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Attachment 03 LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 3 LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 move to the Public Hearings portion of our agenda and consider Item 2 on tonight’s agenda, which is 223 Massol Avenue. This concerns Minor Residential Development in an Historic District Applications, there are two, HS-18-018 and HS-18-031. We are to consider an appeal of an Historic Preservation Committee decision approving a request for exterior alterations on a non-contributing, single-family residence, HS-18-018; and an appeal of an Historic Preservation Committee decision approving a request for an addition to a residential accessory structure less than 450 square feet, which is visible from the street; this is HS- 18-031, on property located in the Almond Grove. It’s the Historic District and it’s zoned R1-D:LHP, it is APN 510- 16-020. The property owner and Applicant is Vladimir Kanevsky, and the Appellant is Tyler Atkinson. May I have a show of hands from the commissioners who have visited the property under consideration? Are there any disclosures by any commissioners? Vice Chair Hudes. LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 VICE CHAIR HUDES: Serving on the HPC after consideration of the item was closed at the last meeting I had a conversation with the architect before knowing this matter would come before here. I did not discuss the project, I simply provided some information about process and referred the architect to Staff for questions, so I had no consequential conversation. CHAIR KANE: I appreciate the disclosure. Is there any difficulty with tonight’s proceeding for you? VICE CHAIR HUDES: No. CHAIR KANE: Okay. Any other disclosures? I seek a Staff Report. Mr. Mullin. SEAN MULLIN: Thank you, Chair Kane. Before you tonight is an appeal of an HPC decision approving exterior alterations and an addition to a residence, and an appeal of an HPC decision approving an addition to an accessory structure located at 223 Massol Avenue in the Almond Grove Historic District. The subject property is located on the west side of Massol Avenue and is developed with a two-story, single- family residence with an attic and a detached nonconforming garage. LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 The Applicant proposes two projects: one for the residence and one for the garage. Both applications were approved by the Historic Preservation Committee. The proposal for the residence includes exterior modifications and a 99 square foot addition to the existing residence located in the attic area. The proposal includes a modified roof pitch, changes to window and door locations, and additional massing. The proposal for the detached garage includes a 350 square foot addition at the east and north elevations. The existing nonconforming garage partially extends over the property line to the south and the proposed additions would be located on the subject property along the property line. A new exterior stairway and awning would provide access to the residence, and a new deck would be located above the garage. On April 25, 2018 the HPC approved the applications with conditions requiring minor design revisions. The Applicant has incorporated these revisions into the plans before you tonight. An appeal of these decisions was filed on May 7, 2018 on behalf of the property owners at 216 Glen Ridge Avenue, located directly south of the subject property. The Appellant included six points in their reasoning for the LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 appeal, and Staff has included a detailed discussion on each point on pages 8-11 of your Staff Report. A Desk Item has been distributed to the Commission, which includes photos taken by the Applicant of the installed story poles from several locations near the subject property. Based on the analysis provided in the Staff Report Staff recommends denial of the appeal, upholding the decisions of the Historic Preservation Committee subject to the recommended conditions of approval included as Exhibit 3. This concludes Staff’s presentation and we are happy to answer any questions. CHAIR KANE: Thank you, Mr. Mullin. Any questions for Staff? Seeing none, I’ll open the public portion of the public hearing. The way this works when we have an appeal of the Historic Preservation Committee is that the Appellant will have ten minutes to present, followed by the Applicant having ten minutes to present. Then if any members of the public wish to speak they will have up to three minutes, followed by the Applicant having five minutes, and the Appellant concluding remarks, also five minutes. Who will be speaking for the Appellant? LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 TYLER ATKINSON: Good evening, Tyler Atkinson on behalf of Mr. Jim McManis and Sara Wigh. I understand I have ten minutes to start; I don’t anticipate I’m going to need to use all of that time. Now, the Applicant is asking for you as planning commissioners to approve construction on my client’s property. On