Attachment 8LOS GATOS PLANNING COMMISSION 6/8/2016
Item #4, 19 Highland Avenue
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A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
D. Michael Kane, Vice Chair
Kendra Burch
Melanie Hanssen
Matthew Hudes
Tom O’Donnell
Town Manager: Laurel Prevetti
Interim Community Development
Director:
Joel Paulson
Town Attorney: Robert Schultz
Transcribed by: Vicki L. Blandin
(510) 337-1558
ATTACHMENT 8
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P R O C E E D I N G S:
CHAIR BADAME: I will be recusing myself from
Item 4, due to a perceived conflict of interest with one of
the four Appellants. I will also be recusing myself from
Item 5, due to the project site being located within 500’
of my residence. Vice Chair Kane will be preceding over the
duration of the public meeting, so good night to all, I’m
going to go watch the Warriors, and thank you for your
participation this evening.
VICE CHAIR KANE: I’m recusing myself for reasons
to go watch the Warriors.
We’re looking at Item 4 on tonight’s agenda, 19
Highland Avenue, Architecture and Site Application S-15-
077. This is to consider an appeal of a decision by the
DRC, Development Review Committee, who approved the
Architecture and Site application. So someone is appealing
that approval to construct a new single-family residence
and remove large protected trees on property zoned HR-2½.
This is APN 529-37-033.
May I have a show of hands of Commissioners who
have visited the site? Are there any disclosures?
Ms. Moseley, I understand you will be presenting
the Staff Report this evening.
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MARNI MOSELEY: I am. Good evening,
Commissioners.
The proposed application is to construct a new
single-family residence with an attached garage on property
zoned HR-2½. The project site has had several proposals for
development over the last two decades; the Planning
Commission approved the last one in 2010. The diagram
provided in Attachment 6 of Exhibit 15 shows the footprint
of the 2010 project in contrast with the current proposal.
Staff considered the new application based on
current Standards and Guidelines and the current
neighborhood context. Staff used the decision of the
Planning Commission in 2010 approving the location of the
residence on the site, and its encroachment outside the
LRDA, in determining if that exception may be appropriate
with the new application.
The Applicant was able to remove the two
additional exceptions to the Town’s Hillside Standards and
Guidelines, which included exceptions to grading and
retaining wall height that were necessary in the 2010
proposal.
It is Staff’s determination, with the assistance
of the Town’s environmental consultant, that the proposed
project is substantially consistent with the 2010 project
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and adopted Mitigated Negative Declaration. The project
proposed and approved with the Initial Study had a setback
of 15’ from the closest point of the residence to the
creek. The current proposal provides a minimum setback of
16’ at the closest point of the residence to the creek.
The Initial Study and proposed plans were routed
to advisory agencies consistent with CEQA requirements. No
comments were received. Pursuant to all three biological
consultant reports, the scope of the proposed project would
not require permits from either the Department of Fish and
Wildlife or the Regional Water Quality Control Board.
Staff determined that the proposed project was in
compliance with the required Standards and Guidelines and
scheduled the application for consideration by the
Development Review Committee.
Staff was contacted by several neighbors during
the week prior to the DRC hearing, and met with each of
them to discuss the proposed project. Staff provided
feedback to the neighbors in regard to questions and
Standards and Guidelines. The neighbors’ correspondence and
Staff’s responses are provided within your Staff Report.
The DRC approved the application and the group of
neighbors appealed the application.
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Subsequent to the DRC hearing the Applicant has
obtained a new arborist report, a new landscape plan, and
additional biological peer review through the Town in order
to try to address the concerns raised by the neighbors at
the DRC and within the appeal document. Those reports are
included in your Staff Report materials.
The Appellant’s team of professionals is
available to answer any questions that you may have this
evening. In addition, the Town’s consultant with Live Oak
Associates is available to answer any questions as well.
Staff’s analysis is provided at length within
your Staff Report, and Staff recommends that the Commission
uphold the decision of the DRC and deny the appeal.
This concludes Staff’s report. We are here if you
have any questions.
VICE CHAIR KANE: Thank you. Any questions for
Staff? Commissioner Hanssen.
COMMISSIONER HANSSEN: I think this is a question
for the Town Attorney, or perhaps Staff can just answer the
question of CEQA and the length of time that a certified…
This was Mitigated Negative Declaration, but we’re using
the one from 2010, right? So there was a statement that it
doesn’t expire. Is that legally correct? Let’s suppose that
there was another ten years before something got built. You
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could still use the declaration from 2010 even ten years
from now?
MARNI MOSELEY: What Staff does is we go back to
the analysis that was provided within that document. We
compare it to the standards that are in place today and
whether that analysis would change if we were to redo it
based on current standards. All those standards are still
in place as were in place in 2010, so that analysis would
not have changed. Depending on the circumstance, the
analysis may be stale and would technically require new
circulation and new review, but in this case it was
determined that it was not.
COMMISSIONER HANSSEN: Then two other process
questions. About the permitting issue, what is required to
be set to these permitting agencies for them to do their
review and decide whether or not a permit is required? What
kind of document? Do they have a standardized format for
submitting things? How does that work?
MARNI MOSELEY: Generally with the Department of
Fish and Wildlife it is alteration within the creek bed or
within the top of bank, and it’s a similar requirement with
the Regional Water Quality Control Board, but there are
professionals here this evening who could answer that
question in more detail.
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COMMISSIONER HANSSEN: Then my last question is
about the tree report. I saw that the Applicant had brought
in their own tree person recently, but most of the Staff
Report was relying on the tree report that was done by
Deborah Ellis from 2010. I know we’ve had this question
come up before, but it seemed like some changes had
happened in the property with trees, and so one question I
had was is the Appellant’s assertion that 16 trees were
already removed from 2010 until now true? And then why we
didn’t bring in our own arborist again?
MARNI MOSELEY: The Applicant was proposing to
comply with the requirements of David Babby’s report. David
Babby is a consultant that is technically still a
consultant to the Town through the end of this month, but
the Town does not regularly use him. We did review the
proposed project in conformance with the arborist report
that was provided previously. The Applicant, I think in
2014—I looked at the date this evening—removed seven trees
that were proposed to be removed with the previous project,
and those are no longer on the site.
COMMISSIONER HANSSEN: And did that happen before
the Applicant bought the property?
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MARNI MOSELEY: Yes, that was the previous
property owner, or actually I think it was the heirs to the
estate.
COMMISSIONER HANSSEN: Okay, thank you.
VICE CHAIR KANE: Other questions? Commissioner
Hudes.
COMMISSIONER HUDES: I have some questions about
setback and setback from the stream. One of the reports,
the Wood report dated January 28, 2008, which doesn’t have
an exhibit number on it, on page 7 of that report it states
that, “Based on the condition and local context of the
creek channel and riparian habitat at the Highland Avenue
property, the establishment of a 25’ wide setback between
the top of the bank and any permanent structures is
consistent with the Guidelines and Standards.” Then it goes
on to talk about a 10’ wide setback from top of bank to
paved surfaces. Why are we not considering the opinion in
that Wood report of 2008?
MARNI MOSELEY: As I understand it, Mike Wood is
not a consultant of the Town, he is a consultant of Geier &
Geier, who was our previous environmental consultant that
did the Initial Study, so that report was provided to Geier
& Geier, not to the Town. There were subsequent memos and
correspondence between Mike Wood and Geier & Geier between
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2008 and 2010 where that conclusion was slightly changed
and is reflected in the Initial Study documentation,
however, the proposed project that they were referring to
only provided a 15’ setback.
COMMISSIONER HUDES: But have we been provided
the documentation of that exchange, the reassessment that
it should be 15’?
MARNI MOSELEY: I do have a memo that is from
some correspondence back and forth between the consultant
that technically is not part of the record that we refer
to, because it wasn’t submitted to the Town. But again, as
part of this application process we had the Applicant do a
current analysis of that site and the riparian in the
proposed project, and the appropriate setbacks for that
site given the current conditions, and that has been
analyzed by Live Oak as well.
COMMISSIONER HUDES: So there’s a new report that
supersedes this that the Town is representing that a 15’
setback is adequate?
MARNI MOSELEY: Correct.
COMMISSIONER HUDES: I had a couple other
questions about setback, particularly from the stream; I’m
very, very concerned about it. I went out to the property,
I measured it; I actually brought a tape measure out there.
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Has Staff verified that top of bank to the story poles, and
the story poles to where the house is located?
MARNI MOSELEY: The top of bank was established
and demarcated by H.T. Harvey, their professional team,
based on standards, and then the Applicant’s civil engineer
was involved in staking the story poles and providing
documentation as far as that setback, and so as part of the
Applicant’s time you can refer some of that clarification
to them, too.
COMMISSIONER HUDES: But did Staff actually
verify the placement of the story poles?
MARNI MOSELEY: Staff does not do that.
COMMISSIONER HUDES: I understand, okay. Then one
last question. In some of the letters there is reference to
an average setback. In the opinion of Staff, what is the
relevance of average setback? My understanding of the
setback is that you look at minimum setback. Where does
average setback come in?
MARNI MOSELEY: Just like our Hillside
Development Standards and Guidelines, the Standards and
Guidelines for Land Use Near Streams, again, they’re
guidelines, and so we do use biological reports to look at
the conditions within a site and how those standards would
apply, and how a proposed project that may deviate from
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those would still be consistent with the rest of the
document.
What the average was looking for was that while
in this one location it is less than the 20’, which is a
recommended setback, given the discussion between
intermittent versus ephemeral, and so that’s where Live Oak
was looking at it and asked H.T. Harvey to provide that
average information.
COMMISSIONER HUDES: But just to be clear, is
anywhere in our written Guidelines and Standards a
reference to average setback, that average setbacks should
be a consideration?
MARNI MOSELEY: No.
COMMISSIONER HUDES: Thank you.
VICE CHAIR KANE: Let me try to summarize that
whole discussion for myself. Because I was looking for the
map, the architectural drawing that we were given, for
example, like that one—I’m not going to go down there-but
where the driveway first comes off the street, it hooks and
the creek hooks in, and I drew a line, because I was trying
to figure out where the… I thought I saw a 2’ at one point,
but the 10’ from whatever. There was a comment that steps
came too close to the creek, and there’s another part where
the creek came close to the…whatever.
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I’m asking you, given that we have 6” of
information and at least four seemingly different reports
of this matter of the riparian corridor, at any point in
this project is the riparian corridor violated, or the
Hillside Guidelines violated, or is the house far enough
away from the creek?
MARNI MOSELEY: Based on the reports provided by
H.T. Harvey and Live Oak Associates, Staff’s determination
is that it is consistent with those documents.
VICE CHAIR KANE: And there were at least four of
them, two earlier, two in the middle, and one recently?
MARNI MOSELEY: Correct.
VICE CHAIR KANE: Thank you. Commissioner
Hanssen.
COMMISSIONER HANSSEN: I wanted to add on another
question about the stream. What was troubling me is that
the Applicant hired their own environmental consultant who
did another biological, and that just came in very
recently, and the substance of that report was about
whether it was an intermittent stream or an ephemeral
stream. All the previous reports said ephemeral, and it
goes back to the guidelines that supposedly the Town has
adopted where if it was an intermittent then the required
minimum setback would be 25’. So that was troubling me, and
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since that came in relatively recently, what is Staff’s
view on that? Because it’s in direct contrast to all the
previous reports, and they’re all certified biologists, so
how should we look at that?
MARNI MOSELEY: Let me find the chart, because
from what I looked at earlier, it is their recommended
setbacks.
COMMISSIONER HANSSEN: It says in their letter
the required setback is called the slope stability
protection area, and then there’s a chart in there, size of
protection area, stream with little or no hardening through
ephemeral stream, and it goes from 25’ to 20’, down to 10’
to 15’ if it’s an ephemeral stream. They were arguing that
it was intermittent, so it needed to be 25’.
MARNI MOSELEY: I’m familiar with the letter that
they submitted. From my recollection of the chart, if I can
ever find it… You may have a shortened version of this
document in your…
COMMISSIONER HANSSEN: And this was just
submitted on June 1st, a week ago, correct?
MARNI MOSELEY: Yes.
JOEL PAULSON: We’ll look for that chart, and we
can continue on with the hearing and then we can get back
to you with that answer.
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VICE CHAIR KANE: Do we have other questions for
Staff? Commissioner Hudes.
COMMISSIONER HUDES: Does Staff agree with the
definition of intermittent and ephemeral, and what is
Staff’s opinion about whether that stream is intermittent
or ephemeral?
MARNI MOSELEY: Staff isn’t qualified to deviate
from the information that is provided in the reports by the
qualified professionals. If you’d like to discuss that, our
recommendation would be to refer those questions to the
qualified professionals that are in attendance tonight.
COMMISSIONER HUDES: Okay, thank you.
VICE CHAIR KANE: Who would that be?
MARNI MOSELEY: We have Ginger Bolen from H.T.
Harvey, and there may be somebody else from H.T. Harvey
here as well, and then Pam from Live Oak. Then the
Appellants I believe have theirs present as well this
evening, but they could answer that.
VICE CHAIR KANE: Which person or persons would
be most qualified to answer the question for Commissioner
Hudes on ephemeral versus intermittent?
MARNI MOSELEY: Any of them would be qualified,
and may have different takes on that.
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VICE CHAIR KANE: Thank you. Other questions for
Staff? Seeing none, thank you, Ms. Moseley.
I’m going to give the Appellants ten minutes to
talk to the Commission about their project, and correct me
if I’m wrong, it’s Ms. Smullen, Mr. Sawyer, Ms. Spaulding,
and Ms. Roberts as the Appellant, yes. Did you turn in a
speaker card? No wonder I don’t know you. You can give that
to us later, just promise to do it, and we’ll begin your
presentation. You will have ten minutes to talk to the
Commission, and then we’ll open it up to the public, and
you’ll have five minutes to comment on what ever else you’d
like to comment on.
Town Counsel has advised that after the Appellant
speaks for ten minutes, the Applicant gets to speak for ten
minutes. Then I open it up for the public, then I close it
again, and who has the last five minutes? The Applicant. I
got it. Please begin, and tell us your name and address,
and launch.
ANTHONY BADAME: Good evening, Commissioners, my
name is Anthony Badame and I live at 1 Highland. I’ll
review the project’s constraints analysis, the grading and
retaining walls, the setbacks, the CEQA, driveways,
architecture, and hopefully get to the conclusion.
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There is the prevailing street view. The LRDA is
shown in white. Approximately 50% of the house and
manufactured yard reside outside of the LRDA. The architect
states that it is designed to stay almost entirely within
the LRDA. I don’t see that, and the architect in 2010 did
not see that. There are viable options that exist for
placing the development within the LRDA, and they are shown
in green.
There was an illegal redirection of the creek
path, and restoring the creek path to its original state
will help the developer and enhance his options. And yes,
it can be done, and this is a picture from the Cannon
Design Group, February 2016.
This whole project is predicated on retaining
walls, the whole kit and caboodle; the turnaround, the
driveway, the residence, and the manufactured rear yard.
The whole thing is sitting up on retaining walls like a
castle and a moat. In fact, over 700’ of retaining walls
are necessary to build the house. The house is cut into a
slope of 40% and the rear yard flat pad is artificially
created. These are patent violations of the Hillside
Development Standards and Guidelines. The architect states
though that the placement would strategically minimize to
grade and existing slopes. I don’t see that.
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Are we denuding the hillside? Over 37 mature
trees will be destroyed upon the fruition of this project,
and this excess tree removal will cause a lot of problems,
and another speaker will address this.
All the surrounding homes have front to rear
setbacks perpendicular to the street, except this one.
