From: < >
Sent: Monday, December 18, 2023 12:21 PM
To: Mary Badame <[email protected]>; Matthew Hudes <[email protected]>; Rob Rennie <[email protected]>; Rob Moore <[email protected]>; Maria Ristow <[email protected]>
Cc: Town Manager <[email protected]>; Gabrielle Whelan <[email protected]>; Wendy Wood <[email protected]>; Joel Paulson <[email protected]>; Phil Koen < >; David Weissman < >; Rick Van Hoesen
< >; Paul [email protected] <[email protected]>; Jose Jauregui <[email protected]>
Subject: Item 15 - Desk Item for Council meeting 12-19-23 [EXTERNAL SENDER]
December 18, 2023
RE: Agenda item 15 – Town Council Meeting December 19, 2023 Dear Town Council,
The staff report for Agenda Item 15 is inaccurate in that it fails to disclose that on November 16, 2023 Staff submitted a November draft of the revised Housing Element to HCD for official review in violation of Government Code Section 65585. We find it hard to understand why Staff would intentionally not disclose this.
In our opinion, the lack of transparency and full disclosure has been a consistent theme for the past two years, spanning the development of the Housing Element. The cumulative effect of this behavior has led to a growing loss of confidence in Staff and the Town’s latest consultant, Veronica Tam, by the public.
The current process needs to be overhauled beginning with the Town Council taking direct control over the development of the Housing Element. For too long the Town Council has delegated its legal responsibility for the development of the Housing Element to Staff and a dizzying number of consultants.
This process has resulted in the Town failing to meet the statutory deadline of Housing Element certification by January 31, 2023, the spending of over $300,000 in consulting fees, the submission of 5 draft Housing Elements, all of which have been rejected by HCD, and the filing of numerous Builder’s Remedy development applications as a result of non-certification, which include a 7 story building on the site of the current post office.
Furthermore, we are concerned that certain members of the Town Council have publicly blamed HCD for the Town’s failure to obtain certification, claiming HCD has “moved the goal posts on us.” We do not subscribe to this view and see this as an attempt to whitewash the process and deflect accountability ATTACHMENT 15
away from the very body that is accountable – namely our elected Town Council and the Town Staff that works for them. We believe all of this is self-inflicted, as demonstrated by the latest stunt of intentionally violating the public comment requirements of Government Code Section 65585 and AB 215. We will now detail what happened.
Legal Background
Government Code Section 65585(b)(3) requires, “For any subsequent draft revision, the local government shall post the draft revision on its website and shall email a link to the draft revision to all individuals and organizations that have previously requested notices relating to the local government’s housing element at least seven days before submitting the draft revision to the department.” In addition, in every comment letter HCD has provided the Town, they have included a “Public Participation” paragraph that specifically discussed the importance of public participation in the development of the Housing Element and noted the requirement of an advance seven-day review period for the public. The Town and the Town’s consultant, Veronica Tam were fully aware of the Town’s legal obligation under this government code section and AB 215.
Timeline
• On November 15, 2023, the Planning Commission reviewed a “matrix” provided by HCD and augmented by Town Staff and continued the meeting until November 29th • Staff and the Town Consultant did not at that time disclose their intention to submit a revised draft of the Housing Element to HCD the very next day.
• On November 16, 2023, Staff submitted to HCD a massive re-write of the September draft of the revised Housing Element that had been submitted to HCD for the mandatory 60-day review period on October 2, 2023. The cover letter (attachment 1) stated the Town is transmitting a “draft revised 2023-2031 Housing Element,” and is requesting HCD’s review and feedback, “that would assist the Town… to bring the Housing Element into a compliance status by or before the end of the 60-day review period (e.g., December 1, 2023).”
• No one in the public was aware of this submission. It is unclear if anyone on the Town Council was aware of this submission.
• On November 19, 2023, LGCA wrote a letter to the Town Manager stating that LGCA has been made aware of the November 16 submission and reminding the Town Manager of Government Code Section 65585 and attached the government code section. • On November 20, 2023, LGCA received an email from the Town Attorney (attachment 2) confirming government code section 65585 applies and stated, “Town staff will be contacting HCD to ask HCD to consider the date of submittal to be November 27th rather than November 17th ”. • On November 20, 2023, LGCA sent an email to the Town Attorney (attachment 2), among other items, pointing out the importance of the public comment period and the Town’s requirement to consider the public comments before submitting a draft to HCD. • On November 21, 2023, LGCA received an email from the Town Attorney (attachment 2), now claiming the November 16th submittal, “was not the Town’s submittal of a revised draft Housing Element”.
• The email also stated, “staff had not drafted the revisions at the time of the November 15 th Planning Commission meeting so the matrix that was provided stated the revisions were in progress”. Essentially this email claimed that the Staff didn’t know about the fact that they would be submitting a significant rewrite of the Housing Element the very next day, so how could they be expected to disclose it to the Planning Commission or the public? This speaks for itself and illustrates the point regarding the lack of transparency and full disclosure. • On November 21, 2023, LGCA replied to the Town Attorney’s email (attachment 2) pointing out numerous inconsistencies with the Town Attorney’s email and requested the Town to notify HCD immediately of the failure to comply with government code section 65580 and to rescind the November 16th submittal.
• On November 28, 2023, the Town transmitted a “resubmittal” of a draft revised 2023-2031 Housing Element. The cover letter stated the Town had complied with government code section 65585 and the “draft housing element was posted November 16 th , 2023” on the Town’s website “consistent with AB 215 requirements”.
• The Staff dismissed out of hand all comments it had received from LGCA [and others?] and simply submitted the same draft that was submitted to HCD on November 16 th . The very same draft that the Town Attorney previously claimed in her email of November 21 was not a revised draft of the Housing Element.
Conclusion
It is deeply troubling that Staff has failed to disclose these events and be fully transparent in its Staff Report to the Town Council. Furthermore, we remain concerned Staff does not fully understand the requirement under Government Code Section 65585. The code requires, “for any subsequent draft revision,” there is a mandatory 7-day public review period prior to submitting a draft to HCD. The Staff seems to draw a distinction between a “formal submittal,” versus some other type of submittal. To be clear, there is no other type of submittal, and all submittals fall under the purview of Government Code Section 65585.
This Council has a mess on its hands. We truly hope for all our sakes that the Council takes control over this process going forward, including reviewing, and approving all subsequent Housing Element Drafts prior to submission to HCD.
At the end of the day, we all want the same goal – a timely certification of the Town’s 2023 – 2031 Housing Element that fully complies with State Housing Element Law.
Los Gatos Community Alliance
Facts Matter; Transparency Matters; Honesty Matters
www.lgca.town
[email protected]
as made clear on the same web page, "any revisions received during the course of HCD's review are also subject to the seven-day posting requirement prior to submittal to HCD" (emphasis added).
The requirement to conduct the seven-day public comment period prior to submittal is essential to the public comment process. It is the only way for the public to comment on the document and, if appropriate, for the Town to incorporate such comments into the document prior to its submission to HCD. The intent of the public comment period is not (only) to provide the public's comments to HCD, but also for those comments to be provided to the Town for possible revisions to the document before it is submitted to HCD. The course of action adopted thus far by the Town to, "ask HCD to consider the date of submittal to be November 27th," makes a sham of the public comment process. In essence it presupposes that the document will not be changed as the result of any public comments because the already-submitted document would automatically be re-submitted on the same day the public comment period ends.
Accordingly, we again request that the Town notify HCD it is rescinding the November 16 submittal and (presumably) that the Town intends to make a submittal after the public comment period has lapsed and the Town has had an opportunity to receive and consider any public comments and, if appropriate, to incorporate public feedback into the draft HE. At a minimum, this will enable the Town to include any public comments along with the submittal at the time it is submitted.
We understand that the Town is behind where it wants to be with respect adopting its new Housing Element. That unfortunate result was set in motion many months ago when the Town Staff elected to focus their efforts on a new General Plan before a Housing Element was formulated, much less adopted. But shortcutting the process in pursuit of a quick result cannot trump the laws and regulations that govern the process.
Also, in our LGCA letter two days ago to Ms. Prevetti (the letter you responded to) we asked that a copy of the cover letter accompanying the November 16 submittal be provided. We still have not received that letter. I have since filed a public records request with the Town requesting that letter, but would appreciate it if you could provide it as soon as possible.
Finally, the claim that, “Staff had not drafted the revisions at the time of the 11/15 Planning Commission meeting,” strains credulity – at least as formulated. The sheer number and bulk of redlines in the draft that was submitted to HCD the day after the Planning Commission meeting simply would not have been possible to draft in less than 24 hours. Might it be more accurate to say that Staff had not finalized the drafting of the revisions at the time of the Planning Commission meeting? Either way, the question remains as to why it was not disclosed to the PC – and the public – at that meeting that a submittal was to be made the very next day.
Thank you.
meetings. The Planning Commission meeting is scheduled for 11/29 and the Town Council meeting has not yet been scheduled. Only after the Town Council has received a recommendation from the Planning Commission and held its public hearing will a revised draft Housing Element be adopted and submitted to HCD for certification.
2. Originally, HCD stated that they would not be able to provide the Town with mid-review cycle comments on the 10/2 submission. On October 31st (correction: not November 7th as indicated in my original email below), the Town’s HCD reviewer told the Town that he would be able to meet with Town staff to provide mid-review cycle comments and scheduled a meeting for 11/7 (correction: not 11/14 indicated in my original email below). The 11/15 Planning Commission was noticed before the Town knew that HCD would in fact be able to meet with the Town to provide mid-review cycle comments.
As a result, the 11/15 Planning Commission meeting was used to discuss the mid-review cycle comments from HCD and the Planning Commission continued its meeting to 11/29. Staff had not drafted the revisions at the time of the 11/15 Planning Commission meeting so the matrix that was provided stated that the revisions were in progress. The proposed revisions were completed and posted on 11/16 (correction: not 11/17 as indicated in my original email below).
3. The purpose of the proposed schedule is intended to obtain HCD certification of an amended Housing Element as soon as possible. State law
requires that the Planning Commission make a recommendation to the Town Council on adoption. November 29th is the last date on which the Planning Commission can make a recommendation and staff can notice a Town Council meeting in 2023. If the Planning Commission makes its recommendation after December 1st, the Town Council will vote on the Housing Element mid-January. With the proposed schedule, the Town Council will have the benefit of HCD’s 12/1 letter prior to adoption.
Please let me know if you have other questions or would like to meet. Thank you.
CONFIDENTIAL/ATTORNEY-CLIENT PRIVILEGED
Gabrielle Whelan ● Town Attorney
Town Attorney’s Office ● 110 E Main Street, Los Gatos, CA 95030
Desk: 408.354.6818 ● [email protected]
www.losgatosca.gov ● https://www.facebook.com/losgatosca From: Rick Van Hoesen < >
Sent: Monday, November 20, 2023 4:38 PM
To: Gabrielle Whelan <[email protected]>
Cc: ; Laurel Prevetti <[email protected]>; Joel
Paulson <[email protected]>; Wendy Wood
<[email protected]>; [email protected];
[email protected]; Phil Koen < >;
Maria Ristow <[email protected]>; Mary Badame
<[email protected]>; Matthew Hudes <[email protected]>; Rob Moore <[email protected]>; Rob Rennie
<[email protected]>
Subject: Re: Town of Los Gatos Housing Element
[EXTERNAL SENDER]
Hello Ms. Whelan,
Thank you for your reply.
Yes, the Los Gatos Community Association (LGCA) does have several questions (more may follow).
1. As we know, an important purpose of the public comment period is to provide the public with advance notice of the proposed draft housing element and to give the public the ability to provide comments on the proposed filing. Equally importantly, the public comment process gives the Town the opportunity to consider and, when appropriate, to incorporate those comments into its Housing Element before the HE is filed with HCD. As a community organization planning to make comments on the draft Housing Element, LGCA is greatly concerned that there is no process for such comments to be considered by the
Town and incorporated into the draft. It creates the impression that the public comment process is for appearances only, and is simply being given lip service by the Town in an attempt to technically satisfy the public comment period without actually considering or incorporating any resulting comments. Therefore would you please describe how the process you have outlined (changing the date of submittal for the already-submitted revised Housing Element draft to November 27) provides the ability for Town to receive and consider public comments and then, when appropriate, incorporate any changes resulting from those comments into the draft submittal?
2. While we did not actually ask the second question you posit (namely, why were the most recent HE revisions not taken to the HEAB), we nonetheless wonder how the sequence of events occurred on November 15 and 16. The Planning Commission met on November 15 with the agenda item, "Consider and Make a Recommendation to the Town Council on the Draft Revised 2023-2031 Housing Element." During that meeting it appears that there was discussion of the, "mid-review cycle recommendations from HCD that were received on November 14th." And yet to all outward appearances the Planning Commission was not aware of (and in any event did not publicly discuss) the draft Housing Element that the Town staff was to submit the very next day - at least in part in response to those same "mid-review cycle recommendations."
Why was the Planning Commission (and the public) not made aware at that meeting that the very next day a draft Housing Element was to be filed by Town Staff in response to the HCD mid-cycle recommendations that were discussed at that meeting?
3. Of course it is known by the Town that HCD is to provide its comment letter on the September draft Housing Element on or before December 1.
Knowing that, why would the Town propose to submit yet another draft HE on November 27, just 4 days before the latest date it is to receive HCD's comments? Further, why would the Planning Commission propose to make a recommendation to the Town Council on November 29, just 2 days before that date? Why not wait to receive HCD's letter on or before December 1 and make all the recommendations and submittals with full knowledge of HCD's latest comments?
Thank you.
Rick Van Hoesen & Jak Van Nada
On Mon, Nov 20, 2023 at 3:13PM Gabrielle Whelan
<[email protected]> wrote:
Dear Mr. Van Hoesen and Mr. Van Nada:
Thank you for your November 19th letter regarding the revised draft Housing Element. I have reviewed Government Code Section 65585(b) and it does provide that a seven-day public review period is required before a draft revision to the Housing Element is sent to HCD. Accordingly, Town staff will be contacting HCD to ask HCD to consider the date of submittal to be November 27th rather than November 17th. This will provide the public with an opportunity to provide written comment for a seven-day period plus a buffer for the Thanksgiving holiday. Town staff will also update the Town’s Housing Element web page with this information. As you may know, the draft revised Housing Element will be coming to the Planning Commission for consideration on November 29th. At that meeting, staff will be asking the Planning Commission to make a recommendation regarding adoption of the revised draft Housing Element.
You also asked why the most recent revisions made in response to HCD’s midreview cycle comments were not taken to the Housing Element Advisory Board (“HEAB”) for a recommendation to the Planning Commission. The HEAB did
review previous drafts of the Housing Element. Most recently, the HEAB made a recommendation to the Planning Commission and Town Council before the Town’s October 2nd submittal to HCD. The November proposed revisions were made in response to mid-review cycle recommendations from HCD that were received on November 14th. Given the interest in adopting, and obtaining certification of, the revised draft Housing Element in a timely manner, it is not practical to return to the HEAB every time revisions are proposed.
Please let me know if you have any follow-up questions.
Gabrielle Whelan ● Town Attorney
Town Attorney’s Office ● 110 E Main Street, Los Gatos, CA 95030 Desk: 408.354.6818 ● [email protected]
www.losgatosca.gov ● https://www.facebook.com/losgatosca
PREPARED BY: Ryan Safty
Associate Planner
__________________________________________________________________________________________ Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Community Development Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 12/19/2023
ITEM NO: 16
DATE: December 14, 2023
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Open the Public Hearing for an Appeal of a Planning Commission Decision to Deny a Fence Height Exception Request at 124 Garden Hill Drive for the Construction of a Six-Foot Tall Fence Located Within the Required Front Yard Setback, Street Side Yard Setback, and Corner Sight Triangle on Property Zoned R-1:8 and Continue the Matter to January 16, 2024. APN 424-23-084.
Fence Height Exception Application FHE-23-005. Categorically Exempt Pursuant to CEQA Guidelines Section 15303: New Construction or Conversion of Small Structures and Section 15301: Existing Facilities. Property Owner:
Rushikesh Kulkarni. Applicant/Appellant: Martin Lettunich. Project Planner:
Ryan Safty.
RECOMMENDATION:
Open the public hearing for an appeal of a Planning Commission decision to deny a Fence Height Exception request at 124 Garden Hill Drive for the construction of a six-foot tall fence located with the required front yard setback, street side yard setback, and corner sight triangle and continue the matter to January 16, 2024.
REMARKS:
On November 8, 2023, the Planning Commission considered an appeal of a Community Development Director denial of an exception request for construction of a six-foot tall fence located within the required front yard setback, street side yard setback, and corner sight triangle on property zoned R-1:8, located at 124 Garden Hill Drive. The Planning Commission denied the appeal and upheld the Community Development Director denial of the fence height exception request.
PAGE 2 OF 2
SUBJECT: 124 Garden Hill Drive/FHE-23-005
DATE: December 14, 2023
REMARKS (continued):
On November 17, 2023, the decision of the Planning Commission was appealed to the Town Council by the applicant on behalf of the property owner. Pursuant to Town Code Section
29.20.280, the appeal must be heard within 56 days of the Planning Commission hearing and in this case by January 3, 2024. The Council must at least open the public hearing for the item, and it may continue the matter to a date certain.
Attachment 1 includes a request for a continuance of the item to a date certain of January 16, 2024, as the property owner is not available for the December 19, 2023 meeting. Additionally, the continuation would give the owners time to complete their traffic study.
Because this item was publicly noticed and because the Town Code requires that the Town hold a public hearing within 56 days of an appeal, staff recommends that the Town Council open the public hearing to take public comments from any members of the public who will not be able to attend the January 16, 2024 meeting and continue the appeal hearing to January 16, 2024.
Attachment:
1. Request for Continuance, dated December 1, 2023
From: Rushi Kulkarni
Sent: Friday, December 1, 2023 9:59 AM
To: Jennifer Armer <[email protected]>; Ryan Safty <[email protected]> Cc: Ashi ; Martin Lettunich
Subject: Continuance request for town council hearing re 124 Garden Hill Dr fence exception [EXTERNAL SENDER]
Dear Jennifer and Ryan - As discussed with you both, I would like to request the town council hearing re 124 Garden Hill Dr fence exception request to be scheduled for Tuesday, Jan 16, 2024. I’m unable to meet your originally proposed date of December 19, 2023 as I am unable to attend the hearing on Dec 19 and, I would like to get more time to provision a traffic study to support my request for exception and have more time to properly prepare a few design proposals in support of my request for the town planning and town council members to consider. Thanks for your consideration.
Best,
Rushi Kulkarni
This Page Intentionally Left Blank
PREPARED BY: Ryan Safty
Associate Planner
__________________________________________________________________________________________ Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Community Development Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 12/19/2023
ITEM NO: 17
DATE: December 14, 2023
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Consider an Appeal of a Planning Commission Decision to Approve a Lot Line Adjustment Application in Accordance with California Government Code Section 66412(d) for Three Adjoining Lots on Property Zoned R-1:20. Located at 17200 Los Robles Way. APNs 532-36-075, -076, and -077. Lot Line Adjustment Application M-23-001. Statutorily Exempt from CEQA as a Ministerial Approval in Accordance with Public Resources Code Section 21080(b)(1) (CEQA Statute) and CEQA Guidelines Section 15268. Application is Only for Ministerial Approval of a Lot Line Adjustment Pursuant to Section 66412(d) of the Subdivision Map Act. Property Owners: Daran Goodsell, Trustee and Mark Von Kaenel. Applicant: Tony Jeans. Appellant: Alison Steer.
Project Planner: Ryan Safty.
RECOMMENDATION:
Deny an appeal of a Planning Commission decision to approve a Lot Line Adjustment Application in accordance with California Government Code Section 66412(d) for three adjoining lots on property zoned R-1:20, located at 17200 Los Robles Way.
BACKGROUND:
The subject parcels are located at the terminus of Los Robles Way and Worcester Lane (Attachment 1, Exhibit 1). The lot line adjustment proposes to take three adjacent parcels and reconfigure their lot lines. The existing lot configuration has several non-conformities, all of which would be remedied with the proposed lot line adjustment. A legal, non-conforming front setback on Parcel 1 is allowed under current Town Code, as discussed in the Required Determinations document (Attachment 1, Exhibit 2) and in the applicant’s Letter of Justification (Attachment 1, Exhibit 6). There is an existing residence on Parcel 1 (APN 532-36-076) that
PAGE 2 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
BACKGROUND (continued):
would remain, and the other two parcels are vacant. No new construction is proposed with the application.
The current Lot Line Adjustment Application (M-23-001) seeks to cure the absence of certain factual information and the presence of certain procedural flaws in the Town’s original approval of Lot Line Adjustment Application M-20-012. A detailed history of Application M-20-012 is provided in Attachment 1, Exhibit 4, and a summary of the action items and dates are provided below:
On November 11, 2020, the applicant submitted their previous Lot Line Adjustment Application (M-20-012) for the three parcels;
On February 23, 2021, the applicant submitted Certificate of Compliance applications to verify the legality of Parcels 2 and 3;
On May 25, 2021, the Development Review Committee (DRC) approved the Certification of Compliance applications, which verified the legality of Parcels 2 and 3; On July 13, 2021, the DRC approved Application M-20-012; On July 22, 2021, the decision of the DRC was appealed to the Planning Commission by adjacent neighbors;
On September 8, 2021, the Planning Commission denied the appeal and approved Application M-20-012;
On September 20, 2021, the decision of the Planning Commission was appealed to the Town Council by adjacent neighbors;
On December 7, 2021, the Town Council made a motion to uphold the decision of the Planning Commission and adopted a resolution to deny the appeal and approve Application M-20-012; and
On March 1, 2022, a resident challenged the Town’s approval of Application M-20-012 by seeking a writ of administrative mandate to overturn the Town’s approval.
In the course of the litigation, it became apparent that the Town had relied on the Subdivision Map Act’s (SMA) requirements regarding the approval of a tentative map instead of the SMA’s requirements regarding a lot line adjustment [Government Code Section 66412(d)]. At the same time, the applicant for Application M-20-012 submitted a new application (Application M23-001) for review in accordance with Government Code section 66412(d) (Attachment 1, Exhibits 6 and 7).
In light of all of this, the Town requested a stay from the court to allow the Town to process Application M-23-001 in accordance with the Subdivision Map Act’s requirements regarding lot line adjustments as set forth in Government Code Section 66412(d). The stay was granted.
PAGE 3 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
BACKGROUND (continued):
A detailed staff report for Application M-23-001 (Attachment 1, Exhibit 4) was prepared in advance of the DRC hearing which: summarizes the application request; provides a detailed background of the application beginning in 2020; specifies how the project is ministerial under the California Environmental Quality Act (CEQA) and therefore, compliant with CEQA; and analyzes how each of the required considerations for approval of Application M-23-001 are met in accordance with Subdivision Map Act requirements as set forth in Government Code Section 66412(d).
On August 15, 2023, the DRC opened the public hearing, took public testimony, and approved Lot Line Adjustment Application M-23-001 based on the information provided in the Report to the DRC, the draft conditions of approval, and in accordance with the required determinations provided in California Government Code Section 66412(d) (Attachment 1, Exhibit 4).
On August 22, 2023, the decision of the DRC was appealed to the Planning Commission by an adjacent neighbor (Attachment 1, Exhibit 8).
On October 25, 2023, the Planning Commission received the staff report and addendum (Attachments 1 and 2), opened the public hearing, and considered testimony from the applicant and appellant (Attachment 3). After asking questions of the applicant and appellant, the Planning Commission closed the public hearing and discussed the project. The Commission voted four to one to deny the appeal and uphold the DRC approval of this project. The Planning Commission Action Letter is provided as Attachment 4.
On November 3, 2023, the decision of the Planning Commission was appealed to the Town Council by the same adjacent neighbor (Attachment 6).
Pursuant to the Town Code, any interested person as defined by Section 29.10.020 may appeal to the Council any decision of the Planning Commission. For residential projects, an interested person is defined as “a person or entity who owns property or resides within 1,000 feet of a property for which a decision has been rendered and can demonstrate that their property will be injured by the decision.” The appellant meets the requirements.
Pursuant to Town Code Section 29.20.280, the appeal must be heard within 56 days of the Planning Commission hearing and in this case, by December 20, 2023. The Council must at least open the public hearing for the item and may continue the matter to a date certain if the Council does not complete its deliberations on the item.
Pursuant to Town Code Section 29.20.295, in the appeal, and based on the record, the appellant bears the burden to prove that there was an error or abuse of discretion by the Planning Commission, or the Planning Commission decision was not supported by substantial evidence in the record as required by Section 29.20.275. If neither is proved, the appeal should
PAGE 4 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
BACKGROUND (continued):
be denied. If the appellant meets the burden, the Town Council shall grant the appeal and may modify, in whole or in part, the determination from which the appeal was taken or, at its discretion, return the matter to Planning Commission. If the basis for granting the appeal is, in whole or in part, information not presented to or considered by the Planning Commission, the matter shall be returned to the Planning Commission for review.
DISCUSSION:
A. Project Summary
The proposed project is described in the first paragraph of the Background section of this report.
B. Lot Line Adjustment Review Process
Applications for lot line adjustments are ministerial in nature, and are required by Town Code Section 29.20.745(9) to go before DRC for approval.
The required determinations for approval of a lot line adjustment application pursuant to Government Code Section 66412(d) are: the new lot line adjustment is between four or fewer existing adjoining parcels, where the land taken from one parcel is added to an adjoining parcel, and where a greater number of parcels than originally existed is not thereby created; and that the parcels resulting from the lot line adjustment will conform to the local General Plan, any Specific Plans, any applicable Coastal Plan, and Zoning and Building Ordinances (Attachment 1, Exhibit 2).
C. Planning Commission
On October 25, 2023, the Planning Commission received the staff report and addendum (Attachments 1 and 2), opened the public hearing, and considered testimony from the applicant and appellant (Attachment 3). In addition to the documentation provided in the staff report and addendum, the appellant submitted a rebuttal to the staff report and the Applicant’s Response to Appeal letter (Attachment 1, Exhibit 9) following the 11:00 a.m. deadline for Desk Items (Attachment 5). Although the letter was not provided to the Commissioners as a Desk Item, it was referenced by the appellant during public comment, and addressed by the Town Attorney during the hearing (Attachment 3). After asking questions of the applicant and appellant, the Planning Commission closed the public hearing and discussed the project. The Commission voted four to one to deny the appeal and uphold the DRC approval of this project. The Planning Commission Action Letter is provided as Attachment 4.
PAGE 5 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
DISCUSSION (continued):
D. Appeal to Town Council
The decision of the Planning Commission was appealed on November 3, 2023, by an interested person, Alison Steer (Attachment 6). The specific reasons listed in the appeal packet are provided below verbatim, followed by the applicant’s response in italic font and staff’s analysis. The applicant’s full response letter to the appeal is included as Attachment
7. 1. Appellant: Insufficient understanding of CEQA law (Section 15305) or application of Government Code 66412(d).
Applicant: Pursuant to Government Code Section 66412(d), a Lot Line Adjustment (LLA) “between four or fewer existing adjoining parcels, where the land taken from one parcel is added to an adjoining parcel, and where a greater number of parcels than originally existed is not thereby created” is exempt from the Subdivision Map Act and review under CEQA. This is an inescapable fact that the Appellant is trying to ignore in favor of consideration of other issues that are irrelevant. Approval of such an LLA is ministerial in nature as a matter of law.
Staff analysis: As noted in the DRC report (Attachment 1, Exhibit 4), the CEQA Determinations Section on pages four through 13 explain staff’s limitations in reviews of lot line adjustments in accordance with the required provisions and considerations of California Government Code Section 66412(d). The Town is relying on Public Resources Code Section 21080(b)(1) (CEQA statute) and CEQA Guidelines Section 15268, both of which provide that ministerial projects are exempt from the requirements of CEQA. The courts have determined that lot line adjustments pursuant to Government Code Section 66412(d) are ministerial approvals.
