Staff Report
PREPARED BY: JENNIFER ARMER
Senior Planner
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, Community Development
Department Director, and Finance Director
110 E. Main Street Los Gatos, CA 95030 ● 408-354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 05/01/2018
ITEM NO: 14
DATE: APRIL 26, 2018
TO: MAYOR AND TOWN COUNCIL
FROM: LAUREL PREVETTI, TOWN MANAGER
SUBJECT: GENERAL PLAN AMENDMENT GP-12-001, WILLIAMSON ACT CONTRACT
WA-11 CANCELLATION, PLANNED DEVELOPMENT APPLICATION PD-10-
006, AND ENVIRONMENTAL IMPACT REPORT EIR-12-001. PROJECT
LOCATION: TWIN OAKS DRIVE. APPLICANT/ PROPERTY OWNER: TOM
DODGE, SURREY FARM ESTATES, LLC.
A. CONSIDER CERTIFICATION OF AN ENVIRONMENTAL IMPACT REPORT
AND ADOPTION OF A MITIGATION MONITORING AND REPORTING
PROGRAM.
B. CONSIDER CERTIFICATION OF WILLIAMSON ACT CANCELLATION FEE.
C. CONSIDER A REQUEST FOR A GENERAL PLAN AMENDMENT FROM
AGRICULTURE TO HILLSIDE RESIDENTIAL, CANCELLATION OF THE
EXISTING WILLIAMSON ACT CONTRACT, AND A PLANNED
DEVELOPMENT TO REZONE PROPERTY FROM RC TO HR-1:PD TO
ALLOW FOR SUBDIVISION OF ONE LOT INTO 10 LOTS, CONSTRUCTION
OF 10 NEW SINGLE-FAMILY RESIDENCES, AND REMOVAL OF LARGE
PROTECTED TREES. APN 532-16-006.
RECOMMENDATION:
It is recommended that the Town Council accept the Planning Commission’s recommendation
and certify the Final Environmental Impact Report and Mitigation Monitoring and Reporting
Program, certify the Williamson Act Cancellation Fee, approve the tentative cancellation of the
Williamson Act contract, amend the General Plan designation, and adopt an Ordinance
approving the Zone change.
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SUBJECT: TWIN OAKS DRIVE/PD-10-006/GP-12-001/WA-11/EIR-12-001
APRIL 26, 2018
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BACKGROUND:
The subject 17.55-acre property is currently vacant and takes access from Twin Oaks Drive
(Attachment 1, Exhibit 4).
The applicant presented a development proposal for the subject site to the Conceptual
Development Advisory Committee (CDAC) on September 8, 2010. Summary minutes of t he
CDAC meeting are attached to the February 28, 2018 Planning Commission Staff Report
(Attachment 1, Exhibit 7).
The General Plan Committee (GPC) reviewed the proposed project on September 12, 2012,
October 22, 2014, and December 28, 2015 (Attachment 1, Exhibits 8, 9, and 10). The motion of
the GPC was to continue the project until the Final EIR is certified with the understanding that
the Town Council may choose not to request a formal recommendation from the GPC at that
time.
A Draft Environmental Impact Report (DEIR) was prepared and circulated in 2015 (Attachment
1, Exhibit 1, previously distributed under separate cover). In response to additional information
received from the US Army Corps of Engineers in 2016, the Town prepared and circulated tw o
revised sections of the DEIR, the Biological Resources Section and the Alternatives Section s,
between May 5, 2017 and June 19, 2017 (Attachment 1, Exhibit 2). The Final EIR (Attachment
1, Exhibit 3), which includes the Response to Comments, was previous ly distributed under
separate cover on February 20, 2018.
The California Land Conservation Act of 1965, better known as the Williamson Act, works to
preserve agricultural and open space lands through restrictive use contracts administered by
counties and cities under State regulations. Private landowners restrict their land to agricultural
and compatible open space uses under minimum 10-year rolling term voluntary contracts with
counties and cities. In return, the property tax on a Williamson Act parcel is assessed at a rate
consistent with its actual use, rather than potential market value. A Williamson Act agricultural
preserve contract was established by the Town on the project site in 1975 and this contract is
currently still in effect.
