Desk Item
PREPARED BY: SALLY ZARNOWITZ
Planning Manager
Reviewed by: Town Manager, Town Attorney, Community Development Department Director, and
Finance Director
110 E. Main Street Los Gatos, CA 95030 ● 408-354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 12/20/2016
ITEM NO: 11
DESK ITEM
DATE: DECEMBER 20, 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.
REMARKS:
The following questions were received from a Councilmember and staff responses follow in
italic font:
1. Is the driveway to the proposed house in the same location as the driveway approved in
the 2010 application? If not, would this constitute “new, potentially significant
environmental effects”? Why or why not?
The applicant has provided additional information (Attachment 27) which includes an
exhibit (Attachment 27) which illustrates the location of the proposed driveway and the
driveway for the 2010 application. The proposed application is in the same general
location, but is aligned more closely with the existing topography and is located further
away from the creek. The modifications introduced for the proposed project are minor
and any potentially significant environmental effects were previously studied and have
been avoided or mitigated through the adopted Mitigated Negative Declaration.
PAGE 2 OF 4
SUBJECT: 19 HIGHLAND AVENUE/S-15-077
DATE: DECEMBER 20, 2016
S:\COUNCIL REPORTS\2016\12-20-16\11 19 Highland Ave Appeal\Desk Item.docx 12/20/2016 4:07 PM
REMARKS (Continued):
2. Did staff review alternative locations for the driveway so that it would not be close to
the creek? Can staff explain the storm water runoff strategies necessary to protect the
creek?
Staff did not review alternative locations for the driveway.
Single-family detached homes that create and/or replace 2,500 square feet or more of
impervious surface are categorized as small projects and are subject to approval as
specified in the Town’s Stormwater Compliance Small Projects Worksheet (Attachment
29). As stated in this document, the project must implement at least one of six specified
Low Impact Development (LID) site design measures. The applicant is proposing the
creation and/or replacement of 4,541 square feet of impervious area and three of the six
listed measures: direct runoff from roofs onto vegetated areas; direct runoff from
walkways, and/or patios onto vegetated areas; and construction of walkways and/or
patios with permeable surfaces. The proposed bio-swales are an enhanced measure
beyond what is required per the Stormwater Worksheet.
3. Did staff review alternative locations to utilize the existing driveway? Could the house
have been designed so the garage was accessed from the existing driveway?
Staff did not review alternative locations to utilize the existing driveway. Given the slope
from the existing driveway to the proposed home location, the applicant did not pursue
this alternative. Similar to the application approved in 2010, the proposed home and
features have been designed to run with the contours of the site where feasible. The
applicant will also be available to speak to the design of the project at the hearing.
4. All the homes in the immediate area have a detached garage. Was a detached garage
considered? A detached garage could break up the mass of the building.
Staff did not consider a detached garage. Like the application approved in 2010, the
proposed garage is located on a separate lower level than the home. The applicant will
also be available to speak to the design of the project at the hearing.
5. The appellants claim that the proposed project violates the General Plan by allowing a
three-story home.
The proposed garage is located on a separate lower level than the home, which steps up
the site to the main and upper levels. The applicant will also be available to speak to how
the project has been designed to have no more than two stories at any single wall plane
at the hearing.
PAGE 3 OF 4
SUBJECT: 19 HIGHLAND AVENUE/S-15-077
DATE: DECEMBER 20, 2016
S:\COUNCIL REPORTS\2016\12-20-16\11 19 Highland Ave Appeal\Desk Item.docx 12/20/2016 4:07 PM
REMARKS (Continued):
6. Can staff comment on why the addendum was not recirculated?
CEQA Guidelines Section 15164 pertaining to an Addendum to a Negative Declaration,
states that an Addendum need not be circulated for public review but can be included in
or attached to the adopted Negative Declaration. The Addendum was attached to the
adopted Negative Declaration for consideration by the Planning Commission in its
approval of the proposed project.
Attachments 27 and 28 contain communication from the applicant and the appellants received
between 11:01 a.m., Thursday, December 15, 2016 and 11:00 a.m., Tuesday, December 20,
2016. Attachment 29 contains the NPDES Stormwater Compliance Small Projects Worksheet.
Attachments previously received with December 20, 2016 Staff Report:
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
PAGE 4 OF 4
SUBJECT: 19 HIGHLAND AVENUE/S-15-077
DATE: DECEMBER 20, 2016
S:\COUNCIL REPORTS\2016\12-20-16\11 19 Highland Ave Appeal\Desk Item.docx 12/20/2016 4:07 PM
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)
Attachments received with this Desk Item Report:
27. Communication from Applicant received between 11:01 a.m., Thursday, December 15,
2016 and 11:00 a.m., Tuesday, December 20, 2016
28. Communication from Appellants received between 11:01 a.m., Thursday, December 15,
2016 and 11:00 a.m., Tuesday, December 20, 2016
29. NPDES Stormwater Compliance Small Projects Worksheet
2010 19 Highland Driveway items/issues
A portion of a 5.5ft tall Retaining Wall that starts at the property
entrance and runs 70ft along creek is located within 1ft of top of
creek bank.
Energy Dissipater is fully located within creek channel.
A 5ft high Fire turnaround retaining wall measuring approx. 50ft in
length is 1ft from private driveway.
Approximately 40ft of metal guardrail is needed for safety along
fire turnaround that backs up to private driveway.
These items and exhibits are meant to illustrate how the current
Planning Commission approved project is far less impactful to
the site than the previous 2010 project.
ATTACHMENT 27
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S bject Propert
Regarding 19 Highland Ave,application #5-15-077
Anne Moelgaard
Thu 12/15/2016 10:03 PM
lnbox
To:5Zarnowitz@/osgatosca.gov <5Zarnowitz@losgatosca.gov>;
CcClaus M"lgaard <molgaard.c1aus@gmail.com>;epearsonz@outlook.com <epearsonz@outlook.com>;
Regarding 19 Highland Avenue,los Gatos
We recently bought the property at 106 Alpine Ave,los Gatos.It is a direct neighbor to 19 Highland Avenue,and we would therefore like to
ocld our voice to the proposal.
Our home will be directly impacted by the project as the whole back side of our house faces tOYJard it.and we will be able to see the house
on 19 Highland Ave from the majority of rooms in our home.
We have seen the plans for the house project at 19 Highland Avenue,and we appreciate the choice of materials and colors,that will blend the
house into the surroundings as well as possible.Also,we appreciate the efforts to minimize the effect on this unique piece of nature in the
middle of the town,by preserving as many trees as possible.in particular all the trees between the house and the creek which gives us some
partial screening.
tt is our impression,that Ed Pearson is taking a great deal of care to build a beautiful home,that will blend into the natural surroundings as
well as possible.We recommend approval of the project,and we are looking forward to a construdive and pleasant collaboration with our
new neighbor.
Best regards,
Anne and Claus Moelgaard
106 Alpine Ave
los Gatos,CA 95030
anne,molgaard@gmail.com
(408)335-5731
19 Highland Ave -Architecture and site application #$-15-077
Bill Edwards
Wed 8/24/2016 HH9 AM
T oSlarnowilZ@losgatosca.gov<SZarnowilZ@losgatosca.gov>;
«.Kimberly Edwards<Igkedwards@gmail.com>;
Dear Los Gatos Planning Department,
My name is William "Bill"Edwards,and along with my wife Kimberly Edwards,are the owners of 106 Alpine
Avenue,Los Gatos for the last 13 years and I am writing this letter on behalf of both of us regarding the latest
version of the proposed house to be built at 19 Highland Ave,los Gatos.
Firstly,when it comes to potential impact to houses on Alpine Ave.,we believe we have arguably the most
polential for impact as not only does our back property line border the subject property,but it does so down at
the creek level and we have many windows and decks which face in that direction,whereas we believe the
remainder of the potentially affected Alpine properties do not have any frequently used portions of their
property at that lower elevation and their commonly used portions of their property are basically are on the hill
above.Additionally,since our back yard slopes down all the way to the creek,our view to the back from all the
rooms in our house are towards the 19 Highland property,as compared to our neighbors with flat back yards
supported by retaining walls which tend to cut off their view in that direction.
As we recall from prior hearings regarding potential building requests on the property,basically it is not a
question if the person has the right to build,it is a question of whether they are following all the rules &codes.
With all that said,In our opinion,when we compare the 2010 approved building plan to the currently submitted
revised proposal,this is a far better plan for the neighborhood.As noted in the current proposal,having far less
trees removed (one of which is already dead),having tress only removed on the far side of the proposed house
from Alpine (west side of house near driveway),having house located northwards on property for less view from
Alpine,being built into hillside more,being a shorter in height,being of reduced overall length,being farther
from creek,and including more natural materials and colors are all positive features that make this proposal a
better option than what was previously approved in 2010.
In condusion,we are high Iv in favor of the current proposal and recommend approval.
Please feel free to call or write myself with any questions of comments you may have.
Bill Edwards
106 Alpine Ave.
los .G;'-ic;s~CA-95030408::g2ii~3006-..._--
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From:
Sent:
To:
Subject:
Teresa Spalding <teresaspalding@hotmail.com>
Thursday.September 22.2016 3:22 AM
Sally Zarnowitz
19 highland ave.-5-15-077
Hi Sally,
I'm writing you regarding 19 Highland Ave.
Architecture and site application s-Is-on
Please remove me from the appellant ClL~e.
I have revic.."Woothe changes notoo althe Ia.~lmeeling and
I am removing myself from the appellant case.
Thanks so much Sally,
T
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September 10,2016
Ms.Sally Zamowitz,Planning Planner
Planning Department,Town of Los Gatos
110 East Main Street
Los Gatos,CA 95030
Re:Letter of Support,19 Highland Avenue;Architecture and Site Application 5-15-077
Ms Samowitz:
We write this letter as long time residents of Los Gatos and more specifically as residents of
Alpine Ave for several years.In addition,we now own 140 Foster Road and are in the process
of building a home on this site.We are one parcel away from 19 Highland.
Having worked with the town of Los Gatos over the last year to design a home in keeping with
the goals and values of the General Plan,we feel we are now well versed in the issues Involved
with building a home that falls within the hillside zoning.
We have reviewed the Initial submission to the Planning Department for 19 Highland Avenue as
well as the substantially revised resubmission of this package.We feel the applicant has
worked diligently to meel the requiremenls sel forth by the Planning Commission al the June 8,
2016 meeting.Given the significant constraints of the site,the owner and architect have done a
wonderful job designing a home that fils and blends into the surroundings.It is now a very
modest and site sensitive structure with colors,materials and plantings in keeping with the
neighborhood.
It is our firm belief thaI once an owner has complied with the guidelines set forth in the General
Plan of the Town,Planning approval should not be unreasonably withheld.The cost to redesign
an already approved plan can become exorbitant.If the views of the Town's residents have
changed in respect to color,style,size,height,materials,setbacks or anyone of the myriad of
conditions required to build in Los Gatos,then tha Town should move forward to modify the
Planning Department guidelines accordingly.
The particular parcel at 19 Highland has a long history and it was well known that it would
eventually be a home site.Neighbors who wish to retain a .park like'setting in their backyard
had ample opportunity to buy this or any parcel on which they do not wish a home to be built.
No one slepped up to this opportunity over a four year period.The current owner envisioned a
home,complied with the Planning Department Guidelines,asked for a reasonable exemption,
endured spurious neighborhood commentary and now it is time for the Planning Commission to
approve this project.
Respectfulty,
Ronald Weiner and Deborah Stanley
September 22,2016
Sally Zamowitz,Planning Manager Town Of Los Gatos
Re:19 Highland
Architecture and Site Application:S-15-077
Ms.Zamowitz,
Hi.My name is Tom Ward my wife and I live at 107 Foster road in Los Gatos.I have
worked in the town for 50 years and my family has been here for many generations,
starting in 1857.My property is one parcel over from Mr.Pearson's property.I have
seen projects come and go for this parcel and I am in strong support of this application.
Mr.Pearson has listened to the experts,listened to the neighbors,and listened to the
Planning Commission.The town staff and town attomey have reviewed the project and
recommended approval.The town hired unbiased consultants to peer review all of the
reports and have recommended approval.Several neighbors have written letters in
support of the project and one of the appellants has dropped her opposition to the
project.
The remaining appellants are completely unreasonable and uncompromising.This is a
very well designed and beautiful home that is correctly sized for this wooded site.I know
it's a better project and you know it's a better project.It's time to stop the nonsense and
approve this application.
Sincerely,
d~~to?(p
107 Foster Rd.
Los Gatos,Ca.
Subject:19 Highland Avenue
Architecture &Site Application No.S-I 5-077
August 29,2016
Dear Los Gatos Planning Department
My name is Suzanne Sawyer.I reside at 63 Highland Avenue and my husband and I are
adjoining property owners to 19 Highland Ave.We have lived here for over 40 years and
have followed the changes in the perspective home since 2000.This submission is by far
the best yet.
We are able to view this property from our East-facing window.We can just see parts of
the top of the house when looking at the story poles.
Since the last meeting,this house has been reduced another 10"10 in mass,the set-back
from the creek has been increased to 20 feet,and the retaining walls are less than half of
what they were before.We think this is a well thought out design that is eco-sensitive for
its location.It is also reasonable and modest in size.
We highly support the project and recommend approval.We would very much enjoy
having Ed and Cindy as our new neighbors.
Craig and Suzanne Sawyer
63 Highland Avenue
Los Gatos,CA 95030
Home Phone:408-354-11 5 I
R.Henry Richards,M.D.
Jean R.Richards
118 Alpine Avenue
los Gatos,CA 95030
September 20,2016
Ms Sally Samowitz
Town of Los Gatos Planning Department
110 East Main Street
Los Gatos,CA 95030
RE:Architecture and Site Application S-15-077,19 Highland Avenue
Dear Ms.Samowitz,
J live at 118Alpine Avenue and I have been a resident of Los Gatos for over 16 years.One of the
principal reasons we chose to purchase this property is because it is situated on a slope
overlooking a me-ddow above a 'Winter stream".My property actually crosses the creek and
nearly reaches Highland Avenue on the opposite side.
We have obviously been aware of thc development of the property at 19 Highland Avenue which
is immediately adjacent to my property line.I have observed the erection of the "stoty poles"on
the property with keen interest and have considered the impact a new house in that area might
have on the naturdl beauty and privacy that I currently enjoy.
I have been able to meet with the owner of the properly who was most forthcoming in helping
me review the currently approved plans for development including site location,building
footprint,and building materials.
In my opinion,Mr.Ed Pearson has made a special effort to build a home which blends and
compliments the natural environment in which it will be situated.I do not believe that
construction of this home as currently approved will have any negative impact whatsoever on
my home or property.There£ore I have no objection and would support the Application to
develop the property at 19 Highland Avenue as proposed.