this basis alone we believe you must deny this application; you cannot approve this application. We respectfully disagree with the Staff Report on this point. I’m not going to repeat the objections we’ve made in our various letters, I’m not going to spend time on some of the errors on the face of the report before you, and I’m not going to address the emotional, and frankly, we believe misleading, accusations that the Appellant has made against my clients. I submit to you that there are two things about this application that should give you great concern. Number one, the Applicant is asking you to approve a project that encroaches on my client’s property. You need only look at the proposed garage and garage roof that extends over my client’s property. Staff told us at the HPC meeting that encroachment is a “civil matter.” Nothing could be farther from the truth, and adopting this LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 view, respectfully, we believe would be abdicating your roll. Number two, and perhaps most troubling as far as this application goes, is a pattern of what we believe is deceit on the Applicant’s part, starting with the failure to do what was strongly recommended, and that is community outreach. We believe the Applicant has falsely claimed that he tried to reach out to his neighbors about this development, and neighbors appeared at the HPC who said they had never heard from him. In addition, the Applicant’s unapproved balcony, which was only removed after it was brought to the attention of the Town. The Applicant has accused my clients of delaying this project. If the delay was caused by my clients pointing out the unapproved balcony, so be it. The angry and misleading emails that are now exhibits before you, we believe this blaming of others is for the Applicant’s own shortcomings. We believe the Applicant has been working on his property without a permit. He attempted to shroud what was going on on his property by constructing a fence on another neighbor’s lawn. The Applicant has made what we believe are evasive responses to the Town. The Applicant has expressed indifference about the encroachments on my client’s LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 property, and the Applicant has refused to allow us to inspect the property ourselves to verify the promises about these various things. In conclusion, we request the Commission deny the garage application outright. Further, the Commission should continue this resident’s application to a date certain with specific direction that the Town’s Building Department inspect the project to determine if there has been any construction that was not authorized by the Foundation Permit. Thank you. CHAIR KANE: Thank you. Any questions for the speaker? Seeing none, I’ll call up the Applicant. Who will be speaking for the Applicant? And I will need a speaker card, please. Okay, thank you. State your name and address for the record, and you will have ten minutes. VLADIMIR KANEVSKY: I’m Vladimir Kanevsky. I currently reside in my house in Menlo Park while we’re building this home; obviously not living in the 223 Massol Avenue house. My address is 20 Sharon Court, Menlo Park, California 94025. So, obviously, thank you for making the time. This has been a long time coming, I guess. I’m anxious to get this project going and finished. LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 To address a couple of points here, we started this project back… We bought the house last June. We’ve gone through at least four meetings with the Historic Preservation Committee to make sure that we’re building a house that conforms to all their neighborhood codes and the Building Code. Met with Sean and the team many, many times to make sure that the original plan that we had that was submitted back in February conforms. As we submitted those plans Sean let us know that hey, there’s a neighbor that probably is going to complain, is not happy, he’s always inquiring about the property. I knocked on all the doors and, frankly, met most of the neighbors, and I knocked on Jim and Sara’s door many times during the day when I’m there and I’m working on the house. Frankly, nobody was home to answer the door. Nevertheless, I actually instructed Sean, “Hey, whoever it is complaining, give them my number and email and let them call me,” because at that time Sean couldn’t tell me who the complainer was, and I said, “Hey, it doesn’t matter. Just give them my number and I’ll be happy to talk to them. I’ve talked to everyone else; everybody is fine.” I didn’t hear anything, and by chance I actually saw Sara. I was down there all the time, obviously, or I was there, and I saw Sara on the street. I didn’t know who LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 she was. I just said, “Hello. Hey, I’m building this house. This is my house. Nice to meet you,” kind of thing. She was walking out of the house that’s next door to our neighbor; I guess they bought the house on the Massol so nobody builds in front of them either. But she was walking out of that