A notice of non-renewal of the Williamson Act contract was received on April 28, 2015.
Because the timeline for non-renewal is 10 years, this contract would remain in effect until
2025. A Petition for Cancellation of the Williamson Act Contract was received by the Town in
2017 and was sent to the California Department of Conservation, Division of Land Resource
Protection (Attachment 6). The Department of Conservation sent a response letter
(Attachment 1, Exhibit 12) stating that the findings could be made for cancellation, and
recommending that the General Plan Amendment and Planned Development to rezone the
property occur prior to, or at the same time as, the cancellation. Resolution No. 1979-150
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SUBJECT: TWIN OAKS DRIVE/PD-10-006/GP-12-001/WA-11/EIR-12-001
APRIL 26, 2018
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BACKGROUND (Continued):
adopted by the Town Council in 1979 provides a procedure for cancellation for Williamson Act
contracts, including review and recommendation from the Planning Commission. The action on
the Williamson Act contract will be certification of the cancellation fee and tentative
cancellation of the contract, pending payment of that fee.
The Planning Commission considered the applications on February 28, 2018. The Commission
forwarded a recommendation for approval to the Town Council as discussed in more detail in
this report. The Council is the final deciding body for all of the proposed applications.
If the proposed applications are approved, future required approvals would include a
subdivision application (including installation of roadway improvements and recordation of
easements) and Architecture and Site (A&S) applications for each new building site. All of these
subsequent applications would need to be approved and other Town requirements satisfied
prior to construction.
DISCUSSION:
A. Project Summary
The applicant is proposing a General Plan Amendment from Agriculture to Hillside
Residential and a Planned Development (PD) to rezone the subject site from RC to HR-1:PD.
The General Plan Amendment and PD would allow for the subdivision of the property, the
installation of new private roadways, construction of new single-family homes, and the
removal of large protected trees. In order to proceed with this development, the applicant
is also proposing to cancel the existing Williamson Act contract on the property.
The proposed PD plans provide for two options, the original single-access option which
would allow the site to be subdivided into 10 lots for single-family residential uses
(Attachment 15, Exhibit B), and a revised two-access option which would allow the site to
be subdivided into nine lots for single family-residential uses (Attachment 15, Exhibit B).
The project also includes installation of a trail and associated easement, and dedication of
open space easements, as required by the Hillside Specific Plan, that would connect Brooke
Acres Drive and Cerro Vista Court. The subject site is approximately 17.5 acres, and the size
of the proposed single-family lots would be between 0.87 acres and 2.37 acres each, with
3.62 acres preserved as open space in the original proposal, and 5.7 acres preserved for
open space in the revised two-access option.
The proposed two-access project would include the construction of two private streets to
access the new lots from Twin Oaks Drive and Cerro Vista Court. Construction of the private
streets would include cut, up to eight feet in depth, and fill, up to seven feet in depth at the
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DISCUSSION (Continued):
centerline. Portions of “Street B,” from Cerro Vista Court, and the likely driveway location
for Lot 7 would be outside the Least Restrictive Development Area (LRDA). Individual
building plans and site improvements would be submitted as part of future Architecture and
Site applications.
Proposed development plans for the PD application, including both the original 10-lot
proposal, and the revised nine-lot two-access proposal, are included in Exhibit B of
Attachment 15.
The applicant’s proposal would require exceptions to the Hillside Development Standards &
Guidelines (HDS&G) for construction outside the LRDA, and cut and fill depths exceeding
the maximum allowed, for the roadway and a future driveway.