Sincerely,
R.H.Richards.M.D.(signed electronically)
R.Henty Richards,M.D.
Site application 5-15-077
Paul Pickering
Sun 9/11l1l016 6:54 PM
Inbox
To.szarnowitz@losgatosca.gov <szarnowitz@losgatosca.gov>;
Cc:epearsonz@out!ook.com <epearsonz@outlook.com>;Sonnie Pickering <sonnlepickering@gmaU.com>;
Ms zarnowitz,
I would like provide a letter of support for the referenced site application made by Ed Pearson.We live at 76 Alpine Ave
and our property connects to the southem end of 19 Hillside Ave.
We have had a chance to review the new plans and support the proposal to build designed house based on the material ••
architecture and proposed setbacks.
Respectfully,
Paul and Allison Pickering
76 Alpine Ave,
los Gatos
19 Highland Avenue,Los Gatos
To:Homeowners adjacent to 19 Hishland Avenue,Los Gatos
//We.neW"""s 01 lIM!proposed project at 19 HItlhland A-.los Gatos haw "",lewed lIM!
architectural plan renderings for the proposed new single family home on this site.'/We are In support
of this project and loot forward to seeing this enhancement to the neighborhood •
•
//We live at:rf ~k.
PrlntName
I~~
S1snature
.3//R1"<0 I (,7 j
Date
ATTACHMENT 28
Sally Zarnowitz
Subject:
Attachments:
FW: Environment Section --Addendum for Applicant Submittal for 19 Highland Ave
Environment Section -Appellant Appendix rg ,sbh .pdf
From : Dorothea Smullen [mailto :dorothea .smullen@gmail.com]
Sent: Monday, December 19, 2016 4 :02 PM
To: Council
Cc: Joel Paulson; Sally Zarnowitz; Lisa Roberts; Anthony Badame; Susan Brandt-Hawley; Richard Grassetti; Clerk; Laurel
Prevetti
Subject: Environment Section --Addendum for Applicant Submittal for 19 Highland Ave
The attached section was not available for submittal with the Staff Report. It has been prepared with the
support of our CEQA experts Susan Brandt-Hawley and Richard Grassetti . Thank you for your consideration of
our appeal.
The appeal should be granted because the Planning Commission erred in approving the October 2016
Addendum to the 2010 MND. The 'whole record ' supports a fair argument that changes to the project, new
information, and changed circumstances may have significant environmental impacts .
Unless the project is significantly revised, an EIR must be prepared. The Town did not prepare an initial study
despite appellants ' requests dating back to May, and the proposed addendum did not have the benefit of a public
and agency comment period. The revised project involves more than minor technical changes and an addendum
is unlawful. The proper application of CEQA would have allowed approval of a less environmentally-impactful
design and the developer could currently be constructing a new home at 19 Highland A venue -a win-win for
the developer, the neighborhood , and the Town of Los Gatos.
The argument in support of this appeal is attached.
yours,
Dede
408-679-0254
ENVIRONMENT
The appeal should be granted because the Planning Commission erred in approving the October
2016 Addendum to the 2010 MND. The 'whole record ' supports a fair argument that changes to
the project, new information, and changed circumstances may have significant environmental
impacts.
Unless the project is significantly revised, an EIR must be prepared. The Town did not prepare
an initial study despite appellants' requests dating back to May, and the proposed addendum did
not have the benefit of a public and agency comment period. The revised project involves more
than minor technical changes and an addendum is unlawful. The proper application of CEQA
would have allowed approval of a less environmentally-impactful design and the developer could
currently be constructing a new home at 19 Highland Avenue -a win-win for the developer, the
neighborhood, and the Town of Los Gatos.
1. The Fair Argument Standard Applies to the Modified Project.
As explained in the December letter from Susan Brandt-Hawley and previously discussed in the
September letter by Lisa Roberts , the Fair Argument Standard governs the evaluation of project
and/or environmental changes after approval of a project based on a prior MND. This was the
holding in the September Supreme Court opinion in Friends of the San Mateo Garde ns v. San
Mateo County Community College District (2016) 1 Cal. 5th 937 ("Friends"), confirmed by the
Supreme Court's grant and transfer order in the now-depublished Coastal Hills Rural
Preservation v. County of Sonoma (2016) 2 Cal.App.5 1h 1234 ("Coastal Hills ").
During the appeal before the Planning Commission, the Town Attorney expressly rejected the
applicability of the Fair Argument Standard, asserting that appellants ' interpretation of the
Friends case was "absurd," and advising the Planning Commission that the case supported
application of the Substantial Evidence Standard to subsequent changes . (See October 26, 2016
hearing transcript, 6:20-7:13 .) Likewise, the Town's consultant commissioned to prepare the
October 2016 Addendum rejected the applicability of the Fair Argument Standard. (See October
20, 2016 letter from Kimley-Horn p . 3 [Attachment 17 , Exhibit 44] [asserting that, "[u]nder case
law, the fair argument standard does not apply to determinations of significance pursuant to
section 15162, 15163, and 15164"].)
Consistent with this legal position, the October 2016 Addendum applied the Substantial
Evidence Standard, and the findings by the Planning Commission set forth in the Addendum are
likewise based on that incorrect standard.(See Addendum [Attachment 10, Exhibit 45],passim,
and including [emphases added] p . 15 ["The purpose of this Addendum is to evaluate whether
the proposed project. .. would result in any new ... effects .... "; "[T]he Town of Los Gatos
Planning Commission finds on the basis of substantial evidence in the light of the whole reco rd
that the proposed modifications ... will not cause" any new impacts; "In making this finding , the
Planning Commission has considered evidence presented by Town Staff, the applicant, and other
interested parties"; the Planning Commission finding that there is no showing that "the project
will have one or more significant effects"]; and p . 16 [the Planning Commission finding that
"[t]he proposed revisions would not cause new significant impacts"; the Planning Commission
finding "[n]o changes have occurred ... that would cause significant environmental impacts " (p.
16, emp . added); and the Planning Commission concluding "[t)herefore, no supplemental
environmental review is required beyond this addendum").)
Now, in the December 15 , 2016 Staff Report, Staff admits that under Friends and Coastal Hills
the proper standard is not the Substantial Evidence Standard but the Fair Argument Standard.
(See Report pp. 6-7.):
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. (Report p . 7, parentheticals and brackets in original.)
Appellants appreciate that Staff had followed the advice of the Town attorney and has now
corrected its prior misapplication of th e Supreme Court's direction in the Friends case. However,
Staff still incorrectly references the record as if it did apply the Fair Argument Standard,
asserting that "[t)he Town has found that there is no substantial evidence that the revised project
may have significant impacts." (See Report p . 12 quoting Kimley-Hom October 20, 2016 letter,
emphasis added.)
2. The Town Council Must Consider Evidence of Potentially Significant Impact.
Under the Fair Argument Standard, evidence of potential impact for the modified project is
paramount and is not defeated by contrary evidence. The following reports and evidence, among
others, were ignored-not even mentioned-in the proposed Addendum:
1. That Report regarding "Riparian Habitat Assessment and Biological Peer Review,
19 Highland Avenue, Los Gatos," prepared by Wood Biological Consulting dated
January 28, 2008 ;
2. That email regarding the Appeal from Lisa Roberts to Marni Moseley dated
March 28, 2016;
3. That letter from Dorothea Smullen dated March 29, 2016;
4. That Report regarding "19 Highland Avenue Creek and CEQA Issues," prepared
by Grassetti Environmental Consulting ("GECO") dated June 1, 2016;
5 . The Report regarding "19 Highland Avenue-Biological Resources Review,"
prepared by Pacific Biology dated June 2, 2016;
6. That slide presentation from Appellant Anthony Badame submitting for the June
8, 2016 hearing before the Planning Commission;
7. That letter regarding the Appeal from the undersigned dated August 10, 2016
including exhibits including Exhibit D regarding trees;
8. That Report regarding "19 Highland Avenue Creek and CEQA Issues," prepared
by GECO dated August 15 , 2016;
9. That slide presentation from Appellant Anthony Badame submitting for the
August 24, 2016 hearing before the Planning Commission;
10 . That Re port regarding "19 Highland Avenue Creek and CEQA Issues-
Comments on Applicant Letters and Addendum," prepared by GECO dated
August 24, 2016;
2
11. That Revised Report regarding "19 Highland Avenue Creek and CEQA Issues-
Comments on Applicant Letters and Addendum," prepared by GECO dated
August 24, 2016 [revised to add comments by biologist consultant];
12. That letter regarding the Appeal from Appellants dated August 24, 2016 ; and
13 . That letter regarding potential impacts from Lisa Roberts dated September 22,
2016.
14. That letter dated September 22, 2016 from Josh Phillips of Pacific Biology
regarding factual and methodology errors in Live Oak's evaluation of potential
impacts of the project on pallid bats.
The Fair Argument Standard is a low-threshold test. As applied here, ifthere is any substantial
evidence (facts or fact-based reasonable assumptions or expert opinions) of any single potential
significant environmental impact from the modified project, an EIR is required unless the project
is further modified in a way that clearly reduces all impacts to insignificance. That has not
happened although appellants have submitted ample evidence of numerous potential significant
impacts, including:
1. Creek relocation and re-designation . The location of the creek is substantially closer to
the proposed project site since the review of conditions for th e original MND. According
to the report of the Town 's expert Li v e Oak Associates (Attachment 10, Exhibit 29), the
movement was caused by natural erosion . The proximity of the creek has potentially
significant impacts. There is ample evidence that the creek is intermittent rather than
ephemeral, including from the Applicant's consultants (at the October 26, 2016 hearing),
posing greater impacts than an ephemeral creek and requiring greater setbacks from
structures (25 feet for the lot size here) than are proposed.
2. Disease of formerly healthy tree resulting in potential habitat for special species.
Tree 56, healthy at the time of the original MND, has since declined from disease, and is
a potential habitat for special species bats including pallid bats . The Addendum failed to
address the evidence presented by Appellants' expert and relied on contrary expert
opinion. A dispute among experts triggers an EIR under th e Fair Argument Standard. The
Addendum acknowledges a "potential impact" on bat roosting habitat in general, along
with a "condition" (effectively a mitigation) to address this, and the acknowledgment of a
potential impact requires an EIR not an Addendum.
3 . Unlawful and unanticipated tree removal. Since the original MND, the prior owner
removed not only 15 trees approved for removal for that owner's proposed construction
but also three additional substantial bay trees that were not permitted for or anticipated to
be removed. The impact of the removal of those three trees was not considered in the
original MND, including the increased need to preserve more trees to maintain the
aesthetic woodland quality of the site, the impact of the removal on mitigation (to the
extent that the stumps remain precluding planting of new trees in the same location), the
health of neighboring trees (especially to the extent that the stumps have or will be
removed), and soil and slope instability resulting from tree and/or root removal. It is
unknown if the requirements referenced in the 2010 Initial Study from the CA State Dept
of Fish and Wildlife to avoid nesting season or evaluate the site for nesting birds prior to
the removal of vegetation on the site were met at the time the 18 trees were removed; this
3
should be evaluated as part of the modified environmental setting for the modified
project.
4. Lack of timely and anticipated tree removal mitigation. The prior owner failed to
comply with mitigation requirements as to legally removed trees or to perform required
mitigation for the illegally removed trees . The lack of timely mitigation, not anticipated
under the original MND, has resulted in overall change to site aesthetics, delayed growth
of new trees , created impacts to soil and slope instability to the extent of stump or root
removal without mitigation, and deteriorating health of neighboring trees .
5. Drought. Years ofrecent drought have impacted the health of oaks and other trees on
site that can no longer be assumed to mitigate for the loss of the trees that would be
removed or lost from construction, resulting in un studied and potentially significant
aesthetic and other impacts.
6. Relocation, increased height, and change of design of proposed project. The
proposed project location has changed resulting in deeper encroachment past the LRDA,
further grading on the slope up to the private roadway, and closer proximity of the
structure to the roadway, with resulting potential impacts on aesthetics, slope stability,
roadway stability, and available area to complete mitigation planting measures on
significantly narrowed space between roadside and building. Additionally, the project is
now higher in the sky that in turn has potential aesthetic impacts . Additionally, the
design has changed to a modem sparse rectangle , incompatible with the traditional styles
of all the homes in the immediate hillside neighborhood as well as all the homes in the
Alpine A venue neighborhood that the Town is using for comparison purposes even
though they are not in the hillside zone.
7. Increased grading and cut and fill. The modified project requires substantially more
grading and substantially more cut and fill than the prior project (total of 868 cubic feet
of cut and fill in 2016 compared to 530 in 2010) and may significantly impact soil ,
stability, and flooding.
8. Reduction in the number of bioswales proposed on site from 5 to 3. Bioswales are
used to filter water run-off from the site. The applicant has explained why they have
reduced the number of bioswales from 5 to 3 but the impacts of this change have not been
evaluated through the CEQA process. It is unknown if the applicant took into
consideration the existing paved roadway that runs the full length of the site into run-off
calculations. It is not mentioned in site coverage calculations.
9. Change in Clean Water regulations since the original Initial Study and MND
applying to this project. E ffecti ve in December 2012 ch anges in Re g ion a l Water
Qua lity Control B oard (R WQCB) require ments fo r Stom1water Control pl ans imp os e
s ignificant new requireme nts on thi s proj ec t. A new Stonnwater C.3 Guidebook was
iss u ed in November 201 2 whicb would appl y to thi s proj ec t. On November 19, 2015, the
RWQCB re-issued county-wide municipal stormwater permits as one Municipal
Regional Stormwater NPDES Permit to regulate stormwater discharges . These are
regulatory changes applying directly to this project that have occurred since approval of
the original MND.
4
12/15/2016
To: Los Gatos Town Council
RECEIVED
TOWN OF LOS GATOS
DEC 15 · 2016
I 0 : L\ g' ptn
CLERK DE PARTMENT
From : Appellants of Architecture and Site Application S-15-077 at 19 Highland A v e ,
Smullen , Roberts and Badame Families.
Re: Summary of Appellants' Grounds and Justific ation for Appeal to the Town
Coun cil
At the outset, Appellants would like to thank the Town Staff, the Planning Commission , and
the Town Council for their t ime and attention to this project. We have tried hard to be good
members of the community in this process and hope and believe that our efforts thus far
have been to the benefit of the community to uphold the values as represented by the
Town General Plan, the Hillside Guidelines and Standards, ahd the Town adopted
Standards for Land Use Near Streams. We sincerely hope that our future neighbors at 19
Highland will be able to enjoy an attractive home that maximizes enjoyment of the beautiful
creek-side setting on which it will be built. We fully expect that through this appeal
process, the site can be developed in a way that respects the C ity's standards and
achieves the goals of the developer.
Why We Are Appeallna
The development as currently proposed violates numerous standards and guidelines.
Staff has stated that they have allowed these deviations because the constraints of the
site warrant it, but much of what is wrong with this development stems directly from too big
of a house being proposed on a highly constrained site.