That’s going to cause problems with the street façade, the
street proximity, privacy, and future developments. This
shows the exacerbation of the street proximity issue. There
is a property line on the other side of the road. There is
a technical side setback, and there is the observed side
setback, bringing the house much closer to the road.
There is also an issue with the creek setback.
All the biology consultants except Pearson’s call the creek
an intermittent stream, and with an intermittent stream
comes a setback of 25’. Pearson’s project has a setback of
2’-12’, and this is shown diagrammatically here. Based on
this slide, that creek setback could be even more, and I’ll
discuss that in more detail, if you’d like.
Dede Smullen will talk about CEQA.
DEDE SMULLEN: Thank you, Vice Chair Kane and
Commissioners. I’m Dede Smullen. I am representing my
mother in law, who lives at 25 Highland, and I’m an
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environmental planner; I’ve been a planner for the Bay Area
for many years.
We have a professional team that has given you
some of your 6” of reading, so we apologize for the length,
but we’re very serious about this project. We’re not going
to go into that, but we do have our environmental
consultants from Gecko Environmental and from Pacific
Biology who can speak to the deficiencies in the CEQA
process, and with the problems with the setbacks to the
creek, and the designation of the creek.
But the Staff had given some information about
referrals to different agencies, and I just wanted to let
you know that the Town of Los Gatos has adopted creek
standards, and that was done with all of the cities in the
county, and those standards have been given to you as the
body that is responsible for implementing them, so you
can’t look to Fish and Game, and you can’t look to Regional
Water Quality, and you can’t look to our Water District to
enforce those. Each city is enforcing those based on the
document that you adopted in 2007, so those are standards
that you need to look at to see. We’re not asking that you
do something that’s more than what’s required; we’re asking
you to do what’s required.
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If you do have other environmental questions,
we’d like you to ask them directly, because of our time
limit.
ANTHONY BADAME: The driveways. There’s a lot of
driveway here, and on 19 Highland there’s not one, but two,
driveways. They’re less than 20’ apart and they define a
wide straight alignment; 175’ of wide straight alignment
times two on this parcel. It’s going to look like a freeway
cutting through the woods.
The Hillside Development Standards and Guidelines
states, “They should not greatly alter the physical and
visible character of the hillside by defining wide straight
alignments,” “…a minimum of 20’ apart,” and “Shared
driveways…are encouraged.”
There are alternatives. A detached garage, an
elevated garage, shared turnaround, share the existing
driveway, shorter driveway to the right of the parcel, a
split property access, shorter driveways to the left and
right of the parcel. There are ideas; there are
alternatives.
The basic tenets of the architecture. It should
blend, be respectful, and compatible. And what do you call
this architectural style? Well, the architect stabs at it
and says it’s best described as contemporary with some
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rustic elements. I don’t see rustic here. Is it modern? Is
it industrial? It doesn’t really have any architectural
clarity.
The home to the left is a historic home
completely made of wood and stone. To the right is another
historic home completely made of wood and brick. To the
front is a new historic home made of wood and brick. To the
rear are the traditional home designs of Johnson Avenue and
Alpine Avenue, and another new home coming up is made up of
wood and stone. In the epicenter of this is a predominantly
stucco home, which is contemporary/modern/industrial, you
call it.
There are maximum height issues here. The
original posted plans are shown in black. When there were
concerns raised about it meeting height limitations, two
weeks later at the DRC meeting the plans in red show up.
Pay close attention to the existing grade running left to
right. How does the existing grade change overnight to meet
height limitations?
The three-story conundrum. This was rehashed at
341 Bella Vista. Hillside Development Standards and
Guidelines state, “Three story elevations at prohibited.”
Elevations is not clearly defined, it’s ambiguous; it could
mean a wall plane, or an orthographic projection. Well, in
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2010 the 2020 General Plan stated, “A maximum of two
stories shall be visible from every elevation.” In this
statement elevation cannot refer to a wall plane, it can
only refer to an orthographic projection. So let’s look at
orthographic projections. To the right you see the east
elevation; I see three stories. The north elevation; I see
three stories. And are there stepped three stories there?
The south elevation; this is the side facing the street;
one could perceive almost four stories.
Now, the architect states that the home is a
split-level setup to accommodate the hillside grade
differences. The grade is shown in blue. That’s about a
foot. Pearson’s development is to the right. Is it
conforming? But the real slope is north to south, and now
you cut in with retaining walls. But how about this, the
Hillside Development Standards and Guidelines example, the
Do This/Don’t Do This? Pay close attention to house on the
right. Textbook perfect for Don’t Do This.
“Avoid two-story wall planes.” The street view is
almost completely composed of a two-story wall plane.
“Architectural detailing shall be provided on all
sides of the building.” I don’t see that.
“Turrets should be avoided.” The front entry is
comprised of a massive, tall turret.
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Pearson’s maxing out at FAR, but FAR is not
guaranteed. This lot is highly constrained, with a creek,
the 40% slope, and numerous mature trees.
“Greater weight shall be given to the height…,”
there’s a questionable existing grade, “…the mass and
scale,” it’s a 5,100 square foot building spanning very
close to the street. The visual impact is that of a three-
story, the house is cut into a 40% slope, with 700’ of
retaining walls, and as far as compatibility, it is one of
the largest homes with an anomalous architecture. And there
is a spreadsheet clearly demonstrating the Pearson project
is at the top of the list, but it has multiple constraints.
“Building shall be designed to minimize the bulk,
mass, and volume,” but this architecture, detail paucity,
setbacks, FAR, and the three-story visual all combine to
maximize the bulk, mass, and volume.
So are we inventing the broken wheel? In 1998
both the Planning Commission and the Town Council denied a
similar project. In 2001 the Planning Commission and Town
Council again denied it. In 2010 a significantly smaller
home was given soft approval by Planning Staff and a
hesitant approval by Planning Commission. This application
expired. In 2016 Pearson Development resurrected the
project and DRC approved the development, which was very
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similar in mass and scale of the denied 1998 and 2001
proposals. What’s up?
The DRC stated, “…exceptions to the LRDA are
required to locate the residence.” Well, a more reasonable
sized home would not require an exception to the LRDA. The
DRC stated that, “…exception was supported by the
Commission in 2010.”
I can finish, if you like. About another minute.
VICE CHAIR KANE: Maybe 30 seconds.
ANTHONY BADAME: The 2010 project was different
and much smaller, and the exception to the LRDA was still
frowned upon.
DRC stated it was, “…appropriate size for the
property.” Well, it is the Appellant’s position that
maximizing FAR with multiple site constraints is not
appropriate. The Appellant’s position is that maximizing
the bulk, mass, and volume extremely close to the street is
not appropriate. And it is the Appellant’s position that
granting a substantial LRDA exception to accommodate the
maximum FAR is not appropriate.
The DRC stated it is, “…consistent with
development on surrounding residential properties.” Well,
this anomalous architecture is incompatible with
surrounding properties as far as the Appellants are
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concerned. “…limited visibility into the site from
surrounding homes.” You take 37 trees and remove them,
visibility will dramatically increase.
VICE CHAIR KANE: Dr. Badame, I’m going to ask
you to go to your last page.
ANTHONY BADAME: Got it.
VICE CHAIR KANE: Give us the bottom line.
ANTHONY BADAME: The bottom line is the
Appellants request that the Planning Commission direct the
Applicant to generate a new Initial Study for public and
agency review; to reduce the driveway impact; to choose
appropriate architecture that is compatible and respectful
of the hillside; to reduce the FAR; reduce the bulk, mass,
and volume; to return the creek and riparian buffer to its
original state; to enforce development within the LRDA…
VICE CHAIR KANE: I’m going to interrupt. We have
it here…
ANTHONY BADAME: You do.
VICE CHAIR KANE: …and we can read it.
ANTHONY BADAME: That’s the last one.
VICE CHAIR KANE: And you did your best to get
that with ten minutes. It says you’re a doctor; it sounded
like you were auctioning off something. Well done, sir.
Questions for the speaker? Commissioner Hanssen.
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COMMISSIONER HANSSEN: The Applicant had stated
in several of their correspondences that they had made
various attempts to meet with the group of Appellants, and
they said in every one of the meetings only one or two
people showed up. Could you comment on that, how that
happened?
ANTHONY BADAME: Sure. Commissioner Hanssen, I
was never invited to a formal meeting, never received a
formal invitation from the Applicant. His statements are
false.
VICE CHAIR KANE: Formal invitation. What about
an informal invitation?
ANTHONY BADAME: The informal invitation, it was
one day. Apparently he was supposed to meet with all four
of us, and that was unbeknownst to me. I didn’t show up,
but Dede Smullen told me that he expected all of us. I
didn’t know that. I texted him and said, “I would like to
see the plans,” and he said, “Come on over any time.” So I
came over anytime, and he wasn’t there. Came over anytime,
and he wasn’t there. There are only so many times you can
come over. That was it. I have the text documentation to
prove that. His statement that he provided to you all is
false. That was not the actual statement.
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VICE CHAIR KANE: Thank you. Other questions?
Commissioner Hudes.
COMMISSIONER HUDES: Is this an appropriate time
to ask questions of the Appellant’s experts? Is that okay?
VICE CHAIR KANE: I would just as soon move
forward. You want to bring up another expert? The answer is
yes.
COMMISSIONER HUDES: Okay. My question is for
whomever can address this. Is this an intermittent or
ephemeral stream, in your opinion, and what are the
implications of that judgment?
JAKE SCHWEITZER: Good evening, Commissioners. My
name is Jake Schweitzer; I’m a professional botanist and
wetland ecologist. I conducted a habitat survey of the site
on June 1st, and my assessment of the habitat onsite is
consistent with that of Mr. Wood conducted in 2010, that
this is an intermittent stream, not ephemeral.
The basic difference has to do with how long
water flows in general. To break it down, whether the water
flows only during or immediately following precipitation
events. When I conducted the survey on June 1st it had been
ten days since there had been any precipitation in the
region according to information at the San Jose Airport,
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and the stream was flowing between 2” and ripples, and up
to 7” to 8” in pools.
Furthermore, the flowing is only part of the
indication that this is a long-term flowing and hydrologic
stream, intermittent. There are wetland plant species
throughout the area in terms of herbs as well as trees;
there are willows just upstream from the site where we
investigated. These types of plant species generally do not
occur unless there is wetland hydrology, which amounts to
essentially very saturated soils a couple of weeks per
year, that’s 5% of the growing season, and so these plants
are not actually dominant, indicating that they’re not
formal wetlands, but they do indicate that this is not an
ephemeral stream, this is an intermittent stream.
VICE CHAIR KANE: Thank you. Other questions for
the speaker?
COMMISSIONER HUDES: Just as background for us,
why do we care? Why is there that distinction in the law
and in the environmental consideration?
JAKE SCHWEITZER: I defer to their CEQA expert on
that, Richard Grassetti.
RICHARD GRASSETTI: Good evening, Commissioners.
Richard Grassetti, Grassetti Environmental Consulting.
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I have reviewed the Standards and Guidelines for
the hillside protection for the streams specifically, and
regulatorily the difference is that there’s a 15’ minimum
setback for ephemeral streams, 20’ for intermittent
streams, except if they’re a lot larger than 10,000 square
feet, such as this one, it’s 25’, and that’s in the
standards that the Town adopted.
There are reasons for this, and I might have Jake
come back up here again, but the reasons for this are both
habitat reasons, and there are water quality reasons.
They’re to assure protection of that creek, the waters of
that creek, the habitat associated with that creek, and the
riparian species associates with that creek.
COMMISSIONER HUDES: So that is to afford animals
the ability to have fresh water, is that correct?
RICHARD GRASSETTI: That’s one issue, but the
other issue is also that the riparian vegetation associated
with the creek, and the wetland vegetation associated with
the wet areas associated with the creek, are also
considered sensitive habitats, so those are then preserved.
Then also just for the water quality itself, that if you
build too close to a creek, it’s more likely to get
contaminated materials or contaminated runoff into the
creek.
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COMMISSIONER HUDES: And we heard earlier that
Staff said that it was a guideline, not a standard. What is
your opinion about that?
RICHARD GRASSETTI: I read it, and all I know is
that the way it’s written, it’s not written as a should do
this, it’s written as these are the setbacks. Now, I have
not looked at your actual adoption motions to see what
exactly they said, but when you read these standards, and
these are the same throughout all of the Santa Clara Valley
watershed collaborative cities, which you are one of, it
just says these are the setbacks.
COMMISSIONER HUDES: Okay, those are questions I
can ask of the attorney later. Thank you.
VICE CHAIR KANE: I have a question, Doctor. In
your report, in your letters, and rebuttals and rebuttals,
I got the feeling there was a case for hyperbole.
For example, the tree issue. I’m reading that
they’re cutting down 50% of the trees and burning the
forest, and later Staff says… You said in your report that
there are 37 trees coming down, 50% of the forest, and yet,
there’s another number that says it’s 12 trees and 18% of
the growth on the subject property.
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I’m concerned that in your passion to accomplish
your appeal some of this got exaggerated, or am I
incorrect? For example, discuss the trees with me.
ANTHONY BADAME: It’s the impression that we had
at the time, and Ms. Lisa Roberts will discuss that. She is
another Appellant.
VICE CHAIR KANE: Do I have your card yet? You
promised. Thank you.
LISA ROBERTS: I am equally concerned about the
discrepancies with respect to the trees, and an easy and
quick answer to that is that I don't know how many trees
are being removed. Because there are discrepancies, I’ve
submitted a letter for the Commissioner to review, and I
would appreciate a careful and full review of that letter.
It touches upon a number of topics, including the tree
issue.
With respect to the tree issue and the specific
question that was asked, of the reports that have been
provided there is tremendous discrepancy between the
Applicant’s reports and the Staff Report with respect to
the treatment of the trees. The arbor report upon which the
approval was based counts 68 existing trees. The Staff
Report that we’ve just received counts 87 existing trees.
The Monarch report, which was provided by the Applicants
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just recently, counts 91 existing trees. That discrepancy
with respect to the number of existing trees also extends
to which trees are going to be removed or retained. We have
not had time to do a complete analysis of the differences
between the reports, but looking at just a few examples.
For example, Tree 8 is noted in the arbor report
be retained. It supposedly has high suitability for the
site, it’s a healthy tree, and it was supposed to be
retained. Yet, the Applicant advised me that he changed the
plans when he was addressing a tree I was concerned about,
Tree 30, and he took that out of the list for removal, but
at the same time two days before the DRC public hearing, he
changed the designation of Tree 8 to removed, and that that
change was made in the plans that were approved by the DRC.
Now, in the Monarch report that tree is back in to be
retained, and for the first time there’s mention that it
also has to be protected.
So there are large discrepancies. I don’t believe
there’s hyperbole, but there very well might be
considerable confusion, even with respect to the number of
trees that have been removed thus far. I believe Staff said
that only seven have been removed. If I’m incorrect, I
apologize, but if that’s what I heard correctly, that is
not correct. I live there. I know there were far more than
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seven. I’ve never heard seven before; it’s always been
closer to 16 or of that nature or that amount.
VICE CHAIR KANE: So the answer to my questions
is there’s discrepancy among what areas are being
mentioned, how many trees are being counted, and not
necessarily exaggeration?
LISA ROBERTS: Correct, and in fact, I would say…
VICE CHAIR KANE: I’m happy; that’s a good
answer.
LISA ROBERTS: Okay.
VICE CHAIR KANE: Questions for the speaker?
Commissioner Hudes.
COMMISSIONER HUDES: Thank you, and I appreciate
your testimony today. Your letters are a bit problematic.
We’re required to consider everything that’s put in front
of us, but looking at the complexity and length of your
letter the weight that I can put on that consideration is
very slight, because you raise a number of very complex
issues that I can’t absorb in real time.