house; I thought she lived there. In any case, she was like, “Okay, I guess you know that we’re the ones complaining.” I said, “No, I didn’t know, but it’s good to meet you. Let’s work it out. What’s the complaint?” etcetera, etcetera, and she said, “Well, it’s height, it’s privacy, it’s windows,” it’s this and that and the other, and I said, “Well, tell me what you want. I’ll reduce the massing, I’ll get rid of the windows, I’ll make it smaller, just tell me what it is that you want us to do.” And at the time it was us standing on the patio. She’s all, “Well, I don’t think that will be enough.” At that point it was okay, let’s just… And Jim came home and he’s sort of, you know, so we left. Nevertheless, I didn’t receive anything after that, but I said hey… Oh, during that conversation they said they were leaving for six weeks, they’re going away and they unfortunately can’t help and can’t work on the property, and I sent them an email right away, or at least tried to encourage them to talk to me before they left, because LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 otherwise it would delay my project even more. Regardless, I didn’t hear back. In essence I’ve asked my architect since then to revise the plans at least three or four times in order to comply and get them to respond. Hey, does this work? I’ve removed the windows, I’ve reduced the massing, I’ve lowered the building, and I have not heard and/or had any communication with Jim or Sara since that day. I’ve only had emails either from Tyler, and in any case we did everything that we thought we could, because we took their complaint, hey, you know, this is privacy, this is your life, I’ll do whatever I can, I want to be good neighbors. I reduced my square footage in the house. I reduced the original plans, because we have two kids, we have a six- and a ten-year-old. I did everything I thought was the right thing to do to make the neighbors happy. We did all that, and nevertheless, they complained, and the complaints are sent on the last possible day of every appeal period without any communication in between. As demonstrated, frankly, on this last appeal, and the appeal was made after all the approvals, it was made based on technicalities and process and none of those complaints are actually about my house, about the design, LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 about the privacy, none of those; it’s either notice or drawings or whatnot, and none of them were required. In fact, one of the first things that are on that list was that we didn’t put any story poles up around the second sort of approved plan that the HPC had provided. And the week before the HPC meeting I put them up without having been told to do so, and even sent a note to Jim and Sara saying, “Hey, I put these up. Let me know if this works. I’d love to go into the HPC with you at least knowing what it is and approving that design.” I didn’t hear back, obviously, and he had the HPC meeting, the drawings were approved, I didn’t hear any back and they appealed anyway, but they gave their reasons based on it’s either I didn’t give them enough information or they didn’t have enough notice. So the first complaint that we received was that I didn’t go around and tell all the neighbors as recommended by the Town, and in fact I did, and in fact I encouraged them to reach out to me. Nobody else complained, frankly, so there was no other reason to, let’s just say, create a wider circle or create a wider net, but I did do everything that I think I was supposed to do In fact, I took pictures of the latest story poles—these are the ones that were approved—just to make LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 sure that you understand that I’m thoughtful from every angle, that you can barely see my house literally from behind us. This is our house; I zoomed in so people can actually see the net. And this is the McManis’ house, by the way, and this is my house. This is the McManis’ house, which stands about 30’ taller than my house as it will be finished. So I just want to demonstrate if there are any issues on me imposing on the neighborhood and not being thoughtful of the neighborhood, I want to be very clear that I’ve listened to every guidance, every suggestion, and every direction from the Town, from the Building Department, and the HPC to do this. And if you can tell, my house is actually about two’ shorter than my neighbor’s house. That is actually based about 10’ lower than my house. So altogether, because it looks like a two-story house, it’s actually on a slope so the first floor is actually a cellar, and so if you look from the back you can’t really see because it’s down, but that’s really what was originally the first floor, and I’m just trying to make livable space in the attic, because we have room, I know it’s legal and zoned, and we did everything to the building codes that allows us to do so. LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 Anyhow, obviously I’m nervous and I don’t do this, but I think we’ve addressed and I’ve met all the