Attachment 13FILING FEES
$381.00 (PLAPPEAL) Residential
$1,533.00 (PLAPPEAL), per
Commercial M ulti-farnily or
Tentative Map Appeal
TRANSCRIPTION $500 (PLTR.\NS)
PROJECT/ APPLICATION NO:
ADDRESS LOCATION:
Town of Los Gatos10(.¥f6F LOS GATOS
of the Town CitiRK OEPARTHENT
110 E. Main St., Los Gatos CA 9stS"EO
APPEAL OF PLANNING coMli'~~MEBsto~ll
I, the undersigned, do hereby appeal a decision of the Planning Commission as
foilows: (PLEASE TYPE OR PRINT NEATLY)
DATE OF PLANNING COMMISSION DECISION February 14, 2018
401 to 409 Alberto Way; see attachment
40 I to 409 Alberto Way. Los Gatos (also known as 405 Alberto Way)
APN: 529-23-018
Pursuant to the Town Code, the Town Council may only grant an appeal of a Planning Commission decision in most matters if the
Council finds that one of three (3) reasons exist for granting the appeal by a vote of at least three (3) Council members. Therefore,
please specify how one of those reasons exists in the appeal:
1. The Planning Commission erred or abused its discretion because ~sc=e~a=t-ta=ch=c~d~. ---------------
-~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~-;OR
2. There is new information that was not reasonably available at the time of the Planning Commission decision, which is
1,ec attached.
(please attach the new information if possible): OR
3. The Planning Commission did not have discretion to modify or address the following policy or issue that is vested in the
Town Council: ....,s=e.::=-·· '"'at""ta::.:c..,.hc""d..,_. _______________________________ _
IF MORE SPACE IS NEEDED, PLEASE ATTACH ADDITIONAL SHEETS.
IMPORTANT:
1. Appellant is responsible for fees for transcription of minutes. A $500.00 deposit is required at the time of filing.
2. Appeal must be filed within ten (10) calendar days of Planning Commission Decision accompanied by the required filing fee.
Deadline is 5:00 p.m. on the 101hday following the decision. If the 101hday is a Saturday, Sunday, or Town holiday, then it
may be filed on the workday immediately following the 101h day, usually a Monday.
3. The Town Clerk will set the hearing within 56 days of the date of the Planning Commission Decision (Town Ordinance No. 1967).
4. An appeal regarding a Change of Zone application or a subdivision map only must be filed within the time limit specified in
the Zoning or Subdivision Code, as applicable1 which is different from other appeals.
5. Once filed, the appeal will be heard by the Town Council.
6. If the reason for granting an appeal is the receipt of new information, the application will usually be returned to the Planning
Commission for reconsideration.
PRINT NAME: Alicia Guerra on behalfof LP Acquisitions ~' X , ,,. ~-" ·.--) -
SIGNATURE:_ ~-/
DATE: FebruaryA2,,2018 . ·-_ .. _ ___ _ ADDRESS: Buchalter. a professional corporation-----·
PHONE: (415) 227-3508 SS Second Street. Suite 1700, San Francisco. CA 94105
~Ch-\-\) ~~ i~ ~~~ l a, .\-\1
DATE OF PUBLIC HEARING: ~ {)I',\
*** OFFICIAL USE ONLY***
Pending Planning Department Confirmation
DATE TO SEND PUBLICATION:
CONFIRMATION LETIER SENT: Date:
TO APPLICANT & APPELLANT BY:
DATE OF PUBLICATION:
-:",\;J/,lU.'
ATTACHMENT 1 3
Town of Los Gatos
Appeal of Planning Commission Decision
401-409 Alberto Way Project
ATTACHMENT TO APPEAL FORM
PROJECT/APPLICATION NO.:
• Architecture and Site Application S-15-056 (ASA),
• Conditional Use Pemrit Application U-15-009 (CUP), and
• Environmental Impact Report EIR-16-001 (EIR).
Collectively, the ASA and CUP for the approval to demolish three existing office buildings and
construct a new 2-stoiy office building with underground parking on the 2.15-acre Property
zoned Highway Commercial (CH) are referred to as the "Project.'' The Project is also referred to
as the "Third Redesign.''
Project History
LP Acquisitions (the "Appellant'') filed its applications for ASA, CUP and EIR approval on July
23, 2015 for the approval of a 91,965 square foot building. After two years of processing and
revising the Project to further reduce the size of the Project to 83,000 square feet in order to
acconunodate many of the design changes that the Planning Commission requested, the Planning
Commission nonetheless denied the Project for the first time at its May 10, 2017 hearing because
they felt the Project was still too big. The Planning Commission believed that the Project should
be reduced to the size of the Reduced Scale Alternative evaluated in the Project EIR at 74,260
square feet, but because the requested changes were infeasible at that time, LP Acquisitions was
unable to accommodate the request and the Planning Commission denied the Project.
