TOWN OF LOS GATOS ITEM NO: 4 PLANNING COMMISSION STAFF REPORT ADDENDUM Meeting Date: June 8, 2016 PREPARED BY: Mami Moseley, Associate Planner [email protected] APPLICATION NO.: Architecture and Site Application S-15-077 LOCATION: 19 Highland Avenue (north side of Highland Avenue just east of 15 Highland A venue) APPLICANT/ PROPERTY OWNER: Ed Pearson CONTACT PERSON: Ed Pearson APPELLANTS: Badame, Roberts, Smullen, and Spalding Families APPLICATION SUMMARY: Consider an appeal of a decision of the Development Review Committee approving an Architecture and Site application to construct a new single-family residence and remove large protected trees on property zoned HR-2 Y2. APN 529-37-033 EXHIBITS: Previously received with May 11,2016 Desk Item Report: I. Emails from appellants, received May 11 , 2016 Previously received with June 8, 2016 Staff Report 2. Location Map 3. Required Findings and Considerations 4. Recommended Conditions (nine pages) 5. Adopted Mitigation Monitoring and Reporting Program (3 pages) 6. Town Council Resolution (200 1-128) 7. December 8, 2010 Planning Commission meeting minutes (15 pages) 8. Consulting Architect's Report, dated February 24, 2016 9. 2010 Arborist Report (26 pages), dated February 15, 2010 10. Project Data Sheet 11. Letter from Anthony Badame, received March 24, 2016 12. March 29, 2016 Development Review Committee minutes (two pages) 13. Appeal letter, received April 8, 2016 (four pages) 14. May 11, 2016 Planning Commission meeting minutes 15. Applicant's response letter and Attachments (1-14), received May 27, 2016 16. Public comment received through 11 :00 a.m., Thursday, June 2, 2016 17. Additional letters from applicant (11 pages), received June 2, 2016 Planning Commission Staff Report - Page 2 19 Highland A venue/S-15-077 June8,2016 18. Development plans (16 pages), received March 22, 2016 Received with this Addendum Report: 19. Letter from appellant (58 pages), received on June 2, 2016. REMARKS: The attached letter was received after completion of the staff report. proved by: Joel Paulson, AICP Community Development Director JSP:MFM:cg cc: Ed Pearson, 239 Thurston Street, Los Gatos, CA 95030 Lisa Roberts, 78 Alpine A venue, Los Gatos, CA 95030 Theresa Spalding, 15 Highland A venue, Los Gatos, CA 95030 Dede Smullen, 25 Highland A venue, Los Gatos, CA 95030 Anthony Badame, 1 Highland A venue, Los Gatos, CA 95030 N:\DEV\PC REPORTS\20 16\Highland- 19-appeai-6-8-16-ADD.doc Marni F. Moseley, AICP, Associate Planner Town of Los Gatos Planning Division 110 East Main Street Los Gatos, CA 95030 June 1, 2016 SUBJECT: 19 HIGHLAND AVENUE CREEK AND CEQA ISSUES Dear Ms. Moseley, Grassetti Environmental Consulting (GECo) has been retained by a group of concerned citizens to review California Environmental Quality Act (CEQA) compliance and creek setback issues associated with the 19 Highland Avenue project. As GECo’s principal, with over 33 years of CEQA experience, I have reviewed the CEQA documentation, supporting documents, more recent biological analyses, and local and regional stream setback requirements in preparation of this letter. I also have conducted a site visit to visually assess site conditions (from adjacent landowners’ property and from Highland Avenue). In addition, GECo has retained a consulting biologist, Pacific Biology, to review existing biological resources reports, conduct a visual site visit, and opine on the appropriate classification of the creek and extent of riparian habitat. The Pacific Biology assessment report is attached to this letter, as are my qualifications. On the basis of communications between our client and your office, we understand that the Town intends to use the 2010 CEQA Initial Study/Mitigated Negative Declaration as the CEQA documentation for the proposed project. Similarly, based on email communications, we understand that the Town considers the applicable setback of the proposed house from the creek as 15 feet. This letter addresses the appropriateness of these determinations, as well as overall adequacy of the CEQA document. In summary, I have concluded that, based on a review of available information, there is no evidence supporting the use of the 15-foot setback (the appropriate creek setback on the project site is 25 feet), the Initial Study is deficient in addressing the setback issue, and the Town’s impermissible CEQA process has resulted in a denial of resource agency and public review of the proposed project. Creek Setback Issues Town-Required Setbacks The Town of Los Gatos is a participant in the Santa Clara Water Resources Collaborative. The 7008 Bristol Drive, Berkeley, CA 94705 (510) 849-2354 19 Highland Avenue Page 2 Creek and CEQA Comments June 1, 2016 Guidelines and Standards for Land Use Near Streams (G&S) was developed by the Collaborative to protect in-stream and riparian water quality, resources, and habitat. The G&S contains the requirements and