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Attachment 23Sally Zarnowitz From: Sent: To: Dorothea Smullen <dorothea.smullen@gmail.com> Sunday, December 11, 2016 5:06 PM Sally Zarnowitz Subject: Re : Trees on 19 highland Sorry for the addendum; Lisa pointed out that 18 trees from the 2010 report have been removed in addition to the 7 trees proposed to be removed. Trees numbered 19 , 24, 26, 28, 37 , 55, 58 64 , 67 and 68 have already been taken out. Can you please make this clear to the Town Council. Thank you. Yours Respectfully, Dede 408-6 79-02 54 "I always wondered why somebody didn't do something about that. Then I realized I was somebody." lily Tomlin , American Actress, Comedian. Writer On Dec 11 , 2016, at 3:59 PM, Dorothea Smullen <dorothea.sm ullen @ !.m1ail.com> wrote: I was reviewing trees that are proposed to be removed and comparing the 20 l 0 report to the 2016 report. l) You mention in the PC staff report that there are 7 trees to be removed now and 15 trees in 20 10. I don't know if you knew that a large stand of the trees evaluated in the 2010 were removed (trees 3-7 , and tree s 10, 12 and 15 i believe) to prepare for sale/development of the lot after the original approval. So yo ur statement is ver y misleading. The total trees removed to accommodate development on thi s s ite, will be more than the previous proposal. Can you clarify this point for the Town Counci l? 2) The grading and development of the revised project comes within the root zo nes and the canopies of many of the trees proposed to be retained. This is contrary to Los Gatos and most arborists recommended tree protection s tandard s. Ba sed on well established industry guidelines, these tree s likel y will not s urvi ve th e construction process. Your s taff report does not address this. Can you please discuss in your staff report to the council which trees will likel y be impacted by the development and how the project do es or does not respect the town s tandards? It is my expectation that many of the trees along the private roadway will die as they are within a foot or two of retaining walls or the house s tructure . Yours Respectfully, Dede 408-679-0254 "I always wondered w hy s omebody didn't do something about that. Then I realized I was somebody." Lily Tomlin , American Actress. Comedian, Writ er 1 ATTACHMENT 23 Sally Zarnowitz From: Sent: To: Subject: Lisa Roberts <lroberts @rehonroberts.com> Monday, December 12, 2016 10:37 AM ed pearson; DeDe Smullen ; anthony@badame .com; Sally Zarnowitz RE: Additional story poles Hi Ed: Thank you for explaining the additional netting and for offering us access to view the changes. Lisa From: ed pearson [ma ilto :epearso nz@ outlook.com] Sent: Monday, December 12, 2016 10 :35 AM To: Lisa Roberts; DeDe Smullen; anthony@badame.com; Sally Zarnowitz Subject: Add itional story poles Dear Neighbors, I wanted to let you know that, at staff's request, I have installed additional story poles (yellow netting) to show the highest ridgeline of the home approved by the Planning Commission . The story poles installed for the DRC hearing, and the ground ribbon markings for the footprint of the house as modified for and approved by the Planning Commission, remain in place . You are welcome to visit the site to view these items. Ed Pearson. 1 12/15/2016 To : Los Gatos Town Counci l RE CEIVED TOWN Oli' LOS GATOS DEC 15 2016 10: L\ 'P "" CLERK DEPARTMENT From : Appellants of Architecture and Site Application S-15-0 77 at 19 Highland Ave, Smullen , Roberts and Badame Families. Re : Su m mary of A ppellan t s' Grounds and J ustification for Appeal to t h e Town Cou nci l At the outset, Appellants would like to thank the Town Staff, the Planning Commission , and the Town Council for their t ime and attention to this project. We have tried hard to be good members of the community in this process and hope and believe that our efforts thus far have been to the benefit of the community to uphold the values as represented by the Town General Plan , the Hillside Guidelines and Standards, and the Town adopted Standards for Land Use Near Streams . We s incerely hope that our future neighbors at 19 Highland will be able to enjoy an attractive home that maximizes enjoyment of the beautiful creek-s i de setting on which it will be built. We fully expect that through this appeal process , the site can be developed in a way that respects the City 's standards and achieves the goals of the developer. Why We Are Appealing The development as currently proposed violates numerous standards and guidelines . Staff has stated that they have allowed these deviations because the constra ints of the site warrant it , but much of what is wrong with this development stems directly from too big of a house being proposed on a highly constrained site. This excess square footage results in : • Significant portions of the project (more than 40%) outside the Least Restrictive Development Area (LRDA) on areas ex ceeding a 30% slope , • Significant encroachments into required 25' creek setback and the road , • Unnecessary impacts and removal of mature trees, • Visual Impacts from excess Bulk and Mass • Numerous elevations from which more than two stories of the home are visible • Unnecessary grading along nearly the full length of the very long site Justification For Our Appeal The bases for our appeal are that: 1) The Pl a nning Commi ssion erred or abused its discretion because i ts deci s io n was based o n fal se an d ina·ccurate informat ion inc l uding : • Neighborhood Analysis Table provided incorrect, incomplete, and misleading information about the Floor Area Ratio (FAR) of proposed project compared to neighboring homes leading the Commission to conclude that the proposed project's FAR would be in the lower 25% of homes set forth on the Table. Staff failed to properly calculate the Net Lot Area because it did not deduct the 20" right of way granted to the two Smullen lots through the property. • The Commission was told the structure was not visible from more than one other home site , however there is an undeveloped home site adjacent to the proposed development with a full view of the project. The Commission was told the highest elevation of the revised proposa l decreased when it was actually moved up the hillside and increased. 2) The Plannlng Commission erred or abused Its discretion In falllng to require a new lnltlal Study as to changes since the 2010 Mitigated Negative Declaratlon that may have significant adverse envlronmental Impacts: • In cases like th is one involving subsequent changes after a prior negative declaration or mitigated negative declaration , the recent California Supreme Court case of Friends of San Mateo Gardens v. San Mateo Community College District (as furthe r clarified by the Court since the Planning Comm ission appeal) requires a new initial study where there is sufficient ev idence to make a fa ir argument that such changes may result in significant environmental impacts not previously studied , and such evidence has been presented here. 3) Th e Planning Com mission erred in it s approval and act ed o utside its authori ty f or the reasons addressed in ou r submission s, incl udi ng: • It granted an exception to General Plan Policy prohibiting more than two visible stories from any elevation (Policy CD 14.3). • It failed to justify or make findings regarding non-discretionary Hillside standards relating to grading for driveways, grading to create a backyard , and minimizing bulk and mass. • It failed to properly enforce HSDS&G Standards #2 and #3 on page 54 of relating to Tree Preservation Suggested Action for the Town Council We are not ask ing the Council to enforce addit ional limitations on the developer, just to follow ex isting rules. We understand that the site has significant constra ints and that ex ceptions to the town requirements and guidelines will be required . We recogni z e that it is pref erable to develop the site in a way that balances the visual impacts of development w ith the strict interpretation of the creek standards and the hillside gu idelines. We presented the following suggestions to the applicant prior to the first Planning Commission hearing back in July 2016 and st ill feel these are reasonable suggest ions for the deve lopment of the site. We are asking the Town Council to uphold the appeal, and refer the project back to the Planning Commission , with the following direction: • Reduce the perceived Bulk and Mass of the project by el iminating the top level of the house and confine living space to the bottom two levels tucking the bottom floor into the hillside to allow increased square footage in the basement/cellar area. • Further reduce bulk and mass and the extent of the grading by detaching the garage and placing it near the private road in order to elim inate the long driveway , or design the garage to enter on the top level of the site in a way typical to most downhill developments. Consider us ing the ex isting roadwa y as part of the fire turnaround . • Reconsider the visual impacts from the cumulative loss of trees since the 2010 project and potential loss of highly impacted trees. • If encroachments into the required setback are approved, prepare a mitigation planting and monitoring plan to re-establish the native plantings within the creek setback. • Prepare and re-circulate an Initial Study as to the new potential environmental impacts resulting from changes in the project and the environment since the 2010 Mitigated Negative Declaration. Thank you again for your thoughtful consideration of this appeal. Enclosures Letter From Susan Brandt-Hawley, CEQA Attorney and Plaintiff in "Friends" Case Letter From Neighbor Anthony Badame Letter From Neighbor Lisa Roberts Letter From Neighbor Mercy Smullen Appendix A Background Information regarding the Grounds For Appeal Brandt-Hawley Law Group Chauvet House · PO Box 1659 Glc1[ .'n,Cal.iior ia 95.'2 707 .~n1s ., goo • fax 10 r .9~i8"1200 pn'serva tionl a wyers .co.r December 15, 2016 Mayor Marica Sayoc Members of the Town Council Town of Los Gatos 110 East Main Street Los Gatos , CA 95030 Subject: Appeal of Architecture and Site Application S-15-077 19 Highland Avenue, Los Gatos, CA 95030 Honorable Mayor Sayoc and Councilmembers: On behalf of appellants, I am writing solely to discuss why the 'fair argument' standard of review applies to this appeal and requires rejection of the proposed project addendum pursuant to the Supreme Court's recent ruling in Friends of the San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937 (Gardens), in which I represent the Friends. As I have not appeared before this Council, by way of introduction my law practice is focused on public interest environmental law, including published CEQA cases such as Friends of Sierra Madre v. City of Sierra Madre, Sierra Club v. San Joaquin LAFCO , Defend Our Waterfront v. California State Lands Commission, Flanders Foundation v. City of Carmel-by-the-Sea, Lincoln Place Tenants Association v. City of Los Angeles, League for Protection v. City of Oakland, Stanislaus Natural Heritage Project v. County of Stanislaus, The Pocket Protectors v. City of Sacramento, Architectural Heritage Association v. County of Monterey, Preservation Action Council v. City of Sanjose, Galante Vineyards v. Monterey Peninsula Water Management District, and Sierra Club v. County of Sonoma. The Supreme Court's ruling in Gardens, published in September 2016, addresses the standard of review for determining when an EIR may be required for a modified project initially approved via a negative declaration. The ruling is complex. The Supreme Court reversed a lower court decision as to the standard of review that applies to whether a changed project is to be treated as 'new' versus 'supplemental' to the original project. However, the Court also affirmed the key Letter to Los Gatos Town Council December 15, 2016 Page 2of3 ruling in Gardens that is relevant here: regardless of whether a project is treated as 'new' or 'supplemental,' the 'fair argument' standard of review applies to whether an EIR is triggered by potentially significant environmental impacts of unstudied project changes. (Gardens, supra, 1 Cal.5 th at 957-959.) There was initially some dispute about the holding in Gardens in the press and in various legal online biogs . In fact, I understand that your Planning Commission was advised of a different interpretation of the case in October. But there can be no doubt as to the meaning of Gardens because last month the Supreme Court issued a grant and transfer order in Coastal Hills Rural Preservation v. County of Sonoma (2016) 2 Cal.App.5th 1234 that confirms the above interpretation: The matter is transferred to the Court of