Consideration of Two Appeals of the Planning Commission’s Decision to Conditionally Approve a Design Review Permit Application to Construct a New Single-Family Residence at 139 Lexford Road (Application DRPC2023-018)

City of Piedmont

COUNCIL AGENDA REPORT
DATE:

TO:

FROM:

April 1, 2024
Mayor and Council
Rosanna Bayon Moore, City Administrator
SUBJECT: Consideration of Two Appeals of the Planning Commission’s Decision to Conditionally Approve a Design Review Permit Application to Construct a New Single-Family Residence at 139 Lexford Road (Application DRPC2023-018)

RECOMMENDATION
By a single motion, take the following actions:

1. Deny the appeals (Attachments B and C)

2. Uphold the Planning Commission’s decision of a design review permit conditional approval,

3. Adopt the attached resolution (Attachment A,).

EXECUTIVE SUMMARY
Douglas A. Crosby, on behalf of Sven Khatri and Poppy Crum of 145 Lexford Road (“Appellant A”) has appealed the January 8, 2024 decision of the Planning Commission to conditionally approve the application for the construction of a new single-family residence at 139 Lexford Road.

The appeal, submitted on January 18, 2024, asserts that the findings made by the Planning Commission as a basis for its action are not supported by the weight of the evidence.

Christopher Van Gundy, Samantha Noble-Block, and Stuart Block (“Appellant B”) of 132 Lexford Road have also appealed the January 8, 2024 decision of the Planning Commission to conditionally approve the application for the construction of a new single-family residence at 139 Lexford Road.

The appeal, submitted by Appellant B on January 18, 2024, asserts that the findings made by the Planning Commission as a basis for its action are not supported by the weight of the evidence.

As explained in further detail in the staff report, Staff recommends that the City Council deny the appeals, and uphold the action taken by the Planning Commission.

BACKGROUND
The two appeals are in response to the January 8, 2024 Planning Commission decision to conditionally approve an application for design review permit submitted by the Property Owners (“Applicants”) of 139 Lexford Road. The application proposes to construct a new 4,573-squarefoot single-family residence on an existing vacant lot in Zone A (Single-Family Residential). The new Mediterranean style residence is proposed to be four levels terraced up the hillside and contain three bedrooms, two bathrooms, a half bath, dining room, kitchen, family room, office, laundry room, elevator, and conforming two-car garage. A front terrace is proposed at the upper level, and patios are proposed at the rear of the house. A proposed landscape plan has been submitted with retaining walls, stairs, walkways, and exterior lighting.

Because the application met the criteria of Piedmont City Code section 17.66.040(A)(1)(b), the application was subject to review by the Planning Commission.

The application was approved by the Planning Commission on January 8, 2024, subject to 29 conditions of approval. The appeals by Appellants A and B were filed on January 18, 2024.

Subject Property and Application Description
The existing property is unimproved and slopes upward from the street. A City-owned sewer line and easement cross the property and abut the east (right) property line bordering 145 Lexford Road. To address the topographic conditions of the lot, the house is proposed to be stepped into the hillside. The house is proposed to be 4,537-square feet on four levels (which includes the garage level). As the house rises, each level of the house is stepped further back on the hillside from the level below it.

A conforming two-car garage is proposed at the right side of the property, with an upwardly sloped driveway that meets the City’s maximum 20% slope requirement pursuant to Chapter 3.07.05 of the Piedmont Design Guidelines and Standards. The applicant proposes to excavate the right front portion of the hillside to accommodate the driveway, garage, and part of the office proposed atop the garage. The house has two wings connected by an elevator tower that provides access to all levels, including the garage.

Stylistically, the house has many “Mediterranean” characteristics. The proposed house would have integral color stucco wall surfaces, a ceramic tile roof, bronze anodized aluminum sash windows, metal railings, copper gutters and downspouts, and mechanically operated wooden garage doors.

The proposed landscape plan includes a mix of trees, shrubs, smaller plants and ground covers. It proposes to preserve several existing oak trees in the upper left corner, and several eucalyptus trees at the upper right corner adjacent to 145 Lexford Road. Several new oak trees are proposed at the front of the property.

APPLICATION HISTORY:

Multiple applications to construct a new single-family residence at this property have been submitted to the City, and a chronology of these previous applications is included with the Planning Commission staff report.

COMMISSION DELIBERATIONS AND ACTION:

The Planning Commission considered the application at their regularly scheduled meeting on January 8, 2024. The Planning Commissioners reviewed the application materials, the staff report and the written comments submitted by members of the public (see agenda report page 12 for hyperlinks to these documents). The Commissioners also made site visits to the Applicant’s property. At the Planning Commission hearing, the majority of oral public comments related to concerns regarding the construction phase of the project. Community members generally stated that although they are supportive of the project, the prospect of a new family in the neighborhood and the overall design and aesthetic qualities of the proposed residence, the concerns they have Agenda Report Page 2
regarding the construction of the project pertain to the geotechnical characteristics of the hillside.

Therefore, their comments were focused on requesting additional protections for neighboring properties, and certain conditions of approval for the project.

The Commission determined that the Project was categorically exempt from the California Environmental Quality Act (“CEQA”) under Sections 15303 and 15304 of the CEQA guidelines and found that the project met the standards for approval. As noted in the meeting minutes, the Commission found that none of the comments received were opposed to the design of the residence, and that evidence had been provided from multiple geotechnical engineers that indicated the site is viable for development. The January 8, 2024, meeting minutes are provided via a hyperlink on page 12 of this agenda report.

