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HomeMy WebLinkAbout06-25-2003 Planning Commission PacketCITY OF SARATOGA PLANNING COMMISSION ACTION MINUTES DATE: Wednesday, June 25, 2003 - 7:00 p.m. PLACE: Council Chambers/Civic Theater,13777 Fruitvale Avenue, Saratoga, CA TYPE: Regular Meeting ROLL CALL: Commissioners Cynthia Barry, Mohammad Garakani, Susie Nagpal, Michael Schallop, Mike Uhl, Rutchi Zutshi and Chair Jill Hunter Absent: Chair Hunter Staff: Planners Livingstone &z Oosterhous, Director Sullivan and Minutes Clerk Shinn PLEDGE OF ALLEGIANCE MINUTES: Draft Minutes from Regular Planning Commission Meeting of June 11, 2003. (APPROVED 6-0) ORAL COMMUNICATIONS -Any member of the Public will be allowed to address the Planning Commission for up to three minutes on matters not on this agenda The law generally prohibits the Planning Commission from discussing or taking action on such items. However, the Planning Commission may instruct staf f accordingly regarding Oral Communications underPlanning Commission direction to Staff. REPORT OF POSTING AGENDA Pursuant to Government Code 54954.2, the agenda for this meeting was properly posted on June 19, 2003. REPORT OF APPEAL RIGHTS If you wish to appeal any decision on this Agenda, you may file an "Appeal Application" with the City Clerk within fifteen (15) calendar days of the date of the decision, pursuant to Municipal Code 15-90.050 (b). CONSENT CALENDAR - None PUBLIC HEARINGS All interested persons may appear and be heard at the above time and place. If you challenge a decision of the Planning Commission pursuant to a public hearing in court, you may be limited to raising only those issues you or someone else raised at the public hearing(s) described in this agenda, or in written correspondence delivered to the Saratoga Planning Commission at, or prior to, the public hearing. In order to be included in the Planning Commission's information packets, written communication should be filed on or before the Monday, a week before the meeting. 1. APPLICATION #02-039, SARATOGA OAKS HOMEOWNERS ASSOCIATION, Appeal of An Administrative Decision; The Saratoga Homeowners Association has filed an appeal of an administrative decision made pursuant to Municipal Code Section 15-50.120, Tree Regulations, Violations Penalties. The administrative decision requires $35,439.00 in cash and $17,719.50 in native replacement trees for removing a total of 12 trees without a Ciry issued tree removal permit. (CHRISTINE OOSTERHOUS) (APPEAL DENIED 6-0) APPLICATION #03-006 (366-43-007) - CHEN, 12161 Parker Ranch Road; -Request for Fence Variances to the front and side yard setbacks, design and height requirements. The lot size is approximately 1.01 acres and the site is zoned Hillside Residential. (JOHN LIVINGSTONE) (DENIED 6-0) 3. APPLICATION #03-021 (397-17-033) - JALAN,19805 Versailles Way; -Request to amend an approved project. The applicant is requesting the relocation of the swimming pool. The change of location would require the removal two existing redwoods and two existing Monterey pines. (THOMAS SULLIVAN) (APPROVED 6-0) DIRECTORS ITEM - None COMMISSION ITEMS - None COMMUNICATIONS WRITTEN - None ADJOURNMENT AT 10:30 PM TO THE NEXT MEETING - Wednesday, July 9, 2003, at 7:00 p.m. in the Council Chambers/Civic Theater 13777 Fruitvale Avenue, Saratoga, CA If you would like to receive the Agenda's via e-mail, please send your e-mail address to planning@saratoga.ca.us • CITY OF SARATOGA PLANNING COMMISSION LAND USE AGENDA DATE: Tuesday, June 24,.2003 -12:00 noon PLACE: City Hall Parking Lot, 13777 Fruitvale Avenue TYPE: Land Use Committee SITE VISITS WILL BE MADE TO THE FOLLOWING ITEMS ON THE PLANNING COMMISSION AGENDA FOR WEDNESDAY, JUNE 25, 2003 • ROLL CALL REPORT OF POSTING AGENDA AGENDA 1. Application #03-021 - JALAN Item 3 19805 Versailles Way 2. Application #02-039 - SARATOGA OAKS HOA Item 1 Stoneridge Drive 3. Application #03-006 - CHEN Item 2 12161 Parker Ranch Road LAND USE COMMITTEE The Land Use Committee is comprised of interested Planning Commission members. The committee conducts site visits to properties which are new items on_ the Planning Commission agenda. The site visits are held Tuesday preceding the Wednesday hearing between 12:00 p.m. and 2:00 p.m. It is not necessary for the applicant to be present, but you are invited to join the Committee at the site visit to answer any questions, which may arise. Site visits are generally short (5 to 10 minutes) because of time constraints. Any presentations and testimony you may wish to give should be saved for the public hearing. • ~~ CITY OF SARATOGA PLANNING COMMISSION AGENDA DATE: Wednesday, June 25, 2003 - 7:00 p.m. PLACE: Council Chambers/Civic Theater,13777 Fruitvale Avenue, Saratoga, CA TYPE: Regular Meeting ROLL CALL: Commissioners Cynthia Barry, Mohammad Garakani, Susie Nagpal, Michael Schallop, Mike Uhl, Rutchi Zutshi and Chair Jill Hunter PLEDGE OF ALLEGIANCE MINUTES: Draft Minutes from Regular Planning Commission Meeting of June 11, 2003. ORAL COMMUNICATIONS -Any member of the Public will be allowed to address the Planning Commission for up to three minutes on matters not on this agenda The law generally prohibits the Planning Commission from discussing or taking action on such items. However, the Planning Commission may instruct staf f accordingly regarding Oral Communications under Planning Commission direction to Staf f. REPORT OF POSTING AGENDA Pursuant to Government Code 54954.2, the agenda for this meeting was properly posted on June 19, 2003. ~~ REPORT OF APPEAL RIGHTS If you wish to appeal any decision on this Agenda, you may file an "Appeal Application" with the City Clerk within fifteen (15) calendar days of the date of the decision, pursuant to Municipal Code 15-90.050 (b). CONSENT CALENDAR - None PUBLIC HEARINGS All interested persons may appear and be heard at the above time and place. If you challenge a decision of the Planning Commission pursuant to a public hearing in court, you may be limited to raising only those issues you or someone else raised at the public hearing(s) described in this agenda, or in written correspondence delivered to the Saratoga Planning Commission at, or prior to, the public hearing. In order to be included in the Planning Commission's information packets; written communication should be filed on or before the Monday, a week before the meeting. 