Appeal, First Appellate District, Division One, for reconsideration in light of Friends of the College of San Mateo Gardens v. San Mateo County Community College District et al. (2016) 1 Cal.5th 937, 957-959, footnote 6, and California Code of Regulations, title 14, section 15384. The request for an order directing depublication of the opinion in the above entitled appeal is granted. The referenced pages in Gardens explain that regardless of whether a modified project is 'new' or 'supplemental,'" ... when subsequent changes to a project [initially approved via negative declaration] may have significant impacts, an EIR is triggered." (Gardens, supra, 1 Cal.5th at 958, italics added.) This is the 'fair argument' standard well-established for decades, as in Friends of B Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1022. (Gardens, supra, 1 Cal.5th at 957, 959.) Gardens reiterates that an EIR process is triggered when a modified project "might have a significant environmental impact not previously considered ... " in a negative declaration approved for the earlier related project. (Gardens, supra, 1 Cal.5th at 959, italics added.) Gardens criticizes Benton v. Board of Supervisors (1991) 226 Cal.App .3d 1467, which declined to apply the fair argument standard to negative declarations for modified projects. (Gardens, supra, 1 Cal.5th at 961 , n.6.) When the fair argument standard applies, as held in Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1322-1323, there is "a preference for resolving doubts in favor of environmental review ... " A lead agency's finding of no potentially-significant impact "can be upheld only when there is no credible evidence to the contrary." (Id. at 1317-1318.) Letter to Los Gatos Town Council December 15, 2016 Page 3of3 The Supreme Court's grant and transfer order in Coastal Hills references the pages of the Gardens decision that confirm the application of the 'fair argument' standard -an EIR is required, regardless of whether a proj ect is new or supplemental, if project changes MIGHT have a significant impact not previously considered. Appellants thus respectfully ask this Council to consider facts that support a low-threshold fair argument that an EIR is required. Further, the use of an addendum is not authorized by the Public Resources Code, at all. Thank you. cc: Bart Hechtman via email Robert Schultz via email ~~7~.· l~/) -~ Susan B ~awley ANT HONY J. BADAME , M.D. Diplomate Amencan Board of Dermatology December 12, 2016 Town Council Town of Los Gatos 110 East Main Street Los Gatos, CA 95030 Dear Council Members, RE : 19 Highland Avenue, Los Gatos, CA 95030 202.5 Forest Avenue, Swte 9 Sa n Jo se, California 95 128 Telephone : \408) 297-4200 Fax : l 408) 297 -2503 www.badame.com I am a long time resident of Los Gatos having attended St. Mary's grammar school, Los Gatos High School, and the University of California at Berkeley. Throughout my 45 years in Los Gatos, I have witnessed the growth of our town firsthand. Our leaders have done a tremendous job in maintaining our unique character and upholding the values which keep our town charming . The proposed development at 19 Highland runs counter to the objective for which we have strove. Based upon the clear directives of the HDS&G, the development at 19 Highland tests many of the stated standards and guidelines. Center to the argument against this project is the sheer mass and scale it imposes upon the site. In an effort to force near maximum FAR , constraint standards and guidelines have been stretched and patent ly violated. The site is heavily constrained by a creek, numerous trees, and steep grades which pose significant obstacles in the developer's quest to maximize square footage. I am not opposed to the developer's intention to maximize economic gain; however, the developer must adhere to the town's rules and regulations. Numerous exhibits and two presentations by me to the planning commission have addressed the breaches in the rules and regulations. Many of these breaches have been patently ignored or dismissed as petty. They are not petty. They affect the immediate neighbors and the overall character of the town. It is vital that the town council consider each and everyone of the breaches just as the authors of the HDS&G did . My property at 1 Highland is directly adjacent to the proposed development. Daily I will be subject to views of the development in various manners. Further, once I establish a new driveway to adhere to the F ire Marshall's mandate, visibility to 19 H ighland will be enhanced underscoring my concern of the visual effect. I am also deeply concerned about protection of the creek and the natural surroundings. I entrust the town council to protect these vital assets and rule in the direction which serves our town and residents best. While I fully anticipate a home being bui lt on 19 Highland, I cannot support the current development. A m uch better design conforming to the site is possible. It is my hope that the town council encourages such a design . Sincerely, ~q.6M-t, Anthony J . Bada me, MD December 15, 2016 Town Council Town of Los Gatos I I 0 East Main Street Los Gatos, CA 95030 Lisa C . Roberts 78 Alpine Avenue Los Gatos, CA 95030 lro hl:rts ,d r chonroherts.com 408-859-7585 Re: Appeal of Architecture and Site Application S-15 -077 19 Highland A venue, Los Gatos, CA 95030 Hearing Set for December 20, 2016 Dear Mayor Sayoc and Members of the Town Counci l : I am one of the appellants in the above-referenced appeal, and I am submitting this letter to explain my overriding concern as a very long-time resident of Los Gatos for participating in this appeal: to do my part in advocating for enforcement of the rules that, through efforts of our dedicated Town leadership and community, have been enacted to allow residential building while respecting the natural environment and beauty of the Town and its neighborhoods. and most specifically rules limiting undue size and mass in hillside homes. r want a house built at 19 Highland. I do not want the property to be a park . I do not want the project crushed. I do not want it , or me, or the Town of Los Gatos mired in litigation. r grew up in Los Gatos. and my husband and I have lived at 78 Alpine Avenue for 28 years. We love living in this Town, and we love living in a neighborhood. We see many houses from our property. Just from our back yard facing the proposed project, we already see 10 different residences. I grew up in o ld, rural Los Gatos, lovely but lonel y , and now I look forward to the idea of walking down our steps into the ravine, popping from my s ide of the creek to the other side, and saying hi to our new neighbors. Neither my hu s band nor I have ever before objected to a project, which I believe is something of a statement given the number of projects that have occurred just on our street since we have been here. Our history is to the absolute contrary; in every project in which we have given input, our input has been to provide support. That input, however, has always been based on our understanding that the project complied with Town laws and standards. The same cannot be said of this project. This, then. is the basis for my role in thi s appeal. I would not even think of o ppos ing this project if it were in compliance, or even in substantial compliance. with Town laws and standards, but it is not. As explained in our submissions to the Planning Commission and again in our submissions here, the project violates mandatory laws without any grounds or procedure for variance (including, for example, the prohibition against more than two stories being visible from any elevation). and it also unreason a bl y strains discretionary standards (i ncluding, for example, a d e parture from the LRDA to allow a house nearly fiv e times the size L4700 sq. ft.] than would otherwise be allowed [1000 sq. ft.l). It has repeatedly been said that thi s s ite has numerous "constraints .'' Lamenting the constraints, the developer 's architect ha s called the s ite a "pit.'' The deve loper 's attorney has complained that the developer is being penalized for the sloping of the site. But constraints are not penalties. They are protections, and what they are intended to protect here is not a pit, but a serene and lovel y property consisting of a long and narrow hollow extending between steep slopes, coursed its entire length by an intermittent stream, mad e up of a woodland of numerous old-growth tree s, and bounded by neighboring hill s ide properties of equal serenity and beauty. This s ite should have a home. but it should also have a protector, and that protector is the Town. I appreciate the work of Staff and the Planning Commission. l agree that some accommodations arc warranted here to allow a reasonably s i7ed home. But l do not agree that 4 700 sq. ft. is a reasonable s ize for a home on this site, and l believe that the accommodations that were made to allow this size and mass represent a serious and extreme departure not only from the letter of the applicable Jaws and standards but also from the goals underlying those rules. It is for this reason that I decided, after very ~areful consideration, to participate in thi s appeal , and that I now respectfully request the Town Council to consider and grant our appeal. Thank you for your consideration of this letter. Mercy Smullen 25 Highland Ave , Los Gatos CA December 15, 2016 Dear Los Gatos City Council Members, Thank you for your time and dedication to our wonderful town. My husband and I live at 25 Highland, adjacent to the site of the proposed development. We moved to 25 Highland and Los Gatos in 1974 drawn by the rustic beauty of the land as well as the close proximity to the vibrant town . It has been a special place to live and raise a family; a family going on many grandchildren and even a great grandchild now. Over the course of our 40-plus years at 25 Highland there have seen several attempts to develop the 19 Highland property. However, each time either the city council or the planning commission den ied the request due to the serious challenges of the site, for example a creek running through the property, the many trees, and the severe slopes. Everything proposed was just too big for the site. I recall at one hearing a planning commissioner commented that the only thing that could be built on the site was three tree houses! My, times have changed . Needless to say, it was quite a surprise to learn that a project was finally approved on the site, especially one as large as the Pearson project proposed today. While I respect the right of the land-owner to build on the site, I have several concerns regarding the proposed project. 1. Our driveway runs right next to the proposed site on a steep slope . I have serious concerns about the stability of the slope upon which our driveway resides , especially given the extent to which the project projects into the sloped area contrary to the city guidelines. 2. I am concerned about the impact such extensive construction so close to our driveway will have on our ability to enter and exit our driveway. We are getting up in age and have experienced times when we had to go to the hospital unexpectedly. Not having access to the driveway could be a serious problem. 3. Over the years various owners of the lot have removed more and more trees from the site. understand another seven will be removed to accommodate this development, and more are threatened . It seems like a city like Los Gatos should have more interest, not less in protecting our trees and natural beauty. 4 . Also over the years, we've experienced many intense rain storms. At those times the creek behind our house roars with muddy water which passes through the 19 Highland property. Water has flooded parts of the property, well over the creek bank on occasion. I know that previous plans showed a flood plain over the property. It seems hard to believe that a house would be built so close to the creek . 