Design Review Findings
The Commission determined that the project complies with the design review criteria set forth in Section 17.66.060 of the Piedmont City Code with the following findings:

1. The proposed design is consistent with the City's General Plan and Piedmont Design Guidelines. The following building features are consistent with the original architecture and neighborhood development including the wall material, the building articulation, the roof form, the roof material, stepping of the building into the slope, the window and door material, the fenestration pattern, the eave overhang design and dimension, the guardrail material, and the relationship of the proposed residence to the site, to existing topography, and to neighboring residences including the locations of driveways.

2. The design has little or no effect on neighboring properties' existing views, privacy, and access to direct and indirect light because the distance between the project and neighboring homes is appropriate. The view is not a significant view. There is sufficient vegetative screening. The topographical differences are appropriate to preserve privacy, views and light as exemplified by the slope and trees. The height of the project has been kept as low as possible and tucks into the slope wherever possible.

3. The proposed design does not adversely affect pedestrian or vehicular safety because the project maintains adequate visibility for entering and exiting the driveway and adjacent driveways are common in Piedmont. The new handrails and on-grade steps should facilitate pedestrian safety. The separation between the proposed driveway and the pedestrian path of travel on the property and in the public right-of-way is safe and appropriate because the project includes both the construction of a sidewalk along the frontage on Lexford Road and pedestrian access that is distinct from the garage access.

4. As conditioned, the application complies with the following Design Review Guidelines and General Plan policies and programs: Site Design 3.03, 3.05, 3:08, 3.09, 3.11, 3.12, 3.13, Building Design: General 4.01, 4.02, 4.03, 4.04, 4.05, and Design: Single Family Residential

5.01, 5.02, 5.04.

5. The project is consistent with General Plan policies and programs, including the land use element, housing element, and design and preservation element, including: Design and Preservation Element Policy 18.4 (Soil and Geologic Reports), Design and Preservation Element Policy 22.1 (Noise Insulation for New Development), Design and Preservation Element Policy 22.2 (Noise Reduction Measures), Design and Preservation Element Policy

28.1 (Scale, Height, and Bulk Compatibility), Design and Preservation Element Policy 28.2 (Style Compatibility), Design and Preservation Element Policy 28.4 (Setback Consistency), Design and Preservation Element Policy 28.5 (Garages, Decks, and Porches), Design and Preservation Element Policy 28.6 (Exterior Materials), Design and Preservation Element Policy 28.7 (Hillside Home Design), Design and Preservation Element Policy 28.8 (Acoustical Agenda Report Page 3
and Visual Privacy), Design and Preservation Policy 28.12 (Creativity and Innovation), Design and Preservation Element Policy 29.1 (Conserving Residential Yards), Design and Preservation Element Policy 29.2 (Landscape Design), Design and Preservation Element Policy 29.3 (Front Yard Enclosures), Design and Preservation Element Policy 29.4 (Maintaining Privacy), Design and Preservation Element Policy 29.5 (Fence and Wall Design), Design and Preservation Element Policy 29.6 (Retaining Walls), Design and Preservation Element Policy 29.7 (Driveway and Parking Location), Design and Preservation Element Policy 29.8 (Exterior Lighting), and Design and Preservation Element Policy 29.9 (Sight Obstructions).

Copies of the City of Piedmont Design Guidelines and Standards and the City of Piedmont General Plan are provided on the City’s website.

DISCUSSION
This section details the requirements for considering appeals and analyzes the Appellants’ bases for appeal.

A. Appeal Criteria
Section 17.78.040 of Piedmont’s City Code sets forth the standards of review for an appeal as follows:

A. General. An appeal is not a de novo hearing, but instead will be governed by the following principles:

1. Deference. Due deference shall be given to the actions of the Planning Commission in light of the substantial number of planning applications heard by them and the major accumulated group experience that those actions represent.

2. Grounds for overruling decision. The appeal body may overrule the action of the decision maker only if one of the following occurs:
a. the findings made by the decision maker as a basis for its action are not supported by the weight of the evidence;
b. there is a significant error in the application of the requirements of this chapter 17 or other requirements of the City Code;
c. there is a significant error in the application of the Piedmont Design Guidelines; or d. significant errors in the application, plans, drawings or other materials provided to the decision makers are discovered after the hearing, which were a basis of the decision.

3. Burden of proof. During an appeal, the burden of proof is on the Appellant.

B. Analysis of Appeal by Douglas A. Crosby representing the owners of 145 Lexford Road (“Appellant A”)
Appeal Form and Statement
Attached as Attachment B is a copy of the Appellant A’s original appeal form and statement filed on January 18, 2024, stating the reasons for the appeal.

Agenda Report Page 4
Staff Analysis of Appeal
Appeal Basis #1: The Planning Commission’s decision erred in concluding that the side yard setback on the east boundary of the 139 Property meets the required 5 feet minimum.

Staff’s Analysis: Appellant misconstrues the City of Piedmont’s definition and application of the term “setback”.

Appellant contends that the 5-foot minimum setback is not met because there is a prescriptive easement, and the 5-foot setback must be calculated from the easement. However, this is incorrect.

Per Section 17.90.020 of the Piedmont City Code, a setback is defined as “the required distance that a building, structure or other designated item must be located from a lot line. Setbacks are measured from the lot line to the footprint of the structure or building.” This definition does not make a distinction regarding the presence of an easement, nor does it mention the term “easement.” Applying the definition of “setback” in the City code requires that the side-yard setback for Zone A, as defined in Section 17.20.040, is measured five feet away from the property line. Based on staff’s review, the project complies with the 5-foot setback requirement.