guidance for development adjacent to streams. The Town Council adopted a resolution implementing the G&S on February 20, 2007. Specifically, the Town adopted Chapters 2 and 3 of the G&S as Town requirements. Chapter 2 describes how streams and setback zones are delineated. Chapter 3 describes stream protection policies and requirements, including required stream setbacks. The Town is responsible for implementing these standards. It is required to review potential impacts to streams as part of the development review process. Projects adjacent to streams are required to be forwarded to the SCVWD for comment. As detailed on p. 3.8 of the G&S, to minimize impacts to streams, structures are required be setback from the stream. The required setback between the stream and the structure is called the “slope stability protection area”. The “Slope Stability Protection Area” is an area between a structure and the stream2. In some cases, a range of numbers is indicated. The assumption is that each local jurisdiction will select one of the numbers based on their existing priorities, permitting processes, and on-site conditions. It is also assumed that the channel depth of most streams in urban Santa Clara County is 10 feet deep or less. STABILITY PROTECTION AREA Stream with Little Structurally 3 Ephemeral or No Hardening Engineered System Stream Size of Protection 25-20 feet 15 feet 10-15 feet Area (as measured 4 from Top of Bank) Notes: Potential Additions to the Slope A. For a large lot (greater than 10,000 sq. ft), add 5 feet. B. For a large home in which the FAR triggers a discretionary review, work with applicant to ensure that impacts such as drainage are redirected away from a stream and pursue opportunities to increase the slope stability protection area to better protect the stream (and home) from impacts. For example, consider decreasing the required front yard setback in order to accommodate an increased rear yard setback/slope stability area. 1 Single Family Unit refers to both (a) new single-family units on existing lots of record and (b) new single- family remodels/rebuilds as defined by local regulations/policy/ guidelines 2 In addition to protecting this area, BMP’s should be used that are reflective of Guidelines and Standards, for activities adjacent to these areas where discretionary review is used (i.e redirecting drainage away from the stream and no removal of native riparian plants 3 A “structurally engineered system” is designed to provide slope stability. It may be a concrete-lined channel (U-frame or trapezoidal) or a stream substantially modified with riprap, gabions, structurally engineered sacked concrete, etc. 4 Area measured for Slope Stability Requirement to be measured based on location of Top of Bank, whether stream is on or off of property. 2 19 Highland Avenue Page 3 Creek and CEQA Comments June 1, 2016 Applicability of Required Setbacks to Project Site The project site has been assessed by a number of biological reports with respect to creek setback issues. The most detailed of these studies was conducted by Wood Biological Consulting in their January 2008 report1. That study identified riparian areas on the site and discussed applicable setbacks. As described on p. 2 of the Wood report: The unnamed tributary to Los Gatos Creek is presumed to be a second or third order intermittent stream. Downstream of the property, the stream course is directed into a concrete-lined channel, which ultimately drains into a buried culvert. The low-gradient stream enters the property from the east at approximately 72 feet in elevation and exits the site in the west at 60 feet in elevation, traversing approximately 320 feet. The banks of the creek channel are incised, scoured, and show some evidence of bank failure especially in the meanders. On site, the channel varies in width at the scour line from 3 to 5 feet, with widths at top of bank ranging from 6 to 11 feet. The stream is shown as a "blue-line" water course on the USGS topographic map and the channel qualifies as a waters of the U.S. and a waters of the State, subject to regulation under the Clean Water Act (as administered by the U.S. Army Corps of Engineers [USACE] and the San Francisco Regional Water Quality Control Board [RWQCB]) and the California Fish and Game Code (as administered by the California Department of Fish and Game [CDFG]), respectively. With respect to the site’s riparian corridor, Wood states: Although no typical riparian habitat is present on the subject property, the rationale for determining the limits of the riparian zone, as shown on the attached figure, is based on the following limits claimed by the CDFG (see Section 5, below), as currently applied pursuant to the California Fish and Game Code. These limits are generally applied to the outer edge of the dripline of native trees whose canopies extend over the tops of bank of a regulated stream course.