5. Our property at 25 Highland includes a lot that is adjacent and actually closer to the proposed site than our house . At some point it is likely that this lot will be developed with a home, perhaps something we could leave for our children or grandchildren after we are gone . That lot has a direct view of the proposed home on 19 Highland . I don't think the impact of building so close to this lot was considered when the planning commission approved the size and location of the home. 6. The house seems out of proportion to those around it. We live in a wood and brick two story home. The old-Stoup's home on the other side of the property is also an old wood home, not overly large. This 19 Highland house seems to stick out uncharacteristically from its neighbors. As a longtime resident of Los Gatos, I would like to see the city maintain its beauty and charm . At the same time, progress means more building and we should not deny anyone the right to build on his property. I just hope we can build something that conforms to the rules our city has adopted to maintain what is great about Los Gatos. Thank you for your time to consider this matter. Yours Truly, Appendix A Background Information rega rding the Grounds for Ap peal 19 Highland Ave . Los Gatos December 15, 2016 The following document is a summary of the most pertinent issues . It is provided for background and explanation only. Size and Mass Appellants' primary concern with this project relates to size and mass, both in terms of the sheer size of the project and of the size being the culprit in causing numerous other problems with the project, including, for example, encroachment into the creek setback and encroachment outside of the LRDA. 1. Applicant's Revisions Applicant's size reduction was de minimis given the Commiss ion's direction to make the project substantially smaller. The percentage change did not even reach double digits, the project having been reduced overall by only 8.45 percent (only 3 .45 percent more than the "not meaningful" 5-percent reduction in Commiss ioner Hanssen's example). Applicant's house, as originally designed, squeezed in stereotypical luxuries, amenities and maximum poss i ble rooms, and the revised design retains all the same hot sell features, just reducing certain rooms to the t hreshold of code minimum at the expense of the natural beauty of the site and the surround i ng neighborhood . Additionally, while Applicant cla ims that he has also re-designed the house to reduce its "perceived mass" (see Applicant's 8/18/16 letter), in fact, the revised design has increased perceived mass, as discussed below. 2. T he Commission's Errors of law and as to Discretion Town ordinances, standards, and guidelines include numerous provision directed to size and mass , including in the General Plan and the HDS&G. Some are mandatory, designated by the word "shall"; wh ile others are discretionary des ignated by such words as "should ." 1 Even discretionary prov isions should generally be enforced, departures made only in exceptional circumstances and only to the extent necessary to address those circumstances while abiding by the underlyi ng goals and intent of the provision. Here, it is Appellants' position that the Commission allowed a design that outright violates mandatory pr ovis ions, and that, further, the Commission allowed u nexceptional considerations (i ncluding, e.g., Applicant's desire to maximize size on this site, an incorrect notion that a certain level of FAR is guaranteed an 1 Based on communications with Staff, it does not appear that Town Staff distinguishes between mandatory and discretionary provision s and has concluded that mandatory standards are ideals to be approached rather than mandatory. Thi s is not, however, borne out by the HDS&G it self, which has a ve ry careful ex pl anation about standa r ds vs . guideli nes . 1 Size and Mass Cont inued applicant, and perhaps the money Applicant purportedly spent in revising a design that the Commission itself agreed was un-approvable in the first place) to overr ide the language, goals, and intent of other prov isions created for the proper planning of hillside homes in Los Gatos. Just with respect to sheer size and mass (and before even considering the effect of size and mass on other issues, including tree preservations and the environment), at least the following provisions militate against the size and mass of this project: • A maximum of two stories shall be visible from every e levation . (Policy CD-14 .3 [the "Visible Two-Story Ru le"].) • Ensure that projects are designed to fit with and avoid the site constraints. (the "LRDA Provision") • Buildings shall be designed to conform to the natural topography of the site. (HDS&G p. 36 [the "Natural Topography Rule"]; see also examples pp . 36 and 18.) • The height of the lowest finished floor(s) of a structure ... shall not be more than four feet above the e x isting grade to ensure that buildings follow slopes. (the "Four-Feet Rule") • The project should be "compatible with the surrounding neighborhood and respectful of neighbors." (HDS&G p. 31 [the "Compatibility Provision "].) a. The Visible Two-Story Rule The V isible Two-Story Rule was violated by approval of this project because more than two stories are visible from, not just one elevation which alone would bar the project, but from many elevations, including from Alpine properties that extend down to creek level to the east, Highland properties to the south, from the north, and even from large portions of, if not the entirety of, the expanse from the west. The Commission, many members of which actually visited the site, apparently overlooked this. Indeed, as pointed out by Appellants and discussed further below, the revised plan is even worse in this regard than the original one depicted by the story poles that the visiting Commissioners would have seen, the uppermost portion of the st r ucture having been raised one foot higher in the air than before. The Commission did not d iscount the Visible Two-Story Rule itself, which was appropriate because the rule "shall" be followed .2 Rather, focusing on only one elevation from a 20 architectura l drawing (the vantage point from the private roadway edging against the proposed building site), it determined that only one story was visible . This is simp ly contrary to the 2 Nor, based on Appellants' post-Commission-appeal discussion s w ith Staff, does Staff discount eithe r the existence or effect of the Vis ible Two-Story Rule; Staff's response was simply that they do not apply it. Even so, it is apparent that Applicant r ecognizes the significance of the rule, focusing on stories and vis ibility at and lead ing up to the October 26 and arguing, as the Commi ssion appa rently accepted, limited story visibil ity from th e private roadway . 2 Size and Mass Continued evidence; not just one, but in violation of the Visible Two-Story Rule, more than two stories are readily visible from many elevations from the roadway in real life. Additionally, this conclusion ignored the visibility of more than two stories from nearly all other vantage points surrounding the proposed project, as depicted by Appellants' slide presentations as well as even by the more conservative story poles associated with the prior design. The only apparent ground on which Applicant appeared to justify his failure to follow the Visible Two-Story Rule (other than by focusing only on certain vantage points from the private roadway rather than every elevation) was a technical argument that the house is not a "three- story" house. However, that issue is not governed by the Visible Two-Story Rule but by another rule prohibiting "three-story" houses. (See HDS&G p . 36 [the "Three-Story Bar''] ["[t]hree-story elevations are prohibited"].) Unlike that bar, the Visible Two-Story Rule does not turn on whether the house is a three-story house; it does not even refer to three stories, and, unlike the Three-Story Bar which is completely silent on visibility, it focuses and turns on visibility. If, as here, more than two stories are vis ible from any elevation, the house is not allowed .3 b. The LRDA Provision At the October 26 hearing, commented, and Applicant by his Architect and other members of his team agreed, that, to be compliant with applicable rules including the creek setback and LRDA, Applicant could build only a 1,000-square-foot house on the site. Regardless of how one might feel about that size, that size must; therefore, be the starting point in (indeed, the benchmark for) any exercise in discretion in relieving Applicant from the demands of the LRDA Provision . Appellants are in absolute agreement that some exception from that provision was and is appropriate to allow construction of a reasonably sized house . Appellants do not, however, agree that Applicant was entitled to nearly a five-fold increase in the otherwise allowable house size. It is almost as if the extreme constraints of the site were allowed not just to open the door to a reasonable LRDA exception, but to fling it wide and free of further concern over the requirements, goals, and purposes of the LRDA Provision.4 3 Any other construction of the Visible Two-Story Rule would render it identical to the Three-Story Bar and thus render it utterly superfluous in violation of basic maxims of statutory interpretation to assume that each statute was enacted with full knowledge of other existing statutes, that each statute must be given effect, and that the words of each statute (here, very different words as between each statute) be given full meaning and force . In any event, the Town Council need not decide this issue on this appeal; as discussed below, Applicant's plan has depended on so many other unwarranted ex ceptions (and what indeed are unstated variances to the extent in violation of mandatory requirements) that there are ample other grounds on which to deny this project in lieu of a project better complying with the demands of the site, the neighborhood, and the applicable laws. 4 Appellants are not architects, and Appellants do not know the perfect size for the house for this lot, but they have sufficient experience to come to a very reasonable conclusion that five times the otherwise allowable size is excessive. 3 Size and Mass Continued Based on the Commission's comments and questions, it appears that the Commission's controlling justification for allowing such extreme encroachment beyond LRDA was FAR. Specifically, by Commissioner Hudes, it noted that the project's FAR is 16 percent less than the maximum FAR allowance for the site and the resulting FAR would be in the lower quartile of the homes listed on the Neighborhood Analysis Table that was presented to it. It is Appellants' position that, in addition to having erred by failing to follow the mandatory Visible Two-Story Rule, the Commission improperly exercised its discretion as to the LRDA Provision by undue concern for ma x imizing FAR and by reliance on a Table that did not accurately provide the full picture regarding the levels and distribution of FAR in the relevant neighborhood . Maximum FAR is not an entitlement. It is not even a goal. The FAR rules are intended only to assist in determining whether the mass and scale of a project is compatible with the surrounding neighborhood . Moreover, they must be app lied in conjunction with other standards and requirements, and, indeed, as to hillside homes and under the express provisions of HDS&G, the extent of FAR as to any one site is expressly limited by the constraints of that specific site. Thus as provided by Los Gatos Code of Ordinances, Sec . 29 .40 .075 : The objective of the floor area ratio (FAR) is to assist in determining whether the mass and scale of the project is compatible with the surrounding neighborhood. The FAR is a nominal limit, not a goal, and shall be used in conjunction with the re s idential development standards adopted by resolution . (See also HDS&G p . 27 ["[A]ch ieving the ma x imum floor area allowed is not guaranteed due to individual site constraints"]; see also testimony of Lee Quintana, supra . The constraints of the subject site are extreme, as has been repeatedly stated by Applicant, by Staff, by the Commission, and, most likely by the prior applicant seeking approval for developing this parcel and the staff and commission existing at that time. Commissioner Hudes's description of the property as the depth of a hollow created by erosion and a stream is apt, and what's more, the property lines do not encase the entire hollow but only a portion of it (one side lying w ithin Alpine Avenue property lines); the stream flows such that the required creek setback cuts deeply into potential building areas; the slope side of the hollow owned by the property owner is very steep; as described by Applicant's arbo r ist, the property is a woodland (even now after removal of trees from the prior application); and that woodland includes prominent old-growth specimens that will be removed or destroyed by the construction . There may be more constrained sites i n Los Gatos, but none have been mentioned during this process. The conclus ion that these considerations should be outweighed to allow the applicant near maximum FAR is not warranted; nor would it be good precedent, effectively making at least that amount an entitlement ex cept for a site, if it e xists, that is even more const rained than this one . 