B. Planning Commission
On February 28, 2018, the Planning Commission considered the applications and received
public comment (verbatim minutes included as Attachment 4). The Commission voted 6-0
(Commissioner Burch absent) to recommend approval of the entire package with the two-
access PD alternative with the following comments and modifications:
1. TREES: Reduce tree removals to the maximum extent possible, including but not limited
to the following trees: #18, 62, 302, 303, 336, 337, 561, and the grove on Lot 7.
2. OPEN SPACE: The proposed Open Space shall be publicly accessible.
3. HOUSE SIZE: The size of the residences shall comply with the HDS&G.
4. GRADING: Cut and fill for access improvements should be no more than shown in the
development plans.
5. FENCING: Open fencing design should be provided for wildlife access.
6. NUMBER OF LOTS: The number of lots should be reduced to eight (with a specific
recommendation for removal of Lots 6 and 7), with consideration of reconfiguration.
These items have been addressed as described below and in the applicant’s response letter
(Attachment 5), revisions to the development plans (Attachment 15, Exhibit B), and
revisions to the Draft Planned Development Ordinance (Attachment 15):
1. TREES: The applicant has provided a discussion of these trees within their response
letter (Attachment 5) and has provided more legible enlargements of the site plans so
that the tree numbers are legible. All of these trees are now proposed to be maintained
or transplanted.
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DISCUSSION (Continued):
2. OPEN SPACE: Included in Section III of the revised Draft PD Ordinance (Attachment 15)
to address this recommendation.
3. HOUSE SIZE: Performance Standard 11 has been added to the revised Draft PD
Ordinance to address this recommendation.
4. GRADING: Performance Standard 12 has been added to the revised Draft PD Ordinance
to address this recommendation.
5. FENCING: Performance Standard 9 has been added to the revised Draft PD Ordinance to
address this recommendation.
6. The revised Draft Ordinance (Attachment 15) specifies eight homes, as recommended
by the Planning Commission. This number could be modified prior to the second
reading if so directed by the Town Council.
C. Applicant’s Response
Based on the public testimony and comments from the Planning Commissioners received at
the Planning Commission hearing, the applicant has revised the two-access alternative plans
(Attachment 15, Exhibit B) and provided a response letter for Town Council consideration
(Attachment 5). The applicant’s response to the Planning Commission’s recommendation
for a reduced number of lots (eight) is a proposal for nine lots, and it retains both Lots 6 and
7, that the Planning Commission recommended removing. Instead, the applicant describes
how their proposed lot configuration (nine lots) brings the house from Lot 7 down the hill,
adjusts lot lines to better protect the trees, the views of the top of the knoll, and the
riparian area from development.
The revised Draft Ordinance (Attachment 15) specifies eight homes, as recommended by
the Planning Commission, but could be modified for the second reading if so directed by the
Town Council.
D. Revised Traffic Study
As a result of the Planning Commission’s recommendation for approval of the two-access
alternative, Town staff requested a revised traffic study to review that alternative. The
revised study was prepared by the applicant’s consultant, Hexagon Transportation
Consultants (Attachment 8), and reviewed by the Town’s consultant, TJKM (Attachment 9).
The applicant’s study concluded that the project would result in only minor traffic increases
and that the project would provide adequate site access and circulation. The Town
consultant’s peer review concurred with the conclusions in the applicant’s study.
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DISCUSSION (Continued):
E. Council Questions
In response to questions from Council Members, staff has prepared the following
information.
Please explain the difference between a utility and access (“road”) easement from Cerro
Vista Court. What is the current easement and are there changes proposed with the
project?
Public Utility Easement (PUE): There is a 10-foot wide PUE that provides the public utility
companies access within that area to connect utilities from the public right-of-way to the
“Lands of Dodge.” The materials provided by the applicant (Attachment 5) include copies of
the Tract Map which created Cerro Vista Court and the residential lots there. Page 4 of the
Tract Map shows the above mentioned PUE. This map also includes notes showing the
location of 10-foot wide pedestrian/equestrian trail easements, and existing open space
easements on the Cerro Vista Court properties.
