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Attachment 8LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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? LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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, LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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, LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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) LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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; LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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? LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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’. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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? LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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? LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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? LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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? LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 96 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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? LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 106 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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, LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 108 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 109 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 112 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 113 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 116 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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? LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 118 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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, LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 119 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 120 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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? LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 121 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 123 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 124 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. LOS GATOS PLANNING COMMISSION 6/8/2016 Item #4, 19 Highland Avenue 125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. °