4 Size and Mass Continued c. The Neighborhood Analysis Table The numbers i n the Neighborhood Analysis Table do not provide a proper comparison of the project to the neighborhood, lacking in critical information and adopting an erroneous comparative approach both in terms of content and methodology. First, the Table compares apples to oranges, with at least half (the 9 Alpine Avenue properties) of the 17 neighboring properties on the Table are located in an entirely different zone than subject. They are zoned R-1:20, whe reas the subject is zoned HR-2 Yi. The zoning difference is not just technical; it is an actual reflection of the clear differences in the neighborhoods. Alpine Avenue is a neighborhood street, with a public roadway and streetlights, sidewalks, houses uniformly facing the streets with front yards and in most cases back yards, and with typical neighborhood setbacks between each house . The area accessed by Highland Avenue, albeit adjacent to Alpine (and thus the impact of the large proposed development on certain of the Alpine houses), is of an entirely different tenor. It is a rural area, still blessed by the oaks and shade and streams and greenery of very old Los Gatos. It does not have a public roadway but a private one. It does not have sidewalks or streetlights. It has deer paths and moonlight or flashlights for nigh t walking. In terms of size and mass (and thus FAR), the impact of construction in this area is far different and far more devastating than any like construction would be on Alpine Avenue . Second, the Table does not address massing. The subject project amasses all its FAR in one place and in one building. That is not the case with numerous of the neighboring properties, including the ones that appear to have large houses . Appellant s have not researched every house, but notable examples in which neighbors have allocated their FAR to reduce mass, which Applicant has not done 5, include detached garages and detached cottages. T hese homes include : • 66 Alpine : detached garage • 74 Alpine: detached garage • 76 Alpine : detached garage and two detached cottages6 5 For so m e rea so n, the Tabl e includ es only some (but not all) Alpine prope rties on the sid e of th e street nea r the subje ct property. Th e Alpin e neighbo r h o od does not split at th e street, and, if any of Alpin e is used for co mparison to the adjacen t HR -2Yz area , all of it should be; and the houses on the oth er side of Alpine provide ye t additional exa mple s of reduction o f mass through d eta che d g arag es, cottag es, and other m e an s. 6 The table would imply that this prope rty, consi st in g of 4,117 sf hou se on an 8500 sf lot with a FAR o f 0.43, i s m ade up of an imposing ho use . No th in g i s further from the truth . Th e house is pleasant and mo derate ly sized , with mu ch of th e property FAR distributed in the two cottag es on the rear of th e lot built d ec ad es ago under different r ules and st anda r d s. 5 Size and Mass Continued • 78 Alpine : detached garage and detached cottage • 25 Highland: detached garage and pool house 7 Third, the Table admittedly includes cellar space in neighborhood homes even though such space is not included in FAR, thereby inflating the comparative FAR numbers. (See August 24, 2016 Staff Report p. 6 [''The provided floor areas may also include cellars"]; Again, Appellants have not researched every house (even the Town not keeping track of cellar space), but at least two properties on the Table have cellar space including 78 Alpine and 15 Highland Avenue.8 Fourth, the Table admittedly includes the gross rather than the net lot area . (See Staff Report p . 6 ["The Neighborhood Analysis Table below includes the gross rather than net lot area (lots in the area would be subject to a slope reduction based on topography"].) It is not correct that all "lots in the area" would be subject to a slope reduction; only some of the lots, including most notable the subject property, are subject to slope reductions, and, in any case, as noted in the Report, the slope reduction for each lot depends on the topography of that lot. By not including the slope reduction, the Table overstates the pertinent size of lots, like the subject one, subject to a slope reduction, and, thereby, as discussed next and under the Table's methodology for determining FAR, thereby understates the FAR of such properties including the subject one. Further the Net Lot Area does not exclude the right of way of the private road as defined in the HSDS&G Glossary. Fifth, the Table does not employ a proper methodology for determining FAR. For the reasons forth above, in order to provide accurate guidance, the Table should include only the hillside- designated homes, and, further, the column entitled "FAR" should accurately identify and exclude cellar space, exclude 400 sf of garage space while including any excess garage space, and be based on the net size of the lot after slope reduction . Additionally, to provide accurate 7 There are also numerous other ways in which the mass of homes on the neighboring properties has been reduced or masked lessening their impact, including, for example, 50 Alpine and 54 Alpine which are located in relatively low-lying areas at the back of flag lots; and 58 Alpine which is shown to have the most living area and a FAR of .25 with considerable living space below grade and not observable from the street adhering to the intent set forth in the General Plan "to provide hidden square footage in -lieu of visible mass". Applicant may argue that he is not able to take these steps on his lot, but that merely highlights the constraints of the lot and does nothing to establish that the project, despite its large size and mass , will fit in . 8 Nor, according to the Staff Report, does the Table ex clude the 400 square feet of garage space that is not included in FAR; and, while an argument could be made that this inclusion is across the board and thus negatively affecting all properties, maximum FAR is a ratio, and inclusion of improper garage square footage additionally puts the value of the Table in providing a fair neighborhood comparison into question . Moreover, as discussed below, while the Table includes the garage space in one of its columns, it does not include that space, or the excess garage square footage (over 400 sf) that is supposed to be included in the FAR calculation, in its calculation of FAR . 6 Size and Mass Continued information, the Table should focus on each property's percentage of FAR based on the maximum attributed to that property. It does none of this. The Table calculates each house's FAR ratio by dividing the corresponding number in the "Living" column by the corresponding number in the "Lot Size" column. Even though, in separate columns, it provides garage information, it completely ignores them, both the square footage within the 400-ft exemption and the non-exempt excess square footage, in the FAR calculation. d. Height The Commission ignored two facts about height: (i) Applicant changed his plans to raise the existing grade after one of the Appellants raised concerns about height over existing grade during the DRC process; and (ii) despite Applicant's insistence that his revised plans have lowered the house by 18 inches from his original plans, in fact, the revised roof line is actually one foot higher than in Applicant's original plans . The plans showing the manipulated higher existing grade were posted as the final and actual plans for approval by the DRC upon noticing of this application to the public, and, like Applicant's subsequent plans, bore the signatures of Applicant's professional who drafted and stood by the accuracy of the plans. Under the original plans, Applicant violated the Four-Feet Rule . The plans were not thereupon changed to lower the height of the house but to raise the existing grade. Other than claiming "mistake," no explanation was given for this increase, and no other mistakes or required changes were noted or made. Appellants understand Staffs thinking to be that Applicant's professional will stand by the revised plans, and that may be appropriate, but, given that the original plans were equally certified as accurate, that the change enables a higher height, and that the change was not made until height concerns were raised should require the Town to make an independent evaluation of existing grade by a licensed professional and do so before any grading or construction on the property, not to mention before approval of the plan. While Appellant raised this issue to the Commission, no comment on the matter was made by the Commission at the hearings. On the second matter, the Commission specifically asked Staff about the overall height at the October 26, 2016 hearing, but received only a response about whether the house met the 25- foot height requirement without Staff addressing the overall height issue raised by Appellants : that, in response to the Commission's concerns about size and mass, Applicant revised his plans to provide for a house that actually rises higher in the sky than under the original plan, increasing visibility and mass, and that, rather than noting that, Applicant claimed that he had 7 Size and Mass Continued instead lowered the he ight by 18 inches. This was carefully ex plained with a table of the structure's heights in a clear and precise manner by Appellants during their slide presentation . e. Failure to Adequately Consider Neighbor Views Applicant claims surrounding neighbors are minimally affected by the visual impact of the structure. This simply is not true . The backyard of 78 Alpine sustains the full brunt of the towering north edifice . To the south, 1 Highland, upon the fire marshal's mandate to reduce the grade of the existing driveway, will be subject to unobstructed views of a two-story, side yard wall plane extending over 100 feet long. To the east, residents of 25 Highland will pass the structure daily by car and strolls down the private road will be vitiated by the long edifice hugging uncommonly close to the road . Overlooked by all except appellants is the undeveloped parcel directly east of the development. This parcel, once developed, will face the applicant's structure head on . It will be most affected by being subject to unobstructed views at all times and manne rs during the day. f. Failure to Consider Solutions The subject property has three potential building sites, and, rather than approving Applicant's plan, the Commission, Appellants believe, should have required Applicant to make better use of those sites . In any event, Applicant's overall square footage should be reduced, but, add itionally, using the other building sites to distribute FAR would result in a much less- intrusive project, i ncluding by, for example, creating a detached garage (which in any event is required under the V isible Two-Story Rule lest Applicant instead desire to omit a different story) and/or a detached office and/or detached studio or cottage . No reason has been given for avoiding this distribution by use of the building area at the east end of the lot, and, whether shifting some of the mass of the main house for office, cottage, studio, or other use, use of this area would soften the effect of the project now centered on (and vastly encroaching past) only one spot of the property and i n one solid block of building. As for the west end, Applicant has not devoted sufficient energy, with assistance from the Town, in uti lizing the building area there (subject to creek setbacks/soil stability issues, which also in any event apply to the currently planned turnaround. It is correct that the Assistant Fire Marshal Doug Harding has advised of the need of a fire turna round in that area (and it is also correct, based as well on Appellants' communications w ith him, that he is firm on this requirement). However, equally correct is that he was not provided with information critical to the decision; the information resulted in application of the turn~round requirement where it is not necessary; and that the ava ilability of other options were not disclosed or considered. As Appellants understand, Mr. Harding made his decision based on February 2016 plans . Applicant's p lans state that the roadway is a "private driveway.'' This i s inco r rect under fire regulations. A driveway is defined as "A vehicular a ccess serving a single parcel of land 8 Size and Mass Continued consisting of not more than one primary single family dwelling, one secondary dwelling, and associated accessory structures. 