neighbors, everybody around us, thanks for coming. That’s all I have I say. I think Sean put together a pretty comprehensive report. I don’t think I need to say much more than what’s in that report, but I’m very anxious to get the project started. We delayed taking our kids to Los Gatos School District by a year already, because we figured this isn’t going to happen. My wife isn’t here because she starts crying every time we’re here. We met with HPC the last couple of times. So it’s been a very stressful process, and I wouldn’t be surprised if there’s an appeal to whatever happens today, there will be an appeal, and it will be posted on the last day possible, and who knows what will happen. And you saw my sort of opening paragraph to the response. I truly hope that there is something that could be done to prevent other families going through this, because I think it was only done because they could, right? Because everything they’re doing is sort of within their legal grounds, and they’re exploiting every opportunity to delay us, because they can, not because of anything that we were doing. LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 Anyhow, I think that’s it. Thank you. CHAIR KANE: Thank you, Mr. Kanevsky. Let’s see if there are any questions? Any questions for the speaker? No. Thank you very much. Do we have any cards from members of the public? Seeing none, Mr. Kanevsky, you have five minutes to rebut anything you heard. There may be questions from the Commission. Are there? I have one. The folks at home can’t hear you unless you use that microphone. VLADIMIR KANEVSKY: Fair enough to everybody that’s watching now. CHAIR KANE: And your architect may need to assist on this. I’m interested in your letter received by the Town on March 16, 2018 and it is 11 changes that you made to the design. And Ms. Payne, we may need you for this, because my question is of these 11 changes that you elected to make, how many were required where you were out of the code and had to do… VLADIMIR KANEVSKY: None. We did only to appease the neighbor. CHAIR KANE: You chose to do these? VLADIMIR KANEVSKY: We chose to do those. LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 CHAIR KANE: Okay, thank you. Any other questions? Thank you very much. Mr. Atkinson, as the Appellant you have five minutes. TYLER ATKINSON: Thank you, Mr. Commissioner. We heard the Applicant talk about that we was anxious to get this project finished, and we also heard some accusations about delay on my clients’ part, and it sounded like on my part as well. This gentleman bought a house in a historic district that was more than 100 years old, with all of the problems that that entails, and I believe the record shows that he tried to jam through these various changes. The narrative story of my client ignored him, that’s simply not the case and I think the record also reflects that. And the idea that we wait until the last day to assert our rights, frankly, I don’t even know how to respond to that. It’s our right to look at these things seriously. We’re talking about a house that will be there for the future, and it’s very important to my client, obviously. But aside from that, these appeals to a motion should not govern your decision. What were called technicalities by the Applicant, this is the law. Building LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 on another person’s property, you can’t do that. Putting on a roof that extends into the airspace above a person’s property, you can’t do that. And the Commission cannot give a blessing to such behavior. The Applicant said that nobody else complained. Well, the HPC members of this body can recall that at least two neighbors, including Mr. Carlquist, appeared and did voice complaints, so this isn’t a situation where there are just two neighbors who have made a problem here. I have no further comments. Thank you. CHAIR KANE: Let’s see if there are any questions from the Commission, Mr. Atkinson, just in case. Questions for the speaker? I have a couple; I want to make sure I got something right. Earlier it was mentioned that the McManis house was 30’ higher than the subject house. TYLER ATKINSON: I don’t actually know if that’s true or not, and ultimately to answer these types of questions I think we need to be able to look at the property, and if we’re not going to be allowed to, and if that’s not something that we have a right to do, and I understand that that’s not a right that we have, then the Town needs to do that. So I cannot answer that question standing here. I would submit to you however that LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 ultimately that does not condone the approval of this application, so that’s our position. CHAIR KANE: I found it remarkable, because I visited the site and I walked the property. I didn’t see that, and I also didn’t see—maybe Staff can help me, or maybe it hadn’t been constructed yet—a roof that extends over into the Appellant’s property? JOEL PAULSON: Staff will answer questions after you’re done asking questions of the Appellant. CHAIR KANE: