Staff Report
PREPARED BY: SALLY ZARNOWITZ
Planning Manager
Reviewed by: Town Manager, Town Attorney, CDD Director and Finance Director
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 12/20/2016
ITEM NO: 11
DATE: December 15, 2016
TO: MAYOR AND TOWN COUNCIL
FROM: LAUREL PREVETTI, TOWN MANAGER
SUBJECT: ARCHITECTURE AND SITE APPLICATION S-15-077.
PROJECT LOCATION: 19 HIGHLAND AVENUE.
PROPERTY OWNER: ED PEARSON
APPELLANT: BADAME, ROBERTS, AND SMULLEN FAMILIES.
CONSIDER AN APPEAL OF A PLANNING COMMISSION DECISION
APPROVING A REQUEST TO CONSTRUCT A SINGLE-FAMILY RESIDENCE ON
PROPERTY ZONED HR-2 1/2. APN 529-37-033.
RECOMMENDATION:
Adopt a resolution denying an appeal of a Planning Commission decision approving
Architecture and Site application S-15-077 (Attachment 26).
BACKGROUND:
The 1.04-acre site is a sloping narrow undeveloped parcel, located along a tributary of Los
Gatos Creek, and bordered by a driveway serving the neighboring property at 25 Highland
Avenue. The property is densely wooded with Coast Live Oak, Valley Oak, and California Bay
trees. The site is surrounded by single-family homes, with the driveway to the neighboring
property at 25 Highland Avenue forming the southern property line.
Previous applications for Architecture and Site approval were considered by the Planning
Commission in 1998 and 2001 and denied due to concerns with the mass, scale, and location of
the proposed projects. The Town Council upheld the decisions of the Planning Commission on
appeal, and directed the previous applicant to look to the property to create a design rather
than imposing a design on the site (Attachment 4, Exhibit 6).
Subsequently, the previous applicant submitted a new application in 2003. The previous
applicant worked closely with Town staff to resolve the concerns of the Commission and the
Council, and the Commission approved the previous project 6-0 on December 8, 2010
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BACKGROUND (Continued):
(Attachment 4, Exhibit 7). The Town approved a time extension in 2012 after which time the
previous property owner passed away and the property was placed on the market.
The current applicant and property owner purchased the property in 2015 and submitted a new
application for the currently proposed project (project) derived from the previously approved
project plans. The application was found to be in substantial compliance with the Initial Study
and Mitigated Negative Declaration (MND), and subject to the Mitigation Monitoring and
Reporting Program adopted for the previous application approved in 2010. The application to
construct a 4,677-square foot single-family house was approved by the Development Review
Committee (DRC) on March 29, 2016 (Attachment 4, Exhibit 12).
The DRC decision was appealed to the Planning Commission on April 8, 2016, based on
concerns about the environmental review process, issues rela ted to compliance with the
Town’s HDS&G, and the Town’s sustainability element of the General Plan (Attachment 4,
Exhibit 13). On May 11, 2016, the Planning Commission continued the application to June 8,
2016, to allow staff, the appellants, and the applicant more time to prepare materials
(Attachment 4, Exhibit 14).
On June 8, 2016, the Planning Commission considered the appeal of the Architecture and Site
application. The Commission opened the public hearing, asked questions of the appellants and
applicant, and continued the matter to July 27, 2016 to allow the applicant to work with the
neighbors and consider design modifications to reduce the size, bulk, and mass of the house;
increase the setback from the tributary to 20 feet; reduce the extent of retaining walls; and
align the foundation footprint more closely with the Least Restrictive Development Area
(LRDA). The verbatim minutes are included as Attachment 8. Based on the comments at the
June 8, 2016 meeting, the applicant submitted project plans on July 15, 2016, which included
the following revisions:
Reducing the square footage by approximately 429 square feet;
Increasing the setback from the tributary to 20 feet;
Reducing the extent of retaining walls from 653 linear feet to 210 linear feet; and
Reducing the foundation footprint by approximately 620 square feet.
On July 27, 2016 staff and the applicant requested a continuance to August 24, 2016 in order to
review the revised project and prepare an Addendum to the adopted MND. On August 24,
2016, the Commission continued the application to September 14, 2016 due to the lateness of
the hour. On September 14, 2016, the Commission continued the application to September
28, 2016 to accommodate the various schedules of the appellants. On September 28, 2016, the
Commission continued the application to October 26, 2016 to allow Town staff time to review
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BACKGROUND (Continued):
the September 19, 2016 Supreme Court decision in, Friends of the College of San Mateo
Gardens, cited in an appellant’s letter of September 22, 2016 (Attachment 14, Exhibit 42).