LISA ROBERTS: I attempted to provide the letter
to the Commission prior to this hearing, but I was refused
the opportunity.
COMMISSIONER HUDES: Well, we can address that
with Staff later. Are there other aspects? You’re talking
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about a violation of the Brown Act. Could you explain why
you feel that granting the appeal…
LISA ROBERTS: As you will see, I note a possible
violation of the Brown Act from my opinion and my
observation, and I am not an expert on that, and that’s why
I say it may have been a violation. It appears to me that
the same people who made the decision at the DRC level are
also the same people that acted as Staff. It was also my
clear understanding at the DRC public hearing that Staff
had already made its decision and essentially approved the
application before the public hearing; in other words, that
there had been deliberations regarding the application
before that. I do not believe that Staff can simply change
it’s hat and say I’m no longer Staff, now I’m a member of a
commission, so to speak, and have that be proper under the
Brown Act.
COMMISSIONER HUDES: Thank you.
LISA ROBERTS: Thank you.
VICE CHAIR KANE: I can’t let that go by. What do
you mean they refused to take your letter?
LISA ROBERTS: I, myself, am an individual
Appellant, as far as I see. I have three other people who
are also Appellants with me, but I am an individual
Appellant, and I believe that I have an individual right to
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all information that is provided to all the other
Appellants.
I received from the Town prior to this hearing a
package that purported to set forth all the rules and
procedures relating to this particular hearing, and in the
past I knew about desk items, so I know that desk items are
provided. That packet did not advise me that additional
materials are due by 11:00am the day of the hearing. Staff
advised me that the reason I wasn’t advised was because the
actual spokesperson for the “Appellant group” is Ms.
Smullen, but I have never relinquished my rights as an
Appellant or assigned anyone else to be a spokesperson.
I was ready to send the letter shortly after 2:00
o’clock, if I recall correctly. I asked to send the letter.
I asked Staff where I could email the letter. I was told I
could not. I pointed out that I thought it would be more
helpful for the Commission, since it is interested in
making a fully informed decision, that it would be more
convenient for the Commission to actually receive the
letter prior to the hearing tonight, and that in fact that
would also be helpful for the Applicant, even, because his
team could also review the letter beforehand. I was told
that no, I had broken a rule, and that I could instead
bring the letter, hard copy, paper copies rather than
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electronic, ten copies of it, to this meeting and it would
be distributed to the Commission at that time.
VICE CHAIR KANE: In all fairness, this has been
continued at least since May or maybe previously, well,
certainly previously to the DRC, and we’ve had two
continuations. Commissioner Hudes is smart. I’m not that
smart, and I can’t handle this letter right now.
LISA ROBERTS: May I respond? I understand it’s
been continued, but may I also say that we received I
believe four or five new reports from the Applicant no
earlier than last Friday. They are extensive. I have, even
with the letter, not been able to analyze them fully, and
that has nothing to do with the continuance. We just
received those reports.
VICE CHAIR KANE: Thank you. Other questions for
the speaker? All right. Doctor, I have a question for you.
LISA ROBERTS: Ms. Smullen can address something.
VICE CHAIR KANE: I don’t have a question for Ms.
Smullen.
DEDE SMULLEN: It’s an answer to your last
question. We received an email this morning at 10:30
advising us of the procedures, that most of us would not be
able to speak, that we’d only have time for our ten-minute
presentation that Anthony had very professionally prepared,
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so we were prepared to speak as members of the public. We
were just told that at 10:30, so I advised our group to
submit their items in writing. We were not given, as far as
I know, an 11:00 o’clock deadline. We were given a 1:00
o’clock deadline if you wanted something on the PowerPoint.
I was never told that there was an 11:00 o’clock deadline
to get items to you guys.
VICE CHAIR KANE: So they didn’t refuse to take
your letters, they simply told you whether it was timely or
tardy that the policy is such, but no one refused to take
your letters per se.
Doctor, I have a question for you.
DEDE SMULLEN: No, that’s not the case, because
they didn’t tell us that. They didn’t tell us the deadline.
VICE CHAIR KANE: Thank you. Doctor Badame.
ANTHONY BADAME: Commissioner Kane.
VICE CHAIR KANE: Help me with one question. You
were pointing to the architecture on the house and the
materials being used. It’s the picture where you’re
surrounding them with the other wooden houses, and you said
this one is stucco. I was thinking I read—and I hope it’s
the right case—that the Town Architect recommended to use
wood and something else, and that the Applicant in fact
complied with that. So if I’m correct about that, is your
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information current, or are they still insisting on using
stucco?
ANTHONY BADAME: We’re appealing the plans that
were approved at DRC, and this is the house that was
approved. If you want to turn down the lights I could show
you where the wood is, the paucity of wood. This is not a
wood and a little bit of stucco home, this is stucco home
with a paucity of wood and a paucity of stone.
VICE CHAIR KANE: So if they’re complying with
the Town Architect, Mr. Cannon’s recommendation, that might
be subsequent to the DRC and you might not be familiar with
it if they are?
ANTHONY BADAME: I’ve seen photographs of
conceptual drawings after the DRC meeting, but we’re not
appealing those conceptual drawings and those plans, we’re
appealing the plans that are approved.
VICE CHAIR KANE: Okay, good. Other questions for
the speaker? Seeing none, I’m going to call the Applicant,
and Ms. Wiersema, are there other members of your team
going to address us?
BESS WIERSEMA: I’m going to be the person
speaking for the ten minutes, but we do have the whole team
of specialists here: a couple of biologists, the arborist,
Mr. Hechtman, the civil engineer.
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VICE CHAIR KANE: I’m just doing housecleaning.
Do I have their cards if they’re going to speak?
BESS WIERSEMA: I think we’re good.
VICE CHAIR KANE: I’ve got them?
BESS WIERSEMA: Well, do you want a card if
they’re going to be asked a question of?
VICE CHAIR KANE: I don’t want to take time
(inaudible) later, that’s all.
BESS WIERSEMA: I think you want a card if
they’re going to be asked a question of. Okay, so can you
guys all fill out cards?
VICE CHAIR KANE: It will save time. Thank you.
BESS WIERSEMA: That’s fine.
VICE CHAIR KANE: Please begin.
(Prepares PowerPoint presentation.)
VICE CHAIR KANE: Excuse me.
BESS WIERSEMA: Yes?
VICE CHAIR KANE: Given the little break you
took, we’ve been inspired to take a real break, so take
your time with your presentation and we will be back in ten
minutes.
BESS WIERSEMA: Perfect.
(INTERMISSION)
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VICE CHAIR KANE: Ms. Wiersema, thank you for
your patience.
BESS WIERSEMA: Good evening, Commissioners.
Thanks of the break. It’s a hot one, as you can see, and
it’s kind of different than when I’m normally here talking
about technical things on a project and instead I find
myself putting together a deck of slides that starts to
have to deal with what’s the fact and what’s the
perception. So I’m just going to kind of ride you through
the project here, and we have an entire team of specialists
on our side, biologists, arborists, lawyers, civil
engineers, et cetera, that I would like to defer to for any
technical questions that are specific, and I encourage you
to ask them.
This is our team on the left. You can see them
all over here. They’ve now given you the cards, and I
would, again, encourage you to ask them, because I know
they’ve been to the site many times, reviewed the plans
many times, et cetera.
I’d also like to point out, since the CEQA
conversation has come up in the last minute here, Bart
Hechtman, I know he spoke with the Town Attorney as well,
and his little comment here is in the yellow bubble. He
received a letter from an environmental consultant hired by
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the neighbors contending that the 2010 Mitigated Negative
Declaration is inadequate and can’t be used for this house,
because there’s a new owner.
I think the Town Attorney would tell you, if you
asked, that a Mitigated Negative Declaration that is not
challenged within 30 days of approval is legally deemed
adequate for the project studied, regardless of who owns
the property, and that the CEQA review of the current plan
is limited to review of the changes from the prior plan to
determine if those changes create new environmental
impacts. Town Staff did that review, and as described in
the Staff Report, the changes actually reduce the
environmental impacts compared to the prior plan.
A little history on this property. It was first
subdivided in 1886 and a re-subdivision occurred in 1978.
It’s always been considered a buildable lot. The lot was
for sale for three years. We have a little typo right here.
It should have said in 2015, not 2016, sorry for that, when
Ed purchased the property. Ed prefers a more modern rustic
aesthetic than the original façade of the 2010 application,
and that aesthetic also better conforms to the Hillside
Guidelines, so a redesign commenced.
It’s been brought up that this application is
similar to previous denied applications, and I think the
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writing is on the wall here. Nineteen ninety-eight
application was indeed denied. It had an attached garage.
It was 5,222 square feet. Two thousand and one, 5,144
square feet, again with a detached garage. Two thousand and
ten application, 4,133 square feet, with an attached
additional garage; that was approved. Two thousand and
sixteen application, 4,357 square feet, with an attached
garage, and that was also approved at DRC tech review. I
would liken that we are significantly more like the 2010
approved application than we are any of the previously
denied applications.
There’s also been discussion about the creek
being illegally maneuvered or modified. We’ve pulled the
1996 survey from Westfall Engineers, and this is on record
at the Town. This is our current one from Peoples
Associates. You can see that the creek has not been
modified; it is the same footprint that is has been.
Nineteen ninety-six, 2015, now 2016; we’re talking 20 years
it’s been in the same position. I’m not sure where this is
coming from.
Let’s talk a little bit about this application
versus the 2010 application. Indeed, efforts have been made
to improve how we handle the hillside. You can see previous
cut was 342; we’re currently at 272. Previous fill, 385;
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we’re currently at 351. Zero import and zero export, an
improvement.
Also previously approved were 6’-6” retaining
walls. Our current project has a maximum proposed at 4’.
This is not a house stuck in a moat; this is a house that
sits on the side of the hill. In this chart right here,
color-coded to the diagrams of the site, both at the
driveway and at the house footprint, you can see the
heights of the retaining walls detailed, and you can see
that the majority of the retaining walls, 80% of them, are
actually sub-4’.
This is a sharp contrast to what Ed looks at in
the neighborhood. This is our Appellant’s retaining walls,
ranging anywhere from an average of 11.5’ to 5’ with 8’
pylons, or 5’ greater, so it’s an interesting dilemma that
we have a lot of people who are complaining about stuff
where, gosh, theirs are extremely nonconforming.
Setbacks and orientation. We’ve maintained the
setbacks from the 2010 application, and if you look at the
neighborhood I think our setbacks are actually consistent
with the neighborhood. You can see that front setbacks are
typically taken along the street side here and the short
side of the lot. The red arrow indicates the front setback
for each of the properties as you come around the
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surrounding homes in the neighborhood. You can see that
this right here is Highland Avenue. At this point right
here I would like you to note that this is no longer
Highland Avenue, this is a public road that is an easement
road for one residence, the Smullen’s residence, to access
that crosses the Pearson property, so what’s being called a
road that we’re buried in right here is actually simply a
private access for this particular property right here.
Setbacks and orientation again; the LRDA. This
obviously indicates the line of the LRDA here, and this is
66% of our house sits clearly within the LRDA and we have
34% that doesn’t. Part of the reason that we’re pushed back
and exceeding outside of the LRDA in this area is to
maintain a greater distance from the creek that we’re all
trying to protect.
I think you’ve seen this in your packet also.
This is an overlay of the existing in green, and the
original approved in red. You can see that we’ve actually
pulled farther back from the creek in multiple locations
along this whole façade.
Square footage. I think we’ve kind of gone
through this already, so I’m just going to skip past this
one.
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Floor area. It’s been brought up that this is a
large house in the neighborhood. Our property right here;
45,000 square foot lot. We’re actually at 9.6% FAR. You can
see surrounding FARs in the area go all the way up even
adjacent to 42%.
Trees that are being removed. This is just a
quick highlight so you can see that actually the majority
of the trees in the area are being preserved, all of these
up here as well, and that a minimum amount of trees are
being disturbed.
A landscape plan was created after many meetings,
both at DRC and with a couple of the neighbors, to provide
additional landscape screening. Detail of those plants that
are moderate to fast growing to provide additional privacy
along the road are indicated on that as well.
As noted, there have been many meetings that
tried to be had with the neighbors. Ms. Smullen has been
the head of that group, and more often than not people are
not showing up to these meetings, and we can get into that
detail later.
Hillside Development Standards and Guidelines. I
just want to go through how the project complies. Indeed,
we are in harmony with the natural environment, we believe,
materials, palette, sight lines, et cetera. We’re
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responsive to sight constraints. We’re compatible with the
surrounding neighborhood and respectful of neighbors and
the rural character.
We had two comments from Larry Cannon, and we met
both of those comments.
We’re trying to be neighbor-friendly, although
this house is very secluded. These are just distances from
corners of the house to the property, not even our
setbacks, so we’re sitting at a really good location,
maintaining a lot of privacy.
I’d also like to point out the Appellants sit
much higher than us, so we’re really not a castle in a
moat, we’re kind of in a pit compared to some other people
here who actually look over us, drive over us.
We have maintained fire safety and WUI standards
in the design.
Height is of concern, but we meet all the height
requirements, and actually when you’re on the road as a
pedestrian or in a car, you have significantly less height,
because our average is actually 10’ to 17’-3” here.
We were required to cut several sections for the
planners and detail and key each of those, because it was a
technical site, so this has a 25’ offset. These were
additional sections that were cut when we went through DRC
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in order to prove that we did meet the 25’ height
requirement.
The house is not three stories. This is an
overlap showing you how the different levels stack, so in
no place do the different levels stack and become three.
The color-coding right, red, yellow, and blue makes green
or orange.
We’ve got a couple views here to show the
impacts, and this is a map of them we can refer back.
You can see here are the story poles from the
street, and here is the house. This is the private road
right here.
I’d like an extra couple.
VICE CHAIR KANE: I’ll give you thirty seconds.
BESS WIERSEMA: Thank you. All right, and then
this is the Smullen’s property. You can see the story poles
here; you can see the house snuggled in right here.
This is the view from Roberts. A tiny little bit
of orange story pole in here. Because of the color of our
house, it’s Where’s Waldo? right here.
We do conform to how we sit with the Standards
and Guidelines in terms of siting; you can kind of see this
right here.
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Materials of the home, I’d like to refer to the
beautiful materials board Ed made, with actual materials,
showing that we are natural and a rustic character. Then
this is, again, conforming to the hillside. You can see
that the materials wrap the building. We’ve got stucco,
wood, dark cladding on everything, dark sky compliant
lining, and stone veneer as well. Any time we have exposed
members for a deck or anything, we have provided additional
wood slat screening on those that blends with the same
cedar siding on the house. Materials and colors, again. I
would just refer… God, this slide is really dark right now.
VICE CHAIR KANE: We’re going to stop now, Ms.
Wiersema, and see if there are questions from the
Commissioners.
BESS WIERSEMA: Okay.
VICE CHAIR KANE: Thank you. Questions for the
speaker? Commissioner O'Donnell.
COMMISSIONER O'DONNELL: This won’t be for you,
but one of your experts. We’ve had a lot of discussion
about the setback from the creek, and also this discussion
about whether the creek is ephemeral or it’s not, and
reading everything that I’ve read there seems to be at
least some confusion, because the terms are sometimes used
fairly loosely. But if you have somebody in your group here
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that can give us some professional opinion on the nature of
that creek, and how they get there.
BESS WIERSEMA: I think that’s Patrick and Ginger
from H.T. Harvey.
PATRICK BOURSIER: Hi, my name is Patrick
Boursier; I work for the firm of H.T. Harvey and
Associates. I’m a plant ecologist, a weather mycologist.