2. Appellant: Town shows culpability in rewriting original findings (“Exhibit B” of appeal) and blocking request from residents for lot merger by hiding behind semantics on how Town’s lot merger ordinance was written, which prior Town Attorney eventually admitted to Town Council meeting (back in 2021) could be applied by following Government Code 66451.11 (“Exhibit E” of appeal).
Applicant: This application was made as a correction to the previous LLA application M20-012 at this address, asking the Town to modify its prior approval of the LLA and to solely consider the LLA application under Government Code Section 66412, subsection (d). It was submitted and reviewed by staff and DRC for compliance. During this process we made all corrections requested by the Town and the plans on file reflect the final LLA configuration and details.
PAGE 6 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
DISCUSSION (continued):
[…] Consideration of the LLA application is mandatory under controlling law, whereas the Town’s consideration of merger is permissive. For instance, Municipal Code Section
24.10.080, which addresses parcel mergers, specifies the Town “may” initiate a merger.
There is no requirement that the Town initiate such a merger. Moreover, there is no showing that the three (3) parcels would meet the requirements of a merger under Section 24.10.080.
Staff analysis: As noted in the Planning Commission staff report in Attachment 1, the Town’s previous approval of Application M-20-012 was challenged in court. During the course of litigation, it became apparent that the Town had relied on the SMA’s requirements regarding the approval of a tentative or parcel map instead of the SMA’s requirements regarding a lot line adjustment [Government Code Section 66412(d)]. At the same time, the applicant for the previous approval (Application M-20-012) submitted a new application (Application M-23-001) for review in accordance with Government Code Section 66412(d). The Town requested a stay from the court to allow the processing of Application M-23-001 in accordance with the SMA’s requirements regarding lot line adjustments as set forth in Government Code Section 66412(d), and the stay was granted.
Additionally, on February 21, 2023, the Town Council adopted Ordinance 2337 to amend Town Code regarding Town-initiated parcel mergers. The previous Town Code required that, “parcels under the same or substantially the same ownership that do not meet the [Town’s] criteria … shall be considered merged.” However, it was determined that the previous Town Code conflicted with the State law and the SMA; and therefore, that section was amended. An excerpt from the November 2, 2021 Town Council report outlining the conflict is provided below:
Part (b) of Town Code Section 29.10.070, requiring involuntary lot mergers, was adopted in 1976 and amended in 1988. However, this provision of the Town Code is unenforceable as it is inconsistent with the Subdivision Map Act (SMA). The SMA has contained express merger provisions since 1976 and the current SMA merger provisions were enacted in 1986. Government Code Section 66451.10 states that, “two or more contiguous parcels or units of land which have been created under the provisions of this division […] shall not be deemed merged by virtue of the fact that contiguous parcels or units are held by the same owner.” The SMA’s current merger provisions reflect two overall concerns. First, they provide landowners with elaborate procedural safeguards of notice and opportunity to be heard before their lots can be involuntarily merged (Morehart v. County of Santa Barbara). Second, they reveal, “a state concern over local regulation of parcel merger for purposes of development,” as well as for purposes of sale, lease, or
PAGE 7 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
DISCUSSION (continued):
financing. In addition, California Civil Code Section 1093 requires an, “express written statement of the grantor,” of their intent to alter or affect the separate and distinct nature of the parcels described therein. Therefore, the legal merger of two parcels occurs only through the express written statement of the grantor (ibid.) or through a local agency’s compliance with the merger procedures contained in Sections 66451.10 and 66451.11 of the SMA, including the due process requirements contained therein (See Morehart v. County of Santa Barbara, supra, 7 Cal. 4th at p. 761 [SMA preempts the field for parcel mergers]).
3. Appellant: “Exhibit A” of appeal: Town of Woodside ruling that CEQA applies to LLAs with average slopes > 20%.
Applicant: Appellant’s further suggestion that slope should be taken into account at this stage is spurious, as Government Code Section 66412(d) does not permit this as a legal reason to deny an LLA.
Staff analysis: A staff report from the Town of Woodside for an Architectural and Site Review Board in 2019 was submitted as “Exhibit A” within the appeal. The project was for major redesign and reconstruction of an existing single-family residence, variance to setbacks, new swimming pool, site improvements, and a lot line adjustment between the parcels. The appellant highlighted the following section of the staff report:
“Staff met with the applicant and property owner to discuss the difference between processing the current proposed LLA and Lot Merger. A Lot Merger is simpler as a Merger is exempt from the California Environmental Quality Act (CEQA). The proposed LLA does require CEQA review, as LLAs for properties that have an average slope greater than 20% are not exempt from CEQA. In the previous submittal, the project civil engineer determined the gross lot average slope to be 36.7%, therefore any LLA between the three Parcels will be subject to CEQA review.” Quoting an excerpt of a different jurisdiction’s opinion on a somewhat similar (but different) application is not case law and does not dictate how all lot line adjustment applications are to be processed. Woodside simply quoted the CEQA exemptions handbook and made a determination that since the project did not fall within the specific parameters of CEQA Exemption Section 15305 – Minor Alterations to Land – as the average slope of the properties exceeded 20 percent, that the project was not exempt.
However, Section 15305 is simply stating that minor lot line adjustments on lands under 20 percent slope are not subject to CEQA. Section 15305 also lists other types of projects that are not subject to CEQA. The fact that CEQA Guideline Section 15305
PAGE 8 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
DISCUSSION (continued):
provides an exemption for certain minor alterations in land use limitations does not provide contrary or controlling evidence that the CEQA Statute and Guidelines do not apply to “ministerial projects.” See page five of the Planning Commission staff report in Attachment 1 for more information.
4. Appellant: “Exhibit B” of appeal: Original appeal to Town Council showing Section 15305 only applicable for Minor Lot Line Adjustment, and for land with average slopes less than 20%. This is major adjustment where one parcel is increasing more than 100% in size, and has average slopes > 20%. It has potential for significant environmental impact which has not been carefully analyzed through this ministerial review process.
Applicant: Appellant’s further suggestion that slope should be taken into account at this stage is spurious, as Government Code Section 66412(d) does not permit this as a legal reason to deny an LLA.
Staff analysis: As noted above in the staff analysis to Section 3 of the appeal, just because one of the CEQA Exemptions does not apply to a project, does not mean that that project is automatically subject to CEQA. The fact that CEQA Guideline Section 15305 provides an exemption for certain minor alterations in land use limitations does not provide contrary or controlling evidence that the CEQA statute and Guidelines do not apply to “ministerial projects.”
As noted in the Required Determinations document (Attachment 1, Exhibit 2), the CEQA Determinations Section on pages one and two explains staff’s limitations in reviews of lot line adjustments in accordance with the required provisions and considerations of California Government Code Section 66412(d). In summary, the Town is relying on Public Resources Code Section 21080(b)(1) (CEQA statute) and CEQA Guidelines Section 15268, both of which provide that ministerial projects are exempt from the requirements of CEQA. The courts have determined that lot line adjustments pursuant to Government Code Section 66412(d) are ministerial approvals.
Additionally, CEQA Guideline Section 15268 provides that the determination of what is “ministerial” can most appropriately be made by the public agency involved and that this determination can be made on a case-by-case basis, and the California courts have determined that the Subdivision Map Act statute exempts from discretionary reviews, exactions, and conditions those lot line adjustments that fit the specifications of Government Code Section 66412(d). The Town’s review is expressly limited to determining whether the resulting lots will conform to the local general plan, any applicable specific or coastal plan, and building and zoning ordinances, which is a
PAGE 9 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
DISCUSSION (continued):
prototypical ministerial approval process, and, in this case because no other land use approvals are being sought by the applicant, involves only a ministerial action. Here, the lot line adjustment is simply: moving the existing lot lines between three existing, legal lots; is not creating any new additional lots; is removing existing non-conformities; and is not proposing any other land use approvals. No construction is proposed. On that basis, the lot line adjustment action by the Town is ministerial in nature.
The California Public Resources Code statute setting forth CEQA and dictating that ministerial projects are not subject to CEQA “trumps” any CEQA Guideline providing to the contrary. The California Government Code statute setting forth the SMA and its provisions regarding lot line adjustments, and the California Appellate courts determining those lot line adjustments to be ministerial in character "trumps” any CEQA Guidelines providing to the contrary. The fact that CEQA Guideline Section 15305 provides an exemption for certain minor alterations in land use limitations does not provide contrary or controlling evidence that the CEQA statute and Guidelines do not apply to “ministerial projects.” CEQA Guideline Section 15305 does not provide contrary or controlling evidence that the Government Code provisions containing the SMA and its lot line adjustment requirements [Government Code Section 66412(d)] do not describe a wholly ministerial process. As noted in Attachment 1, Exhibit 4, Government Code Section 66412(d) and previous case law provides that this lot line adjustment application is ministerial and not subject to CEQA.
5. Appellant: “Exhibit C” of appeal: Email from prior Town Attorney for reason why CoC never appealed to PC. The original 17200 Los Robles Way subdivision map was drawn with just 2 buildable parcels in 1927. Only because a small sliver of land above a ravine was carved out from a separate lot also owned by Tom Haire in 1947, before the subdivision map act applied, was a certificate of compliance able to be granted for the steep, unbuildable and landlocked Parcel 2. This parcel was never created to form a new buildable site on the Los Robles property, merely it made sense to own the land above the ravine not accessible to the parcel below.
Applicant: It should also be noted that there are three (3) original existing legal parcels and there will remain three (3) parcels. The certificate of compliance for these parcels was approved by the Town prior to requesting the LLA and not challenged. […] Staff analysis: The assumption of why the parcel was created is not relevant. As noted by the previous Town Attorney within “Exhibit C” of the appeal packet, the Town was obligated to issue the certificate of compliance approval for Parcel 3 (APN 532-36-075) because the parcel was created and approved as part of the Los Robles Subdivision in 1927. The Town was obligated to issue the certificate of compliance approval for Parcel 2 (APN 532-36-077) because the SMA contains a conclusive presumption that the
PAGE 10 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
DISCUSSION (continued):
subject property was lawfully created; “In particular, any parcel created before March 4, 1972 is conclusively presumed to have been lawfully created if the parcel resulted from a division of land in which fewer than five parcels were created and if, at the time of the parcel’s creation, no local ordinance was in effect regulating the division of land creating fewer than five parcels [See Gov. Code, Section 66412.6(a)]. It is undisputed that APN 532-36-077 was created in 1947 by Haire and conveyed to Thompson in 1953.” See “Exhibit C” of the appeal packet in Attachment 6 for more information.
The previous Town Attorney also noted in “Exhibit C” of the appeal that, “a request for a certificate of compliance cannot be denied based on theories of merger.” Lastly, the Certificate of Compliance Application (M-21-001) for the two parcels was approved on May 25, 2021. The appeal period has ended for the certificate of compliance approval.
6. Appellant: “Exhibit D” of appeal: Original DRC and Planning Commission findings. While the prior Town Attorney repeatedly referenced 66412(d) to block applicant from a fair appeal with both the Planning Commission and Town Council such that they were not allowed to review the application relative to our prior lot merger Ordinance 29.10.070, this Government Code was not referenced in any of the findings. Only after a legal challenge were the findings rewritten.
Applicant: This application was made as a correction to the previous LLA application M20-012 at this address, asking the Town to modify its prior approval of the LLA and to solely consider the LLA application under Government Code Section 66412, subsection (d). It was submitted and reviewed by staff and DRC for compliance. During this process we made all corrections requested by the Town and the plans on file reflect the final LLA configuration and details.
Staff analysis: After the previous appeal was denied by the Town Council and Application M-20-012 was approved, a resident challenged the Town’s approval to the courts by seeking a writ of administrative mandate to overturn the Town’s approval on March 1, 2022. In the course of the litigation, it became apparent that the Town had relied on the SMA’s requirements regarding the approval of a tentative or parcel map instead of the SMA’s requirements regarding a lot line adjustment [Government Code Section 66412(d)]. At the same time, the applicant for Application M-20-012 submitted a new application (Application M-23-001) for review in accordance with Government Code section 66412(d) (Attachment 1, Exhibits 6 and 7).
In light of all of this, the Town requested a stay from the court to allow the Town to process Application M-23-001 in accordance with the SMA’s requirements regarding lot line adjustments as set forth in Government Code Section 66412(d). The stay was granted.
PAGE 11 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
DISCUSSION (continued):
As required by law, staff has prepared new findings referencing Government Code Section 66412(d).
7. Appellant: “Exhibit E” of appeal: State of California Government Code 66451.11.
Applicant: […] Consideration of the LLA application is mandatory under controlling law, whereas the Town’s consideration of merger is permissive. For instance, Municipal Code Section 24.10.080, which addresses parcel mergers, specifies the Town “may” initiate a merger. There is no requirement that the Town initiate such a merger. Moreover, there is no showing that the three (3) parcels would meet the requirements of a merger under Section 24.10.080.
Staff analysis: Staff is unclear as to why this was submitted. The appellant also references “Exhibit E” of the appeal within Section 2 above, which has been addressed above.
8. Appellant: “Exhibit F” of appeal: Deed of Trust showing land transferred into Property Management firm.
Applicant: While it is unclear why Appellant has included “Exhibit F” with her appeal, she nonetheless misrepresents the nature of “Exhibit F” by describing it as a “Deed of Trust showing land transferred into Property Management Firm.” This is incorrect. Rather, Exhibit F simply shows that the owner’s (Mark von Kaenel) ‘Lender’ is a Property Management Company. The Property Management Company is a beneficiary of the Deed of Trust, not the owner. The two owners of the property are: (1) the original family, who have owned the property for several decades; and (2) Mark Von Kaenel, a long-time Los Gatos Resident for whom I have designed a personal residence in the past in Los Gatos.
Staff analysis: Staff is unclear as to why this was submitted. As noted above, the Town is not required to initiate a lot merger on two properties under the same or similar ownership.
9. Appellant: “Exhibit G” of appeal: City of Mammoth Lakes findings for exempting a lot line adjustment with consideration to CEQA Guidelines Section 15305.
Applicant: Pursuant to Government Code Section 66412(d), a Lot Line Adjustment “between four or fewer existing adjoining parcels, where the land taken from one parcel is added to an adjoining parcel, and where a greater number of parcels than originally existed is not thereby created” is exempt from the Subdivision Map Act and review under CEQA. This is an inescapable fact that the Appellant is trying to ignore in favor of
PAGE 12 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
DISCUSSION (continued):
consideration of other issues that are irrelevant. Approval of such an LLA is ministerial in nature as a matter of law.
Appellant’s further suggestion that slope should be taken into account as this stage is spurious, as Government Code Section 66412(d) does not permit this as a legal reason to deny an LLA.
Staff analysis: As noted above, just because one of the CEQA Exemptions does not apply to a project, does not mean that that project is automatically subject to CEQA. The fact that CEQA Guideline Section 15305 provides an exemption for certain minor alterations in land use limitations does not provide contrary or controlling evidence that the CEQA statute and Guidelines do not apply to “ministerial projects.” See Page 5 of Attachment 1 for more information.
10. Appellant: The Town's approval of this LLA is not a ministerial act.
Approving the LLA challenged by Ms. Steer's appeal is not a ministerial act. This is evidenced in part by the fact that the Town and Planning Staff both previously concluded that an essentially identical LLA was a discretionary decision, but subject to a specific CEQA exemption. Without any explanation, the Planning Commission has now reached the opposite conclusion based on the same facts. What changed? As explained in Ms. Steer's October 25, 2023 rebuttal to the Planning Commission, reaching a different conclusion based on the same facts is arbitrary and capricious.
Staff claims the case of Sierra Club v. Napa County Board of Supervisors (2012) 205 Cal.App.4th 162 ("Sierra Club v. Napa") stands for the proposition that all minor (between less than adjoining parcels) lot line adjustments pursuant to Government Code section 66412, subdivision (d) are per se ministerial. This is not a new case; it is from 2012. It was already established law and known to the Staff and the Town Attorney when the prior LLA was deemed to be discretionary, so why did the Town's interpretation of the same case change? Furthermore, Sierra Club v. Napa only looked at Napa County's regulation for approving lot line adjustments. The court was not asked to rule on Government Code section 66412 or decide whether CEQA Guideline section 15305 is no longer valid.
Applicant: Pursuant to Government Code Section 66412(d), a Lot Line Adjustment “between four or fewer existing adjoining parcels, where the land taken from one parcel is added to an adjoining parcel, and where a greater number of parcels than originally existed is not thereby created” is exempt from the Subdivision Map Act and review under CEQA. This is an inescapable fact that the Appellant is trying to ignore in favor of
PAGE 13 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
DISCUSSION (continued):
consideration of other issues that are irrelevant. Approval of such an LLA is ministerial in nature as a matter of law.
This application was made as a correction to the previous LLA application M 20-012 at this address, asking the Town to modify its prior approval of the LLA and to solely consider the LLA application under Government Code Section 66412, subsection (d). It was submitted and reviewed by staff and DRC for compliance. During this process we made all corrections requested by the Town and the plans on file reflect the final LLA configuration and details.
Staff analysis: After the previous appeal was denied by the Town Council and the application was approved, a resident challenged the Town’s approval to the courts by seeking a write of administrative mandate to overturn the Town’s approval of March 1, 2022. In the course of the litigation, it became apparent that the Town had relied on the SMA’s requirements regarding the approval of a tentative map instead of the SMA’s requirements regarding a lot line adjustment [Government Code Section 66412(d)]. At the same time, the applicant for Application M-20-012 submitted a new application (Application M-23-001) for review in accordance with Government Code section 66412(d) (Attachment 1, Exhibits 6 and 7).
In light of all of this, the Town requested a stay from the court to allow the Town to process Application M-23-001 in accordance with the SMA’s requirements regarding lot line adjustments as set forth in Government Code Section 66412(d). The stay was granted.
As noted in the DRC report (Attachment 1, Exhibit 4), the CEQA Determinations Section on pages four and five explains staff’s limitations in reviews of lot line adjustments in accordance with the required provisions and considerations of California Government Code Section 66412(d). The Town is relying on Public Resources Code Section 21080(b)(1) (CEQA statute) and CEQA Guidelines Section 15268, both of which provide that ministerial projects are exempt from the requirements of CEQA. The courts have determined that lot line adjustments pursuant to Government Code Section 66412(d) are ministerial approvals. See Attachment 1, Exhibit 4 for additional details and case law.
The appellant has asked why the former lot line adjustment application was described as a discretionary action. Based on the administrative record, the Town previously referenced the Government Code Section 66474 findings, which apply to parcel and tentative maps. The approval of a parcel or tentative map is a discretionary action.
PAGE 14 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
DISCUSSION (continued):
Both the original planning application and the request for a modification of the planning approval seek a lot line adjustment, which is governed by Government Code Section 66412(d) and is a “ministerial” decision. The term “ministerial” refers to public agency decisions involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project. The public official merely applies the laws to the facts as presented but uses no special judgment or discretion in reaching a decision.
While the Napa decision involved a challenge to a local ordinance that stated a lot line adjustment decision was “ministerial,” the case also stands for the general proposition that lot line adjustments are “ministerial” decisions and that a determination as to what constitutes a “ministerial” decision is best made by the public agency.
With this application for a lot line adjustment, the Town is being asked to apply the requirements of Government Code Section 66412(d) to the facts. Because this is a ministerial decision, it is not subject to CEQA.
11. Appellant: The approval of the LLA is not ministerial because it required the exercise of judgment and imposition of conditions.
For example, one of the proposed findings requires the Town to decide if the project conforms with the policy of "limiting the intensity of new development to a level that is consistent with surrounding development and with the town at large." This requires the exercise of discretion; it is not just a matter of checking a box.
In addition to exercising judgment regarding findings, implementing the Town's lot line regulation allows the Town to impose conditions or mitigations to ensure the LLA complies with all applicable General Plan policies and other regulations. Here, the Planning Commission, on recommendation of the Staff, approved a condition that requires an offer of dedication for a cul de sac to ensure the resulting lots comply with the minimum frontage requirement.
Applicant: Appellant has argued, “The Township can exercise considerable judgment to shape the LLA,” which Appellant argues renders the approval of the LLA not ministerial because such approval “requires the exercise of judgment and imposition of conditions.” However, the LLA was designed by the Applicant, the owner and their Civil Engineer—not by the Town. The Town’s role in this process is simply to determine whether the LLA plans presented are consistent with State rules for LLAs, the General Plan and applicable zoning rules, which determination requires objective consideration only.
In these plans, we have limited the details to the proposed lot configurations requested for the LLA, while providing sufficient information to analyze the adjusted parcels for compliance with applicable Town and state law.
PAGE 15 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
DISCUSSION (continued):
The access at Worcester Lane has always been available to the property and this will not change with this LLA. The owners are offering to dedicate to the Town an appropriate easement for a cul-de-sac area at the terminus of Worcester Lane to satisfy ingress/egress to parcels 2 and 3 from this location and meet the Town’s frontage requirements. This area has been identified on the plans based on a town standard hillside cul-de-sac. According to the Town’s staff reports submitted to the DRC and, subsequently, to the Planning Commission, Town Code Section 29.40.400 does not mandate that the cul-de-sac street frontage be along a paved roadway. This application does not request approval of plans to develop the cul-de-sac easement area. Thus, the Town need not analyze potential impacts associated with the cul-de-sac area.
Staff analysis: As noted in the DRC Report (Attachment 1, Exhibit 4), the CEQA Determinations Section on pages four and five explains staff’s limitations in reviews of lot line adjustments in accordance with the required provisions and considerations of California Government Code Section 66412(d). The Town is relying on Public Resources Code Section 21080(b)(1) (CEQA statute) and CEQA Guidelines Section 15268, both of which provide that ministerial projects are exempt from the requirements of CEQA. The courts have determined that lot line adjustments pursuant to Government Code Section 66412(d) are ministerial approvals.
One of the required determinations listed in California Government Code Section 66412(d) is compliance with the General Plan. As noted in Attachment 1, Exhibit 2, the proposed lot line adjustment is in conformance with the General Plan. Specifically, the proposed lot line adjustment complies with the density allowance for properties with a Low Density Residential General Plan Land Use Designation and General Plan Community Design Goal CD-2. General Plan Community Design Goal CD-2 states, “To limit the intensity of new development to a level that is consistent with surrounding development and with the Town at large.” The determination made for compliance with CD-2 is, in summary, “if in the future each vacant Adjusted Parcel were developed with one single-family residence, each such parcel would be consistent with the intensity of surrounding development.” No discretion is used in looking at existing zoning and proposed parcel sizes compared to the surrounding neighborhood.
Regarding the cul-de-sac, as noted in Condition of Approval #2 in Attachment 1, Exhibit 3, the property owners have proposed to make irrevocable offers of dedication of easement to the Town to satisfy Town Zoning Code provisions regarding frontage. This was a part of the application and offered by the applicant (Attachment 1, Exhibit 6). The provisions from Government Code Section 66412(d) regarding lot line adjustments authorizes the Town to impose conditions of approval to ensure Zoning Code compliance and consistency. However, construction of the cul-de-sac is not proposed or required, and Condition of Approval #5 makes clear that any and all disruption, development, construction, including future construction of the cul-de-sac, would
PAGE 16 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
DISCUSSION (continued):
require a discretionary Architecture and Site Application with environmental review to determine appropriate CEQA compliance, and review for General Plan, Specific Plan, Zoning, and Building Ordinance compliance. Again, no construction of any kind is proposed with this lot line adjustment application, and the cul-de-sac dedication was offered by the applicant in order to comply with Town Code. As the appellant quoted in Section 12 below, “[t]he applicant has suggested a future cul-de-sac at the terminus of Worcester Lane for parcels 2 and 3. To accomplish this, the applicant is proposing a dedication-of land as an easement for cul-de-sac right-of-way purposes.”
12. Appellant: The Planning Commission’s conditions of approval for the LLA implicitly created a new street without adequate environmental review as required by law.
The Town code requires lot frontage on “the property line of a lot abutting on a street, which affords access to a lot other than the side line of a comer lot." In other words, frontage must be abutting a street. "Street" is defined by the Town's municipal code section 29.10.020 as "any thoroughfare for the motor vehicle travel which affords the principal means of access to abutting property, including public and private rightsof-way and easements." Therefore, a compliant lot must abut and have frontage on a street that provides the principle means of access to that lot. Here, the proposed finding is as follows: "[t]he applicant has suggested a future cul-de-sac at the terminus of Worcester Lane for parcels 2 and 3. To accomplish this, the applicant is proposing a dedication-of land as an easement for cul-de-sac right-of-way purposes."
According to Staff, "once this condition of approval is complied with and the Town accepts dedication of this area for the future cul-de-sac at the terminus of Worcester Lane, .... Parcel 2 would have approximately 40 feet of frontage on a cul-de-sac bulb easement at the terminus of Worcester Lane where 30 feet is required; and parcel 3 would have approximately 60 feet of frontage on a cul-de-sac bulb easement at the terminus of Worcester lane where 30 feet is required."
In other words, to make a finding that resulting lots 2 and 3 comply with the frontage requirements, the Planning Commission implicitly found that the cul de sac, as depicted on the maps, is a "street" that will provide the primary access to lots 2 and 3. This means that in order to ensure the LLA is consistent with Town regulation regarding frontage, the Town essentially approved a new street without any environmental regulation or review.
PAGE 17 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
DISCUSSION (continued):
Town's approval of the cul de sac violates CEQA because the Town has made no effort to analyze the environmental impacts associated with the cul de sac, including for example, how many trees would have to be cut to make room for the cul de sac, or how much grading, or how the new street would impact the site's hydrology, storm drainage, traffic, etc.
Applicant: The access at Worcester Lane has always been available to the property and this will not change with this LLA. The owners are offering to dedicate to the Town an appropriate easement for a cul-de-sac area at the terminus of Worcester Lane to satisfy ingress/egress to parcels 2 and 3 from this location and meet the Town’s frontage requirements. This area has been identified on the plans based on a town standard hillside cul-de-sac. According to the Town’s staff reports submitted to the DRC and, subsequently, to the Planning Commission, Town Code Section 29.40.400 does not mandate that the cul-de-sac street frontage be along a paved roadway. This application does not request approval of plans to develop the cul-de-sac easement area. Thus, the Town need not analyze potential impacts associated with the cul-de-sac area.
This application does not request the approval of any new homes nor development of the three (3) parcels. As such, it is premature to consider issues relating to development of the parcels. However, as the Appellant’s attorney has focused on this point in some detail, I would like to point out that if an A&S application were to be made to develop either parcel 2 or 3, staff and SCCFD would consider whether a cul-de-sac, a hammerhead turnaround or individual driveways would be appropriate for access to the properties. At that time, safety, removal of trees and other tangible concerns would be considered in greater detail. Such considerations are not relevant nor properly considered in connection with the LLA application.
Staff analysis: Meeting “street frontage” requirements from the Town Code versus building, grading, and paving a street are two very different things. Street frontage is required in order to be a conforming lot, in that the property must have a certain amount of the property abut an area that can provide access. Specifically, “street” is defined by Town Code Section 29.10.020 as, “any thoroughfare for the motor vehicle travel which affords the principal means of access to abutting property, including public and private rights-of-way and easements.”
The appellant states that a new “street” was created. That is true, as an easement meets the Town’s definition of a street in terms of complying with “street frontage.” The appellant states that the Planning Commission implicitly found that the cul-de-sac, as depicted on the maps, is a street. Again, this is true. The future easement, conditioned to be dedicated following approval, meet’s the Town’s definition of a “street” and thus the lots comply with “street frontage.”
PAGE 18 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
DISCUSSION (continued):
The appellant states that the Town essentially approved a new street without any environmental regulation or review. Again, if referring to the Town’s definition of “street” in terms of meeting “street frontage,” this is true. A line on the map will be added, showing dedication of a cul-de-sac to the Town, showing that each lot meets the minimum street frontage. However, Town Code does not require that property or street frontage be met only on fully developed roadways.