On October 26, 2016, the Commission considered the revised application (Attachment 21). The
verbatim minutes are included as Attachment 19.
After holding a public hearing and asking questions of the appellants and the applicant, the
Planning Commission denied the appeal, and approved the revised application on October 26, 2016
with a 5-0 vote (Commissioner Badame recused). The Commission determined that the revised
project; met the direction provided at the June 8, 2016 meeting; was in compliance with CEQA, the
Hillside Development Standards and Guidelines, and the Hillside Specific Plan; and met all of the
considerations in review of an Architecture and Site application (Attachment 4, Exhibit 3).
On November 7, 2016, the decision of the Planning Commission was appealed to the Town
Council by the appellants, Badame, Roberts and Smullen families (Attachment 20).
Pursuant to Town Code Section 29.20.280, the appeal must be heard within 56 days of the
Planning Commission hearing and in this case, by December 21, 2016. The Council must at least
open the public hearing for the item, but may continue the matter to a date certain if the
Council does not complete its work on the item.
If the Council determines that the appeal should be granted and that the Planning
Commission's decision should be reversed or modified, the Council must make one or more of
the following findings, in accordance with Town Code Section 29.20.300:
1. There was error or abuse of discretion on the part of the Planning Commission; or
2. New information was submitted to the Council during the appeal process that was
not readily and reasonably available for submission to the Commission; or
3. An issue or policy over which the Commission did not have discretion to modify or
address, but which is vested in the Council for modification or decision.
To support the finding(s), the Council must also identify specific facts for incorporatio n into the
resolution (Attachment 25 if remanding to the Planning Commission or Attachment 26 if
approving the application).
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DISCUSSION:
A. Project Summary
Architecture and Site Application
The proposed residence would have three split levels with the garage set to the lowest
grade, stepping up to two floors of living space. The first floor of living space exits at grade
to a patio at the rear of the residence. The residence would have a modern/contemporary
architectural style with sloping roof forms. The proposed materials include: cedar siding
and smooth finish stucco with a standing seam metal roof. The Town’s Architectural
Consultant reviewed the plans and visited the site (Attachment 4, Exhibit 8). The Consultant
recommended using a single roofing material rather than a mix of comp and metal and
extending the proposed landscaping between the residence and the existing driveway. The
applicant included these changes in the development plans approved by the Development
Review Committee (Attachment 4, Exhibit 18). Story poles were placed on the site prior to
the Development Review Committee meeting, and amended to reflect the footprint and
ridge height, to aid in the review of the project and revised project.
The proposed project complies with the setback and height requirements of the HR-2½
zone. The project complies with the HDS&G inclusive of grading and drainage criteria,
allowable floor area, height, and architectural and landscape design. The project requests
deviation from the standard in regards to development on slopes greater than 30 percent,
consistent with the approved placement of the residence from 2010 . General data for the
revised project is included in Attachment 10, Exhibit 28.
B. Appeal to the Town Council
The decision of the Planning Commission was appealed on November 7, 2016 (Attachment
20). The applicant provided a response to the appeal in Attachment 22. The reasons for
the appeal are listed below followed by staff comments in italic font. The reasons are not
identified in the appeal as individually associated with the required findings from Town
Code Section 29.20.300, discussed above.
1) The Planning Commission (the “Commission”) approved a project that involves
numerous significant violations of the law, including but not limited to (a) violations of
the Town Code, the Town’s General Plan, the Town’s Hillside Development Standards
and Guidelines (“HDS&G”), the Guidelines for Land Use Near Streams (the “Stream
Guidelines”), the California Environmental Quality Act (“CEQA”), and the Guidelines to
CEQA (the “CEQA Guidelines”).
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DISCUSSION (Continued):
The proposed project is in compliance with Chapter 29 of the Town Code, the Zoning
Ordinance. The proposed floor area of 4,248 square feet is within the allowable floor
area of 5,100 square feet for the property and the proposed residence complies with the
setback and height requirements of the HR-2½ zone. While the Town Code allows a
maximum height of 30 feet in the HR zone, the HDS&G are more restrictive with a 25-
foot height maximum. The maximum height of the proposed home is 25 feet.
The Town of Los Gatos 2020 General Plan, HDS&G, and Stream Guidelines are policy
documents, requiring goals and policies to be considered and balanced in the
development review process.
Specifically, the current proposal is in compliance with the Town of Los Gatos 2020
General Plan, including the Low Density Residential Land Use Designation for the site
and the Community Design Element. The effective visible mass is reduced through
following topographical contours, and limiting the height and mass of wall planes.
While the home would have three levels, it would step-up the hillside so that it would be
two stories at any single wall plane.