Additionally, per the topographical survey prepared by Moran Engineering on October 5, 2023, the entirety of the 5-foot sewer easement is located on the applicant’s property. Condition 12 requires prior to the foundation inspection taking place, the applicant to submit to the Building Official written verification by a licensed land surveyor stating that the construction is located at the setback dimension from all of the property lines as shown on the approved plans. Any dispute regarding the nature of the easement and any uses occurring within the easement (i.e. if there are any “prescriptive” components afforded to the appellant’s property) is a private land-use matter that is not within the purview of the City.

Appeal Basis #2: The Planning Commission erred in addressing only the eucalyptus tree along the east boundary line in its conditions of approval.

Staff’s analysis: Appellant mistakes the wording of Condition 18 regarding tree protection.

Appellant contends that Condition of Approval No. 18 fails to take into account other trees located along the east property line, where there are at least 10 trees. However, Appellant’s condition reference is incorrect: Condition 18 requires an arborist’s report and certified tree preservation plan “that includes tree preservation measures to preserve the existing Oak trees in the upper left portion of the property and the Eucalyptus trees along the east property line.” The condition applies to the entirety of the Eucalyptus specimens along the east property line, not any one specific tree.

The condition as written clearly addresses Appellant A’s concerns regarding preserving the health of the most prominent trees and taking proper measures to do so. Regarding the smaller trees and shrubs, such as existing maple, juniper, and bamboo, any removal and replacement of these is covered by the Final Landscape Plan condition, which states proposed landscaping is reviewed by staff to ensure that it complies with the approval criteria for the application, especially the design review findings made by the Planning Commission.

Additionally, it is important to note that the Eucalyptus trees in question are located on the applicant’s property. The City’s Design Guidelines and Standards do not consider the view of trees from a neighboring property to be a significant view that is subject to protections and any visual impacts from a proposed tree removal would not be subject to the required findings of a design review permit. Furthermore, in the event of a tree removal, the condition requiring the planting of in-lieu trees requires the proposed trees to be called out on the Final Landscape Plan, which is subject to staff approval per condition 17. There is no requirement that the in-lieu trees be planted Agenda Report Page 5
on an opposite side of the lot, and no requirement that inhibits the ability to plant in-lieu trees in the vicinity of the east property line. The Final Landscape Plan condition also requires a staff review to ensure that any proposed landscaping does not compromise privacy or create new privacy impacts through the modification of the existing landscape.

Appeal Basis #3: The Planning Commission’s decision erred in failing to acknowledge the potential damage the 145 Owners will experience as a result of construction and grading so close to the driveway on the 145 Property.

Staff’s analysis: This basis of appeal disregards the conditions of approval that the Planning Commission placed on the application to ensure the safety of the surrounding properties.

Appellants contend that the steep slope and significant excavation would deprive the neighboring properties of lateral and subjacent support. However, geotechnical reports provided by the applicant indicate that the rock present has engineering characteristics which make it an excellent medium for foundation support. Additionally, the reports and resources from State and Federal geological surveys indicate that the rock composition on 139 Lexford is the same as 145 Lexford and the surrounding neighborhood.

Additionally, the Planning Commission placed 29 conditions of approval on the application in order to address potential factors and variables during the permitting and construction phases of the project. Specifically, the following conditions of approval address the engineering and construction phases that could have a potential impact on the 145 Lexford Property:
- Condition 7. Contractor’s General Liability Insurance. Requires $2 million per occurrence for damages to City property or to neighboring property. - Condition 8. Modifications to Conditions. Authorizes the Planning & Building Director to modify conditions 7, 22, and 25 (e.g., to increase insurance or security amounts). - Condition 12. Setback from Property Line Verification. Requires licensed surveyor verification that construction is at the approved dimension from the property line. - Condition 16. Stormwater Design. Alerts the applicant that the project must incorporate site design measures as required by Provision C.3.i of the Municipal Regional Stormwater NPDES Permit.
- Condition 19. Foundation/Shoring/Excavation Plan. Alerts the applicant that the building permit application must include foundation, excavation, shoring plans prepared by a licensed engineer, which will be reviewed by the City Engineer.
- Condition 20. Geotechnical Report and Review (with Peer Review). Alerts the applicant that the building permit application must include a report by a geotechnical engineer assessing site conditions and recommending construction methods, which will be peer reviewed. - Condition 21. Sound and Vibration Mitigation Plan and Review (with Peer Review).

Alerts the applicant that the building permit application must include a plan prepared by a licensed engineer to mitigate and monitor vibration and decibel levels during construction, which will be peer reviewed.
- Condition 25. Site Safety Security. Requires a security of $15,000 to make the site safe in the event that construction is unfinished.
- Condition 26. Subsidence. Alerts the applicant that should geologic instability occur during construction the project may be stopped until stabilized to the satisfaction of the City Engineer. - Condition 27. Construction Management Plan. Alerts the applicant that the building permit application must include a comprehensive plan to manage and complete construction. - Condition 28. Construction Completion Schedule. Alerts the applicant that the building permit application must include a plan for the completion of construction benchmarks, and Agenda Report Page 6
sets procedures for modifications and enforcement.

Moreover, City Code Section 17.06.010 explicitly states that on-site improvements not covered by [Chapter 17 of the Piedmont City Code], such foundation or below-grade work or any other construction work not requiring design review, are subject to the requirements of Piedmont City Code chapter 8 Building, Construction and Fire Prevention. Per City Code Section 17.80.030, the Chief Building Official is responsible for enforcing the City Code regarding the erection, construction, reconstruction, moving, conversion, alteration, or addition to a building or structure.

