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Attachment 12LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A P P E A R A N C E S: Los Gatos Planning Commissioners: D. Michael Kane, Chair Matthew Hudes, Vice Chair Mary Badame Kendra Burch Melanie Hanssen Kathryn Janoff Tom O’Donnell Town Manager:Laurel Prevetti Community Development Director: Joel Paulson Town Attorney:Robert Schultz Transcribed by: Vicki L. Blandin (619) 541-3405 ATTACHMENT 12 LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 P R O C E E D I N G S: CHAIR KANE: I’m going to move now to the public hearing items, #3 becomes #4, #4 becomes #3, and so this is the new #3. Architecture and Site Application S-15-056, Conditional Use Permit Application U-15-009, and Environmental Impact Report EIR-16-001. Project location is 401-409 Alberto Way. Property Owner/Applicant: Shane Arters, LP Acquisitions. Requesting approval to demolish three existing office buildings and construct a new two- story office building with underground parking on property zoned CH. This is APN 529-23-018. Ms. Armer, will you provide us with a Staff Report? JENNIFER ARMER: Yes. COMMISSIONER BADAME: To the Chair, I’ll be recusing myself from this item, as my residence is located within 500’ of the project application. CHAIR KANE: Thank you. COMMISSIONER BADAME: I will return. CHAIR KANE: Ms. Armer. LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JENNIFER ARMER: Good evening, Chair, Vice Chair, and Commissioners. The item in front of you is the continuation from December 13th and January 10th meetings. The review of the proposed office building at 401-409 Alberto Way was continued to February 28th with specific direction to consider revisions to the project. The Applicant submitted a letter explaining that additional changes to the project are not feasible. The Applicant requested that the meeting be renoticed for tonight, February 14th, so that the Planning Commission can consider the project as submitted for consideration on December 13th and January 10th hearings. This includes the Staff’s presentation, but I’d be happy to answer any questions. CHAIR KANE: Any questions for Staff at this point? Good. At our previous meeting the public portion of the public hearing was closed. Unless there is objection, it seems to me that our job tonight is to direct questions to Staff and discuss the application until a motion is provided. Are there any comments on that point of view? Then let’s do that. Let’s discuss the application. Not all at once, but whenever you’re ready. Commissioner O'Donnell. LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER O'DONNELL: At our last meeting there was an attempt to compromise, which the Applicant has rejected, and therefore I was taken in by—and I mean in the best sense—the proposed… Well, the motion we passed last time, and that was to both address the complaints and also to help the Applicant, but since the Applicant doesn’t like that help I guess I go back to my original position: I think the project is too large, I think the impacts notwithstanding… You know, it’s interesting. I’ve been doing this for 14 years or 15 years, whatever it’s been, and I never have seen a traffic report that didn’t tell me things are going to be fine, and they never are. And then I’m told, well, we all use the same manuals, and I have to tell you, I wouldn’t use those manuals, because they’re consistently wrong. In any event, as far as I’m concerned this evening our task is quite easy. I personally will be voting against the project. CHAIR KANE: Is that a motion, or a comment? COMMISSIONER O'DONNELL: (Inaudible). CHAIR KANE: All right, we can still have discussion after a motion. Anyone else? Commissioner Janoff. LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER JANOFF: My comments are fairly lengthy, so in deference to other Commissioners who may have shorter comments to make, I would propose that they speak. CHAIR KANE: Why don’t you lead us off? Give a couple and then we’ll go somewhere else. COMMISSIONER JANOFF: As Commissioner O'Donnell mentioned, the motion for the last meeting was an attempt to provide a compromise, to really give the neighbors at least back the views that they cherish. The Applicant chose, as Commissioner O'Donnell has mentioned, to reject our recommendation. They failed to take the opportunity to address the concerns of the neighbors, and they failed to directly and positively address the neighbors’ issues of mass, scale, loss of views, and traffic overload on Alberto Way. I will not be supporting the application before us tonight, and specifically I find a lack of conformity to the following General Plan elements, and there may be others. I won’t read the context of each of these, because I think you’re all familiar with them, but generally speaking they speak to the loss of views, the loss of quality of life, and the impact on the neighborhood, which would be a negative impact. The specific elements in the LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 General Plan are Policy LU-1.1, LU-1.2, LU-1.6, LU-1.8, LU- 6.2, LU-6.4, and LU-7.3. In addition, the policies within the Community Design Element of the General Plan, the Applicant has also shown a lack of conformity to include Policies CD-1.1, CD-1.2, and CD-1.4. Throughout the General Plan, throughout many documents of the Town, the preservation of scenic views is so heavily emphasized it cannot be understated how important that is to the Town. Along those lines, again, in the Community Design Element, Policy 16.1, which I will say is to prevent development that significantly depletes, damages, or alters landscape vistas, 16.2, 16.3, 17.3, and specifically 17.3 are the criteria the Town Staff is required to address and review from an applicant’s report. The item in question is Item N, which is Ridgeline Preservation. There is a considerable amount of the ridgeline that will be obstructed by the Proposal #3 from the Applicant. In addition to the General Plan elements, which I find a lack of conformity from the Applicant, I also find a lack of conformity to the following elements within the Town’s Commercial Design Guidelines, and I would just reiterate something that many of the Commissioners have already stated many times. From the introduction of the LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Commercial Design Guidelines, the proposed structure does not conform with the introductory comments which say that, “The community’s built environment characterized by relative small-scale buildings, a quiet architectural demeanor, respect for neighboring