The proposed project is in compliance with the HDS&G. While the HDS&G define
exceptions for building height and maximum floor area as major exceptions, any
deviation from the standards may be granted after carefully considering the constraints
of a particular site. The proposed project requested consideration of development on
slopes greater than 30 percent. The Commission found that the request was reasonable,
given the goal of reducing the visible mass of the house on the constrained site.
The proposed project is in conformance with the Stream Guidelines. The home location
has been shifted to the south to maintain a minimum setback from the top of bank of 20
feet, as addressed further in the response to reason 5 below.
An Initial Study and Mitigated Negative Declaration (MND) were circulated based on the
requirements of the California Environmental Quality Act (CEQA) in 2010. No comments
were received on the document and the Planning Commission adopted the MND and the
Mitigation Monitoring and Reporting Program when the project was approved on
December 8, 2010.
Government Code Section 15164 allows a lead agency to prepare an Addendum to an
adopted MND or Environmental Impact Report when changes to a project do not require
preparation of a new MND or EIR (Government Code Section 15162). The current
application includes minor modifications to the original approved project. An Addendum
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DISCUSSION (Continued):
to the adopted MND (Attachment 10, Exhibit 45) has been prepared, including an
explanation of why a subsequent MND is not required and why the MND is relevant to
the current proposal.
In addition, two very recent cases have interpreted when the Town can use an
addendum to an adopted MND.
In September 2016 the Supreme Court of California decided in a case entitled Friends of the
College of San Mateo Gardens v. San Mateo Community College District, that an Addendum
can appropriately be used to consider modifications to a previously approved Negative
Declaration or Environmental Impact Report (EIR). The Court held that "for the purposes of
determining whether an agency may proceed under CEQA's subsequent review provisions, the
question is not whether an agency's proposed changes render a project new in an abstract
sense." Instead, the Court emphasized that "[a] decision to proceed under CEQA's subsequent
review provisions must thus necessarily rest on a determination – whether implicit or explicit –
that the original environmental document retains some informational value." "But whether
an initial environmental document remains relevant despite changed plans or circumstances –
like the question whether an initial environmental document requires major revisions due to
changed plans or circumstances – is a predominantly factual question. It is thus a question for
the agency to answer in the first instance, drawing on its particular expertise." The Court
further expressed that "we expect occasions when a court finds no substantial evidence to
support an agency's decision to proceed under CEQA's subsequent review provisions will be
rare, and rightly so; "a court should tread with extraordinary care" before reversing an
agency's determination, whether implicit or explicit, that its initial environmental document
retains some relevance to the decision-making process."
In November 2016, the California Supreme Court issued another ruling in Coastal Hills
Rural Preservation v. County of Sonoma in light of Friends of the College of San Mateo
Gardens case. The Court in this case emphasized that, while Negative Declarations (like
EIRs) are entitled to a presumption of finality, such that proposed project changes are
not an occasion to reopen the original environmental review of the project, “the inquiry
prescribed by the Guidelines is not whether the environmental effects of the modification
are significant, but whether the modification requires major revisions to the Negative
Declaration because of the involvement of new, potentially significant environmental
effects that had not previously been considered in connection with the earlier
environmental study.” The Supreme Court’s Opinion further states that “when a project
is initially approved by Negative Declaration, a “major revision” to the initial Negative
Declaration will necessarily be required if the proposed modification may produce a
significant environmental effect that had not previously been studied. (CEQA Guidelines,
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DISCUSSION (Continued):
§ 15162.) Indeed, if the project modification introduces previously unstudied and
potentially significant environmental effects that cannot be avoided or mitigated
through further revisions to the project plans, then the appropriate environmental
document would no longer be a Negative Declaration at all, but an EIR.” The Guidelines
provision cited in the Court’s Order defines “substantial evidence” as “enough relevant
information and reasonable inferences from this information that a fair argument can be
made to support a conclusion, even though other conclusions might also be reached.”
(Guidelines, § 15384(a).)
Pursuant to these two very recent Supreme Court actions, where the initial CEQA
document was a Negative Declaration, the “fair argument” standard should be applied to
the review of Mitigated Negative Declarations (MNDs), with the important qualification
that the scope of review will be limited to the potential incremental effects of the project
modification. What this now means is if there is any substantial evidence [in the record]
that the changes to the project might have a significant impact not previously considered
in connection with the project as originally approved, that a subsequent EIR (of some type)
will be required. The Town’s analysis applies only to the incremental environmental
impacts of project changes when compared to a “baseline” assuming build-out of the
original project, as opposed to reopening previously analyzed (and presumptively
insignificant and/or mitigated) impacts attributable to the original project.
It is Staff’s opinion that the original environmental document (MND) retains
informational value and relevance to the revised project and that the revised project
modifications introduced are minor and any potentially significant environmental effects
were previously studied and have been avoided or mitigated through the MND and
Addendum.
