of the site including but not limited to by raising the height of the structure even higher than under Applicant's Initial Plans. 7. To any extent that the Commission had discretion not to follow the dictates of the Town's laws and guidelines, it did not properly exercise that discretion. The calculations by the Commission and Applicant show that, because of the severe limitations inherent in the site, Applicant could be in compliance orily by building no more than a 1 ,000-square-foot structure. No amount of discretion can justify the nearly five-fold increase in size approved by the Commission. 8. The project's violations of law include without limitation violation of Town Code section 29.10.1005; General Plan CD-14.3; HDS&G pp. 9, 18, 19, 23, 27, 31, 35, 36, 38, 40, 58, and 60; Stream Guidelines p. 3.8; CEQA section 21166; CE QA Guideline sections 15162 and 15384; and Friends of the College of San Mateo Gardens v. San Mateo Community College District, Case no. 8214061 ("Friends"). 9. The Commission's decision did not comport with guidance by the public, including one of the authors of the HDS&G, regarding the effect of those guidelines on Floor Area Ratio. 10. Rather than requiring a new negative declaration or environmental impact report based on subsequent changes to the project and the environment since the initial Mitigated Negative Declaration prepared for the property in 2010 (the "2010 MND"), the Commission approved a mere Addendum, and it did so in spite of substantial evidence (defmed in the CEQA Guidelines as enough to support a fair argument) that the subsequent modifications and changes may produce a significant environmental impact that had not previously been studied. 11 . In, at the fmal meeting on October 26, approving the Addendum rather than requiring a new negative declaration or environmental impact report, the Commission relied on the inaccurate advice briefly stated orally by Town counsel regarding the meaning of the Friends case and its impact on this matter, rather than on the accurate, in-depth, and fully cited written legal analysis presented by Appellants well before the meeting and showing the need for a new negative declaration or environmental report. 12. The evidence ignored by the Commission in failing to require a new negativ e de claration or environmental report includes without limitation expert evidence that a tree that was healthy when the 2010 MND was done is now failing and is a now potential roosting and maternity habitat for special-species bats including the pallid bat; that mature protected oak trees that were to be retained under the plans in existence when the 201 0 MND was done are now, under Applicant's Revised Plans, to be either outright removed or subjected to grave risk based on tree protection measures that are in v iolation of Town Code, that Applicant's own arborist report shows are substandard and insufficient, and that both Applicant and his arborist admit merely give the trees a "fighting chance"; that, since the 2010 MND, the course of the stream on the property has been significantly altered when relocated by bulldozer b y a neighbor desiring to shore up a s lope on his property, with resulting potential impacts in association with the project; and that the plans now, specifically Applicant's Revised Plans, pose different aesthetic issues from the plan at issue in 2010, including without limitation the increase in the height of the structure . 13 . There were several prejudicial due process and procedural irregularities including without limitation violation of Government Code section 54950 et seq. (the "Brown Act") by the DRC and, at the Commission level , Staff's refusal to timely provide the Commission with correspondence directed to the Commission (while at the same time pr omptly providing it to Applicant), giving of gifts to Commission members from the Applicant's side, and considering only the schedules of Applicant and his team and not the schedules of Appellants and their team in scheduling meetings.