Access (Road) Easement: The materials provided by the applicant (Attachment 5) include
copies of the recorded offer of dedication of land “to be a public thoroughfare and to
become a portion of the public street system in the Town of Los Gatos.” The map showing
the area that it covers is a thin strip of land about 200 to 300 feet long which covers the
land between the edge of the Cerro Vista Court right-of-way and the Dodge property.
These materials also include a resolution by the Town reserving the right to accept this
dedication at a future date. No changes to this item are proposed.
Please explain why the Town’s required findings (as identified by the Town Attorney at
Planning Commission) are the appropriate findings for the project instead of the
community’s recommended findings.
The discussion over findings at the Planning Commission meeting was in regards to the
Williamson Act cancellation. In the Williamson Act [California Government Code Section
51282(a)] there are two sets of possible findings for cancellation of a Williamson Act
contract. The first set of findings, which apply in this case, can be used only when a notice
of nonrenewal has been served on the property. The findings described by the neighbors
are the set of findings required when there has been no notice of nonrenewal, which is why
the staff’s findings are the appropriate findings. The Williamson Act contract cancellation
findings are included with the other required findings for the proposed project (Attachment
12), and the justification for these findings were prepared by Town staff and sen t to the
State Department of Conservation for their review (Attachment 6). The Department of
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SUBJECT: TWIN OAKS DRIVE/PD-10-006/GP-12-001/WA-11/EIR-12-001
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DISCUSSION (Continued):
Conservation sent a response letter (Attachment 1, Exhibit 12) stating that the findings
could be made for cancellation.
Is the project subject to the Housing Accountability Act and/or SB35?
The proposed project is not subject to the Housing Accountability Act or SB35 because it
does not meet the requirements for either of those laws to apply. Specifically, the decisions
before the Council are legislative in nature. If the Council approves the items, then the
subsequent A&S applications would be subject to the Housing Accountability Act.
If the project is denied would the Town at risk for a Taking lawsuit?
No. In California, property development is considered a privilege and not a right. A takings
analysis begins with the constitutional premise that no private property shall be taken for
public use without the payment of just compensation. A taking can be in the form of a
physical taking; denials of all economically beneficial use; partial regulatory takings; and
land use exactions.
If the project is denied, the property will remain in the Resource Conservation zone. This
zoning would still allow the property owner to use the property for: (1) A single-family
dwelling; (2) Agriculture; (3) Botanical conservatory; (4) Small family day care home; (5)
Residential care facility; and (6) Other uses are allowed with a Conditional Use Permit.
Therefore, if denied, the property owner would still have beneficial use of the property.
In addition, there is a strong public policy in sulating land use planning from civil liability.
Agins v. City of Tiburon (1979) 24 Cal.3d 266, rejected a claim for monetary damages
stemming from a zoning determination by Tiburon which was destructive to plaintiff Agins'
property interests. After discussing the "chilling effect" and the specter of financial liability
might be introduced into local planning arenas, the California Supreme Court declared that
"the need for preserving a degree of freedom in the land-use planning function, and the
inhibiting financial force which inheres in the inverse condemnation remedy, persuade us
that on balance mandamus or declaratory relief rather than inverse condemnation is the
appropriate relief under the circumstances."
Was the property intended to be permanent open space for an adjacent subdivision?
The neighbors have not provided any documentation and the Town does not have any
information showing that this property was intended to remain permanent open space. No
open space easement was recorded on the project parcel, though other subdivisions in the
area, including the adjacent Cerro Vista Court, show open space easements on their tract
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DISCUSSION (Continued):
maps for space now under a Williamson Act contract. However, the Cerro Vista Court
subdivision did not include the subject property.
If the General Plan amendment application is denied, are actions on the other
applications necessary, and is it possible to deny the Williamson Act cancellation if the
other applications are approved?
• If the General Plan amendment is denied, then actions on the other applications and
certification of the Environmental Impact Report are not required.
