Attachment 19-20LOS GATOS PLANNING COMMISSION 10/26/2016
Item #3, 19 Highland Avenue
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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
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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
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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,
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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.
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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
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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.
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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.”
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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.
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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
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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.
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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.
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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.
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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
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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
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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
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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?
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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,
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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.
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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
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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
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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
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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
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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.
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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.
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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.
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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).
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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
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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.
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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.
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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
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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
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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.
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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?
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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,
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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.
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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
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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.
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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
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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?
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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?
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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.
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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.
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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
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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
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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?
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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.
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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)
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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,
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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
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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.
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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
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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
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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.
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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.