Thank you. So it’s your position that there’s a roof that comes over into your client’s property? TYLER ATKINSON: First of all, the garage currently encroaches onto my client’s property, and that is… CHAIR KANE: I’m aware of that, and I think in one of your letters it was said that it’s been that way for 50 or 100 years. I’m concerned about a new roof going over into your client’s property. TYLER ATKINSON: According to the plans as I read them, the roof that is anticipated on that garage which has been on my client’s property, that roof, that would be new construction over my client’s property, and that roof would LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 extend over my client’s property. That roof did not exist 50 years ago; that’s a new roof. CHAIR KANE: Okay, thank you. Any questions? Thank you very much. TYLER ATKINSON: Thank you. CHAIR KANE: Hearing no questions, I’m going to close the public portion of the public hearing and ask if any Commissioners have questions of Staff, wish to comment on the appeal, or wish to make a motion. Commissioner Badame. COMMISSIONER BADAME: I have two questions for Staff. First one, per the Appellant’s testimony, is there an encroachment on the Appellant’s property with a roof extension, and if so, is it a civil matter? SEAN MULLIN: I can answer the first question. There is an existing condition of a garage crossing over the property boundary. The proposed addition, I can call you attention to Exhibit 17, and specifically Sheets A-3.0 and A-3.1. The lower drawing on those pages marked East Elevation, on A- 3.0 what you’re looking at are the existing conditions. The property line is a lightly dashed line just to the right of the #1 that is circled. So that’s the property line showing LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 the existing conditions of the gable-ended structure crossing over onto the neighboring property. When you look at Sheet A-3.1, that prop line is just to the right line labeled #2 with a circle around it, and the roof continues to encroach, the building continues to encroach. The addition, which is in the foreground of that elevation drawing, is built right up to the property line, including the new roof and the trim detail around the roof section of that building. As far as it being a civil matter, I’ll defer that to the Town Attorney. ROBERT SCHULTZ: So yes, we consider it a civil matter in that there could be, there may or may not be, prescriptive rights from either party, so we don’t usually get involved in that. But if you do have concerns, I think you could easily put in a condition that says there will be no new construction that crosses over the property lines to do that to make certain that that’s not happening. But I think what Sean just said is there is no new construction, and that was my understanding, there’s no new construction extending onto the adjacent property; it all is occurring on the property. But there certainly is currently an encroachment, but we don’t get involved in determining LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 whether they have rights or do not have rights; that’s a civil matter. CHAIR KANE: Commissioner Badame, may I hitchhike? What you just said, to keep it simple for me, as I look at the drawings I don’t see any change. SEAN MULLIN: There would be no increase in the nonconformity, and without scaling these and asking the designer for more details it looks like the roof encroachment—just the roof—is being cut back a bit. CHAIR KANE: That’s what I’m seeing. And was I correct when I said there’s something in the package we received that said it’s been like this for 50 or 100 years? SEAN MULLIN: That’s what we believe to be the case; it’s been there for a long time. CHAIR KANE: I cut you off, Commissioner. I’m sorry. Commissioner Badame. COMMISSIONER BADAME: All right, on to my second question. Exhibit 9 contains a letter from the Applicant and it questions the legal basis for the appeal. Is there a legal basis for overturning the decision of the Historic Preservation Committee? ROBERT SCHULTZ: There’s nothing in my review of their letter. Normally when we receive letters, as you’ve seen when there’s an appellant done, they cite either your LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 General Plan policies that you’re in violation of, your Residential Guidelines, your Zoning Code that go into where you disagree or agree with the underlying body. In this case there’s no cites to any of our Zoning Codes that are in violation, or General Plan. All processes were filed correctly. We consider the encroachment a private matter, and so from a legal standpoint, no, I don’t believe there’s any legal basis for denying it, but you heard your testimony and if you feel that additional conditions, or there’s a reason why the appeal needs to be granted, then we can certainly work with the Commission to find those findings. COMMISSIONER BADAME: Thank you. CHAIR KANE: Commissioner O’Donnell, you had your hand up earlier. COMMISSIONER O'DONNELL: I think the questions have almost been