11 The roadway here serves three different parcels and is not a driveway. It is correct that the roadway is not public, but public versus private is not the determining factor under the fire regulations; rather, whether public or private, the need for a turnaround turns on the distance of the farthest reaches of the house from the centerline of the roadway . As stated in the Santa Clara County Fire Ma rshal's office Standard Details and Specifications Spec . No . CFMO -Al: ''An approved fire apparatus turnaround is required when the distance (as measured along the path of travel) from the centerline of the access road to the farthest portion of the structure excess 150 feet. 11 Here, admittedly, there is still a difference of opinion regarding the need for a turnaround for this project. Mr. Harding believes that the pertinent roadway centerline is the public portion of Highland Avenue; based on the clear language of the statute, however, it is Appellants' pos ition (and should be the position of the Applicant and the Town) that the pertinent centerline is from the private Highland Avenue roadway because that is precisely what the statute says: " .. .from the centerline of the access road ... ". Mr. Harding also takes the position that only the centerline at the roadway at the driveway entrance counts even though the regulation does not say this and even though, in this case, all parts of the proposed structure will be well within 150 feet (more like 20 -30 feet) from adjacent portions of the roadway. Also based on communications with Mr. Harding, he was not advised of the turnaround on Appellant Smullen's property at 25 Highland just up from the subject property, and he was not advised of this even though, during the communications between Applicant and Appellants even before the DRC hearing that turnaround was suggested as an option. This turnaround is more than sufficient as a fire turnaround.9 None of this is intended to suggest that Applicant should have ignored or disputed the position of the Fire Marshal's office . It is only to say that, by having provided full and accurate information to the Fire Marshal and having further discussion regarding the actual nature of the roadway and the effect of the regulation and the availability of a nearby alternative, Applicant may well have, and may well be able, to make better use of an important building spot to lessen the visual and actual impact of his project by detaching excessive amount of FAR from the one structure and dispersing it to others, with an overall far more pleasant and far less imposing effect. 9 Mr. Harding stated his belief that such an option would be unworkable because the property owners could cancel any consensual easement allowing for this use , but any such easement could readily require the Fire Marshal's consent to cancel, and , further, it is not clear that a fire department needs an easement to use any available land to fight a fire, and, obviously, the owner, now or later, of 25 Highland would most likely appreciate the dousing of any fire just down the hill from hi s or he r property. 9 The Planning Commission erred in approving the project without proper consideration of the true facts and enforcement of the laws and standards regarding trees on the property: Applicant's Tree Plan Approved by the DRC and Initially Presented to the Planning Commission Was Based on Outdated and Erroneous Information; Was Based on Demonstrably Ineffective and Substandard Tree Protection Measures; Was In Violation of Town Code; and Called for Removal of or Peril to Prominent Trees Including a 150-Year-Old Oak Tree With the largest Canopy on the Property. As set forth in the Tree Attachment, a copy of which is attached, the project should not have been approved, and, thus, the Planning Commission erred in approving, the project based on the following matters relating to trees. The DRC's approval was based on a 2010 arborist report without updated information including current tree size (and thus value and required tree protection measures) and current (as opposed to 2010) tree health and quality. Nor did the DRC require updated information, provided in the 2010 and notably omitted from the subsequent post-DRC arborist reports submitted by Applicant, regarding what trees might not survive construction even though not openly slated for removal. The importance of such information is not only demonstrated by the 2010 arborist report that did include such information, it is demonstrated In HSDS&G Standard #3 on page 54 of relating to Tree Preservation, which should have been but was not followed here, providing that, "[i]f a tree is proposed for removal, or if the Town determines that a tree may not survive construction, information on the visual impact of the removal as well as the impact on adjoining trees shall be submitted with plans." Even as to at-risk trees, as evidenced by Applicant's arborists' reports submitted after DRC approval and during the Planning Commission appeal and Town Code section 29.10 .1005, Applicant's tree preservation measures was substandard as well as in violation of Town law. The project failed to take into consideration the value of the property as a "woodland" as described by Applicant's own arborist. There has been no mitigation for trees already removed from the site by the prior applicant. Important trees are at risk, either from outright removal or construction loss, including, by way of example, Tree 30 which has the largest reported canopy on the property, is an important property line landmark and screen, and, according to Applicant's arborist is about 150 years old . While the Planning Commission was not provided with the Tree Attachment with the original August 10, 2016 letter, Applicant was provided with that letter immediately upon receipt and in its entirety, and, indeed, responded to the Tree Attachment before the letter and attachments were provided to the Commission; yet, as shown by that letter (an August 16, 2016 letter included with Exhibit 32), Applicant's arborist did not rebut the foregoing points. 10 Trees Continued The Commission Further Erred by All owing Applicant to Simply Shift Trees From "Remove" to "Retain" Without Relevant Changes in the Proposed Project or Construct ion , by Disregarding Construction-Related Tree loss, and by Counting Trees Without Regard to Size, Quality, Species, location, or Impact on the Site. In response to Appellants' leg itimate concerns regarding trees, Applicant did nothing to alter h is construction plans to save more trees or reduce peril to trees. He simply moved trees from the "Remove" category to "Retain ." Those trees were originally put in the "Remove" category for a reason, and that reason typically and presumably here was because the trees at issue would interfere with and/or not survive construction . Applicant's application to the DRC was based on the same tree removal plan and 2010 arborist's report associated with the prior report, and, as Applicant frequent ly mentions but for a different and irrelevant proposition, his proposed project is in the same location . Yet, without any evidence that his proposed project will not result in the same construction impact on trees-and indeed w ith evidence to the contrary because Applicant has now tilted his proposed building closer to at least one prominent bank of trees at roadside-Applicant has simply re-categorized the trees to make it appear that fewer are being sacrificed than really are. As between the 2010 plan and the latest plan, on which the Commission's approval was based, Applicant has transferred 8 different trees from "Remove" to "Retain" (Trees 13, 22, 27, 30 , 38, 39, 40, and 62). Not only has Applicant failed to provide a construction-related justification for deeming these trees now savable, he has argued only (and even then with no basis for optimism) that he is giving the trees a "fighting chance." A fighting chance is not the goal of Los Gatos' tree preservation guidelines and the reason for its reputation and honors as a city of trees. The Commission Further Erred by Considering Only Count and Not Impact. The Commission based its tree analysis on the number of trees that would be retained without considerat ion of impact. As noted above, Applicant's re -categorization of trees masked the number of trees that actually will survive and thus be "retained" by the plan. Further, in relying on the number of trees still to remain, the Commission put heavy reliance on preser\tation of trees located only at one end of the property, only at one corner of that end , and along a slope away from roadside and providing no screening from roadway. The trees in this set were not even specifically identified in any arborist report; there is no evidence of their species, size , health, value to the site, or relative importance compared to the trees on the vast remainder of the site that will be affected by the construction, resulting in a large swath of tree death to trees that have been specifically identified including prominent, substantial, and viable trees important to the setting and softening of any project on the setting. 11 Procedural Matters Appellants raise the following concerns about actual and/or perceived violations of due process for consideration in this matter and future matters com ing before the Development Review Committee and the Planning Commission . Apparent Violation of the Brown Act at the DRC level. Comments by the DRC at the March 29, 2016 hearing, email communications to the public about conclusions already drawn about the project, and the lack of substantial deliberations at the hearing suggest a violation of the Brown Act by virtue of the DRC being made up of same members of Staff privately meeting, discussing, and resolving issues regarding projects before them prior to the public hearing. Inadequate Information Provided to Pub lic as to Effect of Project. In response to one neighbor inquiry regarding this project, the staff response was as follows: No variances are requested with the application. The application does include an exception to the LRDA which was considered on the previous application and supported by the Planning Commiss ion. The applicat ion removes the additional exceptions to grading and retaining walls that was requ i red with the previous design. Staff has determined that the application is consistent with our standards and guidelines .... (See 3/25/16 email from Marni F. Moseley to Peter Rehon.) To the extent, as set forth in this appeal, the project was approved, explicitly or implicitly, on variances from mandatory laws or on exceptions beyond just an LRDA exception, the response was inaccurate, and to the likely degree repeated in response to any other public inquiry, tending to discourage careful public review of and concern over the project. Improper Gifts to Commissioners . Attached is an email chain regarding and in response to Appellant Lisa Roberts' inquiry to the Town Attorney regarding the meaning of a "desk book" referred to at the September 28, 2016 hearing before the Planning Commission on this matter. Only as revealed as a result of this inquiry, prior to a hearing on this contested matter, and before any Appellant had arrived and entered the Council Chambers, Applicant's architect Bess Weirsema gave gifts to each of the Commissioners appearing that evening, and, only after concerns were raised over Ms. Weirsema's action and the resulting appearance of impropriety, was any advice apparently given regarding the due process implications of the gifts (attention being paid only to the unrelated issue of whether the gifts would have to be reported under FPPC regulations). As stated by Ms. Roberts in the emails, Appellants have full respect for the integrity of the Commission and are not concerned that any of its members were swayed by the gifts, but the appearance of impropriety is a serious issue. 