1. APPLICATION #02-039, SARATOGA OAKS HOMEOWNERS ASSOCIATION, Appeal of An Administrative Decision; The Saratoga Homeowners Association has filed an appeal of an administrative decision made pursuant to Municipal Code Section 15-50.120, Tree Regulations, Violations Penalties. The administrative decision requires $35,439.00 in cash and $17,719.50 in native replacement trees for removing a total of 12 trees without a City issued tree removal permit. (CHRISTINE OOSTERHOUS) 2. APPLICATION #03-006 (366-43-007) - CHEN, 12161 Parker Ranch Road; -Request for Fence Variances to the front and side yard setbacks, design and height requirements. The lot size is approximately 1.01 acres and the site is zoned Hillside Residential. (JOHN LIVINGSTONE) 3. APPLICATION #03-021(397-17-033) - JALAN,19805 Versailles Way; > Request to amend an approved project. The applicant is requesting the relocation of the swimming pool. The change of location would require the removal two existing redwoods and two existing Monterey pines. (THOMAS SULLIVAN) DIRECTORS ITEM - None COMMISSION ITEMS - None COMMUNICATIONS WRITTEN - None ADJOURNMENT TO NEXT MEETING - Wednesday, July 9, 2003, at 7:00 p.m. in the Council Chambers/Civic Theater 13777 Fruitvale Avenue, Saratoga, CA • If you would like to receive the Agenda's via e-mail, please send your e-mail address to planning@sarato ag ca.us • • MINUTES SARATOGA PLANNING COMMISSION DATE: Wednesday, June 11, 2003 PLACE: Council Chambers/Civic Theater, 13777 Fruitvale Avenue, Saratoga, CA TYPE: Regular Meeting Chair Hunter called the meeting to order at 7:00 p.m. ROLL CALL Present: Commissioners Barry, Garakani, Hunter, Nagpal, Schallop, Uhl and Zutshi Absent: None Staff: Director Tom Sullivan, Associate Planner Christine Oosterhous and Assistant Planner Ann Welsh PLEDGE OF ALLEGIANCE APPROVAL OF MINUTES -Regular Meeting of May 28, 2003. Motion: Upon motion of Commissioner Barry, seconded by Commissioner Nagpal, the Planning Commission minutes of the regular meeting of May 28, 2003, were adopted with minor corrections to pages 6,11 and 14. (7-0) ORAL COMMUNICATION Mr. Herbert Radding, 14050 Chester Avenue, Saratoga: • Thanked the Commission for the opportunity to speak. • Said that he wishes to discuss the property next to his located at 14038 Chester Avenue. • Advised that these property owners had obtained a permit for a remodel and that the work on the remodel took place. One part of the project was to have been the replacement of an existing pool with a new lap pool. After the project was done minus the pool, he noticed a box and tank located about 70 feet away from his master bedroom. This was a propane electricity generator. • Questioned the siting of this generator at the property line and so near his bedroom. • Acknowledged that some work has been done by the neighbor to quiet the impacts of this generator and it has been somewhat successful. • Stated that the neighbor claims this as an emergency generator for use in the event of a power outage so that sump pumps can be operated to prevent flooding. • Added that many times over the years, two nearby creeks have gone over their banks. • Said that part of this neighbor's remodel included a high berm concrete wall and dirt berm, designed to be above the high water mark. • Said that last season, floods occurred in this area but not on this property due to these improvements. O; ~~ g~ Saratoga Planning Commission Minutes of Jurie 11, 2003 Page 2 • Said that he has a big gripe about this generator -and is not -allowed to complain according to the City Attorney Jonathan Wittwer. • Stated that this generator is supposed to meet Noise Ordinance decibel levels and does not, particularly for nighttime standards. • Said that he has lived in his home for- 27 years and wants this generator to be moved or at least be made to comply with the maximum 45 decibel standard for evenings. • Said he was told he would have to call Police to complain if noise issues occur. Commissioner Garakani asked if this pump is currently working. Mr. Herbert Radding replied that there was recently aseven-hour power outage and that this generator ran from 2 p.m. to 9 p.m. Added that this is a condition that he would be forced to disclose to potential buyers in the event that he were to sell his home. Director Tom Sullivan advised that staff cannot say much more .than what has been. stated in his letter and the City Attorney's letter. Commissioner Barry said that she would like. to have this item agendized for review and mitigation. Chair Hunter said that a majority of the Commission is required to support agendizing this matter..: All members of the Commission supported the idea of adding this issue to an upcoming agenda. Director Tom Sullivan said that he would place this matter on a future agenda and ask the City Attorney to provide a report on what the options are for actions that the Planning Commission can take. Commissioner Zutshi asked Mr. Radding where this generator is located: Mr. Herbert Radding replied that while it is quite far from his neighbor's bedroom, it is very close to his master suite and that he can hear the exhaust system and feel the vibrations when the generator is operational. Commissioner Barry advised staff that she would like the issue of possible mitigation to be provided. Director Tom Sullivan reminded that this generator comes on when the power goes out and for 15 minutes once a week from 12:45 to 1 p.m. Mr. Herbert Radding pointed out that since the berms were built, water from the creeks no longer threatens his neighbor's property. REPORT OF POSTING AGENDA Director Tom Sullivan announced that, pursuant to Government Code 54954.2, the agenda for this meeting was properly posted on June 5, 2003: REPORT OF APPEAL RIGHTS Saratoga Planning Commission Minutes of June 11, 2003 Page 3 Chair Hunter announced that appeals are possible for any decision made on this Agenda by filing an .Appeal Application with the City Clerk within fifteen (15) calendar days of the date of the decision, pursuant to Municipal Code 15.90.050(b): CONSENT CALENDAR There were no Consent Calendar Items. *** PUBLIC HEARING -ITEM NO.1 APPLICATION #03-021 (393-45-045) - PEEBLES, 13755 Saratoga Avenue: The Planning Commission is required to determine-the allowable floor area for the proposed project because the site area is -less than 5,000, square feet (MCS 15-45.0309(d)). The proposed project also requires design review approval: The proposed project includes first and second story additions to an existing two- story residence located at 13755 Saratoga Avenue along Heritage Lane. In general, the appearance of the existing residence remains unchanged. The proposed 58 square foot additions are located to the rear and right side yard of the site and reflect the existing style and materials. The site is zoned R-1-20.,000. (CHRISTINE OOSTERHOUS) Associate Planner Christine Oosterhous presented the staff report as follows: • Advised that the Commission is required to determine allowable floor area ratio for a site with a net site area less than 5,000 square feet. • Added that the Commission is also asked to provide a Design Review approval to allow a first and second story addition to an existing two-story- single-family residence. • Stated that the.home will appear unchanged as the addition is primarily located to the rear, right side of the home and using the matching building materials. The home appears to be a one story as viewed from Saratoga Avenue. • Said that due to the 20 percent slope of the site the 6,600 square foot lot is reduced to 4,600 square feet. • Informed that the Heritage Preservation Commission has reviewed the project and was supportive with the condition that the proposed skylights be tinted so that interior lighting is not visible from the street. • Said that the Arborist's report includes two Ordinance protected trees. There are no construction impacts on three of four on-site trees. The potential impacts on the fourth. tree were found to be moderate or tolerable. • Stated that staff can make the necessary findings and recommended