properties, and the attention to architectural detail and landscaping.” Furthermore, in Section 1.3, Purpose, the following bullets I find to be a lack of conformity from the Applicant. “Ensure that the new development reinforces and supports specific qualities of the Town of Los Gatos, establishes a high level of design quality, maintains a building scale consistent with the Town’s small scale image, reinforces the special quality of the Town’s visual character, protects property owner investments by discouraging inappropriate adjacent development.” I’d like to pause on this now to make a comment on the design that hasn’t been made so far. We’re all talking about the 40’ or 50’ or 60’ or 80’ separation between the proposed plan and the adjacent properties. That’s for the building that’s above ground. If you look at the plan very closely, if I’m not mistaken the underground structure is actually within 15’ of the property line, so when we talk the northern property line of the adjacent neighbors, when we talk about potential disruption to the LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 neighboring properties, keep in mind that the underground excavation that you all are concerned with is literally within 15’ of your property line; that’s about 40’ closer than the building proper. Just want you to have that in mind. Moving on, in Section 1.4 again of the Commercial Design Guidelines, Community Expectations, I find that the Applicant is not in conformance with the following bullets: Careful attention to architectural and landscape details, similar to the Town’s residential structures, variety and diversity of architectural character that supports the current interesting mix of the Town’s styles; small scale buildings with a strong pedestrian orientation; the sensitive interface of commercial development with adjacent residential neighborhoods; strong encouragement of a unique Los Gatos scale and character; maintenance of a sense of place with views of surrounding hills preserved; rich architectural fabric with interesting details; scale and character appropriate to the setting; thoughtful architectural design,” not boxes with architectural cosmetic mansard roofs attached. CHAIR KANE: Thank you. Did any of your citations address the infill policy? LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER JANOFF: I did not address the infill policy. It was on my list, but have it. CHAIR KANE: Okay, it’s on my list. Anyone else? Commissioner Burch. COMMISSIONER BURCH: I’ll start my comments out by first stating that I’m really proud of the work that Staff, Town Council, and the Planning Commission has done on this. I think it’s been very thoroughly reviewed and I think that everyone has done an astounding job at the review level they’ve done, as obviously demonstrated by Commissioner Janoff. Also, that I think I, along with everyone else here, is aware that something will be built on that corner. It is a commercial property that something is going to happen there. However, as a Commissioner I would hope that a property that is designed to fit into a sensitive corner like that would be designed with the neighborhood compatibility in mind. We all recognize that property values in Los Gatos are high, and I think that is because of the sensitive design standards that we have that keep it in the small town character and keep the things that we cherish, such as the views. If we begin to vary from those sensitive design standards we may not see that people do LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 want to continue leasing here, that home values stay as high as they are. Based on those thoughts that I’ve had I feel that as it stands the application is not compatible with the neighborhood, and very specifically I think that the item that has caused me the most angst recently is the views. The view corridors from many standpoints, I know that Commissioner Janoff was trying to reach a good compromise last time and maintain a portion of the view corridors, but as it stands you can walk up and down that street and from various angels or properties the view corridors are clearly interrupted. Based on those and probably plenty of others, but I’m sure we’re all going to wind up saying a lot tonight, I wouldn’t be able to support the application as it stands. CHAIR KANE: Further comment? Commissioner Hanssen. COMMISSIONER HANSSEN: I spoke a lot at the last meeting, so I won’t say as much this time. I, too, am concerned about the size of this building, but I do struggle with the idea of objective standards. We’re in a situation where the objective standards say that that building isn’t too large, but then there’s this concept of LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 neighborhood compatibility, but it isn’t well suited to pure, objective standards. We spent a lot of time at the last meeting trying to get to the concept of what constitutes Class A space, and there are clearly buildings out there that are less than 74,000 square feet that are Class A space, but the Applicant has testimony from realtors that what they’re trying to make and sell to is that the buyers are wanting more like 37,000 square feet. That led me to a question about so when we’re looking at these applications and we were trying to balance this gray area between the neighborhood compatibility, which is clear it doesn’t seem to fit into the small neighborhood, and then the idea of the objective standards, what is the right number? When we started out this process I remember Commissioner O'Donnell made a motion to reduce the size by a third, and that seemed like a good stake in the ground, but it was short of an objective standard. Then we had ended up denying it on that basis and the neighborhood compatibility and compliance with General Plan. It went to Town Council and Town Council explicitly said that there was no basis for the Planning Commission choosing a number of a third less, because it doesn’t have LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 any kind of objective standard, and that was in the testimony that was made during the public hearing. So I get back to the thing about I would like to find a way that we can make this building smaller, but I struggle with how do you come up with an objective standard. I clearly hear what the neighbors want. At least most of the comments we got recently were 64,000, but where does that number come from? I also hear that the people who wrote the EIR might have come up the number that was the reasonable alternative of 74,000 in the EIR and it might not have been an objective