• It is not possible to deny the Williamson Act cancellation and approve the other
applications. If the Williamson Act contract is not cancelled, then the General Plan
amendment would be inconsistent with Town Council adopted Resolution No. 1988-
230, which required the General Plan designation of Williamson Act contract lands to be
Agriculture or Open Space.
CONCLUSION:
The Planning Commission recommended approval of the proposed project with modifications,
including a reduction in the proposed number of lots, as discussed above.
It is recommended that the Town Council accept the Planning Commission’s recommendation
and approve the applications with modifications by taking all of the following actions
concurrently:
1. Adopt the CEQA Findings of Fact (Attachment 1, Exhibit 6);
2. Certify the Final EIR and adopt the Mitigation Monitoring and Reporting Program
(Attachment 1, Exhibits 13 and 14);
3. Make the required finding for the Cancellation of the Williamson Act Contract (Attachment
12);
4. Adopt a Resolution certifying the Williamson Act Cancellation Fee and approving the
Tentative Cancellation of Williamson Act Contract WA-11 (Attachment 13);
5. Make the required findings that the proposal to amend the General Plan designation and
rezone the property is consistent with the General Plan (Attachment 12);
6. Make the required finding that the project is in compliance with the Hillside Development
Standards and Guidelines and the Hillside Specific Plan with the exception which have been
determined to be acceptable (Attachment 12);
7. Make the required finding that the project is consistent with the Town’s Housing Element
(Attachment 12);
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8. Adopt a Resolution approving General Plan amendment application GP-12-001, amending
the General Plan Land Use Designation from Agricultural to Hillside Residential (Attachment
14);
9. Introduce an Ordinance of the Town of Los Gatos effecting a Zone Change from RC
(Resource Conservation) to HR-1:PD (Hillside Residential with a Planned Development
Overlay) for the property located off of Twin Oaks Drive (Attachment 15), by title only, with
any specific changes identified and agreed upon by the majority of the Town Council.
If the Town Council would like to consider the items for individual motions, staff recommends
that the Town Council work through them in the following order:
1. Consider the Environmental Impact Report
a. Adopt the CEQA Findings of Fact (Attachment 1, Exhibit 6).
b. Certify the Final EIR and adopt the Mitigation Monitoring and Reporting Program
(Attachment 1, Exhibits 13 and 14).
2. Consider the General Plan amendment
a. Make the required finding that the proposal to amend the General Plan designation
is consistent with the General Plan (Attachment 12).
b. Adopt a Resolution approving General Plan amendment application GP -12-001,
amending the General Plan Land Use Designation from Agricultural to Hillside
Residential (Attachment 14).
3. Consider the Rezoning
a. Make the required finding that the proposal to rezone the property is consistent
with the General Plan (Attachment 12).
b. Make the required finding that the project is consistent with the Town’s Housing
Element (Attachment 12).
c. Make the required finding that the project is in compliance with the Hillside
Development Standards and Guidelines and the Hillside Specific Plan with the
exception which have been determined to be acceptable (Attachment 12).
d. Introduce an Ordinance of the Town of Los Gatos effecting a Zone Change fr om RC
(Resource Conservation) to HR-1:PD (Hillside Residential with a Planned
Development Overlay) for the property located off of Twin Oaks Drive (Attachment
15), by title only, with any specific changes identified and agreed upon by the
majority of the Town Council.
4. Consider the Williamson Act Cancellation
a. Make the required finding for the Cancellation of the Williamson Act Contract
(Attachment 12).
b. Adopt a Resolution certifying the Williamson Act Cancellation Fee and approving the
Tentative Cancellation of Williamson Act Contract WA-11 (Attachment 13).
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ALTERNATIVES:
Alternatively, the Council may:
1. Approve the proposed applications with modifications and/or additional performance
standards; or
2. Continue the applications to a date certain with specific direction; or
3. Remand the project to the Planning Commission with specific direction ; or
4. Deny the applications.
COORDINATION:
The Community Development Department coordinated with the Town Attorney’s Office, Parks
and Public Works Department, the Santa Clara County Fire Department , Santa Clara County
Assessor, and the California Department of Conservation in the review of the project.