I’ll try to un-confuse you quickly about
ephemeral versus intermittent. The prior speaker was
correct, it has to do partly with the duration of the flow
of water, but more importantly…
Before I say this I want to clarify, the
definition comes from the Environmental Protection Agency
and the U.S. Army Corps of Engineers and establishing
jurisdiction, and what they say is that an ephemeral creek
runs water immediately or during and after a rainfall
event, however, the most important thing is whether the
water primarily comes from incident rainfall and runoff
from the watershed, or groundwater. Intermittent does flow
water during a rainfall event, but it’s primarily
groundwater, and you may not see that groundwater for some
time.
This particular site I classified as ephemeral
based on a couple of site visits during the winter. There
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were some rain events in February; nothing flowed, nothing
flowed. I went out there during the 1” rainfall event, I
think that was on the 19th, and saw water flowing, but that
quickly subsided.
The other thing to keep in mind here, there was
an error on her slide; Live Oak actually called it
ephemeral, as we did.
Another thing to consider, I went out there I
believe it was last Friday. There’s water. I wouldn’t say
it’s flowing; it’s in depressional pools, if you will.
However, at the same time it’s not uncommon for water to
come from what we call nuisance flows; people over-
irrigating their lawns, washing their cars. There’s a whole
series of culverts up and down that creek, and I drove up
Alpine and went higher up in the watershed to look for
these sorts of things, so if there’s water in there
currently it could be from nuisance flows, because there
are some culverts that are this large coming from private
residences all the way up and down, as I say.
I think one of the most important things to point
out is the agencies are concerned about setbacks from
these, but that isn’t what we’re talking about. We’re not
talking about regulations of the Army Corps of Engineers or
California Department of Fish and Wildlife, this is just
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strictly from the Guidelines and Standards, and those have
nothing to do with biology, it’s actually a slope stability
setback.
VICE CHAIR KANE: I want to make sure; did you
get your answer, Commissioner? Why don’t we try his follow
ups?
PATRICK BOURSIER: Pardon?
COMMISSIONER HUDES: I have a few follow ups to
that, before we go beyond that, if you don’t mind.
PATRICK BOURSIER: Okay, let me know when I’m
boring you.
COMMISSIONER HUDES: Do you agree that there is a
relevant distinction between ephemeral and intermittent in
regard to the setbacks?
PATRICK BOURSIER: Insofar as the guidelines have
a table in the back, yes.
COMMISSIONER HUDES: Okay.
PATRICK BOURSIER: But could I point out one
thing about that, sir?
COMMISSIONER HUDES: Sure.
PATRICK BOURSIER: If you go to the very last
page of the Guidelines and Standards it says what everybody
has been saying, 10’ to 15’, 20’ to 25’. If you go to the
page before that, and nobody cited this, it says, “If a
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structure is proposed to be located closer to the top of
bank than indicated by the stability requirements,” that
the table here, basically, and I won’t read the rest of
this, a property owner has…and I believe the Town has
directed the owner to do this. “Property owners proposing
to place a structure closer to the stream site slope than
allowed, the permitting agency,” in this case the Town,
“should require further study of onsite geotechnical soil
and slope stability conditions.”
Now, the Applicant had a geotechnical firm look
at that, and what their conclusion was, as currently
proposed, the corner of the home for the setback
approximately 15’ and that will not cause any instability
issues, and I think that was from—I know you have it in
your package—UPP Geotechnology.
What I’m just trying to convey is the guidelines
say it’s up to you to make the decision, and if a
geotechnical engineer looks at it and says there’s no creek
stability issues… Again, we’re not talking about biology
setbacks, we’re not talking about regulatory setbacks, but
this is all about geotechnical stability. You don’t want to
put a home so close to the creek it collapses in.
COMMISSIONER HUDES: I understand that. So the
water in the creek, when you made the report back in the
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winter you said that that water would subside. I observed
water there on Sunday. I was fortunate enough to spend
enough time there to see some deer come down and actually
drink that water, and it was clearly fresh water there. Do
you have any evidence to show that that’s nuisance water?
PATRICK BOURSIER: No, I don’t. I didn’t walk up
and down the creek.
COMMISSIONER HUDES: So it either could be
natural ground water, or it could be nuisance water; you
have no evidence to show (inaudible)?
PATRICK BOURSIER: That’s correct, it could be
either one or a mixture of both.
COMMISSIONER HUDES: Either one.
PATRICK BOURSIER: But what I’m saying basically
is it’s not really relevant, because the Guidelines and
Standards allow exceptions to the setback if a geotech
concludes that there’s no problem.
COMMISSIONER HUDES: I understand; you made that
point.
PATRICK BOURSIER: Could I say one more thing?
VICE CHAIR KANE: Thank you. I want to see if
there are more questions from the Commission.
PATRICK BOURSIER: Okay.
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VICE CHAIR KANE: Do we have questions for the
speaker or a member of her team? Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I hear the distinction
you’re making, and I also know that some of the earlier
questioning was concerned with, other than slope stability,
purity of the water and the biotics. This is to you, so you
can stand, if you would.
Could leave the stability of the creek aside and
get to the other, which is the EPA and the Fish and
Wildlife try to protect the purity of the water. Now, I
understand 1604 permit, I think it is, that’s only when
you’re down in the creek bed working, so what is it that we
should… Once we decide that the closeness to the creek is
not going to impair the creekside, to put it that way, at
what point do we worry about the purity of the water? How
do we determine closeness for that?
PATRICK BOURSIER: The Applicant has a storm
water control plan, and I can’t say this conclusively, that
most likely most of the homes that were put in in that
neighborhood some decades ago have no pre-treatment.
Everything that comes off of the asphalts, the driveways,
the roof, goes directly into the creek, and from that creek
to Los Gatos Creek, which houses federally endangered red-
legged frogs. The Applicant has pre-treatment water quality
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swales, and he can speak to that more directly. I’m the
biologist. But that’s the difference. He is not discharging
directly into the creek itself; he is maintaining all of
the water onsite.
COMMISSIONER O'DONNELL: I appreciate that, but
my question though is if one doesn’t deal with what the
neighbors may have done, what history may have done, if you
simply don’t want to build too close to the creek for
health reasons or purity reasons, what do we look to to
determine whether it’s too close to the creek? You’re
telling me basically, well, it’s already polluted.
PATRICK BOURSIER: Oh, no, I’m saying for this
particular piece of property in development what the Water
Quality Control Board would require is that they pre-treat,
they cleanse all the rainfall or nuisance flows that arise
from the hardscape onsite and in the roof and asphalts and
that. It cannot be discharged directly into the creek; it
has to be pre-treated.
COMMISSIONER O'DONNELL: And you’re aware of no
setback that is dictated by just simply trying to keep the
water clean? Forgetting the steps that must be taken from
water runoff from your property, there are no regulations
as such that says basically you must not go within so many
feet of the creek?
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PATRICK BOURSIER: No. Because of the regional
MPDES permits issues by the Water Quality Control Board for
the whole Bay Area, you are required to pre-treat. You have
to have certain storm water basins to minimize your effect
on hydro (inaudible).
COMMISSIONER O'DONNELL: Again, all I’m asking
you is if that’s the case, so long as you didn’t affect the
stability you could build virtually on the edge of the
creek, is what you are saying?
PATRICK BOURSIER: You could, yes.
COMMISSIONER O'DONNELL: Thank you.
PATRICK BOURSIER: I would like to clarify one
thing though, and that is in regard to the actual setback.
The original setback is calculated based on—and you saw it
earlier—an older topographic map. I went out and pin
flagged the top of bank, and I used the protocol that all
the federal and state agencies use, and I’ve been doing it
over 25 years and it’s pretty straightforward; it’s just
simply the top of bank.
The engineers for the project went out and
created an updated topographic map, and in reality the
average setback to the property is 27’ from the building to
the top of bank. Here’s my little chicken scratch, and
quickly I can just read you the actual numbers. I measure
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every 20’ from one end of the residence to the other, and
these are the numbers: 20’, 34’, 36’, 15’, that’s the
shortest, 20’, 34’, and 31’. That averages out to 27.14’ as
an average setback. Only in one location is it 15’.
Everywhere else, there’s 20’, there are 30’s.
COMMISSIONER O'DONNELL: You’re opinion in any
event is that there is no slope stability problem with the
(inaudible)?
PATRICK BOURSIER: Well, I’m not the geotech, but
that is what the geotech suggested.
COMMISSIONER O'DONNELL: Since that seems to be
the rule you’re talking about, do we have somebody that can
testify that the setback does not impair the slope
stability?
CHRIS HUNDEMER: Hi, I’m Chris Hundemer; I’m one
of the principles and owners of C2Earth/UPP Geotechnology.
We’ve evaluated the slope stability of the creek.
What we have at the site is about 3’ of soils overlying the
bedrock. Any of the foundations for the house or the side
retaining walls are going to be cut down into the bedrock.
There are going to be trenches that are dug down and
foundations will be at least 1’ deep into the bedrock. The
closest location of where the house goes to the creek is
15’ based on the bottom elevation of where we anticipate
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footings are to get 1’ into bedrock. The bottom of the
footing is only going to be 6” higher than the creek, and
that’s over a 15’ run. Calculating a slope stability of
that, of about a 2° slope, we get a slope stability of over
a 13 factor safety; it’s not a stability issue.
COMMISSIONER O'DONNELL: Thank you.
VICE CHAIR KANE: Chris, I’ll need a card. And if
others are going to speak, I need a card. Commissioner
Hudes has a question for you.
COMMISSIONER HUDES: Yes, are you familiar with
where the story poles are placed?
CHRIS HUNDEMER: I’ve not gone out since the
story poles. I’m working off of the civil drawings that
were prepared by Peoples Associates.
COMMISSIONER HUDES: Could someone address the
placement of the story poles?
BESS WIERSEMA: I do believe the story poles were
certified by Velimir Sulic, the civil engineer. They’re
required to be certified, actually, as part of our process.
VELIMIR SULIC: I’m Velimir Sulic from Peoples
Associates, engineers for the project. Our surveyors put
the story pole exactly on the place that was approved by
the DRC, per our plans.
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COMMISSIONER HUDES: So the story pole is where
the house will be?
VELIMIR SULIC: That’s correct.
COMMISSIONER HUDES: I was concerned about that
distance, because it didn’t look like 15’ to me. I actually
came out with a tape measure today, and it looked like it
was about 13’ from the story pole to the top of bank. I’m
certainly not an expert, I could be corrected on that, but
I’m very concerned that those story poles may have been
placed in the wrong location if in fact this house is going
to be built 15’ from top of bank.
VELIMIR SULIC: The story poles are correct. It’s
on the proper location, and we certified that, location and
the height of the story poles. In the testimony of Harvey
and Associates, they flagged where the top of the bank is,
so maybe it’s different what you think is top of the bank
and what they think is top of the bank; that’s probably the
discrepancy of 2’ or 3’.
COMMISSIONER HUDES: Okay, so I may have a
question then for the representative of Harvey and
Associates. I did not see any flags when I went out there
on Sunday or went back today, particularly in the location
that is closest that I observed to be 13’.
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PATRICK BOURSIER: Flags are not there. They were
put in probably, I don't know, three or four weeks ago, and
they probably were removed when they put up story poles, I
don't know.
COMMISSIONER HUDES: So could you explain to me
how you identify top of bank?
PATRICK BOURSIER: Sure. It’s easier than most
people think. It’s simply just a topographic feature. On
most of the site the slope is rather gentle—and I’ll use
the podium here, if you will—and it breaks away, there’s
almost a vertical drop-off to the creek. It gets a little
bit complex, and there’s sort of an oxbow, and we discussed
the oxbow, it’s origin and how long it’s been there. That
is where the creek gets closest to the home. In that
location, the top of bank isn’t that clear, it’s a little
laid back, and if you look at the topo lines you can see
the spacing on the topo lines are a little bit, so it isn’t
vertical there, it’s more laid back. So that might have
been the discrepancy.
COMMISSIONER HUDES: What I measured from was an
inflection point where the slope changed, and that’s where
I measured 13’.
PATRICK BOURSIER: Yeah, so you might have been a
little bit closer, and the agency guidelines say that in
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those instances we take sort of a running average up and
down the stream, and it has to do with other things, not to
bore you to tears, but other hydrologic features like
sediment distribution and undercutting.
COMMISSIONER HUDES: One more question about the
stream itself. We’re talking about the stream like it’s a
permanent feature that’s eternal. Do these streams flood
and adjust? Is that curve going to be there the same way 80
years from now?
PATRICK BOURSIER: I’m not a hydrologist, but as
I said, I’ve been mapping habitats and working with federal
and state agencies on their jurisdiction for over 25 years,
and I’d have to say yes, they can move. It depends upon if
we get an el nino or not, the distribution and
concentration of rains. The thing that this site has going
for itself, and I’ve worked in this town on a number of
other sites, is that it’s close to bedrock, it’s rather
free-draining. You have those sorts of incision and
meanders in areas of the creek farther up in the watershed
where it’s more like clays, and they’re more erodible. In
this case, you have a lot of bedrock and stone and cobbles,
and a little more stable in that case.
COMMISSIONER HUDES: Thank you.
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VICE CHAIR KANE: Other questions? Commissioner
Hanssen. For whom?
COMMISSIONER HANSSEN: For the biologist. Thank
you. I was going to add on to what Commissioner O'Donnell
was talking about. The Appellants’ biologist talked about
riparian features of this creek bed, and some certain plant
types that wouldn’t have been present without the creek. So
I’m going to re-ask the question that Commissioner
O'Donnell did, which is if this is deemed to be a riparian
habitat, wouldn’t that effect the placement of a house in
addition to the slope stability issues?
PATRICK BOURSIER: No, you’re exactly right.
Riparian habitat is defined, at least by the California
Department of Fish and Wildlife and the Santa Clara Valley
Habitat Agency, as being comprised of a predominance of
plants like willows and cottonwoods, that we know are
plants that depend upon the proximity of water for their
growth, and in the reach of the creek there are some
willows downstream, closer to the adjacent property, the
downstream property. There aren’t any of those sorts of
large shrubs or trees in the reach of the creek where the
Applicant’s property is. So if we had those, and as an
example, you all know well Los Gatos Creek, the beautiful,
lush trees, willows, cottonwoods, cattails that depend on
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the flows there, and because of that, and rightly so, the
Town requires 50’, 100’ setbacks from that riparian edge,
and that’s because the quality, there are more wildlife
species occurrence there, there are more sensitive wetlands
present, there’s more concern over water quality, and this
is very different. This is creek, or drainage, that’s about
that wide and appears to have flows that are not perennial,
so we get back into the ephemeral/intermittent discussion.
Does that answer your question?
COMMISSIONER HANSSEN: So you’re saying you’ve
deemed that it is not a riparian situation?
PATRICK BOURSIER: It’s not by any definition of
a state, federal, or the habitat agency; it is not
riparian. If it did, we would be talking about—and I’ve
been here before talking about this project along Los Gatos
Creek—much larger setbacks for riparian.
What I tried to just clarify earlier was that the
setback we’re talking about has nothing to do with biology,
it has nothing to do with the Clean Water Act or the
Endangered Species Act; it’s a slope stability issue only.
COMMISSIONER HANSSEN: Okay, thank you.
VICE CHAIR KANE: Question from Commissioner
Hudes.
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COMMISSIONER HUDES: Concerning the slope
stability, what impact do the trees have on the stability
of that slope? Are there trees that are close to the slope
that are retaining it?
PATRICK BOURSIER: Again, maybe the geotech can
speak to this, but our firm does a lot of restoration and
id involved in projects where trees are taken out.