standard, but it was in the EIR and it was studied for impacts, which was determined to be no significant impact. So then we get back to the thing about traffic, and so the issue about the size has to pertain to some kind of impact, and it’s the view and it’s the traffic, and then the EIR also says that there is no significant impact at the 93,000 square foot level, and also not at the 74,000 square foot level. So then I get back to how do we come up with the right number that is going to be an objective standard that makes sense and that would make the neighbors happy? I don’t know what the answer to that is, but I struggle with that. LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Then back to the traffic thing, I totally understand the concerns about traffic, and I know we’ve seen in the case of many EIRs that what turns out in terms of the overall traffic doesn’t make a difference, but we have to all keep in mind that the EIR is only supposed to evaluate the traffic impact from that particular application, so in the case of this neighborhood or any other the fact that there’s a whole lot of traffic in the neighborhood right now isn’t something that we can use to turn down the EIR; it has to be based on the traffic from this particular application. And this is going to lead to a question for Staff. Supposing that there really was a huge variance and the actual traffic that is generated from this application is way higher than it possibly was. Are there any other additional mitigations that could be made? Because we wouldn’t turn down an application because of traffic, we would ask them to do mitigations to make sure that the traffic wasn’t as much of an issue. CHAIR KANE: Thank you. Commissioner Hudes. COMMISSIONER HANSSEN: I did want to… CHAIR KANE: Oh, I’m sorry. Go for it. COMMISSIONER HANSSEN: My question is supposing that the actual amount of traffic that is generated by this LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 application was significantly larger than what was estimated by the traffic consultants and the ITE trip generation, the action that we’d be taking with regard to the EIR is that there would be additional mitigation required, and so is there any additional mitigation that the Applicant could make? I know they’ve already agreed to make some mitigations that weren’t required. Is there anything that could be done to mitigate traffic relative to this application? JOEL PAULSON: I’d say relative to this application—and Lynn Ambrose may be able to weigh in as well if necessary—what we have is an EIR that evaluated an approximately 93,000 square foot building. With the mitigation measure there are no impacts. We’re now down to 74,000, which presumably would be fewer impacts than the 93,000 that was studied. There isn’t a mechanism for an after the fact traffic study to evaluate the traffic that’s actually generated. Unfortunately, we don’t have the traffic engineer here this evening, but I would say that’s not the process that is followed. Once you have a building in the ground and occupied I’m not aware of the Town going back and doing additional studies. There could be some conclusions drawn as future projects come through where you LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 could potentially look at kind of the baselines from pre and post, but there are no additional mitigations required pursuant to the Environmental Impact Report, even at the higher traffic generation. COMMISSIONER HANSSEN: I understand that. As a follow up to that, I know in a previous hearing it was said that the current level of service for that intersection is Level of Service B, and if I heard it right that additional mitigation might kick in, which this would factor in the overall traffic, if it got to Level of Service D, but that would have to be based on the application, is that correct? JOEL PAULSON: Generally. I think the Town’s Traffic Policy does not allow you to drop below one level of service from what the existing is, and so you can’t drop two levels, otherwise you would have to mitigate it back up to at least not dropping one level, and they currently comply with those requirements. COMMISSIONER HANSSEN: Okay, thank you. CHAIR KANE: Anyone else? Commissioner Hudes. VICE CHAIR HUDES: Yes, thank you. I think I have a little bit maybe different view of our task as compared to some of the other Commissioners, although not all. I appreciate Commissioner Janoff’s thorough review of the complete project with regard to the Los Gatos LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 General Plan and standards. However, the Planning Commission considered this project once before and denied it, and it was appealed to the Council, who reviewed it. The Council, while not approving it, remanded it back to the Planning Commission for consideration, because of new information that was provided to them that we didn’t have the benefit of reviewing, and in remanding it to us they did not have specific numbers for us to review, but they had ten areas of modifications that they discussed in returning it to us, and what that meant to me is that they had reviewed parts of the project and parts of the project were acceptable to some of the Councilmembers, and parts weren’t to others, but that they wanted us to look at some specific areas. I don’t view the role of the Planning Commission as an appeals court for the Town Council; I don’t think it works that way. I think our role is to look at land use and issues with the ability that we have to go deeply into particular areas, and to provide recommendations, and to approve aspects of certain projects. So I don’t think it’s within the purview of the Planning Commission to ignore what the Council did or said, and so while I appreciate all of the items that were noted, my concerns are a bit LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 narrower and they’re really focused on three areas that were possible modifications discussed by the Council. There were ten of them that I could count, and they appear in the Staff Report of December 8th, page 3. The ones that I am concerned about are number one, the reduced square footage, and whether the square footage reduction to 74,000 was information which we had not previously reviewed, and whether that would accomplish compliance with standards and guidelines, and with regard to that, that brought in some other issues, obviously, but I think that that’s an area that’s legitimate for us to look at and debate. The other area that I think there is discussion about is increased public space and landscaping on the site, and