This excess square footage results in:
• Significant portions of the project (more than 40%) outside the Least Restrictive
Development Area (LRDA) on areas exceeding a 30% slope,
• Significant encroachments into required 25' creek setback and the road ,
• Unnecessary impacts and removal of mature trees ,
• Visual Impacts from excess Bulk and Mass
• Numerous elevations from which more than two stories of the home are visible
• Unnecessary grading along nearly the full length of the very long site
Justification For Our Appeal
The bases for our appeal are that:
1) Th e Pl anning Commission erred or abus ed its discretion b eca use its decis ion
was ba sed on fal se and inat:curate info rmation including:
• Neighborhood Analysis Table provided incorrect, incomplete, and mislead ing
information about the Floor Area Ratio (FAR) of proposed proj ect compared to
neighboring homes leading the Commission to conclude that the proposed project's
FAR would be in the lower 25% of homes set forth on the Table . Staff failed to
properly calculate the Net Lot Area because it did not deduct the 20" r ight of way
granted to the two Smullen lots through the property.
• The Comm ission was told the structure was not visible from more than one other
home site , however there is an undeveloped home site adjacent to the proposed
development with a full view of the project. The Comm ission was told the highest
elevation of the revised proposal decreased when it was actually moved up the
hillside and increased.
2) The Plannlng Commission erred or abused Its discretion In falllng to
require a new lnltlal Study•• to changes since the 2010 Mitigated
Negative Declaration that may have significant adverse environmental
Impact•:
• In cases like this one involving subsequent changes after a prior negative
declaration or mitigated negative declaration, the recent California Supreme Court
case of Friends of San Mateo Gardens v. San Mateo Community College
District (as further clarified by the Court since the Planning Comm iss ion appea l)
requires a new initial study where there is sufficient evidence to make a fair
a rgument that such changes may result in significant environmental impacts not
previously studied , and such evidence has been presented here.
3) Th e Plann ing Comm issi on erre d in its approval a nd acted outside its autho rity f o r
th e reasons addressed in our s ubmissio ns, includ ing :
• It granted an exception to General P l an Policy prohibiting more than two visible
stories from any elevation (Policy CD 14.3).
• It failed to justify or make findings regarding non-discretionary Hillside standards
relating to grading for driveways , grading to create a backyard , and minimizing bulk
and mass .
• It failed to properly enforce HSDS&G Standards #2 and #3 on page 54 o f relating to Tree
Preservation
Suaaeated Action for the Town Councll
We a re not asking the Council to enforce add itional limitations on the developer, just to
follow existing rules. We understand that the site has significant constraints and that
exceptions to the town requirements and guidelines will be required . We recogn ize that it is
preferable to develop the site in a way that balances the visual impacts of development
with the st rict interpretation of the creek standards and the hillside guidelines. We
presented the following suggestions to the applicant prior to the first Planning Commission
hearing back in July 2016 and still feel these are reasonable suggestions for the
development of the site. We are asking the Town Council to uphold the appeal , and refer
the project back to the Planning Commission , with the following d irection:
• Reduce the perceived Bulk and Mass of the project by el iminating the top level of
., the house and confine living space to the bottom two levels tucking the bottom floor
into the hillside to allow increased square footage in the basement/cellar area.
• Further reduce bulk and mass and the extent of the grading by detachi ng the
garage and placing it near the private road in order to e li minate the long driveway,
or design the garage to enter on the top level of the site in a way typical to most
downhill developments. Consider using the existing roadway as part of the fi r e
turnaround.
• Reconsider the visual impacts from the cumulative loss of trees since the 2010
project and potential loss of highly impacted trees.
• If encroachments into the requ i red setback are approved, prepare a mitigation
planting and monitoring plan to re-establish the native plantings within t he creek
setback.
• Prepare and re-circulate an Initial Study as to the new potential environmental
impacts resulting from changes in the project and the environment since the 2010
Mitigated Negative Declaration.
Thank you again for your thoughtful consideration of this appeal.
Enclosures
Letter From Susan Brandt-Hawley, CEQA Attorney and Plaintiff in "Friends" Case
Letter From Neighbor Anthony Badame
Letter From Neighbor Lisa Roberts
Letter From Neighbor Mercy Smullen
Appendix A Background Information regarding the Grounds For Appeal
Brandt-Havvley Lavv G r oup
Chauv et House · PO Box 1659
Glen Ellen, California 95442
707.938.3900 • fax 707.938.32 00
1Jreserv a tionla ..-.vvers. com l ~
December 15, 2016
Mayor Marico Sayoc
Members of the Town Council
Town of Los Gatos
110 East Main Street
Los Gatos , CA 95030
Subject: Appeal of Architecture and Site Application S-15-077
19 Highland A venue, Los Gatos, CA 95030
Honorable Mayor Sayoc and Councilmembers:
On behalf of appellants, I am writing solely to discuss why the 'fair argument'
standard of review applies to this appeal and requires rejection of the proposed
project addendum pursuant to the Supreme Court's recent ruling in Friends of the
San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th
937 (Gardens), in which I represent the Friends.
A~ I have not appeared before this Council, by way of introduction my law
practice is focused on public interest environmental law, including published CEQA
cases such as Friends of Sierra Madre v. City of Sierra Madre, Sierra Club v. San
Joaquin LAFCO , Defend Our Waterfront v. California State Lands Commission , Flanders
Foundation v. City of Carmel-by-the -Sea, Lincoln Place Tenants Association v. City of
· Los Angeles, League for Protection v. City of Oakland, Stanislaus Natural Heritage
Project v. County of Stanislaus, The Pocket Protectors v . City of Sacramento ,
Architectural Heritage Association v. County of Monterey, Preservation Action Council
v . City of San Jose, Galante Vineyards v. Monterey Peninsula Water Management
District, and Sierra Club v . County of Sonoma.
The Supreme Court's ruling in Gardens, published in September 2016,
addresses the standard of review for determining when an EIR may be required for
a modified project initially approved via a negative declaration. The ruling is
complex. The Supreme Court reversed a lower court decision as to the standard of
review that applies to whether a changed project is to be treated as 'new' versus
'supplemental' to the original project. However, the Court also affirmed the key
Letter to Los Gatos Town Council
December 15, 2016
Page 2 of3
ruling in Gardens that is relevant here: regardless of whether a project is treated as
'new' or 'supplemental,' the 'fair argument' standard of review applies to whether an
EIR is triggered by potentially significant environmental impacts of unstudied
project changes. (Gardens, supra, 1 Cal.5th at 957-959.)
There was initially some dispute about the holding in Gardens in the press
and in various legal online biogs. In fact, I understand that your Planning
Commission was advised of a different interpretation of the case in October. But
there can be no doubt as to the meaning of Gardens because last month the Supreme
Court issued a grant and transfer order in Coastal Hills Rural Preservation v. County
of Sonoma (2016) 2 Cal.App.5th 1234 that confirms the above interpretation:
The matter is transferred to the Court of Appeal, First Appellate District,
Division One, for re~onsideration in light of Friends of the College of San
Mateo Gardens v. San Mateo County Community College District et al.
(2016) 1 Cal.5th 937, 957-959, footnote 6, and California Code of
Regulations, t ltle 14, secti on 1 5384. The request for an order directing
depublication of the opinion in the above entitled appeal is granted.
The referenced pages in Gardens explain that regardless of whether a
modified project is 'new' or 'supplemental,' " ... when subsequent changes to a
project [initially approved via negative declaration] may have significant impacts, an
EIR is triggered." (Gardens, supra, 1 Cal.5th at 958, italics added.) This is the 'fair
argument' standard well-established for decades, as in Friends of B Street v. City of
Hayward (1980) 106 Cal.App.3d 988, 1022. (Gardens, supra, 1 Ca1:5th at 957, 959.)
Gardens reiterates that an EIR process is triggered when a modified project "might
have a significant environmental impact not previously considered ... " in a negative
declaration approved for the earlier related project. (Gardens, supra , 1 Cal.5th at
959, italics added.) Gardens criticizes Benton v. Board of Supervisors (1991) 226
Cal.App.3d 1467, which declined to apply the fair argument standard to negative
declarations for modified projects. (Gardens, supra, 1 Cal.5th at 961, n.6.)
When the fair argument standard applies, as held in Sierra Club v. County of
. Sonoma (1992) 6 Cal.App .4th 1307, 1322-1323, there is "a preference for
resolving doubts in favor of environmental review ... " A lead agency's finding of no
potentially-significant impact "can be upheld only when there is no credible
evidence to the contrary." (Id. at 1317-1318.)
Letter to Los Gatos Town Council
December 15, 2016
Page 3 of 3
The Supreme Court's grant and transfer order in Coastal Hills references the
pages of the Gardens decision that confirm the application of the 'fair argument'
standard -an EIR is required, regardless of whether a project is new or
supplemental, if project changes MIGHT have a significant impact not previously
considered. Appellants thus respectfully ask this Council to consider facts that
support a low-threshold fair argument that an EIR is required. Further, the use of an
addendum is not authorized by the Public Resources Code, at all.
Thank you.
cc: Bart Hechtman via email
Robert Schultz via email
ANTHONY J. BADAME, M.D.
Dlplornate American Board of Dermatology
TQ\\tn Counell .
rown of'los Gato$
110 East Main Str•t ·
to$' Getos. CA-95030 ·
.. ,
RE: 1$ Highland Av~nue, L.os Gatos, CA 95030 ·· .
2025 Forest Avenue, Suite 9
San Jose, Californi a 95128
Telephone: (408) 297-4200
. ·.Fax: (408 ) 297 ·2503
www.badame.com
I.am a. k)ng timEJ Ji8Sid$nt Of Lf?S -Gat~:hfJving attend~ $~~ -~ryi~ grammar ~I~, ~0$ GetOS
~tgh s~t; and the tinwersity:of C8'om1a· et Berl<e1ey. · lllreughaul my 45-.~ in .Los Gatos, I
ha.Ve ~<Hhe grilWth at .our toWf1 fl~~. our Jeader$_have dPo.e a fi.,""9nd0lla Jo1> in
rri•inta1tttng oiJr uniq~eQt\aracter:~nd uflhQlf.ling the Vatues·whieh Jc--~ ourtOwn ctlarmlng.'· .
. The ~:.de~IQpm.ent ·•t 19·Htgltiaild. runs .pounter 10~ .. QbJec.five 1orwh.t¢11 .. wth_ave~S.tr(>ve .
Based upon ttlo dear d.ir~es :of the HOS&G11h~ development at :19 Highiand tests ma,,Y:of the
s,iated standardS.·and gu,ktetines. · cerlt,r to 1he argument llgaiost :thl$.proJe<#·~:·ttle,~'9r ~
and ecaft:) it tmposei upcm :the Site. ,Jn an effOft to forop near ·rnaximutn FAR~··CQnStrtiJnt st&pclaros
and. guideiines ~ been stretched and ·patently violat~. The site.is .heavily OOnstrainect by..a
·creek. .. numerous~. ~af:ld steep .,grades_wniCtqx>Se $.gn~t.obstades ill .~ .d,~per"$., :
quest .to~ squ•re footag.e. 1·~' hot o~to u,e developer'•. intel'.)tiQn to~
economio gJjlf); however, the dlivetppet\Q"tU•tadheretQ the ·0tWI016 .~•Ad ~tk>ns. · . ·.· ... ·Numerous ·~ and·iWo.~ntatiOrls by me t0the ·ptanntng commisSlonbave adclreUed ihe
breaches ,in ttterui8s·anct. regulation&. Many of t11es&:brea~ have . been siatentty ignored or
dismtasect ;•s ~tw.~-T~t•re .tl6t·:ptuy~.·•TheY ~Jnt ·ifnmecltate netgh~,and :tn,e ,overaJJ .
ehafacter.of the t0wn. ··Jt ls vital that ·th& town 'COUfldl conslder,ead\ and eWfYone _of-the b~ches
j~-·,~·.f!'e ;,.~ ~fttteHDS&G ·<Jkl~ . ··... . -. . . . , . , . . ... ·, · ., . ·. :
· .. :.·· ·:.· .. .:
.·:·
.MY property at 1. Highla~ Is d~-agjacenUo U,e ,p~_development~ · 1)$1.IY-J wfl(·,~-•ubJect
:t~ Vt~s .Qf the: de~lopment in Varbus ,manner.•. · Fbtther. once I estabtJsh al1f)W dnVewsy'fu . ..
~here :t~ th&' Fir$ Marshalf's Mandate,.vi$bilfty to 1e:H1ghland wm be eohanQl!?d .uri.d91'$QQr:iog my
:Con~m Qf the vi8ual"f{$0t. l4"1 ats0 '-deepfyQ00(!8med abo.Ut protectiOn of,·l\e·cteek and the ·
natural $Urrouridlr1gs. f entrust ~e town council u>. Protect ttte.se vn.I assets and rute:ln the
dJreqtio•lWhich ~8$ our towf\ ••nd· "'6k1en~ ~.. :: ···.· .' \ . . .•. ~ .. : .. · ·. . . . · . · .
·:·: .
Wbtte 1 fiJ11y ~e -~ home .~ ~on 1~ Highland , t. ~onoh~uppt;>rt th' current ·
~toPment. A o:iUch ~r design CoJ"fOrmtOOtc> ~.site ·is.~~ It ls ~Y hope tha1 ~t0wn
couodl encour-.s such a desJgn.
·,, .. , .. :
. .. :· ' .
$ineereJY. · ·
{)i(::/16~-
Anthony J. Bada.r.ne. M.D
December 15 , 2016
Town Council
Town of Los Gatos
110 East Main Street
Los Gatos, CA 95030
Lisa C. Roberts
78 Alpine A venue
Los Gatos , CA 95030
lroberts @rehonroberts .com
408-859-7585
Re: Appeal of Architecture and Site Application S-15-077
19 Highland Avenue, Los Gatos, CA 95030
Hearing Set for December 20 , 2016
Dear Mayor Sayoc and Me~bers ofthe Town Council:
1 am one of the appellants in the above-referenced appeal , and I am submitting this letter
to explain my overriding concern as a very long-time resident of Los Gatos for
participating iil this appeal : to do my part in advocating fo r enforcement of the rules that,
through efforts of our dedicated Town leadership and community, have been enacted to
allow res idential building while respecting the natural environment and beauty of the
Town and its neighborhoods, and most specifically rules limiting undue size and mass in
hiJlside homes.
I want a house built at 19 Highland. l do not want the property to be a park . I do not
want the project crushed. I do not want it, or me, or the Town of Los Gatos mired in
litigation . I grew up in Los Gatos , and my husband and I have lived at 78 Alpine A venue
for 28 years . We love living in this Town , and we Jove living in a neighborhood . We see
many houses from our property. Just from our back yard facing the proposed project, we
already see 10 different residences. I grew up in o1d, ru.ral Los Gatos , lovely but lonely,
' and now I look forward to the idea of walking down our steps into the ravine , popping
from my side of the creek to the other side, and say ing hi to our new neighbors.