Routinely trees rooted really close to the creek have a
definite effect on the stability. When a lot of them are
taken out on projects I work on, they’re taken out at
ground level and you leave the root system intact. I would
say because there are no true riparian trees, these are
trees that are sort of on the dry end of the spectrum. A
lot of them are oaks and so forth, and bays, and that is if
those were removed they would have maybe less of an effect
if they were farther away from the creek. I think any trees
growing directly adjacent within 10’ to 15’; you
potentially could run the risk of affecting the creek.
COMMISSIONER HUDES: I wanted to follow up on
that, because there are a couple of trees, an oak tree and
a bay tree, T-32 and T-33, that are very close to the
creek, maybe 2’ from the creek, and one of them is about 8’
from the house, and I measured that again today. If
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something were to happen to those trees, T-32 and T-33,
would there be an impact on the slope stability?
CHRIS HUNDEMER: We’ve designed the house and the
driveway to have slope stability independent of any trees
that are on the site. By putting all of the foundations
into the bedrock, we are relying on the performance of the
bedrock independent of anything in the surficial soil,
including whatever effect these roots from these trees
have.
COMMISSIONER HUDES: But my question is if during
construction those trees were damaged, would there be
damage to that creek? I’m not talking about the house being
an issue; I’m talking about the creek.
CHRIS HUNDEMER: As I understand it, the creek
bank is about 3’ high, and you’re talking about a tree
that’s how far away from that bank?
COMMISSIONER HUDES: Three feet? I’m talking
about T-33 and T-34. There’s a bay and an oak that are very
close, and they’re very close to the house as well. Looking
at 14 of 33, Appendix A.
VELIMIR SULIC: I have a T-29, that is north of
the garage?
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COMMISSIONER HUDES: No, I’m talking about one
that’s closer to the house, T-33, which is a bay, and T-34,
which is an oak, adjacent to the oxbow.
VELIMIR SULIC: T-23, I don’t have a scale right
here, but it’s about 20’ from the house.
COMMISSIONER HUDES: Maybe we could refer to the
same diagram. I’m looking at 14 of 33 on Appendix A, Site
Map.
VELIMIR SULIC: Those trees will not be affected
during the construction, because we’re going to protect
them. It’s a detail how to protect the trees during the
construction.
COMMISSIONER HUDES: So you’re assured that the
trees will not be damaged during the construction? They’re
8’ from the foundation.
VELIMIR SULIC: I don’t think they’re going to be
damaged by the construction as long as they put the
fencing, and they will put the fencing around and protect
the trees, and I don’t think they’re going to be damaged.
COMMISSIONER HUDES: There are numerous trees
that kind of fall under that category: T-8, T-11, T-21, T-
29, and they’re all along that creek. Will each of those
trees be protected during construction?
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VELIMIR SULIC: That’s correct. Your Engineering
Department requires the details to be on the plans and
following the protection of the trees with Town guidance.
COMMISSIONER HUDES: Okay, thank you.
VICE CHAIR KANE: One that note, I have a
question for Staff. Inside the Condition of Approval, the
lengthy ones that go on and on and on about finding
ancestral bones and that sort of thing, isn’t this covered
that the trees would be wrapped, or there would be a fence
put around the trees, as a Condition of Approval?
MARNI MOSELEY: The Town uses a standard
Condition of Approval that the Applicant comply with the
required tree protection measures from the provided
arborist report, which includes those specifications.
VICE CHAIR KANE: Thank you.
RICHARD GESSNER: I was going to speak to that.
My name is Richard Gessner; I’m a consulting arborist.
There are a couple of trees that are in close
proximity of the house, and to protect those it’s really
going to be root zone protection, and in this instance when
the foundations are put in those areas will have to be
hand-trenched to expose any roots that could potentially be
critical, and then at that time make a determination as to
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how to deal with them. This is typical in any situation
where the homes are close to the trees.
Now, the ones that are a little bit farther away
by the bank that you were talking about, mainly T-31, T-32,
T-33, and T-34, those can be totally excluded through
fencing, and so you could have enough tree protection just
through fencing to exclude any activity underneath those.
COMMISSIONER HUDES: Okay, thank you.
VICE CHAIR KANE: Other questions? Ms. Wiersema,
would you come back for a moment? With respect to the
hillsides and protecting the hillsides, we have a Least
Restrictive Development Area, the LRDA, and I believe at
one point in your presentation you showed perhaps 34% of
the project was outside the LRDA. Is that approximately
correct?
BESS WIERSEMA: Yeah, 33% or 34%.
VICE CHAIR KANE: So while you’re here I have a
question for Staff. Given the importance of the LRDA and
not building outside of it in the hillsides, either the
speaker or Staff, tell me why an exception was given in
this case?
MARNI MOSELEY: The Planning Commission
considered the constraints of the site, including the creek
and the roadway above. By situating the house in that
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location you actually end up hiding a lot of the mass. If
you were to push the house away from that slope, then
you’re exposing all of that wall face. Even if you were to
just cut away that part of the residence, you’re still
going to end up with a taller wall face than you currently
have as part of the application. That’s where the Hillside
Development Standards and Guidelines look at stepping it
into the slope, and yes, in this case that slope is over
30% in order to situate it up against that slope.
VICE CHAIR KANE: You’re saying it’s a guideline,
not a standard?
MARNI MOSELEY: It is, yes.
VICE CHAIR KANE: And a solution to put it back
in the LRDA would be, in fact, to cut it off. It certainly
would be a redesign, but for sake of argument, just slice
off the piece that’s outside the LRDA, and then it would
comply.
MARNI MOSELEY: You could do that, and then
you’re building on a flat pad and you’re not stepping it
with the hillside, but that is under the purview of the
Commission.
VICE CHAIR KANE: Would Staff feel comfortable
giving this exception?
MARNI MOSELEY: Yes.
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VICE CHAIR KANE: Thank you. Commissioner
O'Donnell.
COMMISSIONER O'DONNELL: To be clarified, I think
you said that if you were to do that you would have a more
obvious vertical plane, whereas when you bring it in closer
you don’t do that, so in weighing whether you could go
outside the LRDA you took into consideration what it would
look like if you stayed with the LRDA, is that correct?
MARNI MOSELEY: That is correct.
COMMISSIONER O'DONNELL: Thank you.
VICE CHAIR KANE: Commissioner Hudes.
COMMISSIONER HUDES: As a follow up to that,
that’s given that you retain the same size, right? If the
house were smaller, then you might not have that issue.
MARNI MOSELEY: Any way that you push the house
away from the slope you expose more of that wall plane,
whether it’s a 3,000 square foot house, a 2,000 square foot
house, because of that narrow envelope that you’re dealing
with you’re going to have a two-story elevation there, and
so you’re going to see more of that wall plane.
COMMISSIONER HUDES: Given the same size, that
wall plane gets smaller if the house is smaller, correct?
MARNI MOSELEY: If it’s not two stories, yes.
COMMISSIONER HUDES: Or if it’s not as long.
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MARNI MOSELEY: I couldn’t speak to that
specification. There are a lot of constraints there that if
you’re looking at completely moving it on the site, it’s
hard to analyze.
COMMISSIONER HUDES: I had another area I wanted
to explore with the architect. This is concerning the bulk
and mass of the house. This looks like a very long house
that’s not very wide, that’s narrow. What are the
dimensions, the length versus the width of this house?
BESS WIERSEMA: The approved 2010 was 107’ long
by 35’ wide, and we are at 103’ long by 35’ wide.
COMMISSIONER HUDES: So it’s 103’. Does that
contribute to the apparent bulk and mass from the side? In
other words, if the house were wider, then that plan would
be smaller, wouldn’t it?
BESS WIERSEMA: I think that is not necessarily
relevant, because of the shape of the site and the
constraints that we’re dealing with on the site itself.
COMMISSIONER HUDES: But I’m looking at elevation
A-31, the north elevation, and I’m looking at a very long
façade that to me conveys a great deal of bulk and mass,
and it seems to me that part of the reason for that is that
the house is so narrow that trying to retain that maximum
square footage on the lot, this thing just gets long.
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BESS WIERSEMA: This elevation right here. You’re
looking at sheet A-31; I have a rendering up. I think that
this is something you run into in hillsides when you look
at the broad side, when you have a house that sits in the
hillside you do end up with a broad elevation on one point.
COMMISSIONER HUDES: And if the house were more
rectangular, then you wouldn’t have that apparent bulk and
mass, is that correct?
BESS WIERSEMA: I think the bulk and mass is
mitigated by the fact that the footprint staggers and
steps, which I think is very hard to read in a two
dimensional drawing. I believe we’ve already minimized the
bulk and mass by moving our footprint and having it not be
a pure extruded stack.
COMMISSIONER HUDES: Okay, thank you.
VICE CHAIR KANE: Thank you. Other questions?
Thank you very much.
I’m going to open the public portion of the
public hearing. Members of the public may address the
Commission for three minutes each. Our first speaker is
Steve Massei.
STEVE MASSEI: Good evening. I think most of what
I was going to speak about was covered by the architect,
but maybe I can cover it again and summarize it.
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It’s basically to speak about what was approved
in the 2010 Commission approved application versus the
current application and just the distinctions.
One is the style. Obviously this is a
contemporary rustic, and the original one was all stucco,
kind of a Mediterranean look, and there is a mixed use of
materials on the house in the board over there. Basically
details, it’s got a metal standing seam roof, wood, stucco,
stone, it’s a darker color that fits into the creek side,
much better elevation than the previous design. The
envelope is 103’ by 35’, like she has just previously
stated, and the old one was 107’ by 35’. The location and
orientation are almost identical. The size is approximately
43’x57’, and what was previously approved was 41’x33’. The
retaining wall height was reduced from 6.6’, which was
previously approved, to 4’, and there is a complete
landscape plan, which was never submitted in 2010. The
building heights are identical at 25’. The grading has been
reduced on the cut side from 272 cubic yards to 342 cubic
yards, and the last job, that was an import job, where this
is a balanced site. The decks also, the deck on the 2010
approved site was 1,855 square feet, the massing of the
exterior decks, and they’ve been reduced to 784 square
feet.
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Then just to speak of the builder. I’ve known Ed
personally and professionally for 20 years. He’s worked for
me, and he’s a very courteous builder to his neighbors once
he starts construction. He takes pride in what he does, and
I’m sure he’s going to build an amazing project.
VICE CHAIR KANE: Thank you. Questions for the
speaker? Sir, did I miss it? Did you say you were a
builder, a contractor?
STEVE MASSEI: Yeah, I’m a developer and builder
as well, locally.
VICE CHAIR KANE: All right, thank you. When
members of the public come up, you’ll have three minutes to
speak. When the yellow light goes off, you’re not done;
you’ve got 30 seconds left. So when you come up, give us
your name and address, and you’ll have three minutes. Mark
Hacker.
MARK HACKER: Good evening, Commissioners. My
name is Mark Hacker; I live at 100 Kennedy Court. I’ve been
a resident here in Los Gatos for about 20 years.
I think everybody has covered just about
everything. I don't know that I can cover any more, other
than I professionally have done business with Mr. Pearson
for 20 years, both as an employer and as a customer of
Ed’s, and I can speak to his ability to be very good. I’ve
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seen the board. I think he’s just a great builder and a
great guy, and hopefully you’ll pass this through. Thank
you.
VICE CHAIR KANE: Questions for the speaker?
Thank you very much. Derek Durand.
DEREK DURAND: Mercy is my mother, Roger Smullen,
stepfather; they live at 25 Highland Avenue.
I just wanted to bring up something that we had
talked about in one of the previous meetings, and that is
they have the access road that is their ingress and egress
of 25 Highland, which is the private driveway that goes
right by the house that’s being built.
One of the major concerns that we have for them
is ingress and egress during this construction period.
Obviously, it’s going to be affecting them, and just making
sure that they do have continued access to their road in
and out, because it is a very narrow, one-car road. If
somebody is coming in or somebody is going out, you’re
going to have to back up one way or the other.
Which also brings up the fact about emergency
vehicles, which we’ve had out there several times; they are
elderly parents. But also just making sure that there is
some kind of procedure that’s put into place to make sure
that during this period of construction, if it gets to that
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point, that there are some kind of controls or oversight of
it to make sure that they have continued access in and out
of the property.
VICE CHAIR KANE: Thank you. There are Conditions
of Approval that I referred to earlier, ten or twelve
pages, and in great detail it will talk about how things
shall be conducted during the construction. I drove the
road today; in fact I turned around in your mom and dad’s
lot, because there’s no other way to turn around.
DEREK DURAND: The only way to do it.
VICE CHAIR KANE: Once you’re going, you got to
go all the way. But for Staff, can we contact the gentleman
later and go over those conditions regarding the impact on
his family during construction?
MARNI MOSELEY: Staff did discuss this at the
Development Review Committee meeting, and the standard
condition regarding construction management plan was
already in place in the draft conditions, and will be
enforced. The construction management plan is unique for
each site, and the contractor details that prior to
issuance of any permits.
VICE CHAIR KANE: Would a copy of that be
available?
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MARNI MOSELEY: It has not been created yet. It
will be created by the contractor prior to issuance of
building permits based on the proposed project.
VICE CHAIR KANE: So about that time you’ll get a
copy, or request a copy.
DEREK DURAND: Terrific.
VICE CHAIR KANE: Thank you. Lee Quintana.
LEE QUINTANA: Lee Quintana, 5 Palm Avenue. I
just have a few comments I would like to make.
We talked about soft approvals on the last
approval of this project. Soft approvals were only used for
a very short time and they’re not applicable anymore, so
your decision should be based on your discretion based on
the information that you’ve been given, discounting why the
soft approval was given. That’s my opinion, anyway.
I would like to say that more and more the Town
seems to be receiving applications for hillside projects
that are on very difficult, constrained sites. I worked on
the Hillside Development Standards and Guidelines. We tried
very hard to make the statement several times within the
document that not all sites can meet what could be the
maximum amount of development, that the constraints of the
site needed to be taken into consideration, that the design
of the site should be to meet the constraints of the site
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prior to having a design plan. What seems to happen is the
design plan comes first, and then the design comes and we
try to fit it on the site.
This is a constrained site, and several times and
in the material that you have, it’s been mentioned that
it’s a constrained site and this is the best design taking
that constraint into site, but the way I see it, it’s a
long, narrow site and 34% is outside the LRDA. Part of your
discretion is to say the house is too big for the site; it
does not fit the site.
That’s what the Hillside Development Standards
and Guidelines were trying to do, get people to design
their projects to actually fit the site, and to say that if
you move it farther towards the creek, or take it away from
where it’s currently located, it would be more visible
because it would be farther down, that’s a statement you
only can say if you’re still considering the same design. I
think your discretion is to decide whether the design as
proposed truly fits the site, and if not, to deny it.
VICE CHAIR KANE: Questions for the speaker? I
have one. Ms. Quintana, I value your opinion. I know you’re
an author of the Hillside Guidelines, as was I, and as was
Commissioner O'Donnell. In this particular case, did you
have the opportunity to walk the site?
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LEE QUINTANA: I went up to the site. I didn’t
walk on it other than on the access road to 25 Highland.
VICE CHAIR KANE: So you did see the location and
you did see the story poles?
LEE QUINTANA: Yes, I did, and it seemed pretty
massive to me.
VICE CHAIR KANE: As you face that house, did you
also make an observation of the house to the left?
LEE QUINTANA: No. I’m not sure which house
you’re referring to.
VICE CHAIR KANE: If I were looking at the house,
it would be the first one to the left, farther down
Highland.
LEE QUINTANA: Farther down Highland on the real
Highland, or on…
VICE CHAIR KANE: No, not up, down. Down river.
LEE QUINTANA: Actually, I have to admit that I
did not. What I was looking at was the fact that most of
the flatter land seemed to be on the opposite side of the
creek, and I was remembering in the past when this came up
before, that somebody made the offhand suggestion—I don't
know if it was offhand or not—but suggested that maybe a
really creative design that actually bridged the creek
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might be the solution to keep the house farther down the
hillside.