in particular this is an issue that I raised with the developer about a dedicated dog park area and whether that was the use that the neighbors desired, and in looking at the Council direction I could not see specific direction as to a dog park, as was indicated in the letter from the developer, so my proposal earlier was for the developer to meet with the neighbors and to discuss potential uses of that space that might be more appropriate or more desired by both the developer and the neighbors. I didn’t see any attempt to do that, so that issue to me is still open. LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The third one is one that for me could get a little bit technical, but I do want to get into the discussion when the Commission thinks it’s the appropriate time, and that is the information on the role of Caltrans in the process with regard to the EIR and other traffic and safety impacts that are created along that corridor. I don’t want to drag us into that discussion at this point, but it is a discussion that I would like to have at some point. So those are the three areas. The other seven areas that were in the direction I don’t think are open for discussion, because I believe that the Applicant provided clear direction that was consistent with the desires of the Council, and those were not areas that I feel are in the purview of the Commission to reopen, because the response was consistent with the direction from Council. So those are sort of my comments. CHAIR KANE: Thank you. A few words from the Chair, unless you have something, Commissioner? COMMISSIONER O'DONNELL: Just a question. I had originally thought this was a de novo hearing, and that’s what we’ve talked about, so to say that we are being governed by what the Council did when they couldn’t reach a decision and therefore it’s a de novo hearing, confuses me. LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 How does one get direction from a Council that couldn’t make a decision and simply sent it back to us and said it would be a de novo hearing? Could I have some guidance from Staff on that? LYNN AMBROSE: I think I can take that one. It’s a de novo hearing in that you get to evaluate the project anew. You can be guided by the Town Council’s conversation, the transcript of that meeting, but you do not have to… You can take it into consideration, but you don’t have to be guided by it. So you’re on your own. COMMISSIONER O'DONNELL: Thank you. CHAIR KANE: Yes, Commissioner. VICE CHAIR HUDES: Just a quick remark on that topic. The reason why I think it’s important to think about that is that I don’t think it’s fair to either the developer or the residents of the Town to let something go on forever, and so I think it’s important where they didn’t make a decision nevertheless to read the record and to listen to the discussion and guidance that they’ve provided so that everything doesn’t just completely open up a blank slate when we’ve already gotten direction from a body that has in some ways more authority than we do. COMMISSIONER O'DONNELL: Chair? CHAIR KANE: Yes, sir. LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER O'DONNELL: My understanding is if we were to deny and to recommend denial, it isn’t like it ends there. It goes back to the Council, and certainly they must know what Commissioner Hudes thinks they had in mind. I don't know what they had in mind. They could not pass a motion. They could not get three votes on anything besides sending it back to us without guidance. I agree with him, this should not go on forever. If we turn it down here, or recommend turning it down, the Council doesn’t have to have it go on forever, or they can either turn it down or approve it with modifications, or just approve it, so it will not go on forever, but I just want to respond to that one point. Thank you. CHAIR KANE: And from a cynical standpoint, Commissioner, there’s certainly a way to prevent it from going on forever, and that would be to find a way to compromise. I went back to the old minutes and the old films, and with all due respect, Commissioner Hanssen, I’m just going to play with you for a second. It was Commissioner Erekson who said one third; it was in his motion. I was sitting next to him. Tom gets a lot of credit for everything; I can’t let him have that, and in respect for his service I want to give him that LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 plug. He said please consider one third, and it was in the motion. I also went back and listened to the Town Council on how they struggled to get to something they could agree with, and with respect to my colleague Commissioner Hudes, they gave us a clean slate. They had opinions, they said this, they said that, but the maker of the motion said I’m sending this back without direction, and it was seconded and it passed. Now, one can consider the comments made by Council and consider them very carefully, but that’s not what was in the motion, and the attorney advised when we first talked about this two meetings ago, or one meeting ago, that this was indeed de novo, so we’re taking it from scratch. I wanted to add some considerations. I’m the Chair, I might have the prerogative to do this, but to everyone listening, we have a long list of concerns from Commissioner Janoff, and I don't know if this was one of them or not, but from the General Plan, which is very much a Bible for us, and then the subsequent Hillside Guidelines, Commercial Guidelines, Residential Guidelines, but this is where it all comes from, and it’s right up in front, Goals and Policies, “Policy LU-1.1, but it says, “Encourage developers to engage in discussions as early as LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 possible regarding the nature and scope of the project and possible impacts and mitigation requirements.” I read that and I thought I wasn’t there, but maybe somebody wasn’t listening when the 92,000 came up. There’s nothing like that, and it doesn’t sound like they got into discussions earlier enough to prevent a disaster. It’s been a very long time, and time is money, and I don’t like it to go on forever either, but the way it doesn’t go on forever either is to try to meet us halfway, more than halfway. Ninety-two thousand, the kindest way I can refer to it is a lack of awareness of the Town requirements, the codes, and how we try to do business, and how we try to protect our neighborhoods. “Infill projects shall be designed in context with the neighborhood and surrounding zoning with respect to existing scale and character.” It goes on and on and on in so many places. Small