2) The Commission failed to grant Appellants’ appeal from the approval of the project by
the Design Review Committee (the “DRC”) despite the clear merit of the Appeal as to
the plans approved by the DRC (Applicant’s “Initial Plans”). In lieu of granting the
Appeal, either for Applicant’s appeal to the Town Council or for a renewed application
with different plans to the DRC, it gave Applicant the option of revising his plans.
The appeal of the DRC decision before the Planning Commission was a de novo hearing.
The Commission had the purview to review the project as approved by the DRC for any
land use and/or design issues. In weighing the merits of the appeal, the Commission had
the options of: granting the appeal and remanding the application to the DRC with
direction for revisions; modifying the conditions as deemed appropriate; continuing the
application to a date certain with direction for desired revisions; or granting the appeal
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DISCUSSION (Continued):
and denying the Architecture and Site application. At the June 8, 2016 Planning
Commission hearing, the Commission continued the application to a date certain with
direction for desired revisions to address several of the appellants’ concerns. With the
requested revisions, the Commission approved the project in October.
3) The Commission gave Applicant clear instructions on what changes would be required
to make his project approvable, but, after Applicant prepared revised plans (“Revised
Plans”), the Commission failed to follow the yardstick for approval that it had set.
The Commission provided direction for desired revisions to address appellants’ concerns
regarding the size, bulk, and mass of the house; the setback from the tributary; the
extent of retaining walls; and the alignment of the foundation footprint with the LRDA.
The project was revised in July to: reduce the square footage by approximately 429
square feet; increase the setback from the tributary to 20 feet; reduce the extent of
retaining walls from 653 linear feet to 210 linear feet; and reduce the foundation
footprint by approximately 620 square feet. In October, the Commission specifically
reviewed the revisions to determine whether they met the direction provided. The
Commission found that the revised project was an appropriate development proposal
given the constraints of the hillside site.
4) The Commission’s original conclusions that size was the biggest problem with the
project, that Applicant was trying to maximize size on a lot that calls out for non-
maximization, that the natural setting of the site needed to be retained, and that the
project needed to be made substantially smaller to be approvable were correct. Its
subsequent acceptance of a single-digit percentage size reduction (8.45%) was not.
While the HDS&G do state that not all lots can accommodate the maximum permitted
floor area, the revised project complies with the requirements of the HDS&G. The
previously approved project from 2010 was for a 4,037-square foot home. The project
approved by the DRC was for a 4,677-square foot home. The revised project for a 4,248-
square foot home is consistent with the size and FAR of the previously approved project
from 2010, and residences in the immediate vicinity.
In addition, the bulk and mass of the revised project have been reduced further by
relocating the home to the south, resulting in burying some of the mass within the
hillside. The applicant provides additional information on the revisions in Attachment
10, Exhibit 32.
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DISCUSSION (Continued):
5) The Commission’s original instruction that, pursuant to the Stream Guidelines, the
project must be set back 20 to 25 feet from the stream on the property was correct. Its
subsequent acceptance of significant intrusions into that required setback was not.
The previously approved project from 2010 proposed minimum setbacks of ten feet from
the top of bank to the home, and one foot from the top of bank to the driveway. The
Santa Clara Valley Water District and the Regional Water Quality Control Board
received the circulated Initial Study and MND in 2010. The MND addressed the project
construction as follows:
“The Santa Clara Valley Water District has indicated that the proposed residence
would not directly affect any District facility and has no specific requirements
unless site drainage is directed into a District facility. The Regional Water Quality
Control Board (RWQCB) has also reviewed the proposed site plans and has
indicated that the proposed residence and driveway would be sufficiently distant
from the active channel to avoid the need for permits from the RWQCB.”
A biology report from Live Oak Associates (LOA) through the Town’s Environmental
Consultant confirms the findings of previous biology reports and provides the following
statement:
“From a biological standpoint, the riparian influence of the creek appears to be
restricted to the wetted portion of the channel. Because of underground
culverting downstream and the lack of associated riparian or wetland vegetation,
the creek itself provides foraging, shelter, and movement habitat for native
species that is not greater in value than that of adjacent upland woodland
habitats. The creek will continue to provide a seasonal source of drinking water
for native species even after the project is built, and the few common species t hat
may move through the site within the creek currently will also likely continue to
do so after the project has been constructed.”
The Planning Commission provided direction to increase the minimum setback from 15
feet, proposed in the project approved by the DRC, to 20 feet. Geologic mitigation
measures require geotechnical investigations and review of final construction plans. A
soil stability analysis has been provided, peer reviewed by the Town’s consultant, which
verifies that the 20-foot setback for the house would not impact bank stability.