12 Stream Guidelines Town of Los Gatos Guidelines and Standards for Land Use Near Streams not adequately considered The Planning Commission erred in their approval of the proposed project because they did not adequately consider the Town Guidelines and Standards for Land Use Near Streams. The Town of Los Gatos participated in a multi-jurisdiction planning process aimed at adopting uniform Creek protection standards and transferring stewardship of the County's creeks to local jurisdictions. This resulted in the Development of the Guidelines for Standards for land Use Near Streams . Town Council Resolution 2007-020 indicates that the Standards have been adopted in their entirety, however staff asserts that they were only adopted in part.10 Staff has been unable to present to the Appellants or the Planning Commission, the part of the standards they claim were adopted by the Town Council Resolution but instead is relying on a "Summary Handout" that was prepared by staff to hand out to the public. The Summary Handout calls for a 25' setback to all structures from the top of bank for a property this size . The Planning Commission granted an exception to the standards without knowing the baseline setback requirement (25') and without complete knowledge of the actual standards adopted by the Town Council. Further the Planning Commission and Staff used as the basis for their approval of the reduced setback, the approval of a reduced setback for the 2010 proposal. The lesser setback approval in 2010 was based on a determination that the creek was ephemeral rather than seasonal. Setbacks for Ephemeral Creeks are less than for Seasonal Creeks. The City now recognizes that status of the c reek as seasona l or intermittent. Plans Not Submitted to SCVWD as required by the Stream Guidelines In conversations with staff at SCVWD, it appears that the Planning Staff differs from SCVWD in their interpretation of what constitutes a Riparian Protection Area or Zone as opposed to a Riparian Corridor and the value of these areas; types of structures that are allowed within the setback area; and whether or not maintenance or repair of the stream is required. Since the current proposed plans were not circulated through proper (CEQA) channels, the SCVWD has not had an opportunity to comment on the proposed project. The Towns standards require that all projects be circulated to SCVWD for comment. Although the applicant contacted SCVWA via certified letter, the plans were not submitted for comment. Attachment 1 . Tree Attachment Attachment 2. Email Chain regarding meaning of "desk book" and improper gifts 10 Per Conversation between Joel Paulson and Dede Smullen December 5, 2016 13 EXHIBIT D: TREES ON PROPERTY Based on our review of the arborist reports that have been provided to us by Applicant and my discussion with Applicant's arborist, the following things are clear: A. T he T own Arborist Report is Outdated, and a New Town Report Should be Commissioned. The only independent guidance regarding trees on the Property is the report prepared by Arbor Resources for the Town dated February 15 , 20 I 0 (the "20 I 0 Report"). That report was prepared over six years ago. 1t related to both a different construction project and a different environment. It is outdated, and a new independent report should be commissioned for the project now under consideration and based on the environment as it now exists. The 2010 Report related to a now-expired application, Architecture and Site Application S-03-49, by the fonner owner of the site, Dr. Angelo Orphan. The plans under that application are materially different from the plans now under consideration. not only in terms of size, dimension, and design, but also in terms of placement on the site. These changes have a direct effect on tree impact, as reflected by recent revisions to the proposed disposition of trees. The 20 I 0 Report also related to an environment that has changed. Since that lime, there have been material changes to the site. including, for example, a relocation of a portion of the creek (which Applicant himself has now verified); the removal of J 8 trees by the prior owner pursuant to his then-effective but now expired application; and tree growth and other changes altering the size, importance, and status of the trees. (On the last point, Tree 30 is illustrative , having, as discussed further below, grown significantly in diameter since 2010.) The change in environment and the need to obtain updated independent review · -is underscored by Applicant 's arborist reports, the May I 0, 2016 report by Monarch Consulting Arborists LLC ("Monarch") (the "May 2016 Report") und the July 10, 2016 report by Monarch (the "July 2016 Report'") (collectively , the "Monarch Reports"). They differ in material ways from the 20 l 0 Report. including as to tree condition, suitability for preservation, and impact from construction, and there is no way to tell whether the differences are due to changed conditions or fundamental disagreement with the town report.1 1 Only by way of examples , the condition of one tree, Tree 1, is more favorably stated in the Monarch Reports ("good '~ as opposed to "'fair" as stated in the 2010 Report); whereas the 2010 Report p!aced Tree 2 in the middle of the scale in tenns of negative impact from construction, the Monarch Reports foresee only a low impact of construction on the tree; whereas the 2010 It should be noted that as to the one factor that one could conclude could and would change over time, tree size, the Monarch Reports provide no guidance. As discussed below , as to all the trees identified in the 2010 Report , they simply adopt the size as measured in 2010 and set forth in that report. The need for an updated independent report is further shown by the lack of necessary information in the Monarch Reports compared to the {now outdated) 20 I 0 Report. The 2010 Report was forthcoming regarding important issues that are not adequately addressed. if at all, in the Monarch Reports, such as the impact of construction on remaining trees on the property and adjacent properties. It expressly identified trees that-,even though they were not slated for removal --should nevertheless be "considered a loss" given the expected impact of constru~tion. (Sec 20 I 0 Report p. 4; sec also pp. 4-6 [identifying~ e.g., trees planned for retention that "would otherwise be subjected to such severe impacts that their premature decline and instability would result"].) (All emphases are in original.) As discussed below, Tree 30 was included in the loss list. Also, the 2010 Report expressly identified potential impacts to trees on adjacent properties with recommendations to avoid jeopardy to them. {See 20 I 0 Report p. 5 [stating that the proposed underground utility trench "will conflict with four large oaks located on the neighboring western property'}) The Monarch Reports does not provide any of this type ofinformation. They do not list trees to be considered a loss; they do not mention the four oaks on the adjucent property; they do not address the impact of construction on any trees on adjacent property (or, really, except to recommend a tree protection plan, address any such impact on trees on the property). lt is wholly unclear whether the omissions are due to changes in the plans or simply failure to provide important information. Also, the 20 l 0 Report set forth diameter and estimated canopy spread measurements for all trees contained in the Report (Trees 1-68). (See 20 I 0 Report, Tree Inventory Table.) The Monarch Reports do not include any information regarding canopy spread, and, as to diameter, as discussed below, they rely on the outdated 20 I 0 Report for that information. Given all the foregoing and the Town·s dedication to preservation of trees, it seems essential that the Town be guided by a complete and independent report that addresses the current plans, current wood land, and the potential impacts of the currently planned construction on that current woodland. Report reported that Tree 30 would be so impacted by construction that it would be a loss with the highest impact of construction rating , the May 2016 Report stated that the impact of construction would be only moderate and the July 2016 Repo11 states that, if 5 more feet is placed between the tree and the slructure, the impact will tum to low . 2 B. The Applicant's Arborist Reports Arc Suspect, Relying on the Outdated Town Arborist Report for Tree Size. As noted, the 2010 Report set forth both diameter and estimated canopy spread measurements for all trees contained in the Report (Trees 1-68). (See 20 l 0 Report, Tree Inventory Table.) According to the Monarch Reports, they were commissioned as well to determine size (specifically, trunk diameter). (See Monarch Reports, p. 1.) However, although they were prepared six years after the 2010 Report, they fail to provide any updated size infonnation. They do not address canopy spread at all. As for diameter, they rely on, and in their tree inventories simply repeat, the sizes set forth in the 2010 Report. (See Monarch Reports, Tree Inventory.) Of course, the tree sizes have changed · at least some of lhem -· in six years, and, indeed, as discussed below as to Tree 30. the size change has been signi ti cant Size is critical. lt obviously relates to the condition, presence, and importance of a tree. As discussed below. it also dictates the proper measures to take for adequate tree protection during construction. The lack of current size information is a critical flaw in the Monarch Reports. C. There Has Been No Mitigation As to Trees Already Removed From the Site. Apparently prior to the expiration of his permit on his prior application, the prior site owner Dr. Orphan removed 18 trees from the site. (Compare trees existing as of 20 J 0 Report and trees existing as of Monarch Reports.) Considerable time has passed since that removal, and, to date, there has been no replanting or other mitigation to compensate for the removed trees. This itself is problematic, and it also raises concerns that additional tree removal will occur in connection with a non-perfonned construction pennit. ln any event, mitigation should be required promptly, regardless of progress by Applicant as to his application. D. Concern Only for "Good" Trees is Inappropriate for a Woodland Site Typically Made Up of "Fair" Trees. As reflected in the Monarch Reports, the condition ratings for trees run from exceptional, to good, to fair, to poor, to unstable. {Sec Monarch Reports p. 4.) According to those reports, most of the trees on the site are in fair condition. (According to the July 2010 Report, there are no exceptional and only 3 good trees.) Additionally, many of the trees that have already been removed from the Property and which are now requested by Applicant to be removed are, or in the 20 l 0 Report were, rated fair. There may be a sense that trees in fair condition are not worthy of protection, and, if so, this is wrong based on Applicant's arborist's observation regarding woodland sites. 3 4. Applicant's and his arborist's admission that tree Joss is anticipated . While the Monarch Reports fail to include a loss list or otherwise address the possibility that, despite not being immediately removed , some trees will not survive the construction, Applicant has admitted otherwise. At a July 16 meeting, Applicant conveyed his arborist's comments that he could have justifiably called for removal of Trees 62, 63, and 65 because of their condition , whereas l 0 additional rather than 7 additional trees would be removed, but he retained them to reduce the number of trees being removed . As reportedly stated by the arborist to Applicant, "[h)opcfully, all three will live; maybe we can save one of them." (Applicant's arborist confirmed this, referring in a July 18 telephone conversation to the option of just petitioning for removal of the trees and not bothering with them.) Applicant characterized the approach as giving the trees a "fighting chance." In theory, a fighting chance might be better than no chance at all, but, first, the Monarch Reports (like the 2010 Report for the Town) should have been forthcoming on the risks, and , second, there is no indication within those reports or by any comments by Applicant or his arborist that the recommended tree protection measures will protect the retained trees needing protection . 5. Anticipation of retained tree loss further evinced from the July 2016 Report. As indicated by the 20 I 0 Report, the typical categories of disposition are "Remove'' or "Retain.'' (See 2010 Report Tree Inventory.) The May 2016 Report used these two categories but also created a third category labeled "Retain/Protect" to which, as noted above, certain trees previously slated for removal were transferred. (May 2016 Report, Tree Inventory.) The clear implication was that the trees in that category would in fact be protected. Only a close look at the July 2016 Report reveals the attempt to back off from any such promise . While that report continues to recommend and describe various kinds of tree protection , the Tree Inventory no longer employs a "Retain/Protect" category. Now, all affected trees are placed simply in the category of "Retain ." No reason is stated for this rather material change, but the etlect is clear-to promise only not to cut the trees down in the first place and to employ tree protection measures that may or may not be adequate, which measures , as discussed below, are not in fact adequate. 