VICE CHAIR KANE: Thank you. I have no other
cards. Oh, I have one more card, two more cards. Are you
with the Applicant, sir? Mr. Hechtman, we’re going to wait
till your team comes back up. But someone is indicating
they have another card somewhere. Your name, sir? Smullen.
You’re part of the Appellant. Mr. Smullen, come on down.
Well, I think the Smullen he’s talking about is Mrs.
Smullen, and he’s Mr. Smullen, am I correct? All right. You
have three minutes, sir.
ROGER SMULLEN: Okay, thank you. I very much
appreciate the opportunity to speak tonight, and I also
very much appreciate your line of questioning, trying to
get at the creek and what it is, because I think that’s
really crucial to the overall plan.
My name is Roger Smullen. I’m the son of Roger
and Mercy Smullen, who live at 25 Highland, adjacent to the
site. I grew up at 25 Highland; we moved there when I was
about six years old. I have fond memories of exploring the
wilderness of 25 Highland, poison oak and all. The winter
was particularly fun. Rainstorms would bring roaring muddy
torrents running through the creek, and we had water
running through the creek all season, great for boat races
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or just running through with our dogs; it was fun times
indeed.
I’m speaking to you tonight because the project
is not being appealed simply because there’s a difference
of style or preference of taste, but because there are
multiple aspects of the project that we think don’t comply
with the rules and the law.
For example, you’ve heard that the creek running
through it was characterized as ephemeral, and thus the
Applicant was allowed to have a smaller setback. The creek
was properly designated multiple times through the life of
the property otherwise, which can be found in the Town
records, but this time it was chosen to be ephemeral to the
benefit of the Applicant. Given my personal experience with
the creek, it’s hard for me to understand how this could be
ephemeral. If this type of inconsistency is found in this
project, I find it quite troubling.
I ask that you scrutinize the project relative to
the complete picture, not just that provided by the
Applicant. There are issues relevant to the Town’s General
Plan, the Town’s Design Guidelines, and CEQA and the Water
District rules. Ignoring them sets a dangerous precedent
for the Town and creates a slippery slope. If this
applicant is allowed to get by these rules, others can say
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they should be given the same leeway, and the Town loses
control of its development.
Finally, I’m not very familiar with the appeals
process like this, but I understand sometimes the Planning
Commission asks for two sides to negotiate. I could
understand that if the appeal were related to some personal
taste, a color or material in the project. That’s not the
case here. The issues raised in the appeal are fundamental
to the Town’s and other regional entities’ laws and
guidelines. They’re to be adhered to, not negotiated away.
I expect that the Planning Commission would address these
issues highlighted with the project and see that they’re
corrected.
The Applicant certainly has a right to build on
this property. I only ask that he do so in accordance with
the laws and guidelines, and I’m counting on the Planning
Commission to make sure that happens. Again, thank you very
much for the opportunity.
VICE CHAIR KANE: Thank you. Questions for the
speaker? Well said, sir. Thank you. I have another card. I
put Mr. Sawyer in with the team. Craig Sawyer? Is he a sign
in? Come on down. I thought Sawyer was one of the names on
the Appellant. Thank you, sir.
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CRAIG SAWYER: My name is Craig Sawyer and I
reside at 63 Highland, which happens to share about 100’ of
property through that private road that’s the access road
for the Smullen’s property. I’ve lived there since 1972, so
a little over 40 years.
I’ve had occasion to see that creek’s performance
both during winter and summer, as well as a larger one that
comes down on the other side of Highland Avenue, and they
join at just about Jackson Street. My observation over the
years is—I’m certainly no biologist and not in a position
to put these things in bins as to whether they’re ephemeral
or intermittent or permanent—it’s clearly not permanent,
because the concrete channel that is conducting the
remaining flow from 19 Highland Avenue is dry right now,
and usually dries up about this time of year regardless of
whether we’ve had a dry winter or a wet winter, and the
larger creek on the other side is usually dry in another
month.
So there are significant periods of time in which
there is no flow, and that’s the only point I was trying to
make. As I said, I’m not a biologist, but I’m just an
observer of what goes on summer and winter through many
years, and it is very typical for the 19 Highland branch of
the creek to dry up by this time of year.
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VICE CHAIR KANE: Thank you. Questions for the
speaker? I have a simple one. Having said what you said,
are you in favor of or opposed to the project?
CRAIG SAWYER: Well, where I’m coming from is
that a project very similar to this one was approved in
2010 and it’s time to get on with it, and so I don’t have
any problem with that project going as it’s been described
to you. We live far enough away, of course, that about all
of the house that we will be able to see is the top of the
roof, so it’s not a large impact on us.
VICE CHAIR KANE: Thank you, Mr. Sawyer. Are
there any other members of the public who would like to
speak? Seeing none, I’m going to try again to close that
portion and move on with recalling the Applicant and the
Applicant team. You’ll have a total of five minutes to
speak to us again.
BESS WIERSEMA: I just want to revisit the impact
of this home. Not the stream, not the deer that go there
occasionally, not the birds, not any of that. We know we
all care about that. I think that there is a collection of
neighbors who have enjoyed this particular buildable lot as
their own personal park, and that’s caused the perception
that any building that goes on there, unless it’s something
that’s specifically that they want, that a very small
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building or none at all is the only acceptable solution to
this particular lot. Ed has made several, seven meetings,
with these people, or tried to make several meetings with
these people, and the majority of the meetings are
unattended or responses not given. It’s unfortunate. I
think that some of their confusion could have been cleared
up had they chosen to actually participate in meetings
where Ed made available myself and his other consultants
available so that some of these questions could be
answered.
But that’s not where we are today. Today we have
a proposal that meets the Hillside Guidelines and is
sensitive to all of the rules and regulations. I also want
to just point out what you would really see when this
project is built, so the people who are most affected and
who are concerned most about this property.
Roberts, Smullen, and then Badame from this
intersection; he’s way up here. Remember, they all sit at
much higher elevations than this project.
Here’s that private road that goes back to the
Smullens, and I’d just like to remind you, here are the
story poles and this is what you see of the house. It
snuggles into the side of the hill, and there are trees
that are not even on here yet as part of that robust
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landscape plan, so this house is going to be further
hidden.
This is the view from the Smullen’s driveway as
you exit it. You don’t even see this property from their
home. Again, the house sits down below the road that they
pass by. In addition, any future landscaping will further
protect this.
The Roberts, tiny little bit of story pole
netting here, and this big flat yard sits on a hillside,
and then with our house colors totally goes away and blends
in.
These are neighbors that are concerned about the
creek. This is a disclosure form from when 140 Foster was
sold from the Smullens, when they themselves signed and
said that it’s only a small seasonal stream, and yet, today
we’re having discussions about whether this stream is not
seasonal and more robust than it actually is. It’s
interesting.
I also want to point out that this particular
project is going to be held to standards today that none of
these neighbors, addresses and names are applied here, are
able to do. These neighbors are dumping into the stream
right now. These are all discharge pipes from their homes,
their pools, et cetera, that go into that stream. None of
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that’s going to be coming from the 19 Highland project.
We’re actually choosing to protect the stream with the way
we’re building the house and abide by the rules and
regulations of the Hillside Design Guidelines.
I think Bart has something he’d like to say.
BARTON HECHTMAN: Thank you, Bart Hechtman,
attorney for the Applicant.
Commissioner O'Donnell asked a question about
water purity, which relates really to this slide, and if I
can paraphrase it, if you don’t have any slope stability
issues on the bank could you then build right up to the
bank? The answer to that is no, because under current
regulations, and I think this is what Patrick was trying to
get at, you have to filter the water before it gets into
the creek, and the way that you filter the water is through
swales and other natural materials that the water sits in
and the soil cleans the water before it gets there. That
will be a different distance for every site, but you
couldn’t build right up to the bank, because that would
leave no place for a swale or other filtration device.
VICE CHAIR KANE: Questions for the speaker? You
have time remaining. I’m going to then call the Appellant
and the Appellant team back up.
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RICHARD GRASSETTI: Richard Grassetti, Grassetti
Environmental Consulting. I just wanted to correct few
items that were extended by the Applicant’s
representatives.
One is with respect to the verbiage that was put
on the slide with respect to the reuse of the 2010 CEQA
document. There is a process in CEQA for reusing documents
for a different project. This is a new project. This is not
the 2010 project. It’s requesting new approvals that
require a new CEQA process.
In the new CEQA process you can reuse an old
Initial Study, but you have to do it in a way specified by
CEQA, and that is to redo the checklist for the new
project. You can incorporate as much information as you
want from the old document. What’s the functional
difference of doing that compared to what’s being proposed
here? That gets circulated to the public and it gets
circulated to all the agencies; this was not circulated to
anybody since 2010. The fact that they considered the
appeal period closed is in error. This is a new project; it
has a new CEQA period.
With respect to the Wood report, the Wood report
was an essential part of the 2010 Initial Study. It is
referenced in that study; it’s part of the record of that
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study. If you are reusing that study, you are reusing the
Wood report. Staff’s attempt to say that the Wood report is
no longer valid is in error.
One other thing in the 2010 is a 2003 letter from
the State Department of Fish and Game. That was when the
previous project, previous to 2010, had requested this
(inaudible) alteration agreement. That letter says the
state doesn’t have a problem with 20’ setbacks. It does not
say 15’ setbacks; it says 20’.
I will now allow the biologist to correct a few
other items.
VICE CHAIR KANE: I have a question, and maybe
other Commissioners do. Oh, it’s still your time. My bad.
You got me interested in something.
JAKE SCHWEITZER: Hello, I just was slightly
concerned to see in some of the documentation that there’s
no indication whatsoever that there are wetland plant
species in this area, including on the flood plane. Again,
I would not characterize it as a formal wetland, but we
have juncus, and sedges, and indeed willows, on both sides
of this property, and the fact that there was 0.3 inches of
rain in May and flowing water in June tells me that this is
simply not an ephemeral stream. You don’t get that from
runoff from lawns; it wouldn’t happen.
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I also noticed that there was no mention of some
of the animals that could be potentially impacted by the
removal of these trees, including bats and migratory birds,
and so these were some (inaudible) Initial Study, so I just
wanted to bring that up.
Finally, I can’t imagine that the construction of
retaining walls is not going to affect the roots of these
trees.
And the fact that this water, there are seeps
upstream as well. This is clean water for the most part
coming down and is part of the overall water supply.
Back to the roots, it’s hard for me to imagine
that the construction of retaining walls is not going to
affect to roots of these bay trees along the immediate
channel, so I wanted to clarify that. Thank you.
VICE CHAIR KANE: Thank you. Question. Sir, we
have a question.
COMMISSIONER O'DONNELL: He’s not done.
VICE CHAIR KANE: Oh, we’re both bad.
LISA ROBERTS: Just a few comments.
The creek was moved. I don't know what the
drawings say. I observed it being moved. I can show you
where it was moved. I can show you where the cobbles and
bedrocks are gone and it’s just mud.
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The Applicant has attempted to demonize the
Appellants by saying we don’t attend meetings and that we
want a house that is different from our houses. Our houses
were approved at the time and under the rules that existed
at that time, and all we ask is the same is done here. We
have also been in all the meetings, or sufficient meetings.
That’s it.
DEDE SMULLEN: I get to conclude. I just wanted
to say I know Ed, I’ve known him since before he purchased
this property, and he’s a good builder. I know his fiancé
Cindy, and I consider them friends, so we don’t have any
ill feelings towards them. We tried to be forthright and
forthcoming and meet with them as often as possible, but we
just feel that this project is not a good project. You can
be a good builder and do good projects, and still come up
with a plan that is not good.
VICE CHAIR KANE: Thank you. That’s a good place
to leave it.
DEDE SMULLEN: We just want them to follow the
rules.
VICE CHAIR KANE: We got it. Questions for the
speakers? Now we can ask questions. Commissioner Burch.
COMMISSIONER BURCH: I have a couple different to
ask, if that’s all right.
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First, I want to ask Lisa Roberts, obviously
you’ve got the whole packet that I have too, and there is a
letter in 2010 from your husband, I guess, supporting the
project in 2010.
LISA ROBERTS: My husband is here. Would you like
to hear him speak?
COMMISSIONER BURCH: Well, since though you are
one of the Appellants, what I wanted to ask is from 2010 to
now—and I’m kind of the mindset that I wasn’t here in 2010,
so this is all new to me—what has changed in the project,
or in your viewpoint or opinions, that has clearly made you
change your thought on this?
LISA ROBERTS: First of all, that was six years
ago, so let’s see. I’m 61 now, so I was only 55 then, so
maybe I wasn’t as wise.
I certainly wasn’t aware at that time of the
number of trees that were going to be removed. I also
wasn’t aware of the impact of construction on trees. Since
that time I have lost two oak trees because of the impacts
of construction, huge, mature oak trees. It’s a heartbreak.
I’m very knowledgeable about it, and very concerned about
them.
I know that based on what I know and based on the
reports, theirs is not adequate tree protection for those
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trees. Even the trees that were identified, T-31 through T-
34, the tree plan does not in fact call for any protection
for T-31. As for the other ones, they might have fences,
but there’s T-30 and other trees that it’s not practical
for them to have fencing around them. The arborist report
does not promise that the trees will be protected by these
measures; in fact it disavows any such promises, says no
risk assessments are being made. As to T-30 and other
trees, only minimal measures, which are below the standard
of care as admitted in the reports, are going to be taken,
because practically speaking a fence can’t be put around
the trees in order to protect them from construction,
because construction needs to take place right next to the
trees. So that’s the trees.
Third, other than my age and the trees, is that I
also was not aware of the impact of the construction on the
creek.
Fourth, I believe that the design of the project
in 2010 is sufficiently different to warrant
reconsideration. That project envisioned a building that
would truly blend in to the environment. There were fewer
trees that were going to be removed. There was not a stark
metal roof on top of a long, long expanse. Rather, there
were going to be these nice, pretty tiles that would pick
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up the colors of the trees and the leaves and the natural
setting to downplay the affect of the residence on the
land.
So those are the differences.
COMMISSIONER BURCH: Okay. Thank you, that helps
clarify.
I had one other question, and I’m not completely
sure who to direct this to, so whoever could in general
speak for the group. What I’m trying to determine here is
there’s a lot of information in front of us, and you guys
have supplied a lot of information, the Applicant has…
Ultimately, what is your ideal outcome of this? What are
you hoping through this appeal process to have happen?
DEDE SMULLEN: We’ve given several items to the
Applicant. Mainly we wanted a significant reduction in the
size of the house. We wanted the house to be redesigned as
a true downhill house where you’re not bringing a driveway
down to the bottom of the house, but have access to a
garage at the top of the house. That’s just one idea. We
also talked about doing a detached garage.
We don’t want to be redesigning the house for
them, but this is such a constrained site that maxing it
out at the FAR is not appropriate.
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There are environmental constraints. We want the
Town to look at their CEQA process and follow the process,
at a minimum recirculating to the agencies, and they need
to do a better kind of reconnaissance of the information
they already have. Things that we pulled from the files,
your Staff had not seen in preparing their decision. They
had not read the Wood report. So we want the Staff to take
a better look at that CEQA process, what has happened to
date, and fix it and do the right CEQA process so that the
agencies and the public have a chance to look at CEQA and
the CEQA documents for this particular project, not for the
2010 project, which is different and smaller, those two
things.
We want them to change the style of the house so
that it fits better in the historic nature of this
neighborhood.
We would also like them to minimize any impacts
on the trees, specifically the ones that are next to the
banks.