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DISCUSSION (Continued):
6) The project approved by the Commission continues to be visible as a three-story edifice; it
continues to intrude severely into the creek setback and beyond the LRDA; it continues to
rely on grading inconsistent with the topography of the hillside; and it continues to
guarantee severe destruction of the aesthetics of the site including but not limited to by
raising the height of the structure even higher than under Applicant’s Initial Plans.
As noted in the response to reason 1 above, while the home would have three levels, it
would step-up the hillside so that it would be two stories at any single wall plane.
As noted in the response to reason 5 above, technical reports have addressed the
appropriateness of the minimum 20-foot setback of the house, and 10-foot setback of
the driveway from the top of bank.
The residence is sited in a similar location, with the same maximum height, as the
previously approved project in 2010, as indicated in the Comparison of Approved and
Current Plan (Attachment 4, Attachment #6 of Exhibit 15), submitted by the applicant for
the June 8, 2016 Commission hearing. The HDS&G outlines multiple elements that shall
be mapped and taken into consideration when determining the area of a site most
appropriate for development, or the Least Restrictive Development Area (LRDA),
including topography, with emphasis on slopes over 30 percent. The HDS&G do not
preclude development on slopes over 30 percent, but note that development outside of
the LRDA that minimizes grading, tree removal, and/or changes to the natural
landscape, can be determined to be more advantageous by the decision making body.
The revised project has been designed to conform to the natural topography of the site
and run with the contours, as required by the HDS&G Architectural Design Standards.
The applicant incorporated the Town’s Consulting Architect’s recommendations, as
noted above. The revised project breaks up the massing and reduces the height of the
western end of the home, where the entry is located. The appellants are correct that the
revised project increases the height of the highest point of a shed roof element by one
foot, as indicated on the revised elevations (Attachment 21, Sheets A3.1 – A3.4), but it
does not exceed the 25-foot height maximum.
7) To any extent that the Commission had discretion not to follow the dictates of the
Town’s laws and guidelines, it did not properly exercise that discretion. The calculations
by the Commission and Applicant show that, because of the severe limitations inherent
in the site, Applicant could be in compliance only by building no more than a 1,000-
square-foot structure. No amount of discretion can justify the nearly five-fold increase
in size approved by the Commission.
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DISCUSSION (Continued):
Please see response regarding size in reason 4, above; and response regarding
development outside of the LRDA in reason 6, above.
8) The project’s violations of law include without limitation violation of Town Code section
29.10.1005; General Plan CD-14.3; HDS&G pp. 9, 18, 19, 23, 27, 31, 35, 36, 38, 40, 58,
and 60; Stream Guidelines p. 3.8; CEQA section 21166; CEQA Guideline sections 1 5162
and 15384; and Friends of the College of San Mateo Gardens v. San Mateo Community
College District, Case no. S214061 (“Friends”).
Town Code Section 29.10.1005:
This section of the Code references protection of trees during construction. Consistent
with Town Code, the recommended conditions (Attachment 26) for the revised project
include the mitigation from the adopted 2010 MND, identified in the arborist report for the
previous project. Based on concerns raised by neighbors during the DRC public hearing
process, the applicant obtained a new report by a licensed arborist to provide a more
current health analysis of the existing trees and to further establish consistent tree
protection measures for the proposed project (Attachment 4, Attachment #3 of Exhibit 15).
Of the 18 trees removed by the previous owner, 15 were recommended for removal in
2010. The applicant is proposing to remove seven (7) of the 86 trees onsite to implement
the revised project. The applicant will be required to provide canopy replacement
pursuant to Town Code standards for the trees proposed to be removed. The applicant is
working with a landscape architect that is familiar with riparian and creek settings and
will work with staff to provide species and locations appropriate for the site.
General Plan CD-14.3
This Community Design Policy calls for effective visible mass to be reduced through such
means as stepping structures up and down the hillside, following topographical
contours, and limiting the height and mass of wall planes. It also states that a maximum
of two stories shall be visible from every elevation. As noted in the response to reason 1,
above, the revised project addresses this policy in that the effective visible mass is
reduced through following topographical contours, and limiting the height of wall
planes. While the home would have three levels, it would be two stories at any single
wall plane.
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DISCUSSION (Continued):
HDS&G pp. 9, 18, 19, 23, 27, 31, 35, 36, 38, 40, 58, and 60.
The referenced HDS&G sections address objectives, grading, driveway placement,
maximum allowable development, and height, bulk, and massing. The project complies
with the HDS&G inclusive of grading and drainage criteria, allowable floor area, height,
and architectural and landscape design. The revised project includes cut and fill, subject
to a grading permit, but does not require any export of soil for development. The project
requests deviation from the standard in regards to development on slopes greater than
30 percent, consistent with the approved placement of the residence from 2010. This
request is not a major exception, and is allowed if determined to be more advantageous
by the decision making body.