scale, small town. And early on maybe a clearer message could get about the roadblocks again, I don't know, but we have passionate language in our General Plan, in our Commercial Guidelines, and in the Town Code about protect. We all see our job differently, but if I put it in a nutshell it would be to protect and preserve and develop consistent with the guidelines that Town LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Council has given us to adjudicate these matters, and this particular project doesn’t seem to ring that bell. I’m not a real estate person, that’s a liability, could also be an asset. I don’t see the magic in Class A per se. You can get a higher price for it, and it’s a nicer building, but if you can’t get a Class A in there, then maybe a Class B. But I will also add that maybe you can get a Class A in there. Now, the 74,000 seems to be arbitrarily pulled out of the EIR where it was arbitrarily inserted, but we’ve been given evidence from some of the letter writers, and we’ve got 400 letters, and some of them are repeats, but I hope you’ve had time to read them. That’s part of the passion behind the project that supports the passion behind the words. A whole lot of people think they’re going to be adversely impacted, and they’ve come down and come down and have given me a note, and it’s a real estate, what is it, Cushman & Wakefield, and it shows that in Los Gatos there’s a Class A office building at 62,000 square feet, and in Los Gatos there’s a Class A office building at 6,900 square feet. Part of what I’m doing is adding some thoughts to the record, and another thought I want to add is that the Applicant gave us… I ask what’s a Class A? Because I don't know, and they sent me a letter explaining what a Class A LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was, and one of the experts, I forget the name, it was 42 Second Street, said that Class As can be 200,000 in an urban setting and can be 50,000 in a suburban setting, and that was the letter I got from the Applicant; I found that persuasive. The very sensitive point to the project, what I hear over and over again, is economic feasibility. We can’t do this or that or we give up economic feasibility. I’ve gone through the General Plan, the Town Code, and the Commercial Guidelines over… I cannot find economic feasibility; that is simply not my department. My department is as stated: To preserve, protect, and development consistent with our guidelines. There’s a lot of strong, persuasive language about economic feasibility, but I just don’t think that’s what’s before me. So that might be a good place to end it. Comments, questions? Commissioner Hudes. VICE CHAIR HUDES: Maybe I could follow up with Staff. The topic of feasibility. How does feasibility come into the way that we are to review an application? Economic feasibility. JOEL PAULSON: Typically the Planning Commission has not taken that into consideration. That does not preclude you from taking that into consideration. Typically LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the economic feasibility is an issue that comes up through lawsuits and moving forward through lawsuits and showing probably more information on that economic feasibility than you may have before you this evening, and so you are free to choose to take that into consideration, but you are not required to take that into consideration. VICE CHAIR HUDES: If I may follow up maybe with the attorney. I was reading about the level of evidence that a LEED agency must take pursuant to 15091(a), and one of the considerations is considerations which make infeasible the alternatives identified in the Final EIR. I did a little further research on this topic and it seems as though what we need to look at is whether something is truly infeasible, not just desirable or a good thing. I went back and reviewed some of the testimony from the Applicant, and in hearing the language in using their description about the type of project, they use language like, “It would be nice,” or, “It would be attractive to the market,” but I did not see any specific financial evidence that would say that it would not be feasible. So that is where I am in terms of evaluating this topic of economic feasibility, that yes, number one, it is an issue that can be evaluated, but two, that there was not LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sufficient evidence presented to us that the project was infeasible as defined in what I read. CHAIR KANE: Other comments? Commissioner Janoff. COMMISSIONER JANOFF: Just to follow up on Commissioner Hudes’ point. I don’t personally feel we have enough information on the economic feasibility to make a determination. That said, the Applicant did provide us with the rationale behind the reduction from the 83,000 square feet to 74,000 square feet, indicating that the commensurate reduction in the cost of construction made that reduction economically feasible. Now, that’s not an infinite…that slope changes as your building size decreases, but with regard to feasibility of a smaller sized building, I have not seen evidence presented that it would be infeasible to build a building that is at the one-third mark that was recommended in the prior Planning Commission motion. Of all of the letters that we’ve received from the residents, the two numbers that stick in my mind are the 52,000 and 62,000 square foot numbers. With regard to feasibility, I’d be willing to support the project if I saw the feasibility numbers that would indicate that a smaller building could be built. CHAIR KANE: Commissioner O'Donnell. LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER O'DONNELL: A couple of points. I think the standards used for an EIR are different than the standards used in approving this project or not approving this project. When you do an EIR you can have an EIR approved and deny the project. So the standards are different, and one of the things is you have to consider the alternatives, and a “no project” alternative, for example, is often trotted out and doesn’t get much of anywhere. Then, secondly, as you go down you look at it like this one did. Now, the number they used for the lower number was truly plucked out of the air. People have been giving that some significance that I don’t think the writers of the EIR would have attributed to it, and I don’t think they did. The day we have to decide whether something is economically feasible, we’re in the wrong business, because that is, in my judgment, not a role. They could have come in and said I want to build a 150,000 square foot building, because that’s