ENVIRONMENTAL ASSESSMENT:
An Environmental Impact Report (EIR) was prepared for the project. As part of the
environmental review process a number of technical reports were prepared, including species
lists and database review, tree evaluations and arborist reports, geotechnical investigations,
stormwater basin stability analysis, noise analysis, and traffic analysis. Reports that were
prepared by outside consultants were peer reviewed by Town Consultants.
The Notice of Preparation (NOP) was distributed on July 9, 2012, for a 30-day comment period,
which was then extended to August 28, 2012. Comments received on the NOP are included as
Appendix A to the Draft EIR.
The Notice of Availability for review of the Draft EIR (DEIR) was released on August 25, 2015,
with the 45-day public review period ending on October 9, 2015. On September 9, 2015, the
Planning Commission held a public hearing to accept comment s on the DEIR. Verbal comments
were received from sixteen individuals, many of whom also submitted written comments.
On December 21, 2016, the applicant submitted a letter from the US Army Corps of Engineers
that resulted from a site visit to assess the riparian areas on site. As a result of this letter, the
Town revised and recirculated the Biological Resources and Alternatives Sections of the DEIR.
This Partial Recirculated Draft EIR (PRDEIR) includes as Appendix A a copy of the US Army Corps
letter, as well as an additional Wetland Impact Assessment. The PRDEIR was released on May 5,
2017, with a 45-day public review period ending on June 19, 2017.
Written comments on the DEIR and PRDEIR were received from four public agencies and 43
individuals. The Final EIR, with Response to Comments, was completed in August 2017.
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A Mitigation Monitoring and Reporting Program (MMRP) (Attachment 1, Exhibit 3) has been
prepared as required by CEQA. The MMRP includes a list of all mitigation measures and the
department(s) responsible for ensuring that the mitigation measures are properly
implemented. All mitigation measures are also included as performance standards within the
draft PD Ordinance (Attachment 15).
Attachments:
Previously received under separate cover:
August 2015 Draft Environmental Impact Report
May 2017 Partial Recirculated Draft Environmental Impact Report
August 2017 Final Environmental Impact Report and Mitigation Monitoring and Reporting
Program
Attachments received with this Staff Report:
1. February 28, 2018 Planning Commission Staff Report (with Exhibits 4 -15, Exhibits 1-3 were
previously distributed under separate cover)
2. February 28, 2018 Planning Commission Addendum Report (with Exhibits 16 -17)
3. February 28, 2018 Planning Commission Desk Item Report (with Exhibits 18)
4. February 28, 2018 Planning Commission Verbatim Minutes (142 pages)
5. Letter from Applicant, received April 3, 2018 (32 pages)
6. Notice of Receipt of Petition for Cancellation of Williamson Act, dated December 5, 2017
7. Williamson Act Cancellation Fee Letter from the County Assessor, dated March 1, 2018
8. Updated Traffic Study, by Hexagon Transportation Consultants, Inc., dated March 22, 2018,
revised to correct typos April 16, 2018
9. Peer Review of Update Traffic Study, by TJKM, dated April 6, 2018
10. Project Information Sheet, prepared by the Parks and Public Works Department
11. Public Comments received by 11:00 a.m., Thursday, April 26, 2018
12. Required Findings (two pages)
13. Draft Resolution for Certification of Cancellation fee and Approval of Tentative Cancellation
of the Williamson Act Contract (five pages)
14. Draft Resolution for General Plan Amendment (three pages), with Exhibit A (one page)
15. Draft Ordinance (45 pages) with Exhibit A Rezone Area (one page) and Exhibit B
Development Plans (42 pages)
Distribution:
Tom Dodge, Surrey Farms Estates, LLC, 851McGlincy Lane, Campbell, CA 95008
Rodger Griffin, Paragon Design Group, 16165 Monterey Road, Suite 103, Morgan Hill, CA 95037