Stream Guidelines p. 3.8
The referenced page includes slope stability protection area guidelines that address bank
stability/streambed conditions. Page 3.8 provides prescriptive soil stability setbacks,
whereas page 3.7 states that structures proposed to be placed closer to the top of bank
because of specific on-site conditions should require further study of on-site geotechnical
soil and slope stability conditions, in order to determine whether or not the location of a
proposed structure may threaten bank stability. As noted in the response to reason 5,
above, a soil stability analysis has been provided, was peer reviewed by the Town’s
consultant, and verified that the 20-foot setback for the house would not impact bank
stability.
CEQA section 21166 and CEQA Guideline sections 15162 and 15384.
Attachment 17, Exhibit 44 is a response to communication from the appellants, received
September 22, 2016, citing the September 19, 2016 Supreme Court CEQA decision in
Friends of the College of San Mateo Gardens. As noted in the response, “The Town has
found that there is no substantial evidence that the revised project may have significant
effects on the environment … No changes in the baseline conditions have been identified
that would result in new impacts or increase the severity of previously identified
impacts.” As noted in the applicant’s response to the appeal (Attachment 22), the
Planning Commission considered the Addendum and its contents in rendering its decision
to approve the revised project on October 26, 2016.
Friends of the College of San Mateo Gardens v. San Mateo Community College District,
Case no. S214061
Based on the review of the Supreme Court decision in the Friends of the College of San
Mateo Gardens v. San Mateo Community College District, the Addendum to the 2010
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SUBJECT: 19 HIGHLAND AVENUE/S-15-077
DATE: DECEMBER 15, 2016
S:\COUNCIL REPORTS\2016\12-20-16\11 19 Highland Ave Appeal\11 Staff Report FINAL.docx
110 E. Main Street Los Gatos, CA 95030 ● 408-354-6832
www.losgatosca.gov
DISCUSSION (Continued):
adopted Mitigated Negative Declaration (MND) was revised (Attachment 17, Exhibit 45
of Attachment) to address the relevancy of the adopted MND to the satisfaction of staff
and the Town Attorney.
9) The Commission’s decision did not comport with guidance by the public, including one
of the authors of the HDS&G, regarding the effect of the HDS&G on Floor Area Ratio.
As indicated in the verbatim minutes for the June 8, 2016 public hearing (Attachment 8), a
member of the public who worked on the HDS&G did speak to the Commission’s discretion
to determine whether the proposed house fits the site, and stated that she personally did not
believe the house fit. The Commission considered all of the information in the record during
the public hearing process. As indicated in the verbatim minutes for the October 26, 2016
public hearing (Attachment 19), the Commission independently determined that the revised
project was an appropriate development for the site. Reasons given for that determination
included: that development outside of the LRDA is appropriate as there are no other
reasonable alternatives; that the 79 trees shall remain and new replacement trees will be
planted; and that the revised project is already more than 16 percent smaller than the
maximum square footage allowed, and finds itself in the lowest quartile of FAR.
10) Rather than requiring a new Negative Declaration or Environmental Impact Report
based on subsequent changes to the project and the environment since the initial
Mitigated Negative Declaration prepared for the property in 2010 (the “2010 MND”),
the Commission approved a mere Addendum, and it did so in spite of substantial
evidence (defined in the CEQA Guidelines as enough to support a fair argument) that
the subsequent modifications and changes may produce a significant environmental
impact that had not previously been studied.
As noted in the response to reason 8, above, Attachment 17, Exhibit 44 is a response to
communication from the appellants, received September 22, 2016, citing the September
19, 2016 Supreme Court CEQA decision in Friends of the College of San Mateo Gardens.
The response includes the following language: “The Town has found that there is no
substantial evidence that the revised project may have significant effects on the
environment … No changes in the baseline conditions have been identified that would
result in new impacts or increase the severity of previously identified impacts.”
11) In, at the final meeting on October 26, approving the Addendum rather than requiring a
new Negative Declaration or Environmental Impact Report, the Commission relied on
the inaccurate advice briefly stated orally by Town counsel regarding the meaning of the
Friends case and its impact on this matter, rather than on the accurate, in-depth, and
PAGE 14 OF 17
SUBJECT: 19 HIGHLAND AVENUE/S-15-077
DATE: DECEMBER 15, 2016
S:\COUNCIL REPORTS\2016\12-20-16\11 19 Highland Ave Appeal\11 Staff Report FINAL.docx
110 E. Main Street Los Gatos, CA 95030 ● 408-354-6832
www.losgatosca.gov
DISCUSSION (Continued):
fully cited written legal analysis presented by Appellants well before the meeting and
showing the need for a new negative declaration or environmental report.
