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Attachment 22M atteoni O'Laughlin &:H echtman L A W Y E R S Nor m a n E. Matt eon i P eggy M. O 'Lau gh l iq Br·a dl ey M . Mattf'oni Barto n G. H eC'h tman Ge rry H oul ih a n - 848 The A l a m eda S an J o s e , CA 95126 ph . 408 .293.4 3 00 f ax. 408.293.400 4 www.matteoni .com December 7 , 2016 Sally Zarnowitz , Planning Manager Town of Los Gatos_ Planning Department 110 E. Main Street Los Gatos, CA 95030 ~e: 19 Highland Avenue Appeal; 5-16-007 Dear Ms . Zarnowitz: RECEIVED DEC 8 ~ 2016 T O WN OF LOS GATOS PLANNING DIVlSlON On behalf of Ed Pearson ,' tl:le applicant for a new home at 19 Highland Avenue , we provide the following preliminary response to the 13 points raised in the Appellants' November 7th appeal document. We expect to provide the Town Council with additional information before and/or at the hearing on December 20 . In summary of our position, we believe that substantial evidence in the record does not support the ··granting of the· appeal on any of the three findings upon which an appeal may be granted based upon Town code . The Planning Commission did not err or abuse its discretion in approving the house; there is no new information that would support the granting of the appeal , and there is no po)icy at issue regarding this house approval which the Planning Commission did not have the discretion to modify or address . As provided, below, there is no merit to any of the Appellants ' contentions. 1. The proposed project is in compliance with the HDSG , Town codes and ordinances. The Planning Commission unanimously approved the project, finding that is did not violate any rules or regulations from any reporting agency. Multiple professional ~tudies were conducted for Mr. Pearson , and peer reviewed by·the Town's own consultants confirming the findings in .these studies . ATTACHMENT 22 Sally Zarnowitz, Planning Manager Town of Los Gaios Planning Department Decembe_r 7, 2016 Pa_ge 2 2. The. appellant is objecting to the Town's o~n process for evaluating . proposed projects. No violations ofthat process occurred . The Planning · Commission acted within it~ discretion in requestin'g revisions, continuing the hearing to· allow revisions to the plans to be made , and denying the . appeal of the DRC approval based upon the satisfactory revisions to the plans . 3. The Planning Commission djd not abuse its discretion .in denying Appellants ' appeal. The Plari"ning Commission gave guidance and unanimously deCided the revised proposal rriet the HDSG, Town codes and ordinances, and ·m~t the intent of the guidance provided by the Planning Com.mission .at ea_rlier hearings. 4 . The Pl_anning Commission did not abuse its discretion in approving the home at the size propos~d :. The Planning Commissi~n was satisfied with . the evidence presented from consulting specialists -across many fields as well as the overall ,design. Town code provisions applicable to the property allow for a 4700 sf home inclusive of reduc_tions in allow~ble square footage based on the Hillside qua.lification of the site . T~e home approved by the Planning Commission is ·4,031 sf. The h_ome ~pproved by the Planning Commission ~educed the' size of the home from the March 2016 DRC approved proposal as follows: FAR = 0.09% (The chart displayed at the 10/26 PC meeting of surrounding homes showed this home to be in the _bottom 25% when )t came to FAR) · Building Footprint= 2372 SF (a reduction from March 2016 of 21 %) Lot Coverage= 63~9 S~ (a reduction from March 2016 of 1_3 %) Overall Retaining Wall ~engths = 210 SF (a reduction from March 2016 of • ' ' I 68%). . Tree ~emoval = 7 , ~ne of which is -dead . (1.5 were included for removal in the March 2016 plan , a reduction of 54%). Sa(ly Zarnowitz, Planning Manager Town of Los Gatos Planning Department December 7, 2016 Page 3 s.· _The March 2016 proposal had a creek setback of 15'. The setback approved by the Planning Cor:nmission is 20' .. Per the Town of Los Gatos guidelines, the slope stability requires a creek setb.ack at 2:1-ratio as measured ir1ward from the toe of the ba.nk; this. dimension= 6'. The home • I approved by th~ Planning Commission is set back at 20' from the creek at its clo.~est point. 6 . Both Town of Los Gatos staff and the PJanning Commission found the , project to meet all Town requirements. There was no abyse .of discretion in making thatfi.nding. - .7'. The Planning Commission decision is consistent with all Town laws and guidelines , and was within the Planning Commission 's discretion . Much 'of the parce.I is significa.ntly sloped. The HDSG specifically states,regarding the LRDA.guideline (whic~ is a guideline, n·ot a mandatory law) that homes ·should not be located in an area with 30% slope "unless no other alte~native is available ... ". The LRDA ·area for this parcel is furt~er cqmplicated by setbacks from the creek, as well as the .private driv~way to a neighboring home an.d significant tree coverage. As demonstrated i.ri the record, ther~ is not sufficient room sol~ly within the LRDA to build a reasonably-sized home consi·stent with other homes in the vicinity. Staff and the Planning Commission both app~oved the development ·at areas out of the LRDA due to these circumstances ." The average slope of the entire buil9ing footprint is 32.6%. ~ 8 . The appeal ·claims that the project approval violates a long list of · regulations,. without any explanation of how the approval violates any of the cited regulations. The Applicant asserts that the opposite conclusion is tru.e: that the approval of the project did not·violate any State, local or f~deral regulation, nor was it an abuse of the Planning Commission's discretion to approve the project.. 9 . Whether or not the Planning Commission 's position comported with the "guidance" by the public is not a basis for granting.the appeal. The · , Planning Commission, while obligated to take public testimony,. is not ?