Neither my husband nor J have ever before objected to a project. which I believe is
something of a statement given the number of projects that have occurred just on our
street since we have been here. Our history is to the absolute contrary; in every project in
which we have given input, our input has been to provide support. That input , however ,
has always been based on our understanding that the project complied with Town laws .
and standards. The same cannot be said of this project.
This , then, is the basis for my role in this appeal. I would not even think of opposing this
project if it were in compliance, or even in substantial compliance , with Town laws and
standards , but it is not. As explained in our submissions to the Planning Commission and
again in our submissions here. the project violates mandatory laws without any growids
or procedure for variance (including, for example, the prohibition against more than two
stories being visible from any elevation), and it also unreasonably strains discretionary
standards (including, for example, a departure from the LRDA to allow a house nearly
five times the size [4700 sq. ft.] than would otherwise be allowed [1000 sq. ft.]).
ft has repeatedly been said that this site has numerous ''constraints .n Lamenting the
constraints . the developer's architect has called the site a '"pit.'' The developer 's attorney
has complained that the developer is being penalized for the sloping of the site. But
constraints are not penalties. They are protections~ and what they are intended to protect
here is not a pit., but a serene and lovely property consisting of a long and narrow hollow
extending between steep slopes, coursed its entire length by an intennittent stream , made
up of a woodland of numerous old~growth trees , and bounded by neighboring hillside
properties of·equal serenity and be~uty.
\
This site should have a home. but it should also have a protector, and that protector is the
Town. I appreciate the work of Staff and the Planning Commission. I agree that some
accommodations are warranted here to .allow a reasonably sized home. But I do n.ot agree
that 4700 sq. ft. is a reasonable size for a home on this site; and I believe that the
accommodations that were made to allow this size and mass represent a serious and
extreme departure not only from the letter of the applicable laws and standards but also
from the goals underlying those rufo.s. It is for this reason that I decided , after very
careful consideration, to participate in this appeal, and that I now respectfully request the
Town Council to consider and grant our appeal.
Thank you for your consideration of this letter.
~~.~~ l~Robetts
Mercy Smullen
25 Highland Ave, Los Gatos CA
December 15, 2016
Dear Los Gatos City Council Members,
Thank you for your time and dedication to our wonderful town. My husband and I live at 25
Highland, adjacent to the site of the proposed development. We moved to 25 Highland and Los Gatos in
1974 drawn by the rustic beauty of the land as well as the close proximity to the vibrant town . It has
been a special place to live and raise a family; a family going on many grandchildren and even a great
grandchild now.
Over the course of our 40-plus years at 25 Highland there have seen several attempts to develop
the 19 Highland property. However, each time either the city council or the planning commission denied
the request due to the serious challenges of the site, for example a creek running through the property,
the many trees, and the severe slopes. Everything proposed was just too big for the site. I recall at one
hearing a planning commissioner commented that the only thing that could be built on the site was
three tree houses!
My, times have changed . Needless to say, it was quite a surprise to learn that a project was
finally approved on the site, especially one as large as the Pearson project proposed today. While I
respect the right of the land-owner to build on the site, I have seve ral concerns regarding the proposed
project.
1. Our driveway runs right next to the proposed site on a steep slope . I have serious concerns
about the stability of the slope upon which our driveway resides, especially given the extent
to which the project projects into the sloped area contrary to the city gu idelines.
2. I am concerned about the impact such extensive construction so close to our driveway will
have on our ability to enter and exit our driveway. We are getting up in age and have
experienced times when we had to go to the hospital unexpectedly. Not having access to
the driveway could be a serious problem.
3. Over the years various owners of the lot have removed more and more trees from the site.
understand another seven will be removed to accommodate this development, and more
are threatened. It seems like a city like Los Gatos should have more interest, not less in
protecting our trees and natural beauty.
4. Also over the years, we've experienced many intense rain storms. At those times the creek
behind our house roars with muddy water which passes through the 19 Highland property.
Water has flooded parts of the property, well over the creek bank on occasion. I know that
previous plans showed a flood plain over the property. It seems hard to believe that a
house would be built so close to the creek.
5. Our property at 25 Highland includes a lot that is adjacent and actually closer to the
proposed site than our house. At some point it is likely that this lot will be developed with a
home, perhaps something we could leave for our children or grandchildren after we are
gone. That lot has a direct view of the proposed home on 19 Highland. I don't think the
impact of building so close to this lot was considered when the planning commission
approved the size and location of the home.
6. The house seems out of proportion to those around it. We live in a wood and brick two
story home. The old-Stoup's home on the other side of the property is also an old wood
home, not overly large. This 19 Highland house seems to stick out uncharacteristically from
its neighbors.
As a longtime resident of Los Gatos, I would like to see the city maintain its beauty and charm.
At the same time, progress means more building and we should not deny anyone the right to build on his
property. I just hope we can build something that conforms to the rules our city has adopted to maintain
what is great about Los Gatos. Thank you for your time to consider this matter.
Yours Truly,
Appendix A
Background Information regarding the Grou nds for Appea l
19 Highland Ave. Los Gatos December 15, 2016
The following document is a summary of the most pertinent issues . It is prov ided for
background and explanation only.
Size and Mass
Appellants' primary concern with this project relates to size and mass, both in terms of the
sheer size of the project and of the size being the culprit in causing numerous other problems
with the project, including, for example, encroachment into the creek setback and
encroachment outside of the LRDA.
1. Applicant's Revisio n s
Applicant's size reduction was de minimis given the Commission's direction to make the project
substantially smaller. The percentage change did not even reach double digits, the project
having been reduced overall by only 8.45 percent (only 3.45 percent more than the "not
meaningful" 5-percent reduction in Commissioner Hanssen 's example). Applicant's house, as
originally designed, squeezed in stereotypical luxuries, amenities and maximum possible rooms,
and the revised design retains all the same hot sell features, just reducing certain rooms to the
threshold of code minimum at the expense of the natural beauty of the site and the
surrounding neighborhood. Additionally, while Applicant claims that he has a lso re -designed
the house to reduce its "perceived mass" (see Applicant's 8/18/16 letter), in fact, the revised
design has increased perceived mass, as discussed below.
2. Th e Com mission's Er rors of Law and as t o Di scretion
Town ordinances, standards, and guidel i nes include numerous provision directed to size and
mass, includ i ng in the General Plan and the HDS&G. Some are mandatory, designated by the
word "shall"; while others are discretionary designated by such words as "should." 1 Even
discretionary provisions should generally be enforced, departures made only in exceptional
circumstances and only to the extent necessary to address those circumstances while abiding
by the underlying goals and intent of the provision. Here, it is Appellants' position that the
Commission allowed a design tha t outright violates mandatory provis ions, and that, further, the
Commission allowed unexceptional considerations (including, e.g., Applicant's desire to
maximize size on this site, an incorrect notion that a certain level of FAR is guaranteed an
1 Based on communications with Staff, it does not appear that Town Staff distinguishes between
mandatory and discretionary provisions and has concluded that mandatory standards are ideals to be
approached rather than mandatory. This is not, however, borne out by the HDS&G itself, which has a
very careful e xplanation about standards vs. g uidelines.
1
Size and Mass Continued
applicant, and perhaps the money Applicant purportedly spent in revising a design that the
Commission itself agreed was un-approvable in the first place) to override the language, goals,
and intent of other provisions created for the proper planning of hillside homes in Los Gatos .
Just with respect to sheer size and mass (and before even considering the effect of size and
mass on other issues, including tree preservations and the environment), at least the following
provisions militate against the size and mass of this project:
• A maximum of two stories shall be visible from every elevation. (Policy CD-14 .3 [the
''Visible Two-Story Rule"].)
• Ensure that projects are designed to fit with and avoid the site constraints. (the
"LRDA Provision"}
• Buildings shall be designed to conform to the natural topography of the site .
(HDS&G p. 36 [the "Natural Topography Rule"]; see also examples pp. 36 and 18.)
• The height of the lowest finished floor(s) of a structure ... shall not be more than four
feet above the existing grade to ensure that buildings follow slopes. (the "Four-Feet
Rule")
• The project should be "compatible with the surrounding neighborhood and
respectful of neighbors." (HDS&G p . 31 [the "Compatibility Provision"].)
a. The Visible Two-Story Rule
The Visible Two-Story Rule was violated by approval of this project because more than two
stories are visible from, not just one elevation which alone would bar the project, but from
many elevations, including from Alpine properties that extend down to creek level to the east,
Highland properties to the south, from the north, and even from large portion.s of, if not the
entirety of,·the expanse from the west. The Commission, many members of which actually
visited the site, apparently overlooked this. Indeed, as pointed out by Appellants and discussed
further below, the revised plan is even worse in this regard than the original one depicted by
the story poles that the visiting Commissioners would have seen, the uppermost portion of the
structure having been raised one foot higher in the air than before.
The Commission did not discount the Visible Two-Story Rule itself, which was appropriate
because the rule "shall" be followed .2 Rather, focusing on only one elevation from a 20
architectural drawing (the vantage point from the private roadway edging against the proposed
building site), it determined that only one story was visible. This is simply contrary to the
2 N<?r, based on Appellants' post-Commission -appeal discussions with Staff, does Staff discount either
the existence or effect of the Visible Two-Story Rule ; Staff's response was simply that they do not apply
it . Even so, it is apparent that Applicant recognizes the significance of the rule, focusing on stories and
visibility at and leading up to the October 26 and arguing, as the Commission apparently accepted,
limited story visibility from the private roadway.
2
Size and Mass Continued
evidence; not just one, but in violation of the Visible Two-Story Rule, more than two stories are
readily visible from many elevations from the roadway in real life. Additionally, this conclusion
ignored the visibility of more than two stories from nearly all other vantage points surrounding
the proposed project, as depicted by Appellants' slide presentations as well as even by the
more conservative story poles associated with the prior design.
The only apparent ground on which Applicant appeared to justify his failure to follow the Visible
Two -Story Rule (other than by focus ing only on certain vantage points from the private
roadway rather than every elevation) was a technical argument that the house is not a "three-
story'' house . However, that issue is not governed by the Visible Two-Story Rule but by another
rule prohibiting "three-story" houses. (See HDS&G p. 36 [the ''Three-Story Bar''] ["[t]hree-story
elevations are prohibited"].) Unlike that bar, the Visible Two-Story Rule does not turn on
whether the house is a three-story house ; it does not even refer to three stories, and, unlike
the Three-Story Bar which is completely silent on visibility, it focuses and turns on visibility. If,
as here, more than two stories are visible from any elevation, the house is not allowed.3
b . The LRDA Pr ovision
At the October 26 hearing, commented, and Applicant by his Architect and other members of
his team agreed, that, to be compliant with applicable rules including the creek setback and
LRDA, Applicant could build only a 1,000-square-foot house on the site. Regardless of how one
might feel about that size, that size must; therefore, be the starting point in (indeed, the
benchmark for) any exercise in discretion in relieving Applicant from the demands of the LRDA
Provision. Appellants are in absolute agreement that some exception from that prov ision was
and is appropriate to allow construction of a reasonab ly sized house . Appellants do not,
however, agree that Applicant was entitled to nearly a five-fold increase i n the otherwise
allowable house size. It is almost as if the extreme constraints of the site were allowed not just ·
to open the door to a reasonable LRDA exception, but to fling it wide and free of further
cohcern over the requirements, goals, and purposes of the LRDA Prov ision.4
3 Any other construction of the Visible Two-Story Rule would render it identical to the Three-Story Bar
and thus render it utterly superfluous in violation of basic maxims of statutory interpretation to assume
that each statute was enacted with full knowledge of other existing statutes, that each statute must be
given effect, and that the wor ds of each statute (here , very different words as between each statute) be
given full meaning and force. In any event, the Town Council need not decide this issue on this appeal;
as discussed below, Applicant's plan has depended on so many other unwarranted ex ceptions (and what
i ndeed are unstated variances to the extent in violat ion of mandatory requirements) that there are
ample other grounds on which to deny this project in lieu of a p r oject better complying with the
demands of the site, the neighborhood, and the applicable laws.
4 Appellants are not architects, and Appellants do not know the perfect size for the house for this lot,
but they have sufficient experience to come to a very reasonable conclusion that five times the
otherwise allowable size is excessive .
3
Size and Mass Continued
Based on the Commission's comments and questions, it appears that the Commission's
controlling justification for allowing such extreme encroachment beyond LRDA was FAR .
Specifically, by Commissioner Hudes, it not ed tha·t the project's FAR is 16 percent less than the
maximum FAR allowance for the site and the resulting FAR would be in the lower quartile of the
homes listed on the Neighborhood Analysis Table that was presented to it. It is Appellants'
position that, in addition to having erred by failing to follow the mandatory Visible Two-Story
Rule, the Commission improperly exercised its discretion as to the LRDA Provision by undue
concern for maximizing FAR and by reliance on a Table that did not accurately provide the full
picture regarding the levels and distribution of FAR in the relevant neighborhood.
Maximum FAR is not an entitlement. It is not even a goal. The FAR rules are intended only to
assist in determining whether the mass and scale of a project is compatible with the
surrounding neighborhood . Moreover, they must be applied in conjunction with other
standards and requirements, and, indeed, as to hillside homes and under the express prov isions
of HDS&G, the extent of FAR as to any one site is expressly limited by the constraints of that
specific site. Thus as provided by Los Gatos Code of Ordinances, Sec. 29.40.075:
The objective of the floor area ratio {FAR) is to assist in determining whether the mass
and scale of the project is compatible with the surrounding neighborhood. The FAR is a
nominal limit, not a goal/ and shall be used in conjunction with the res idential
development standards adopted by resolution.
(See also HDS&G p. 27 ["[A]ch ieving the maximum floor area allowed is not guaranteed due to
individual site constraints"]; see also testimony of Lee Quintana, supra.
The constraints of the subject site are extreme, as has been repeatedly stated by Applicant, by
Staff, by the Commission, and, most likely by the prior applicant seeking approval for
developing this parcel and the staff and commission existing at that time. Commissioner
Hudes's description of the property as the depth of a hollow created by erosion and a stream is
apt, and what's more, the property lines do not encase the entire hollow but only a portion of it
(one side lying within Alpine Avenue property lines); the stream flows such that the required
creek setback cuts deeply into potential building areas; the slope side of the hollow owned by
the property owner is very steep; as described by Applicant's arborist, the property is a
woodland (even now after removal of trees from the prior application); and that woodland
includes prominent old-growth specimens that will be removed or destroyed by the
construction. There may be more constrained sites in Los Gatos, but none have been
mentioned during this process. The conclusion that these considerations should be outweighed
to allow the applicant near maximum FAR is not warranted ; nor would it be good precedent,
effectively making at least that amount an entitlement except for a site, if it exists, that is even
more constrained than this one.