Again, no construction is proposed. No tree removals are proposed. No grading is proposed. This is a lot line adjustment application that simply shows how the properties will be accessed if and when development is proposed in the future.
On December 11, 2023, the appellant submitted additional comment to the record, which is included as Attachment 8.
PUBLIC COMMENTS:
Written notice was sent to property owners and tenants within 300 feet of the subject property. At the time of preparation of this report, no public comment has been received.
ENVIRONMENTAL ASSESSMENT:
The lot line adjustment approval is Statutorily Exempt from CEQA as a ministerial approval in accordance with Public Resources Code section 21080(b)(1) (CEQA statute) and CEQA Guidelines Section 15268, both of which provide that ministerial projects are exempt from the requirements of CEQA, and Government Code Section 66412(d) regarding lot line adjustments, which Government Code Section 66412(d) has been determined to describe a ministerial approval. The application is only for ministerial approval of a lot line adjustment pursuant to Section 66412(d) of the Subdivision Map Act. Refer to Attachment 1, Exhibit 2.
CONCLUSION:
A. Recommendation
For the reasons stated in this report, it is recommended that the Town Council deny the appeal, upholding the Planning Commission’s decision to approve the proposed project (Attachment 9).
PAGE 19 OF 19
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 14, 2023
CONCLUSION (continued):
B. Alternatives
Alternatively, the Town Council could provide staff with detailed reasoning to:
1. Adopt a resolution to grant the appeal and remand the application back to the Planning Commission with specific direction;
2. Adopt a resolution granting the appeal and denying the application;
3. Adopt a resolution granting the appeal and approving the application with modifications; or
4. Continue the application to a date certain with specific direction.
ATTACHMENTS:
1. October 25, 2023, Planning Commission Staff Report, with Exhibits 1 through 9
2. October 25, 2023, Planning Commission Addendum Report, with Exhibit 10
3. October 25, 2023, Planning Commission Verbatim Minutes
4. October 25, 2023, Planning Commission Action Letter
5. Appellant’s Rebuttal of Applicant Response Letter, received following 11:00 a.m., October 25, 2023
6. Appeal of the Planning Commission decision, received November 3, 2023
7. Applicant Response Letter to Appeal, received December 8, 2023
8. Additional Comment from Appellant, received December 11, 2023
9. Draft Resolution to Deny the Appeal and Uphold the Planning Commission Decision
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PREPARED BY: Ryan Safty
Associate Planner
Reviewed by: Planning Manager, Community Development Director, and Town Attorney 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6872 www.losgatosca.gov
TOWN OF LOS GATOS
PLANNING COMMISSION
REPORT
MEETING DATE: 10/25/2023
ITEM NO: 2
DATE: October 20, 2023
TO: Planning Commission
FROM: Joel Paulson, Community Development Director
SUBJECT: Consider an Appeal of a Development Review Committee Decision to Approve a Lot Line Adjustment Application in Accordance with California Government Code Section 66412(d) for Three Adjoining Lots on Property Zoned R-1:20. Located at 17200 Los Robles Way. APNs 532-36-075, -076, and -077. Lot Line Adjustment Application M-23-001. Statutorily Exempt from CEQA as a Ministerial Approval in Accordance with Public Resources Code Section 21080(b)(1) (CEQA Statute) and CEQA Guidelines Section 15268.
Application is Only for Ministerial Approval of a Lot Line Adjustment Pursuant to Section 66412(d) of the Subdivision Map Act.
Property Owners: Daran Goodell, Trustee and Mark Von Kaenel.
Applicant: Tony Jeans. Appellant: Alison Steer. Project Planner: Ryan Safty.
RECOMMENDATION:
Deny the appeal and uphold the decision of the Development Review Committee (DRC) to approve the application, subject to the required determinations (Exhibit 2) and recommended conditions of approval (Exhibit 3).
BACKGROUND:
The subject parcels are located at the terminus of Los Robles Way and Worcester Lane (Exhibit 1). The lot line adjustment proposes to take three adjacent parcels and reconfigure their lot lines. The existing lot configuration has several non-conformities, all of which would be remedied with the proposed lot line adjustment; a legal, non-conforming front setback on Parcel 1 is allowed under current Town Code, as discussed in the DRC Report (Exhibit 4) and in the applicant’s Letter of Justification (Exhibit 6). There is an existing residence on Parcel 1 (APN 532-36-076) that would remain, and the other two parcels are vacant. No new construction is proposed with the application.
ATTACHMENT 1
PAGE 2 OF 12
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: October 20, 2023
BACKGROUND (continued):
The current lot line adjustment application (M-23-001) seeks to cure the absence of certain factual information and presence of certain procedural flaws in the Town’s original approval of Lot Line Adjustment Application M-20-012. A detailed history of application M-20-012 is provided in Exhibit 4, and a summary of the action items and dates are provided below:
• On November 11, 2020, the applicant submitted their previous lot line adjustment application (M-20-012) for the three parcels;
• On February 23, 2021, the applicant submitted Certificate of Compliance applications to verify the legality of Parcels 2 and 3;
• On May 25, 2021, the DRC approved the Certification of Compliance applications, which verified the legality of Parcels 2 and 3;
• On July 13, 2021, the DRC approved Application M-20-012; • On July 22, 2021, the decision of the DRC was appealed to the Planning Commission by adjacent neighbors;
• On September 8, 2021, the Planning Commission denied the appeal and approved Application M-20-012;
• On September 20, 2021, the decision of the Planning Commission was appealed to the Town Council by adjacent neighbors;
• On December 7, 2021, the Town Council made a motion to uphold the decision of the Planning Commission and adopted a resolution denying the appeal and approved Application M-20-012; and
• On March 1, 2022, a resident challenged the Town’s approval of Application M-20-012 by seeking a writ of administrative mandate to overturn the Town’s approval.
In the course of the litigation, it became apparent that the Town had relied on the Subdivision Map Act’s requirements regarding the approval of a tentative map instead of the Subdivision Map Act’s requirements regarding a lot line adjustment [Government Code Section 66412(d)].
At the same time, the applicant for Application M-20-012 submitted a new application (Application M-23-001) for review in accordance with Government Code section 66412(d) (Exhibits 6 and 7).
In light of all of this, the Town requested a stay from the court to allow the Town to process Application M-23-001 in accordance with the Subdivision Map Act’s requirements regarding lot line adjustments as set forth in Government Code Section 66412(d). The stay was granted.
A detailed staff report for Application M-23-001 (Exhibit 4) was prepared in advance of the DRC hearing which: summarizes the application request; provides a detailed background of the application beginning in 2020; specifies how the project is ministerial under the California Environmental Quality Act (CEQA) and therefore compliant with CEQA; and analyzes how each
PAGE 3 OF 12
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: October 20, 2023
BACKGROUND (continued):
of the required considerations for approval of Application M-23-001 are met in accordance with Subdivision Map Act requirements as set forth in Government Code Section 66412(d).
On August 15, 2023, the DRC opened the public hearing, listened to public testimony, and approved Lot Line Adjustment Application M-23-001 based on the information provided in the Report to the DRC, the draft conditions of approval, and in accordance with the required determinations provided in California Government Code Section 66412(d) (Exhibit 4). The meeting minutes are provided as Exhibit 5.
Pursuant to Town Code Section 29.20.257, any interested person as defined by Town Code Section 29.10.020 may appeal to the Planning Commission any decision of the DRC. For residential projects, an interested person is defined as, “a person or entity who owns property or resides within 1,000 feet of a property for which a decision has been rendered and can demonstrate that their property will be injured by the decision.” The appellant meets the requirements.
On August 22, 2023, the decision of the DRC was appealed to the Planning Commission by an adjacent neighbor (Exhibit 8). The applicant has responded to the appeal letter, provided as Exhibit 9.
DISCUSSION:
A. Project Summary
The subject parcels are located at the terminus of Los Robles Way and Worcester Lane (Exhibit 1). The lot line adjustment proposes to take three adjacent parcels and reconfigure their lot lines. The existing lot configuration has several non-conformities, all of which would be remedied with the proposed lot line adjustment; a legal, non-conforming front setback on Parcel 1 is allowed under current Town Code, as discussed in the DRC Report (Exhibit 4) and in the applicant’s submittal package (Exhibits 6 and 7). There is an existing residence on Parcel 1 (APN 532-36-076) that would remain, and the other two parcels are vacant. No new construction is proposed.
B. Lot Line Adjustment Review Process
Applications for lot line adjustments are ministerial in nature, but are required by Town Code Section 29.20.745(9) to go before DRC for approval.
PAGE 4 OF 12
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: October 20, 2023
DISCUSSION (continued):
The required determinations for approval of a lot line adjustment application pursuant to Government Code Section 66412(d) are: that the new lot line adjustment is between four or fewer existing adjoining parcels, where the land taken from one parcel is added to an adjoining parcel, and where a greater number of parcels than originally existed is not thereby created; and that the parcels resulting from the lot line adjustment will conform to the local general plan, any specific plans, any applicable coastal plan, and zoning and building ordinances (Exhibit 2). A detailed analysis showing compliance with each required determination is also provided in Exhibit 4.
C. Appeal Analysis
The appellant’s reasoning is provided below, with applicant’s responses in italic font, followed by staff analysis below each section of the appeal letter.
1. Appellant: The DRC’s conclusion, at the urging of staff, that approval of this application is a ministerial act is legally erroneous because the DRC must exercise considerable judgment to ensure the lot line adjustment is consistent with all aspects of the Town’s General Plan, Hillside Specific Plan and all applicable Hillside Development Standards and Guidelines. This approval is unlike a typical ministerial act where the responsible agency merely uses a pre-defined checklist to ensure the project is consistent with a set of well-established standards […]. Moreover, staff’s position that lot line adjustment approvals are per se ministerial is clearly erroneous in light of CEQA Guideline Section 15305, which provides that lot line adjustment approvals are exempt from CEQA under some circumstances. If, as staff contends and the DRC apparently accepted, lot line adjustment approvals are per se ministerial, Section 15305 is completely pointless and nonsensical because ministerial acts are not subject to CEQA at all, and therefore there would be no point in adopting a guideline to exempt them from CEQA […]. The fact that under Section 15035, lot line adjustments between four or fewer lots with average slopes greater than 20 percent are not exempt from CEQA review is further persuasive evidence that approval of a lot line adjustment on parcels with greater than 20 percent slopes require exercise of discretion.
Applicant: Pursuant to Government Code Section 66412(d), a lot line adjustment “between four or fewer existing adjoining parcels, where the land taken from one parcel is added to an adjoining parcel, and where a greater number of parcels than originally existed is not thereby created” is exempt from the Subdivision Map Act and review under CEQA. Approval of such a lot line adjustment is ministerial in nature.
PAGE 5 OF 12
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: October 20, 2023
DISCUSSION (continued):
Staff analysis: As noted in the DRC Report (Exhibit 4), the CEQA Determinations Section on pages four and five explains staff’s limitations in reviews of lot line adjustments in accordance with the required provisions and considerations of California Government Code Section 66412(d). The Town is relying on Public Resources Code Section 21080(b)(1) (CEQA statute) and CEQA Guidelines Section 15268, both of which provide that ministerial projects are exempt from the requirements of CEQA. The courts have determined that lot line adjustments pursuant to Government Code Section 66412(d) are ministerial approvals.
Additionally, CEQA Guideline Section 15268 provides that the determination of what is “ministerial” can most appropriately be made by the public agency involved and that this determination can be made on a case-by-case basis, and the California courts have determined that the Subdivision Map Act statute exempts from discretionary reviews, exactions, and conditions those lot line adjustments that fit the specifications of Government Code section 66412(d). The Town’s review is expressly limited to determining whether the resulting lots will conform to the local general plan, any applicable specific or coastal plan, and building and zoning ordinances, which is a prototypical ministerial approval process, and, in this case because no other land use approvals are being sought by the applicant, involves only a ministerial action. Here, the lot line adjustment is simply: moving the existing lot lines between three existing, legal lots; is not creating any new additional lots; is removing existing non-conformities, and is not proposing any other land use approvals. On that basis, the lot line adjustment action by the Town is ministerial in nature.
The California Public Resources Code statute setting forth CEQA and dictating that ministerial projects are not subject to CEQA “trumps” any CEQA Guideline providing to the contrary. The California Government Code statute setting forth the Subdivision Map Act and its provisions regarding lot line adjustments, and the California Appellate courts determining those lot line adjustments to be ministerial in character "trumps” any CEQA Guidelines providing to the contrary. The fact that CEQA Guideline Section 15305 provides an exemption for certain minor alterations in land use limitations does not provide contrary or controlling evidence that the CEQA statute and Guidelines do not apply to “ministerial projects.” CEQA Guideline Section 15305 does not provide contrary or controlling evidence that the Government Code provisions containing the Subdivision Map Act and its lot line adjustment requirements [Government Code section 66412(d)] do not describe a wholly ministerial process. As noted in Exhibit 4, Government Code Section 66412(d) and previous case law provides that this lot line adjustment application is ministerial and not subject to CEQA.
PAGE 6 OF 12
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: October 20, 2023
DISCUSSION (continued):
2. Appellant: Town is required to analyze the proposed lot line adjustment’s consistency with goals and policies of the General Plan including land use element (LU 6.4) which “prohibit uses that may lead to the deterioration of residential neighborhoods, or adversely impact the public safety or the residential character of a residential neighborhood.” The Town has conducted no such analysis, and in any event, a finding that the lot line adjustment is, or is not, consistent with LU 6.4 necessarily requires an exercise of discretion.
Applicant: The application does not request the approval of any new homes nor development of the three (3) parcels. As such, it is premature to consider issues relating to development of the parcels. For instance, Appellant’s reference to LU 6.4 is misplaced, as there is no proposed change of use or development of the parcels before the Town, there is no need to conduct any analysis under LU 6.4.
Staff analysis: No new land uses are proposed with this lot line adjustment application, and no development or construction is proposed. If development or construction activities and/or proposed land uses are proposed in the future, they would need to comply with the General Plan. As noted in Condition of Approval #5 of Exhibit 3, “Notice is hereby given to the Property Owners that any proposed disruption, development, or other related construction on, adjacent to, or related to the Adjusted Parcels shall require environmental review to determine appropriate CEQA compliance, review for General Plan, Specific Plan, Zoning, and Building Ordinance compliance, and an Architectural and Site Application approval with the Community Development Department of the Town, with related findings, considerations, and conditions of approval in compliance with applicable Town Code.”
3. Appellant: Similarly, the Town has failed to analyze the potential impacts associated with the proposed cul-de-sac or its consistency relative to the Hillside Development Standards which also changes principal means of access to parcels 2 and 3 […]. It is important to note, moreover, that regardless of whether the lot-line adjustment could be approved without compliance with CEQA, the Town must analyze the environmental impacts associated with the proposed access driveway to parcels 2 and 3, which is an essential part of the proposed lot line adjustment.
PAGE 7 OF 12
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: October 20, 2023
DISCUSSION (continued):
Applicant: The access at Worcester Lane has always been available to the property and this will not change with this lot line adjustment. The owners are offering to dedicate to the Town an appropriate easement for a cul-de-sac area at the terminus of Worcester Lane to satisfy ingress/egress to parcels 2 and 3 from this location and meet the Town’s frontage requirements. This area has been identified on the plans based on a Town standard hillside cul-de-sac. According to the Town’s staff report submitted to the DRC, Town Code Section 29.40.400 does not mandate that the cul-de-sac street frontage be along a paved roadway. This application does not request approval of plans to develop the cul-de-sac easement area. Thus, the Town need not analyze potential impacts associated with the cul-de-sac area.
Staff analysis: As noted in Condition of Approval #2 in Exhibit 3, the property owners have proposed to make irrevocable offers of dedication of easement to the Town to satisfy Town Zoning Code provisions regarding frontage. The provisions from Government Code Section 66412(d) regarding lot line adjustments authorizes the Town to impose conditions of approval to ensure Zoning Code compliance and consistency.
However, construction of the cul-de-sac is not proposed or required, and Condition of Approval #5 makes clear that any and all disruption, development, construction, including future construction of the cul-de-sac, would require a discretionary Architecture and Site Application with environmental review to determine appropriate CEQA compliance, and review for General Plan, Specific Plan, Zoning, and Building Ordinance compliance. Again, no construction of any kind is proposed with this lot line adjustment application.
As a part of this lot line adjustment application review, Town staff has reviewed the culde-sac area delineated in Exhibit 7 that is offered as a dedication of easement to the Town and has confirmed that a cul-de-sac meeting the Town’s required cul-de-sac dimensions would fit in this location. Again, no construction or development is being proposed. Any future construction and grading associated with this cul-de-sac would require a Town approved Architecture and Site Application, which would first require CEQA compliance before approval or denial.
In order to avoid confusion and clarify the intent of the condition for the cul-de-sac dedication, staff is recommending a revision to drafted Condition of Approval #2 in Exhibit 3. Staff is recommending a revision because the last two sentences are unnecessary. If the lot line adjustment is denied, the conditions of approval will not exist. The proposed amended condition language is shown in strikethrough text in Exhibit 3 and copied below.
PAGE 8 OF 12
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: October 20, 2023
DISCUSSION (continued):
2. CUL-DE-SAC DEDICATIONS: To ensure the consistency of the Approval of the New Lot Line Adjustment Application (M-23-001) with the Zoning Ordinance of the Town Code, within ninety (90) days of the Approval Date, the property owners (individually, “Property Owner,” collectively, “Property Owners”) of Adjusted Parcels 2 and 3 shall make irrevocable offers of dedication of easement to the Town of the “Cul-De-Sac Area” for right-of-way purposes (as that Cul-DeSac Area is specifically delineated in the New Lot Line Adjustment Application (M-23-001) materials), and to the satisfaction of the Town Engineer, to ensure compliance with the minimum Town street frontage standards for cul-de-sacs.
Within thirty (30) days of such Property Owners dedication, the Town Engineer shall accept such dedication(s) on behalf of the Town. Should the Approval be placed before the Town Council for consideration and action on appeal, the Town Council shall determine whether or not to confirm such acceptance of such dedication in addition to considering the merits of the appeal. Failure of the Town Council to confirm acceptance of such Cul De Sac Area dedications, and/or approval of such appeal by the Town Council, shall void the Approval.
4. Appellant: To the extent the lot line adjustment creates a new buildable parcel from an unbuildable parcel [and not just moving lines around on paper as was mentioned at the DRC meeting (minute 6:20)], the Town is required to but has thus far failed to carefully review the consistency of the newly configured parcels with the Town’s General Plan.
Approval of the lot line adjustment will most likely result in the siting of up to two new dwellings on parcel 2, which is more than capable of creating ecological and visual impacts to neighboring properties (General Plan CD 6.4).
Applicant: In the plans, we have limited the details to the proposed lot configurations requested for the lot line adjustment, while providing sufficient information to analyze the adjusted parcels for compliance with applicable Town and State law […]. This application does not request the approval of any new homes nor development of the three (3) parcels. As such, it is premature to consider issues relating to development of the parcels […].
Staff analysis: As noted on pages six and seven in the DRC Report (Exhibit 4), the proposed lot line adjustment is in conformance with the General Plan. Specifically, the proposed lot line adjustment complies with the density allowance for properties with a Low Density Residential General Plan Land Use Designation and General Plan Community Design Goal CD-2, which states, “To limit the intensity of new development to a level that is consistent with surrounding development and with the Town at large.”
PAGE 9 OF 12
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: October 20, 2023
DISCUSSION (continued):
The application is for a lot line adjustment between three existing, legal parcels. No construction or grading is proposed. It is important to note that, although both the General Plan and Zoning Ordinance specify how land may be developed, they do so in different ways. The General Plan has a long-term outlook. It identifies the types of development that will be allowed, the spatial relationships among land uses, and the general patten of future development. Zoning regulates development through specific standards such as lot size, building setbacks, and allowable uses. Development must not only meet the specific requirements of the Zoning Ordinance, but also the broader policies set forth in the General Plan. Again, no development is proposed; any future proposed use and/or development would need to comply with all the provisions of the then-applicable General Plan.
The appeal states that the project would not comply with General Plan Policy CD.4, which requires that, “New homes shall be sited to maximize privacy, livability, protection of natural plant and wildlife habitats and migration corridors, and adequate solar access and wind conditions. Siting should take advantage of scenic views but should not create significant ecological or visual impacts affecting open spaces, public places, or other properties.” Again, no construction is proposed; no new homes are proposed. This General Plan policy is not relevant to a lot line adjustment application.
5. Appellant: The Town’s General Plan 2040 website specifically states the adopted plan “does not allow new housing potential in the Very High Fire Hazard Severity Zones” which is where this land is located. Increasing density increases fire risk to the neighborhood. The Town must consider whether this proposed lot line adjustment is consistent with the Town’s policy of not increasing density in Very High Fire Hazard Severity Zones.
Applicant: Additionally, the Town need not consider whether the proposed lot line adjustment is consistent with the Town’s policy of not increasing density in the Very High Fire Hazard Severity Zones, as there is no increase in density with this application. This application preserves the status quo (three single-family residential parcels) and leaves the determination of appropriate countermeasure for fire hazard safety to a subsequent Architecture and Site Application, which would be reviewed by Santa Clara County Fire Department as well as the building department.
PAGE 10 OF 12
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: October 20, 2023
DISCUSSION (continued):
Staff analysis: This is not an excerpt from the General Plan. Instead, it is an introductory statement on the Los Gatos 2040 General Plan website. The full quote is, “The adopted 2040 General Plan retains the Town’s Low Density neighborhoods as is, allows more housing in High (formerly known as Medium) Density Residential (i.e. small, multi-unit housing), does not allow new housing potential in the Very High Fire Hazard Severity Zone, and focuses the majority of the growth in the Community Growth Districts with mixed use and higher density developments.” The excerpt regarding no new housing potential in the Very High Fire Hazard Severity Zone is simply stating that the Town is proposing to increase allowed densities in certain areas of the Town in order to meet the State’s required housing numbers, and that the Town is not proposing to increase allowable densities in the Very High Fire Hazard Severity Zone. This is not saying that existing parcels cannot be developed in the Very High Fire Hazard Severity Zone.
Additionally, allowed densities are listed in the Land Use Element of the General Plan, and the 2040 Land Use Element is on hold and is not currently in effect.
6. Appellant: Today Parcel 2 is not buildable, is landlocked, does not conform to minimum parcel size, cannot be accessed by vehicular or safety equipment (there’s a house/pool in the way, which according to the staff report will remain), and due to the steepness of the slope is outside of the LRDA (Least Restrictive Development Area) where no turnaround could be built, nor does it meet slope stability standards, yet the Town refuses to consider this land for merger per Municode Section 24.10.080.
Applicant: It should also be noted that there are three (3) original existing parcels and there will remain three (3) parcels. Consideration of the lot line adjustment application is mandatory under controlling law, whereas the Town’s consideration of merger is permissive. For instance, Municipal Code Section 24.10.080, which addresses parcel mergers, specifies the Town “may” initiate a merger. There is no requirement that the Town initiate such a merger. Moreover, there is no showing that the three (3) parcels would meet the requirements of a merger under Section 24.10.080. As a result, there is no “intensification of use” or “increasing density” associated with this application, as the appellant suggests.
Staff analysis: Town Code Section 24.10.080 states that, “The Town may initiate a merger of a parcel […]” if all the requirements of the controlling law (the Subdivision Map Act) are met. Several things bear mentioning: (1) Town Code Section 24.10.080 does not require (it is not mandatory, there is no “shall”) the Town to initiate the merger of any or all parcels in the Town that may qualify for merger, it permits such review (it is permissive, it uses the word “may”) if the Town wishes to do so. The Town choosing not to commence a merger in the present case is not a challengeable nor appealable act; (2) the Subdivision Map Act does require the Town to act upon a lot line
PAGE 11 OF 12
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: October 20, 2023
DISCUSSION (continued):
adjustment application submitted, such as the one present here. The Map Act provisions regarding lot line adjustments use the word “shall,” and shall is mandatory; and (3) once the lot line adjustment is acted upon, as it must be under controlling law, no grounds for permissive Town merger will be present. In other words, the applicant came to the Town with a lot line adjustment application to remedy the non-conforming situations associated with these parcels. The Town is required to act upon the lot line adjustment application pursuant to the Subdivision Map Act; the Town is not required to commence a merger proceeding to determine which if any of the parcels in question can legally be merged, and merger is legally not available to the Town once the lot line adjustment is submitted, acted upon, and approved.
PUBLIC COMMENTS:
At the time of preparation of this report, no public comment has been received.
ENVIRONMENTAL REVIEW:
The lot line adjustment approval is Statutorily Exempt from CEQA as a ministerial approval in accordance with Public Resources Code section 21080(b)(1) (CEQA statute) and CEQA Guidelines Section 15268, both of which provide that ministerial projects are exempt from the requirements of CEQA, and Government Code Section 66412(d) regarding lot line adjustments, which Government Code Section 66412(d) has been determined to describe a ministerial approval. The application is only for ministerial approval of a lot line adjustment pursuant to Section 66412(d) of the Subdivision Map Act. Refer to pages four and five of the DRC Report (Exhibit 4) for more information.
CONCLUSION:
A. Summary
The appellant is requesting that the Planning Commission reconsider the DRC’s decision to approve Lot Line Adjustment Application M-23-001 in accordance with Government Code Section 66412(d) of the Subdivision Map Act for three adjoining lots on property zoned R1:20, located at 17200 Los Robles Way.
PAGE 12 OF 12
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: October 20, 2023
CONCLUSION (continued):
B. Recommendation
For the reasons stated in this report, staff recommends that the Planning Commission make a motion to confirm the following determinations and actions to deny the appeal, uphold the decision of the DRC, and approve Lot Line Adjustment Application M-23-001 for consideration under Section 66412(d) of the Subdivision Map Act:
1. Find that approval of the lot line adjustment application is a ministerial project approval under CEQA (Exhibit 2);
2. Find that the required determinations regarding compliance with Section 66412(d) of the Subdivision Map Act are hereby adopted and confirmed (Exhibit 2); and
3. Approve Lot Line Adjustment Application M-23-001, superseding the Town’s approval of the previous lot line adjustment application (M-20-012), with the modified Draft Conditions of Approval contained in Exhibit 3, the diagram showing existing and proposed parcel configurations in Exhibit 7, and all other related materials and attachments.
C. Alternatives
Alternatively, the Commission can:
1. Continue the matter to a date certain with specific direction;
2. Deny the appeal and approve the application with additional and/or modified conditions;
3. Grant the appeal and remand the application to the DRC with direction for revisions; or
4. Grant the appeal and deny Lot Line Adjustment Application M-23-001.
EXHIBITS:
1. Location Map
2. Required Determinations Pursuant to Government Code Section 66412(d)
3. Recommended Conditions of Approval with Staff Edits
4. August 15, 2023 Development Review Committee Report and Desk Item
5. August 15, 2023 Development Review Committee Meeting Minutes
6. Applicant’s Letter of Justification, received June 2, 2023
7. Diagram of Existing and Proposed Parcel Configurations, received August 9, 2023
8. Appeal of Development Review Committee, received August 22, 2023
9. Applicant’s Response to Appeal, received October 16, 2023
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EXHIBIT 1
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PLANNING COMMISSION – October 25, 2023
REQUIRED DETERMINATIONS
17200 Los Robles Way
Lot Line Adjustment Application M-23-001
Consider an Appeal of a Development Review Committee Decision to Approve a Lot Line Adjustment Application in Accordance with California Government Code Section 66412(d) for Three Adjoining Lots on Property Zoned R-1:20. Located at 17200 Los Robles Way. APNs 532-36-075, -076, and -077. Lot Line Adjustment Application M23-001. Statutorily Exempt from CEQA as a Ministerial Approval in Accordance with Public Resources Code Section 21080(b)(1) (CEQA Statute) and CEQA Guidelines Section 15268. Application is Only for Ministerial Approval of a Lot Line Adjustment Pursuant to Section 66412(d) of the Subdivision Map Act. Property Owners: Daran Goodell, Trustee and Mark Von Kaenel. Applicant: Tony Jeans. Appellant: Alison Steer.