approval. Commissioner Nagpal asked if the entire roof would be replaced. Associate Planner Christine Oosterhous said she would defer this question to the architect. Commissioner Zutshi asked about the existing coverage compared to that proposed. • Associate Planner Christine Oosterhous advised that the coverage would remain the same, as the applicant would be removing some decks on grade to leave the lot coverage unchanged. Saratoga Planning Commission Minutes of June 11, 2003 Page 4 Commissioner Barry clarified that the lot coverage is not increased due to the removal of these decks. re lied es. Associate Planner Chnstme Oosterhous p y Chair Hunter opened the Public Hearing for Agenda Item No. 1. Mr. Ray Peebles, 13755 Saratoga Avenue, Saratoga: • Identified himself as a longtime resident interested in enhancing his home so his family can live there longer. • Said that most of the addition would be on the lower portion of the property with minimal impacts to side and rear neighbors. • Added that using the lower portion of his property removes, them from the noise impacts of traffic on Saratoga Avenue. • Said his neighbors support him and his architect is present. Commissioner Zutshi asked if letters of support were provided. Associate Planner Christine Oosterhous pointed out page 14 of the staff report. Commissioner Uhl asked Mr. Peebles to describe his conversations with his neighbors about his proposal. Mr. Ray Peebles said that his rear neighbor has no problem and is supportive as it does not impact his view at all. Mr: Sandy Barker, Project Architect: • Described their goal of taking this home and getting more utilization. • Added that there are no additional bedrooms being added although one is being relocated to the lower level. A stairway is placed at the side. • Pointed out that this lot has a lot of non-conformities. • Said that they have worked closely with staff and have met and exceeded setbacks. • Added that the neighbors have responded positively. • Said that they had a sound person test noise. • Answered the roof question by saying that their intention had been to replace sections but that they now intend to replace the entire roof. The profile of the roof will stay the same and they will use a simulated slate roofing material with the skylights being a dark solar tinted glass. Mr. William Foster, 13741 Saratoga Avenue, Saratoga: • Said he lives directly next to the property and has a few concerns. • Said that his master bedroom in the closest part of his house to their house and that he has concerns about noise impacts during construction and wanted to be sure that concern is taken into account. • Questioned the proposed use of vinyl siding, saying that he would like to see wood siding that is more in character with .the neighborhood. • Wondered if a Variance is required to bring this extension closer to his house. • Pointed out that at one time (historically) there was access to his backyard available from their • backyard but that the gate was removed. Saratoga Planning Commission Minutes of June 11, 2003 Page 5 • Questioned how long construction might last and where construction vehicles would park, adding that he would prefer they not park in front of his house. Director Tom Sullivan provided the construction hours from 7:30 a.m. to 6 p.m., Monday through Friday, from 9 a.m. to 5 p.m. on Saturday and prohibited on Sunday. He added that there would be a sign posted on the property with contact phone numbers. Mr. William Foster asked if they have to be allowed these hours as he would prefer an 8 a.m. start time. Director Tom Sullivan replied that the hours are established by Municipal Code. Commissioner Barry asked if the sign posted for the OddFellows project was a City sign. Director Tom Sullivan replied that the Oddfellows had had this sign made although the City does provide signs for small projects such as this one. Chair Hunter pointed out to Mr. Foster that the longer the hours worked on this remodel, the sooner the project is completed. Commissioner Barry reminded that the construction workers cannot come early and leave their trucks running. Chair Hunter asked Director Tom Sullivan if hours of construction could be amended. • Director Tom Sullivan re lied no. He said that the hours are set by Ordinance adopted by Council. It P would be hard to enforce different rules for different projects. Chair Hunter asked about the use of vinyl siding. Associate Planner Christine Oosterhous deferred this question to the project architect. Commissioner Uhl asked Mr. Foster if the applicant ever spoke with him regarding this project. Mr. William Foster replied that they had spoken with his wife. Commissioner Garakani asked when that discussion occurred. Mr. William Foster replied a while ago, when it was supposed to occur. Commissioner Zutshi asked if there is a recorded document regarding the access through the neighbor's yard. Mr. William Foster replied no. He added that there used to be gates there. Commissioner Nagpal asked Mr. Foster if there are other ways to access his yard. • Mr. William Foster replied no, due to the grade and house, the only access is the walkways. Saratoga Planning Commission Minutes of June 11, 2003 Page 6 Commissioner Barry asked staff if a Variance is required to allow this project. Oosterhous re lied no. This ro'ect com lies with the 10 ercent setback Associate Planner Chnstme p P J P P rule set for nonconforming lots. Commissioner Barry pointed out to Mr. Foster that while the project may bring this home closer to his it does comply with requirements. Mr. Sandy Barker: • Agreed that it is difficult for a homeowner to have construction occur next to you. • Assured that the siding they would use is not vinyl but is simulated wood made of concrete and painted to match. It is undistinguishable to redwood. • Pointed out that Mr. Foster's house is three feet above Saratoga Avenue while Mr. Peebles' home is three feet below Saratoga Avenue. Therefore, the Fosters should no be able to see any. new construction from his master bedroom. • Said that a lot of the work will be done to the interior with a small addition. Commissioner Barry asked about construction vehicles. Mr. Sandy Barker: • Said that a small enough crew would be used that they could be accommodated on the driveway. • Pointed out that there is no way to stop people from parking on the street. • Reminded that this is a fairly minor 300 square foot addition so only a couple of construction crewmembers would be needed for each step of construction: This project will have a low impact on the area. Commissioner Zutshi asked for the time frame for construction. Mr. Sandy Barker replied that the applicant wants the project completed as soon as possible, likely three to four months. Added that they have not yet submitted for building permits. Director Tom Sullivan said that the project should take six months at the outside. Mr. Sandy Barker advised that a survey had been done and there are no easements for access through the backyard. Said that the applicant would be happy to discuss access in emergency situations but added that improvements have been made to the yard that would be disturbed with vehicular access. Chair Hunter closed the Public Hearing for