Following the May I 0, 20 I 7 denial of the 83,000 square foot building, LP Acquisitions appealed
the Planning Commission's decision to the Town Council to review and overturn the
Commission's denial of the Project. At its hearing on September 19, 2017, the Town Council
accepted public comments on the fu-st appeal and began its deliberations regarding the Project.
While the Council appreciated some of the revisions and design features incorporated into the
Project to further reduce the square footage to 83,000 square feet (the "Second Redesign"), the
Council ultimately decided on October 3, 2017 to remand the Project back to the Planning
Comrnjssion due to the receipt of new information with a recommendation to further reduce the
size of the Project to 74,260 square feet (the "Third Redesign") --the size of the Reduced Scale
Alternative evaluated in the Project ElR. Additionally, the Council directed LP Acquisitions to
implement the following modifications to the Project:
• Provide open space and public space for a dog area and amenity area.
• Increase the tree sizing along Alberto Way to screen the buildings sooner.
• Allow after-hours overflow parking in the surface lot.
o Use Viewglass or similar product to create automatic dimming of the glass in the
evening.
• Make architectural enhancements to the entry and 2nd floor windows.
• Design building to LEED Gold level.
• Revise the vehicle trip generation numbers for the reduced size of the building.
• Schedule weekly traffic meetings during construction.
• Keep the Community Benefits.
On remand, LP Acquisitions presented its Third Redesign to the Planning Commission on
December 13, 2017. Janua1y 10, 2018 and February 14, 2018. The Planning Commission denied
the Project for the second time on February 14, 2018, despite LP Acquisitions reducing the
Project size to the Planning Commission and Town Council's recommended 74,260 square feet
as well as the Appellant agreeing to all the other project modifications mentioned in the bullet
points above. LP Acquisitions is appealing the Planning Commission's denial of the Project and
the Commission's refusal to certify the Project EIR because the Planning Conunission abused its
discretion and disregarded the Town Council's direction to consider the proposed reduced
Project as represented in the Third Redesign.
1. The Planning Commission erred or abused its discretion because the Commission's
decision to deny the Project and refusal to certify the Project EIR were not based on
substantial evidence.
The Council remanded the Project to the Planning Commission based solely Qn new information.
Sec. 29.20.300(c) of the Los Gatos Municipal Code provides:
"If the only or predominant reason for modifying or reversing the decision of the
Planning Commission is the availability of new information as defmed in
subsection (b)(2) above, it is the policy of the Town that the application will be
returned to the Commission/or review in light of the new information unless the
new information has minimal effect on the application."
The Planning Commission erred and abused its discretion when it denied the Project after
concluding the Project ,vas still "too big," in light of the new information that the Council
considered and directed be evaluated by the Commission. The Planning Co1m11ission originally
directed that the Project be reduced to the size of the Reduced Scale Alternative evaluated in the
Project EIR at 74,260 square feet. Specifically, the Appellant initiated a comprehensive effort to
redesign the Project for the third time in response to both the Town and neighborhood comments
and concerns to incorporate the following key design modifications into the Third Redesign:
o Reduced Project size to 74,260 square feet in accordance with the Council's
recommendation and reduced the building massing to achieve a further reduction in
the size and scale of the building to be consistent with the EIR's Reduced Scale
Alternative of74,260 square feet. Since the building was shified away from the
northern prope1ty line by an additional 30 feet (56 feet in total, taking into
2
consideration the 15 feet required setback plus an additional 1 1 feet proposed from
the Second Redesign earlier in 2017); the additional building reduction of8,740
square feet (83,000 less 74,260) on the northern side of the property provided for
more expansive mountain view corridors that will be visible from both the street and
adjacent properties across Alberto Way.
• Created more open space 011 the northem side of the building for a large dog park
and an amenity area for tenants and visitors.
• Increased the tree sizing from 36" box trees to 481
' box trees along Alberto Way to
shield the building sooner from the neighborhood.
• Reduced the overall parking ,fipucesfrom 332 to 298, which is a reduction of30
garage parking stalls and 4 surface parking stalls. The reduction in garage parking
stalls results in a smaller building footprint with a corresponding reduction in
excavation. Additionally, 38 of the 42 at-grade parking spaces were preserved so that
overflow parking in the surface lot area can occur during off-business hours. LP
Acquisitions agrees to a condition of approval allowing for nearby residents to use the
Pro.iect surface lot parking spaces after business hours.
• The Third Redesign includes Viewglass 01· a similar product for building windows
treatment in order to maintain privacy and reduce lighting impacts to nearby
residents.