Project Planner: Ryan Safty.
REQUIRED DETERMINATIONS PURSUANT TO GOVERNMENT CODE SECTION 66412(d):
Required determination for CEQA:
▪ The application requires ministerial project approval pursuant to CEQA as the application is only for ministerial approval of a lot line adjustment pursuant to Section 66412(d) of the Subdivision Map Act (see below).
1. Application M-23-001 does not include any additional requests for other Town permits, approvals, or entitlements, whether discretionary or ministerial. Instead, the application involves only the proposed lot line adjustment of three existing and adjoining parcels identified as APN 532-36-075, -076, and -077, which, after adjustment, will result in three adjoining parcels with newly adjusted lot lines, which application will be reviewed and acted on by the Town pursuant to the California Subdivision Map Act, California Government Code section 66410 et seq. (“Map Act”).
2. Pursuant to California Public Resources Code section 21080(b)(1) (and corresponding California Code of Regulations), CEQA does not apply to, “Ministerial projects proposed to be carried out or approved by public agencies.” Likewise, Title 14. California Code of Regulations, Chapter 3, Guidelines for Implementation of the California Environmental Quality Act (“CEQA Guidelines”) Section 15268 provides that, “Ministerial projects are exempt from the requirements of CEQA.” CEQA Guidelines section 15268 further provides that when there is an absence of any discretionary provisions in the law establishing the requirements of the approval - in this case, the Map Act’s Government Code section 66412(d) mandates governing lot line adjustments approvals – the law shall be presumed to be ministerial. Additionally, CEQA Guidelines section 15369 defines “ministerial” as a public agency's decisions, “involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project.
EXHIBIT 2
The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision. A ministerial decision involves only the use of fixed standards or objective measurements, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out.”
In considering the application, Map Act section 66412(d) mandates that the Town – and its Development Review Committee – shall ensure that the proposed lot line adjustment is between four or fewer existing adjoining parcels, where the land taken from one such parcel is added to an adjoining such parcel, and where a greater number of parcels than originally existed is not thereby created. Map Act section 66412(d) further mandates that the Town – and its hearing bodies – limit its review and approval, “to a determination of whether or not the parcels resulting from the lot line adjustment will conform to the local general plan, any applicable specific plan, any applicable coastal plan, and zoning and building ordinances.”
3. In so limiting the Town’s review, Government Code Section 66412(d) describes a prototypical ministerial approval process, where the fixed approval standards delineate objective approval criteria that simply require the hearing body to make certain factual determinations regarding the number of parcels involved, whether they are adjoining, whether they are four or fewer in number, whether a greater number of parcels are created than were existing (after adjustment), and whether the resulting parcels conform to local law – e.g., general plan, specific plan, any coastal plan, and building and zoning code provisions – given the facts presented in the application. As such, as set forth in the entirety of the administrative record, there are no other Town permits, approvals, or entitlements, whether discretionary or ministerial, being requested; Application M-23-001 involves only the proposed lot line adjustment of the three adjoining existing parcels into the new parcel configuration of the three adjoining adjusted parcels pursuant to the lot line provisions of the Map Act; the Development Review Committee's (and subsequent hearing bodies on appeal) review of the application is limited to determining whether Application M-23-001 conforms with the requirements of the Map Act regarding lot line adjustments and applicable Town plans, ordinances, and regulations, and therefore the hearing body has no ability to exercise discretion to mitigate environmental impacts; and as such, the Town hearing body’s consideration of, and action on, Application M-23-001 is a ministerial project proposed to be carried out or approved by the Town, and therefore is exempt from the requirements of CEQA.
Required determinations for compliance with the Subdivision Map Act’s provisions regarding lot line adjustments as set forth in Government Code Section 66412(d):
▪ That Lot Line Adjustment Application M-23-001 is between four or fewer existing adjoining parcels, where the land taken from one parcel is added to an adjoining parcel, and where a greater number of parcels than originally existed is not thereby created; Approval of Application M-23-001 is in compliance with Government Code Section 66412(d) because the approval of the application will result in the three adjoining parcels having land taken from and added to said parcels resulting in three adjoining parcels, thereby involving a situation where a greater number of parcels than originally existed is not thereby created by approval of the application, and where no more than four existing parcels are the subject of the application. ▪ That the parcels resulting from Lot Line Adjustment Application M-23-001 will conform to the Town’s General Plan;
Approval of Application M-23-001 is in compliance with Government Code Section 66412(d) because the approval of the application will result in the three adjoining parcels being in conformance with the entirety of the Town of Los Gatos General Plan, including without limitation, the following General Plan provisions:
a. The General Plan designates the parcels as “Low Density Residential,” with an allowed density range of zero to five residential units per acre and provides for single-family residential properties. Adjusted Parcel 1 would be approximately 62,172 square feet in size, has an existing house developed on it, and therefore is consistent with the General Plan’s density range of zero to five residential units per acre and its allowance for single-family residential use. Any development of adjusted Parcels 2 and 3 (they are currently vacant) would be required to comply with all provisions of the General Plan. As discussed below, adjusted Parcels 2 and 3 are of a size consistent with the General Plan, as well as the Zoning mandated by the General Plan. There are several Zoning classifications (Zoning consistency is discussed in greater detail in later parts of this Report) that are consistent with the General Plan applicable to the parcels – each are Single-Family Residential zones, and each permits a single-family dwelling unit on each legal parcel. These Zones reflect the General Plan density range of zero to five residential units per acre: R-1:8 (8,000-square foot minimum parcel size - allowing a maximum of approximately five residential units per acre ); R-1:10 (10,000-square foot minimum – allowing a maximum of approximately four residential units per acre); R-1:12 (12,000-square foot minimum – allowing a maximum of approximately three residential units per acre); R-1:15 (15,000-square foot minimum – allowing a maximum of approximately two residential units per acre); R-1:20 (20,000-square foot minimum – allowing a maximum of approximately two residential units per acre); and R-1:30 (30,000- square foot minimum – allowing a maximum of approximately one residential unit per acre). The adjusted parcels in Application M-23-001 are zoned R-1:20 (20,000- square foot minimum – allowing a maximum of approximately two residential units
per acre), and each adjusted parcel is greater than 20,000 square feet, revealing consistency with the R-1:20 Zone, and in turn, therefore revealing the consistency of the adjusted parcels in the application with the density provisions of the General Plan. Again, one residential unit already exists on adjusted Parcel 1, and adjusted Parcels 2 and 3 are both greater than 20,000 square feet, allowing one future singlefamily residential dwelling unit on each parcel if pursued in the future (speculative at this point), equating to a potential future density consistent to that allowed by the General Plan.
b. General Plan Community Design Goal CD-2 states the following: “To limit the intensity of new development to a level that is consistent with surrounding development and with the Town at large.” The surrounding neighborhood (200 feet from the subject parcels) consists of Single-Family Residential Zoned properties consisting of R-1:8, R-1:10, and R-1:20 zoning classifications and all have a Low Density Residential General Plan designation. The neighboring parcels range in size from approximately 6,944 square feet to 40,510 square feet. The adjusted parcel sizes would be approximately: 62,172 square feet for adjusted Parcel 1; 27,073 square feet for adjusted Parcel 2; and 44,925 square feet for adjusted Parcel 3. As discussed, Parcel 1 is already developed with a home. Adjusted Parcels 2 and 3 are vacant. If in the future each vacant Adjusted Parcel were developed with one singlefamily residence, each such parcel would be consistent with the intensity of surrounding development.
▪ That the parcels resulting from Lot Line Adjustment Application M-23-001 will conform to any specific plans, including the Hillside Specific Plan; Approval of Application M-23-001 is in compliance with Government Code Section 66412(d) because the approval will result in the three adjoining parcels being in conformance with the entirety of the Town’s Hillside Specific Plan, including without limitation, the following Hillside Specific Plan provisions:
a. The Town’s Hillside Specific Plan contains density provisions for certain “Sub-Areas”; however, the subject parcels in Application M-23-001 are not located within any of the Sub-Areas. Density for properties outside of the Sub-Areas are set in the General Plan (discussed above) and further regulated by the Zoning Ordinance (discussed below). All other goals, policies, and provisions of the Town’s Hillside Specific Plan relate to construction and subdivision applications, which are not present with the current application. No construction is proposed with this application. Any future construction would be required to comply with the Town’s Hillside Specific Plan.
▪ That the parcels resulting from Lot Line Adjustment Application M-23-001 will conform to any applicable coastal plan; and
Approval of Application M-23-001 is in compliance with Government Code Section 66412(d) because the Town has no applicable coastal plan for the application (and adjusted parcels) to be in conformance with.
▪ That the parcels resulting from Lot Line Adjustment Application M-23-001 will conform to the Town’s Zoning Code and Building Ordinance.
Approval of Application M-23-001 is in compliance with Government Code Section 66412(d) because the approval of the application will result in the three adjoining parcels being in conformance with the entirety of the Town’s Zoning and Building Ordinances, including without limitation, the following provisions:
a. The Town’s Zoning Ordinance Section 29.40.395 establishes a minimum lot size of 20,000 square feet for properties zoned R-1:20. The adjusted parcels in Application M-23-001 would comply with minimum lot size requirement as follows: Parcel 1 would have a lot size of approximately 62,172 square feet; Parcel 2 would have a lot size of approximately 27,073 square feet; and Parcel 3 would have a lot size of approximately 44,925 square feet. See tables below for more details on the existing parcel configuration and adjusted parcel configuration in relation to Zoning Code compliance for minimum lot size.
b. The Town’s Zoning Ordinance Section 29.40.400 establishes a minimum street frontage of 100 feet for properties zoned R-1:20, and 30 feet for R-1:20 properties fronting on a cul-de-sac bulb. Town Code Section 29.40.400 does not mandate that the cul-de-sac street frontage be along a paved roadway. Instead, Section 29.10.020 of the Town Code defines lot frontage as, “the property line of a lot abutting on a street, which affords access to a lot other than the side line of a corner lot. On a corner lot either property line on a street may be determined to be the frontage.” Town Code Section 29.10.020 then defines a street as, “any thoroughfare for the motor vehicle travel which affords the principal means of access to abutting property, including public and private rights-of-way and easements.” Therefore, street frontage would need, at a minimum, frontage on a right-of-way or easement to comply with Town Code. The applicant has suggested a future cul-de-sac at the terminus of Worcester Lane for Parcels 2 and 3. To accomplish this, the applicant is proposing a dedication of land as an easement for cul-de-sac right-of-way purposes, which is included as Condition of Approval #2 (Exhibit 3) and noted in Exhibits 6 and
7. Once this condition of approval is complied with and the Town accepts dedication of this area for the future cul-de-sac at the terminus of Worcester Lane, the adjusted parcels in the Application M-23-001 comply with minimum street frontage as follows: Parcel 1 would have approximately 242 feet of frontage on the Los Robles Way right-of-way where 100 feet is required; Parcel 2 would have approximately 40 feet of frontage on a cul-de-sac bulb easement at the terminus of Worcester Lane where 30 feet is required; and Parcel 3 would have approximately 60 feet of frontage on a cul-de-sac bulb easement at the terminus of Worcester Lane where 30 feet is required. See tables below for more details on existing parcel configuration and adjusted parcel configuration in relation to Zoning Code compliance for minimum street frontage.
c. The Town’s Zoning Ordinance Section 29.40.400 establishes a minimum lot depth of 140 feet for properties zoned R-1:20. The adjusted parcels in Application M-23-001 would comply with the minimum lot depth requirement as follows: Parcel 1 would have a lot depth of approximately 323 feet; Parcel 2 would have a lot depth of approximately 194 feet; and Parcel 3 would have a lot depth of approximately 258 feet. See tables below for more details on existing parcel configuration and adjusted parcel configuration in relation to Zoning Code compliance for minimum lot depth. d. The Town’s Zoning Ordinance Section 29.40.400(1) establishes a minimum lot width of 60 feet for R-1:20 parcels fronting on a cul-de-sac bulb. Adjusted Parcels 2 and 3 in Application M-23-001 would have frontage on a cul-de-sac bulb and comply with the minimum lot width requirement as follows: Parcel 2 would have a lot width of approximately 155 feet; and Parcel 3 would have a lot width of approximately 217 feet. See tables below for more details on existing parcel configuration and adjusted parcel configuration in relation to Zoning Code compliance for minimum lot width for properties fronting on a cul-de-sac bulb.
e. The Town’s Zoning Ordinance Section 29.40.405(a) establishes minimum setback standards for R-1:20 properties of 30 feet in the front yard, 15 feet in the side yard, and 25 feet in the rear yard. There is one existing residence that is proposed to remain on Parcel 1. The residence on adjusted Parcel 1 within Application M-23-001 would have a front setback of approximately zero feet, side setbacks of approximately 43 feet and 90 feet, and a rear setback of approximately 200 feet.
The zero-foot front setback is an existing, legal, non-conforming configuration that is allowed to continue by current Town law and would not change with the application. The front setback on Parcel 1 is legal, non-conforming because the Town Code “grandfathers” such structures. According to the Santa Clara County Assessor’s Office, the residence on Parcel 1 was built in 1938, at which time the property was not annexed into the Town as the Town’s 1943 Zoning Map (five years after the construction date) does not include these properties. Because the 1943 Zoning Map does not show the property, Town staff has concluded that it was annexed sometime after 1943, and thus after the construction date of 1938. Town Code Section 29.10.020 defines a nonconforming building as, “a building which was lawfully erected but under the terms of this chapter is too close to a property line, too close to a street, too high, covers too much of lot or is of a wrong type.” Pursuant to Town Code Section 29.10.180(a), one of the ways a building or use becomes nonconforming is because of annexation of territory to the Town. Because the existing residence on Parcel 1 is considered “nonconforming” pursuant to Town Code Section 29.10.180(a) as the residential building was lawfully erected and become nonconforming after annexation, the residence is not considered “unlawful” or a “nuisance” pursuant to Town Code Section 29.10.185 and can therefore remain.
Although no modifications are proposed to the existing nonconforming residential building, Town Code Section 29.10.245(e)(1) would allow expansion or reconstruction of an existing nonconforming building that is too close to the property line as long as it does not become nearer to a property line than the existing building is to that property line. Pursuant to Town Code Sections 29.10.020,
29.10.180(a), 29.10.185, and 29.10.245(e)(1), although the residential building on Parcel 1 is determined to be non-conforming, it is nonetheless allowed under the current Town Code because such non-conformity is not proposed to worsen: the front setback of existing Parcel 1 and the front setback of adjusted Parcel 1 will be identical. See tables below for more details on existing parcels configuration and adjusted parcels configuration in relation to Zoning Code compliance for minimum building setbacks.
f. The Town’s Zoning Ordinance Section 29.40.075 and Chapter IV of the Town’s Hillside Development Standards and Guidelines establish maximum allowed floor area for residential zones with average parcel slopes greater than 10 percent. Floor area requirements can only be analyzed for Parcel 1 in Application M-23-001, as Parcel 1 is the only parcel that would contain existing built floor area. The maximum allowed floor area for Parcel 1 in the adjusted parcel configuration would be 6,000 square feet. The existing 2,715-square foot residence on Parcel 1 would comply with the maximum allowed floor area of the adjusted parcel configuration because it is less than 6,000 square feet. While development is not proposed on Parcels 2 and 3, they would allow an average sized residence in relation to the surrounding neighborhood as shown in the table below. See tables below for more details on existing parcel configuration and adjusted parcel configuration in relation to Zoning Code compliance for maximum allowed floor area.
In summary, the adjusted parcels within Application M-23-001 are in conformance with applicable provisions of the Town’s Zoning Ordinance because the Adjusted Parcels each comply with minimum lot size, minimum street frontage, minimum lot depth, minimum lot width for parcels fronting on a cul-de-sac bulb, minimum setback standards, and maximum allowed floor area ratio standards.
Approval of Application M-23-001 is in compliance with Government Code Section 66412(d) because the Town’s Building Ordinance would be complied with as the application does not propose any construction or grading activities. The Town’s Building Ordinance in Chapter 6 of the Town Code was adopted to administer the California Building Code, including local amendments. “The California Building Code (CBC) contains general building design and construction requirements relating to fire and life safety, structural safety, and access compliance. CBC provisions provide minimum standards to safeguard life or limb, health, property and public welfare by regulating and controlling the design, construction, quality of materials, use and occupancy, location and maintenance of all building and structures and certain equipment.” The existing residential structure on adjusted Parcel 1 meets the Town’s Building Ordinance and Building Code provisions relating to existing structures that were built to then-applicable Building Code requirements. Any future proposed modifications to that existing structure would be required to meet the then-current Town’s Building Ordinance and Building Code provisions. No construction currently exists on or is proposed for adjusted Parcel 2 or adjusted Parcel 3. Any future proposal for residential construction on any of the adjusted parcels would be required to meet the then-current Town’s Building Ordinance and Building Code requirements. Therefore, Application M-23-001 is in conformance with the Town’s Building Ordinance and Building Code requirements.
S:\PLANNING COMMISSION REPORTS\2023\10-25-2023\17200 Los Robles Way - DRC Appeal\Exhibit 2 - Required Determinations pursuant to Government Code 66412(d).docx
PLANNING COMMISSION – October 25, 2023
DRAFT CONDITIONS OF APPROVAL
17200 Los Robles Way
Lot Line Adjustment Application M-23-001
Consider an Appeal of a Development Review Committee Decision to Approve a Lot Line Adjustment Application in Accordance with California Government Code Section 66412(d) for Three Adjoining Lots on Property Zoned R-1:20. Located at 17200 Los Robles Way. APNs 532-36-075, -076, and -077. Lot Line Adjustment Application M-23- 001. Statutorily Exempt from CEQA as a Ministerial Approval in Accordance with Public Resources Code Section 21080(b)(1) (CEQA Statute) and CEQA Guidelines Section 15268.
Application is Only for Ministerial Approval of a Lot Line Adjustment Pursuant to Section 66412(d) of the Subdivision Map Act. Property Owners: Daran Goodell, Trustee and Mark Von Kaenel. Applicant: Tony Jeans.
Appellant: Alison Steer. Project Planner: Ryan Safty.
Planning Division and Engineering Division
TO THE SATISFACTION OF THE DIRECTOR OF COMMUNITY DEVELOPMENT AND/OR THE DIRECTOR OF PARKS AND PUBLIC WORKS, AS RELEVANT:
1. APPROVAL: The New Lot Line Adjustment Application (M-23-001) has been approved (“Approval”) on this August 15th, 2023, date (“Approval Date”), subject to and including these “Conditions of Approval” (listed herein). Any reference to the Approval shall mean and include these Conditions of Approval, and all related application materials, environmental determinations, and other Town determinations and findings relating to New Lot Line Adjustment Application (M-23-001). Any proposed revisions or modifications to the Approval shall be applied to the Community Development Department by the relevant property owners and reviewed by the Town pursuant to Section 29.20.305 of the Town Code. Any and all time periods for applicant action under these Conditions of Approval shall be tolled during the pendency of any appeal of the Approval.
2. CUL-DE-SAC DEDICATIONS: To ensure the consistency of the Approval of the New Lot Line Adjustment Application (M-23-001) with the Zoning Ordinance of the Town Code, within ninety (90) days of the Approval Date, the property owners (individually, “Property Owner,” collectively, “Property Owners”) of Adjusted Parcels 2 and 3 shall make irrevocable offers of dedication of easement to the Town of the “Cul-De-Sac Area” for right-of-way purposes (as that Cul-De-Sac Area is specifically delineated in the New Lot Line Adjustment Application (M-23-001) materials), and to the satisfaction of the Town Engineer, to ensure compliance with the minimum Town street frontage standards for cul-de-sacs. Within thirty (30) days of such Property Owners dedication, the Town Engineer shall accept such dedication(s) on behalf of the Town. Should the Approval be placed before the Town Council for consideration and action on appeal, the Town Council shall determine whether or not to confirm such acceptance of such dedication in addition to considering the merits of the appeal. Failure of the Town Council to confirm acceptance of such Cul De Sac Area dedications, and/or approval of such appeal by the Town Council, shall void the Approval.
EXHIBIT 3
3. PROOF OF RECORDATION: Assuming Condition #2 herein has been satisfied, proof of the recordation of grant deeds reflecting the configuration of parcels permitted by the Approval shall be provided to the Town within six (6) months of the Approval Date.
4. ENGINEERING FEES: Engineering fees associated with this New Lot Line Adjustment Application (M-23-001) Approval (see item 270 in the Town’s Comprehensive Fee Schedule) shall be deposited with the Engineering Division of the Parks and Public Works Department prior to any recordation required by these Conditions of Approval.
5. NOTICE OF ARCHITECTURE & SITE APPROVAL: Notice is hereby given to the Property Owners that any proposed disruption, development, or other related construction on, adjacent to, or related to the Adjusted Parcels shall require environmental review to determine appropriate CEQA compliance, review for General Plan, Specific Plan, Zoning, and Building Ordinance compliance, and an Architectural & Site Application approval with the Community Development Department of the Town, with related findings, considerations, and conditions of approval in compliance with applicable Town Code.
6. TOWN INDEMNITY: Pursuant to Town Code Section 1.10.115, and the police power of the Town to craft appropriate Conditions of Approval, the property owners securing the Original Lot Line Adjustment Application (M-20-012) and this New Lot Line Adjustment Application (M-23-001) Approval and their successors (collectively, “Property Owners”) shall indemnify and hold harmless the Town for any challenge to the Approval and/or to the Original Lot Line Adjustment Application (M-20-012), whether administrative appeal, judicial review, and/or otherwise (collectively, “Challenge”), including without limitation and subject to the following:
a. Generally: Regarding any such Challenge, Property Owners shall defend, indemnify, and hold harmless the Town (any reference to “Town” shall mean and include without limitation Town’s elected officials, appointed officials, legal counsel, agents, officers, employees, contractors, and special legal counsel) (with legal counsel approved by Town), from and against any Challenge.
b. Property Owners (any reference to Property Owners shall mean and include without limitation Property Owners’ successors, legal counsel, consultants, and contractors) shall bear any and all losses, damages, injuries, liabilities, costs and expenses (including, without limitation, staff time and in-house attorney’s fees on a fully-loaded basis, attorney’s fees for outside legal counsel, expert witness fees, court costs, and other litigation expenses) arising out of or related to any Challenge (“Costs”), whether incurred by the Property Owners, Town, or awarded to any third party, and shall pay to the Town upon demand any Costs incurred by the Town.
c. The total of all obligations owing by the Property Owners under this Condition of Approval #6 is collectively referred to as the “Challenge Indemnity.” No modification of the Approval and/or the Original Lot Line Adjustment Application (M-20-012), nor any application, permit certification, condition, environmental determination, other approval, change in applicable laws and regulations, or change in processing methods shall alter the Property Owners obligations pursuant to this Condition of Approval # 6.
The Town shall promptly notify the Property Owners of any such Challenge, and the Town shall cooperate with the Property Owners as Property Owners fulfil their obligations pursuant to this Condition of Approval # 6.
PREPARED BY: RYAN SAFTY
Associate Planner
Reviewed by: Town Attorney, Community Development Director, and Planning Manager 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6872 www.losgatosca.gov
TOWN OF LOS GATOS
REPORT TO THE DEVELOPMENT
REVIEW COMMITTEE
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DATE: August 11, 2023
TO: Development Review Committee
FROM: Joel Paulson, Community Development Director
SUBJECT: Requesting Approval of a Lot Line Adjustment Application in Accordance with California Government Code Section 66412(d) for Three Adjoining Lots on Property Zoned R-1:20. Located at 17200 Los Robles Way. APNs 532-36-075, -076, and -077. Lot Line Adjustment Application M-23-001. Ministerial Project Approval Under CEQA. Application is Only for Ministerial Approval of Lot Line Adjustment Pursuant to Section 66412(d) of the Subdivision Map Act.
PROPERTY OWNERS: Daran Goodsell, Trustee and Mark Von Kaenel.
APPLICANT: Tony Jeans.
SUMMARY:
The “Original Lot Line Adjustment Application” was approved by the Town and challenged in court. The “New Lot Line Adjustment Application” seeks to cure the absence of certain factual information and the presence of certain procedural flaws in the Town’s original approval, discussed below. The New Lot Line Adjustment Application is being processed through the Development Review Committee as a new application. The Original Lot Line Adjustment Application (M-20-012) will be superseded if the Town approves the New Lot Line Adjustment Application (M-23-001).
This Staff Report to the Development Review Committee summarizes the factual aspects of the New Lot Line Adjustment Application, presents the relevant considerations regarding the New Lot Line Adjustment Application pursuant to the California Environmental Quality Act (CEQA), and sets forth determinations for the Development Review Committee to consider relating to the Subdivision Map Act’s requirements regarding lot line adjustments, as set forth in Government Code Section 66412(d). Pursuant to Government Code Section 66412(d), in order for the Town to approve the New Lot Line Adjustment Application, the Town must make the following determinations:
EXHIBIT 4 Page 1913
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SUMMARY (continued):
1. That the lot line adjustment is between four or fewer existing adjoining parcels, where the land taken from one parcel is added to an adjoining parcel, and where a greater number of parcels than originally existed is not thereby created;
2. That the parcels resulting from the lot line adjustment will conform to the local general plan;
3. That the parcels resulting from the lot line adjustment will conform to any applicable specific plan;
4. That the parcels resulting from the lot line adjustment will conform to any applicable coastal plan; and
5. That the parcels resulting from the lot line adjustment will conform to zoning and building ordinances.
BACKGROUND:
The subject parcels are located at the terminus of Los Robles Way and Worcester Lane (Exhibit 1). Both the Original Lot Line Adjustment Application and the New Lot Line Adjustment Application propose to take three adjacent parcels and reconfigure their lot lines. The existing lot configuration has several non-conformities, all of which would be remedied with the New Lot Line Adjustment Application; a legal, non-conforming front setback on Parcel 1 is allowed under current Town Code, as discussed below and in the applicant’s Letter of Justification (Exhibit 3). There is an existing residence on Parcel 1 (APN 532-36-076) that would remain, and the other two parcels are vacant. No new construction is proposed.
On November 11, 2020, the applicant submitted the Original Lot Line Adjustment Application for the three parcels (M-20-012). After the initial review, the applicant was informed that they must verify the legality of Parcel 2 (APN 532-36-077) and Parcel 3 (APN 532-36-075).
On February 23, 2021, the applicant submitted Certificate of Compliance applications to verify the legality of Parcels 2 and 3. The Town’s Consulting Surveyor reviewed the applications and determined that the parcels were legally created per California Subdivision Map Act 66499.35(a).
On May 25, 2021, the Development Review Committee approved the Certificate of Compliance applications. The Development Review Committee’s approval of the Certificate of Compliance applications was not appealed. Following verification of the legality of Parcels 2 and 3, the applicant continued with the Original Lot Line Adjustment Application.
On July 13, 2021, the Development Review Committee approved the Original Lot Line Adjustment Application. On July 22, 2021, the decision of the Development Review Committee was appealed to the Planning Commission by adjacent neighbors.
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BACKGROUND (continued):
On September 8, 2021, the Planning Commission denied the appeal and approved the Original Lot Line Adjustment Application. On September 20, 2021, the decision of the Planning Commission was appealed to the Town Council.
On November 2, 2021, the Town Council considered the appeal, considered the substantial evidence in the record, including public testimony, and discussed the Original Lot Line Adjustment Application. Following that discussion, the Town Council continued the matter to the December 7, 2021, Town Council meeting, with direction for the applicant to include, among other things, information on compliance with the General Plan, Specific Plans, Zoning Ordinance, and Building Code.