6. Tree protection measures to accommodate constructi on, not safeguard trees. The tree protection measures recommended in the Reports, most recently the July 2016 Report, are not measures that will protect the tree but only measures that will provide the best protection possible given the construction . As explained by Applicant's arborisl, this tree protection plan was not made in the ideal world prior to construction plans but where the construction had already been decided upon with the question presented of what trees to remove , retain, and try to protect give that construction plan. In other words, some if not all trees will receive inadequate tree protection, not because they can withstand the assault of construction or s because they are not worth saving, but solely because the construction as planned does not permit adequate protection . 7. In adeq ua te tree pro tection planned. As clear from the reports a nd ac knowledged by Applicant 's arborist , the level s of tre e protection described in the Monarch Reports (from protective fencing around th e dripline, to protective fencing the distance of at least 5 times the tree diameter away from the tree, to protective fencing the distance of at least 3 times the tree diameter away from the tree, to plywood and mulch protection, to only wattle around the tree trunk) are in descending levels of protection, with the first level constituting the most protective and the others of decreasing protection. As noted above, the level of protection recommended for each tree was not based on an "ideal" world or a consideration of the site prior to construction plans. Rather ) it was based on the highest level of protection poss ible given the structure already decided upon , the "best given the construction." All the trees now slated for actual removal are within the new footprint of the house with one exception for a tree considered particularly diseased. This means even trees close to the structure are to he "retained." The Monarch Reports calls for lower levels of prot ection, even down to just wattle, for the retained trees to be protected. F. T he Proposed Tree P rotection Pl an Does Not Comply With t he Town Code. The proposed tree protection plan does not comply with the Town Code in at )east two respects. It fails to provide fonce protection as required for all affected trees . It seeks exemption from required dripline fencing based on a fundamentally flawed TPZ (tree protection zone) approach. The Monarch Reports expressly cite Section 29.10 .1005 of th e Town Code. (See Monarch Reports p. 28 -29 [Appendix D].} Applicant's arborist has confirmed his understanding that the require ments in Section 29.10 .1005 arc mandatory. Section 29.10.1005 expressly requires fencing for tree protection. (See "Tree Protection Zones and Fence Specifications" ~,1 and 2 and 0 All persons shall comply with the following precautions" ,,1 and 2 .) T he only variable is the type of fence (chain link or orange plastic fencing) or the size of area to be fenced . (See "Tree Protection Zones and Fence Specifications" ~2 .} Applicant's tree protection plan violates this requirement It does not provide for fencing for all affected trees ; it requires fencing only where , accepting the proposed construction as a given, the fencing would not be possible or practical. Thus, as to at least 20 trees affected by the construction, it recommends only straw wattle around the trunks because, given the location or proximity of the trees to the structure and /or to the surrounding work areas , fen c ing to exclude construction activity would be "'impractical." (July 2016 Report p. 11.) Section 29 .10.1005 does not contain any exception to the fencing requirement to accommodate construction (and particularly 6 not entirely new construction with no pre-existing structures}, and the plan for these trees violates that section . The proposed plan further violates Section 29 .10.1 OOS 's requirements governing the size of the area to be fenced . It requires a tree protection enclosure protecting the ''entire dripline area or at the tree protection zone (TPZ), when specified by a certified or consulting arborist." (Monarch Reports p. 28.) Implicit in this requirement is that any certification of a TPZ smaller than the dripline zone must be accurate . Here, the certification is fi.Jndamentally flawed. The Monarch Reports incorrectly assume that, since construction will occur on only one side of many of the trees including Tree 30, those trees do not need to be protected at the dripline but only on the construction side and only within the critical root zone (''CPZ") defined as a multiple of the diameter of the tree. (See May 2010 Report p. 8 [stating that, "because most of the trees will only be influenced on one side the CRZ [the critical root zone] will in effect be the TPZ [the tree protection zone] for this project and particularly . , for vaJley oak #30 ''J.t However, as Applicant 's orborist has confirmed, this rule is intended for the normal situation where root growth is relatively equal on all sides so that the side without construction can maintain the tree if the side with construction is protected only to the CPZ . With specific reference to Tree 30, he has further confirmed that the tree does not fit this normal situation. The creek is on the non-construction side of the tree, and the tree is very near the creek . According to Applicant's arborist, its roots "obviously" could not exte nd past the creek bank . In other words, most of Tree 30's roots may well be on the construction side, and there is not the normal basis for assumption that one-half of the root system will be undisturbed. This same concern applies to any other tree whose root growth is slo pped at creek bank on the non-construction side , and, as to all those trees , the TPZ approach is flawed . G. The Plans Should Be Changed to Truly Protect Important Trees, Including Tree 30. As discussed elsewhere , Applicant's proposed construction is unsuitable for the site for numerous reasons including the nature of the site, the creek setback, the LRDA requirements, the Hillside Development Guidelines, the effect of the construction on the environment including the trees, and the potential concerns that could and should be raised via a timely CEQA relating to the current plans and current environmental conditions. Whereas Applicant's tree plan seeks to accommodale his construction, his ---------·--.... ~ It is worth noting that the July 20 I 0 identifies completely different lrees to be governed by this CPZ approach . (See July 20 I 0 Report p. 8 [no longer mentioning Tree 30 as a tree affected only on one side by construction and instead referring to Trees 27, 22, 23, 38. 40 , 54 , 62, 63, and 65].) 7 construction should instead accommodate the needs of the site and applicable tree preservation and other requirements. A notable example is Tree 30. There really is not any question that Tree 30 is worth preserving. It is a large, majestic, double-trunked , healthy, valley oak3 soaring several stories. Jt is located at an interior corner of the north side of the Property, only inches from the property line between the Property and 78 Alpine. lt provides an important, probably the most important single item of screening between 78 Alpine und the Applicant's planned construction.4 It has important ecological and aesthetic value. It is visible from Highland Avenue as well as from at least t~rce homes on Alpine Avenue. It provid~s significant screening between the Property and 7 8 Alpine. The 2010 Report expressly states that Tree 30. like others in its category, is worthy of protection. (See 2010 Report p. 3.) Based on the 2010 Report, it has the greatest canopy spread of any tree on the Property listed in the Report (80 feet). (See 20 I 0 Report, Tree Inventory Table, p. 3.) According to Applicant's arborist, Tree 30 is 50 to 100 years old (and still in its youth with vaJley oaks typically having annual shoot elongation growth spurts of approximately 24 inches per year when young, i.e., during their first 300 years). For at least the past 28 years and likely for the 40-plus years of ownership by the prior owner of 78 Alpine, it has been the rough marker of the corner property line between 78 Alpine and the subject Property. According to the 20 l 0 Report, the diameters of the two trunks (or stems) of the tree were 20 and 16 inches in 20 l 0. (See 2010 Report. Tree Inventory Report p. 3.) On July 15, 2016, a lay measurement showed significant growth since 20 l 0. with the circumferences measured at 73 and 53 inches , with corresponding currenl diameter sizes of 23 .249 and 16.87 inches. The tree is located 15 feet away from the proposed construction under Applicant 's original plans and 20 feet away from the proposed construction under Applicant's revised plans. (See May 2016 Report p. 2 and July 11, 20 16 letter from Applicant to Town.) ) As stated at in a report associated with San Francisco State University : Valley Oak (Quercus lohata) is the monnrch of California oaks by virtue of its siz.e. age Wld beauty (Pavlic et al. 1991 ). This magnificent tree is endemic to California and quite possibly is the largest North American oak, declaring it very unique. Descriptions of its remarkable stature appcur in the diaries of many early visitors to California (Pavlic et al. 1991 ). (http ://online.sfsu.edu/bholzman/courses/Fall02%20projects/valley oak.html.) ~The Applicant's architect has claimed thnt 78 Alpine will re tain "a filtered view through very dense tree cover." (Studio Three Design Report p. 2.) This is untrue. Even with Tree 30, the proposed structure will be extremely visible due to the over-sizing of the structure and the prior tree removal. Without Tree 30, there will be no screening as to most of the structure, including the portion that, regardless of technicalities, looks like a three -plus-story complex. 8 Applicant's original tree plan called for the removal of Tree 30 . Prior to the March 29 , 2016 hearing before the Development Review Committee, Applicant purported to put red ties on all trees slated for removal under his plans, but, in fact , did not put a red tie on Tree 30 even though his plans called for its removal. Only when J reviewed the tree plan did I discover that, contrary to his placement of the red ties, Applicant intended to remove this tree. App licant then agreed to retai n the tree, and the Monarch Reports set forth tree protection measures , but it is a near certainty that the measures will not save the tree from the impact of construction. The following facts, derived from the arborist reports and communications with Applicant and his arborist , are dispositive . Adequate protection is in fact completely possible, including with change in the size and location of the structure a change consistent with other important goals in c luding proper setbacks from the creek, compliance with HiJlside Development Guidelines , and reduction in the size and mass of the house . But, under the current construction plans, Tree 30 is unlikely to survive . I. The 2010 Report expressly stated that construction would result in the loss of the tree. The 20 I 0 Report expressly concludes the tree would be so severely impacted by the construction that it should be removed or considered a loss (p . 4 ["will be subjected to such severe impacts that [its] loss is anticipated"].) It further concludes that the intens ity of the impact of construction on Tree 30 would be I ( 1 being the "highest" impact and 5 being the lowest) (p. 3 o f Tree Inventory Table).5 2. The proposed tree protection is in adequate. As noted above . the Monarch Reports describe five levels of tree protection descending in quality from level to level. The May 2016 Report, relating to Applicant's original plans with the structure 15 feet away from Tree 30, concluded that such close proximity to t he structure and the rela ted construction work made fencing Tree 30 impractical. (See May 2016 Report p. 9 ["Valley oak #30 is approximately 15 feet from the proposed struclure and to building the structure placing fence around this tree is not practical"].) It therefore called for wattle and plywood/mulch, the two lowest levels of protection (as well as one not condoned by the Town Code). Now, with the revised plans and only 5 more feet reportedly added between the tree and the structure, the July 2016 Report claims that the tree can now be tenced in. (July ~The May 2016 Report comes lo a different conclusion regarding the impact level for Tree 30, asserting that it is only moderate. [See May 2016 Report , p. 15 .] It does not provide any explanation for the difference. whether based on change or circumstance or disagreement with the town arborisl , and it provides another example of why a new town report is needed to provide independent review of Applicant 's reports. 