And for the Staff to acknowledge that this is a
seasonal creek. She quoted the disclosure form from the
Smullens; it says clearly this is a seasonal creek. That’s
all we’ve ever said: This is a seasonal creek. The
disclosure form from the Smullens to the Weiners, who just
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purchased that property, says that, except for sometime
between 2008 and 2010 H.T. Harvey decided that this was not
going to be a seasonal creek anymore.
So recognition of the creek, environmental…
VICE CHAIR KANE: Thank you. Commissioner, do you
have an answer?
COMMISSIONER BURCH: Yeah, I think so. I think I
have a good idea now, so thank you.
VICE CHAIR KANE: Let me see if there are other
questions. Commissioner Hanssen.
COMMISSIONER HANSSEN: I had a question for the
Appellant’s biologist.
Thank you for your report, but I had a question.
You mentioned at the end about animals. There are clearly
different views of this situation, and you mentioned
animals, and so my question is did you see evidence that
there were bats or migratory birds in the area, or you’re
just saying because of the kind of habitat it is that they
could be present?
JAKE SCHWEITZER: The latter, the fact that you
have suitable habitat for bats, for example. There’s at
least one very large Coast Live oak that has cavities in it
that could provide nesting for bats roosting, certainly
birds. There’s an exceptional diversity of oak trees in
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that area, several different species; there’s Black oak,
Coast Live oak, Blue oak, and Valley oak, so it’s an
interesting convergence of plant communities that have
potential to support an abundance of wildlife, and I was
concerned that all of that was sort of written off in some
of the documents that I had reviewed.
COMMISSIONER HANSSEN: And I didn’t see it in the
proposed Conditions of Approval. Maybe I just didn’t get
all the pages, but that’s important to know that that’s a
possibility.
VICE CHAIR KANE: I would have a question; it’s
in the form of do you know.
The Conditions of Approval, as I mentioned
earlier, are extensive, and I’d be surprised if the bats
were not covered. But I’m surprised to see they were
covered the first time I read them; there are two or three
provisions on bats and what to do if you have bats, nesting
birds, different kind of birds, it’s really spelled out in
the Conditions of Approval. If you’re not aware of that,
you might check it out later with Staff, especially if it’s
not in there and you think it should be in there, something
could be done about that, perhaps.
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Thank you. Other questions for the speaker? I
have one. Sir, I’m not sure I got a card for you. That’s
not my question, but it’s why I don’t know your name.
RICHARD GRASSETTI: Oh, Grassetti.
VICE CHAIR KANE: You and I think Mrs. Smullen
perhaps, I don't know, both said that a CEQA report is
required. I have letters from knowledgeable persons, and I
have a Staff Report, that says the Initial Study and the
Mitigated Negative Declaration completed in 2010 are good
and substantial, that the proposed application is, “…in
substantial compliance with the CEQA review done in 2010.”
That says to me that a number of people think this is
lawful and applicable, et cetera, and significantly so, or
substantially so. What authority are you citing, or law? Or
is it opinion that you think they must have a new one?
RICHARD GRASSETTI: It’s in my letter. It’s in
the CEQA guidelines. If you look at the Initial Study
checklist, there’s a series of checkboxes. One says, “I
find less than significant impacts.” Another one says, “I
find significant impacts and mitigation.” A third or fourth
one says, “I find that this was covered by a previous CEQA
document.” You can check that box, but if you read the
guidelines, when you check that box you are essentially
reopening the CEQA process.
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What you would do, if somebody were to hire me to
do it, reading from the CEQA guidelines, and like I said,
the citation is in my letter, if you thought that nothing
needed to be changed you could recirculate that document
for review. That document has the wrong houseplants; it
doesn’t include the new biological surveys that were done
by the Applicant, by the Town, by us, later on; it doesn’t
include the current tree removal plans; it doesn’t include
the current setbacks; it doesn’t include the missing
biological information that was talked about; it doesn’t
include any of that.
So what you would do is you would update that. A
lot of it doesn’t need to be updated, a lot of it is the
same; it’s very similar. So you would update that and you
would recirculate that, and you would recirculate both to
the public review, to the State Department of Fish and
Wildlife, and to the Water Quality Control Board.
VICE CHAIR KANE: What I’m not hearing is that
there are substantial and significant changes warranting a
CEQA, which may or may not affect the project. I’m led to
believe that you and your team have had extensive meetings
with Staff, and I’m just wondering if this came up and it
was explained to you why these documents are still in
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effect, and did you share with them your opinion that they
should be updated?
RICHARD GRASSETTI: Did not have extensive
meetings with Staff. I was retained relatively recently.
VICE CHAIR KANE: No, I meant you or your team.
You, plural.
SDEDE SMULLEN: We were first told by Marni that
the project was exempt from CEQA, and so we made the case
no, it’s not exempt at the DRC.
Then we were told no, it’s not exempt, we’re
using the old Initial Study. So then we evaluated that and
found that there were so many changes to the project that
the Initial Study just couldn’t be reused again. There are
trees coming out very close to the creek. There are more
driveways within 3’ when the other one was looking at 10’
and 20’ for the house. The house is larger; it’s the
largest one when you count that 700 square foot garage. And
the driveway comes all the way down. So there were enough
changes that that CEQA process that was followed in 2010
for an entirely different house was not adequate.
Normally we would have thought well that would go
to the Planning Commission for review. It was extremely
alarming to us that the process on a controversial house
which was outside the Least Restrictive Development Area
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was being reviewed at a Staff level and in this DRC way,
because there are so many conflicts, so many controversies,
that it really warranted the review of you guys, and that’s
why we felt we had to appeal it to you guys, because it
should never have been approved at that level.
VICE CHAIR KANE: I’ve done this for six or seven
years. Commissioner O'Donnell has done it for about 100, am
I correct?
COMMISSIONER O'DONNELL: Okay.
VICE CHAIR KANE: That is standard procedure, and
it provides the Appellant, you don’t like it, you can
appeal it, but the DRC handles a lot of heavy stuff. But,
oh, did you know? I have to ask you a question. Other
questions for the speaker? Thank you very much.
I have no other cards. All the time is up. I’m
going to close the public hearing. Ms. Moseley.
MARNI MOSELEY: Staff just wanted to remind the
Commissioner of the Town’s consultant, Live Oak Associates,
if you wanted to have an additional opinion from the Town’s
consultant.
VICE CHAIR KANE: I absolutely would. Proceed.
Where are they? Do I have a card?
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PAM PETERSON: Good evening, my name is Pam
Peterson; I’m a senior project manager/ecologist with Live
Oak Associates, and I’m here to answer your questions.
VICE CHAIR KANE: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: My question really
relates to we’ve got a lot of testimony, particularly about
the proximity of some of the trees to the creek and some of
the trees to the construction, and we’ve heard testimony
that in some cases they’ll build fences around the trees
and in other cases they’ll actually excavate to see what
the root system is like and what they should do to protect
the roots.
But we’ve also just recently heard criticism that
they couldn’t possibly, apparently, protect these trees,
and I guess what I’m curious about, when one builds near
trees like this and one intends to preserve those trees,
what steps would normally be taken and how effective are
they?
PAM PETERSON: First, I’m not a certified
arborist, so I would be speaking based on my experience of
other projects where tree roots were issues. I have a
project right now where there is construction very close to
large redwood trees, for instance, and the arborist in that
case, much like the Applicant’s arborist has described, at
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a certain point they’ll use basically almost manual tools
to uncover the roots to find out and locate where those
roots are and determine the best course of action to avoid
damaging those roots. There are different methods and the
arborist could speak to that better than I could, but I
know there are methods they use to adequately protect tree
roots for retained trees.
COMMISSIONER O'DONNELL: My follow up question
would be I perhaps misunderstood your role when you said
you were not an arborist and therefore you would give me
your experience, which I appreciate, but tell me, since
you’ve been asked to appear, what is your expertise?
PAM PETERSON: I’m a plant and wetland biologist,
and I also have a lot of experience with wildlife. I’m a
general ecologist.
COMMISSIONER O'DONNELL: Okay, then let me
perhaps find out if I’m in the right area. There’s been
testimony about the nature of the area, in other words,
this thing of ephemeral versus intermittent in some sense
depends up the flora and fauna in that area, and there’s
been testimony on both sides. One person says it’s
intermittent, somebody says it’s ephemeral. Is that within
your… Have you been out there? Put it that way.
PAM PETERSON: Yes, yes.
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COMMISSIONER O'DONNELL: Were you able to
determine whether the vegetation, for want of a better
word, there was consistent with intermittent or ephemeral?
We’ve heard testimony about that.
PAM PETERSON: The vegetation actually does not
have anything to do with whether a creek is ephemeral or
intermittent, and I have to say that those descriptions
along the seasonal, ephemeral, intermittent are often used
interchangeably, but they do have very technical
descriptions that the Applicant’s biologist, Dr. Boursier,
pointed out, that the definition of these is actually part
of the U.S. Army Corps of Engineers and other technical… I
should say they’re more of a technical description. If you
want me to give you what their definition is, or I could
give you my opinion.
COMMISSIONER O'DONNELL: Well yeah, I want to
focus it, because I’ve got I think conflicting testimony.
One person says the growth in that area is consistent with…
You’re right, people use ephemeral and intermittent and
perpetual, but people were using that to show whether it
was intermittent or ephemeral, and if I understand you
correctly, you say that doesn’t show it.
PAM PETERSON: No. The vegetation may follow, in
some situations, an intermittent creek.
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First of all, I just want to say that
ephemeral/intermittent on that table for the Standards and
Guidelines for Land Use Near Streams, they’re treating
those as discrete categories, and truly, as most natural
processes, this is a continuum, and even a creek that might
be classified as ephemeral today, in an el nino year that
creek could very well look intermittent.
You also have the U.S.G.S., on the their maps
they use the term intermittent, but I’m not convinced that
their term intermittent… For instance when you have a blue
line creek on a U.S.G.S. map, they will call that an
intermittent blue line creek. There are differences in the
definitions technically, I think, between the U.S. Army
Corps or Engineers and, for instance, what the U.S.G.S.
would call…they would call any seasonal creek an
intermittent.
COMMISSIONER O'DONNELL: My fellow commissioner
has perhaps a more perceptive question he wants to ask you.
COMMISSIONER HUDES: I want to just be really to
the point. If there’s moving water in the creek today, how
could it be an ephemeral creek if it hasn’t rained for more
than a month?
PAM PETERSON: Well, as Dr. Boursier pointed out,
you’ve got quite a few outfall… I was surprised by the
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slide with the number of outfalls that neighboring
properties are putting into that creek. That can certainly
change the hydrology of a creek. We’re seeing that with
other creeks that have been seasonal and now are almost
perennial because of water dumping into the creek from… If
someone has a pool, they’re emptying the pool or even
watering their lawns, that can definitely contribute, and I
don’t have information on the size of the watershed of this
creek, and I can’t speak to that’s what’s going on.
COMMISSIONER HUDES: Do you have any evidence
that that water is nuisance or runoff water, whatever the
term is?
PAM PETERSON: No, and I just said (inaudible).
COMMISSIONER HUDES: So I could be either one?
PAM PETERSON: Yeah. But I think one of you asked
a pertinent question, and that’s why do you care if it’s
ephemeral or intermittent? We have guidelines that we’ve
been speaking about, the Standards and Guidelines for Land
Use Near Streams, and there’s nothing biological about
those standards. Those standards are more for geomorphology
standards. If you look at that document there’s nothing
about this, about setback from a riparian habitat area. You
won’t find that in there.
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This particular stream, whether it’s ephemeral or
intermittent, however you would want to decide, the fact is
that there’s no riparian habitat there. The creek is for
the most part almost completely barren within the channel.
There is not the typical vegetation that would be
associated with a riparian area. We’ve got upland trees.
Oaks, bays, those are upland trees, they’re not riparian
trees. We don’t have the components of a riparian area that
would make this important necessarily biologically.
Riparian corridors, the reason they are
considered sensitive when you do have riparian vegetation
is because number one, they serve as an actual movement
corridor; they can serve that way if they connect open
lands, upstream and downstream, and there’s cover. So dense
riparian vegetation, that makes a riparian area to be
biologically more important.
Also, structural diversity of the vegetation.
We’ve got basically an oak/bay woodland with a non-native
understory, very little shrub understory, no vine
understory unless you call vinca, which is an invasive non-
native, a vine. So you’re lacking the structural diversity
that would make this an important habitat, for instance,
for foraging for a lot of different species, so you’re not
going to get a large diversity of species on this site,
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you’re not going to have species using that riparian
corridor as a movement corridor. In fact, it’s culverted,
as we know, underground downstream from the site.
Do wildlife use this area? Yes, they use it for a
seasonal source of drinking water for sure, and we’ve heard
that one of think, Commissioner Kane, you saw deer drinking
from the stream. They’ll continue to do that. The deer will
continue to come through that area even after that home is
built. There will still be a seasonal source of drinking
water.
It will be a clean source of drinking water as
far as runoff from this site, because the Applicant has
instituted five bioswales to filter water before it goes
into the creek, and we’ve already seen that many of the
neighbors don’t have that, and that’s okay, because as it
was pointed out, the standards are different now for that,
and so of course the way those properties were constructed
is going to be different than this property. So I feel that
it’s not necessarily a biologically significant issue, this
setback.
VICE CHAIR KANE: Thank you. Commissioner Hudes
has another question.
COMMISSIONER HUDES: Just a quick follow up. We
had testimony from another biologist that there were willow
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trees in the vicinity. Did you look for that, and is that
something significant that you look for to indicate that
it’s a different kind of characteristic?
PAM PETERSON: Willow trees can occur in
wetlands. Most of them are what are called a facultative
wetland species in our area, which means that they can
occur outside a wetlands as well, so they can be a
vegetative indicator, but the U.S. Army Corps of Engineers
has a very stringent protocol for determining if something
is a wetland, and it has more to do with soils, hydrology,
and vegetation have to be there together.
No doubt there could be areas where water
collects upstream. I was focused on this site and trying to
determine biologically for one thing what a biologically
suitable would be, whether the project would conform to
something that would have a less than significant impact on
the creek.
VICE CHAIR KANE: Thank you. Do we have other
questions? Thank you for being here tonight. I feel like I
should have been taking notes to get ready for the quiz.
PAM PETERSON: Well, my husband’s got the
Warriors game, or he was, so he’s having a little more fun
than me.
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VICE CHAIR KANE: Well, we don’t want to talk
about that. I have no other cards, no other speakers. I am
going to close the public hearing. I’m going to look to my
fellow commissioners for a question, comment, or a motion.
Commissioner O'Donnell.
COMMISSIONER O'DONNELL: I have some questions of
Staff. One of the discussions of the CEQA compliance
related to the reuse of the, I guess, fairly… Well, I don’t
want to characterize it, but the older environmental
documents, and the testimony was that in using the
documents you would fill out the form, and the testimony
was that one of the categories which would probably apply
here is we intend to use basically the former
documentation, and that that would be recirculated, and
that that did not occur here.
So the question, I guess, is one, is that your
understanding of the law, and two, if it is, was it
recalculated?
ROBERT SCHULTZ: That is not my understanding of
the law. The CEQA and the public resource code and the
implementing guidelines, I think we all agree on what that
principle states, and that’s whether they allow for the use
of a previous environmental document unless it is
determined that there are substantial changes to the
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proposed project or there is new information. Those are
things, as you remember, that we looked for the North 40,
and that’s what you look at here. That’s where the
disagreement arises. They believe there are substantial
changes that require that to be redone, and Staff does not,
but there’s no requirement that the…
COMMISSIONER O'DONNELL: Okay, so you’re saying
even if Staff believes it, which it did, that this was
substantially the same, there is no requirement, because of
the passage of time, for recirculation?