Agenda Item No. 1. Commissioner Garakani pointed out the bushes that are higher than three feet at the corner; which represent a sight of view hazard. Commissioner Schallop asked about the possibility of decks being added later and whether they. would have to come back for review. Associate Planner Christine Oosterhous said that there is no Planning review for decks and she is not sure if there is building review. Saratoga Planning Commission Minutes of June 11, 2003 Page 7 Director Tom Sullivan said that there is deck and flatwork done by homeowners all over:, Commissioner B asked about the issue of the bushes raised b Commissioner Garakani. arry . Y Associate Planner Christine Oosterhous said that they might be in violation. Director Tom Sullivan advised that for corner lots there is a line of site triangulation. However, for front yards while fences and walls must be lower than three feet, vegetation is not included. Chair Hunter pointed out that many houses have tall hedges. Commissioner Zutshi said that this is not a corner lot and the restriction on hedges would apply only on comer lots. Director Tom Sullivan assured the Commission that staff would enforce the Code on this issue. Commissioner Garakani stated that this is a good project, .that he has no objection at all. and that it fits into the area. Commissioner Uhl said he likes the architecture and how the house looks: Said that bulk is a concern with so many houses so close together and questioned if there is compatibility on the issue of bulk: Commissioner Zutshi said she likes the project and that the architect has done a good job. Added that the addition is only nine feet in the back. Said she likes the front fence of the house and has no problem with this project. Commissioner Barry said she understood Commissioner Uhl's concerns about bulk with small lots so close together, especially on a Heritage lane. Said that privacy to the right has been- dealt with and that it is important for families to be able to live and stay in their homes. This project is not. increasing non- conformity and the architecture is nice. Said this project is okay with her but that she hopes that access between the two properties does not become an issue between neighbors. Commissioner Nagpal concurred, saying that the project is well articulated and fits well. -Said she has no problem with the project. Commissioner Schallop agreed. Commissioner Garakani asked if conditions could be imposed, in the event the structure were to burn down, on what could be reconstructed on the site. Commissioner Zutshi said that would represent a new project. Director Tom Sullivan agreed. Chair Hunter said that she knows this house well and a nice job has been done.. There is minimal impact from the front and this project should be allowed to go ahead as it is fine. Saratoga Planning Commission Minutes of June 11, 2003 Page 8 Motion: Upon motion of Commissioner Barry, seconded by Commissioner Zutshi, the Planning Commission granted a Design Review approval to allow first and second story additions to an existing house on property located at 13755 Saratoga Avenue, by the following roll call vote: AYES: Barry, Garakani, Hunter, Nagpal, Schallop, Uhl and Zutshi NOES: None ABSENT: None ABSTAIN: None *** PUBLIC HEARING -ITEM N0.2 APPLICATION #03-079 (APN 397-09-010) - WARRINER TRUST, 19120 Monte Vista Drive: The. applicant requests approval to subdivide one parcel into two building sites. The property is zoned R-1- 40,000. The proposed parcels are greater than one acre. The existing parcel is over 2.5 acres. The existing residence is to remain. (CHRISTINE OOSTERHOUS) Associate Planner Christine Oosterhous presented the staff report as follows: • Advised that the applicant seeks approval to subdivide one lot into two, with Parcel 1 consisting of 1.2 acres with a new building site and Parcel 2 consisting of 1.13 acres with an existing home. The lots would each exceed minimum lot size, which is 40,000 square feet. The width and depth requirements are met and the lots would have rectangular shapes with building envelopes that allow required setbacks. • Said that a Design Review approval would be required for a new residence but is-not proposed at this time. • Advised that staff is recommending that the existing driveway be relocated to the property line of Parcel 2. Another possibility is an easement to share the driveway between the two parcels but there is concern as easements often cause confusion: Staff supports relocation over an easement. • Said that an Arborist report was prepared but that prior to development of Parcel 1 additional analysis would be required. • Recommended approval. Commissioner Zutshi asked for the back up access if a new driveway were to be constructed. Associate Planner Christine Oosterhous replied 24 feet. Commissioner Zutshi pointed out that nothing in Code prevents easements. Commissioner Schallop asked if a maintenance agreement for the easement can be conditioned. Associate Planner Christine Oosterhous replied yes. Chair Hunter opened the Public Hearing for Agenda Item No. 2. Mr. Richard Bonetti, Realtor, Alain Pinel Realtors: • Said that he is a Saratoga native. Saratoga Planning Commission Minutes of June 11, 2003 Page 9 • Advised that the project's Civil Engineer is present as is Ms. Daphne Smith, the trustee of the Warriner Trust. • Said that this property is on the market in order to settle the estate and that a party of secondary interest is John and Melissa DiNapoli. • Expressed appreciation for staff's support of this subdivision and said that they would appreciate a definitive decision on the issue of the easement. Ms. Daphne Smith, 19120 Monte Vista Drive, Saratoga: • Identified herself as the trustee of her late father's estate. • Added that her father passed away in November 2002 at the age of 98. • Said that her parents moved to California in 1937. • Said that Mr. Birge Clark was the architect of this home, a midwestern style home that was adapted for California. The site once had two magnificent oaks but only one now survives. • Described her father's many accomplishments and community service -and said that he had maintained his property over the years. • Said that they are pursuing a subdivision as they wanted to preserve the home as well as move ahead in the neighborhood. • Said that they are under a time constraint as the estate is to settle in six weeks. • Made herself available for questions. • Thanked the Commission for the opportunity to address them. Commissioner Barry asked Ms. Smith what happened to the oak tree that was lost. Ms. Daphne Smith replied that it was diagnosed as being damaged and then a large limb fell off. When the tree trimmers came out to clean up the situation, the tree split, thankfully not while anyone was up in the tree. Commissioner Barry expressed concern as to whether the conditions that impacted that tree might impact the remaining tree. Chair Hunter declared that this home and oak tree are both fantastic. Ms. Sitka Cymbal, Project Engineer, Westphall Engineers, made herself available for questions. Commissioner Barry asked about alternative lot splits to deal with the driveway. Ms. Sitka Cymbal said that there are not a lot of options if one