really going to make a lot of money, and we’re not going to make much money at 89,000, for example. Are we supposed to judge that, and if we are, what is our standard? What does it mean to be economically feasible? Does it mean you make a lot of money? You make a little LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 money? You lose money? We don’t do that. We decide whether the project complies with the laws here, the regulations here, and that’s what we do and that’s what we’re supposed to be able to do. We’re not economists. In any event, even if we were, and somebody sitting here is maybe, I’m not, that would not be our role. Now, let me say this. I’m prepared to make a motion as soon as people are finished saying what they want to say, because in a way I’ve gotten the flavor, and maybe there’s more we want to get, so I don’t want to rush it, but I’m prepared to make a motion when my fellow commissioners have gotten whatever they want to say out. CHAIR KANE: And I’m prepared to receive that motion unless there are other comments. Commissioner Janoff. COMMISSIONER JANOFF: I’m prepared to hear the motion, however, I may have discussion regarding amendments to CUPs that would be pertinent to add to whatever goes to the Town Council. COMMISSIONER O'DONNELL: I would invite Commissioner Janoff to make the motion, because it sounds like you would be better prepared to do that, and you had a wonderful listing and discussion of what you have in mind, LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 so if you would like to make the motion, I would encourage that. COMMISSIONER JANOFF: I can make the motion, but before I do that I’d like to discuss the amendments to the CUP that I would like to have the Commission consider. There are a couple of areas that were of particular issue to the Commission as well as the neighbors. One of them had to do with the potential damage to neighboring properties, and I think we’re all very interested in the geological and seismic analysis that various engineers and experts provided. Along the line of testimony someone had mentioned that one of the ways to ensure that there isn’t damage to surrounding properties or neighboring properties is to apply the appropriate measurement devices to ensure that the construction work doesn’t damage the neighboring property. To that end, I would propose an amendment to CUP 76, or where appropriate, that says, “The developer is to monitor the physical effects of construction on the foundation of adjacent residential structures. Specifically, measurements are to be made in accordance with best testing practices to apply strain gauges or appropriate data gathering devices to measure movement, stress, and strain on the neighboring residential structures. Measurement data shall be delivered LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to Town Staff on a weekly basis and shall be made available in a format that allows for public access and review.” COMMISSIONER O'DONNELL: May I ask a question on it? If the motion, for example, my motion was going to be to deny or to recommend, depending on what we’re talking about, the project, in which case we wouldn’t get into the conditions of the project we’re not approving. So unless you have a desire to approve the project, perhaps we can avoid dealing with things that are not applicable to a denial. COMMISSIONER JANOFF: The purpose of my comments are to make sure that wherever the motion goes, whether approval or denial, the next body that hears the issue has the opportunity to at least hear the comments that we would make if there’s consensus to support the modifications to the CUP as mentioned, so it’s really a comment to go forward more than an amendment to the motion. CHAIR KANE: And I think, Commissioner Janoff, you’ve accomplished that simply by putting it into the record. COMMISSIONER JANOFF: And I have one other. CHAIR KANE: Accomplish that one. COMMISSIONER JANOFF: And I want to apologize. I think this is an important issue. I just wanted to make LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sure that we got all of this in, and so I have a preamble that’s a little bit lengthy, so bear with me. Traffic in Los Gatos is an acknowledged problem. Traffic related disputes are a common public concern heard by the Planning Commission as well as the Town Council when new developments are proposed. There is an ongoing dispute between some of the Town public and Applicant developers, as represented in the Environmental Impact Analysis or Traffic Impact Analysis, that the accepted methods for analyzing traffic impact such as the ITE methodology are outdated and/or do not adequately reflect the unique traffic situations of Los Gatos. The public often provides traffic counts and anecdotal evidence that seem to contradict the formal analyses. With that in mind, I’d like to suggest for discussion that with this development and all future commercial and perhaps multi-family developments where traffic impact is a public concern we include traffic counting devices as an element of the CUP. Such devices similar to the program in place at Hillbrook School would provide data to the Town on a weekly basis. Aggregate project data may be then compared to establish project data and to determine whether the present methodology used to analyze traffic impact is adequate, or whether modified or LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 factored methodology is warranted for the Town of Los Gatos development projects. In other words, if we count cars and their count winds up being exactly the same as what the Traffic Impact Analysis said it would be, then we continue to use the methodology that’s been traditionally used. However, if the traffic impact is greater then to a substantial number than what was estimated in the ITE or the Traffic Impact Analysis, the Town can use that differential to modify the results or to consider modifying results, or using a different methodology when we consider Traffic Impact Analysis on any future development. We’ve gone around and around and around on this is a theory and this is an idea, but if we have data we should be able to gather the data and use the data to make better decisions in the future. So the language that I would propose is an addendum to CUP 104, or where appropriate, and again I would recommend that this be considered as a CUP element for all developments going forward. “The development shall implement vehicle counting devices with failsafe backup to obtain daily incoming and outgoing traffic counts during office working hours nominally in this case