Furthermore, Section 17.06.030 specifically requires the Chief Building Official to withhold issuing a building permit for the construction, alteration, or establishment of an improvement or use within the city contrary to [Chapter 17 of the Piedmont City Code].

With respect to engineering reviews and oversight, as part of processing the building permit, the Building Official typically relies on the City Engineer to review the portion of the building plans associated with site grading, drainage and utilities. In the review, the City Engineer reviews the plans, soils report, drainage facilities and calculations and all site utilities to ensure that they meet code, as well as that the grading takes into account recommendations as outlined in the soils report, including grading, site slope stabilization, recommended shoring, proposed cuts and fills, and proposed mitigation. Once the City Engineer is satisfied that the plans are acceptable, the City Engineer will notify the Building Official that the site grading, drainage and utilities plans are acceptable and ready for approval. During construction, the City Engineer or his designee will assist the Building Department in reviewing grading operations and utilities to ensure that construction is taking place in accordance with the approved plans. If site safety is a concern, the contractor, Building Official, City Engineer and Geotechnical Engineer will be immediately notified of any concerns and those concerns will need to be immediately addressed by the contractor.

C. Analysis of Appeal by Christopher Van Gundy, 132 Lexford Road (“Appellant B”) Appeal Form and Statement
Attached as Attachment C is a copy of the Appellant B’s original appeal form and statement filed on January 18, 2024, stating the reasons for the appeal.

Staff Analysis of Appeal
Appeal Basis #1: The Planning Commission’s decision to remove critical financial security obligations for the Project that have been in place since at least 2007 is unsupported by evidence that puts that community and the City at risk.

Staff analysis: Appellant disregards numerous applications approved by the Planning Commission since 2017 without the referenced financial security obligations.

Appellant requests the following conditions:

1. A neighboring property inspection prior to construction to establish baseline conditions for neighboring structures and foundations.

2. A neighboring property damage security bond of $3,000,000.

3. A site safety and security bond/performance bond of $200,000.

4. A city facilities security bond of $350,000.

Agenda Report Page 7
However, based on Staff’s review, the conditions Appellant requests are not required to be imposed. Since the prior project approvals, the City has approved multiple projects with similar scopes that did not include the cited conditions:
- 43-47 Bellevue Avenue: Significant site grading across a large, sloped parcel. - 89 Maxwelton Avenue: Construction of a new single-family residence and garage on a vacant lot.
- 40 Crocker Avenue: Significant site grading to accommodate a new two-story garage in the street-yard setback.

All of these projects did not have conditions requiring financial instruments to address adjacent private properties.

Additionally, the Conditions of Approval imposed by the Planning Commission do require significant financial obligations.

As background, Section 17.64.030 allows the reviewing body to impose reasonable conditions on a project to do the following:

1. Achieve the general purposes of this chapter or the specific purposes of the zoning district in which the site is located, or to make it consistent with the General Plan and Piedmont Design Standards and Guidelines;

2. Protect the public health, safety, and general welfare; or

3. Ensure operation and maintenance of the use in a manner compatible with existing and potential uses on adjoining properties or in the surrounding area.

Additionally, this section allows, though does not require, the review body to impose a condition of approval requiring a guarantee (in the form of a bond, cash deposit, letter of credit or other guarantee) that specified conditions of approval will be met.

In approving this application, the Planning Commission placed the following conditions on the project:
- Condition 7. Contractor’s General Liability Insurance. Requires $2 million per occurrence for damages to City property or to neighboring property. - Condition 22. City Facilities Security. Requires a security of $100,000 as an initial sum to cover the cost to repair damage to City property (e.g., sidewalks, roadways) damaged by construction activity.
- Condition 25. Site Safety Security. Requires a security of $15,000 to make the site safe in the event that construction is unfinished.

The dollar amount required for the Contractor’s General Liability Insurance, City Facilities Security and the Site Safety Security were determined in consultation with the Public Works Director and City Engineer in recognition that these are base amounts and can be increased per Condition #8. The Site Safety Security was determined sufficient to erect a fence to enclose and secure the site, and to install minor protections to any structures. The City Facilities Security was determined sufficient to cover the cost of minor repairs to the sidewalk in front of the site and to the roadway along the route between the site and the City border at Estates Drive and Park Boulevard. The table below provides information on other recent projects for new construction, additions or major remodels.

Agenda Report Page 8
Project Site Year Gen. Liability Ins. Site Safety Security City Facilities Security 55 Glen Alpine Rd. 2023 $2,000,000 Not required Not required 58 York Dr. 2022 Not required Not required Not required 89 Sea View Ave 2021 $1,000,000 Not required $25,000
87 Sea View Ave 2020 $2,000,000 Not required $25,000
40 Crocker Ave. 2020 $1,000,000 Not required Not required 89 Maxwelton Rd. 2019 $1,000,000 $50,000 $100,000
43/47 Bellevue Ave. 2019 $1,000,000 $50,000 $100,000
67 Glen Alpine Rd. 2019 $1,000,000 $50,000 $100,000
1635 Grand Ave. 2019 $1,000,000 $50,000 $100,000
26 Ronada Ave. 2018 $1,000,000 $25,000 $25,000
Additionally, condition 8 “Modifications to Conditions” explicitly allows the City to modify the aforementioned conditions, including the monetary bond and insurance requirements included.

These conditions serve to address any potential impacts of the application on the public realm.

Any construction-related damage or impacts that circumvent the conditions of approval or the building code and construction requirements imposed by the Planning & Building Department would constitute a private land-use dispute within the judicial system.

Appeal Basis #2: The Planning Commission erred in not updating the applicable bond and insurance requirements.