wants to keep this home. One solution is an easement to allow shared use of a driveway. This keeps down impervious surface, reduces paving and offers a good solution. Commissioner Barry asked staff if there is any basis for a Variance to keep the driveway with Parcel 2. Director Tom Sullivan replied not a very strong one. Added that there are no Code provisions that disallow shared driveways. Said that if an easement is the decision made, it would be best to ensure that correct documents are in place, recorded and part of the deed, so that maintenance issues are dealt with. Saratoga Planning Commission Minutes of June 11, 2003 Page 10 Mr. Tom York, Realtor, Alain Pinel Realtors: • Said that moving the driveway would change the dynamics of the house and could impact the remaining oak tree, as it is not 100 percent healthy. • Assured that the buyer would be made aware of the provisions of the easement. Mr. Richard Bonetti: • Commended staff and recommended that Condition #1 be stricken. • Thanked the Commission for its consideration. • Stated that it is not logical to make change in what is there now but rather to deal with it in the Design Review process. Chair Hunter closed the Public Hearing for Agenda Item No. 2. Commissioner Garakani: • Said that he lives with a shared driveway and there are no issues. • Said he prefers an easement to a Variance as precedents are set with Variances. • Stated that he does not mind an easement and that this is .the right way to do it as it would be better for the tree. Commissioner Zutshi said she likes the drive as it is with an easement agreement: Commissioner Barry: • Said that it would be good for the community to preserve this house. • Said the health of the tree is a concern. • Advised that she is experienced with easements and they are fine if legally drawn. The easement should be recorded with the deed and deal with maintenance and landscaping and should be part of the document of sale. Commissioner Nagpal pointed out that pursuing the alternative of a Variance is not possible within the time frame sought by the applicant. Director Tom Sullivan agreed that the time frame is one reason to go with an easement. Commissioner Nagpal -said that she could support a legally drawn easement with maintenance and landscaping issues outlined. Director Tom Sullivan pointed out that the easement would also be shown on the subdivision map. Commissioner Schallop: • Pointed out a typographical error on page 11 of the resolution. • Said that necessary findings can be made to support this subdivision. • Added that there is no basis in Code to discourage easements. Commissioner Uhl: • Concurred and said that it is necessary to preserve the character of this property and to keep the tree as it is without disturbing it by moving the driveway. • Said he lives with a road easement and that it is not a big deal. Saratoga Planning Commission Minutes of June 11, 2003 Page 11 • Stressed the importance of preserving the character and tree. Director Tom Sullivan said that Condition #1 would be replaced with one that requires the establishment of a properly recorded access easement. Chair Hunter agreed. Motion: Upon motion of Commissioner Garakani, seconded by Commissioner Uhl, the Planning Commission approved the subdivision of one parcel into two building sites on property located at 19120 Monte Vista Drive with a replacement for Condition #1 to require an access easement for a shared driveway, by the following roll call vote: AYES: Barry, Garakani, Hunter, Nagpal, Schallop, Uhl and Zutshi NOES: None ABSENT: None ABSTAIN: None *** NEW BUSINESS Edencrest Lane (APN 503-12-029) -SNOW: Request for interpretation of Zoning Ordinance, Section 15-30.050(f) regarding grading. (ANN WELSH). Continued from Meeting of May 28, 2003. Assistant Planner Ann Welsh presented the staff report as follows: • Said that there is a memo in the packet that outlines-the concerns regarding corrected grading. • Said that Mr. Mark Snow requested an interpretation between corrective versus typical grading of property that exceeds 1,000 cubic yards. • Stated that the grading policy, requiring public hearing before the Planning Commission, allows a public forum and CEQA review. • Added that staff believes a project should be required to meet standards. Commissioner Schallop asked how other towns deal with this issue. Assistant Planner Ann Welsh replied that she discussed this with a geotechnical consultant but did no in depth research on other municipalities. Director Tom Sullivan said that his experience in Moraga, which has similar geology to Saratoga, there is a lot of remediation of slides. The amount of earthwork done is counted separately but the process is spread out over years with multiple hearings. Commissioner Schallop asks if Code calls this out. Director Tom Sullivan replied not exactly but that the spirit is there. Chair Hunter commended Assistant Planner Ann Welsh for her work with Mr. Corson. As istant Planner Ann Welsh thanked Chair Hunter for her comments. s Saratoga Planning Commission Minutes of June 11, 2003 Page 12 Chair Hunter opened the Public Hearing for New Business Item No. 3. Mr. James Kennedy, Property Owner, Parcel on Edencrest Lane {APN 503-12-029): • Said that he is the property owner and has worked for three and a half years to get to this point; given the geology of this property. • Said that 10 years of exploration have occurred between him and the previous owner, with borings done to help determine what should be done with the property to mitigate its problems. . • Said that Soils Engineer and Geologists have been involved. • Said that a number of things are apparent and that a lot of the work they are talking about doing will benefit the adjacent property owners too. • Pointed out that the trees and vegetation on the site are substandard and not specimen. • Suggested that replantation with better oak trees would be beneficial as the existing trees could wash away under current conditions. • Said that not only would they be building a better building site, they would also improve the area in regards to stabilization. • Said that this is a long-term project and that a lot can be done to improve the situation and develop a better than natural product. Chair Hunter said that she thought the site was gorgeous. Commissioner Zutshi asked Mr. Kennedy if he has owned the parcel for 10 years. Mr. James Kennedy replied that he has owned it for three and a half to four years. and what kind of erosion. Commissioner Zutshi asked how many landslides have. occurred Mr. James Kennedy said that the site has substandard drainage, which will erode root systems of oaks. Added that water is a huge problem and that landslides may be secondary. Commissioner Zutshi asked for a definition of landslides. Assistant Planner Ann Welsh said potentially moving soils. Mr. James Kennedy asked.where she got that term. Assistant Planner Ann Welsh replied from the Cotton Shires report. Mr. James Kennedy asked if there is no provision for remedial grading. Director Tom Sullivan replied that this is the policy interpretation to be made by the Commission. Commissioner Nagpal asked Mr. Kennedy for the distinction between corrective versus normal grading and