4
Size and Mass Continued
c. The Neighborhood Analysis Table
The numbers in the Neighborhood Analysis Table do not provide a proper comparison of the
project to the neighborhood, lacking in critical information and adopting an erroneous
comparative approach both in terms of content and methodology.
First, the Table compares apples to oranges, with at least half (the 9 Alpine Avenue properties)
of the 17 neighboring properties on the Table are located in an entirely different zone than
subject. They are zoned R-1 :20, whereas the subject is zoned HR-2~. The zoning difference is
not just technical; it is an actual reflection of the clear differences in the neighborhoods .
Alpine Avenue is a neighborhood street, with a public roadway and streetlights, sidewalks,
houses uniformly facing the streets with front yards and in most cases back yards, and with
typical neighborhood setbacks between each house.
The area accessed by Highland Avenue, albeit adjacent to Alpine {and thus the impact of the
large proposed development on certain of the Alpine houses), is of an entirely different tenor.
It is a rural area, still blessed by the oaks and shade and streams and greenery of very old Los
Gatos. It does not have a public roadway but a private one. It does not have sidewalks or
streetlights. It has deer paths and moonlight or flashlights for night walking. In terms of size
and mass (and thus FAR), the impact of construction in this area is far different and far more
devastating than any like construction would be on Alpine Avenue.
Second, the Table does not address massing. The subject project amasses all its FAR in one
place and in one building. That is not the case with numerous of the neighboring properties,
including the ones that appear to have large houses. Appellants have not researched every
house, but notable examples i n which neighbors have allocated their FAR to reduce mass,
which Applicant has not done 5, include detached garages and detached cottages. These homes
i nclude:
• 66 Alpine : detached garage
• 74 Alpine: detached garage
• 76 Alpine : detached garage and two detached cottages6
5 For some reason, the Table includes only some (but not all) Alpine properties on the side of the street
near the subject property. The Alpine neighborhood does not split at the street, and , if any of Alpine is
used for comparison to the adjacent HR-2 ~ area, all of it should be; and the houses on the other side of
Alpine provide yet additional examples of reduction of mass through detached garages, cottages, and
other means.
6 The table would imply that this property, consisting of 4,117 sf house on an 8500 sf lot with a FAR of
0.43, is made up of an imposing house . Nothing i s further from the truth. The house is pleasant and
moderately si zed, with much of the property FAR distributed in the two cottages on the rear of the lot
built decades ago under different rule s and standards .
5
Size and Mass Continued
• 78 Alpine : detached garage and detached cottage
• 25 Highland: detached garage and pool house 7
.
Third, the Table admittedly includes cellar space in neighborhood homes even though such
space is not included in FAR, thereby inflating the comparative FAR numbers. (See Aug.ust 24,
2016 Staff Report p. 6 [''The provided floor areas may also include cellars"]; Again, Appellants
have not researched every house (even the Town not keeping track of cellar space), but at least
two properties on the Table have cellar space including 78 Alpine and 15 Highland Avenue .8
Fourth, the Table admittedly includes the gross rather than the net lot area. (See Staff Report
p . 6 [''The Neighborhoqd Analysis Table below includes the gross rather than net lot area (lots
in the area would be subject to a slope reduction based on topography"].) It is not correct that
all "lots in the area" would be subject to a slope reduction; only some of the lots, including
most notable the subject property, are subject to slope reductions, and, in any case, as noted in
the Report, the slope reduction for each lot depends on the topography of that lot. By not
including the slope reduction, the Table overstates the pertinent size of lots, like the subject
one, subject to a slope reduction, and, thereby, as discussed next and under the Table's
methodology for determining FAR, thereby understates the FAR of such properties including
the subject one . Further the Net Lot Area does not exclude the right of way of the private road
as defined in the HSDS&G Glossary.
Fifth, the Table does not employ a proper methodology for determining FAR. For the reasons
forth above, in order to provide accurate guidance, the Table should include only the hillside-
designated homes, and, further, the column entitled "FAR" should accurately identify and
exclude cellar space, exclude 400 sf of garage space while including any excess garage space,
and be based on the net size of the lot after slope reduction. Additionally, to provide accurate
7 Ther e are also nu.merous other ways in which the mass of homes on the neighboring properties has
· been reduced or masked lessening thei r impact, including, for example, 50 Alpine and 54 Alpine which
are located in relatively low-lying areas at the back of flag lots; and 58 Alpine which is shown to have the
most living area and a FAR of .25 with considerable living space below grade and not observable from
the street adhering to the intent set forth in the General Plan "to provide hidden square footage in -lieu
of visible mass". Applicant may argue that he is not able to take these steps on his lot, but that merely
h ighlights the constraints of the lot and does nothing to establish that the project, despite its large si ze
and mass, will fit in.
8 Nor, according to the Staff Report, does the Table exclude the 400 square feet of garage spa ce that is
not included in FAR; and, while an argument could be made that this inclusion is across the board and
thus negatively affecting all properties, maximum FAR is a ratio, and inclusion of improper garage square
footage additionally puts the value of the Table in providing a fair neighborhood comparison into
question . Moreover, as discussed below, while the Table includes the garage space in one of it s
columns, it does not include that space, or the excess garage square footage (over 400 sf) that i s
supposed to be included in the FAR calculation, in its calculation of FAR .
6
Size and Mass Continued
information, the Table should focus on each property's percentage of FAR based on the
maximum attributed to that property. It does none of this.
The Table calculates each house's FAR ratio by dividing the corresponding number in the
"Living" column by the corresponding number in the "Lot Size" column . Even though, in
separate columns, it provides garage information, it completely ignores them, both the square
footage within the 400-ft exemption and the non-exempt excess square footage, in the FAR
calculation.
d. Heigh t
The Commission ignored two facts about height : (i) Applicant changed his plans to raise the
existing grade after one of the Appellants ra ised concerns about height over existing grade
during the DRC process; and (ii) despite Applicant's insistence that his revised plans have
lowered the house by 18 inches from his original plans, in fact, the revised roof line is actually
one foot higher than in Applicant's original plans.
The plans showing the manipulated higher existing grade were posted as the final and actual
plans for approval by the DRC upon noticing of th is application to the public, and, like
Applicant's subsequent plans, bore the signatures of Applicant's professional who drafted and
stood by the accuracy of the plans. Under the original plans, Applicant violated the Fou r-Feet
Rule. The plans were not thereupon changed to lower the height of the house but to raise the
existing grade. Other than claiming "mistake," no explanation was given for th is . increase, and
no other mistakes or required changes were noted or made. Appellants understand Staff's
thinking to be that Applicant's professional will stand by the rev ised plans, and that may be
appropriate, but, given that the original plans were equally certified as accurate, that the
change enables a higher height, and that the change was not made until he ight concerns were
raised should require the Town to make an independent evaluation of existing grade by a
licensed professional and do so before any grading or construction on the property, not to
mention before approval of the plan. While Appellant raised this issue to the Commission, no
comment on the matter was made by the Commission at the hearings .
On the second matter, the Commission specifically asked Staff about the overall height at the
October 26, 2016 hearing, but rece ived only a response about whether the house met the 25-
foot height requ i rement w ithout Staff addressing the overall height issue raised by Appellants:
that, in response to the Commission's concerns about size and mass, Applicant revised his plans
to provide for a house that actually rises higher in the sky than under the original plan,
increasing visibility and mass, and that, rather than noting that, Applicant cla imed t hat he had
7
Size and Mass Continued
instead lowered the height by 18 inches . This was carefully explained with a table of the
structure's heights in a clear and precise manner by Appellants during their slide presentation.
e. Failure to Adequately Consider Neighbor Views
Applicant claims surrounding neighbors are minimally affected by the visual impact of the
structure. This simply is not true. The backyard of 78 Alpine sustains the full brunt of the
towering north edifice . To the south, 1 Highland, upon the fire marshal's mandate to reduce
the grade of the existing driveway, will be subject to unobstructed views of a two-story, side
yard wall plane extending over 100 feet long. To the east, residents of 25 Highland will pass the
structure daily by car and strolls down the private road will be vitiated by the long edifice
hugging uncommonly close to the road. Overlooked by all except appellants is the
undeveloped parcel directly east of the development. This parcel, once developed, will face the
applicant's structure head on. It will be most affected by being subject to unobstructed views
at all times and manners during the day.
f . Failure to Consider Solutions
The subject property has three potential building sites, and, rather than approving Applicant's
plan, the Commission, Appellants believe, should have required Applicant to make better use of
those sites. In any event, Applicant's overall square footage should be reduced, but,
additionally, using the other building sites to distribute FAR would result in a much less-
intrusive project, including by, for example, creating a detached garage (which in any event is
required under the Visible Two-Story Rule lest Applicant instead desire to omit a different
story) and/or a detached office and/or detached studio or cottage.
No reason has been given for avoiding this distribution by use of the building area at the east
end of the lot, and, whether shifting some of the mass of the main house for office, cottage,
studio, or other use, use of this area would soften the effect of the project now centered on
(and vastly encroaching past) only one spot of the property and in one solid block of building.
As for the west end, Applicant has not devoted sufficient energy, with assistance from the
Town, in utilizing the building area there (subject to creek setbacks/soil stability issues, which
also in any event apply to the currently planned turnaround. It is correct that the Assistant Fire
Marshal Doug Harding has advised of the need of a fire turnaround in that area (and it is also
correct, based as well on Appellants' communications with him, that he is firm on this
requirement). However, equally correct is that he was not provided with information critical to
the decision; the information resulted in application of the turnaround requirement where it is
not necessary; and that the availability of other options were not disclosed or considered.
As Appellants understand, Mr. Harding made his decision based on February 2016 plans.
Applicant's plans state that the roadway is a "private driveway." This is incorrect under fire
regulations. A driveway is defined as "A vehicular access serving a single parcel of land
8
Size and M ass Continued
consisting of not more than one primary single family dwelling, one secondary dwelling, and
associated accessory structures. 11 The roadway here serves three different parcels and is not a
driveway. It is correct that the roadway is not public, but public versus private is not the
determining factor under the fire regulations; rather, whether public or private, the need for a
turnaround turns on the distance of the farthest reaches of the house from the centerline of
the roadway. As stated in the Santa Clara County Fire Marshal's office Standard Details and
Specifications Spec. No. CFMO-Al:
''An approved fire apparatus turnaround is required when the distance (as measured along the
path of travel) from the centerline of the access road to the farthest portion of the structure
excess 150 feet. 11
Here, admittedly, there is still a difference of opinion regarding the need for a turnaround for
this project. Mr. Harding believes that the pertinent roadway centerline is the public portion of
Highland Avenue; based on the clear language of the statute, however, it is Appellants' position
(and should be the position of the Applicant and the Town) that the pertinent centerline is from
the private Highland Avenue roadway because that is precise ly what the statute says: " .. .from
the centerline of the access road ... ". Mr. Harding also takes the position that only the centerline
at the roadway at the driveway entrance counts even though the regulation does not say this
and even though, in this case, all parts of the proposed structure will be well within 150 feet
(more like 20 -30 feet) from adjacent portions of the roadway.
Also based on communications w ith Mr. Harding, he was not advised of the turnaround on
Appellant Smullen's property at 25 Highland just up from the subject property, and he was not
advised of this even though, during the communications between Applicant and Appellants
even before the DRC hearing that turnaround was suggested as an option. This turnaround is
more than sufficient as a fire turnaround.9
None of this is intended to suggest that Applicant should have ignored or disputed the position
of the Fire Marshal's office . It is only to say that, by having provided full and accurate
information to the Fire Marshal and having further discuss ion regarding the actual nature of the
roadway and the effect of the regulation and the availability of a nearby alternative, Applicant
may well have, and may well be able, to make better use of an important building spot to
lessen the visual and actual impact of his project by detaching excessive amount of FAR from
the one structure and dispersing it to others, with an overall far more pleasant and far less
imposing effect.
9 Mr. Hard ing stated his belief that such an option would be unworkable because the property owners
could cancel any consensual easement allowing for this· use, but any such easement could readily
require the Fire Marshal's consent to cancel, and, further, it is not dear that a fire department needs an
easement to use any available land to fight a fire, and, obviously, the owner, now or later, of 25
Highland would most likely appreciate the dous i ng of any fire just down the hill from his or her property.
9
The Planning Commission erred in approving the project without proper consideration of the
true facts and enforcement of the laws and standards regarding trees on the property:
Applicant's Tree Plan Appr oved by the DRC and Initially Presented to the Pl anning
Commission Was Based on Outdated and Erroneous Information; Was Based on
Demonstrably I neffective and Substandard Tree Protection Measures; Was In Violation of
Town Code; and Called for Removal of or Peril to Prominent Trees Including a 150-Year-Old
Oak Tree With the Largest Canopy on the Property.
As set forth in the Tree Attachment, a copy of which is attached, the project should not have
been approved, and, thus, the Planning Commission erred in approving, the project based on
the following matters relating to trees. The DRC's approval was based on a 2010 arborist report
without updated information including current tree size (and thus value and required tree
protection measures) and current (as opposed to 2010) tree health and quality. Nor did the
DRC require updated information, provided in the 2010 and notably omitted from the
subsequent post-DRC arborist reports submitted by Applicant, regarding what trees might not
survive construction even though not openly slated for removal. The importance of such
information is not only demonstrated by the 2010 arborist report that did include such
information, it is demonstrated In HSDS&G Standard #3 on page 54 of relating to Tree
Preservation, which should have been but was not followed here, providing that, "[i]f a tree is
proposed for removal, or if the Town determines that a tree may not survive construction,
information on the visual impact of the removal as well as the impact on adjoining trees shall
be submitted with plans."
Even as to at-risk trees, as evidenced by Applicant's arborists' reports submitted after DRC
approval and during the Planning Commission appeal and Town Code section 29.10.1005,
Applicant's tree preservation measures was substandard as well as in violation of Town law.
The project failed to take into consideration the value of the property as a "woodland" as
described by Applicant's own arborist. There has been no mitigation for trees already removed
from the site by the prior applicant. Important trees are at risk, either from outright removal or
construction loss, including, by way of example, Tree 30 which has the largest reported canopy
on the property, is an important property line landmark and screen, and, according to
Applicant's arborist is about 150 years old.
While the Planning Commission was not provided with the Tree Attachment with the original
August 10, 2016 letter, Applicant was provided with that letter immediately upon receipt and in
its entirety, and, indeed, responded to the Tree Attachment before the letter and attachments
were provided to the Commission; yet, as shown by that letter (an August 16, 2016 letter
included with Exhibit 32), Applicant's arborist did not rebut the foregoing points.