On December 7, 2021, the Town Council made a motion to uphold the decision of the Planning Commission and adopted a resolution denying the appeal and approving the Original Lot Line Adjustment Application M-20-012 with findings and conditions of approval.
On March 1, 2022, a resident challenged the Town’s approval of the Original Lot Line Adjustment Application by seeking a writ of administrative mandate to overturn the Town’s approval.
In the course of the litigation, it became apparent that the Town had relied on the Subdivision Map Act’s requirements regarding the approval of a tentative map instead of the Subdivision Map Act’s requirements regarding a lot line adjustment (Government Code Section 66412(d)).
At the same time, the applicant for the Original Lot Line Adjustment Application submitted a new application (i.e., the New Lot Line Adjustment Application M-23-001) for review in accordance with Government Code section 66412(d) (Exhibits 3 and 4).
In light of all of this, the Town requested a stay from the court to allow the Town to process the New Lot Line Adjustment Application in accordance with the Subdivision Map Act’s requirements regarding lot line adjustments set forth in Government Code Section 66412(d).
The stay was granted.
Therefore, the Development Review Committee is now processing and acting on the New Lot Line Adjustment Application M-23-001 in accordance with the Subdivision Map Act’s requirements regarding lot line adjustments as set forth in Government Code Section 66412(d).
PROJECT DATA:
General Plan Designation: Low Density Residential
Zoning Designation: R-1:20
Applicable Plans & Standards: General Plan, Zoning Ordinance, Hillside Specific Plan
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PROJECT DATA (continued):
Surrounding Area:
DEVELOPMENT REVIEW COMMITTEE DETERMINATIONS:
CEQA DETERMINATIONS
Staff presents the following relevant aspects of the New Lot Line Adjustment Application M-23- 001 and its compliance with CEQA for Development Review Committee consideration:
1. The New Lot Line Adjustment Application M-23-001 does not include any additional requests for other Town permits, approvals, or entitlements, whether discretionary or ministerial. Instead, the New Lot Line Adjustment Application involves only the proposed lot line adjustment of three existing and adjoining parcels identified as APN 532-36-075, -076, and -077 (collectively, the “Existing Parcels”), which, after adjustment, will result in three adjoining parcels with newly adjusted lot lines (collectively, the “Adjusted Parcels”), which New Lot Line Adjustment Application will be reviewed and acted on by the Town pursuant to the California Subdivision Map Act, California Government Code section 66410 et seq. (“Map Act”).
2. Pursuant to California Public Resources Code section 21080(b)(1) (and corresponding California Code of Regulations), CEQA does not apply to, “Ministerial projects proposed to be carried out or approved by public agencies.” Likewise, Title 14. California Code of Regulations, Chapter 3, Guidelines for Implementation of the California Environmental Quality Act (“CEQA Guidelines”) Section 15268 provides that, “Ministerial projects are exempt from the requirements of CEQA.” CEQA Guidelines section 15268 further provides that when there is an absence of any discretionary provisions in the law establishing the requirements of the approval - in this case, the Map Act’s Government Code section 66412(d) mandates governing lot line adjustments approvals – the law shall be presumed to be ministerial. Additionally, CEQA Guidelines section 15369 defines “ministerial” as a public agency's decisions, “involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project.
Existing Land Use General Plan Zoning
North Residential Low Density Residential R-1:8
South Residential, Open Space Low Density Residential, Open Space R-1:10 East Residential Low Density Residential R-1:8, R-1:10
West Residential Low Density Residential R-1:8, R-1:20
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DEVELOPMENT REVIEW COMMITTEE DETERMINATIONS (continued):
The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision. A ministerial decision involves only the use of fixed standards or objective measurements, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out.”
In considering the New Lot Line Adjustment Application, Map Act section 66412(d) mandates that the Town – and its Development Review Committee – shall ensure that the proposed lot line adjustment is between four or fewer existing adjoining parcels, where the land taken from one such parcel is added to an adjoining such parcel, and where a greater number of parcels than originally existed is not thereby created. Map Act section 66412(d) further mandates that the Town – and its Development Review Committee – limit its review and approval, “to a determination of whether or not the parcels resulting from the lot line adjustment will conform to the local general plan, any applicable specific plan, any applicable coastal plan, and zoning and building ordinances.”
3. In so limiting the Town’s review, Government Code Section 66412(d) describes a prototypical ministerial approval process, where the fixed approval standards delineate objective approval criteria that simply require the Development Review Committee to make certain factual determinations regarding the number of parcels involved, whether they are adjoining, whether they are four or fewer in number, whether a greater number of parcels are created than were existing (after adjustment), and whether the resulting parcels conform to local law – e.g., general plan, specific plan, any coastal plan, and building and zoning code provisions—given the facts presented in the New Lot Line Adjustment Application. As such, as set forth in the entirety of the administrative record, there are no other Town permits, approvals, or entitlements, whether discretionary or ministerial, being requested; the New Lot Line Adjustment Application M-23-001 involves only the proposed lot line adjustment of the three adjoining Existing Parcels into the new parcel configuration of the three adjoining Adjusted Parcels pursuant to the lot line provisions of the Map Act; the Development Review Committee's review of the New Lot Line Adjustment Application is limited to determining whether the New Lot Line Adjustment Application conforms with the requirements of the Map Act regarding lot line adjustments and applicable Town plans, ordinances, and regulations, and therefore the Development Review Committee has no ability to exercise discretion to mitigate environmental impacts; and as such, the Town and its Development Review Committee consideration of, and action on, the New Lot Line Adjustment Application is a ministerial project proposed to be carried out or approved by the Town, and therefore is exempt from the requirements of CEQA.
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DEVELOPMENT REVIEW COMMITTEE DETERMINATIONS (continued):
GOVERNMENT CODE SECTION 66412(d) DETERMINATIONS:
Staff presents the following relevant aspects of the New Lot Line Adjustment Application M-23- 001 and its compliance with the Subdivision Map Act’s provisions regarding lot line adjustments as set forth in Government Code Section 66412(d) for Development Review Committee consideration:
1. That the New Lot Line Adjustment Application M-23-001 is between four or fewer existing adjoining parcels, where the land taken from one parcel is added to an adjoining parcel, and where a greater number of parcels than originally existed is not thereby created; Approval of the New Lot Line Adjustment Application M-23-001 is in compliance with Government Code Section 66412(d) because the approval of the New Lot Line Adjustment Application will result in the three adjoining Existing Parcels having land taken from and added to said Existing Parcels resulting in three adjoining Adjusted Parcels, thereby involving a situation where a greater number of parcels than originally existed is not thereby created by approval of the New Lot Line Adjustment Application, and where no more than four existing parcels are the subject of the New Lot Line Adjustment Application.
2. That the parcels resulting from the New Lot Line Adjustment Application M-23-001 will conform to the local general plan;
Approval of the New Lot Line Adjustment Application M-23-001 is in compliance with Government Code Section 66412(d) because the approval of the New Lot Line Adjustment Application will result in the three adjoining Adjusted Parcels being in conformance with the entirety of the Town of Los Gatos General Plan, including without limitation, the following General Plan provisions:
a. The General Plan designates the Existing Parcels and Adjusted Parcels as “Low Density Residential,” with an allowed density range of zero to five residential units per acre and provides for single-family residential properties. Adjusted Parcel 1 would be approximately 62,172 square feet in size, has an existing house developed on it, and therefore is consistent with the General Plan’s density range of zero to five residential units per acre and its allowance for single-family residential use. Any development of Adjusted Parcels 2 and 3 (they are currently vacant) would be required to comply with all provisions of the General Plan. As discussed below, Adjusted Parcels 2 and 3 are of a size consistent with the General Plan, as well as the Zoning mandated by the General Plan. There are several Zoning classifications (Zoning consistency is discussed in greater detail in later parts of this Report) that are consistent with the General Plan applicable to the Existing Parcels and Adjusted Parcels – each are Single-Family Residential zones and each permits a single-family dwelling unit on each legal parcel. These Zones reflect
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DEVELOPMENT REVIEW COMMITTEE DETERMINATIONS (continued):
the General Plan density range of zero to five residential units per acre: R-1:8 (8,000- square foot minimum parcel size - allowing a maximum of approximately five residential units per acre ); R-1:10 (10,000-square foot minimum - allowing a maximum of approximately four residential units per acre); R-1:12 (12,000-square foot minimum - allowing a maximum of approximately three residential units per acre); R-1:15 (15,000- square foot minimum – allowing a maximum of approximately two residential units per acre); R-1:20 (20,000-square foot minimum – allowing a maximum of approximately two residential units per acre); and R-1:30 (30,000-square foot minimum – allowing a maximum of approximately one residential unit per acre). The Adjusted Parcels in the New Lot Line Adjustment Application are zoned R-1:20 (20,000-square foot minimum - allowing a maximum of approximately two residential units per acre), and each Adjusted Parcel is greater than 20,000 square feet, revealing consistency with the R-1:20 Zone, and in turn, therefore revealing the consistency of the Adjusted Parcels in the New Lot Line Adjustment Application with the density provisions of the General Plan. Again, one residential unit already exists on Adjusted Parcel 1, and Adjusted Parcels 2 and 3 are both greater than 20,000 square feet, allowing one future single-family residential dwelling unit on each parcel if pursued in the future (speculative at this point), equating to a potential future density consistent to that allowed by the General Plan. b. General Plan Community Design Goal CD-2 states the following: “To limit the intensity of new development to a level that is consistent with surrounding development and with the Town at large.” The surrounding neighborhood (200 feet from the subject parcels) consists of Single-Family Residential Zoned properties consisting of R-1:8, R-1:10, and R1:20 zoning classifications and all have a Low Density Residential General Plan designation. The neighboring parcels range in size from approximately 6,944 square feet to 40,510 square feet. The Adjusted Parcel sizes would be approximately: 62,172 square feet for Adjusted Parcel 1; 27,073 square feet for Adjusted Parcel 2; and 44,925 square feet for Adjusted Parcel 3. As discussed, Parcel 1 is already developed with a home. Adjusted Parcels 2 and 3 are vacant. If in the future each vacant Adjusted Parcel were developed with one single-family residence, each such Adjusted Parcel would be consistent with the intensity of surrounding development.
3. That the parcels resulting from the New Lot Line Adjustment Application M-23-001 will conform to any applicable specific plans;
Approval of the New Lot Line Adjustment Application M-23-001 is in compliance with Government Code Section 66412(d) because the approval of the New Lot Line Adjustment Application will result in the three adjoining Adjusted Parcels being in conformance with the entirety of the Town’s Hillside Specific Plan, including without limitation, the following Hillside Specific Plan provisions:
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DEVELOPMENT REVIEW COMMITTEE DETERMINATIONS (continued):
a. The Town’s Hillside Specific Plan contains density provisions for certain “Sub-Areas”; however, the subject parcels in the New Lot Line Adjustment Application are not located within any of the Sub-Areas. Density for properties outside of the Sub-Areas are set in the General Plan (discussed above) and further regulated by the Zoning Ordinance (discussed below). All other goals, policies, and provisions of the Town’s Hillside Specific Plan relate to construction and subdivision applications, which are not present with the current New Lot Line Adjustment Application. No construction is proposed with this New Lot Line Adjustment Application. Any future construction would be required to comply with the Town’s Hillside Specific Plan.
4. That the parcels resulting from the New Lot Line Adjustment Application M-23-001 will conform to any applicable coastal plan;
Approval of the New Lot Line Adjustment Application M-23-001 is in compliance with Government Code Section 66412(d) because the Town has no applicable coastal plan for the New Lot Line Adjustment Application (and Adjusted Parcels) to be in conformance with.
5. That the parcels resulting from the New Lot Line Adjustment M-23-001 will conform to zoning and building ordinances;
Approval of the New Lot Line Adjustment Application M-23-001 is in compliance with Government Code Section 66412(d) because the approval of the New Lot Line Adjustment Application will result in the three adjoining Adjusted Parcels being in conformance with the entirety of the Town’s Zoning and Building Ordinances, including without limitation, the following provisions:
a. The Town’s Zoning Ordinance Section 29.40.395 establishes a minimum lot size of 20,000 square feet for properties zoned R-1:20. The Adjusted Parcels in the New Lot Line Adjustment Application would comply with minimum lot size requirement as follows: Parcel 1 would have a lot size of approximately 62,172 square feet; Parcel 2 would have a lot size of approximately 27,073 square feet; and Parcel 3 would have a lot size of approximately 44,925 square feet. See tables below for more details on Existing Parcel configuration and Adjusted Parcel configuration in relation to Zoning Code compliance for minimum lot size.
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DEVELOPMENT REVIEW COMMITTEE DETERMINATIONS (continued):
b. The Town’s Zoning Ordinance Section 29.40.400 establishes a minimum street frontage of 100 feet for properties zoned R-1:20, and 30 feet for R-1:20 properties fronting on a cul-de-sac bulb. Town Code Section 29.40.400 does not mandate that the cul-de-sac street frontage be along a paved roadway. Instead, Section 29.10.020 of the Town Code defines lot frontage as, “the property line of a lot abutting on a street, which affords access to a lot other than the side line of a corner lot. On a corner lot either property line on a street may be determined to be the frontage.” Town Code Section 29.10.020 then defines a street as, “any thoroughfare for the motor vehicle travel which affords the principal means of access to abutting property, including public and private rightsof-way and easements.” Therefore, street frontage would need, at a minimum, frontage on a right-of-way or easement to comply with Town Code. The applicant has suggested a future cul-de-sac at the terminus of Worcester Lane for Parcels 2 and 3. To accomplish this, the applicant is proposing a dedication of land as an easement for culde-sac right-of-way purposes, which is included as Condition of Approval #2 (Exhibit 2) and noted in Exhibit 4. Once this condition of approval is complied with and the Town accepts dedication of this area for the future cul-de-sac at the terminus of Worcester Lane, the Adjusted Parcels in the New Lot Line Adjustment Application comply with minimum street frontage as follows: Parcel 1 would have approximately 242 feet of frontage on the Los Robles Way right-of-way where 100 feet is required; Parcel 2 would have approximately 40 feet of frontage on a cul-de-sac bulb easement at the terminus of Worcester Lane where 30 feet is required; and Parcel 3 would have approximately 60 feet of frontage on a cul-de-sac bulb easement at the terminus of Worcester Lane where 30 feet is required. See tables below for more details on Existing Parcel configuration and Adjusted Parcel configuration in relation to Zoning Code compliance for minimum street frontage.
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DEVELOPMENT REVIEW COMMITTEE DETERMINATIONS (continued):
c. The Town’s Zoning Ordinance Section 29.40.400 establishes a minimum lot depth of 140 feet for properties zoned R-1:20. The Adjusted Parcels in the New Lot Line Adjustment Application would comply with the minimum lot depth requirement as follows: Parcel 1 would have a lot depth of approximately 323 feet; Parcel 2 would have a lot depth of approximately 194 feet; and Parcel 3 would have a lot depth of approximately 258 feet.
See tables below for more details on Existing Parcel configuration and Adjusted Parcel configuration in relation to Zoning Code compliance for minimum lot depth. d. The Town’s Zoning Ordinance Section 29.40.400(1) establishes a minimum lot width of 60 feet for R-1:20 parcels fronting on a cul-de-sac bulb. Adjusted Parcels 2 and 3 in the New Lot Line Adjustment Application would have frontage on a cul-de-sac bulb and comply with the minimum lot width requirement as follows: Parcel 2 would have a lot width of approximately 155 feet; and Parcel 3 would have a lot width of approximately 217 feet. See tables below for more details on Existing Parcel configuration and Adjusted Parcel configuration in relation to Zoning Code compliance for minimum lot width for properties fronting on a cul-de-sac bulb.
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DEVELOPMENT REVIEW COMMITTEE DETERMINATIONS (continued):
e. The Town’s Zoning Ordinance Section 29.40.405(a) establishes minimum setback standards for R-1:20 properties of 30 feet in the front yard, 15 feet in the side yard, and 25 feet in the rear yard. There is one existing residence located in the Existing Parcels that is proposed to remain on the Adjusted Parcels on Parcel 1. The residence on Adjusted Parcel 1 within the New Lot Line Adjustment Application would have a front setback of approximately zero feet, side setbacks of approximately 43 feet and 90 feet, and a rear setback of approximately 200 feet. The zero-foot front setback is an existing, legal, non-conforming configuration that is allowed to continue by current Town law and would not change with the Adjusted Parcels New Lot Line Adjustment Application.
The front setback on Parcel 1 is legal, non-conforming because the Town Code “grandfathers” such structures. According to the Santa Clara County Assessor’s Office, the residence on Parcel 1 was built in 1938, at which time the property was not annexed into the Town as the Town’s 1943 Zoning Map (five years after the construction date) does not include these properties. Because the 1943 Zoning Map does not show the property, Town staff has concluded that it was annexed sometime after 1943, and thus after the construction date of 1938. Town Code Section 29.10.020 defines a nonconforming building as, “a building which was lawfully erected but under the terms of this chapter is too close to a property line, too close to a street, too high, covers too much of lot or is of a wrong type.” Pursuant to Town Code Section 29.10.180(a), one of the ways a building or use becomes nonconforming is because of annexation of territory to the Town. Because the existing residence on Parcel 1 is considered “nonconforming” pursuant to Town Code Section 29.10.180(a) as the residential building was lawfully erected and become nonconforming after annexation, the residence is not considered “unlawful” or a “nuisance” pursuant to Town Code Section 29.10.185 and can therefore remain. Although no modifications are proposed to the existing nonconforming residential building, Town Code Section 29.10.245(e)(1) would allow expansion or reconstruction of an existing nonconforming building that is too close to the property
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DEVELOPMENT REVIEW COMMITTEE DETERMINATIONS (continued):
line as long as it does not become nearer to a property line than the existing building is to that property line. Pursuant to Town Code Sections 29.10.020, 29.10.180(a),
29.10.185, and 29.10.245(e)(1), although the residential building on Adjusted Parcel 1 is determined to be non-conforming, it is nonetheless allowed under the current Town Code because such non-conformity is not proposed to worsen: the front setback of Existing Parcel 1 and the front setback of Adjusted Parcel 1 will be identical. See tables below for more details on Existing Parcels configuration and Adjusted Parcels configuration in relation to Zoning Code compliance for minimum building setbacks. f. The Town’s Zoning Ordinance Section 29.40.075 and Chapter IV of the Town’s Hillside Development Standards and Guidelines establish maximum allowed floor area for residential zones with average parcel slopes greater than 10 percent. Floor area requirements can only be analyzed for Parcel 1 in the New Lot Line Adjustment Application, as Parcel 1 is the only parcel that would contain existing built floor area.
The maximum allowed floor area for Parcel 1 in the Adjusted Parcels configuration would be 6,000 square feet. The existing 2,715-square foot residence on Parcel 1 would comply with the maximum allowed floor area of the Adjusted Parcels configuration because it is less than 6,000 square feet. While development is not proposed on Parcels 2 and 3, they would allow an average sized residence in relation to the surrounding neighborhood as shown in the table below. See tables below for more details on Existing Parcel configuration and Adjusted Parcel configuration in relation to Zoning Code compliance for maximum allowed floor area.
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DEVELOPMENT REVIEW COMMITTEE DETERMINATIONS (continued):
In summary, the Adjusted Parcels within the New Lot Line Adjustment Application M-23-001 are in conformance with applicable provisions of the Town’s Zoning Ordinance because the Adjusted Parcels each comply with minimum lot size, minimum street frontage, minimum lot depth, minimum lot width for parcels fronting on a cul-de-sac bulb, minimum setback standards, and maximum allowed floor area ratio standards.
Approval of the New Lot Line Adjustment Application M-23-001 is in compliance with Government Code Section 66412(d) because the Town’s Building Ordinance would be complied with as the New Lot Line Adjustment Application does not propose any construction or grading activities. The Town’s Building Ordinance in Chapter 6 of the Town Code was adopted to administer the California Building Code, including local amendments. “The California Building Code (CBC) contains general building design and construction requirements relating to fire and life safety, structural safety, and access compliance. CBC provisions provide minimum standards to safeguard life or limb, health, property and public welfare by regulating and controlling the design, construction, quality of materials, use and occupancy, location and maintenance of all building and structures and certain equipment.” The existing residential structure on Adjusted Parcel 1 meets the Town’s Building Ordinance and Building Code provisions relating to existing structures that were built to thenapplicable Building Code requirements. Any future proposed modifications to that existing structure would be required to meet the then-current Town’s Building Ordinance and Building Code provisions. No construction currently exists on or is proposed for Adjusted Parcel 2 or Adjusted Parcel 3. Any future proposal for residential construction on any of the Adjusted Parcels would be required to meet the then-current Town’s Building Ordinance and Building Code requirements. Therefore, the New Lot Line Adjustment Application is in conformance with the Town’s Building Ordinance and Building Code requirements.
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CONCLUSION:
A. Summary
The applicant is requesting that the Town approve its New Lot Line Adjustment Application M-23-001 in accordance with Government Code Section 66412(d) of the Subdivision Map Act. The New Lot Line Adjustment Application would reconfigure the Existing Parcels so that they are in conformance with (comply) with all applicable Town Code requirements, including the front setback requirement on Parcel 1, which is legal, non-conforming, and allowed, as discussed above. No construction is proposed with this New Lot Line Adjustment Application. The determinations pursuant to Government Code Section 66412(d) can all be made as discussed in this Report.
B. Recommendation
For all of the reasons set forth in this Staff Report, the New Lot Line Adjustment Application M-23-001, and all related materials and attachments, Staff recommends that the Development Review Committee make a motion to confirm the following determinations and actions to approve New Lot Line Adjustment Application M-23-001 for consideration under Section 66412(d) of the Subdivision Map Act:
1. That approval of New Lot Line Adjustment Application M-23-001 (and its related Conditions of Approval and materials) is a ministerial project approval under CEQA;
2. That the determinations presented in this Staff Report regarding compliance with Section 66412(d) of the Subdivision Map Act are hereby adopted and confirmed;
3. That the New Lot Line Adjustment Application, with the Draft Conditions of Approval contained in Exhibit 2, the diagram showing existing and proposed parcel configurations in Exhibit 4, and all other related materials and attachments, is hereby approved by the Development Review Committee (the “Approval”); and.
4. That this Approval supersedes the Town’s approval of the Original Lot Line Adjustment Application (M-20-012).
ACTION:
The decision of the Development Review Committee is final unless appealed within ten days.
EXHIBITS:
1. Location Map
2. Draft Conditions of Approval
3. Applicant’s Letter of Justification
4. Diagram of Existing and Proposed Parcel Configurations
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DEVELOPMENT REVIEW COMMITTEE – August 15, 2023
CONDITIONS OF APPROVAL
17200 Los Robles Way
New Lot Line Application M-23-001
Requesting Approval of a Lot Line Adjustment Application in Accordance with California Government Code Section 64412(d) for Three Adjoining Lots on Properties Zoned R-1:20. APNs 532-36-075, -076, and -077.
Ministerial Project Approval Under CEQA. Application is Only for Ministerial Approval of Lot Line Adjustment Pursuant to Section 66412(d) of the Subdivision Map Act.
PROPERTY OWNERS: Daren Goodsell, Trustee and Mark Von Kaenel.
APPLICANT: Tony Jeans.
Planning Division and Engineering Division
TO THE SATISFACTION OF THE DIRECTOR OF COMMUNITY DEVELOPMENT AND/OR THE DIRECTOR OF PARKS AND PUBLIC WORKS, AS RELEVANT:
1. APPROVAL: The New Lot Line Adjustment Application (M-23-001) has been approved (“Approval”) on this August 15th, 2023, date (“Approval Date”), subject to and including these “Conditions of Approval” (listed herein). Any reference to the Approval shall mean and include these Conditions of Approval, and all related application materials, environmental determinations, and other Town determinations and findings relating to New Lot Line Adjustment Application (M-23-001). Any proposed revisions or modifications to the Approval shall be applied to the Community Development Department by the relevant property owners and reviewed by the Town pursuant to Section 29.20.305 of the Town Code. Any and all time periods for applicant action under these Conditions of Approval shall be tolled during the pendency of any appeal of the Approval.
2. CUL-DE-SAC DEDICATIONS: To ensure the consistency of the Approval of the New Lot Line Adjustment Application (M-23-001) with the Zoning Ordinance of the Town Code, within ninety (90) days of the Approval Date, the property owners (individually, “Property Owner,” collectively, “Property Owners”) of Adjusted Parcels 2 and 3 shall make irrevocable offers of dedication of easement to the Town of the “Cul-De-Sac Area” for right-of-way purposes (as that Cul-De-Sac Area is specifically delineated in the New Lot Line Adjustment Application (M-23-001) materials), and to the satisfaction of the Town Engineer, to ensure compliance with the minimum Town street frontage standards for cul-de-sacs. Within thirty (30) days of such Property Owners dedication, the Town Engineer shall accept such dedication(s) on behalf of the Town. Should the Approval be placed before the Town Council for consideration and action on appeal, the Town Council shall determine whether or not to confirm such acceptance of such dedication in addition to considering the merits of the appeal. Failure of the Town Council to confirm acceptance of such Cul De Sac Area dedications, and/or approval of such appeal by the Town Council, shall void the Approval.
3. PROOF OF RECORDATION: Assuming Condition #2 herein has been satisfied, proof of the recordation of grant deeds reflecting the configuration of parcels permitted by the Approval shall be provided to the Town within six (6) months of the Approval Date.
EXHIBIT 2
4. ENGINEERING FEES: Engineering fees associated with this New Lot Line Adjustment Application (M-23-001) Approval (see item 270 in the Town’s Comprehensive Fee Schedule) shall be deposited with the Engineering Division of the Parks and Public Works Department prior to any recordation required by these Conditions of Approval.
5. NOTICE OF ARCHITECTURE & SITE APPROVAL: Notice is hereby given to the Property Owners that any proposed disruption, development, or other related construction on, adjacent to, or related to the Adjusted Parcels shall require environmental review to determine appropriate CEQA compliance, review for General Plan, Specific Plan, Zoning, and Building Ordinance compliance, and an Architectural & Site Application approval with the Community Development Department of the Town, with related findings, considerations, and conditions of approval in compliance with applicable Town Code.
6. TOWN INDEMNITY: Pursuant to Town Code Section 1.10.115, and the police power of the Town to craft appropriate Conditions of Approval, the property owners securing the Original Lot Line Adjustment Application (M-20-012) and this New Lot Line Adjustment Application (M-23-001) Approval and their successors (collectively, “Property Owners”) shall indemnify and hold harmless the Town for any challenge to the Approval and/or to the Original Lot Line Adjustment Application (M-20-012), whether administrative appeal, judicial review, and/or otherwise (collectively, “Challenge”), including without limitation and subject to the following:
a. Generally: Regarding any such Challenge, Property Owners shall defend, indemnify, and hold harmless the Town (any reference to “Town” shall mean and include without limitation Town’s elected officials, appointed officials, legal counsel, agents, officers, employees, contractors, and special legal counsel) (with legal counsel approved by Town), from and against any Challenge.
b. Property Owners (any reference to Property Owners shall mean and include without limitation Property Owners’ successors, legal counsel, consultants, and contractors) shall bear any and all losses, damages, injuries, liabilities, costs and expenses (including, without limitation, staff time and in-house attorney’s fees on a fully-loaded basis, attorney’s fees for outside legal counsel, expert witness fees, court costs, and other litigation expenses) arising out of or related to any Challenge (“Costs”), whether incurred by the Property Owners, Town, or awarded to any third party, and shall pay to the Town upon demand any Costs incurred by the Town.
c. The total of all obligations owing by the Property Owners under this Condition of Approval #6 is collectively referred to as the “Challenge Indemnity.” No modification of the Approval and/or the Original Lot Line Adjustment Application (M-20-012), nor any application, permit certification, condition, environmental determination, other approval, change in applicable laws and regulations, or change in processing methods shall alter the Property Owners obligations pursuant to this Condition of Approval # 6.