why he felt there is a difference. Mr. James Kennedy -said that corrective is a repair issue where they have to excavate the soil and recompact it. It is misleading to count that as normal grading as they would not be adding or changing the vista as much. Saratoga Planning Commission Minutes of June 11, 2003 Page 13 Commissioner Barry asked if there is the potential for a Variance on grading amounts _in the Hillside district. Director Tom Sullivan said that the standard can be increased if the Planning Commission makes the necessary findings. Chair Hunter closed the Public Hearing for New Business Item No. 3. Commissioner Barry: • Expressed her agreement with the staff report. • Said it would be terrible public policy to allow this much change outside of public purview and CEQA review. • Said that the appropriate remedy is to stay with the Hillside Ordinance as there is an exception possibility. Commissioner Nagpal said she tends to agree as she can't see the distinction between remedial and normal grading until she sees a specific project. Commissioner Uhl completely agreed. Commissioner Zutshi agreed. Commissioner Schallop said that staff's interpretation is reasonable. Commissioner Garakani said if the applicant wants to build, he should wait and bung the project forward. Chair Hunter agreed. Director Tom Sullivan said that consensus has been reached. Mr. James Kennedy said that he does not necessarily disagree with staff. Added that he had just received notice of this hearing today. Assistant Planner Ann Welsh clarified that notice was properly sent to Mr. Snow, who had made the request for the interpretation. ~~* DIRECTOR'S ITEMS Director Tom Sullivan said that he had nothing to report except that he has a short commute tonight as he has moved nearby. COMMISSION ITEMS Joint Meeting with Heritage Preservation Commission n Saratoga Planning Commission Minutes of June 11, 2003 Page 14 Chair Hunter said that the Heritage Preservation Commission has asked for a joint meeting with the Planning Commission and has set the date of Tuesday, August 5, 2003, at 9 a.m., at the City Hall Conference Room. Upon discussion among the Commissioners, Chair Hunter said she would inquire if a noontime meeting would be possible. If not, the 9 a.m. time would be kept. Business Development Meeting Chair Hunter advised that she also attended the Business Development meeting. Tree Ordinance Director Tom Sullivan announced that he would meet with the Council Tree Ordinance Subcommittee on Monday morning. COMMUNICATIONS Written City Council Minutes from Regular Meeting on May 7, 2003. AD.TOURNMENT TO NEXT MEETING Upon motion of Commissioner Garakani, seconded by Commissioner Barry, Chair Hunter adjourned the meeting at 8:50 p.m. to the next Regular Planning Commission meeting of June 25, 2003, at 7:30 • p.m. MINUTES PREPARED AND SUBMITTED BY: Corinne A. Shinn, Minutes Clerk • ITEM 1 • • 10ft ,...... 14648 Stoneridge Drive REPORT TO THE PLANNING COMMISSION Application No./Location: 02-039 / 14648 Stoneridge Drive Type of Application: Appeal of an Administrative Decision Applicant/Owner: Saratoga Oalzs Homeowners Association ~~ Staff Planner: Christine Oosterhous AICP, Associate Planner~r Date: June 25, 2003 APN: various APNs Department Head:µ~ `, i~~ , ~• ,>. :,;: .~ . _. y ~. ,- :-. .. ~.. ,. . , >. ..., . ; ., :,~ . .. ~~ ., .; ,.: YY11 S ~ , .. IV ... _~. ~; `~ '~ .., ,. ,/ , . . _, _ ~ ._•. i C i` i„'~, ~ ~~ Saratoga Oaks Home Owners Association • r~ APPEAL OF AN ADMINSTRATIVE DECISION APPEALANT Saratoga Oaks Homeowners Association (SOHA) CASE HISTORY Arborist assessed removal of three trees: 03/12/02 Arborist assessed removal of nine additional trees: 10/15/02 Letter sent by the city to SOHA: 10/22/02 Appeal filed by SOHA: 11/20/02 Case deemed appealable by city attorney: 12/24/02 Public hearing continued: 03/26/03 Public hearing continued: 04/23/03 Public hearing scheduled: 06/25/03 PROJECT DISCUSSION The Saratoga Oaks Homeowners Association has filed an appeal of an administrative decision which requires the Association to pay $35,439 in cash and $17,719.50 in native replacement trees for removing a total of 12 trees without a city issued tree removal permit. The administrative decision was made pursuant to Municipal Code Section 15-50.120. i arborist Michael Bench submitted a tree value assessment On March 12, 2002, consulting c ty , report for three trees cut on the Saratoga Oaks Homeowners Association propezy without a tree removal permit. In summary, the arborist report dated March 12, 2002 states two trees have been cut to the stump and one tree has been topped, its structure effectively destroyed. The trees cut to the stump include one Monterey Pine and one Coast redwood. Another Coast redwood was topped. The arborist found all three trees in excellent health prior to cutting. The trees which were cut to the stump were anticipated to be approximately 25 feet in height. The arborist assessed the three trees at a combined value of $4,339 (see attachment 2). On October 15, 2002, consulting city arborist Barre Coate; submitted a tree value assessment report for nine additional trees removed from the Saratoga Oaks Homeowners Association property without a tree removal permit. In summary, the arborist report dated October 15, 2002 states there is no evidence of beetle or disease activity in the remaining stumps of two Coast redwoods and seven Monterey pines; therefore, the arborist assumed that the trees were in good condition before they were cut. The nine trees were .assessed at a value of $31,100 (see attachment 3). The Saratoga Homeowners Association did not apply for, nor receive permits for any of the 12 trees discussed above. On October 22, 2002 city staff sent a letter to the Homeowners Association requiring the following: 1. A cash payment of $35,439 to the city; and 2. The submittal of plans to the Community Development Director for the planting of $17,719.50 worth of native replacement trees. ~~~~ • STAFF RECOMIVIENTATION The appellant shall be responsible for $35,439 in cash payment made payable to the city and $17,719.50 worth of native replacement trees for the removed trees. The appellant-shall submit plans to the Community Development Director for approval. The plans shall indicate the location, size, species, and value of the required native replacement trees to total $17,719.50. ATTACHMENTS 1. .Letter from Rhett Edmonds, Community Services Officer, to Saratoga Oaks Homeowners Association, dated October 22, 2002. 2. Arborist Report dated, March 12, 2002. 3. Arborist Report dated, October 15, 2002. 4. Appeal filed by Bill Hubbard on behalf of the Saratoga Homeowners Association. 