Based on the review of the Supreme Court decision in Friends of the College of San
Mateo Gardens, the Addendum to the 2010 adopted Mitigated Negative Declaration
(MND) was revised (Attachment 17, Exhibit 45 of Attachment) to address the relevancy
of the adopted MND to the satisfaction of staff and the Town Attorney.
12) The evidence ignored by the Commission in failing to require a new Negative
Declaration or environmental report includes without limitation expert evidence that a
tree that was healthy when the 2010 MND was done is now failing and is a now
potential roosting and maternity habitat for special-species bats including the pallid bat;
that mature protected oak trees that were to be retained under the plans in existence
when the 2010 MND was done are now, under Applicant’s Rev ised Plans, to be either
outright removed or subjected to grave risk based on tree protection measures that are
in violation of Town Code, that Applicant’s own arborist report shows are substandard
and insufficient, and that both Applicant and his arborist admit merely give the trees a
“fighting chance”; that, since the 2010 MND, the course of the stream on the property
has been significantly altered when relocated by bulldozer by a neighbor desiring to
shore up a slope on his property, with resulting potential impacts in association with the
project; and that the plans now, specifically Applicant’s Revised Plans, pose different
aesthetic issues from the plan at issue in 2010, including without limitation the increase
in the height of the structure.
As noted in the Addendum to the adopted MND, based on concerns raised by the
appellants at the June 8, 2016 hearing regarding the potential for a dead tree proposed
to be removed (Tree #56) to provide roosting habitat for special status bat species, a
peer review from Live Oak Associates (LOA) through the Town’s Environmental
Consultant was provided in July (Attachment 10, Exhibit 29). The peer review confirmed
that the removal of the tree would not represent a significant loss of bat roost ing habitat
that could result in a new or more significant environmental impact. Nevertheless, the
applicant agreed to an additional project condition (Condition 6.c) to address any day-
time roosting habitat of non-special status bat species (Attachment 26).
As noted in the response to reason 8, above, the applicant obtained a new report by a
licensed arborist to provide a more current health analysis of the existing trees and to
further establish consistent construction tree protection measures for the proposed
project (Attachment 4, Attachment #3 of Exhibit 15). The applicant will be required to
provide canopy replacement pursuant to Town Code standards for the trees removed
PAGE 15 OF 17
SUBJECT: 19 HIGHLAND AVENUE/S-15-077
DATE: DECEMBER 15, 2016
S:\COUNCIL REPORTS\2016\12-20-16\11 19 Highland Ave Appeal\11 Staff Report FINAL.docx
110 E. Main Street Los Gatos, CA 95030 ● 408-354-6832
www.losgatosca.gov
DISCUSSION (Continued):
and proposed to be removed. The applicant is working with a landscape architect that is
familiar with riparian and creek settings and will work with staff to provide species and
locations appropriate for the site.
Based on the concerns raised regarding the illegal grading along the creek by a neighbor,
a peer review from Live Oak Associates (LOA) through the Town’s Environmental
Consultant, and supplemental project review information through UPP Technology were
provided in July (Attachment 10, Exhibit 29). These reviews confirmed that the change in
the creek alignment would not result in biological or geotechnical issues for the site or
the revised project. In addition, Town records indicate that an emergency grading
permit, issued for illegal grading by a neighbor, was closed in 2009.
Aesthetic issues, including the increased height of the structure are addressed in the
response to reason 6, above.
13) There were several prejudicial due process and procedural irregularities including
without limitation violation of Government Code section 54950 et seq. (the “Brown
Act”) by the DRC and, at the Commission level, Staff’s refusal to timely provide the
Commission with correspondence directed to the Commission (while at the same time
promptly providing it to Applicant), giving of gifts to Commission members from the
Applicant’s side, and considering only the schedules of Applicant and his team and not
the schedules of Appellants and their team in scheduling meetings.
The appellants do not specify what the procedural irregularities including violation of the
Brown Act might have been. Even if there was found to be irregularities, the appeal
hearing before Council provides further opportunity for a due process hearing.
Staff provides project correspondence in the staff reports, addendums, and desk items
for Commission review. When feasible, staff forwards appellant and applicant
correspondence directly to the appellant(s) and applicant prior to the staff report. All
correspondence submitted is part of the public record, available for viewing by the public
during Community Development Department Counter hours, or by appointment.
The books presented to each of the Planning Commissioners by the project architect,
separately from the public hearing for this project, were returned.
The schedules of the appellants and their team were considered by the staff and by the
Planning Commission in their decisions to continue the matter several times.