• Repositio11ed the building entrance to tile ce11te1· of the site allowing the surface
parking to be placed more evenly throughout the Project site than under the prior
design which also created more open space at the southeast corner of the property for
an amenity area open to tenants and visitors. As the building is now narrower when
viewed from Alberto Way, the repetition of windows on each different fayade
element has been reduced, giving the building a more elegant look and feel from the
prior design.
Recessed the 2nd floor windows to create detail. The n01them fa9ade of the building
has been pulled back one foll column bay (30 feet) on the north side so the window
line is now further away from the northern property line that abuts the neighboring
residential prope1ty to the north. Recessed punched windows and trellis features at
each punched window opening have been retained from the previous design on the
front of the building.
• Designed t" LEED Gold level equivalency which denotes that this building would be
green or compliant in tenns of energy conservation, water usage, air quality and
building materials ..
• Hexagon prepare,/ several teclmical letters at/dressing the Project's trll/jic impacts,
as well as provided a summary letter of the revised Traffic Counts for the project.
See below Revised Traffic Counts.
3
Table 1 • Prqect Trip Generation creciting driveway counts
AM Pe3k Hour PM Peak Hour --------------Daily Daily
Land Use Size Unit Rate Tnps Rate In Out Total Rate In Out Total
Proposed Project {P)
Original Design S1ut1e<1 1n m 93.5 ksf 11.03 1,031 1.94 159 22 181 1.96 31 152 183
2nd Redesign 82.0 k&f 11.03 11()4 1.99 143 20 163 2.07 29 141 170
3rd Redeisgn 74.3 ksf 11.03 820 2.03 133 18 151 2.18 28 134 162
Existing Site Dmeway Cowls (Ell
Office 30.0 ksf 11.03 331 29 13 42 34 47 81
Ntt Project Trfp Genendlcm {N,llt • P • E)
Original Design Sludied in TIA. 93.5 k5f 700 130 9 139 (3) 105 102
2nd Redesign 82.0 ksf 573 114 7 121 (5) 94 89
3rd Redeisgn 74.3 ksf 489 104 5 109 (6) 87 81
~
M rates are front lnsliwteof Transpo,tat,on Engineer.;, Trip Gemnitiotl, 9th Efilion
1. Land Use Code 710-Geneltll Office ~ (averag lllles for daly trips, ltfsd CUM! equation for peak hour trips, expl95Sed in trips per
1,000s.f.)
12. Existing lite ckiveway counts me based on driveway counts conducted on May 5, 2015 during both the NA (7-9 AM) and PM (4-6 PM} peak
hours of commute traffic. Daily trips are estimated for existing office use using 1he daily trip generation rate for General Office Building
(awntge rates, expressed ii qis per 1,000 s.f.)
Hexagon's letters to the Town were peer reviewed by the Town's traffic consultant
and determined to be adequate. Further, since the 74,260 square foot Third Redesign
is consistent \1l"ith the Reduced Scale Alternative evaluated in the El R, the Third
Redesign would not result in any additional traffic impacts compared to those
previously evaluated for the Project.
• Weekly traffic meeti11g.'t would occur during co11str11ctio11. The Third Redesign
reduces the size and footprint of the underground parking structure with a
cotTesponding decrease in the overa11 parking count by 34 spaces. The reduction in
the footprint of the structure and the corresponding reduction in parking spaces
provides for an area on the Project site to serve as construction staging, in accordance
with the Planning Co1mnission ·s request in the Second Redesign of the Project. The
on-site construction staging area reduces the amount of export off-haul during
excavation. Additionally, the proposed Constmction Plan, which will be formally
submitted for review by the Town Council during the permit review stage, provide~
for weekly construction management meetings with the neighbors.
• Co1111111mity Benefits would stuy with this Project. LP Acquisitions agrees to a
condition of approval allowing a free public shuttle. Details arc articulated in the
most recent version of the Conditions of Approval, dated December 13, 2017.
• The Proposecl Third Re,lesigu with all of the red11ctio11s in square footage and
reduced grading and off-haul would result in a reduction in costs of approximately
$3.2M to $3.5M. Consequently. with the reduction in grading and construction
costs, the proposed 74,260 square feet Project known as the EIR's Reduc~d Scale
Alternative would be feasible. A detailed analysis of the economics can be found in
the Applicant's Response Letter dated November 7, 2017.
4
Even though the Planning Commission acknowledged that LP Acquisitions designed the Third
Redesign to reduce the Project to 74,260 square feet and incorporate the changes requested by
the Town Council, the Planning C01runission detennincd the Project needs to be even smaller
because the neighbors want it to be smaller. Then the Commission summarily rejected the
Project. Despite these changes made at the Council's direction, the Planning Commission denied
the Project because the neighbors requested that the Project be further reduced in size and LP
Acquisitions did not accommodate that request.
