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
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=====================================================================
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.
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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
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408-494-0900 Main 1408-387-5233Dir1408-494-0909 Fax
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