The Town shall promptly notify the Property Owners of any such Challenge, and the Town shall cooperate with the Property Owners as Property Owners fulfil their obligations pursuant to this Condition of Approval # 6.
T.H.I.S. DESIGN & DEVELOPMENT P.O.Box 1518, Los Gatos, CA 95031 Tel: 408.354.1863 Fax: 408.354.1823
Town of Los Gatos
110E Main St,
Los Gatos CA 95030
Attn: Planning/Engineering
June 2nd, 2023
17200 Los Robles Way, Los Gatos
Application M 23-001
This application is made as a correction to the previous LLA application M 20-012 at this address, asking the Town modify its prior approval of the LLA and to consider the LLA application under Government Code Section 66412, subsection (d).
The Property:
The Property comprises 3 legal parcels of land in the R1:20 zoning district [as Identified by the Certificate of Compliance approved by the Town on May 25th, 2021] initially referred to as APNs: 532-36/075/6/7. They are presently accessed from the end of Los Robles Way and total approximately 3 Acres. The General Plan designation is for Low Density Residential. The overall slope of the combined 3 lots is 26%. At the moment there is one very dilapidated 1800 sq ft house on the entire property with an empty swimming pool. The house is on a septic system.
On June 7th, 2021 Mark VonKaenel purchased two of the Parcels.
The Parcel Configuration:
532-36-075 is traversed by a portion of Los Robles Way with 205 ft of frontage [considering both sides] on the right-of-way. It also has 19 ft of frontage at the termination of Worcester Lane.
532-36-076 is at the terminus of Los Robles Way with 37’ of frontage. It also has 42 ft of frontage at the termination of Worcester Lane. 532-36-077 has no improved street access at present, but rather is accessed across APN 532-36-076 by its owner.
The Proposed LLA Solution:
It is proposed to reconfigure the 3 parcels to make them compliant with the Town Standards for the zoning district. They would be 1½, 1 and ½ acres in size. In doing so, the plan is to access only one of the resulting parcels from Los Robles Way and the other 2 from a cul-de-sac at Worcester Lane. In addition to improving the compatibility of the 3 parcels themselves, it will bring the street frontages for the three resulting lots into compliance with the General Plan and zoning ordinance.
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532-36-077
532-36-075
532-36-076
532-36-077
532-36-076
532-36-075
EXISTING POOL
AND RESIDENCE
WORCESTER LANE
ACCESS LOCATION
LOS ROBLES WAY
ACCESS LOCATION
PREPARED BY: RYAN SAFTY
Associate Planner
Reviewed by: Planning Manager and Community Development Director ϭϭϬ
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www.losgatosca.gov
TOWN OF LOS GATOS
REPORT TO THE DEVELOPMENT
REVIEW COMMITTEE
MEETING DATE: 08/15/2023
ITEM NO: 2
DESK ITEM
DATE: ƵŐƵƐƚϭϱ͕ϮϬϮϯ
TO: Development Review Committee
FROM: Joel Paulson, Community Development Director
SUBJECT: Requesting Approval of a Lot Line Adjustment Application in Accordance with California Government Code Section ϲϲϰϭϮ;ĚͿ for Three Adjoining Lots on Property Zoned R-ϭ͗ϮϬ͘>ŽĐĂƚĞĚĂƚϭϳϮϬϬ>ŽƐZŽďůĞƐtĂLJ͘WEƐϱϯϮ-36-Ϭϳϱ͕ -Ϭϳϲ͕ĂŶĚ-Ϭϳϳ͘Lot Line Adjustment Application M-Ϯϯ-001. Ministerial Project Approval Under CEQA. Application is Only for Ministerial Approval of >Žƚ>ŝŶĞĚũƵƐƚŵĞŶƚWƵƌƐƵĂŶƚƚŽ^ĞĐƚŝŽŶϲϲϰϭϮ;ĚͿŽĨƚŚĞ^ƵďĚŝǀŝƐŝŽŶDĂƉĐƚ͘ WZKW
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Z^: Daran Goodsell, Trustee and Mark Von Kaenel.
APPLICANT: Tony Jeans.
Remarks:
Exhibit 5 includes public comment received prior to the August 15, ϮϬϮϯ͕ Development Review Committee meeting.
EXHIBITS:
Previously received with the ƵŐƵƐƚϭϱ͕ϮϬϮϯ͕Report to the Development Review Committee:
1. Location Map
Ϯ͘ Draft Conditions of Approval
3. Applicant’s Letter of Justification
ϰ͘ Diagram of Existing and Proposed Parcel Configurations Received with this Desk Item Report:
5. Public Comments received prior tŽƵŐƵƐƚϭϱ͕ϮϬϮϯ.
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From:
To: Ryan Safty
Cc:
Subject: APNs 532-36-075, -06, -077
Date: Monday, August 14, 2023 7:26:49 AM
[EXTERNAL SENDER]
Dear Mr Safty,
We are unable to attend the DRC meeting on Tuesday August 15th discussing ministerial approval of the lot line adjustment for APNs 532-36-075, -06, -077. As we presented at previous town council meetings, we object to this approval due to the fire and flood risk, as well as privacy concerns to our property. We live adjacent to the lot, on . Our primary concern is the water run-off
issues coming from the lot as, despite our significant and costly efforts to prevent it, our property is consistently flooded during rains by water coming off the hill on the lots in question. This will certainly be exacerbated by increasing the buildable plots from two to three.
Access to the lots in question have always been from Los Robles Way, the addition of driveways through a new access from Worcester lane will also lead to the removal of many trees (California Oak and otherwise) that affect our view and privacy as well as having the potential to increase fire risk. The General Plan Vision Statement states that "the impacts of new development must be evaluated in light of the development’s overall benefit to the community, and that input from surrounding residents and property owners is a major consideration during any development review process". We have continued to voice our opposition to this project. We appreciate your attention to our concerns.
Sincerely, Gianfranco and Eileen de Feo , Los
Gatos CA.
y,//dϱ
From:
To: Ryan Safty
Subject: DRC meeting on Tuesday
Date: Sunday, August 13, 2023 5:32:33 PM
[EXTERNAL SENDER]
Dear Mr. Safty,
We will not be able to attend the DRC meeting on Tuesday morning. We wanted to voice our strong disagreement with the town's plan to reapprove the DRC for 17200 Los Robles Way LLA. This LLA violates the towns own General Plan in many ways. This plan allows several trees to be cut down, the habitat for the local wildlife will be effected, it does not protect the privacy of several of the neighbors and the seismic considerations have not been taken into consideration.
Also, by allowing several properties to be built and extending Worcester Lane it further cuts into the hillside risking erosion and possible land slides. We feel that the town is showing a preference to one builder and going against its own rules and standards set up by the General Plan.
Thank you for your time,
Los Gatos, Ca 95030
From:
To: Ryan Safty
Cc: Corvell Sparks; James Watson; Gary Heap; Jennifer Armer Subject: FW: 17200 Los Robles - Right of Way
Date: Monday, August 14, 2023 6:48:08 PM
Attachments: image001.png
Map Subdivision XM48.pdf
Map RoS 579M33 End Los Robles Lt.pdf
Map RoS 580M20 End Los Robles Rt.pdf
Property Records - 17200 Los Robles Way.pdf
[EXTERNAL SENDER]
Hi Ryan,
The terminus of Los Robles Way as documented was at the corner of the original lots 15 and
16. How could there be documentation of vacating a portion of Los Robles Way that never existed?
I am looking for clear documentation as to when Los Robles Way was extended across APN 532-36-075 and became a public ROW.
Thanks
From: Ryan Safty <[email protected]>
Date: Monday, August 14, 2023 at 3:47 PM
To:
Cc: Corvell Sparks <[email protected]>, James Watson <[email protected]>, Gary Heap <[email protected]>, Jennifer Armer <[email protected]> Subject: RE: 17200 Los Robles - Right of Way
Hi
I have copied Parks and Public Works to this email. PPW, please add on to this response if I have missed anything.
Regarding Los Robles Way right-of-way, the Town does not have any record of vacating any portion of Los Robles Way, which means that the portion that is shown on the subject parcels is a public right-of-way.
Regarding the future Worcester Lane cul-de-sac, the applicant is offering the area as an easement
dedication for future right-of-way purposes, meaning that the property owners would have to maintain any future cul-de-sac that is developed at this location.
Respectfully,
Ryan Safty භ Associate Planner
Community Development Department භ 110 E. Main Street, Los Gatos CA 95030 Ph: 408.354.6802 භ [email protected]
www.losgatosca.gov භ https://www.facebook.com/losgatosca COMMUNITY DEVELOPMENT HOURS:
Counter Hours: 8:00 AM – 1:00 PM, Monday – Friday/
Phone Hours: 8:00 AM – 5:00 PM, Monday – Friday
All permit submittals are to be done online via our Citizen’s Portal platform. All other services can be completed at the counter. For more information on permit submittal, resubmittal, and issuance, please visit the Building and Planning webpages.
CONFIDENTIALITY DISCLAIMER
This e-mail is intended only for the use of the individual(s) named in this e-mail. If you receive this e-mail and are not a named recipient, any use, dissemination, distribution or copying of the e-mail is strictly prohibited. If you have received this communication in error, please immediately notify us at the above e-mail address. 3Think Green, please consider the environment before printing this e-mail.
From:
Sent: Monday, August 14, 2023 12:01 PM
To: Ryan Safty <[email protected]>
Subject: 17200 Los Robles - Right of Way
[EXTERNAL SENDER]
Hi Ryan,
I am interested in when the vacated right of way became a public ROW. Do you have documentation that this is a public road maintained by the town? In the DRC and planning commission staff reports, you had mentioned the frontage for parcel 1 was non-conforming:
https://mccmeetingspublic.blob.core.usgovcloudapi.net/losgatos-meet6d032661823f4cb6a9943f7c6ddbc3e8/ITEM-Attachment-004- 7b105ec1a90c4d92813496a1a0becb0c.pdf
It appears the interpretation of frontage has now been changed by the Town.
Please share documentation that this is actually a public ROW.
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From:
To: Ryan Safty
Cc: Jennifer Armer; Gabrielle Whelan
Subject: Re: Frontage from Los Robles Way
Date: Monday, August 14, 2023 5:45:23 PM
Attachments: image001.png
Property Records - 17200 Los Robles Way.pdf
[EXTERNAL SENDER]
Hello Ryan,
Regardless of the language lot merger ordinance, the DRC assignment of duties say they SHALL determine when lots have merged, and there has been no evidence of this review by the DRC, and the random application of the ordinance seems egregious at best.
In any case, my lawyer has provided the arguments why this cannot be a ministerial review. As a data point, even the interpretation of the law is correct by the Town of Woodside in this ruling:
https://www.woodsidetown.org/sites/default/files/fileattachments/architectural_and_site_review_board_asrb/meeting/23951/agenda_item_no._2_145_old_la_honda_road.pdf I will see you all at the meeting tomorrow,
Sincerely,
On Mon, Aug 14, 2023 at 5:17 PM Ryan Safty <[email protected]> wrote:
Hi
Thank you for your email. I’m doing my best to respond to all your questions before I leave today, so I apologize if I missed anything in response to your 4:51pm email.
The area of Los Robles Way was never vacated, and it was determined by Parks and Public Works that this area is a public right-of-way that extends into the property, thus providing frontage along each edge of the roadway that crosses the property (see below).
The Report to the DRC contained a detailed explanation to why CEQA is not triggered with this application.
As you noted, the Town’s Lot Merger Ordinance was modified in early 2023. The most substantial change is that the “shall” statement was replaced with “may”. The Town “may” choose to initiate a lot merger, but is not, by Code, required to.
I have copied the Planning Manager and Town Attorney to this email in case you have follow up questions.
Respectfully,
Ryan Safty Ɣ Associate Planner
Community Development Department Ɣ 110 E. Main Street, Los Gatos CA 95030 Ph: 408.354.6802 Ɣ [email protected]
www.losgatosca.gov Ɣ https://www.facebook.com/losgatosca COMMUNITY DEVELOPMENT HOURS:
Counter Hours: 8:00 AM – 1:00 PM, Monday – Friday/
Phone Hours: 8:00 AM – 5:00 PM, Monday – Friday
All permit submittals are to be done online via our Citizen’s Portal platform. All other services can be completed at the counter. For more information on permit submittal, resubmittal, and issuance, please visit the Building and Planning webpages.
CONFIDENTIALITY DISCLAIMER
This e-mail is intended only for the use of the individual(s) named in this e-mail. If you receive this e-mail and are not a named recipient, any use, dissemination, distribution or copying of the e-mail is strictly prohibited. If you have received this communication in error, please immediately notify us at the above e-mail address. 3Think Green, please consider the environment before printing this e-mail.
From:
Sent: Monday, August 14, 2023 4:51 PM
To: Ryan Safty <[email protected]>
Subject: Frontage from Los Robles Way
[EXTERNAL SENDER]
Dear Mr Safty,
I'm reading the staff report and would like to understand more about page 9. The frontage specified for Parcel 3 is 200ft while parcel 1 only has 42ft of frontage.
When the lots are reconfigured, the staff report claims that the frontage will achieve 242ft of frontage. However by virtue of the reconfiguration, there would be no private or public easement across parcel 1, so the frontage would be at the terminus to Los Robles Way. That wouldn't be more than 20ft? Thus you are taking a conforming lot and making it non-conforming to the Town's zoning laws? I will be raising this in person at tomorrow's meeting, along with the objection to this being a ministerial approval, as the land is still not exempt from CEQA review.
Also, since this is a new application in front of the DRC, I want to remind the committee as part of their assignment of duties they SHALL determine when lots have merged. The new lot merger ordinance lays out the criteria for review to determine whether lots have merged but no report has been provided to show that this property meets all 8 criteria.
As you mentioned a couple of years ago when we spoke, there are many non-conforming lots in the town and there would be no way to know about them until an application like this LLA came in. The DRC assignment of duties says that the DRC SHALL determine when lots have merged. This appears to be a neglect of their duties. If the lot merger ordinance exists. is it only randomly applied where convenient and not to protect the Town's constituents? Per the new lot merger ordinance this land is owned contiguously, has no adequate turnaround for vehicular and safety equipment, nor could one ever be built on parcel 2, and has soil stability issues. The hillside behind the Merrick's property at 246 Harding Ave can attest to this. https://library.municode.com/ca/los_gatos/codes/code_of_ordinances?nodeId=CO_CH24SURE_ARTIINGE_S24.10.080TOITPAME Sincerely,
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110 E. Main Street Los Gatos, CA 95030 ● 408-354-6874
www.losgatosca.gov
TOWN OF LOS GATOS
DEVELOPMENT REVIEW
COMMITTEE REPORT
MINUTES OF THE DEVELOPMENT REVIEW COMMITTEE MEETING
AUGUST 15, 2023
The Development Review Committee of the Town of Los Gatos conducted a regular meeting on August 15, 2023, at 10:00 a.m.
ROLL CALL
Present: Jennifer Armer, CDD Planning; Roy Alba, CDD Building; Corvell Sparks, PPW Engineering; and Kenny Ip, SCCFD.
Absent: None.
MEETING CALLED TO ORDER AT 10:00 AM
VERBAL COMMUNICATIONS
None.
CONSENT ITEMS
1. Approval of Minutes – July 25, 2023
MOTION: Motion by Corvell Sparks to approve the consent calendar. Seconded by Kenny Ip.
VOTE: Motion passed unanimously 4-0.
PUBLIC HEARINGS
2. 17200 Los Robles Way
Lot Line Adjustment Application M-23-001
Requesting Approval of a Lot Line Adjustment Application in Accordance with California Government Code Section 66412(d) for Three Adjoining Lots on Properties Zoned R-1:20. APNs 532-36-075, -076, and –077. Ministerial Project Approval Under CEQA. Application is Only for Ministerial Approval of Lot Line Adjustment Pursuant to Section 66412(d) of the Subdivision Map Act.
Property Owners: Daren Goodsell, Trustee and Mark Von Kaenel Applicant: Tony Jeans
Project Planner: Ryan Safty
EXHIBIT 5
PAGE 2 OF 3
DEVELOPMENT REVIEW COMMITTEE MINUTES OF AUGUST 15, 2023 N:\DEV\DRC\MINUTES\Min 2023\08-15-23 Minutes - DRC.docx The project planner presented the staff report.
Opened Public Comment.
Tony Jeans, Applicant
Their engineer revised the plans to address items that need to be clarified. There were 3 letters from neighbors with concerns about privacy and water drainage. These will be addressed with a future Architecture & Site Application submittal. The frontage is shown on the plans and is accurate; it extends 242 feet from Los Robles Way to Parcel 1.
Alison Steer, Neighbor
The existing parcels meet the criteria for a lot merger and so the determination should be made that they have been merged. They are not in support of the lot line adjustment. The proposed Worcester Lane access is not the principal means of access; it is Los Robles Way. The State CEQA Guidelines only exempt four or fewer lots depending on the property slope. There will be environmental and visual impact to the neighboring properties. The General Plan section of the staff report cherry picks specific items, but the General Plan doesn’t allow new housing in high fire areas. There is not enough room for a fire turnaround nor the 30 feet setback requirements for the existing house. Lot 77 is too small, landlocked, and too steep and narrow for a turnaround. Parcels 76 and 77 should be merged into one parcel.
Nancy Neipp, Neighbor
They have concerns that were also raised 2 years ago in an appeal. The property is in a Seismic Landslide Hazard area. The risk is not only at the top of the hill. The 1989 Loma Prieta earthquake shifted her land into 2 sections. In addition, a neighbor’s home on Worcester Loop has suffered flood damage. Adding impervious surfaces along the driveway will exacerbate this flood problem. Three new homes, with potentially 3 new Accessory Dwelling Units, should not be built in a Wildfire Hazard zone. The property should protect wildlife habitat, scenic views, open space, public space, and the privacy of neighbors. The parcel is a narrow strip on a steep lot with an average slope of over 26 percent, landlocked and sliding into a neighbor’s yard. All elements of the General Plan should apply.
Tony Jeans, Applicant
There are 3 existing lots. They are not creating any additional lots. Concerns about structures will be addressed separately when parcel 1, 2, or 3 plans are submitted. Applications under Government Code 66412(d) must be administrative.
Closed Public Comment.
Committee members asked questions of staff.
PAGE 3 OF 3
DEVELOPMENT REVIEW COMMITTEE MINUTES OF AUGUST 15, 2023 N:\DEV\DRC\MINUTES\Min 2023\08-15-23 Minutes - DRC.docx Staff: Ryan Safty, Project Planner
The setbacks for existing houses are allowed to remain non-conforming. No development or physical improvements are currently proposed. When development applications are submitted, there will be a full review on environmental, seismic, fire, and flood risks.
Staff: Gabrielle Whelan, Town Attorney
The State law provides that public entities may initiate lot mergers under specified circumstances. The Town Code was recently amended to align with State law. The Town may initiate lot mergers under specified circumstances. No lot merger was initiated with this proposal. Lot line adjustments are ministerial actions, and this application is exempt from CEQA.
Committee members discussed the matter.
MOTION: Motion by Corvell Sparks to approve with required findings and recommended conditions of approval. Seconded by Roy Alba.
VOTE: Motion passed unanimously 4-0.
Appeal rights were recited.
OTHER BUSINESS
None.
ADJOURNMENT
The meeting adjourned 10:22 a.m.
This is to certify that the foregoing is a true
and correct copy of the minutes of the
August 15, 2023 meeting as approved by the
Development Review Committee.
Prepared by:
________________________________________
/s/ Jennifer Armer, AICP, Planning Manager
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T.H.I.S. DESIGN & DEVELOPMENT P.O.Box 1518, Los Gatos, CA 95031 Tel: 408.354.1863 Fax: 408.354.1823
Town of Los Gatos
110E Main St,
Los Gatos CA 95030
Attn: Planning/Engineering
June 2nd, 2023
17200 Los Robles Way, Los Gatos
Application M 23-001
This application is made as a correction to the previous LLA application M 20-012 at this address, asking the Town modify its prior approval of the LLA and to consider the LLA application under Government Code Section 66412, subsection (d).
The Property:
The Property comprises 3 legal parcels of land in the R1:20 zoning district [as Identified by the Certificate of Compliance approved by the Town on May 25th, 2021] initially referred to as APNs: 532-36/075/6/7. They are presently accessed from the end of Los Robles Way and total approximately 3 Acres. The General Plan designation is for Low Density Residential. The overall slope of the combined 3 lots is 26%. At the moment there is one very dilapidated 1800 sq ft house on the entire property with an empty swimming pool. The house is on a septic system.
On June 7th, 2021 Mark VonKaenel purchased two of the Parcels.
The Parcel Configuration:
532-36-075 is traversed by a portion of Los Robles Way with 205 ft of frontage [considering both sides] on the right-of-way. It also has 19 ft of frontage at the termination of Worcester Lane.
532-36-076 is at the terminus of Los Robles Way with 37’ of frontage. It also has 42 ft of frontage at the termination of Worcester Lane. 532-36-077 has no improved street access at present, but rather is accessed across APN 532-36-076 by its owner.
The Proposed LLA Solution:
It is proposed to reconfigure the 3 parcels to make them compliant with the Town Standards for the zoning district. They would be 1½, 1 and ½ acres in size. In doing so, the plan is to access only one of the resulting parcels from Los Robles Way and the other 2 from a cul-de-sac at Worcester Lane. In addition to improving the compatibility of the 3 parcels themselves, it will bring the street frontages for the three resulting lots into compliance with the General Plan and zoning ordinance.
EXHIBIT 6 Page 1981
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WORCESTER lN
LOS ROBLES WY
17200
SCALE: 1"=30'
532-36-077
532-36-075
532-36-076
LOS ROBLES WY 17200
SCALE: 1"=20'
532-36-077
532-36-076
532-36-075
EXISTING POOL
AND RESIDENCE
WORCESTER LANE
ACCESS LOCATION
LOS ROBLES WAY
ACCESS LOCATION
EXHIBIT 8
T.H.I.S. DESIGN & DEVELOPMENT P.O. Box 1518, Los Gatos, CA 95031 Tel: 408.354.1863 Fax: 408.354.1823
Town of Los Gatos
110 E Main St,
Los Gatos CA 95030
Attn: Planning Commission
October 16th, 2023
17200 Los Robles Way, Los Gatos
Response to Appeal date Aug 22nd, 2023
Application M 23-001
Commissioners:
This application was made as a correction to the previous LLA application M 20-012 at this address, asking the Town modify its prior approval of the LLA and to consider the LLA application under Government Code Section 66412, subsection (d). It was submitted and has been reviewed by staff and the DRC for compliance. During this process we made all necessary corrections requested by the Town and the plans on file reflect the final LLA configuration and details.
Pursuant to Government Code Section 66412(d), a LLA “between four or fewer existing adjoining parcels, where the land taken from one parcel is added to an adjoining parcel, and where a greater number of parcels than originally existed is not thereby created” is exempt from the Subdivision Map Act and review under CEQA. Approval of such a LLA is ministerial in nature.
In the plans, we have limited the details to the proposed lot configurations requested for the LLA, while providing sufficient information to analyze the adjusted parcels for compliance with applicable Town and state law.
The access at Worcester Lane has always been available to the property and this will not change with this LLA. The owners are offering to dedicate to the Town an appropriate easement for a cul-de-sac area at the terminus of Worcester Lane to satisfy ingress/egress to parcels 2 and 3 from this location and meet the Town’s frontage requirements. This area has been identified on the plans based on a town standard hillside cul-de-sac. According to the Town’s staff report submitted to the DRC, Town Code Section 29.40.400 does not mandate that the cul-de-sac street frontage be along a paved roadway. This application does not request approval of plans to develop the cul-de-sac easement area. Thus, the Town need not analyze potential impacts associated with the cul-de-sac area.
EXHIBIT 9
This application does not request the approval of any new homes nor development of the three (3) parcels. As such, it is premature to consider issues relating to development of the parcels. For instance, Appellant’s reference to LU 6.4 is misplaced, as there is no proposed change of use or development of the parcels before the Town, there is no need not conduct any analysis under LU 6.4.
It should also be noted that there are three (3) original existing parcels and there will remain three (3) parcels. Consideration of the LLA application is mandatory under controlling law, whereas the Town’s consideration of merger is permissive. For instance, Municipal Code section 24.10.080, which addresses parcel mergers, specifies the Town “may” initiate a merger. There is no requirement that the Town initiate such a merger. Moreover, there is no showing that the three (3) parcels would meet the requirements of a merger under section 24.10.080. As a result, there is no ‘intensification of use’ or ‘increasing density’ associated with this application, as Appellant suggests.
Additionally, the Town need not consider whether the proposed LLA is consistent with the Town’s policy of not increasing density in Very High Fire Hazard Severity Zones, as there is no increase in density with this application. This application preserves the status quo (three single family residential parcels) and leaves the determination of appropriate countermeasures for Fire Hazard safety to a subsequent A&S Application, which would be reviewed by SCCFD as well as the building department.
Thank you
Tony Jeans
(408) 354-1833
PREPARED BY: RYAN SAFTY
Associate Planner
Reviewed by: Planning Manager, Community Development Director, and Town Attorney 110 E. Main Street Los Gatos, CA 95030 ● 406-354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
PLANNING COMMISSION
REPORT
MEETING DATE: 10/25/2023
ITEM NO: 2
ADDENDUM
DATE: October 24, 2023
TO: Planning Commission
FROM: Joel Paulson, Community Development Director
SUBJECT: Consider an Appeal of a Development Review Committee Decision to Approve a Lot Line Adjustment Application in Accordance with California Government Code Section 66412(d) for Three Adjoining Lots on Property Zoned R-1:20. Located at 17200 Los Robles Way. APNs 532-36-075, -076, and -077. Lot Line Adjustment Application M-23-001. Statutorily Exempt from CEQA as a Ministerial Approval in Accordance with Public Resources Code Section 21080(b)(1) (CEQA Statute) and CEQA Guidelines Section 15268.
Application is Only for Ministerial Approval of a Lot Line Adjustment Pursuant to Section 66412(d) of the Subdivision Map Act.
Property Owners: Daran Goodell, Trustee and Mark Von Kaenel.
Applicant: Tony Jeans. Appellant: Alison Steer. Project Planner: Ryan Safty.
REMARKS:
Exhibit 10 includes a supplemental response letter to the appeal, received from the applicant on October 24, 2023.
EXHIBITS:
Previously received with the October 25, 2023 Staff Report:
1. Location Map
2. Required Determinations Pursuant to Government Code Section 66412(d)
3. Recommended Conditions of Approval with Staff Edits
4. August 15, 2023 Development Review Committee Report and Desk Item
5. August 15, 2023 Development Review Committee Meeting Minutes
6. Applicant’s Letter of Justification, received June 2, 2023
7. Diagram of Existing and Proposed Parcel Configurations, received August 9, 2023
8. Appeal of Development Review Committee, received August 22, 2023
9. Applicant’s Response to Appeal, received October 16, 2023 ATTACHMENT 2
PAGE 2 OF 2
SUBJECT: 17200 Los Robles Way/M-23-001
DATE: October 24, 2023
Received with this Addendum Report:
10. Supplemental Response to Appeal, Received October 24, 2023
EXHIBIT 10
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Intentionally
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A P P E A R A N C E S:
Los Gatos Planning
Commissioners:
Jeffrey Barnett, Chair
Steve Raspe, Vice Chair
Susan Burnett
Melanie Hanssen
Kathryn Janoff
Town Manager: Laurel Prevetti
Community Development
Director:
Joel Paulson
Town Attorney: Gabrielle Whelan
Transcribed by: Vicki L. Blandin
(619) 541-3405
ATTACHMENT 3
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P R O C E E D I N G S:
CHAIR BARNETT: We’ll now move on to Public
Hearings, and we have Item 2 tonight where we are asked to Consider an Appeal of the Development Review Committee’s Decision to Approve a Lot Line Adjustment Application in accordance with California Government Code Section 66412(d) for three adjoining lots on property zoned R-1:20; located at 17200 Los Robles Way; APNs 532-36-075, -076, -077; and Lot Line Adjustment Application M-23-001.