The Planning Commission erred and abused its discretion because the Pla1111ing
Commission did 11ot adopt findings to deny the Project i11 accordance with Section
29.20.190 of the Town M11nicipal Co,le.
The Town's issuance of a conditional use permit is a quasi-judicial administrative action. A trial
court reviews a quasi-judicial administrative action under an abuse of discretion standard for
administrative mandamus proceedings pursuant to Code of Civil Procedure section 1094.5.
(Nei~hborhood Action Group v. County vf Calaveras ( 1984) 156 Cal.App.3d 1176, J 180, J 186.).
Code of Civil Procedure section 1094.5 (b) defines "abuse of discretion" to include instances in
which the administrative decision "is not supported by the findings, or the findings are not
supported by the evidence." Section l 094.5 requires that the agency which renders the
challenged decision must set forth findings to "bridge the analytic gap between the raw evidence
and ultimate decision or order" (Topanga Association for a Scenic Community v. County of Los
Angeles, 11 Cal. 3d 506 (1974).)
That is the situation here. The Planning Commission did not adopt any findings in its denial of
the Project. Section 29.20.190 of the Los Gatos Municipal Code provides that ihe deciding
body, on the basis of the evidence submitted at the hearing, may deny a conditional use permit
for a new office building based on the following findings:
(1) The proposed use of the property is not in harmony with specific provisions
or objectives of the general plan and the purposes of this chapter;
(2) The proposed use will detract from the existing balance and diversity of
businesses in the commercial district in which the use is proposed to be
located;
(3) The proposed use would create an over-concentration of similar types of
businesses; or
( 4) The proposed use will detract from the existing land use mix and high
urban design standards including uses that promote continuous pedestrian
circulation and economic vitality.
The Commission did not make any of these findings. Jn fact, the Conunission indicated that it
would review the Project de novo without consideration of the prior Town Council direction.
The Los Gatos Municipal Code, however, does not expressly state that the Planning Commission
may just start over and ignore the Council's direction when a matter has been remanded to the
Commission for consideration. The Conunission's recitation of policies with which the Project
purportedly did not comply were not supported by any facts sufficient to satisfy the Town's
required findings to deny a CUP or ASA application pursuant to Government Code section
65901 or Town of Los Gatos Municipal Code Section 29.20.190.
5
Appellate court decisions provide that, "When there has been a decision upon appeal, the trial
court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the
terms of the remittitur. The trial court is empowered to act only in accordance with the direction
of the reviewing court; action which does not conform to those directions is void." (Hampton v.
Superior Court (1952) 38 Cal.2d 652,655. See also Ayyad v. Sprint Spectrum, L.P. (2012) 210
Cal.App.4th 851, 859.) Courts also have opined that the issues a trial court may address in
remand proceedings are "limited to those specified in the reviewing court's directions, and if the
reviewing court does not direct the trial court to take a particular action or make a particular
detem1ination, the trial court is not authorized to do so.'' (Axvad v. Sprint Spectrum, L. P. (2012)
210 Cal.App.4th 851, 859-60.).
Similarly, Section 29.20 of the Municipal Code does not state that the Planning Commission may
start from scratch and revisit the Project anew, contrary to what it has done here. Because the
Municipal Code does not provide any further guidance regarding the scope ofrcvicw on remand.
we request that the Council rely on the scope of review trial courts apply in their review of
agency actions. Accordingly, we request that the Council review and overturn the Commission's
actions on the basis that the Commission failed to comply with the Town Council's direction on
remand.
The Planning Commission rejected the Third Redesign witl,out considering that the
d1anges they req11ested conflicted with prior Council and Commission direction a11d
conflicted with the T<Jwn 's policies and Cummercial Design G11ideli11es.
At its meeting on January l 0.2018, the Planniog Commission requested that LP Acquisitions review
an<l consider the following possible further revisions to the Alberto Way Project:
l . Adjust the elevations of the buildings so that the Project accommodates both single and
two-story clements to maximize the views from the street of the mountains, particularly
the views that would be visihle along the western side of the property adjacent to
Highway 17.
2. Elevation adjustments may be made while maintaining the 74,260-squarc-foot size of the
Third Redesign proposal, but in that event. the revisions should increase the two-story
element in one direction and allow for a single story in another direction to provide
neighboring residents more mountain views.
3. Consider reducing the number of surface parking spaces to provide room to expand the
building footprint and extend the building closer to Alberto Way.
4. Consider ti.uiher reducing the Project to between 50,000 and 60.000 square feet in size.
The Appellant submitted a letter to the Planning Commission on January 30, 2018 explaining that the
requests included in the Planning: Commission's motion on January 10, 2018 C(mflicted not only with
the Planning Commission and To\.vn Council's prior direction, but also with Town Commercial
Design Guidelines and General Plan Policies that led to the revisions reflected in the Second and
Third Redesigns.