10
Trees Continued
The Commission Further Erred by Allowing Applicant to Simply Shift Trees From "Remove" to
"Retain" Without Relevant Changes in the Proposed Project or Construction, by Disregarding
Construction-Related Tree Loss, and by Counting Trees Without Regard to Size, Quality,
Species, Location, or Impact on the Site.
In response to Appellants' legitimate concerns regarding trees, Applicant did nothing to alter his
construction plans to save more trees or reduce peril to trees. He simply moved trees from the
"Remove" category to "Retain." Those trees were originally put in the "Remove" category for a
reason, and that reason typically and presumably here was because the trees at issue would
interfere with and/or not survive construction. Applicant's application to the DRC was based on
the same tree removal plan and 2010 arborist's report associated with the prior report, and, as
Applicant frequently mentions but for a different and irrelevant proposition, his proposed
project is in the same location. Yet, without any evidence that his proposed project will not
result in the same construction impact on trees-and indeed with evidence to the contrary
because Applicant has now tilted his proposed building closer to at least one prominent bank of
trees at roadside-Applicant has simply re-categorized the trees to make it appear that fewer
are being sacrificed than really are. As between the 2010 plan and the latest plan, on which the
Commission's approval was based , Applicant has transferred 8 different trees from "Remove"
to "Retain" (Trees 13, 22, 27, 30, 38, 39, 40, and 62). Not only has Applicant failed to provide a
construction-related justification for deeming these trees now savable, he has argued only (and
even then with no basis for optimism) that he is giving the trees a "fighting chance." A fighting
chance is not the goal of Los Gatos' tree preservation guidelines and the reason for its
reputation and honors as a city of trees.
The Commission Further Erred by Conside ring Only Count and Not Impact.
The Commission based its tree analysis on the number of trees that would be retained without
consideration of impact. As noted above, Applicant's re-categorization of trees masked the
number of trees that actually will survive and thus be "retained" by the plan. Further, in relying
on the number of trees still to remain, the Commission put heavy reliance on prese..Vation of
trees located only at one end of the property, only at one corner of that end, and along a slope
away from roadside and providing no screening from roadway. The trees in this set were not
even specifically identified in any arborist report; there is no evidence of their species, size,
health, value to the site, or relative importance compared to the trees on the vast remainder of
the site that will be affected by the construction, resulting in a large swath of tree death to
trees that have been specifically identified including prominent, substantial, and viable trees
important to the setting and softening of any project on the setting.
11
Procedu ral M atters
Appellants raise the following concerns about actual and/or perceived violations of due process
for consideration in this matter and future matters coming before the Development Review
Committee and the Planning Commission .
Ap parent Violation of the Brown Act at th e DRC l evel . Comments by the DRC at the March 29,
2016 hearing, email communications to the public about conclusions already drawn about the
project, and the lack of substantial deliberations at the hearing suggest a violation of the Brown
Act by virtue of the DRC being made up of same members of Staff privately meeting, discussing,
and resolving issues regarding projects before them prior to the public hearing.
Inadeq uat e Info rma tion Provided t o Pub li c as t o Effect of Project . In response to one
neighbor inquiry regarding this project, the staff response was as follows :
No variances are requested with the applicat ion. The application does include an
exception to the LRDA which was considered on the previous application and supported
by the Planning Commission. The application removes the additional exceptions to
grading and retaining walls that was r equired with the previous design . Staff has
determined that the application is consistent with our standards and guidelines ....
(See 3/25/16 email from Marni F. Moseley to Peter Rehon.) To the extent, as set forth in this
appeal, the project was approved, explicitly or implicitly, on variances from mandatory laws or
on exceptions beyond just an LRDA exception, the response was inaccurate, and to the likely
degree repeated in response to any other public inquiry, tending to discourage careful public
review of and concern ove r the project.
Improper Gifts t o Com mi ssioners. Attached is an email chain regarding and in response to
Appellant Lisa Roberts' inquiry to the Town Attorney regarding the meaning of a "desk bookn
referred to at the September 28, 2016 heari ng befo r e the Planning Commission on this matter.
Only as revealed as a result of this inqui,Y, prior to a hearing on this contested matter, and
before any Appellant had arrived and entered the Council Chambers, Applicant's architect Bess
Weirsema gave gifts to each of the Commissioners appearing that evening, and, only after
concerns were raised over Ms. Weirsema's action and the resulting appearance of impropriety,
was any advice apparently given regarding the due process implications of the gifts (attention
being paid only to the unrelated issue of whether the gifts would have to be reported under
FPPC regulations). As stated by Ms. Roberts in the emails, Appellants have full respect for the
integrity of the Commission and are not concerned that any of its members were swayed by the
gifts, but the appearance of impropriety is a serious issue .
12
Stream Guidelines
Town of Los Gatos Guidelines and Standards for Land Use Near Streams not adequately
considered
The Planning Commission erred in their approval of the proposed project because they did not
adequately consider the Town Guidelines and Standards for Land Use Near Streams. The Town
of Los Gatos participated in a multi-jurisdiction planning process aimed at adopting uniform
Creek protection standards and transferring stewardship of the County's creeks to local
jurisdictions. This resulted in the Development of the Guidelines _ for Standards for Land Use
Near Streams. Town Council Resolution 2007-020 indicates that the Standards have been
adopted in their entirety, however staff asserts that they were only adopted in part.10
Staff has been unable to present to the Appellants or the Planning Commission, the part of the
standards they claim were adopted by the Town Council Resolution but instead is relying on a
"Summary Handout" that was prepared by staff to hand out to the public. The Summary
Handout calls for a 25' setback to all structures from the top of bank for a property this size.
The Planning Commission granted an exception to the standards without knowing the baseline
setback requirement (25') and without complete knowledge of the actual standards adopted by
the Town Council.
Further the Planning Commission and Staff used as the basis for their approval of the reduced
setback, the approval of a reduced setback for the 2010 proposal. The lesser setback approval
in 2010 was based on a determination that the creek was ephemeral rather than seasonal.
Setbacks for Ephemeral Creeks are less than for Seasonal Creeks. The City now recognizes that
status of the creek as seasonal or intermittent.
Plans Not Submitted to SCVWD as required by the Stream Guidelines
In conversations with staff at SCVWD, it appears that the Planning Staff differs from SCVWD in
their interpretation of what constitutes a Riparian Protection Area or Zone as opposed to a
Riparian Corridor and the value of these areas; types of structures that are allowed within the
setback area; and whether or not maintenance or repair of the stream is required. Since the
current proposed plans were not circulated through proper (CEQA) channels, the SCVWD has
not had an opportunity to comment on the proposed project. The Towns standards require
that all projects be circulated to SCVWD for comment. Although the applicant contacted
SCVWA via certified letter, the plans were not submitted for comment.
Attachment 1. Tree Attachment
Attachment 2. Email Chain regarding meaning of "desk book" and improper gifts
10 Per Conversation between Joel Paulson and Dede Smullen December 5, 2016
13
EXHIBIT D: TREES ON PROPERTY
Based on our review of the arbodst reports that have been provided to us by Applicant
and my discussion with Applicant's arborist, the foJlowing things are clear:
A. The Town Arborist Report Is Outdated, and a New Town Report Should be
Commissioned.
The only independent guidance te8arding trees on the Property is the report prepared by
Arbor Resources for the Town dated February 1St2010 (the ''2010 Report"). That report
was prepared over six years ~go. It rela(ed tQ. both a different construction project end a
di ITcrcnt environment ft is outdated, -and a new independent report should be
commissioned for the project now under consideration and based ·on the environment as it
now exists.
The 2010 Report related to a now-expired application, Architecture and Site AppJication
s ... 0349, by the fonner owner of the site, Dr. Angelo Orphan. The plans under that
application are materially different from the plans oow under consideration, not only in
terms ofsize, dimen$ion, .and design, but also in terms of ptii~ot on the site. These
cha,nges have a direct effect on tree impact, as reflected by recent revisions to the
proposed disposition of trees.
The 20 l 0 Report ulso reloteq to .aµ environment that. has changed. Since that time, there
have been materiaJ chaoges ·io the site, including, for example, a relocation of a portion of
the creek (which Applicant himself has now verified); the removal of 18 trees by the
prior owner pursuan.t to his then-effective but now expired application: and tree growth
and other changes altering· the ·size, importance, and status of the trees. (On the lasl point,
Tree 30 is ·illustrative, having, as discussed further below, grown significantly in diameter
si~ce 20l0.) ·
The change in environment--and the need to obtain updated independent review--is
underscored by Appficant's :arboristreports. the .May iO, 2016 report by Monarch .
Consulting Arborists LLC ("Monarch") (the uMay 2016 Report") und iheJuly 10, 2016
report by :Mona.reh (the 0 J uly 2016 .Report'') (collectiv~ly, the 44Monareh Reports"). They
diff ~ in m~terial ways from the 2010 Report, including as to tree con.didon, suitability
for preservation, and impact from construction. and there is no way to tell whether the
dUTerences are due to changed conditions or fundamental disagreement with the town
· report.'
-----------1 Only by way of examples, the condition of one tree, Tree l, i$ more favorably stated in the
Monarch R,eports ("goo<P' a.s 9ppo$Cd to µfair"' ns. stated in the 20 I 0 Report); whereos the 2010
Report placed Tree 2 in ttw middle of the scale in te.nns of negative impact from construction.
the Monarch Reports foresee only a fow impact -of construction on the· tree; wherC8$ the 20)0
It should be noted that as to the one factor that one could conclude could and would
change over timet tree size; the Monarch Reports provide no guidance. As discussed
below, as to all the trees identified in the 2010 Report, they simply adopt the size as
measured in 2010 and set forth in that report.
The need for an updated independent report is further $hown by the lack of necessary
information in the Monarch Reports compared to the (now outdated) 20 I 0 Report. The
2010 Report was forthcoming regarding importDnt issues that are not adequately
addressed. if at all, in the Monarch Reports, such as the impact of construction on
remaining trees on the property ond adjacent properties. It expressly identified trees
that-even though they were not slated for removal-should nevertheless be +fconsidered
a loss'' given the expected impact of construqtion. (See 2010 Report p. 4; see also pp. 4-6
[identifying, e.g., trees planned for retention that "would otherwise be subjected to such
severe impacts that their premature decline and instability would result"].) (All
emphases are in original.) As discussed belowt Tree 30 was in.eluded in the Joss list .
Also, the 20 J 0 Report expressly identified potential impacts to trees on adjacent
properties with recommendations to avoid jeopardy to them . (See 2010 Report p. 5
[stating that the proposed underground utility trench ''will conflict with fou r large oaks
located on the neighboring western property"].) The Monarch Reports does not provide
o.ny of this type ofinfonnation. They do not list trees to be considered a loss; they do not
mention the four oaks on the adjacent property; they do not address the impact of
construction on any trees on adjacent property (or, really, except to recommend n tree
protection plan, address any such impact on trees on the property). It is wholly unclear
whether the omissions are due to changes in the plans or simply failure to provide
important infonnation.
Also. the 20 I 0 Report set forth diameter and estimated canopy spread measurements for
an trees contained in the Report (Trees 1-68). (See 2010 Report, Tree Inventory Table.)
The Monarch Reports do not include any infonnetion regarding canopy spread, and, as to
diameter, as discussed below, they re ly on the outdated 2010 R~port for that information.
Given all the foregoing and the Town's dedication to preservation of trees. it seems
essential that the Town be guided by o complete and independent report that addresses
the current plans, current woodlund, and the potential impacts of the cutTently planned
construction on that current woodland.
-· ---·--· .. --.. ---·------.--· ............ ~~-·-.. . .. ~ --·.i-•• -----------.. ·----·---~-
Report reported that Tree 30 would be so impacted by construction that it would be a loss with
the highest impact of construction rating , the May 2016 R~port stated th~t the impact of
construction would be only moderate and the July 2016 Report states that, ifS more feet is
placed between the tree and the structure, the impact wm tum to low.
2
B. The Applicznt1s Arb<>rist Reports Are Suspect, Relying on the Outdated
Town Arborist Report for Tree Sif,e.
As noted, the 201 O Report set forth both diameter and estimated canopy sptead
measurements for all trees contained in the Report (Trees t .. 68). (See 2010 Re.port, Tree
Inventory Table.) ACC9tding to the Monarch Reports, they were:eomrnissioned as wen to
determine siz~ (speeifiet'lUy, trunk diameter). (~ Monarch. Reports~ p. J .) However,
although they were prepared six years after the. 201 O Report, they fail to pr<>vlde any
updated size information. They do not address canopy spread at al1. As for diameter,,
th~y rely on. and in their tree inventories simply repeat, the sizes set.forth in the 2010
R.ePQrt. (See Monarch Reports, Tree Inventory.) Of course, -the tre~ sizes have
chllnged-at least some oftbem,--in sixyears, and, in~, as discussed below as to Tree
30~ the size change has been . significant.
Size is critiC?al. Jt obviously relates to the condition, presence, and importance of a tree.
As dis.cussed ~low, it also dictates tbe proper measures to ts;ke for adequate ·tree
protection during construetiun. The l1Jck of cUITent si~ information ls a critica.1 flaw in
the Monarch Reports-.
C. There Has Been No Mitigation As to Trees Already Removed From the Site.
Apparently prior to the expiration of hls permit on his prior application 1 the ptiqr 5ite
·owner Dr. Orphan t~moved 18 .trees from the site. (Compare tms existing as of 201 O
Report and trees existing as of Monnn:b Repons.) Cons"iderable time has ~sed $ince
UUit rell,lovaI• and, to di.te~ there has been no r'planting or other mitigation to compensate
for the r:emoved trees. This ltSe.lfis ·problematic, and it also raises Qoncem.s that ·
additional tree ·removal wiU occur in connection with a non-performed construction
pennit. Jn any event, mitigation soould bt} required promptlyt regwdles$ of progress by
Applicant as to his application. .
D. C(lnce,rn Only for .. G4>od'• TrftS is lneppropriate for a Woodland Site
t-yplcally Made Up .of 44 Ftdr" Trees. ·
As reflected in the Mo~rcb Reports, the .condition ratings for trees r.un from .ex~eptionnl,
to good, te> fair, to poor, lQ UnS.tabfe. (See Monareh bports ·p. 4.) Accordin& f() lhose
re.ports, most -of the trees cm the site are in fair condition. (Atcording to the July 201 O
Report, there are no exceptional and only 3 good trees.) Additionally~ many of the t~es
that hav~ already been removed from the Property and which are now requested by
Applicant te> be removed are, or in the 20JO R~port were, rated fair. Thel1' may ·be a
sense that ~rees in fair condition are not worthy of protection, and, if so, this is wrong
based on Applicant's at'borist's observation regarding woodland sites.