completely answered, but just to be clear on this. If I’m looking at the drawings that we’ve referenced, it had been my understanding, and as you know I’m on the Historic Preservation Committee, so I’ve heard virtually all of this before, and it’s helpful to hear it twice in my case. I knew that there was apparently an encroachment that you said existed for a long time. The allegation today, however, and I think at the HPC, was that LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 the new construction would further aggravate or would further encroach upon the property. Now, when you look at the plans, you can’t really tell that. It does look like it doesn’t, it does look like it may be less, so unless somebody went out there and surveyed it… At least I don't know, and maybe I could turn this into a question. By looking at the drawings, and assuming the drawings to be correct, which is another issue, is it your reading of the drawings that there is no additional encroachment as a result of the improvement? SEAN MULLIN: That’s correct. COMMISSIONER O'DONNELL: Okay. CHAIR KANE: I have a question for you, Commissioner, because you just brought it up. We have two members of the Commission who have been on the HPC, and I’m assuming…the note says this started in December of last year and there were four meetings. I’m going to go out on a limb and say I’m stupid, but what’s being asked for that hasn’t been given? Assuming you’re closer to this than I am. COMMISSIONER O'DONNELL: I would just as soon stay away from saying what they’re asking for. I think I understand what they’re asking for, but to go on the record and give you my opinion of what they’re asking for would be LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 unnecessary and might not be a good answer, so I don’t want to do that. CHAIR KANE: That’s legitimate. Commissioner Hudes, do you have a comment? VICE CHAIR HUDES: No, I really don’t. I’m considering this as anew, as an item that’s before the Planning Commission on appeal, and I don’t have anything that I would remark on it on in that regard. CHAIR KANE: Then I’ll turn to Staff. What are they asking for that hasn’t been given? It seems to me that letter I referenced earlier, a lot has been given that wasn’t asked for. Why are we here? SEAN MULLIN: I think the simple answer to why we’re here is that somebody filed the timely appeal and the appeal needs to go through its process and be heard. CHAIR KANE: What do you say is the basis of the appeal? SEAN MULLIN: The six points in the Staff Report, mostly relative… CHAIR KANE: Right, I read them and I read your responses. SEAN MULLIN: They’re relative to process, they’re relative to behavior or actions of the Applicant LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 and the owner, and they’re relative to the building process that’s ongoing for the foundation replacement. CHAIR KANE: But to the Town Attorney, is any of that… Is it purview? ROBERT SCHULTZ: As I said, I think their primary concern tonight was the fact that there’s an encroachment, and want the project denied completely, not that they’re asking for any changes, they want the project denied completely because of the fact that that encroachment exists. CHAIR KANE: Other questions? Commissioner O'Donnell. COMMISSIONER O'DONNELL: There are a number of legal issues raised by the Appellant, such as notice and various other things like that. The Staff has responded to those, and I for one would adopt the Staff’s response, but those are indeed different than a potential encroachment of the new improvement, so in deciding this matter we must not only decide the facts, but there are legal issues that are raised, and we have a Staff Report that deals with those legal issues. If any of us disagree with the Staff on that, we should say so. I happen to agree with it. CHAIR KANE: Commissioner Hudes, you had your hand up. LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 VICE CHAIR HUDES: Yeah, I had a couple of questions for Staff about process. What are the requirements for community outreach, neighbor outreach, and notification for a Minor Residential Development that comes before the HPC? SEAN MULLIN: If I may clarify the question, are you speaking about the application process for a Minor Residential Development, or a Minor Historic project in a Historic District? VICE CHAIR HUDES: No, Minor Residential Development in a Historic District. SEAN MULLIN: Thank you, I just want to be sure to answer the question that you asked. The noticing requirement is the neighbors that are sharing a property line and any occupants, so it’s the owners and the occupants sharing a property line, and then those properties across the street. JOEL PAULSON: And I think your question was public outreach. We always recommend that they do public outreach, but there’s no absolute requirement that public outreach be done. VICE CHAIR HUDES: And with regard to the notice, was that notice followed for the matter before the HPC? LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 SEAN MULLIN: Yes, the original