5. Affidavit and mailing notices. U ~'~Q~~~ • Attachment 1 • ~~~~® _ ~~ 04 ~~0 ;,,. ~ ~~ ~ n ° n Q ~~ A~ 13771 FRUITVALE AVENUE • SARATOGA, CALIFORNIA 95010 • (408) 865-1`LOU ~~~ 0 ~ ~~' COUNCIL iVIE,'4IBERS: Incorporated October 22, 1956 Evan Baker Stan 8ogosian October 22, 2002 Jcnn Menatrey -Nick Streit Ann Waltonsmifh . Saratoga Oaks HOA 1935 Dry Creek Road #203 Campbell, CA 95008 To,Whom it may concern: The City of Saratoga has found that (12) trees have been removed and/or severely damaged on or from your property at or near 14648 and 14646 Stoneridge Drive. Such trees have been removed/severely damaged without a permit issued from the City, and, such action constitutes a violation of Saratoga City Code section 15-50.050 (see attached document). The penalties applicable to any person unlawfully removing or destroying any protected tree are described in SAMC 15-50.120 (see attached document). Given that trees have been removed/severely damaged unlawfully on or from your property, pursuant to SAMC 15-50.120 (b) "...the Planning Director may require either a cash payment to the City, or the planting of replacement trees as designated by the Planning Director, or any combination thereof, in accordance with the following: (1) To the extent that a cash payment is required for any portion or all of the value of the removed tree, such payment shall be doubled to reflect the estimated installation costs that would be incurred if replacement trees are planted; and (2) To the extent that the planting of replacement trees is required, the retail cost of such trees, as shown by documentary evidence satisfactory to the Planning Director, shall be offset against the value of the removed tree, but no credit shall be given for transportation, installation, maintenance and other costs incidental to the planting and . care of the replacement trees." The City of Saratoga finds, subsequent to Barrie Coate's arborist assessment value reports #03- 02-031 and #10-02-199, the total value of trees removed or severely damaged is $35, 439.00. Consistent with the above penalties outlined above, the City requires that 50% of the total value be paid in cash, and 50% of the total value be paid in the form of replacement trees planted on or near the above mentioned properties. Therefore, please make payable to the City of Saratoga the amount of $35, 439.00 (amount equals 50% of total value doubled- see above section 1) and . submit to the Community Development Director plans for planting replacement trees on the above mentioned properties (total retail value must equal $17, 719.50- see above section 2) by November 27, 2002. Sincerejy, Rhett Edmonds Community Service Officer ~~~~~ •~~ Attachment 2 • ~~~ BARRI E D. COATE end ASSOCIATES Horticutural Consultants `' ~ 23535 Summit Road Los Gatos, CA 95033 408353-1052 COMMENTARY ON TREE REMOVAL AND TREE PRUNING AT-THE SARATOGA OAKS PROPERTY 14646 STONERIDGE DRIVE, SARATOGA Prepared at the Request of: Christy Oosterhous Community Planning Dept. City of Saratoga 13777 Fruitvale Ave. Saratoga, CA 95070 Site Visit by: Michael L. Bench Consulting Arborist March 12; 2002 Job # 03-02-031 • ~'~~~ COMMENTARY ON TREE REMOVAL AND TREE PRUNING AT THE SARATOGA OAKS PROPERTY 14b46 STONERIDGE DRIVE, SARATOGA Assignment At the request of Christy Oosterhous, Planner, Saratoga Planning Department, this report assesses the value of two trees that have been removed and one tree that-has been severely pruned at the Saratoga Oaks Property located in the back yard at 14646 Stoneridge Drive, Saratoga. Bacl;grmund I met Mr. Dave Tydeman at the site. Mr. Tydeman showed me the location of the three subject trees. According to Mr. Tydeman, two of these trees were removed without a permit and one tree was severely pruned, because these trees had obstructed the view from a large window at the back of the residence at 14646 Stoneridge Drive. ®bservations For convenience of discussion, I have assigned numbers to the three subject trees; as well as several of the adjacent trees, which are used for comparison. The three subject trees are classified as follows: Tree # 1 -Monterey. Pine (Pinus radiata) Trees #2, 3 -Coast redwood (Sequoia sempervirens) In addition to these, the following trees are used for comparison. Trees #4, 5, 6 -Monterey Pine (Pinus radiata) Tree #7 -Coast redwood (Sequoia sempervirens) Trees #1 and 2 have been cut down to the existing soil grade, but their stumps remain intact at the time of this assessment, March 12, 2002 (photo attached). Tree #3 has been topped at about 15 feet above grade (photo attached). The values of trees in Saratoga are assessed according to ISA (International Society of Arboriculture) standards, Seventh Edition, Trunk Formula Method. The stump of tree #1 is 14:7 inches in diameter at grade; and the stump of tree #2 is 1.7.1 in diameter at grade. Since the trunks of trees # 1 and 2 are no longer present, a comparison of trees. of the same species and near in size is required to provide assessment of the values of trees #1 and 2. For this reason, Monterey pine trees #4, and 5 and coast redwood tree.#6 are included in this analysis. A sketch in the attachment section of this report roughly shows the location of these trees both in relation to the building and to each other. There are several other trees (Monterey pine and coast redwood) on this slope, but these other trees have considerably larger trunk diameters at grade, which makes them less suitable for comparison. C, A comparison of the trunk diameters at soil grade with the trunk diameters at 54 inches above grade on trees #4, 5, yields an estimate of the trunk diameter of tree #1 at 54 inches above grade, the height at which measurements are taken for purposes of use of this formula. PREPARED BY: MICHAEL L. BENCH, CONSULTING ARBORIST MARCH 12, 2002 ~~~~ COMMENTARY ON TREE REMOVAL AND TREE PRUNING AT THE SARATOGA OAKS PROPERTY 2 14646 STONERIDGE DRIVE, SARATOGA Since the trunk diameter at soil grade of tree #4 is.less than. tree #l, and the trunk diameter at soil grade of tree #5 is greater.than tree #1, the average between the measurements of trees #4 and 5 is used to estimate the trunk diameter of tree # 1 at. 54 inches above grade. Based on this comparison, I estimate that the trunk diameter of tree #1 to have been approximately 10.8 inches. at 54 inches above grade. Tree #6 is the only coast redwood tree on this slope with a trunk diameter approximately the trunk diameter of tree #2 at soil grade. For this reason, the measurements of the trunk of tree #6 is used to estimate the trunk diameter of tree #2. Based on this comparison, I estimate the trunk diameter of tree #2 to-have been approximately 11.2' inches at 54 inches above grade. The trees #1 and 2 are estimated to have been approximately 25 feet in height. The. attached elevation sketch indicates that the trees must have been at least 25 feet in height to have obstructed the view of the windows of the residence located at 14646 Stoneridge Drive. Tree #3 has been topped at about 15 feet- above grade. Topping is a very destructive procedure that renders tree structures highly susceptible to branch breakage and decay at the topping site. The more mature a tree becomes after having been topped, the greater the risk of limb drop. Once a tree has been topped, its structure has been effectively destroyed. This is because the new growth is composed of watersprouts that are poorly attached and are highly susceptible to detaching at the parent stem, especially as the watersprouts mature. However, tree #3 had been previously topped. The location of the fresh pruning wounds and the branches that are have been left on this tree indicate that tree #3 had been topped a few years (estimated to have been about 5-7 years) prior to this pruning. Tree #3 and an irregular