6
On February 14, 2018, the Planning Commission disregarded all of the Appellant's comments
regarding the conflicts with prior Planning Commission and Town Council direction, and the
Commission did not address any of the items that the Appellant noted were inconsistent with the
Town's General Plan policies and Commercial Design Guidelines. Instead, one of the Planning
Commissioners listed policies with which the Project purportedly failed to comply without any
explanation or any facts demonstrating how or why the Project does not comply with the policies.
Some of these policies were the very policies with which the Commission's motion of January l 0 1
'
1
did not comply as the Appellant noted in its January 301h letter. Instead, the Planning Commission
denied the Project based on their own subjective and unsupported opinions without identifying any
objective criteria to support any findings, and the Commission cited in its motion to deny the project
that the building was too large; not consistent with the neighborhood; not good use of architectural
planning; the two-story elements are too great and that it blocks the views. The Commission also
claimed that the Traffic Report was not believable.
Tlte Pla11ni11g Cmnmission abu.~ed its discretion whe11 it ref11sed to certify the EIR.
The Planning Commission abused its discretion when it refused to certify the EIR, because its
decision to deny the Project and decision to not certify the EIR were not supported by substantial
evidence. Certification of the EIR and Project approval are two separate decisions. The
Planning Commission could have certified the EIR as adequate under CEQA and later rejected
the Project in a separate action, even if it still intended to deny the Project in accordance with
Public Resources Code section 2106 t. But the Commission did not do that. Instead, the
Planning Conm1ission put the cart before the horse, and indicated first that they intended to deny
the Project so that they would not need to certify the ElR. They did this the first time they
denied the Project and they did it again when they denied the Third Redesign.
The Planning Commission's actions were even more egregious this time. On January 10, 2018,
several Planning Commissioners noted that the EIR addressed their concerns and they would be
prepared to certify the EIR. On Febrnary 14, 2018, in a complete reversal, those same
commissioners rejected the EIR because they did not like the EIR ·s conclusion that the traffic
analysis did not identify any significant traffic impacts in light of the heavy existing traffic
conditions. Nothing had changed in the BIR from January 10111 to February 1411\ and no new
comments were submitted by the public that identified any new purported deficiencies in the
EIR. One of the commissioners claimed that the Town should not certify the EIR because he did
not believe that the lTE manual for calculating trip generation was acceptable and the Town
needs to change how it conducts traffic analyses for any new project in the Town. One
commissioner even commented that the Town should only evaluate the traffic impacts of the
proposed project and that just because there is a lot of traffic from existing neighborhoods that
existing condition cannot be used to question the validity of analysis. Nonetheless, that is what
the Planning Commission did and they rejected the EIR without any further discussion.
In this case, there was no substantial evidence supporting the decision made by the Planning
Commission indicating that the Project environmental impact report (ElR) was inadequate under
CEQA. At no time, did the Planning Commission state at its meeting on January IO, 2018 that
the EIR was inadequate. Just because the Planning Conunission and the neighbors may not like
the results of the EIR analyses on February 141h, does not mean that the analyses were flawed or
that the EIR was inadequate. Nonetheless, despite LP Acquisitions' technical experts addressing
7
all of the comments previously raised regarding the EIR and providing technical information to
address every issue previously raised, the Planning Commission refused to consider the
adequacy of the EIR. In this way, the Planning Commission abused its discretion when it
dismissed the EIR before it even reviewed the EIR.
2. There is new information that was not reasonably available at the time of the Planning
Commission decision, which is that:
There is no new information or any significant changes to the Projectfor the Co1111cil to
consider related to this appealfor a basis for the Council to remand the action back to
the Planning Commission.
3. The Planning Commission did not have discretion to modify or address the foJlowing
policy or issue that is vested in the Town Council.
As with the original appeal, the Planning Commission unlawfully changed the rules that the
Town Council previously adopted before denying LP Acquisitions' Project. If the Commission
can change the rules regarding the processing of an EIR or a Project in such a manner, there ii; no
longer any certainty as to how an applicant may proceed with a project. This will be a continual
game of ping pong.
Based on the reasons set forth above, we believe the Planning Commission acted in an arbitrary
manner and failed to comply with the Town's own policies and rules. Thus. we arc appealing
the Planning Commission's denial of this Project and refusal to certify the EIR as adequate in
accordance with CEQA, because the Planning Commission did not have the discretion to change
CEQA or the Town's rules as applied to the Project.
We respectfully request that the Town Council review the Planning Commission's decision and
find that the Planning Commission ened and abused its discretion. We also respectfully request
that the Town Council find that substantial evidence supports the Town's certification of the EIR
and approval of the Project for all of the reasons set forth in the Letter of Justification and Project
documents included in the Town's administrative record for this Project, and ove11urn the
Planning Commission's denial of the Project. Accordingly, we request that the Town Council
overturn the Planning Commission's decision for the reasons set forth in Items I and 3.