9 2016 Report p. 11.) Based on the following, the tree protection plan for Tree 30 is clearly substandard und violative of Town requirements . a . Flawed b asis for CPZ approa ch. As noted above, the resort to a CPZ fence formula rather than a dripline measurement , including as to Tree 30 , is fundamentally flawed and in violation of Town Code. Specifically, as to Tree 30, given the location of the creek bank beyond which the tree roots cannot extend , there is no justification for assuming that the roots on that non- construction side will be sufficiently strong or extensive enough to make up for impact on the construction side and allow for a CPZ fence approach. b. No construction information in July 2016 Report. The July 2016 Report fails to provide any information regarding the nature or location of the construction activity anticipated to take place near the tree and in particular in the area between the tree and the proposed structure. This is in contrast to the 2010 Report which specifically addressed the construction activity that would take place near to and affecting (and anticipated to result in the loss oO the tree (20JO Repo.rt pp. 4-5). It is even in contrast to the May 2016 Report prepared by Monarch that observed that "[t]renching for the foundation structure near tree #30 will be at the CRZ distance of five times the trunk diameter'' (May 2016 Report p. 8). Such infonnation is critical in assessing the adequacy of the tree protection measures (and , as demonstrated by the 2010 Report, in determining whether, despite protection, the tree should be considered a loss). c . Need for fence protection at least 15 feet from the tree. Even overlooking the fundamental tlaw in the CPZ approach as to this tree, and applying the approach as instructed in the Monarch Reports, the tree protection zone should extend at least 15, and probably over 16. feet from the tree. While the minimum zone is three times the tree diameter, the preferred zone is five times the tree diameter. (See Monarch Reports p. 8, emphasis added (the critical root zone is defined as "the distance of three times the diameter of the tree at breast height ( .. DBH") in feet , and preferably five times"].) The Monarch Reports do not explain how a double-trunked tree's diameter is measured, but Applicant's arborist has confirmed that an acceptable approach is to count the diameters of both trunks , and this also seems reasonable given the additional mass and size and span of the tree afforded by the two trunks. As noted above, the diameter infonnation in the Monarch Reports is outdated, but , even using the infonnation as to Tree 30 (20 and 16 inches), the tree protection zone should be 15 feet. Based on the current lay measurements (23.249 and 16.87), the zone should be over 16 feet ( 16. 7 I 7 feet). d . Applicant cannot credibly contend that his plans will afford Tree 30 the required tree protection. Notably, the July 2016 Report does not state the 10 size of the fenced area nor even the precise formula to be used to detem1inc the size (whether by a multiplier of 5 or 3 or some olher way). Applicant's arborisl has explained that the tree will be fe nced in along with other trees near the creek side . After discussion of the current planned distance of the tree from the structure (20 feet), he indicated that a fence could be installed 15 feel away from the tree and/or a fence could be installed and a remaining area protected by plywood and mulch . As noted above , plywood and mulch does not meet town requirements . As for a 15-foot placement of the fence , this is not credible . As noted above, the May 2016 Report concluded that no fence at all was possible when the structure was proposed at 15 feet away from the fonce. It makes no sense that the subsequent addition of 5 more feet between the structure and the tree somehow allows not only for a fence at all around the tree but for a fence 15 feet away from the tree. Further, as noted above, the May 2016 Report observed that, when the structure was planned for 15 feet away, trenching for the foundation structure would be at the CRZ distance of five times the trunk diameter as lo Tree 30. Thus, while the July 2016 Report is silent on trenching, the 5-foot relocation of the structure would mean only a S~foot change in trenching location . The tree protection zone is not measured from the structure~ it is intended lo protect the tree from construction activity; and , as set forth in the Town Code, all persons must "fp]rohibit all construction activities within the TPZ. including but not limited to : excavation." The proximity of the trenching, even under the revised plans; the lack of other information relating to necessary construction activities; the lack of specificity for fencing in the July 2016 Report; and the suggestion of the use of plywood and mulch in lieu or in addition to fencing all indicate the Jack of any assurance of the nature of the tree protection planned for Tree 30 , that the protection will meet Town Code, or that it will truly protect the tree. II Lisa Roberts From: Sent: Robert Schultz <RSchultz@losgatosca .gov> Monday, October 10, 2016 1:35 PM To: Lisa Roberts Subject: RE : 19 Highland Hello Lisa, I have followed up with the Planning Commissioners regarding the gift limitations under the FPCC and also the perceived conflicts, bias and due process issues that we have discussed. I have been informed that only 5 of the 7 Commissioners received the book. The two Commissioners that were not at the meeting did not receive a book. As for the other 5 Commissioners, 3 have decided to return the book and 1 has decided to purchase the book. I have not heard from the 5th Commissioner yet. In addition, I will be counseling Ms. Weirsema regarding gifts to Commissioners. I hope this adequately resolves this issue for you. Robert Schultz• Town Attorney Town Attorney Office • 110 E. Main Street, Los Gatos CA 95030 Ph : 408 .354-6818 www losgatosca .go'! • bttps-j/www.fa ceboqk.com/losgatosca ------------------------------------------------------------------------------------------------------------------------------------------ The information contained in this e-mail may be information protected by attorney-client and/or the attorney/work product privileges. It is intended only for the use of the individual(s) named in this e-mail and the privileges are not waived by virtue of this having been sent by e-mail. If the person actually receiving this e-mail or any other reader of the e-mail is not a named recipient or the employee or agent responsible to deliver it to a named recipient, any use, dissemination, distribution or copying of the communication is strictly prohibited. If you have received this communication in error, please immediately notify us at the above e-mail address. ===================================================================== From: Robert Schultz Sent: Thursday, October 06, 2016 10:59 AM To: Lisa Roberts Subject: Re: 19 Highland I do not take offense to your inquiry. Sent from my iPad 1 On Oct 6, 2016, at 10:19 AM, Lisa Roberts <lroberts@rehonroberts.com > wrote : Hi Rob, I hope you are not taking offense at my inquiry. If so, I apologize. I am not at all concerned about the compliance with the FPPC, and I have no doubt that the Commission has been well-advised on it and is in compliance with it. My inquiry does not relate to the FPPC. This is not just an issue of generalized disclosure required by elected officials, but disclosure required in contested proceedings like this appeal. This appeal is a quasi - judicial proceeding, with the Commission presiding as the deciding body over a dispute between the applicant and the appellants. In that context, the giving of gifts in any amount and any ex parte contact takes on a whole different significance. It has nothing to do with the FPPC but with due process and avoiding even the appearance of impropriety. This was recognized at the very first hearing in this appeal, on June 8, when the Commissioners who had visited the subject property were very careful to disclose whether or not they had had any contact with any of the parties, in particular the applicant, while at the property. I believe that what Ms. Weirsema did was improper and clearly intended to influence the Commission in connection with the appeal. I have full confidence in the integrity of the Commissioners and have no reason to believe that any Commissioner has actually been swayed . The process , however, is very troubling, not only in connection with this matter but generally as to all contested proceedings before the Commission . A party advocate's giving of gifts to a deciding body would be improper at any time during the pendency of a contested proceeding involving that advocate, but the context of these gifts was particu larly disturbing. These were not gifts tied to a traditional gift occa sion distinct from the contested matter, such as year-end or holiday gifts. As you have advised, Ms. Weirsema placed the gifts on the chairs on each Commissioner for him or her to receive at the very hearing on the contested matter at which she then appeared to advocate on behalf of the applicant. Ms. Wei rsema did not disclose the gifts to appellants. She did not even mention them to Dr. Badame who appeared for the appellants at the hearing. Nor, other than a reference to a "desk book" and a thank you to an unidentified member of the audience, were the gifts otherwise disclosed . I just happened to watch the video of the hearing and wondered what a "desk book" was . It seems likely that, i n leaving over $200.00 in gifts on the Comm iss ioners' chairs, Ms. Weirsema included some kind of note with or inside the books indicating the reason for and source of the gifts. Just like any other ex parte communication, any such note, I think, should be disclosed, and I would appreciate your doing so or advising that there were no written communications with or relating to the gifts. In short, I believe that these gifts were improper; the content of any accompanying notes should be disclosed to the appellants; and the applicant and his team, including Ms . Weirsema, should be admonished that this conduct was improper and that any such conduct in the future will not be countenanced . Thank you for considering my thoughts on this . Lisa 2 From: Robert Schultz [maifto:RSchultz@losgatosca.gov ] Sent: Wednesday, October 05, 2016 3:07 PM To : Lisa Roberts Subject: RE: 19 Highland Each Commissioner received a copy of one book. It is 321 pages and retails for $32 .00. Yes, the Commissioners knew that the book came from Ms. Wiersema. It could be because they saw her place the book on the dai s or because there was a note or card inside I will be reminding the Commissioners of the FPPC regulations related to gifts, but I w i ll not be asking whether there was a card or note inside nor asking for a copy of it. From: Lisa Roberts [ID~ilto:lrQ.Perts@rehonroberts.com ] Sent: Wednesday, October 5, 2016 2:56 PM To: Robert Schultz Subject: RE : 19 Highland It was not one book but books for each commissioner? Would you please find out whether there were cards or notes. It seems there must have been for the commissioners to k now where the books came from. I would like to see copies. From: Robert Schultz [majlto:RSj:b.YJ!b@losgatosca.gov ] Sent: Wednesday, October 05 , 2016 2:49 PM T o : Lisa Roberts Subject: RE : 19 Highland Yes it is a book authored by 2 architects about architectural forms and construction. My understanding is that M s. Wierse ma left the books at each Commissioners seat before the meeting. I do not know if there wa s a card or note in each book . I am aware of one Commissioner who returned the book. Yes it would be co nsi dered a gift. Since the value of the book is under $50, it does not have to be reported on their 700 form. From : Li sa Roberts [mailto :Jrobert$<.rurehonr9berts.com ] Sent: Wednesday, October 5, 2016 2:36 PM To: Robert Schultz Subject: RE: 19 Highland A book? Was this a grft then? How did Ms. Wiersema provide it, in person or was there a card or letter? From : Robert Schultz [mailto :RSchultz@losgatosca .gov] Sent: Wednesday, October 05, 2016 2:20 PM To: Lisa Roberts Subject: RE : 19 Highland Hi Lisa, The Commissioners received a book titled "Chambers For A Memory Palace " authored by Donlyn Lyndon and Charles W. Moore from Bess Wiersema. 3 Rob Schul t 7 Town Attorney ( 408 )354-6818 From: Lisa Roberts Lr:nai lto:lroberts@rehonroberts.com ] Sent: Wednesday, October 5, 2016 1 :38 PM To: Robert Schultz Subject: 19 Highland Rob : I watched the video of the September 28 hearing and it was stated that a "de sk book" was received . What is a desk book and who submitted it? Thanks, Lisa ----------Li'ia C. Robert') R[HON & ROBt.Rrs . APC 830 The Alameda , San Jose , CA 95126 408-494-0900 Main 1408-387-5233Dir1408-494-0909 Fax lrobetts@rehonroberts com I YfWW re!!Qnrobert.s CQ!D 4