Appellant requeststhat the conditions of approval included by the Planning Commission be revised to increase the monetary amounts to reflect price adjustments calculated by the Consumer Price Index and California Construction Cost Index.

Appellant ignores the mechanisms within the approval to explicitly address adjustments to bond and insurance requirements.

The amounts included in conditions 7, 22, 23, 24, and 25 were determined after consultations with the City Attorney’s Office, the City Engineer, and the Public Works and Planning and Building directors. Additionally, condition 8 “Modifications to Conditions” explicitly allows the City to modify conditions 7, 22, and 25, including the monetary bond and insurance requirements the appellant highlights. Regarding conditions 23 and 24, which are not covered by condition 8, both have requirements that if the cash deposit has been reduced to $2,500 or less ant any time, the Director of Public Works may require the Property Owner to deposit additional funds to cover any further estimated fees and expenses associated with external consultants and legal counsel.

The Commission delegated the responsibilities to assess the technical and financial requirements of the project to the expertise and analytical ability of City staff and consultants. Additionally, the conditions included within the approval provide financial flexibility to address any potential evolution of the project during the building permit review and construction phases.

Appeal Basis #3: The Planning Commission erred in concluding that the Category 3 exemption under the California Environmental Quality Act (“CEQA”) applies to the proposed project.

Appellant’s contention that an exception to the application of the categorical exemption applies, based on unusual circumstances, is unsupported.

Section 15303(a) of the California Environmental Quality Act guidelines (“Small Structure Exemption”) explicitly provides for a categorical exemption for the “construction and location of limited numbers of new, small facilities or structures,” and cites “[o]ne single-family residence, or a second dwelling unit in a residential zone” as an example of an exempt project under Section 15303. The exemption covers up to 6 dwelling units in urbanized areas. The application proposes a single-family residence in Zone A, which is one of Piedmont’s residential zones. Section 15304 Agenda Report Page 9
(b) of the California Environmental Quality Act guidelines explicitly provides for a categorical exemption for “new gardening or landscaping, including the replacement of existing conventional landscaping with water efficient or fire-resistant landscaping”. The project proposes to install new landscaping throughout the site.

Under CEQA, a categorical exemption does not apply if there are unusual circumstances. (CEQA Guidelines, Section 15300.2.) The unusual circumstances exception to the exemption applies when both: (1) unusual circumstances, and (2) a significant impact as a result of those unusual circumstances, are shown. (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1104.) The Appellant has the burden of demonstrating that the project “has some feature that distinguishes it from others in the exempt class, such as its size or location.” (Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943, 952.) The Appellant contends that the Small Structure Exemption is not appropriate because unusual circumstances are present, due to: (1) unusually hard bedrock at the project site, which is encountered at a relatively shallow level of 6 feet; (2) the steepness of the slope and significant grading; and (3) a history of landslides on the property and in the neighboring vicinity. Thus, according to Appellant, the bedrock, the steepness of the slope and significant grading activities, and landslides are unique conditions that are unusual for projects subject to the Small Structure Exemption. Based on staff’s analysis, none of these conditions presents unusual circumstances under CEQA.

As to the hardness of the bedrock at a 6-foot depth, City records indicate that this is not a unique characteristic of the 139 Lexford property. At 67 Glen Alpine Road and at 89 Maxwelton Road, test bores indicated that the properties encountered bedrock at a depth between 1.5-7 feet and 4-6 feet respectively. Also, in 2010, the City conducted an undergrounding project along Crest Road (approximately 700 feet west of the subject property) and encountered the same bedrock, thereby supporting the finding that other, neighboring single family residences have this similar characteristic. Moreover, construction techniques such as the use of jackhammering is not unusual for such projects.

As to the steepness of the slope and the significant grading activities, City staff have also determined this is not unique to the 139 Lexford property. The City’s records indicate several examples of single-family home construction on sloped lots which require significant grading in Piedmont. Recent examples include:
- 43-47 Bellevue Avenue (significant site grading across a large, sloped parcel) – 30% slope. - 89 Maxwelton Avenue (construction of a new single-family residence on a steep lot) – 42% slope.
- 40 Crocker Avenue (significant site grading to accommodate a new two-story garage in the street-yard setback) – 42% slope.

Additionally, the subject property’s slope (up to 60%) is analogous to those of adjacent parcels and other lots within the neighborhood:
- 87 Huntleigh Road – 24% slope
- 145 Lexford Road – 46% slope
- 150 Somerset Road – 59% slope
- 140 Somerset Road – 58% slope
- 130 Somerset Road – 48% slope
- 135 Lexford Road – 48% slope
- 132 Lexford Road – 40% slope
- 140 Lexford Road – 51% slope
Agenda Report Page 10
As to landslides, the geotechnical evidence, including the State’s Landslide Inventory, indicates that a landslide has not occurred on the property in over 40 years, and that landslides on developed properties are not unusual in Piedmont. Recent examples of landslides on developed properties include: 3 and 5 Maxwelton Road (caused by faulty irrigation systems), 519 Hampton Road (caused by construction without a building permit), and 183 Somerset Road (unknown cause but occurred during heavy rains).

Thus, based on the foregoing, the circumstances cited by the Appellant do not constitute unusual circumstances under CEQA.

D. Conclusion
Based on the foregoing reasons, the Appellants have not met the burden of demonstrating that the Planning Commission’s decision was in error.

CITY COUNCIL ACTION REQUIRED:

City Council action is required to uphold or overturn the decision of the Planning Commission.