8
EXHIBIT A
This Page
Intentionally
Left Blank
Buchalter
January 30. 2018
VIA E-MAIL (JARMER@LOSGATOSCA.GOV) & FEDEX
Ms . Jennifer Armer
Town of Los Gatos
Community Development Department
110 E. Main Street
l.os Gatos, CA 9 5031
Phone: (408) 354-6872
Email: jarmer@Iosgatosca.go\'
55 Second Street
Suite 1700
San Francisco, CA 94105
415 227.0900 Phone
415.227.0770 Fax
File Number: L4342-0002
415.2:17.3508 Direct
aguerra@buchalter.com
Re: Responses to Commission Comments from January l 0, 2018 Meeting Regarding 401-409
Alberto Way Architecture and Site Application S-15-056; Conditional Use Pem1it
Application U-15-009 APN 529-21-018
Dear Jennifer:
Thank you for coordinating the continued processing of the above-referenced 401-409
Alberto Way project (the "Alberto Way Project") for the Los Gatos Planning Commission's
consideration at its upcoming February 14, 2018 meeting. Based on the Commission's deliberation~
at its January 10, 2018 meeting and Commissioner Janoff s motion, specifically, we understand that
the Planning Commission has requested that LP Acquisitions review and consider the following
possible further revisions to the Alberto Way Project in advance of the February 14, 2018 continued
meeting:
5. Adjust the elevations of the buildings so that the Project accommodates both single and
two-story elements to maximize the views from the street of the mountains, particularly
the views that would be visible along the western side of the property adjacent to
Highway 1 7.
6. Elevation adjustments may be made while maintaining the 74,260-square-foot size of the
Third Redesign proposal, but in that event, the revisions should increase the two-story
clement in one direction and allow for a single story in another direction to provide
neighboring residents more mountain views.
7. Consider reducing the number of surface parking spaces to provide room to expand the
building footprint and extend the building closer to Alberto Way.
[rror! l'nknown document pro pert~· nam<'.
buchalter.com
Los Angeles
Napa Valley
Onnge County
Sacramento
San Francisco
Scottsdale
Buchalter
Ms. Jennifer Armer
January 30, 2018
Pagel l
8. Consider farther reducing the ProJcct to between 50,000 and 60,000 square feet in size.
The requests for consideration included in Commissioner Janoffs motion conflict not only with the
Town Planning Commission and Council's prior direction, but also with the Town's Commercial
Design Guidelines and General Plan Policies that resulted in the revisions reflected in the Second and
Third Redesigns as further discussed below.
Further Adjustments to Building Elevations Conflict with Prior Town Direction and
Policies
Recommendations 1 and 2 directly conflict with prt:vious diredion and recommendations of
both the Town and the neighbors . Per the neighbors' request as stated in our prior January 3, 2018
submittal, the Third Redesign, which is identified in the Environmental Impact Report (EIR) as the
'·environmentally superior alternative,·· repositions a compact and efficient reduced-height, two-story
building mass against the south and west setback lines (Los Gatos Saratoga Rd and Hwy 17) as
shown in Exhibit A (Site Plan Al .01 ). This change both maximizes open space on the north side of
the site and preserves the views of the mountains to the maximum extent possible at the key view
corridor just north of the building and along the entire Alberto Way street frontage, consistent with
General Plan Policies CD-16.1 and CD-16.3.
If LP Acquisitions were to reduce the size of the second floor of the building in certain areas
to create more building area with only one-story on the north side, the change would result in a
corresponding increase in the two-story building footprint to the south which would then push the
building closer to Alberto Way contrary to the Council and neighbors' request. Furthermore.
Commissioner Janoffs recommendation would increase the lot coverage of the building, which the
General Plan limits to fifty percent. (See Los Gatos General Plan, Land Use Element, p. LU-14).
The increased lot coverage would reduce the amount of surface parking and the open space/amenities
areas since the mass of the building would need to be moved forward towards Alberto Way and the
north property line. Such a change would be inconsistent with the General Plan Policy to protect
existing residential areas from the impacts of non-residential development, including through the use
of buffers. (See Los Gatos General Plan, Land Use Element, Policies LU-6.1 and LU-6.3. p. LU-25.)