ROBERT SCHULTZ: Correct.
COMMISSIONER O'DONNELL: That’s fine. I can ask
some other questions later.
VICE CHAIR KANE: Commissioner Hanssen.
COMMISSIONER HANSSEN: I had a question for
Staff. It was about the Appellant’s statement about
compliance with the Hillside Design Guidelines, and my
question was getting around the retaining wall. It was even
on the architect’s slide about 650’ of retaining wall. Is
there a scenario with a different design where there wasn’t
going to be a need for this much retaining wall? Because
clearly that seems like it’s a lot compared to what the
Hillside Design Guidelines would suggest.
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MARNI MOSELEY: A lot of those retaining walls
are actually 2’ and 3’, or even just as little as 18”.
Anytime you’re grading you’re going to create a retaining
wall, so any time like the driveway, a lot of that is
really 18” or less of retaining wall that they were
including in that linear calculation.
JOEL PAULSON: I’d also add that we can’t
speculate on is there a project that could create less
retaining wall? I’m sure there is. What’s before you
tonight is the Applicant’s proposal on appeal, so if you
think it’s inappropriate or doesn’t conform to the
guidelines, then that’s reasonable.
COMMISSIONER HANSSEN: I was more looking for
your opinion. Did that trouble you when you were reviewing
the project?
MARNI MOSELEY: We looked at it, and the wall
heights had drastically reduced from the 2010 version.
COMMISSIONER HANSSEN: So in comparison to the
project that had the soft approval in 2010, it looked
better than that?
MARNI MOSELEY: Yeah, and what they’re
referencing is that Staff used to give a recommendation of
soft or strong of either approval or denial. The Planning
Commission approved the project unanimously.
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VICE CHAIR KANE: Other questions? Commissioner
Hudes.
COMMISSIONER HUDES: For the Town Attorney. Is
there anything binding about the approval by the Planning
Commission in 2010?
ROBERT SCHULTZ: No, absolutely not.
VICE CHAIR KANE: No, this is a new project.
ROBERT SCHULTZ: Yeah. The only reason, to me,
why it’s been brought up primarily is for the CEQA issue.
VICE CHAIR KANE: Commissioner O'Donnell.
COMMISSIONER O'DONNELL: This is not a question
of Staff; this is a comment to my fellow commissioners.
One of my concerns about this project is simply
the size. We have a very difficult piece of property there,
and that’s illustrated by the fact that it spills over the
LRDA, and I think there are reasons for that and I’m not
quarreling with the reasons, but the nagging thought, and
I’m throwing it out because I’m encouraging some comments
from my fellow commissioners, is that this is about as big
as you could make it, I think, and there’s no reason why it
has to be as big as you can make it. So then the question
becomes well, but simply reducing to reduce isn’t a good
idea either, but I guess I’m concerned that perhaps was
this substantially smaller it might have some benefits both
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in the LRDA, and just the size and the bulk of this
project.
The work that’s done on this project is
impressive. The design is impressive. I don’t have a
problem with the design and insofar as the use of materials
and that, but I’m still troubled simply by the size, and so
I’m throwing that out because I would like to see what my
fellow commissioners think about that before we have to
make a decision.
VICE CHAIR KANE: Reactions? Commissioner Hudes.
COMMISSIONER HUDES: I was delighted by having
the opportunity to actually spend a fair amount of time on
that absolutely beautiful property, and I understand why
the neighbors will be very sorry to see that beautiful
setting change in any way, but I also believe that the
Applicant has the right to build something on there.
Given the way that stream looks to me as a very
natural setting, I think that it’s very important to retain
that and to back the house away from the stream, make it
smaller, substantially smaller, and that would be more
fitting with a property that is at the bottom of really a
hollow that’s been created by erosion in the stream.
I also think that there’s not a lot of certainty
on some of these things. The stream moves over time, and
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the stream sometimes is dry and sometimes it’s wet for a
period of time, and sometimes there’s a lot of water. I
think we need to come down on the side of protecting the
environment that is there, considering that there will be
some changes to that environment, it’s not made out of
stone, and for that reason I think it’s really important to
recognize that there was some wisdom in the consideration
of this as an intermittent stream, and therefore to give it
substantially more setback than is in the current
application.
So for me, the things that would make this much
more appropriate for this particular site is something that
fits with the LRDA, we created that for a reason, that has
setback from the creek of the range of 20’ to 25’, we’ve
heard a testimony to that; and something that recognizes
that this is being placed in a hollow that’s been created
by a stream. It’s a very beautiful environment.
VICE CHAIR KANE: If that was a motion, I
wouldn’t support it, because you said a lot of good things,
but one of the things you said was reduce the project to
the LRDA, and that cuts off about 34% that the Applicant is
after, and Staff has given good reason for the LRDA
exception. So I wouldn’t set a finite definition, I hate
finite definitions, but to say that it has to be on the
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LRDA is… For it to be otherwise is not a violation of the
hillsides per se.
COMMISSIONER HUDES: Yeah, but I do think that
part of the rationale that the Staff presented in terms of
why it has to exceed LRDA…
VICE CHAIR KANE: Or why it could.
COMMISSIONER HUDES: Yeah, is to retain that same
size structure.
VICE CHAIR KANE: Yeah.
COMMISSIONER HUDES: I think that if the
structure were substantially smaller it potentially could
fit or be much closer to LRDA, so I didn’t interpret
Staff’s saying that LRDA must be exceeded in this case.
VICE CHAIR KANE: Good.
COMMISSIONER HUDES: I was also very attentive to
the comments that were made by the public concerning the
purpose of the Hillside Guidelines and the fact that there
is flexibility, that you don’t have to allow building to
the maximum FAR, and I think this is a perfect case to
really take that seriously.
VICE CHAIR KANE: Commissioner Hanssen, do you
have any thoughts?
COMMISSIONER HANSSEN: I would have said
everything that Commissioner Hudes has said if I’d said it
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first, but as I was thinking through this, we’ve seen some
other scenarios like this. Clearly this idea of building to
maximum FAR, this particular proposal is 20’ within the
maximum allowed floor area ratio and this clearly isn’t a
lot that you would want to do that, because of so many
constraints.
One of the biggest ones is the stream in addition
to the slope, and so I do think, as Commissioner Hudes
said, that I would be looking for something that was
substantially less in size so that it could fit in the
LRDA, and that’s because of the nature of the lot.
Now, having said that, it may be in the goal of
protecting the stream that maybe the LRDA can’t always be
100% applied, but I think a starting point would be to
bring down the size so that it could fit in the LRDA, and
use the additional constraint of protecting the stream and
having a greater setback, because I do think there was
enough evidence that this is an intermittent stream and
that would justify a greater setback to protect it.
VICE CHAIR KANE: So I’m going to ask, cutting to
the chase, as usual we have similar kinds of outcomes. Up,
down, yes or no, or send it back and reexamine. Could I
have a consensus of whether you’d want a binary decision or
see if the Applicant is interested in working further?
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COMMISSIONER O'DONNELL: Could I just make this
one comment? I’m troubled by the CEQA application, and I
just have this concern that were this simply to be adopted
and become final, CEQA, I have trouble using the old
environmental document with a project which arguably is far
enough away from the original project to at least have a
credible argument that it isn’t the same, and the problem
with CEQA, as we know, is if you can make a reasonable
argument that something should have been done that wasn’t
done… And this is an unusual case, you don’t normally have
an EIR this old that is just used on a building that is not
the same, so I would be prepared to go along with Staff at
this level.
The reason I say that, were we to decide tonight
to deny the project, and that could be appealed and
whatever, we might want to at least indicate… Well, I would
indicate for the record at least, that I have concerns
about the application of CEQA in this matter. That would be
one, for the protection of the Town, but two, also for the
protection of the Applicant, because if you leave something
dangling out there, it’s an invitation to litigation, and
you don’t want to lose that litigation, because you pay the
attorney’s fees, right? Both sides.
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So, I mention that and I just throw that out for
that. The question normally would be it would be reasonable
to send it back to the Applicant and say we need a smaller
project without telling them exactly what that means. On
the other hand, I’m very impressed that the Applicant has
done so much work and it’s so well prepared, that maybe the
best thing for them is to deny the project, allow them to
appeal and get a different view of this. I don't know what
to do, but that’s my thought process at the moment.
VICE CHAIR KANE: Just on the CEQA point, its
viability or the proper use of something that’s six years
old, does Counsel or Staff want to comment, not a debate,
but an alternative view of why the CEQA document is okay?
ROBERT SCHULTZ: I think we’ve already stated the
reasons. We didn’t feel there were substantial changes to
the project or to the new facts, but that’s certainly
within the Planning Commission’s authority to say they
disagree with that and that part of their denial can be
based on the fact that CEQA needs to be redone, or even if
it’s continued with recommendations to the Applicant to do
the project, it could be the recommendation would be that
it would come back with further CEQA analysis.
VICE CHAIR KANE: I’d probably go with Staff’s
recommendation on the CEQA, but Commissioner O'Donnell,
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that’s good food for thought. Do we have any ideas on where
to go from here? Commissioner Hudes.
COMMISSIONER HUDES: I wanted to add one more
thing which really troubled me about this, and being new to
the Planning Commission I don’t understand all the
processes, but it looks to me like this could have been
approved without the Planning Commission ever seeing it.
VICE CHAIR KANE: It was approved. We’re only
here because it was appealed.
COMMISSIONER HUDES: Because there was an appeal,
right, and so I think for the reasons that have been raised
about the CEQA issue, the LRDA, and the controversy over
the setback from the stream and the characterization, which
I find really not credible at all to consider that this is
an ephemeral stream, that I would really encourage Staff to
consider these things in their participation in DRC, so
that these kinds of matters do come to the Planning
Commission for consideration. I am very concerned that this
could have gotten through without any consideration.
VICE CHAIR KANE: Good thought, very good
thought. Back to the immediate case. Do we go, no go, or
send it back?
COMMISSIONER O'DONNELL: I can think of two
things that we can do, perhaps there are more, but one
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thing which I would be included to do is to send it back to
the Applicant to give them an opportunity. Now, the
Applicant may not want to take that opportunity.
VICE CHAIR KANE: We often ask if they’re
interested.
COMMISSIONER O'DONNELL: Right, that’s true, we
could find out whether the Applicant is interested in that.
That always helps me, because I don’t want to prevent them
from having a speedier remedy.
On the other hand, my biggest problem with this
project isn’t CEQA, it isn’t the other things, it’s the
sheer size of the project on a very, very difficult lot,
and it looks like the Applicant, which I don’t blame the
Applicant, is trying to maximize the size of the lot which
cries out for non-maximization. If everything else were
perfect I’d still think it was too big, so my inclination
would be to send it back to you, but you may prefer just to
have it appealed, so we can find out.
VICE CHAIR KANE: We’re going to find out. I’m
going to reopen the public hearing for that specific one
question, and I would ask the Applicant or the
representatives of the Applicant to come to the podium. So
we’re seeking one answer, and that is would you be willing
to reconsider this, or would you like a vote tonight?
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BARTON HECHTMAN: Yes.
VICE CHAIR KANE: He’s a lawyer, yeah. Tom liked
that.
BARTON HECHTMAN: We are willing to reconsider,
and that would be our preferred course. You’ve given us
some guidance in your comments already. We’d encourage you,
if you have more guidance.
VICE CHAIR KANE: We’re done. I have my answer.
Appreciate it. Thank you. Closing the public hearing.
COMMISSIONER O'DONNELL: I’m going to make a
motion if the Chair would entertain that.
VICE CHAIR KANE: Yes, please do.
COMMISSIONER O'DONNELL: The motion would be that
we continue this matter to a date certain for the
consideration by the Applicant of our remarks, which as I
understand it would include reducing the size of the
project, giving serious consideration to the setback from
the creek, and I think some of us may disagree with that
after hearing the testimony, but I think that’s worth
pursuing, particularly if it’s made smaller, then the
setback from the creek would be easier, I think.
So in any event, that we continue it to a date
certain suggested by Staff to allow the Applicant to try to
deal with the multiple issues we’ve raised, including their
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input on the CEQA compliance, because this is also their
opportunity if they think something should be done further
on CEQA, to do it, because if they wait and then find out
later that they get sued over that, they should consider
that now. So that’s the motion.
VICE CHAIR KANE: Is there a second? Commissioner
Hanssen.
COMMISSIONER HANSSEN: I’ll second the motion.
VICE CHAIR KANE: All right, discussion, if any?
You feel we’ve done an adequate job of generally, not
specifically, but generally, listing the concerns?
COMMISSIONER BURCH: I only had one comment, not
really anything to add to the motion, but I’m going to
strongly encourage that the neighbors that came today
actively reach out to the Applicant to discuss any changes
or anything that you think may be appropriate. This is your
opportunity, and we as a Commission really weigh that
heavily on how much participation there is between the
neighbors and the applicants to make sure that what is
being accomplished is fair to all.
(To audience member.) You can’t. You can’t, the
public portion is closed. We’ll open it up in a minute for
a date certain.
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VICE CHAIR KANE: Just a minute. Commissioner
Kendra is a former chair and a good one, so you running
this or what are we doing?
COMMISSIONER BURCH: I’m sorry.
VICE CHAIR KANE: That’s okay. You’re right.
COMMISSIONER BURCH: Well, I was just… I think
that’s appropriate.
VICE CHAIR KANE: All right, good. Hang on a sec.
Commissioner Hudes.
COMMISSIONER HUDES: Just with regard to my
perspective on reducing the size, the bulk and mass of
this, I really think that the Applicant should seriously
look at the Hillside Guidelines and the LRDA and use that
as a way to help guide them to something that is more
approvable in terms of the Hillside Guidelines that we have
to work with.
VICE CHAIR KANE: Thank you. I would add that
comparisons to other developments possibly done with
different rules really don’t help us, and the back and
forth, the passion we’ll call it, that doesn’t help us
either. We’d just like to find a nice house that fits. And
for the Appellants, what Commissioner Burch was saying is
don’t skip any more meetings. Be involved in the process
and see if we can come up with a suitable compromise.
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Commissioner O'Donnell, was that a motion? If it
was, I’ll second it.
COMMISSIONER O'DONNELL: It was a motion, and
there was a second.
VICE CHAIR KANE: Oh.
COMMISSIONER O'DONNELL: But I just want to say I
know that some of this sounds ephemeral…
VICE CHAIR KANE: You’re showing your ephemeral
side.
COMMISSIONER O'DONNELL: …but I do think there
were some things that were fairly crystal clear, so I think
there are probably four or five items to review in your own
mind. The other stuff I realize might be hard to pin down,
but I do feel that we’ve been fairly clear tonight. There
are some really important matters, so I could see some
frustration, and maybe I’m responding to non-frustration,
but I just throw that out to let you know that there are
four or five key items that I think that if I were in your
shoes I would address, and one of them is CEQA. CEQA may be
fine and nothing bad may happen, but I’m just inviting you
to at least take a hard look at it and see if you think
anything can be done, or should be done, about CEQA now.
You may say no, and that’s fine.
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VICE CHAIR KANE: The Applicant started to non-
verbally tell me… Were you going to change your mind? I’m
done, all right.
Does Staff have a sense of where we are with this
motion?
JOEL PAULSON: Yes.
VICE CHAIR KANE: And can give guidance? We need
a date certain.
JOEL PAULSON: You do need a date certain. The
absolute soonest would be July 27th. That still may be too
soon. If it is, we can always continue it from that
meeting, but that would be the absolute soonest that it
could go on an agenda.
VICE CHAIR KANE: Somehow I feel that date is
appropriate. It just came to me. So the motion is we meet
on July 27th to further look at any revisions. That it, I’m
going to call the question. All in favor, say aye. Passes
unanimously.
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