By: Kevin Jackson, Planning & Building Director
Joshua Muller, Assistant Planner
ATTACHMENTS:

A Resolution Denying the Appeals of the Planning Commission decision to conditionally approve the design review permit application DRPC2023-018 for 139 Lexford Road
B January 18, 2024, appeal submitted by Douglas A. Crosby, on behalf of Sven Khatri and Poppy Crum of 145 Lexford Road (“Appellant A”) C January 18, 2024, appeal submitted by Christopher Van Gundy, Samantha NobleBlock, and Stuart Block of 132 Lexford Road (“Appellant B”) D Public Comments received from January 9 through noon, March 28, 2024 Documents provided through hyperlink:

Application Materials, Design Review Permit Application DRPC2023-018 Planning Commission Staff Report, dated January 8, 2024, Consideration of an Application for Design Review Permit for Proposed Construction at 139 Lexford Road Meeting Minutes, Piedmont Planning Commission, January 8, 2024 (see minutes pages 10-21) Public Comments submitted up to January 8, 2024, for the Planning Commission’s consideration Meeting Video:

January 8, 2024 Planning Commission:
https://piedmont.granicus.com/player/clip/2846?view_id=3&redirect=true&h=b7d0f2f019add19 527e9325444bf4f73
Agenda Report Page 11
1 RESOLUTION ______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PIEDMONT DENYING

TWO APPEALS OF THE PLANNING COMMISSION DECISION TO

CONDITIONALLY APPROVE THE DESIGN REVIEW PERMIT
APPLICATION DRPC2023-018 FOR 139 LEXFORD ROAD AND FINDING THE

PROJECT EXEMPT UNDER CEQA
WHEREAS, on October 2, 2023, Willis Yu (“Applicant”) applied for a design review permit that proposed to construct a new 4,573-square-foot single-family residence on an existing vacant lot in Zone A (Single-Family Residential). The new Mediterranean style residence is proposed to be four levelsterraced up the hillside and contain three bedrooms, two bathrooms, a half bath, dining room, kitchen, family room, office, laundry room, elevator, and conforming two-car garage. A front terrace is proposed at the upper level, and patios are proposed at the rear of the house. A proposed landscape plan has been submitted with retaining walls, stairs, walkways, and exterior lighting. (the “Project”); and
WHEREAS, on January 8, 2024, the Planning Commission held a public hearing to consider the Project, reviewed written comments from the public, received oral comments from the public, discussed the matter, and at the conclusion of the public hearing, the Planning Commission conditionally approved the Project, finding that the Project is categorically exempt from CEQA per Sections 15303 (a) and 15304 and that none of the exceptions to the exemptions apply, and that the project is consistent with the City’s General Plan and Piedmont Design Gudielines and Standards; and
WHEREAS, on January 18, 2024, Douglas A. Crosby, on behalf of Sven Khatri and Poppy Crum of 145 Lexford Road (“Appellant A) and Christopher Van Gundy and Stuart Block (“Appellant B”) of 132 Lexford Road appealed the Planning Commission decision in accordance with Division

17.78, Appeals; Calls for review, of the Piedmont City Code (“Appeal”); and WHEREAS, on March 18, 2024, a 14-day public notice was duly given to the Applicants, the Appellant, the surrounding property owners notified in the original application hearing, and to any other person requesting notice, in accordance with Section 17.78.030 and Section 17.66.050 of the City Code; and
WHEREAS, based upon all of the evidence in the record and after reviewing the application, plans and any and all oral or written testimony and documentation submitted in connection with the Project, the Piedmont City Council denies the appeal and upholds the findings rendered by the Planning Commission to conditionally approve the application for designs review permit, and finds that the Planning Commission’s decision is supported by the weight of the evidence:

WHEREAS, the City Council of the City of Piedmont finds that:
the Project complies with the design review criteria set forth in Section 17.66.060 of the Piedmont City Code for the following reasons:

1. The proposed design is consistent with the City's General Plan and Piedmont Design Guidelines. The following building features are consistent with the original architecture and neighborhood development including the wall material, the building articulation, the roof form, the roof material, stepping of the building into the slope, the window and door material, the fenestration pattern, the eave overhang design and dimension, the guardrail Attachment A Agenda Report Page 12
2 material, and the relationship of the proposed residence to the site, to existing topography, and to neighboring residences including the locations of driveways.

3. The proposed design does not adversely affect pedestrian or vehicular safety because the project maintains adequate visibility for entering and exiting the driveway and adjacent driveways are comment in Piedmont. The new handrails and on-grade steps should facilitate pedestrian safety. The separation between the proposed driveway and the pedestrian path of travel on the property and in the public right-of-way is safe and appropriate because the project includes both the construction of a sidewalk along the frontage on Lexford Road and pedestrian access that is distinct from the garage access.

4. As conditioned, the application complies with the following Design Review Guidelines and General Plan policies and programs: Site Design 3.03, 3.05, 3:08, 3.09, 3.11, 3.12,

3.13, Building Design: General 4.01, 4.02, 4.03, 4.04, 4.05, and Design: Single Family Residential 5.01, 5.02, 5.04.

28.12 (Creativity and Innovation), Design and Preservation Element Policy 29.1 (Conserving Residential Yards), Design and Preservation Element Policy 29.2 (Landscape Design), Design and Preservation Element Policy 29.3 (Front Yard Enclosures), Design and Preservation Element Policy 29.4 (Maintaining Privacy), Design and Preservation Element Policy 29.5 (Fence and Wall Design), Design and Preservation Element Policy

29.6 (Retaining Walls), Design and Preservation Element Policy 29.7 (Driveway and Parking Location), Design and Preservation Element Policy 29.8 (Exterior Lighting), and Design and Preservation Element Policy 29.9 (Sight Obstructions).