The Original Dl!sign of 91,965 square foot included a two-story building element at the
southern end of the property that was located just behind the required setback and positioned along
the Alberto Way street frontage. Additionally, the Original Design did not have the current generous
setback at the northern end of the property line next to the residential neighbors. The Planning
Commission and neighbors opposed the original setback width and the original two-story element,
and to revert to that design would conflict with the Commission's prior direction. By contrast, the
neighbors and certain members of the 2016 Planning Commission (as well as the Town Council)
requested that the project be redesigned to push the building mass "away'" from Alberto Way and the
north property line in order to maximize views over the top of the building and through the view
corridor adjacent to the north property line. For these reasons, we arc unable to incorporate the
rr.!visions that the Planning Commission has most recently requested and reincorporating these
Error! l 'nlmown document property name.
Buchalter
Ms. Jennifer Armer
January 30, 2018
Page 12
changes would be inconsistent with General Plan Policies LU-6. l and LU-6.3. (See also Los Gatos
General Plan, Land Use Element, Policy LU-9.9 (requiring buffers for non-residential projects
adjacent to residential areas),)
Reductions in Surface Parking Conflict with Prior Town Direction
Recommendation 3 also conflicts with previous direction provided by the Town and
neighbors. During the Town's Technical Review prior of both the Original Design and Second
Redesign, the Planning Commission and neighbors requested additional surface parking at one of the
2016 Planning Commission meetings in order to replace the existing street parking that will be
displaced by the widened street to accommodate the dedicated south-bound right turn lane as well as
the new Alberto Way bicycle lane and bike box (also requested by the Town). Both the Town and
neighbors requested additional landscaped amenity areas on the front and north sides of the building
that could be utilized by the public. The additional landscaping is consistent with the Town's
Commercial Design Guidelines 1.5 .10 ("All projects shall be well landscaped'') and General Plan
Policy CD-3.4 (''Encourage the use oflandscaping .... "). Furthermore, at a prior meeting in 2016,
the Planning Commission and the neighbors requested that an efficient below-grade garage be
redesigned to reduce overall excavation and accommodak all on-site staging for construction
vehicles and equipment. Use of underground parking is encouraged under Commercial Design
Guideline 2.2.2, and is particularly appropriate when parking should not be placed at the northern
end of the property to address the neighborhood's preference. The Third Redesign preserves a
modest amount ofsurface parking as well as useable open space. Arty further reductions in surface
parking and amenity areas in order to accommodate a hybrid one/two-story redesign will necessarily
require increasing the size of the below-grade parking garage (to replace the displaced surface
parking) and will reduce the area of the onsite amenity areas.
Further Reductions in the Size of the Project are in Infeasible
As we previously explained in our November 7, 2017 and January 3, 2018 Letters,
Reeommendation 4 is infeasible from leasing marketability, usability and economic standpoints for
Class "A" facilities. We previously submitted letters from industry experts including brokers who
specialize in leasing Class "A" office space. and an:hitects who have designed Class '·A'" office
buildings in Silicon Valley as further support for why reducing the Project size would not meet the
definition of Class "A" office space. By contrast, the neighbors' suggestions that LP Acquisitions
can further reduce the size of the building are based on argument, speculation. and unsubstantiated
opinion, and they lack an adequate foundation because they are not based on facts or assumptions
based on facts that demonstrate smaller buildings would nonetheless meet the demand for Class ''A'.
office space.
As we stated in our letter of January 3, 2018 and are reiterating here, we previously submitted
extensive infomrntion regarding the size of the underground garage and the siLc of the building
footprint. Further reductions in the size of the building to 50,000 to 60,000 squar~ feet were not
feasible before, and they are not feasible now given i::xisting site constraints and site improvements
Errnr! l'nkno"n document prOJlCTt) name.
Buchalter
Ms. Jennifer Armer
January 30, 2018
Page 13
that LP Acquisitions is making to accommodate enhanced roadway access, pedestrian and bicycle
facilities, and open space amenities.
Public Resources Code Section 21061. I defines "feasib1e'' as "capable of being accomplished
in a successful manner within a reasonable period of time, taking into account economic,
environmental, social, and technological factors." Reducing the building by another I 0.000 square
feet or more would not significantly reduce the less-than-significant impacts of the 74,260 square
foot building because the Third Redesign already reduces the impacts to the residents along the
northern property boundary and provides extensive site frontage landscape screening. Recent case
law also emphasizes the "desirability" of a mitigation measure or alternative. Desirability is based
on a reasonable balancing of the relevant economic, environmental, social, and technological factors.
(Native Plant, supra, I 77 Cal.App.4th at p. I 00 l, citing City of Del Mar , .. City of San Diego (1982)
133 Cal.App.3d 401, 417.) That is the case here.
A 74,000 gross square foot building results in 37,000 square foot floor plates, which are very
desirable in a Class "A" market place. Reducing the overall building area down to 60,000 or fewer
square feet, will result in floor plates that are 30.000 SF or smaller, and arc less marketable in a Class
"A'' marketplace. Moreover, the actual usable square footage on each floor is roughly 8 percent less
than the gross square footage, due to the necessary core elements (vertical circulation, restrooms,
utility rooms, etc.). As the floor plates decrease in size, the percentage load factor for the non-usable
areas increases, as the same core elements must still be provided for the smaller floor plates, thus
reducing the marketability of the building when compared to similar buildings with larger floor
plates.