project followed the notice, and Notice of Pending Approval per Town Code was sent out. VICE CHAIR HUDES: I have another question about the story poles. CHAIR KANE: Go ahead. VICE CHAIR HUDES: What’s the requirement for story poles for that type of application that comes before the HPC? SEAN MULLIN: For the Minor Residential Development, the original application, story poles are required for additions to second stories or upper floors; they were installed and certified. VICE CHAIR HUDES: Before the Planning Commission or before the HPC? SEAN MULLIN: Before the HPC, because a Minor Residential Development is not heard by the Planning Commission. Rather, if the director intends to approve the project we send out a Notice of Pending Approval to those neighbors that we just referenced, and then there is a ten- day “objection period,” and if we receive an objection then we try to work with the parties to work it out, and if it can’t get worked out then it goes to the Planning Commission; it never got to that point. LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 VICE CHAIR HUDES: Right, and were the story poles installed properly? SEAN MULLIN: Yes. CHAIR KANE: I was under the impression that when they were put up they didn’t have to be put up for some reason. He chose to put them up. SEAN MULLIN: After the original project the Applicant chose to file two applications, which are the ones you’re hearing tonight. Those are Minor Historic projects; those do not require story poles and they do not require neighbor noticing. CHAIR KANE: All right, thank you. I’m sorry, Commissioner Hanssen. COMMISSIONER HANSSEN: I had two quick questions. One, there was a statement made by the Appellant about other neighbors being present at the April Historic Preservation Committee, and I don’t think we saw the minutes. I was just curious as to what comments… Do you recall what comments they had? And then were there any additional comments by any of those neighbors after the decision was made? SEAN MULLIN: The referenced neighbor up on Glen Ridge, I believe his last name is Carlquist, attended the meeting. I don’t recall the specifics of his questions. He LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 did ask about the location of his property along the property boundary of the Applicant, because there is a little sliver along I think it’s the east side of Glen Ridge, a little 5’ sliver of all those properties that are owned by the folks on the west side of Glen Ridge, so he asked about that. I think he mentioned some trees on that strip of property, and mentioned some fencing on that strip of property. I don’t recall him following up beyond that. COMMISSIONER HANSSEN: So there wasn’t any specific complaint about the actual development proposed by the Applicant? SEAN MULLIN: He may… I don’t want to speak out of turn. I don’t fully recall. He may have discussed height from his perspective on Glen Ridge, but I don’t recall the specifics. COMMISSIONER HANSSEN: But there was no additional follow up after that? SEAN MULLIN: No, no written comment that I’m aware of. COMMISSIONER HANSSEN: Then a related question I had too that was about the availability of plans, because there is outreach and showing people plans, but my understanding is that when applicants submit plans they’re LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 available, and while it’s in the review process it’s available to the public, is that a correct statement? SEAN MULLIN: That’s correct. They’re posted on the Town’s Pending Projects webpage, which is available on the front page of our website, as well as Staff makes time for anyone who wants to come in and view the plans and answer questions and walk them through the plans if they’re not familiar with how to read plans. COMMISSIONER HANSSEN: So there really isn’t any reason that someone who had an interest and was concerned about what was being developed could not do that by looking at the plans and talking with Staff? SEAN MULLIN: I think we try to make sure that the plans are available to any interested parties. COMMISSIONER HANSSEN: Thank you. CHAIR KANE: Commissioner Burch. COMMISSIONER BIRCH: A bit of a comment, and then a question for Mr. Schultz. In reviewing all the documentation that we’ve been provided, as Mr. O'Donnell stated it does feel like the majority of these items are more procedural than policy based, and I do agree with Staff that based on what I am reading in all of this that policies, guidelines, and LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 procedures that have been set in place by the Town Council and Staff have been followed. So then my second comment would be concerning the easement and I would like to make sure my understanding of this is clear. There is no new… We’ve already clarified this already, but it’s not expanding or anything, this is basically a roof replacement, which would be mostly considered, I would think, a maintenance issue; roofs need to be replaced. So that being said, I want to be very clear how we would move forward and how this gets framed