· Sally Zarnowi tz, Planning Manager Town of Los Gatos Ptanning Department December 7, 2016 Page4 obligated to follow -the '.'guidance" provided in that public testimony. It is . not an abuse of discretion for the Plannin.g Commission to have not. followed the "guidance" offered by the Appellants . . 10. The Planning Commission did not abuse its discretion i no'r did it violate the law, in not requiring either a new negative declaration or environmental impact report based upon changes made to the project from the project ·analyzed in the 2010 mitigated negative declaration . As the Planning Commission found , an Addendum .was prepared in compliance with CEQA, as interpreted by the State Supreme Court in Friends qf the College of San Mateo Gardens. v. Sari Mateo Community College District ("Friends '), and the Planning Commission consider.ed that. Addendum and its content in rendet1ng its decision to .deny Appellants' appeal of the DRC approval of the hpme at 19 Highland Avenue,. 11. The Planning Commlss.ion was not required to rely on , nor follow, the · _ written legal -analysis presented by Appellants , and it was ·not an aquse of discretion for the Planning Commission to decline to do so . The Planning Commission is ·obligated to comply with CEQA, and as ·stated reg~rding ground num~er 10 above, the Planning Comm i ssion· did comp ly w ith CEQA. in its decision regarding the home at 19 Highland Avenue . 12 . .The Planning Commission did not ignore any evidence and did not .abuse · its discretion in approving the home based upon the evidence , in · compliance with all applicable laws . There was no substantial evidence presented to the Pla .nning Commission that any chang e to the project from the project tha.t had been studied · in the mitigated negativ~ decl~rati on . approved in 2010 might cause any unmitigated .significant. impa~t. The use of an Addendum for this proj~ct was not an aquse of discretion by the Planning Commission , but rather complied with CEQA as interpreted by the State Supreme Court in the Friends case . 13. ihe~e .was no prejudicia.l 'due proce~s or procedural im?g1:-1larities by the DRC or Planning Commissio11 , or staff .. The Appellants da not specify · what the DRC might have done that it claims to be a violation. While fy1_r. Pearson does not know if there was some letter or document provided by Sally Zarnowitz, Pianning Manager Town of Las Gatos Planning Department December 7, 2016 Page 5 - the Appeliants to staff that staff neglected . to forward to the Planning CofTlmissioners , even if that occurred there was no prejudice to the Appellants -~ecause the Appellants were present at every Planning Commission hearing , and at each of those hearings _had .the opportunity to confirm with the Planning Commissioners that they received the . documentation , and if they found that the Planning Commissioners had not received the documentation , to provide it to them . There was no prejudice · to the process for the project architect (who· works regularly wifh the Town) to have presen_ted each of. the Planning Commissioner~ on her own behalf with a "desk book," an item of nominal value , which wa_s acknowledged by at least one of the commissio_ners in the public hearing. 'Finally ,' there was no procequral irregularity regarding ·schedules· .. Evidence in the record will demonstrate that Planning staff worked : "diligently to .find continued hearing dates that worked for both 'the Applicant and Appellants, that at least one hearirig was reset for the • convenience of Appellants , and that when the Planning Commission - declined to further delay_ the final hearing at the Appellants '. request which was-based upon a claim that the Appellants could not be p~esent on October 26 , each of the' Appellants did , ·in fact ,·appear at the October 26 . hearing , despite their e~rlier claim that they were unavailable: It is not an abuse of discretion for the Planning Commissi on to process matters before it' in a reasonable· time; rather, the policy ;f the law encourage$ that behavior. Notwithstanding that the Appelfants ' appeal form contends that each of tl}e three possible appeal findings are addressed in its' attached li$t of thirteen .grounds, nothing -in that attachment relates to finding 2 or finding 3, and consequently the Applicant asserts that the appeal is based solely on finding 1: the Appellants ' claim that the Planning Commiss ion erred or abused its · • • • J . ~ discretion. Substantial Evidence in the_ record demonstrates that the Planning Commission neither erred nor abused its discretion in denying the Appellants '· app.eal of.the DRC approval, o.r in approving the ho1.Jse at 19 Highland Avenue , and accordingly the appeal ·should be denied. Sally Zarnowiti, Plannif)g Manager · Town of Los Gatos Planning Departmen.t · December 7) 2016 Page6 We look forward to presenting additional i~formation from the record to the · Town Council at the December 20 hearing , answering -the Council members' questions at that time , arid to the Town Council 's denial of the Appellants ' appe~L . , · · Very truly yours , (JwJ;._ ;~· BARTON G . HECHTMAN BGH:cab cc: Ed Pearson \Clients\Pearson\Conespondence\l..tr to Town Plam1ing Manager S. Zamo1 ·1itz 12-7-16. docx Westfall Engineers, Inc . 14583 Big Basin Way Saratoga, CA 95070 Tel : (408)867-0244 Fax: (408)867-6261 December 12 , 2016 Project: NEW RESIDENCE -STORY POLES HEIGHT 19 Highland A venue Los Gatos, California To Town of Los Gatos: This is to confirm that I have inspected the above referenced site to verify the four additional story poles locations and heights . The story poles layout and heights are consistent with the locations and heights as shown on the latest project plans. The highest roof ridge elevation is 44 5. 00'. The elevations are based on the Town of Los Gatos control monument LG38, elevation 556.86', NGVD 29. Please call me if you have any questions at ( 408)515-603 7 . / ~} I ~- bicka L.S. 4953 )> II I i!liill ,,. N ~ ~ ii:i~ll I N I ~u r----• ·1111 I Ii -+ i - ......... ....! :t ;Ee~: ~ii~ t: =ia:; s~X~ ~f !~8; !l,: ;;: ~ ~ ... Illa. " ~ ~ ~