NOW, THEREFORE, BE IT RESOLVED that the Piedmont City Council does hereby resolve, declare, determine, and order as follows:

SECTION 1. The above recitals are correct and that the Piedmont City Council finds that the Appellants have not met the burden of proof that errors were made by Planning Commission or Planning & Building Department staff, pursuant to Section 17.78.040(A)(2) of the Piedmont City Code, and have not met their burden to demonstrate that the Planning Commission’s findings made as a basis for its action were not supported by the weight of the evidence.

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3 SECTION 2. The City Council denies the appeals and upholds the Planning Commission’s conditional approval of the Design Review Permit application to construct a new 4,573-squarefoot single-family residence on an existing vacant lot in Zone A (Single-Family Residential). The new Mediterranean style residence is proposed to be four levels terraced up the hillside and contain three bedrooms, two bathrooms, a half bath, dining room, kitchen, family room, office, laundry room, elevator, and conforming two-car garage. A front terrace is proposed at the upper level, and patios are proposed at the rear of the house. A proposed landscape plan has been submitted with retaining walls, stairs, walkways, and exterior lighting.

SECTION 3. The City Council finds that the Project is exempt from the California Environmental Quality Act pursuant to CEQA Guidelines section 15303 and 15304. Section 15303 (a) of the California Environmental Quality Act guidelines (“Small Structure Exemption”) explicitly provides for a categorical exemption for the “construction and location of limited numbers of new, small facilities or structures,” and cites “[o]ne single-family residence, or a second dwelling unit in a residential zone” as an example of an exempt project under Section 15303. The exemption covers up to 6 dwelling units in urbanized areas. The application proposes a single-family residence in Zone A, which is one of Piedmont’s residential zones. Section 15304 (b) of the California Environmental Quality Act guidelines explicitly provides for a categorical exemption for “new gardening or landscaping, including the replacement of existing conventional landscaping with water efficient or fire resistant landscaping”. The project proposes to install new landscaping throughout the site. Additionally, the Council finds that there are no unusual circumstances, including because the characteristics of the project as a single family residence, proposed for a sloped lot, requiring grading and excavation activities, where the lot features hard bedrock at a level of 6 feet or of a shallower dept. Such conditions are not unusual, as demonstrated by the characteristics and history of multiple properties throughout Piedmont, including 43-47 Bellevue Avenue, 67 Glen Alpine Road, 89 Maxwelton Road, 40 Crocker Avenue, 519 Hampton Road, and 183 Somerset Road. This finding is based on substantial evidence, and in making this finding the City Council incorporates all staff reports, public comments, and any documentary evidence by reference.

SECTION 4. The Planning and Building Director is the custodian of documents and other materials that were considered by the City Council and constitute the record of proceedings on which this decision was based. The records are located at the Planning & Building Department, 120 Vista Avenue, Piedmont, CA 94611.

SECTION 5. All portions of this resolution are severable. If an individual component of this Resolution is adjudged by a court to be invalid and unenforceable, then the remaining portions will continue in effect.
[END OF RESOLUTION]
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Public Comments received January 9 through noon March 28, 2024, regarding design review permit application DRPC2023-018, 139 Lexford Road
January 18, 2024
Dear Piedmont City Council,
I hope this message finds you well. I am writing to formally submit my signed copy of the "Appeal of January 8, 2024, Planning Commission Decision Regarding 139 Lexford Road." Unfortunately, I was unable to personally deliver this document in person due to my current travel commitments.

I understand that my neighbors have already submitted a group appeal document in person, and I appreciate their efforts in ensuring that our concerns are heard by you. To maintain transparency and ensure that my appeal is included in the official records, I am emailing my signed copy to you, along with the confirmation of receipt for your reference.

Please find attached the signed appeal document, as well as the confirmation of receipt, which verifies the submission's date and time. I kindly request that you include my appeal in the ongoing proceedings.

Thank you for your attention to this matter, and I look forward to a fair and thorough consideration of our appeal.

Sincerely,
Feng Pan
140 Somerset Rd
January 18, 2024
Dear Piedmont City Council,
I am writing to formally submit my signed copy of the "Appeal of January 8, 2024, Planning Commission Decision Regarding 139 Lexford Road." Unfortunately, I was unable to personally deliver this document in person.

Thank you for your attention to this matter, and I look forward to a fair and thorough consideration of our appeal.

Attachment D Agenda Report Page 133
Sincerely,
Mohammad R. Bazargani,
150 Somerset Road, Piedmont Ca
February 28, 2024
Dear council members:

Today, we stand united, not just as neighbors but as a collective force, ready to address the challenge before us—a litigation on 139 Lexford Road that's difficult to build upon. Yes, the upcoming construction will disrupt our lives. For six months, we'll endure traffic, trucks, and the relentless noise of jackhammers. But let's be clear: this temporary inconvenience pales in comparison to the potential legal battles our city council would face by ignoring the facts we've painstakingly gathered about this land.

Over recent months, we've united like never before, conducting inspections and consulting with experts to understand the true nature of this terrain. Our findings are not opinions but hard facts, evidencing the significant challenges and risks associated with building on this site.

Our unity and collective intelligence as neighbors are our strengths. We've come together, not just to oppose for the sake of opposition, but to ensure any development is safe, practical, and considerate of our community's integrity. This is about doing the right thing—for today and for our future.

Let this be a message to the city council: We are a unified, informed group. Ignoring our findings not only risks unnecessary legal turmoil but also disregards the voice of a community committed to the well-being of our neighborhood. Our unity and resolve are strong. We stand ready to engage constructively, but we are also prepared to protect our interests.