between the hours of 7:00am and 6:00pm. Count data shall be delivered to the Town Staff on a weekly basis and shall be made LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 available in a format that allows for public access and review.” That concludes my comments. CHAIR KANE: Thank you, Commissioner. Well stated. Commissioner Hanssen. COMMISSIONER HANSSEN: I just had a question regarding one of Commissioner Janoff’s comments, the first one regarding the geology. I thought that we had already incorporated in the CUP that there would be monitoring of the neighboring properties for foundation issues during the construction phase, and that it was going to happen weekly, so I don’t recall exactly what the terms were, but I was pretty sure that we had that already. JENNIFER ARMER: I believe we did. Mike Weiss from Public Works is available to answer. MIKE WEISS: Mike Weiss, Associate Engineer. Condition of Approval 81, Settlement Monitoring and Mitigation Plans specs out some specifications and details as to how that could be monitored and mitigated during the course of construction, if this application were to ultimately be approved. COMMISSIONER HANSSEN: So if I heard you correctly, yes, there is a condition for settlement LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 monitoring, but the details are not worked out, is that what you said? MIKE WEISS: There is a condition, correct. There are some listed items and details for how that would be measured, ultimately to be approved and reviewed and approved by the Town Engineer. COMMISSIONER HANSSEN: Okay, thank you. CHAIR KANE: Commissioner O'Donnell, would you care to make a motion? COMMISSIONER O'DONNELL: I would, but first I’m going to ask Staff, because we have before us the Architecture and Site Application, the Conditional Use Permit, and the Environmental Impact Report, and I assume that if one were to deny or… Of the first two, and you’ll have to help me with my recollection, I had understood that on a use permit that the Town Council had the final say on use permits, is that correct? JENNIFER ARMER: That’s incorrect in this case. In this case the Planning Commission is the deciding body for all three applications. Any decision by Planning Commission could be appealed. COMMISSIONER O'DONNELL: Okay, then the next question I have, and I think it’s the only other question, if you move to deny the Architecture and Site Application LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and the Conditional Use Permit, is it right to also consider the Environmental Impact Report? JENNIFER ARMER: You may consider all three, but if there is a motion to deny the Architecture and Site and Conditional Use Permit application, then no decision is required for the environmental review. CHAIR KANE: We’ve crossed that bridge before. About six months ago you had the same questions, and they’re good questions. COMMISSIONER O'DONNELL: My age, memory isn’t so good. All right, I’m going to make a motion that we deny the Architecture and Site Application S-15-056, and the Conditional Use Permit U-15-009, on the basis of the comments that we have made tonight with particular reference to Commissioner Janoff’s enumeration and the other comments we’ve made, but Commissioner Janoff actually listed many. I think the Chair listed some too. That’s the basis, which I will not repeat, that is in the record, and that would be, I think, the complete motion. I would not make a motion on the Environmental Impact Report. CHAIR KANE: Do we have a second? Commissioner Burch. COMMISSIONER BURCH: I will second that. LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAIR KANE: Discussion? Commissioner Hudes. VICE CHAIR HUDES: For the maker of the motion, are you including every point that Commissioner Janoff made as a basis for denial? COMMISSIONER O'DONNELL: No. I think at this point one can deny this for a number of reasons. Basically, I don’t think I have to single out each of them, but I would agree with you that I have not weighed each of the points that Commissioner Janoff so carefully and diligently raised, but sufficient to say that a number of those I do support. If you feel it necessary to separate out some of those, I would certainly listen to that suggestion. VICE CHAIR HUDES: Well, I’ve already stated three that I felt were ones that we were directed to look at by Council, meaning the square footage reduction, the landscaping and use of that land, and Caltrans and traffic issues, of which I have specific concerns that were not resolved. COMMISSIONER O'DONNELL: Since I don’t believe the Council directed us to do anything, that it’s de novo, I would not accept that comment. So I’m just going to let the motion stand as it is with the second, and if anybody has any specific things they want to include in it, I would certainly consider that. LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHAIR KANE: Well, I will ask for discussion. COMMISSIONER O'DONNELL: Yeah. CHAIR KANE: Is there any discussion? VICE CHAIR HUDES: I have a question of Staff, if I may? CHAIR KANE: Yes. VICE CHAIR HUDES: With regard to the EIR, I have some concerns with the EIR. The concerns with the EIR were not listed as grounds for denial. If the motion passes and the EIR is not referenced, is it possible for me to include my concerns with the EIR as part of the record? JOEL PAULSON: You can add your comments to the public record, if you wish, prior to a vote. VICE CHAIR HUDES: Okay. CHAIR KANE: Question for Staff. If in this instance Commissioner Hudes was to summarize bullet, could he follow up with more detail subsequently? Can he submit those in writing, in other words? JOEL PAULSON: I would not recommend that, however, we would not prohibit that. CHAIR KANE: Okay, thank you. Commissioner Hanssen. COMMISSIONER HANSSEN: With all due respect to Commissioner O'Donnell’s motion, and I appreciate all the LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work that Commissioner Janoff did to come up with all the parts of the General Plan, at this moment in time, although I heard everything that you said I haven’t had a chance to really look at all of those things that you mentioned as reasons for denial, so at this moment in time I’m uncomfortable with supporting a motion to deny based on a list of things that I haven’t been able to review and to incorporate with regard to the project. Other than that, I’d heard that it’s too big, and I’m also uncomfortable with that without being specific about what that is from an objective perspective. So I guess I don't know what the right way to resolve it is. COMMISSIONER