if we agree or disagree with Staff, and is this going to be do you want us to go through all these points that are written in here and make our statement, or is this just a one motion, one point, as far as the Town is concerned? ROBERT SCHULTZ: It’s just a one motion; the motion is found on page 11, and no, you do not have to go through point-by-point. I think Commissioner O'Donnell has already put into the record that he’s reviewed the detailed description from pages 8-11 that Staff has provided as to each and every one of those procedural issues that the Town has followed. JOEL PAULSON: And then, as the Town Attorney mentioned before, if you want to add an additional level of LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 clarification you could add an additional condition that the addition to the garage cannot cross over the property line. COMMISSIONER BIRCH: The existing garage that’s on the… JOEL PAULSON: The addition. COMMISSIONER BIRCH: The addition, sorry, I didn’t hear that. Were you going to ask a question, Mr. O'Donnell? COMMISSIONER O'DONNELL: I was going to make a motion. COMMISSIONER BIRCH: Oh, so was I. COMMISSIONER O'DONNELL: Go ahead. COMMISSIONER BIRCH: If everyone is comfortable, I’m going to go ahead and make a motion. I make a motion to deny the appeal, upholding the decision of the HPC. I find the proposed project is categorically exempt pursuant to the adopted guidelines for the implementation of the California Environmental Quality Act, Section 15301, New Existing Facilities, Exhibit 2; and Section 15331, Historic Resource Restoration and Rehabilitation. I find that the project complies with the Residential Design Guidelines, Exhibit 2, and I make the required considerations as required in Section 29.80.020 of the Town Code for granting LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 an approval of a Minor Development in a Historic Application, also in Exhibit 2; and approve the Minor Development in Historic District Applications HS-18-018 and HS-18-031 with the conditions contained in Exhibit 3, and development plans attached as Exhibits 16 and 17. I would also like to add the condition that there is no further increase in the size of the roof over the garage that encroaches on the neighbor’s property. CHAIR KANE: Do we have a second? Commissioner Badame. COMMISSIONER BADAME: So moved. CHAIR KANE: Commissioner O'Donnell. COMMISSIONER O'DONNELL: I just want to ask a question on the addition to the motion. We have drawings which I think purport to show that the new construction will not further encroach, so the motion says it shall not encroach, and I guess I’m thinking well how do you do that? You could do a survey. I’m not sure we want the Applicant to have to do a survey at this point. That’s why the civil matter comes up. If it would be the Appellant’s position that notwithstanding the drawings, which do not show that, if they believe for some reason that it does then they could produce a survey or some other credible evidence, but the way it’s phrased now, if I were the Applicant I don't LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 know what I would do with that. Secondly, it seems to me it opens it up to further argument about what they should do and did they do it, and the other things that I personally suggest we not do. CHAIR KANE: I would say to the maker of the motion what I just heard is would you be interested in revising your motion to the four points that were given us, and in deference to Counsel O'Donnell we let the extra piece go? I want to hear from the maker of the motion. COMMISSIONER BIRCH: Yes, I do agree with that and I will remove that part of my motion. COMMISSIONER BADAME: I agree as well. CHAIR KANE: All right, Commissioner Hudes. VICE CHAIR HUDES: Yeah, in that case I would be prepared to support the motion. I was concerned about adding conditions for which there is no evidence in the drawings or in the documents, so I would be comfortable at this point in supporting the motion. CHAIR KANE: Other comments? I have a comment; it’s just going to get me in trouble. I spent the weekend going over this with a fine tooth comb, and we’re not attorneys—well, one of us is—but we live in a narrow corridor of rules and regulations on what we’re supposed to do, and I couldn’t find any merit to any of this, and it’s LOS GATOS PLANNING COMMISSION 6/13/2018 Item #2, 223 Massol Avenue 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 been going on since December, and that just is kind of outrageous, and that’s as much hot water as I’m going to get myself in. I will support the motion. Any other comments? I’m going to call the question. All those in favor of the motion, say aye. Opposed? Passes unanimously. Mr. Paulson, are there appeal rights? JOEL PAULSON: There are appeal right. Anyone who is not satisfied with the decision of the Planning Commission can appeal that decision to the Town Council. The forms are available in the Clerk’s Office. The appeal must be filed within ten days, and there is a fee for filing the appeal. CHAIR KANE: Thank you.