Thank you for your attention, your support, and your unwavering commitment to our community. Together, we are not just neighbors; we are a formidable force advocating for the right course of action for the city of Piedmont.

Thank you.

Sebastien Sahuc
February 21, 2024
Dear Honorable City Council of Piedmont Members, Mayor Cavenaugh, Vice Mayor Betsy Smegal Anderson, Council Member Conna McCarthy, Council Member Jennifer Long, and Council Member Tom Ramsey:

We are writing to you in support of our Neighborhood Appeal to The City Council dated January 18, 2024 regarding the January 8, 2024 Planning Commission Decision Regarding 139 Lexford Road. Our concerns are very serious regarding that if a house is constructed at 139 Lexford Road that it is built responsibly and safely for all of Piedmont and our neighborhood.

Attachment D Agenda Report Page 134
Please see the attached copy of our letter to the Piedmont Planning Commission dated December 24, 2023 along with a copy of our Planning Application Comment Form of December 21, 2023 requesting that if a house is constructed at 139 Lexford Road that 11 protections be required of both The City and the developers to protect both Piedmont and the neighboring homes. When you read our letter, please note that most of these protections were set as a precedent in the past and historically required in the previously approved building permits.

However, these protections for both The City and the neighboring homes were removed in the current approved January 8, 2024 Planning Commission Decision.

More recently, Moran Engineering who performed surveys a few years ago for us at our home at 125 Lexford Road contacted me to gain access to our backyard to get to the “hub” they placed there to work off of for a survey of 139 Lexford and neighboring properties. When I, Michael, met with the surveyor, he strongly advised me to be sure that we get both a Performance Bond and a Completion Bond for any development at 139 Lexford Road. He cautioned me about the number of unfinished foundations and homes just sitting there for years in the Montclair and Rockridge Hills. Already in Piedmont that I know of, we have two unfinished homes that have been sitting for years as well on streets that I regularly travel, Magnolia and Ronada.

In closing, we are asking The Piedmont City Council to require that if a home is constructed at 139 Lexford Road that the entire project be built responsibly and safely with at least the same protections or more as set as a precedent and historically required in the previously approved building permits. We are also requesting that the previously required protections be updated with 2024 financial numbers.

Respectfully,
Holly and Michael Gardner
Holly and Michael Gardner
125 Lexford Road
Piedmont, California 94611
Attachments:

A. PDF of Gardner Letter of Response – December 24, 2023 B. PDF of Planning Application Comment Form - December 21, 2023 March 27, 2024
Dear City Council:

Attached please find the suggested conditions of approval for your consideration, revising the Planning Commission’s approval. All of this information is in the file and the appeal, but has not been pulled together this way. I circulated to 30+ neighbors, received their input and revised.

Thank you.

Christopher Van Gundy
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March 28, 2024
Dear City Council,
In addition to the attachment to my email yesterday, please include in the file that email and this email.

I would also like to note that the originally attached set of proposed conditions was taken from the original conditions approved for years and which contained several conditions recently rejected by the Planning Commission. So I added back in the original conditions, updated the financial security numbers in accordance with Stuart Block’s calculations (also previously submitted and part of the appeal), and added in some properties in various sections. Some conditions the Planning Commission carried over from before, so I used the “City Updated” conditions. I also got the neighbors’ approval for all of this.

So these conditions I submitted yesterday are essentially the conditions that were in place for years, updated with newer Planning Commission condition language where applicable, new financial security numbers to reflect increased costs after 8 years, and some additional properties for inspections and parking restrictions. The City has the power to approve these protections pursuant to the city code as explained in our appeal. Specifically, the rejection by the Planning Commission of important protections in place for years in the face of even more grievous developments (the recent collapse of at least two hillsides of similar structure and soil at 519 Hampton and 180 Somerset as per Alan Kropp’s most recent report, also submitted) ignored the city code mandate to protect neighbors.

It will cost millions of dollars to remove hundreds of dump trucks of material from the steep, unstable hillside from 139 Lexford, at great risk to the properties currently supported by that massive quantity of soil, 130 and 140 Somerset, and neighboring properties and foundations given the months of hoe ramming required to do so (and where test borings need to go 30 feet into the hillside and failed ate 7). There is only fairness to all including the developer, and upside to the City and neighbors in re-instating the requested protections. The current property owner bought the property knowing these protections were previously in place for years. If that LLC is serious about developing the property as it claims, then they can afford these protections.

If the City confirms the rejection of these established protections and the project collapses, is abandoned, or surrounding properties collapse or are damaged, and/or God forbid one of us is hurt in a collapse as happened at 139 Lexford some years ago, the city will be on the hook for millions of dollars. The LLC’s indemnification will be meaningless since it will have no money.

The Planning Commission explained its rejection of these established protections with one word - buildability. It made it harder to build because the financial security figures were deemed to be too high. There was no thought to the issues I raised above in removing the protections, or to the fact that anyone who builds this property will need millions of dollars anyway to hoe ram out all of this material from a steep hillside and build a proper foundation.

Attachment D Agenda Report Page 156
And the established conditions will further buildability. There will be no CEQA lawsuit that we were forced to bring before and which will effectively stop development for several years. There will be an active management of key development milestones by a neutral and well-respected soils engineer, Alan Kropp, to ensure that the property is developed in a workable and sensible way. Development started previously, and Alan’s help identified mistakes in the planning.

Thank you for your consideration. I will see you all Monday night.

Regards,
Chris
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Piedmont City CouncilApril 1, 2024

Piedmont City Council
April 1, 2024