Per the Town’s Attorney, the DRC decision is
statutorily exempt from CEQA as a ministerial approval in accordance with CEQA Guidelines 15268, and the application is only for ministerial approval for a lot line adjustment pursuant to Section 66412(d) of the Subdivision Map Act, and we’ll have some discussion about that.
The property owners are Daran Goodell, Trustee,
and Mark Von Kaenel. The Applicant is Tony Jeans, and the Appellant is Alison Steer.
May I have a show of hands from Commissioners who
have visited the property? Thank you. Are there any
disclosures? I don’t see any.
Mr. Safty, I understand you’ll be giving a report
from the Staff tonight.
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RYAN SAFTY: Yes, thank you, and good evening,
Commissioners. Before you is an appeal of a DRC decision to approve a lot line adjustment for three adjoining lots at 17200 Los Robles Way.
The application, as mentioned previously, is
statutorily exempt from CEQA as outlined in the Staff
Report. The application is only for ministerial approval of a lot line adjustment pursuant to Section 66412(d) of the Subdivision Map Act.
There is an extensive history associated with
this application and property, which is outlined in the report. The current application is proposed to be
considered in accordance with California Government Code Section 66412(d). The application proposes to take three adjacent parcels and reconfigure their lot lines. The
existing lot configuration has several nonconformities, all of which would be remedied with this application.
It is important to note that no construction is
proposed for this application.
Pursuant to Government Code Section 66412(d),
“Required determinations for approval of a lot line
adjustment application are: that the lot line adjustment is between four or fewer existing adjoining lots where the land taken from one parcel is added to an adjoining parcel
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and where a greater number of parcels than originally
existed is not thereby created,” and that, “a local agency shall limit its review and approval to a determination of whether or not the parcels resulting from that lot line adjustment will conform to the local General Plan, an
applicable Specific Plan, any applicable Coastal Plan,” which we don’t have, “and zoning and building ordinances.” Exhibits 2 and 4 contained in the Staff Report
packet contain a very detailed explanation as to how each of these determinations is made in this case.
The DRC approved this application on August 15th,
which was then appealed by an adjacent neighbor on August 22nd. The appeal, as provided in Exhibit 8, references
several reasons to why the appeal should be granted,
including CEQA review, General Plan compliance, cul-de-sac review, as well as lot merger.
The Applicant has provided response letters to
the appeal, which are included in the report as Exhibit 9 and in the addendum report from yesterday as Exhibit 10.
The Staff Report includes each of these appeal sections, followed by the Applicant’s responses, and then Staff’s analysis.
Based on the reasons outlined in the report Staff
does recommend that the Planning Commission make a motion
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to find that the approval of the lot line adjustment
application is a ministerial project approval under CEQA, find that the required determinations in Exhibit 2
regarding compliance with California Government Code
Section 66412(d) are hereby adopted and confirmed, and deny the appeal, uphold the decision of the DRC, and approve Application M-23-001 superseding the Town’s approval of the previous lot line adjustment application with modified
Conditions of Approval in Exhibit 3, the diagram showing the existing and proposed parcel configurations in Exhibit 7, and all other related application materials and
attachments.
This concludes Staff’s presentation and we, along
with the Town Attorney, are happy to answer any questions.
CHAIR BARNETT: Thank you. Are there questions
from Commissioners? Commissioner Hanssen.
COMMISSIONER HANSSEN: First of all I’d like to
thank Staff for the very detailed Staff Report; it was an excellent Staff Report that went through all of the issues and outlined what we need to consider.
After reading through everything, since the Staff
and the Town Attorney have determined that this is a
ministerial application, if that is in fact the case and it is confirmed by the evidence in the Staff Report, is it
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even proper for us to be hearing this at the Planning
Commission, because we shouldn’t be holding the Applicant to a standard that’s above a ministerial?
ATTORNEY WHELAN: Thank you, I can address that.
The Town Code provides that the Town’s Development Review Committee is responsible for approving applications for lot line adjustments, and what that approval consists of is making sure that all the elements of 66412(d) have been satisfied.
The Town Code also provides that interested
parties can appeal those decisions to the Planning
Commission, and so the decision is properly before the
Planning Commission and the Planning Commission is being asked to determine whether the elements of 66412(d) have been satisfied. That’s the primary consideration for the Planning Commission: was the lot line adjustment properly granted?
Then an ancillary subject is whether or not the
Town should have done CEQA analysis in conjunction with that lot line adjustment? Staff’s position is that the lot line adjustment is a ministerial approval in that there are no discretionary decisions to be made. The task before the decision makers is to confirm that each of the required
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elements of Government Code Section 66412(d) has been
satisfied.
COMMISSIONER HANSSEN: Okay, that’s clear. Thank
you.
CHAIR BARNETT: Other questions by Commissioners
at this time? There is going to be a later opportunity.
We’ll now open the public portion of the public hearing and give the Appellant, and following that the Applicant, an opportunity to address the Commission for up to five
minutes. I don’t have a card from the Appellant, but that’s Alison Steer?
JENNIFER ARMER: We also do have the Appellant’s
attorney on Zoom raising their hand.
CHAIR BARNETT: Excellent. Thank you very much.
Ms. Steer, who do you want to proceed first with? Is that loud enough to get on the record?
JENNIFER ARMER: That’s fine. She stated that
she’d like her attorney speaking on her behalf.
CHAIR BARNETT: Then if you’d please give us your
name and present your thoughts, and you have up to five minutes. Thank you.
BABAK NAFICY: Good evening. I guess the video
portion is being blocked. It doesn’t really matter.
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My name is Babak Naficy and I represent Ms. Steer
in this appeal, as well as the ongoing case between the parties.
As has been said, the lot line adjustment before
you has been the subject of litigation, but let’s be very clear that the only purpose for this lot line adjustment is to turn a currently substandard and unbuildable lot into one that can accommodate a residence.
Staff and the Applicant insist that the project
is not subject to CEQA review because it’s a ministerial approval, and also because the project doesn’t include any plans for a building. As I will explain, your decision in taking evidence and making findings will have substantial impact on how these lots will be developed, is subject to CEQA, and it’s not ministerial in the sense that it
requires exercise of judgment, and it will potentially
impact the environment. A few preliminary points.
Staff previously on this same project concluded
that the same lot line adjustment was discretionary but subject to a specific CEQA exemption, but now staff says the opposite is true but has made no effort to explain why the same project that a year ago was considered
discretionary has now somehow magically turned into
ministerial.
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Staff, the Applicant, and the Town Attorney cite
a case, Sierra Club vs. County of Napa, and claim that this case conclusively proves that all lot line adjustments
under 66412(d) are per se ministerial, but this isn’t
really true; that wasn’t the issue before the court. The court was really looking at the particular regulation for Napa. But even there you have to ask: this case is from 2012, is known to the Town and to Staff, so why was it so interpreted before?
One of the findings that the Staff is putting
before you today is a finding that the proposed lot line adjustment is consistent…that the intensity of the new
development is consistent with the surrounding development and with the Town at large. Now, clearly this isn’t a
check box. You have to actually look at the intensity of this project, look at the surrounding neighborhood, and make a decision, and that decision requires exercise of judgment, which makes it not discretionary.
The main argument, the main point I have to make
in the limited time I have left, is one of the requirements to ensure that the project is consistent with all
applicable regulation is to change the access point to give Lots 2 and 3 frontage, because right now there is no
frontage. Staff says this would be through an offer of
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dedication of an easement for a future cul-de-sac, and the cul-de-sac would provide access and therefore be able to provide frontage for Lots 2 and 3, 40 feet for Lot 2 and then 60 feet for Lot 3.
But make no mistake about it, for the cul-de-sac
to be able to serve as frontage for these lots it has to be a street. For it to be a street, it has to provide primary access to these lots. Therefore by accepting the line
drawn on the map for the cul-de-sac you are essentially approving a new street. This street will require cutting down trees and it will require substantial grading, which you’re not being told anything about.
It’s not just a line on the map, it will require
it to be built; otherwise you can make a finding that the lot line adjustment does comply with the frontage
requirements. Even if in some abstract sense you buy the argument that the lot line adjustment approval is itself exempt, approving this entrance, this street that is a culde-sac that clearly has potential impacts is clearly not exempt, because it is capable of significant environmental impacts.
CHAIR BARNETT: Excuse me, your time is up, but
Commissioners may have questions for you. Staff has
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informed me that you drafted a letter that was received late this afternoon, is that correct?
BABAK NAFICY: Correct.
CHAIR BARNETT: And are there copies available
for the Commissioners at this time?
BABAK NAFICY: It was emailed to Commissioners,
but I’m not present to hand it out to you, unfortunately.
CHAIR BARNETT: Well, I understand that.
BABAK NAFICY: It was emailed to the clerk of the
Commission and individual Commissioners.
CHAIR BARNETT: Are you saying that email was
sent directly to the Commissioners?
BABAK NAFICY: I believe so. Not by me
personally, but I directed my assistant to do that.
JENNIFER ARMER: Through the Chair, if I may.
This was an email that was sent to Staff at 4:00pm this afternoon, which is after the deadline for submittal of materials for the Desk Item. It will be retained as part of the record for the application, but without having copies of it here tonight it’s not something we can provide to the Planning Commission at this time.
CHAIR BARNETT: Okay, thank you for that. Are
there questions for the attorney from members of the
Commission? I don’t see any.
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We’ll now move on to the Applicant’s presentation
for up to five minutes, if you wish to do so, and I think we’re going to hear from Mr. Jeans, who submitted a card.
JENNIFER ARMER: And we also have Shannon Jones
on Zoom, depending on which of you would like to speak.
TONY JEANS: I’ll start, if that’s okay.
CHAIR BARNETT: Please do.
TONY JEANS: So why are we here? Interesting, I
was wondering that myself this morning.
DRC approved this once a year or so ago. You as
the Commission denied the appeal. The Council then denied the second appeal. Council’s denial was litigated. During the litigation it was determined that the incorrect
approval process had been used, so we went back to DRC
using 66412(d) of the Subdivision Map Act, which is how all lot line adjustments are meant to be addressed. DRC
approved this a second time a month or so ago and it’s now been appealed to you, and eventually we hope to get to the end of this.
By 66412(d) this is a ministerial process, and we
have a few things to show you. When we designed the threelot layout we had to make sure that we abided by all of the rules of 66412(d).
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So one, we had to show that the lot line
adjustment is less than four lots. Well, I think we’ve done that. There’s no increase in parcels. It starts out as
three lots and it ends up as three lots.
They’re legal lots, and the reason they’re legal
lots is they were ratified by a Certificate of Compliance by the Town before the lot line adjustment started. This process was not appealed by the Appellant, so they are
three legal lots whether the Appellant likes that or not, and it will remain as three legal lots after the lot line adjustment.
Secondly, is the proposed use consistent with the
General Plan? Yes, it’s low-density residential and will remain so with no new construction proposed as this
project.
Is the proposal consistent with the district
zoning? Yes, it is, and if you read Staff analysis, which is about 15 pages long, you’ll see that it meets all of the requirements for an R-1:20 zoning lot, and each of the lots reflects that.
We chose to offer the dedication in order to make
our lots work. We looked at the width, we looked at the depth, and we looked at everything else on the various lots and said we have to make this work. Obviously, when you
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look at the end of Worcester Lane you can see that it
wasn’t intended to end like that, so we just put a cul-desac bulb there as an offer. If you approve this we will be asked to make that dedication formal so that it will
ultimately become a cul-de-sac for the access to Lots 2 and
3. My only conversations with the Appellant about
this project have revolved around the resulting view from their back yard and what they will be able to see if houses were built there, or a house on Lot 2. They like the parklike setting; they would like to keep it like that. I don’t think that’s a reason for appealing this lot line
adjustment; I think it’s very unfair on Mr. Von Kaenel and the other owner.
We ask you to deny the appeal yet again and allow
the project to proceed. I think it’s reasonably
straightforward in that we have met all the rules for the lot line adjustment. Thank you.
CHAIR BARNETT: Thank you very much, and I’ll ask
my fellow commissioners if they have any questions for you? I don’t see any. Thank you for your presentation.
TONY JEANS: Thank you.
CHAIR BARNETT: We’ll now invite comments from
members of the public as part of this public portion of the
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meeting, and if you haven’t already turned in a card,
please do so. Meanwhile, do we have anyone on Zoom, Mr.
Paulson?
JOEL PAULSON: Thank you, Chair. Anyone who would
like to speak on this item, please use the raised hand
feature in Zoom.
JENNIFER ARMER: I see that we do have somebody
who is joining by telephone. If you are participating by calling in you can press #2 on your telephone keypad to raise your hand.
JOEL PAULSON: I don’t see any raised hands,
Chair.
CHAIR BARNETT: So we’ll proceed, and under our
rules of procedure the Applicant, somewhat counter
intuitively, will give the next presentation up to three minutes, should you wish to.
JENNIFER ARMER: And we do have Shannon Jones.
TONY JEANS: Shannon will take these three
minutes. Thank you.
SHANNON JONES: Good evening, Commissioners. It’s
a pleasure to be here with you tonight. My name is Shannon Jones and I represent the Applicant. A few things that I would like to point out and I would appreciate you
considering.
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First, the Appellant is trying to frame this
application or this project as a development project, not as a lot line adjustment, and they are vastly different as your Staff and your counsel have pointed out. By trying to call it a development project they are trying to wedge it into CEQA, and that is legally inaccurate, as Staff has pointed out, as well as your own counsel.
My office has provided a letter with case law
supporting the position of the Town. This is not a
development project at this stage; it is a lot line
adjustment.
I found it very interesting that when I listened
to the Appellant’s attorney speak the first comment that he made was the only purpose of this project was for the
construction of a substandard residence. Residence is not before you today, development is not in front of you today, and in fact to my count he made at least five to six
references to a development and a development application.
This is not in front of you as a development application, it is in front of you as a lot line adjustment and as such most, if not all, of the Appellant’s comments are
inapplicable. Virtually every single one of them doesn’t apply, because what is not being applied for is a
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development, as they want to make it. It’s a lot line
adjustment. It is very simple, very straightforward.
There are three existing lots. They are asking to
move the lot lines, move the boundaries of those, which is exactly what Government Code Section 66412(d) is designed for. CEQA legally doesn’t apply, and I would suggest to you that nothing else that has been raised is applicable
either.
Now, let me make one comment about the Staff
Report. The Appellant wants to say that the Staff Report changed. That’s not true when it comes to the access point; that is inaccurate. In the first report they noted the
access point and wanted to change it. In the second one they recognized that there was an access point, so it was not a change in position as the Appellant wants to argue, it was a further review and clarification.
CHAIR BARNETT: I’m sorry, but you’re out of time.
I’ll ask if Commissioners have any questions for you, Ms.
Jones. I’m not seeing any. Thank you for being online and your presentation.
Now we’ll give the Appellant another three
minutes to add any comments that you or your attorney
wishes to make.
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BABAK NAFICY: Good evening, again. Thank you for
the opportunity to address you.
To be very clear, I have not suggested that
before you is a development project, or that you are being asked to approve a house or three. What I am suggesting, however, is that you are being asked, as a condition of this lot line adjustment and in order to ensure that it complies with your own regulation as it applies to
frontage, to approve the cul-de-sac, which the Applicant was very clear that that’s going to be the access point to these lots, and were it not to be the access point to these lots it couldn’t be used to satisfy the frontage
requirement.
So, there is a line. You know precisely where
that access point is going to be, and by approving this lot line adjustment, including the condition of the dedication of that easement, you are essentially fixing a new entrance that doesn’t exist now to both of these Lots 2 and 3, and any future development proposed for these two lots will assume and will include the access point as its entry point to the two lots, so that’s going to be fixed.
Your staff has not told you how many trees will
have to be cut, what the slope is going to be, how that’s going to affect the drainage in this area, or any of that.
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All of that is being deferred to when the Applicant will come back with plans for these houses, except that you’ve already decided to allow the easement, to allow the access point.
If you take away nothing else from this
presentation, just please consider that by approving the easement, by approving a new cul-de-sac which is going to be forever the access point for these two lots, you have made a discretionary decision that is capable of affecting the environment and as such will require environmental
review under CEQA, and as you saw, the Applicant’s attorney nor her staff had any explanation to give you as to why the Town has changed its legal analysis and conclusions even though the project hasn’t changed. That’s a classic abuse of discretion. Thank you.
CHAIR BARNETT: Are there questions by
Commissioners for you? Doesn’t look like it. Thank you very much for your rebuttal statement.
We’ll now close the public portion of the public
hearing and ask if Commissioners have questions for Staff, wish to comment on the appeal, or introduce a motion for consideration? Commissioner Janoff.
COMMISSIONER JANOFF: Thank you. Question for
Staff. The Appellant’s attorney just now said the easement
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for the cul-de-sac is before the Planning Commission
tonight. Would you please clarify whether that is or is not the case?
ATTORNEY WHELAN: What’s before the Commission
tonight is whether or not the lots would have adequate
street frontage, and the Applicant’s application
demonstrates that there will be adequate street frontage to serve the lots.
COMMISSIONER JANOFF: Just to follow up, the
Applicant is demonstrating adequate frontage with a certain configuration provided, however, that is not necessarily the final configuration of the cul-de-sac or the access points for the frontage, is that correct?
RYAN SAFTY: I can jump in on this. There are no
improvements proposed with this application.
COMMISSIONER JANOFF: Thank you.
CHAIR BARNETT: Commissioner Hanssen.
COMMISSIONER HANSSEN: I had the same question,
but I have a follow up question on that same issue. Who has to agree to the easement, because it is a Condition of
Approval upon which the zoning would depend?
ATTORNEY WHELAN: It’s being offered as part of
the project application, and the Town would need to accept the easement.
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COMMISSIONER HANSSEN: So there isn’t a third
party in the neighborhood that would be involved, it’s from the Applicant to the Town?
ATTORNEY WHELAN: That’s correct.
CHAIR BARNETT: Other questions of Staff?
Commissioner Hanssen.
COMMISSIONER HANSSEN: I was wondering if Staff
could comment again on the cul-de-sac aspect of the
Condition of Approval offering an easement, whether that would be subject to CEQA or not?
ATTORNEY WHELAN: My opinion is that it’s not,
because the cul-de-sac is being offered to demonstrate that the application meets the Town’s building and zoning
standards, and that’s one of the criteria that need to be determined in order to approve or deny a lot line
adjustment. The Town needs to make the determination that the Town’s building and zoning ordinances have been
satisfied.
COMMISSIONER HANSSEN: Understood, and then I
believe Commissioner Janoff already asked the question that if an actual application were to come in it would be at that time that there would be a review of how that is
architected and laid out and so on?
RYAN SAFTY: That is correct.
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ATTORNEY WHELAN: If it would be helpful to the
Commission, I could address the question about why the Town relied on a different statute the first time around.
CHAIR BARNETT: Please do.
ATTORNEY WHELAN: When the application was first
submitted the Town used Government Code Section 66474 to review the application, and that government code section relates to applications for parcel maps and tentative maps.
As we were reviewing the record of this matter it became clear that the Town should have instead used the statute for lot line adjustments, since that was what was being sought.
Under Code Section 66474, approval of a tentative
or parcel map is in fact a discretionary action that is subject to CEQA; however, the lot line adjustment is not a discretionary action subject to CEQA.
CHAIR BARNETT: I have some questions, and then
we’ll see if Commissioners have others. Is there statutory or case law specifically providing that in the event of a conflict between CEQA and the Subdivision Map Act that the Map Act controls?
ATTORNEY WHELAN: I’m not aware of any cases
holding that specifically, but I will say that the
Appellants have cited CEQA Guideline Section 15305, which
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is a CEQA exemption, and the CEQA exemptions kick in once a determination has been made that a project is subject to CEQA in the first instance, and here Public Resources Code Section 21080 provides that ministerial decisions are not subject to CEQA, and in turn Government Code Section 66412 describes a ministerial approval process in which the Town is reviewing an application against a set of prescribed standards.
CHAIR BARNETT: Thank you. I have a further
question. The Town Code specifies that certain actions are ministerial, but it doesn’t refer to lot line adjustments in that statute. Do you have a comment about that?
ATTORNEY WHELAN: I would say it would be a best
practice to have the Town Code identify a lot line
adjustment as a ministerial action, but in the absence of that there is case law standing for the proposition that lot line adjustment applications are ministerial decisions.
CHAIR BARNETT: Okay, thank you. One last
question, which may be obvious, but I’ll ask it anyway. The Commissioners in their deliberations may consider the legal analysis of the Applicant’s attorney, Shannon Jones, in her deliberations today?
ATTORNEY WHELAN: The Commission has to consider
any evidence that’s been placed before them, and there was
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reference made to a letter that was submitted by the
Appellant’s attorney at 4:00 o'clock today. If it would be helpful to the Commission in these deliberations, I could go through the arguments of those letters and provide you with the Town’s analysis.
CHAIR BARNETT: That would be very helpful. If
you would proceed, I’d appreciate it.
ATTORNEY WHELAN: The first argument is that a
lot line adjustment is not a ministerial action and it
discusses how the Town exercises considerable judgment to shape the lot line adjustment. My reaction to that is that in fact the Town is assessing the application for a lot line adjustment against the standards that are set forth in Government Code Section 66412, and so the Town is using fixed standards and objective measurements, and as a result the decision is ministerial and not subject to CEQA.
The second point raised in the letter was also
raised in the testimony, and it was asking about how the Town had relied on a common sense exemption when the lot line adjustment was submitted several years ago, and as we discussed that’s because the original application was
processed under a statute dealing with parcel and tentative maps and this time it’s being processed pursuant to the lot line adjustment statute.
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The third point raised in the letter is that CEQA
Guidelines Section 15305, which exempts only certain lot line adjustments from CEQA, governs the Town. My analysis of that is that the CEQA exemptions, which CEQA Guideline 15303 is a CEQA exemption, come into play when a project has been determined to be subject to CEQA in the first
instance. Here, the lot line adjustment decision is
ministerial, and there are other CEQA guidelines that stand for the proposition that ministerial decisions are not
subject to CEQA in the first instance.
Then the fourth point raised in the letter is
that the Town’s decision to approve the lot line adjustment with conditions constitutes an exercise of judgment. The Town’s analysis of that is that the Applicant submitted an application that shows dedication of an easement to provide the requisite street frontage, and so the Town is imposing that condition to hold the Applicant to that offer and to ensure that the application will in fact conform with the Town’s building and zoning standards.
CHAIR BARNETT: Thank you very much for that
explanation. Commissioner Burnett.
COMMISSIONER BURNETT: When we’re approving lot
line adjustments do all the new lots have to have adequate
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frontage and access, and is that why we’re talking about the cul-de-sac here?
RYAN SAFTY: Yes, in accordance with Government
Code Section 66412(d), all provisions of the Town’s Zoning Code need to be complied with, and street frontage is one of the provisions of the Town Zoning Code.
COMMISSIONER BURNETT: Thank you.
CHAIR BARNETT: I think we’re ready to move on to
Commissioner comments on the appeal. Commissioner Janoff.
COMMISSIONER JANOFF: I’ll just start by saying
it seems clear to me from the evidence that we have tonight from the Staff Report that the request is a fairly
straightforward lot line adjustment request. It’s clear that it’s ministerial, it’s clear that CEQA doesn’t apply, and it’s clear that the lot line adjustment does, to me, meet the requirements under Section 66412(d). I don’t see a conflict with what the Applicant is asking for, and so I would be inclined to deny the appeal at this time.
CHAIR BARNETT: Thank you for the comments.
Commissioner Raspe.
VICE CHAIR RASPE: Thank you, Chair. I would join
in Commissioner Janoff’s interpretation and understanding of the application. I would also join her in denying the appeal.
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I would further like to thank Staff and Council
specifically. This is an extraordinarily detailed and
complex matter dealing with some minutia, and I think
you’ve done an exemplary job in explaining it to this
Commission, so thank you again for your efforts, and again, I would join Commissioner Janoff in that denial.
CHAIR BARNETT: Thank you. Other Commissioners
wish to comment? Commissioner Hanssen.
COMMISSIONER HANSSEN: I concur with the comments
of Commissioner Janoff and our Vice Chair, and I would also say that one of the really important points that was made by the Applicant, Mr. Jeans, is that these are, and will continue to be, legal lots. They were determined to be
legal lots via a Certificate of Compliance, and if you go through the details of the Staff Report, as was the case when we saw this last time and as is the case now, this lot line adjustment is rectifying some things that will make the lots more in conformance with our Town Code and General Plan.
I do want to say to the Appellant and the other
people that are objecting to this that it certainly is a scary thought that there might be development, but this is only an application for a lot line adjustment. Should there be any application going forward, as was mentioned in the
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Staff Report, there will be a very detailed Architecture and Site Application and all kinds of review that will come with that, but that’s not what’s in front of us and we
can’t put other things on the table that aren’t on the
table in front of us, we can only take the application as is and the evidence that was presented to us.
I concur with my fellow commissioners that there
is plenty of evidence in the Staff Report and in the
hearing tonight to deny the appeal and approve the lot line adjustment.
CHAIR BARNETT: Thank you. Further comments?
Commissioner Burnett.
COMMISSIONER BURNETT: I will not be supporting
this. I don’t feel this is a clear lot line adjustment
situation, mainly because we’re talking about a cul-de-sac that is not normally in a clearly defined lot line project.
Thank you.
CHAIR BARNETT: Thank you. Ms. Armer, I believe
you had a comment about the possible form of the motion, should the Commission wish to deny the appeal.
JENNIFER ARMER: Thank you for that question. I
think you can turn to the Staff Report recommendation
section near the end right before the attachments. It does lay out the recommendation and the findings, but
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specifically recommending based on what I’ve heard so far, it sounds like the motion would likely be to deny the
appeal and uphold the decision of the Development Review Committee, but specifically we would like you to reference Attachments…
RYAN SAFTY: Exhibits 2 for all the required
determinations, Exhibit 3 for the Conditions of Approval, and Exhibits 6 and 7 for the application materials.
CHAIR BARNETT: Thank you. Commissioner Burnett.
COMMISSIONER BURNETT: Mr. Chair, can I clarify,
did I state that correctly? I would support the appeal.
CHAIR BARNETT: You would support the appeal?
ATTORNEY WHELAN: It sounds like there may be a
motion forthcoming and then a second, and then we’ll ask for the votes of all the Commission members and your vote will be recorded.
COMMISSIONER BURNETT: Well, I think I have it
backwards. I am not supporting what’s before us.
ATTORNEY WHELAN: Based on your comments it
sounded like you would not be supporting a motion to deny the appeal.
JENNIFER ARMER: You are in support of the appeal
and therefore not in support of the lot line adjustment.
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COMMISSIONER BURNETT: I’m not in support of the
lot line adjustment.
JENNIFER ARMER: No, that is understood.
COMMISSIONER BURNETT: It was confusing for me.
JENNIFER ARMER: It is.
CHAIR BARNETT: Commissioner Janoff.
COMMISSIONER JANOFF: I’m prepared to make a
motion.
CHAIR BARNETT: Thank you very much. Please
proceed.
COMMISSIONER JANOFF: Thank you. I move to deny
the appeal, uphold the decision of the DRC, and approve Lot Line Adjustment Application M-23-001 for consideration
under Section 66412(d) of the Subdivision Map Act.
I find that the approval of the lot line
adjustment is ministerial. Under CEQA, Exhibit 2, I can find the required determinations regarding compliance with Section 66412(d) of the Subdivision Map Act and are hereby adopted and confirmed, Exhibit 2, and approve Lot Line
Adjustment Application M-23-001 superseding the Town’s
approval of the previous Lot Line Adjustment Application M20-012 with the modified Draft Conditions of Approval contained in Exhibit 3, the diagram showing existing and proposed parcel configurations in Exhibit 7, and all other
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related materials and attachments. Didn’t mention Exhibit 6, but I can include that if you need it.