O'DONNELL: You can vote no. That would do it. CHAIR KANE: Commissioner Janoff. COMMISSIONER JANOFF: I believe that the list of nonconforming items that I presented is not specifically attached to the motion, however I did want to comment. The overriding theme in the list that I’ve presented is that the project doesn’t meet the scale and character of the Town of Los Gatos, specifically as mentioned in those comments or in the General Plan elements, and that the scenic views are largely obliterated LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with the new building, so the overriding theme that runs through most of these, and I appreciate that not everyone has had a chance to review them in detail and may not agree with what I’ve listed, but that was my perspective, just to give you that background. CHAIR KANE: Commissioner O'Donnell. COMMISSIONER O'DONNELL: Let me say what I had in mind, because it may not be complete enough, and we could do that. In making my motion I was actually thinking very simply. I think the project is too large, and because of its size it takes away from the view, it is not consistent with the neighborhood, and it doesn’t use good architectural planning. I think the two stories; their lateral scope is too great. That pretty much sums it up. I think the traffic report, as I said before, I don’t have a lot of confidence, and I don’t blame the people who did the traffic report, they all rely on the same things, which I, in my experience in the years that I’ve done this, is consistently wrong, and the proof of that pudding is to watch the traffic after the buildings are built, and I have done that for years. People parachute in here and give us their opinions from a book that is good throughout the country, and I personally don’t accept that, so all those reasons that I’ve said. I don’t have to go over each and LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 every point that Commissioner Janoff wisely mentioned, but those that I just said, which are fairly discreet and not lengthy are the basis for my motion. CHAIR KANE: Further discussion or a vote? Commissioner Hudes. VICE CHAIR HUDES: With the comments that Commissioner O'Donnell made, I’m more comfortable with the motion, as I am opposed to the project, but I’m glad we’re not including every item that Commissioner Janoff proposed as the complete grounds, although I am glad that that information is being entered into the record and will be part of the testimony that would be considered, should this item be further considered. So I will be supporting the motion to deny, given that broader basis. I would like at this point to speak about some concerns I have with the EIR and with the way the EIR is being completed with regard to traffic. CHAIR KANE: Proceed. VICE CHAIR HUDES: My concern is that we have a gridlock situation that’s directly linked to cut-through traffic, and that situation is not being analyzed by our Traffic Impact Analysis that I’ve seen, and this is a highly predictable condition that occurs and recurs on certain days of the week, Fridays and weekends, and it not LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 only puts gridlock onto some arteries, it also prevents access to side streets and driveways, and that’s where my concerns come in about this project. The Town has adopted a temporary study fix for this solution, but does not have a permanent fix or resolution for this issue, and it needs to be approved by Caltrans, I think. The way it’s important, and the reason I want to go on the record on this, is that the General Plan says in Traffic 3.7 that, “All traffic reports shall include analyses of nearby uses with unusual or unique traffic generation factors or peak hours,” and I think that this is an example of that. I also think that Caltrans guidelines on preparation of traffic impact studies states that seasonal and weekend variations in traffic should also be considered where appropriate, and I don’t see that in the traffic report that we have. There is substantial public testimony to this condition, yet the condition was not mentioned in the NOP, DEIR, the TIA, or the EIR, and from what I could tell traffic measurements were only taken on two dates, January 21, 2015 and May 13, 2015. I also want to enter into the record that while we rely on expert testimony and reports, we are not LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 restricted to this according to the California Court of Appeals that said that, “Relevant personal observations of area residents on non-technical subjects may qualify as substantial evidence,” and in the case that was cited, specifically they talked about residents’ observations of traffic conditions. The way this impacts this project is in two ways. One is the TIA may be flawed, although I’m not really technically qualified to break that down, but I think it’s based on ignoring information that is available. Number two, I think there’s evidence that an unsafe condition can be created with hundreds of senior citizens living on a street that may become inaccessible when gridlock is occurring at the entrance to Alberto Way, and in order to mitigate this issue I believe that it’s necessary to widen Alberto Way to accommodate emergency vehicle access. The current proposal to widen it, which took a lot of digging to find out how much that actually was, is 3’, and that seems to be inadequate to accommodate emergency vehicle access, which is generally required to be 14’, especially since trees will be planted on the strip just adjacent to the roadway, so it’s not even possible for emergency vehicles to just kind of push through some of that as well, and our General Plan policy says that, “New LOS GATOS PLANNING COMMISSION 2/14/2018 Item #4, 401-409 Alberto Way 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 development shall be accessible to emergency vehicles and shall not impede the ability of service providers to provide adequate emergency response.” That’s SAF-7.4. So for those reasons I have concerns about the EIR itself, and I think it has implications in future applications that we may be seeing as well. CHAIR KANE: Outstanding. Outstanding contributions by all. Let’s vote. All those in favor of the motion? Opposed? It’s unanimous, 6-0. Mr. Paulson, are there appeal rights? JOEL PAULSON: There are appeal rights. Anyone who is not satisfied with the decision of the Planning Commission can appeal that decision to the Town Council. The appeal must be filed within ten days. There’s a fee for filing the appeal, and the appeal forms are available in the Clerk’s Office.