PAGE 16 OF 17
SUBJECT: 19 HIGHLAND AVENUE/S-15-077
DATE: DECEMBER 15, 2016
S:\COUNCIL REPORTS\2016\12-20-16\11 19 Highland Ave Appeal\11 Staff Report FINAL.docx
110 E. Main Street Los Gatos, CA 95030 ● 408-354-6832
www.losgatosca.gov
CONCLUSION:
It is recommended that the Town Council adopt the resolution in Attachment 18 denying the
appeal and upholding the decision of the Planning Commission approving Architecture and Site
application S-15-077 with the findings provided in Exhibit A of Attachment 26.
ALTERNATIVES:
Alternatively, the Town Council could:
1. Adopt a resolution (Attachment 25) granting the appeal and remanding the Architecture
and Site application to the Planning Commission with specific direction, determining
that the Planning Commission's decision should be reversed or modified, and finding
one or more of the following, in accordance with Town Code Section 29.20.300:
a. There was error or abuse of discretion on the part of the Planning Commission; or
b. New information was submitted to the Council during the appeal process that was
not readily and reasonably available for submission to the Commission; or
c. An issue or policy over which the Commission did not have discretion to modify or
address, but which is vested in the Council for modification or decision.
2. Adopt a resolution granting the appeal and denying the project (Attachment 24).
3. Continue the project to a date certain with specific direction.
The Council must at least open the public hearing for the item but may continue the matter to a
date certain if the Council does not complete its work on the item due to the length of the
agenda.
COORDINATION:
The Community Development Department coordinated with the Parks and Public Works
Department, and the Santa Clara County Fire Department in the review of the revised project.
ENVIRONMENTAL ASSESSMENT:
An Initial Study and Mitigated Negative Declaration (MND) were completed and adopted in
2010 for a similar single-family development application. The proposed application is in
compliance with the CEQA review completed in 2010 and will be subjected to the Mitigation
Monitoring and Reporting Program adopted in 2010. An Addendum to the adopted MND has
been considered, including an explanation of why a subsequent MND is not required and why
the MND is relevant. No additional CEQA findings are required.
PAGE 17 OF 17
SUBJECT: 19 HIGHLAND AVENUE/S-15-077
DATE: DECEMBER 15, 2016
S:\COUNCIL REPORTS\2016\12-20-16\11 19 Highland Ave Appeal\11 Staff Report FINAL.docx
110 E. Main Street Los Gatos, CA 95030 ● 408-354-6832
www.losgatosca.gov
Attachments:
1. May 11, 2016 PC Staff Report
2. May 11, 2016 PC Desk Item Report (includes Exhibit 1)
3. May 11, 2016 PC Verbatim Minutes
4. June 8, 2016 PC Staff Report (includes Exhibits 2-18)
5. June 8, 2016 PC Addendum Report (includes Exhibit 19)
6. June 8, 2016 PC Desk Item Report (includes Exhibits 20 and 21)
7. June 8, 2016 PC Communication from appellants (includes Exhibits 22-24)
8. June 8, 2016 PC Verbatim Minutes
9. July 27, 2016 PC Staff Report
10. August 24, 2016 PC Staff Report (includes Exhibits 25-33)
11. August 24, 2016 PC Addendum Report (includes Exhibit 34)
12. August 24, 2016 PC Desk Item (includes Exhibit 35 and 36)
13. September 14, 2016 PC Staff Report (includes Exhibits 37-39)
14. September 28, 2016 PC Staff Report (includes Exhibits 40-42)
15. September 28, 2016 PC Addendum Report (includes Exhibits 43)
16. September 28, 2016 PC Verbatim Minutes
17. October 26, 2016 PC Staff Report (includes Exhibits 44 and 45)
18. October 26, 2016 PC Desk Item (includes Exhibits 46 and 47)
19. October 26, 2016 PC Verbatim Minutes
20. Appeal of the Planning Commission Decision, received November 7, 2016
21. Development Plans received December 12, 2016
22. Communication from Applicant
23. Communication from Appellants
24. Draft Resolution to grant the appeal and deny the project Draft Resolution to grant the
appeal and remand the project to the Planning Commission
25. Draft Resolution to grant the appeal and remand the project to the Planning
Commission
26. Draft Resolution to deny the appeal and approve the project (includes Exhibits A,
Findings and B, Conditions of Approval)
Distribution:
cc: Ed Pearson, 239 Thurston Street, Los Gatos, CA 95030
Lisa Roberts, 78 Alpine Avenue, Los Gatos, CA 95030
Dede Smullen, 25 Highland Avenue, Los Gatos, CA 95030
Anthony Badame, 73 Mariposa Avenue, Los Gatos, CA 95030