RYAN SAFTY: You’re covered with all other
relevant application materials. Thank you for that.
COMMISSIONER JANOFF: Thank you.
CHAIR BARNETT: We have a motion. Is there a
second? Commissioner Hanssen.
COMMISSIONER HANSSEN: I second the motion.
Discussion by the Commission? I don’t see any, so we’ll go ahead and take a roll call on the motion, and I’m going to start with Commissioner Janoff.
COMMISSIONER JANOFF: Yes.
CHAIR BARNETT: Commissioner Burnett.
COMMISSIONER BURNETT: No.
CHAIR BARNETT: Commissioner Hanssen.
COMMISSIONER HANSSEN: Yes.
CHAIR BARNETT: Vice Chair Raspe.
VICE CHAIR RASPE: Yes.
CHAIR BARNETT: And I vote in favor of the
motion, so it passes 4-1, and I believe there are appeal rights on this, but please confirm.
JENNIFER ARMER: That is correct. The decision of
the Commission can be appealed to Town Council by any
interested person as defined by Town Code Section 29.10.020
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within ten days on forms available online and fees paid.
The final deadline is 4:00pm on the tenth day.
CHAIR BARNETT: Thank you very much.
(End)
TOWN OF LOS GATOS
COMMUNITY DEVELOPMENT DEPARTMENT
PLANNING DIVISION
(408) 354-6872 Fax (408) 354-7593
October 30, 2023
Tony Jeans
PO Box 1518
Los Gatos, CA 95031
Via Email
RE: 17200 Los Robles Way
Lot Line Adjustment Application M-23-001
Consider an Appeal of a Development Review Committee Decision to Approve a Lot Line Adjustment Application in Accordance with California Government Code 66412(d) for Three Adjoining Lots on Property Zoned R-1:20. APNs 532-36-075, -076, and -077. Statutorily Exempt from CEQA as a Ministerial Approval in Accordance with Public Resources Code Section 21080(b)(1) (CEQA Statute) and CEQA Guidelines Section 15268. Application is Only for Ministerial Approval of a Lot Line Adjustment Pursuant to Section 66412(d) of the Subdivision Map Act. Property Owners: Daran Goodsell, Trustee and Mark Von Kaenel.
Applicant: Tony Jeans. Appellant: Alison Steer. Project Planner: Ryan Safty.
At its meeting of October 25, 2023, the Town of Los Gatos Planning Commission denied the appeal and upheld the DRC approval of the above referenced application.
The attached conditions of approval will not be final until the Planning Commission has approved the October 25, 2023, meeting minutes at their next meeting, confirming any additional or modified conditions of approval for the project in the underlined font. You will be notified in writing once the Planning Commission has approved the minutes.
PLEASE NOTE: Pursuant to Section 29.20.275 of the Town Code, this approval may be appealed to the Town Council within 10 days of the date the approval is granted. Therefore, this action for approval should not be considered final, and no permits by the Town will be issued until the appeal period has passed.
If you have any questions, I can be contacted by email at [email protected].
Sincerely,
Ryan Safty
Associate Planner
N:\DEV\PC\PC ACTION Letters\2023\10-25-23 [17200 Los Robles Way - Item #2; Appeal Denied] - applicant.docx
CIVIC CENTER
110 E. MAIN STREET
LOS GATOS, CA 95030
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1 890 Monterey St
Suite H
San Luis Obispo
California 93401
ph: 805-593-0926
fax: 805-593-0946
[email protected]
Law Offices of Babak Naficy
Via Email
October 25, 2023
Town of Los Gatos
Los Gatos Planning Commission
c/o Clerk’s office
[email protected]
Ryan Safty, Associate Planner
[email protected]
Re: Appeal of DRC’s approval of a lot line adjustment
17200 Los Robles Way, LLA Application M-23-001
PC Meeting 10/25/2023, ITEM NO: 2
Honorable Planning Commissioners
This office represents Alison Steer, on whose behalf I submit this rebuttal to the arguments advanced by your planning Staff and the Applicant in opposition to Ms. Steer’s appeal of the Los Gatos Development Review Committee’s approval of the above-referenced lot line adjustment (“LLA”).
I note that the Staff Report was made available on Friday, October 20, 2023, and the Applicant’s comments were only made available on October 24, 2023, leaving Ms. Steer inadequate time to prepare her rebuttal. Both Staff and the Applicant had months to prepare their opposition to Appellant’s argument; publishing lengthy reports and comments the day before a final appeal hearing is unconscionable and prejudicial.
1. The approval of the LLA is not per se a ministerial act as that term is used in CEQA.
Contrary to the Staff’ and Applicant’s contention, approval of the proposed LLA is not ministerial under the Township’s regulation because the Township can exercise considerable judgment to shape the LLA to ensure consistency with the Town’s General Plan, Hillside Specific Plan, and all applicable Hillside Development Standards and Guidelines. A project is ministerial for CEQA purposes only if:
ATTACHMENT 5
2 “the decision involves only the use of fixed standards or objective measurements, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out.” (CEQA Regs., § 15369.) (emphasis added.)”
Sierra Club v. Napa County Bd. of Supervisors (2012) 205 Cal.App.4th 162, 177.
The statutory distinction between discretionary and purely ministerial projects implicitly recognizes that unless a public agency [is authorized to] shape the project in a way that would respond to concerns raised in an EIR, or its functional equivalent, environmental review would be a
meaningless exercise.” (Mountain Lion, at p. 117, 65
Cal.Rptr.2d 580, 939 P.2d 1280.)
Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 493–494.
2. The Town has already decided that LLA approvals under the Town’s regulations is not ministerial.
The Town has already implicitly conceded that the LLA is not ministerial and therefore subject to CEQA because the Town itself processed and approved the very same LLA pursuant to the so-called “common sense” exemption. The last time around, the Applicant and its counsel went along with the Town’s determination that the Project was discretionary. The Development Review Committee’s (“DRC”) decision that the LLA is exempt from CEQA was arbitrary and capricious because neither the DRC nor the Applicant has offered any explanation for reaching an opposite conclusion, i.e., that the decision to approve the LLA is ministerial, based on the very same facts. Reis v. Biggs Unified School Dist. (2005) 126 Cal.App.4th 809, 823 (arbitrary and capricious encompasses conduct not supported by a fair and substantial reason).
Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut.
Automobile Ins. Co. (1983) 463 U.S. 29 is on point. Congress directed a federal agency to issue regulations that would ‘ “meet the need for motor vehicle safety.’ ” Id., at 33. The agency promulgated a regulation requiring cars to include passiverestraint systems in the form of airbags or automatic seatbelts. Id., at 37. The agency based this regulation on a factual finding that these systems save lives. Id., at 35. Following a change in Presidential administration, however, the agency reversed course and rescinded the regulation without any explanation or discussion of its prior finding that airbags save lives. Id., at 47–48. The Supreme Court found the agency's rescission of the previously promulgated regulation was arbitrary and
3 capricious because the agency did not address its prior factual findings. Id., at 49-
51. 3. The conclusion that LLA approvals are ministerial and therefore exempt is inconsistent with CEQA Guideline 15035.
The Town’s contention that LLA approvals are per se ministerial under Government Code section 66412, subdivision (d) is legally incorrect. This conclusion is inconsistent with CEQA Guideline 15305 (14 C.C.R. § 15305) which exempts LLAs from CEQA only if they involve 4 or fewer lots and the average slope is less than 20%. Staff and the Applicant claim that Government Code section 66412 essentially supersedes this CEQA Guideline but offer no authority for this proposition. There is no legal authority to show that CEQA Guideline 15305, as it relates to lot line adjustments, has been superseded.
4. The DRC’s decision to approve the LLA with conditions required exercise of judgment.
The evidence shows that the DRC’s decision to approve the LLA at issue here was not ministerial, even if the DRC ignored its responsibilities under the Town’s own regulation. The DRC’s decision to approve the LLA includes a requirement that the Applicant shall:
make irrevocable offers of dedication of easement to the Town of the ‘Cul-De-Sac Area’ for right-of-way purposes (as that Cul-De-Sac Area is specifically delineated in the New Lot Line Adjustment Application (M-23-001) materials),
and to the satisfaction of the Town Engineer, to ensure compliance with the minimum Town street frontage
standards for cul-de-sacs.
The DRC did not undertake any analysis of the potential impacts of constructing the culs de sac, or the consistency of the culs de sac with the applicable regulations including the Hillside Development regulations.
When the Town Council considered this LLA, the Council also considered the Applicant’s suggestion that access and frontage nonconformities with the Town’s regulation could be addressed with by a condition requiring a Hillside-compliant cul de sac. Administrative Record (“AR”) 3802 at 1:52. During that hearing, Planning staff acknowledged that building the cul de sac would require cutting down several trees and therefore could be undesirable. AR 3802 at 1:53. As the DRC did in August, the Town Council refused to consider the feasibility or environmental impacts of the proposed cul de sac and deferred consideration of those impacts and presumably the ultimate decision whether to require the construction of the cul de
4 sac to a later hearing. This shows that the requirement that the Applicant dedicate an easement in the shape of a cul de sac is not a ministerial act because it will require the exercise of judgment, albeit deferred, based on potential environmental impacts.
This decision whether, where, and how to construct the culs de sac will need to be consistent with the Hillside Specific Plan (“HSP”), which was adopted “to address the existing and future development policies of town and county, to make recommendations for future development in the planning area, and to promote harmony between development and the natural environment.” The HSP “establishes a series of policies and standards related to land use, facilities, services, circulation, fire protection, safety, and open space. . . to prevent deficiencies in access to water and sewer services [and] ensure conservation of the sensitive natural environment . . . .” Los Gatos General Plan (“LGGP”) Land Use (“LU”)-19-
20. “Development in the Hillside Specific Plan area is prohibited outside of designated ‘least restrictive development areas’ (LRDAs) unless it is compliant with conditions established in the Plan.” LGGP LU-20. All development in the HSP area, including single family residences, is subject to review; Architectural and Site Review procedure or Design Review shall be required for all development proposals in the hillsides, including buildings, grading, roads, parking areas, landscaping and outdoor lighting. The purpose is to provide for the design of building sites which will be appropriate in mountain environment. HSP 1.3.4 (emphasis added).
The Hillside Development Standards and Guidelines (“HDSG”), adopted in 2004, require development to minimize “the potential for geologic failures, fires, and floods that result from or adversely impact new development,” maintaining “the natural appearance of the hillsides from all vantage points” as well as their “rural, natural, open space character,” and conserving “the natural features of the site such as topography, natural drainage, vegetation, wildlife habitats, movement corridors and other physical features. HDSG I.E.
Thus, the decision to approve the LLA—with the proposed cul de sacs to ensure consistency with Township regulations—is required to be consistent with the above-described provisions. The DRC simply ignored this requirement when it approved the LLA and the cul de sac without any consideration of its consistency with these important provisions. Thus, the decision to approve the LLA as conditioned did require exercise of discretion to ensure consistency with all applicable regulations.
Staff attempts to skirt this argument by contending that “construction of the cul-de-sac is not proposed or required, and Condition of Approval #5 makes clear that any and all disruption, development, construction, including future construction of the cul-de-sac, would require a discretionary Architecture and Site Application with environmental review to determine appropriate CEQA compliance,
5 and review for General Plan, Specific Plan, Zoning, and Building Ordinance compliance.” This argument is unavailing because the offer of dedication of the culs de sac is intended to ensure the resulting lots conform to the applicable regulations.
Accordingly, the Town must assume that any requirement necessary to ensure the LLA’s consistency with Township regulations will be implemented.
Moreover, the Applicant admits that the culs de sac will be built to provide access to the resulting lots: “the plan is to access only one of the resulting parcels from Los Robles Way and the other 2 from a cul-de-sac at Worcester Lane. In addition to improving the compatibility of the 3 parcels themselves, it will bring the street frontages for the three resulting lots into compliance with the General Plan and zoning ordinance.” See Exhibit 6 to Staff Report.
5. The Town must analyze the LLA’s consistency with all relevant guidelines and policies.
As Staff concedes, the LLA must be consistent with all applicable provisions of the Town’s General Plan, any applicable specific plan and all applicable zoning regulations and ordinances. Gov’t. Code § 66412, subd. (d). The DRC did not analyze the proposed LLA’s consistency with all applicable goals, policies and regulations.
The road construction necessary to provide access to Lot 3 of the proposed LLA would impact an ephemeral streambed that carries water during and after rain. AR 767. Moreover, Hillside Standards & Guidelines III.C Guideline 2, provides “[t]he maximum length of a driveway should be 300 feet unless the deciding body makes specific findings for deviation and places additional conditions such as turnouts and secondary accesses to reduce hazards.” The Staff Report does not discuss the length of the driveway or its consistency with the applicable policies.
Similarly, the goal of General Plan Land Use policy 6 is “to preserve and enhance the existing character and sense of place in residential neighborhoods.” LGGP LU-6.4 prohibits “uses that may lead to the deterioration of residential neighborhoods, or adversely impact the public safety or the residential character of a residential neighborhood.” Members of the public and the Town Council have already expressed grave concerns about the potential impacts of creating a new buildable lot at this location through the LLA process. The Staff Report ignores LGGP LU 6.4.
Sincerely,
Babak Naficy
Attorney for Alison Steer
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T.H.I.S. DESIGN & DEVELOPMENT P.O. Box 1518, Los Gatos, CA 95031 Tel: 408.354.1863 Fax: 408.354.1823
Town of Los Gatos
110 E Main St,
Los Gatos CA 95030
Attn: Councilmembers
December 8th, 2023
17200 Los Robles Way, Los Gatos
Response to Appeal dated Nov 3rd, 2023
Application M 23-001
Councilmembers:
Pursuant to Government Code Section 66412(d), a Lot Line Adjustment “between four or fewer existing adjoining parcels, where the land taken from one parcel is added to an adjoining parcel, and where a greater number of parcels than originally existed is not thereby created” is exempt from the Subdivision Map Act and review under CEQA. This is an inescapable fact that the Appellant is trying to ignore in favor of consideration of other issues that are irrelevant. Approval of such an LLA is ministerial in nature as a matter of law.
This application was made as a correction to the previous LLA application M 20-012 at this address, asking the Town to modify its prior approval of the LLA and to solely consider the LLA application under Government Code Section 66412, subsection (d). It was submitted and reviewed by staff and DRC for compliance. During this process we made all corrections requested by the Town and the plans on file reflect the final LLA configuration and details.
Appellant has argued, “The Township can exercise considerable judgment to shape the LLA,” which Appellant argues renders the approval of the LLA not ministerial because such approval “requires the exercise of judgment and imposition of conditions.” However, the LLA was designed by the Applicant, the owner and their Civil Engineer—not by the Town. The Town’s role in this process is simply to determine whether the LLA plans presented are consistent with State rules for LLAs, the General Plan and applicable zoning rules, which determination requires objective consideration only.
In these plans, we have limited the details to the proposed lot configurations requested for the LLA, while providing sufficient information to analyze the adjusted parcels for compliance with applicable Town and state law.
The access at Worcester Lane has always been available to the property and this will not change with this LLA. The owners are offering to dedicate to the Town an appropriate easement for a cul-de-sac area at the terminus of Worcester Lane to satisfy ingress/egress to parcels 2 and 3 from this location and meet the Town’s frontage requirements. This area has been identified on the plans based on a town standard hillside cul-de-sac. According to the Town’s staff reports submitted to the DRC and, subsequently, to the Planning Commission, Town Code Section 29.40.400 does not mandate that the cul-de-sac street frontage be along a paved roadway. This application does not request approval of plans to develop the cul-de-sac easement area. Thus, the Town need not analyze potential impacts associated with the cul-desac area.
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This application does not request the approval of any new homes nor development of the three (3) parcels. As such, it is premature to consider issues relating to development of the parcels.
However, as the Appellant’s attorney has focused on this point in some detail, I would like to point out that if an A&S application were to be made to develop either parcel 2 or 3, staff and SCCFD would consider whether a cul-de-sac, a hammerhead turnaround or individual driveways would be appropriate for access to the properties. At that time, safety, removal of trees and other tangible concerns would be considered in greater detail. Such considerations are not relevant nor properly considered in connection with the LLA application.
Appellant’s further suggestion that slope should be taken into account at this stage is spurious, as Government Code Section 66412(d) does not permit this as a legal reason to deny an LLA.
It should also be noted that there are three (3) original existing legal parcels and there will remain three (3) parcels. The certificate of compliance for these parcels was approved by the Town prior to requesting the LLA and not challenged. Consideration of the LLA application is mandatory under controlling law, whereas the Town’s consideration of merger is permissive.
For instance, Municipal Code section 24.10.080, which addresses parcel mergers, specifies the Town “may” initiate a merger. There is no requirement that the Town initiate such a merger.
Moreover, there is no showing that the three (3) parcels would meet the requirements of a merger under section 24.10.080. As a result, there is no ‘intensification of use’ or ‘increasing density’ associated with this application, as Appellant suggests.
While it is unclear why Appellant has included “Exhibit F” with her appeal, she nonetheless misrepresents the nature of “Exhibit F” by describing it as a “Deed of Trust showing land transferred into Property Management Firm.” This is incorrect. Rather, Exhibit F simply shows that the owner’s (Mark von Kaenel) ‘Lender’ is a Property Management Company. The Property Management Company is a beneficiary of the Deed of Trust, not the owner. The two owners of the property are: (1) the original family, who have owned the property for several decades; and (2) Mark Von Kaenel, a long-time Los Gatos Resident for whom I have designed a personal residence in the past in Los Gatos.
Thank you
Tony Jeans
(408) 354-1833
From: Alison Steer
Sent: Monday, December 11, 2023 8:55 AM
To: Ryan Safty <[email protected]>
Cc: Jennifer Armer <[email protected]>
Subject: Re: Frontage from Los Robles Way
[EXTERNAL SENDER]
Hi Ryan,
In the Town Council appeal meeting on Dec 7th,2021, Tony Jeans mentioned that the public ROW will become a private ROW after the lot line adjustment which was not contested by staff at the meeting.
Please refer to the video at 1:32.
https://www.youtube.com/embed/XbCTU3Jj60w
You mentioned in your email that it's a public road? Who is correct, is it a public road or a private easement and who has responsibility for maintenance?
The Town's definition of a Street says it's the principal means of access to the abutting property, not THROUGH the property. Why would a street or an easement continue to exist after the lot line adjustment and go through a property to terminate at a house? "Street means any thoroughfare for motor vehicle travel which affords the principal means of access to abutting property, including public and private rights-of-way and easements".
Sincerely,
Alison Steer
ATTACHMENT 8
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ATTACHMENT 9
RESOLUTION 2023-___
RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
DENYING AN APPEAL OF THE PLANNING COMMISSION DECISION
TO APPROVE A LOT LINE ADJUSTMENT APPLICATION
IN ACCORDANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 66412(D) FOR THREE ADJOINING LOTS ON PROPERTY ZONED R-1:20.
APNs 532-36-075, -076, and -077
LOT LINE ADJUSTMENT APPLICATION M-23-001.
PROPERTY LOCATION: 17200 LOS ROBLES WAY
PROPERTY OWNERS: DARAN GOODELL, TRUSTEE AND MARK VON KAENEL.
APPLICANT: TONY JEANS. APPELLANT: ALISON STEER.
WHEREAS, on August 15, 2023, the Development Review Committee held a duly-noticed public hearing and considered a request for approval of a lot line adjustment application in accordance with California Government Code Section 66412(d) for three adjoining lots on property zoned R-1:20 (Proposed Project); and
WHEREAS, in preparation of the August 15, 2023 Development Review Committee hearing, Town staff prepared a Report to the Development Review Committee which detailed how the application is statutorily exempt from the California Environmental Quality Act (CEQA) as a ministerial approval in accordance with Public Resources Code Section 21080(b)(1) (CEQA Statute) and CEQA Guideline Section 15268, and how the required determinations pursuant to California Government Code Section 66412(d) for approving a lot line adjustment application were made; and
WHEREAS, on August 15, 2023, the Development Review Committee approved the Proposed Project based on the required determinations and recommended conditions of approval; and
WHEREAS, the facts in the record support the findings; and WHEREAS, on August 22, 2023, the appellant, an interested person, filed a timely appeal of the decision of the Development Review Committee approving the Proposed Project; and WHEREAS, on October 25, 2023, the Planning Commission held a duly-noticed public hearing and considered the appeal of the Proposed Project; and Draft Resolution to
be modified by Town
Council deliberations
and direction.
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Draft Resolution Date
WHEREAS, on October 25, 2023, the Planning Commission denied the appeal and approved the Proposed Project with modified conditions to clarify the intent of the cul-de-sac dedication condition of approval; and
WHEREAS, the facts in the record support the findings; and WHEREAS, on November 3, 2023, the appellant, an interested person, filed a timely appeal of the decision of the Planning Commission approving the Proposed Project; and WHEREAS, this matter came before the Town Council for public hearing on December 19, 2023, and was regularly noticed in conformance with State and Town law; and WHEREAS, the Town Council received testimony and documentary evidence from the appellant and all interested persons who wished to testify or submit documents. The Town Council considered all testimony and materials submitted, including the record of the Planning Commission proceedings and the packet of material contained in the Council Agenda Report for their meeting on December 19, 2023, along with any and all subsequent reports and materials prepared concerning this application; and
WHEREAS, the Town Council was unable to make the findings required to grant an appeal of a decision of the Planning Commission, in accordance with Town Code section
29.20.275, with the Town Council finding the following:
1. There was not an error or abuse of discretion by the Planning Commission; and
2. The Planning Commission decision is supported by substantial evidence in the record.
NOW, THEREFORE, BE IT RESOLVED:
1. The appeal of the decision of the Planning Commission decision to approve the Proposed Project, including the condition modified in the Planning Commission’s decision to clarify the intent of the cul-de-sac dedication condition of approval are upheld.
2. The decision constitutes a final administrative decision pursuant to Code of Civil Procedure section 1094.6 as adopted by section 1.10.085 of the Town Code of the Town of Los Gatos. Any application for judicial relief from this decision must be sought within the time limits and pursuant to the procedures established by Code of Civil Procedure section 1094.6, or such shorter time as required by State and Federal Law.
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Draft Resolution Date
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on the 19
th day of December 2023, by the following vote:
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
DATE: ___________________
ATTEST:
TOWN CLERK OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
DATE: ___________________
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PREPARED BY: Ryan Safty
Associate Planner
__________________________________________________________________________________________ Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Community Development Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 12/19/2023
ITEM NO: 17
ADDENDUM
DATE: December 18, 2023
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Consider an Appeal of a Planning Commission Decision to Approve a Lot Line Adjustment Application in Accordance with California Government Code Section 66412(d) for Three Adjoining Lots on Property Zoned R-1:20. Located at 17200 Los Robles Way. APNs 532-36-075, -076, and -077. Lot Line Adjustment Application M-23-001. Statutorily Exempt from CEQA as a Ministerial Approval in Accordance with Public Resources Code Section 21080(b)(1) (CEQA Statute) and CEQA Guidelines Section 15268. Application is Only for Ministerial Approval of a Lot Line Adjustment Pursuant to Section 66412(d) of the Subdivision Map Act. Property Owners: Daran Goodsell, Trustee and Mark Von Kaenel. Applicant: Tony Jeans. Appellant: Alison Steer.
Project Planner: Ryan Safty.
REMARKS:
Exhibit 10 includes a supplemental response letter to the appeal, received from the applicant on December 18, 2023.
ATTACHMENTS:
Previously received with the December 19, 2023 Staff Report:
1. October 25, 2023, Planning Commission Staff Report, with Exhibits 1 through 9
2. October 25, 2023, Planning Commission Addendum Report, with Exhibit 10
3. October 25, 2023, Planning Commission Verbatim Minutes
4. October 25, 2023, Planning Commission Action Letter
5. Appellant’s Rebuttal of Applicant Response Letter, received following 11:00 a.m., October 25, 2023
6. Appeal of the Planning Commission decision, received November 3, 2023
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SUBJECT: 17200 Los Robles Way/M-23-001
DATE: December 18, 2023
ATTACHMENTS (continued):
7. Applicant Response Letter to Appeal, received December 8, 2023
8. Additional Comment from Appellant, received December 11, 2023
9. Draft Resolution to Deny the Appeal and Uphold the Planning Commission Decision Received with this Addendum Report:
10. Supplemental Response to Appeal, Received December 18, 2023
ATTACHMENT 10
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PREPARED BY: Katy Nomura
Assistant Town Manager
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Finance Director 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 12/19/2023
ITEM NO: 18
DATE: December 7, 2023
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Authorize Revenue and Expenditure Budget Adjustments in the Amount of $125,000 to Recognize Receipt and Expenditure of a County of Santa Clara Grant Received by the Town, and Provide Direction on the Allocation of the Grant for Adult Day Services and/or Case Management in Consideration of the Recommendation from the Community Health and Senior Services Commission
RECOMMENDATION:
Authorize revenue and expenditure budget adjustments in the amount of $125,000 to recognize receipt and expenditure of a County of Santa Clara grant received by the Town, and provide direction on the allocation of the grant for adult day services and/or case management in consideration of the recommendation from the Community Health and Senior Services Commission.
BACKGROUND:
On June 15, 2023, the Santa Clara County Board of Supervisors approved a $125,000 grant for the Town to use towards adult day services and/or case management for adults aged 60 years or older. Supervisor Simitian worked with the Town Manager’s Office to create the proposal in light of the Town’s new Senior Services Roadmap and the Town’s efforts to help seniors thrive in Los Gatos. The Council authorized the Town Manager to execute the agreement on December 12, 2023. Grant funds must be expended by the Town by June 30, 2025 and are onetime funds.
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SUBJECT: County Grant for Adult Day Services and/or Case Management DATE: December 7, 2023
DISCUSSION:
The Town has full discretion over how much of the $125,000 to allocate towards adult day services and/or case management for older adults. Once allocations have been determined, the Town will conduct a competitive Request for Proposals (RFP) process to identify contract services vendors to provide the service(s). Due to the RFP process, this discussion should not focus on specific service providers but rather on how much to fund each type of service.
Adult Day Services
Based on input from a current older adult day service provider, Live Oak Adult Day Services, to provide a meaningful increase in service, additional staffing would cost approximately $25 per hour. An allocation of $41,000 sufficient to cover the cost of one full-time (35 hours/week) staff member which would raise the daily capacity of that agency from 15 adults served per day to 20. Town staff estimates that the fully benefited rate of a full-time position may be estimated at $67,000.
Case Management for Older Adults
Current recruiting announcements in the Bay Area show the hourly rate for Case Managers ranging from $30 to $40 per hour depending on education and qualifications. The fully benefited rate for a full-time position is estimated at $81,000 to $108,000. A graduate degree in Counseling, Social Services, or a related Behavioral Health field appears standard for this type of position. Due to the wide range of variabilities and needs that a client may present, as well as the varying levels of administrative support an organization may or may not have in place, it is difficult for staff to estimate the number of clients accommodated by either part-time or fulltime Case Manager positions.
Community Health and Senior Services Commission (CHSSC) Recommendation On November 30, 2023, the CHSSC recommended that the funds be divided to fund at least a
1.0 FTE for adult day services and to fund contract case management services with the remaining amount with a goal to be as close as possible to a 0.5 FTE for case management. This motion passed with a 4-1 vote (Commissioner Rossman opposed). The discussion of the Commissioners was universally in favor of splitting the funds between the two areas, but the dollar amount for the recommended split was debated, with one Commissioner voicing support for a division more heavily supporting case management.
Staff estimates the recommendation would result in $67,000 for a 1.0 FTE for adult day services and $58,000 for a 0.5 FTE for contracted case management. Public comment for this item included two speakers in support of splitting the funds, with one favoring case management and the other favoring adult day services.