3
As stated in the Monarch Reports, "lm)ost of the trees are in fair condition whfclt is
typical of 011 unmaintained wood/a11d.'' (Monarch Reports p. 4, emphasis odded.) Were
"fair" to be a barometer of a dispensable tree, then any woodland lacking maintenance
could readily be wiped out. Since one can expect that it is in the very nature of woodland
to be in fact natural and relatively unmaintained, this approach woutd wipe out most
woodlands. In the context of a woodland, where fair is typical and the value is in the
overall wooded nature of the site, something more than simply a fair rating should exist
before part of that woodland is destroyed or endangered.
E. Applicant's "Retain/Protect" Plan Merely ~ubstitutes Upfront Removal With
Death From Construction.
In response to concerns about the scope of tree removal, past and planned, Applicant has
purported to reduce the number of trees to be re~oved, transfening certain trees into a
"Retain/Pr-0tect" category. (See May 2016 Report, Tree Inventory.) However, this re-
designation promises only to fort:stall the immediate removal of the trees without
otherwise adequately protecting them from the adverse consequences <>f construction.
For the reasons set forth belowt the tree protection measures for the newly retained trees
(as well as potentially at least some of the already to be retained trees) are substandard,
created by the demands of th~ construction rather than the needs of the tree, and literally
expected by Applicant and his arborist to fail. These conclusions are based on the
following facts based on a review of the arborist reports and discussions with Applicant
and his arborist.
1. No tree risk assessmeftts performed by Applicant's arborist. The Monarch
Reports state that 0 [n]o tree risk assessments were performed." (Monarch Reports
p. I.) Notably, the 2010 Report did not include such exculpatory or limiting
languoge. To the contrary, as discussed below, it expressly identified trees that,
because of the construction risk, should be considered losses.
2. No specific construction impacts on specific trees addressed by Applicant's
arbor lst. Also unlike the 20 I 0 Report, the Monarch Reports do not address
specific construction impact.4' on specific retained trees, instoad merely making
general recommendations of tree protection based on the practicalities of fencing
and mulching given the proposed construction.
3. No list of "loss" trees by Applicant's arborist. As noted above and in contrast
to the 20 l 0 Report, the Monarch Reports do not identify any trees that should be
considered a loss even though not being immediately removed. The silence in the
Reports implies, inaccurately. that all retained trees wm survive the construction.
4
4. Applicant's and his arborist's admission that tree loss is anticipated. While
the Monorch Reports fail to include a loss Jist or otherwise address the possibility
that, despite not being immediately remov~d, some trees will not survive -the
construction, Applicant has admitted otherwise. At a July 16 meeting; Applicant
conveyed his arborist's comments that he could hnvc-justifiably called for removal
of Trees 62, 63~ and 65 becisuse of their condition, whereas 10 additional rather
than 7 additional troes would be removed, but he retained them to reduce the
number oftrees being removed. As reportedly stated by the arborist to Ap_plicant.
"[h)ope-fUlly, all three will live; maybe we can sove one of them." (Applicant 's
arbotist confirmechhis, creferring in a July l 8 telephone conversation to the option
of just petitioning for removal of the .trees •nd not bothering with them.)
Applicant characterized the approach as giving the ·treeS a "fighting chance," ln
theoryt a fighting chance might be better than no chance at ~f, but~ first, the
Monarch Reports (like the 20 l 0 1leport for the Town} should have been
forthcoming on the risks. and, second, there is .no indication within those reports or
by any comments by Applicant or his arborist that the rt:eomrnended tree
protection measure$ wilt protect the retained trees needing prot~ction.
5. Anticipation of retai,ned tree loss further evin~ed from the July 2016 Report.
As indicated -by the .20 I 0 Report, the typical categories of disposition a.re
nRemcwett or "Retain." (See 2010 Report Tree Inventory.) The May 2016 Report
used these two ca tegories but also created a third category labeled
'~_etain/Protect0 to which, as noted above, certain trees previously slated for
removal were tntnSferred. {Moy 20 J 6 Report, Tree Inventory~) The clear
implication was that the trees in that c-ategory would in fact be proJected. Only a
close look at the July 2016 Report reveals the attempt to back off from any such
promise. While that report continues to reoommend and describe various kin.ds of
tree protection, the Tree Inventory no longer employs a "Retain/Protect,. categ-0ry.
Now, -all .affected--trees are placed simply in the: caleg_ory of ''Retain." No reason is
sta~ for this rather material change, but the effect is clear-to promise only not
to cut the trees down in the first place and to employ tree· pro~tion measures that
may or MQY not be adequate, which measures, as discussed below, are not in .fact
adequate.
6. Tree proteetion measures to accommodate c.cmstrucdon, not safeguard tree$.
The tree prot~tion measures recommended in the Reports, most recently the July
2016 lleport, Jre not measures that will pro.tect the tree but only measures that will
provide the best protection possib1e given the construction. As explained by
Applicant's arborist, this tree protection plan was not made in the ideal w9dd prior
to construction plans but where the constnrotion had aJ~ady been decided upon
with the question presented of what trees to rell'lOvet retain, and , try to protect give
that construction plan. In other words, some if not all trees will" receive inadequate
tree protection, not because tbey cart withstand the assault of constructiott or
s
because they are not worth saving , but solely because the construction as planned
does not permit adequate protection.
7. Inadequate tree protectio.n planned. As clear from the reports and
acknowledged by Applicant's arborist, the levels of tree protection described in
the Monarch Reports (from protectiye fencing around the dripline, to protective
fencing the distance of at least S times the tree diameter away from the tree, to
protective fencing the distance of at least 3 times the tree diameter away from the
tree, to plywood and mulch protection, to only wattle atound the tree trunk) are in
descending levels of protection, with the first lf!Vel constituting the most protective
and the others of decreasing protection. As noted above, the level of protection
recommended for each tree was not based on an ''ideal" world or a consideration
of the site prior to construction plans. Rather. it was based on the highest level of
protection possible given the structwe already decided upon, the '~best given the
construction." All the trees now slated for actual removal are within the new
footprint of the house with one exception for a tree considered particularly
diseased. This means even trees close to the structure are to be "retained." The
Monarch Reports calls for lower level s of protection , even down to just wattle, for
the retained trees to be protected.
F. The P~posed Tree Protection Plan Does Not Comply Wlth tile Town Code.
The proposed tree protection plan does not comply with the Town Code in at least two
respects. It fails to provide fence protection us required for all affe~ted trees. It seeks
exemption from required dripline fencing based on a fundamentally flawed TPZ (tree
protection zone) approach.
The Monarch Reports expressly cite Section 29.10.1005 of the Town Code. (See
Monarch Reports p. 28-29 [Appendix D}.) Applicant's arborist has confinned his
understanding that the requirements in Section 29. J0.1005 are mandatory.
Section 29.JO. 1005 expressly requires fencing for tree protection. (See "'Tree Protection
Zones and Fence Specifications" T\11 and 2 and 0 All persons shall comply with the
following precautionsn ,,1 and 2.) The only variable is the type of fence (chain link or
orange plastic fencing) or the size of area to be fenced. (See ''Tree Protection Zones and
Fence Specifications" 12.) Applicant's tree protection plan violates this requirement It
does not provide for fencing for all affected trees; it requires fencing on ly where,
accepting the proposed construction as a given. the fencing would not be possible or
practical. Thus, as to at least 20 trees arfected by the construction, it recommends only
straw wattle around the trunks because, given the location or proximity of the trees to the
structureandlor to the surrounding work areas, fencing to exclude construction activity
would be 0 impractical." (July 2016 Report p. 1 J .) Section 29.10.IOOS does not contain
any exception to the fencing requirement to accommodate construction (and particularly
6
not ~ntirely new construc tion with no pre-existing structures), and the plan for these trees
violates that section.
The proposed plan further violates Section ·29. I 0.1005 's requiremen ts governing th e s ize
of the area to be fepced. It rc:q._iircs a tree protection enclosure protei:ting the "entire
dripline area or at the tree protection zone (TPZ). when specified by a certified or
consultingarborist.'' (Monarch Reports p. 28 ~) Implicit in th is requirement is that any
certification o(a TPZ smeller than the dripline zone must be accurute. Here, the
certification is fundamentally flawed.
The Monarch Reports incorrectly as$Ume that, since construction will occur on only one
slde of many of the trees inclUding itee 30, :those .trees do rtot need to be protected at the
dripllne but only on the construction side and on ly within. th e critical roo t zone e'CPZ")
defined 8$ a mu ltiple of the diameter of the tree, (See May 2010Report p. 8 [stating.that,
''because most of the trees will only be influenced on one side the CRZ [the crit ical root
~ne] will in effect be the TPZ [the tree protection zone] for this proj~t and particularly
' for valley oak #30''].)"'
Bowevcrt as Applicant's arborist has confomed. this rule is intended for the normal
situation Where robt growth is .relatively equal on all $ides so. that t~ sid·e without
construCtion can Pl8intain the tree if the side with construction is protected ooty to the
CPZ. With speceific reference to Tree 307 he has fu rth er confirmed .that tile tree does not
fit this normaJ·situation. The creek is on the nonaconstruction side of the tree, and the
ttee is v.ery near the cr~ek. Accord ing to Applicant's arborist, ii.$ roots ~'obviouslyn could
not extend past the creek bank. Jn other words, most of Tree 30's roots may well be on
the construction side. and there is nol the nonnal basis for QSsumptic;m that one-half of the
root system will be undisturbed . This same concern applies to any other tree whose root
growth is .stopped at creek bnnl,c on the J\()11-.C~nsttuction side, and, as to au those trees,
the TPZ 'approach is flawed.
G. The Plans Sho uld Be Changed to Truly P rotect Important Trees, Includ ing
Tree 30.
As discussed elsewhere, Applicant's proposed construction is unsuitable fo r the si te for
numetous reasons including the nature ofthe sit~ the creek setback. the LRDA
tequirements, the HUlside Development Guidelines, the effect of the construcdon on the
environment 1ncluding the trees ; artd the potentia1 concerns that couJd ·and should be
raised vin a timely CEQA relating to the cuttent plans and current environmenta l
condition~. Whereas Applicant',s tree plan seeks to accomModute his construction , his
? It is worth noting t hat the July 20 l 0 identifies completely different trees to be governed by this
CPZ approQcb . (See Ju ly ~()to Report P~ 8 {no longer me.,tioning Tree 30 as a tree affect~ only
on one side by construction and instead referri ng to Trees 27, 22, 23 , 38 1 40, 54,, 62 , 63, and 65].)
1
construction should instead accommodate the needs of the site and applicable tree
preservation and other requirements.
A notable exam.pie is Tree 30. There really is not any question that Tree 30 is worth
preserving. It is a large, majestic, double•trunked, healthy, valley oak3 soaring several
stories. It is located at an interior comer of the north side of the Property, only inches
from the property line between the Property and 78 Alpine. It provides an important,
probably the most important single item ofscreening between 78 Alpine and the
Applicant's planned construction.4 It has important ecological and uesthetic value. It is
visible from Highland Avenue as weU as from at least tl}ree homes on Alpine Avenue. It
provides significant screening between the Property and 78 Alpine. The 2010 Report
expressly st4ltes that Tree 30, like others in its category, is worthy of protection. (See
20 JO Report p. 3.) Based on the. 2010 Report, it hos the great-est canopy spread of any
tree on the Property listed in the Report (80 feet). (See 20 l O Report, Tree Inventory
Table, p. 3.)
According to Applicant's arborist, Tree 30 is 50 to 100 years old (and stiJJ in its youth
with valley oaks typically having annual shoot elongation growth spurts of approximately
24 inches per year when young, i.e., during their first 300 years). For at least the past 28
years and likely for the 40-plus years of ownership by the prior owner of 78 Alpi~ it has
been the rough marker of the .corner property line between 78 Alpine and the subject
Property. According to the 2010 R,eport, the diameters of the two trunks (or stems) of the
tree were 20 and 16 inches in 20 l 0. {See 2010 Report, Tree Inventory Report p. 3.) On
July 15, 2016. a lay measurement showed significant growth since 20 IO~ with the
circumferences measured nt 73 and 53 inches, with cottesponding current diameter sizes
of 23 .249 and t 6.87 inches.
The tree is located 15 feet away from the proposed construction under Applicant's
original plans and 20 feet away from the proposed construction under Applicant's revised
plans. (See May 2016 Report p. 2 and July 11, 2016 letter from Applicant to Town.)
' As stated at in a report associated with San Francisco State University:
Valley Oak ((}uercu.f lohula) is the monarch of California oaks by virtue of hs size, age
and beauty (Pavlic et al. 1991 ). This magnificent tree is endemic to California and quite
possibly is the large5l North American oak, declaring it very unique. Descriptions of its
remarkabie stature appear in tbe diaries of many early visitors to Califomia (Pavlic et al.
1991).
(bttQ;l/onlin~.sfsu.stufbbglmJanl£2urmfEallQ2o/t20.PG>i~ts/valle~ QJJ>.btJDl.)
• The Applicant's architect has claimed that 78 Alpine will retain ''.a filtered view through very
dense tree cover.'' (Studio Three Design Report p. 2.) This is untrue. Even with Tree 30, the
proposed structure will be extremely visible due to the over-sizing of the structure and the prior
tree removal. Without Tree 30, there will be no screening as to most of the structure, including
the portion that, regardless of technicalities, looks like o three-plus~story complex.
8
Applicant 's orig ina l tree plan called for the removal ofTree 30. Prior to the March 29,
2016 bearing before the Development Review Committee, Applicant purported to put red
ties on all trees $lated fQr removal under his plans. but, in fact, did not put 11 red tie on
Tree 30 even though bis plans called for its removal. Only when 1 reviewed the tree plan
did I discover that, ~ontrary to his placement of the red · ties, Applicant intended to
y remove this tree.
Applicant then agreed to reta~n the tree, and the Monarch Reports s~t forth tree protection
measures. but it is a near certainty that the rnC8$tites will not save the tree from the
impact of eonsttuction. The following facts, derived from the aatorist rep0rts and
comnlunications with Applicant and his arborist, are di~positive. Adequate protection i~
in fact completely possible, .including with change in the size pd locadon of the
strueture--a change conslste.nt with other important goals including proper setbacks from
the etc~k, compliance with HiUside Development Guidelines, and reduction in the size
and m~s of the house. But, under the current c·onstruction planst tree 30 is unlikely to
survive.
I. The 2010 Report expres.sJy $tated that construction would n~Slllt 1.-the loss of
the tree. The .20 I 0 Report expressly concludes the tree would .be so severely
impacted b:y the consttu~tion :dlat it should be removed or eonsid:~d ·a loss (p. 4
r'will be subjected to such severe impacts tb~t [its] loss is anticip11tecr'].) [t
furtber concl.udes tbat the intensity of the impact of construction on Tree 3-0 would
be r (1
5
being the ''highest'·' impact and S bei.ng the lowest) (p. 3 of Tree -Inventory
Table).