For the reasons set forth above, the recommendations contained in Commissioner Janoffs
recent motion conflict with specific prior Planning Commission and Town Council direction and/or
neighbor requests. In many instances, the requested revisions also conflict with Town policy
(Genera] Plan or Commercial Design Guideline), and were determined to be infeasible due to site
constraints. costs, logistics, legal, leasing marketability, usability and/or technological considerations.
Other Planning Commission Recommendations were Already Included in the Project or
Conflict with Prior Town Direction
Commissioner Hansen suggested that the following recommendations be added to the
Project. All of these recommendations have been incorporated into the Third Redesign or are
included as conditions of approval, or the Town does not have authority to impose the condition in
the first instance.
I. Enhance north setback to improve the view (accomplished by the Third Redesign).
2. Maintain shuttle (COA/CUP) (conditioned as part of review of the Third Redesign).
Error! Unknown document properly nam1•.
..
Buchalter
Ms. Jennifer Armer
January 30, 2018
Page 14
3. Ensure that the surface parking and open space on the north end of the property are made
available to neighboring residents. (C'OA/CUP) (accomplished by and conditioned as part
of review of the Third Redesign).
4. Limit the number of employees (as confirmed by Community Devclopmcnt Director Joel
Paulson, the maximum number of occupants is determined by building and fire codes).
Commissioner Hudes also requested that LP Acquisitions reconsider the dog park and
explore other uses for the open space that might be more attractive to the neighbors. The dog park
was included at the Council's request, and many of the neighbors expressed an interest in having
access to the space.
Alberto :wa,· Would Have Sufficient Right-of-Way to Accommodate Emergency
Vehicles
Commissioner Hudes inquired about the Alberto Way right-of-way and whether it is
adequate to accommodate emergency vehiclt: traffic. Town Staff stated at the January 101h Planning
Commission Hearing that the proposed widening of Alberto Way ''will'' accommodate emergency
vehicles based on the new roadway width. The current Alberto Way road width is 36 feet (curb to
curb: I 8 feet roadway width for Northbound vehicles and I 8 feet roadway width for Southbound
vehicles) and the proposed Alberto Way road width would be 41 feet. The extra 5 feet of roadway
width would come from the existing 2 feet of unused right-of·way along Alberto Way (buffers LP
Acquisitions' site) within the Alberto Way Project site. LP Acquisitions is proposing to dedicate
approximately 3 feet along the street frontage of its Property to make the new Alberto Way road
width 41 feet in order to increase visibility of pedestrians and vehicles as well as to comply with the
Town's Complete Streets Ordinance by installing a bike lane. Here are the proposed lane widths:
1. Northbound Alberto Way roadway width: 16 feet
2. Southbound Alberto Way roadway width: 10 feet
3 . Southbound Albe110 Way Bike Lane width with Bike box: 5 feet
4. Southbound Alberto Way Dedicated Right-Turn Lane width: 10 feet
The Project would provide more than enough roadway width for emergency vehicles. The
Town's Public Works and Santa Clara County Fire Department approved the Project design as in
compliance with the Town Code. We are including the enclosed exhibit to clarify the discussion
regar<ling the Alberto Way Right of Way at the January 10 111 Planning Commission meeting. Please
see attached Exhibit A (Site Plan A 1.0 I).
Error! l'nkno\\11 document property 11ame.
Buchalter
Ms. Jennifer Armer
January 30, 201 8 Page 15
Conclusion
A Class "A'' office project at this site that is smaller than 74,260 square feet would be
infeasible from leasing marketability, usability and economic standpoints. The Project did not result
in significant impacts at 92,800 square feet, 83,000 square feet or at 74,260 square feet. And it still
does not result in significant impacts as several Planning Commissioners acknowledged the EIR
adequately addressed their concerns. My client is unable to fiu1her reduce the Project size to address
the Planning Commission's latest request when the Third Redesign is consistent with the General
Plan and Commercial Design Guidelines and there are no significant impacts to be mitigated.
For all of these reasons, we respectfully request that the Planning Commission certify the
Final EIR and approve the Arc hitecture and Site Approval and Conditional Use Pem1it based on the
Third Redesign.
AG:sl
Exhibit
cc (via email): Joel Paulson
Rob Schultz
Randy Lamb
Shane Arters
Jolie Houston
Dan Mitchell
Dan Kirby
ErrQr! lnl.no'\\n dQcumtnt properly name.
Sincerely,
BUCHALTER
By �1 :orporation -
Alicia Guerra