2. Tbe proposed. tree p.rot~tion Is ina.deq,uate. As note4 above. the.· Monarch
Reports describe five l¢vels of tree _protection d~cending in quality from level to
level. The May 2016 Report, relating to Appffcant's originalplims with the
structure IS feet aWetY from Tree 3(). concluded that such elose proximity to the
structure and the related construction work : made fencing Tree 30 impractical.
(See May 2Qt6 R~port p. 9 ('lValley oak #30 is app.-oximately lS feet from the
proposed stru~ure and to building the structure pla~ing fence atV_Und this tr~ is
nO.t . practical").) It therefore: called tor wattle and pl)'Woodlmulch, the two lowest
levels ofprotectfon (as well as. o.ne not condoned by the Town COde). Now~ with
the revised plims and only S more feet reportedly added between the tree and the
structure, the July 2016 Report claims that the tree can now be fenced i.n. (July
3 The May 2016 Report comes to a diff~r@nt conel~ion regar<ling the impact level fQr Tree 30;
asserting .th.at.i t is only moderate. [See ·May 2016 R~port., p. 15.J It does not provide any
explanation for the difference, whtther based 0t1 change or c.ircumstancf! or disag~ment wi~
the town aroorist, and itprovid~ another example of why a new town report is needed to provide
independent review ofApplic'1tlt's reports.
9
2016 Report p. l l.} Based on the following, the tree protection plan for Tree 30 is
clearly substandard nnd violative of Town requirements.
a. Flawed basis for CPZ approach. As noted above, the resort to a CPZ fence
form ula rather than a dripline mea~urement, including as to Tree 30, is
fundamentally fluwed and in violation ofTown CQde. Specifically, ns to Tree
30, given the location of the creek bank beyond which the tree roots cannot
extend. there is no juslification for assuming that the roots on that non ..
construction side will be sufficiently strong or extensive enough to make up for
impact on the con:>truction side and allow for a CPZ fence approach.
b. No construction tnformation in July 2016 R~ort, T.he July 2016 Report
fails to provide any inform ation regarding the natu.re or location of the
construction activity Qnticlpated to take place near the tree and in particular in
the area between the tree and the proposed .structure. This is in contrast to the
20 l 0 Report which spccifkalty addressed the construction activity that would
talce place near to and affecting (and anticipated to result in the loss ol) the tree
(2010 Report pp. 4-5). lt is even in contrast to the May 2016 Report prepared
by Monarch that observed that "[t]renching for the foundation structure near
tree #30 will be at the CRZ distance of five times the trunk diameter" (May
20 t 6 Repc;>rt p. 8). Such infonnation is crid~al in assessing the adequacy of the
tree. protection measures (and, as demonstn1ted by the 2010 Report. in
detennining whether. despite protection, the tree stmuld be considered a loss).
c. Need for fence protection at least 15 feet from the tree. Even overlooking
the fundamental flaw i.n the CPZ approach as to this tree, and applying the
approach as instructed in the Monarch Repo~ the tree protection z-0ne should
extend at least l S, and probably over 16, feet from the tree . While the
minimum zone is three times the tree · diameter, the preferred zone is five times
the tree diameter. (See Monarch Reports p. 8, emphasis added [the critical root
zone is defined as ~the distance of three times the diameter of the tree at breast
height ('"DBH'•) in feet, and preferably five times"].) The Monarch Reports do
not explain how a double-trunked treets diameter is measu~d, but Applicant's
urborist bas confinned that an acceptable approach is to count the dhtmeters of
both trunks. and this also seems reasonable given the additional mass and size
and span of the tree afforded by the two tn.mks. As noted above, the diameter
infonnatioo in the Monarch Reports is outdated , but, even using the
information as to Tree 30 (20 and 16 inches). the tree protection zone should
be 15 feet. Based on the current lay measurements (23.249 and 16.87), lhe
zone should be over J 6 feet ( 16. 717 feel}.
d. Appliamt cannot credibly contend that his plans will afford Tree 30 the
required tree protection. Notably. the July 2016 Report does not state the
10
size of the fenced area no.r even the precise formula to be used to detenuinc the
size (whether by a multiplier of Sor 3 or some other way). Applicant's
arborist has ~xplained that the tree will be fenced in along with other trees near
the creek side. After discussion of the current planned distance of the tree
from the structure (20 feet), he indicated that a fence could bo installed 1 S feet
away from the tree and/or a fence could be installed and a remaining area
protected by plywoo4 and mulch. As noted above, plywood and mulch does
not meet town requirements. As for a 15-foot placement of the fence, this is
not credible. As noted above, the May 2016 Report concluded that no fence at
nil was possible when the structure was proposed at 15 feet away from the
fence. ltmakes no sense that the subsequent addition of S more feet between
the structure and the tree somehow allows not only for a fen~e at all around the
tree but for a fencec l S feet away from th~ tree. Further, as noted above; the'·
May 2016 Rept>rt observed th1tt, when the structure was planned for 1 S feet
away, trenching for the foundation structure would be at the CRZ distance of
five times the trunk <lhuneter as to Tree 30. Thus~ while the July 2016 Report
is silent on trenching, the S-foot relocation of the structure would mean only a
S-foot change in trenching location. The tree protectlon tone is not measured
from the structure; it is intended to protect the tree from construction activity;
and, as set forth in the Town Code, alt per.sons must "'[p ]rohibit all construction
activities within the TPZ, including but not limited to: excavation." The
proximity of the trenching, even under the revised pl~s; the lack of other
informati<m relating. to nece$S$"Y construction activities; the lack of specificity
for fencing in the July 2016 Report; ~d the suggesti9n of the use of plywood
and mulch in lieu or in addition to fencing all indicate the lack of any
assurance of the nature of the tree protection planned for Tree 30, that the
protection will meet Town Code, or that it wiU truly protect the tree.
11
Lisa Roberts
From:
Sent:
Robert Schultz <RSchultz@tosgatosca.gov>
Monday, October 10, 20161 :35 PM
To: Lisa Roberts
Subject: RE : 19 Highland
Hello Lisa,
I have followed up with the Planning Commissioners regarding the gift limitations under the f PCC and also the
perceived conflicts, bias and due process issues that we have discussed .
I have been Informed that only 5 of the 7 Commissioners received the book . The two Commissioners that
were not at the meeting did not receive a book .
As for the other 5 Commissioners, 3 have decided to return the book and 1 has decided to purchase the
book. I have not heard from the 5th Commissioner yet.
In addition, I will be coµnseling Ms . Weirsema regarding gifts to Commissioners .
I hope this adequately resolves this issue for you.
Robert Schultz • Town Attorney
Town Attorney Office • 110 E. Main Street, Los Gatos CA 95030
~~llWIJ Ph: 408.354-6818
www . losgatosca.goy • httpr/fwww.fa~book.com/losgatomi
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communic.ation in error, please immediately notify us at the above e-mail address .
========================================================~============
From: Robert Schultz
Sent: Thursday, October 06, 2016 10:59 AM
To: Lisa Roberts
SUbject: Re : 19 Highland
I do not take offense to your inquiry.
Sent from my !Pad
1
On Oct 6, 2016, at 10:19 AM, Lisa Roberts <lrob erts@re hon roberts.com> wrote:
Hi Rob,
I hope you are not taking offense at my inquiry. If so, I apologize. I am not at all concerned about the
compliance with the FPPC, and I have no doubt that the Commission has been well-advised on It and is
in ~ompli'ance with It.
My inquiry does not relate to the FPPC . This is not Just an issue of generalized disclosure required by
elected officials, but disclosure required In contested prcceedings like thi s appeal. This appeal Is a quasi-
judicial proceeding, with the Commission presiding as the deciding body over a dispute between the
applicant and the appellants . In that context, the giving of gifts in any amount and any ex parte contact
tak~s on a whole different significance . It has nothing to do with the FPPC but with _due process and
avoiding even the appearance of Impropriety. "This was rec:ognlzed at the very first hearing in this appeal ,
on June 8, when the Commissioners who had visited the subject property were very careful to disclose
whether or not they had had any contact with any of the parties, in particular the applicant, while at the
property.
I believe that what Ms. Weltsema did was Improper and clearly tntended to influence the Comm ission in
connection with the appeal. I have full confidence in the integrity of the Commissioners and have no
reason to believe that any Commissioner has actually been swayed. Toe process, however~ Is very
troubling, not only in connection with this matter but gene.rally as to all contested proceedings before
the Commission .
A party advocate's giving of gifts to a deciding body would be improper at any t ime duri ng the pendency
of a contested proceeding Involving that advocate, but the context of these gifts was par:tiq.darly
disturbing. These were not gifts tied to a traditional gift occasion distinct from the contested matter,
such as year-end or holiday gifts . As you have adv ised, Ms. Weirsema placed the sifts on the chairs .on
each Commissioner for him or her to receive at the very hearing on the :conte.sted matter at which she
then appeared "to advocate on behalf of the applicant. Ms. We.li"sema did not disclose the gifts. to
appeUants . She did not even mention them to Dr. Badame who appeared for the a_ppellants at the
hearing. Nor, other than a reference to a "desk book" and a thank you to an unidentified member of the
audience, were the gifts otherwise disclosed. I Just happened to watch the video .of the .hearing and
wondered what a "deskbool<' was.
It seems likely that, in leaving over $200.00 in gifts on the Commissioners ' chairs, Ms, We lrsema
included some kind of note with or inside the books Indicating th.e reason for and soorce of the
gifts~ Just like any other ex pane communication, any such note, I think, should be disclosed, and !
would appreciate your doing so or advising that there were no wtitten communications with or re1atlng
to the gifts.
In short, I believe that these gifts were improper; the content of any accompanying note.s should be
disclosed to the appellants; and the applicant and his team, Including Ms. Weirsema, should be
admonished that thls conduct was improper and that any such conduct fn the future will not be
countenanced .
Tha.nk you for considering my thoughts on this .
Lisa
2
From: Robert Schultz [mailto:RSchu!1;z@lo!i<Jatosca.gov]
Sent: Wednesday, October OS, 2016 3:07 PM
To: Lisa Roberts
Subject: RE: 19 Highland
Each Commissioner received a copy of one book. It is 321 pages and retails for $32 .00. Yes, the
Commissioners knew that the book came from Ms. Wiersema . It could be because they saw her place
the book on the dais or because there was a note or card inside. I will be reminding the Commissioners
of the FPPC regulations related to gifts, but I will not be asking whether there was a card or note inside
nor asking for a copy of it.
From: Lisa Roberts ~llto:lroberts@rehonr9bert.s .com]
Sent: Wednesday, October S, 2016 2:56 PM
To: Robert Schultz
SUbJect: RE: 19 Highland
It was not one book but books for each com.missioner? Would you please find out whether there were
cards or notes. It seems there must have been for the commissioners to know where the books came
from. I would like to see copies.
From: Robert Schultz [mailto:RSchultz.@los.gatosca.gQv)
Sent: Wednesday, October 05, 2016 2:49 PM
To: Lisa Roberts
Subject: RE: 19 Highland
Yes it is a book authored by 2 architects about architectural forms and construction.
My understanding is that Ms. Wiersema left the books at each Commissioners seat before the meeting. I
do not know If there was a card or note in each book. I am aware o f one Commissioner who returned
the book.
Yes it would be considered a gift. Since the value of the book Is under $50, it does not have to be
reported on their 700 form.
From: Lisa Roberts [mallto:lrobem@rehonroberts.com]
Sent: Wed~y, October 5, 2-016 2:36 PM
Toi Robert Sc;hultz
SUbjed: RE : 19 Highland
A book? Was this a gift then] How did M s. Wiersema provide it, in person or was there a card or letter?
From: Robert Schultz [ffiijllt9iB%bultz@!osg§tQs@.9ov]
Sent: Wednesday, October OS, 2016 2:20 PM
To: Lisa ROberts
SUbject: RE : 19 Highland
Hi Lisa,
The Commissioners received a book titled "Chambers For A Memory Palace " authored by Oonlyn
Lyndon and Charles W. Moore from Bess Wiersema.
3
Rob Schult7
Town Attorney
( 408)354-6818
From: LJsa Roberts [mailto :lrobe!'ts@rehonroberts .com]
.Sent; Wednesday, October 5, 2016 1:38 PM
To: Robert SchuJtz
Subject: 1-9 Highland
Rob :
I watched the video of the September 28 hearing and it was stated that a "desk book" was
rec.eived. What is a desk book and who submitted it?
Thanks, Lisa
US.~ C. Roberts
RE HON & ROBERTS , APC
830 The Alameda, San Jose , CA 95126
408-494..()900 Main t 408-387-5233 Dir 1408494..()909 Fax
lr~s@rehonrobert s .com I WWVJ .(ehOnroberts.CQ!Tl
4
TOWN OF LOS GATOS
NPDES STORMWATER COM PLI ANCE
SMALL PRO JE CTS WORKSHEET
Small Projects a re projects that are subject to approval an d/or perm it s and that create a nd/or
replace 2,500 sq. ft . but le ss than 10,000 sq . ft. of impervious surface, and single family
detached homes that create and/or replace 2,500 sq. ft. or more of impervious surface (a s of
Dec. 1, 2012, per MRP Provi si on C3ii).
An impervious surface is a surface covering or pavement that prevents the land's natural ability
to absorb and infiltrate rainfall/stormwater. Impervious surfaces include, but are not limited to
rooftops, walkways, paved patios, driveways, parking lots, storage area s, impervious concrete
and asphalt, and any other continuous watertight pavement or covering . Perviou s pavement,
underlain with pervious soil or pervious storage material (e.g., drain rock), that infiltrates
rainfall at a rate equal to or greater than surrounding unpaved areas OR that stores and
infiltrates the water quality de sign volume specified in Provision C.3.d of the Municipal Regional
Stormwater Permit (MRP), is not considered an imperviou s surface.
Small Projects must implement at least one of six specified Low Impact Development (LID)
Site Design measures. Check one or more that will be applied to your project.
D Direct roof runoff into cisterns or rain barrel s for reuse.
D Direct roof runoff onto vegetated areas.
D Direct runoff from sidewalks, walkways, and/or patios onto vegetated areas .
D Direct runoff from driveways and/or uncovere d parki ng lots onto vege t ated areas.
D Con struct sidewalks, w al kw ay s, a nd/or pat ios with permeable surfaces.
D Construct bike lanes, driveways, and /or uncove r ed parking lo t s with permeab le su rface s.
Project Information:
Appli ca nt/De veloper Name: ________________________ _
Project Address :-----------------------------
Project De sc ription:----------------------------
To tal n ew o r replaced impervious area:---------------------
Plea se return form to the Engin eering Divi sion of the Park s and Public Works Departme nt.
FOR OFFICIAL USE ONLY :
Notes:
Parks an d Public Works Dep artment • Engineering Di vision • 41 Miles Ave, Los Gatos, CA 95 030
408.399.577 1 • www .losgatosca.gov • www.f ace book .com/losgatosc a
ATTACHMENT 29
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