row of Monterey pine trees are located at an elevation of approximately 6 feet lower than the elevation of trees #1 and 2. Tree #3 and the irregular row of Monterey pine trees have all been topped (photo attached). All of these trees and trees #1 and 2 are located in the view of the back side of the residence located at 14646 Stoneridge Drive. Trees #1 and 2 are at a higher elevation and are in the view corridor of this residence, it appears highly likely that trees #1 and 2 were consistent in size with the adjacent trees and, therefore, also had been previously topped. This assumption has the effect of decreasing the value of trees #1 and 2. The health of trees #3-6 as well as the adjacent trees of both species (Pines radrata and Sequoia sempervirejas), which are not included in the comparisons used in this report, are all in excellent health. Based on this observation, I assume that trees #1 and 2 were also in excellent health. Thus, the health values of trees #1 and 2 are not reduced. Although tree #2 has been cut to the ground, it is not dead. Nor is it expected to die as a result of this pruning, despite of the severity. The coast redwood species will sprout from the stump, which is an adaptation for fire. Tree #2 has already started regenerating new PREPARED BY: MICHAEL L. BENCH, CONSULTING ARBORIST MARCH I2, 2002 ~~~~J COMMENTARY ON TREE REMOVAL AND TREE PRUNING.AT THE SARATOGA OAKS PROPERTY 3 - 14646 STONERIDGE DRIVE, SARATOGA _ . watersprouts. For several years, these watersprouts will be highly susceptible to splitting apart from the stump. Those watersprouts that survive usually became new trees. ~ / Value Assessment Once again, the values of trees in Saratoga are addressed according to International Society of Arboriculture (ISA) Standards, Seventh Edition, Trunk Formula Method. Based on the trunk diameters of the stumps at soil grade and on the comparisons with the adjacent trees, I estimate that the three trees have the following values: .Tree #1 - $389 Tree #2 - $1,256 -Tree #3 - $2,694 Respectfully submatte, a Michael L. Bench, Associate ~~&l,.*. ~,,, Barrie D. Coate, Principal Enclosures: Tree Data Accumulation Chart Pictures . Sketch MLB/s U PREPARED BY: MICHAEL L. BENCII, CONSULTING ARBORIST MARCH 12, 2002 ~~~~ JobSaratoga Oaks HOA Job Address:l4~toneridge Dr. Job # 031 .12.02 Mea surem ents Cond ition Pru ninal CabUn a Nee ds- PesUD iseas e Pro blems R ecom mend . ~ S ~ ui ~ ! ~ ~ BARRIE D COATS ~ ~ W ~ ~ a . l a and ASSOCIATES ~ m ~ ~ ~ Z 4 ~~ ~ ~ ~ 8 ~ ~ W ~ ~ ~ W Z ~, ~ ? u o _ ~ ~ ~, _ ~ i408)353~t052 $ ~ cwt ~ F- Z z O z $ w p ~ ~. O i o: ~ ~ ~ ~ ~ ~ d 23535 Summit Road A 95030 C t ~ w ~ l01 ui wo: z ~ to m J = w ¢ ~ ? w z a ' I ~ ~ ~ U g g C G ! 3 ~ Z ~ Los a s, C } } ~ P ~ w ~. ~ O U ~ ~ w C9 y 1 o O ~ ` > e ~ ~ ~ F- ~ ~ ~ x ~ ~ ~ O ~ ~ ~ ~ ~ ~ w z ~ U ~ U w a Y ~ F- O I- D ~ w O v O ~ I x = ~ ~ ~ ¢ z~ ~ O O O O ~ w m a ~ vw, ~ w o: O 8 w w w w m ~ m m ¢ w a w r O ~ U o' U ~ U U o: U a ? s- o t- ~ o: z z o: Key # Plant Name D ~ o~ o ~ x U x U U x 1 Montere Pine 10.8 14.7 ~ 1 ~ 3 ~ 4 ~ ' Pinus radiata estimated , X sp, class 30°!0 = $742 X cond. 75% _ $ 556 X loc. 70°h = $ 389 s . in 91.6 X $27lsq. in. = S 2,472 Total Value 2 Coast Redwood 11.2 17.1 1 3 4 Se uoia sem ervirens ~ s . in 98.5 X $271sq. in. _ $ 2,659 X sp. class 90°h = $2,393 X cond. 75°!0 = $ 1,795 X loc. 70°10 = ~ 1 256 estimated Total Value 3 Goast Redwood 16.4 21.4 17.9 15 30 1 3 4 . in 211 X $271sq. in. _ $ 5,701 X sp. class 90°h = $5,131 X cond. 75% _ $ .3,848 X toc. 70% _ $ 2 694 Total Value 4 Monter Pine 10.9 14.1 12.3 15 15 1 3 4 ~ s . in 93.3 X $27/sq. in. _ $ 2,518 X sp. class = $0 X cond. _ $ X loc. _ $ Total Value 5 Montere Pine 13.5 18.1 14.5 20 20 1 3 4 i s . in 143 X $27/sq. in. _ $ 3,863 X sp. class = $0 X cond. _ $ X loc. _ $ - Total Value 6 Coast Redwood 12.3 18.2 14.2 35 20 1 3 4 s , in 119 X $27/sq. in. _ $ 3,207 X sp. class = $0 X cond. _ $ X loc. _ $ - ' Total Value ~:a~ REPLACEMENT TREE VALUES 5-ga1= $36 15-gal = $120 24"box = $420 36"box = $1,320 48"box = $5,000 52"box = $7,000 72"box = $15,000 1 =BEST, 5 =WORST Page 1 of 1 BARRIE [). COATS Commentary On Trec Removal And Tree Pruning At The ® dnd ASSOCIATES Saratoga Oaks Property, 14646 Stoneridge Drive HC Tree ' All r are a ,,, lvl~ MP 3 Retaining Wall Mp =Monterey Yme RWD =Coast Redwood • • • Elevation Drawing Window Deck Stumps of ` trees # 1 and 2 Tree numbers correspond to evaluation charts. All dimensions and tree locations are approximate. 5' Approx. 2'~ Approx. -- - ~ 12' -~ 6' (~ ~ _ . f a' ~--- #3 BARR{E D. COATS Commentary On Tree Removal And Tree Pruning At The d11t{ ASSOC{AYES (908)353)052 Saratoga Oaks Property, 14646 Stoneridge Drive 23s3ss~~~ae~a losGatos,CA 95030 Prepared for: City of Saratoga, Planning Department HORTICULTURAL CONSULTANT Date: March 12, 2002 CONSULTING ARBORIST Scale: No Scale Job # 03-02-031 •I '~ Gap in collective canopy as a result of removing trees # 1 and L anu or topping Tree ~~. •~ All trees on the back side of house have been previously topped. ,t ~ ~: ~.. - , -..{1~E{ ,i ~«l i i ~ ~.~ ~ $ r r'. ~~ t ti 6 ~~ i' ~~ ~ {r ~.). :1 t _ ~ `M ~ME.~ I t h .~`` Prepared By: Michael L. Bench, Consulting Atborist • ~` • March l2, 2002 Commentary on Tree Removal and Tree Pruning at The Saratoga Oaks Property 1 14646 Stoneridge Drive, Saratoga ' Commentary an Tree Removal and Tree Pruning at The Saratoga Oaks Property •, 1.4646 Stoneridge Drive, Saratoga '~ `\ ,_1 7c`~ r ch ~ ~~ ~~ r ~ i, ~~ a ~ "`wT~ .~ ~. `1 J -K Y ~~r ~`~ t ~ ,~° ,.~ .: r ~ ~ _ ~~ ~ '`-~ ice/ 4~(. ~'~T ~ ~--"~ .= 1 ~~ ~ . 4., + i c'- ~ 1 F - ,1a~ i ~! X4.7 ' ~'' ~ ~ ~~ ~ it c f.`` ~ _ • 1?repared By: Michael L. Beach, Consulting Arborisf Tree #3. Pruning scar of having been previously."topped." 2 March 12, 2002 ~Of~~. Commentary on Tree Removal and Tree Pruning at The Saratoga Oaks Property 14646 Stoneridge Drive, Saratoga l Prepared By: Michael L. Bench, Consulting Arborist ~-- Stump of tree # 1 Stump of tree #2. •' ~i . _ : ,,,ti s w ~ ~!... ,ti «. w ''~. . ~ W. _,.,~ 547' .~,_,r ~'''` it ~ ~ ~t~`~,,~~'~rpc~ ~., .. ,fi ~ .~,~ r. ~~ „' r ti +a- 'pia { ~!Y f i j ~'!' f March 12, 2002 ~~ ~ , ~ '} ?r, ~ ~ j. ~ -fJ Y ~ . :,,712j r~ " ~lY~ i,, }' 1 • ~~~~ i• Attachment 3 • ~~ BARRI E D. COATE end ASSC-CIATES Horticutural Consultants ~ 23535 Surnrnit Road L©s Gatos, CA 95033 X08135 3-1 05 2 AN ESTIMATE OF VALUE OF T1INE TREES REMOVED WITHOUT PERMIT FROM 14645 STONERIDGE DRIVE SARATOGA Prepared at the Request of: City of Saratoga Community Planning Department 13777 Fruitvale Avenue Saratoga, CA 95070 Site Visit by: Barrie D. Coate Consulting, Arborist October 15, 2002 Job #10-02-199 ~~~~ c~ ~ ~~02 CITY OI~ SARATOGA e~..~i':R71'i'1~ 12 7 `..J • ~~~~ AID ESTrM6~'i9 OP VA1.t71s C)F NiNt TREES RF.;MOVED WITHOUT PERMIT i•ROM 14(148 STOiVERIDGE DRiVIs; SARATC)tiA Assignment On October 2, 2002 I received a floppy disk containing eight pictures of the stumps of nine trees removed without permit from the Planning Department, which I assume were taken at 14648 Stoneridge Drive. 1 was asked to estimate the value of these trees based on these pictures. I have not visited the site. Summary By use of the 9'~' Edition Guir~e for Plant Appraisal (2000) from the ISA (International Society of Arboriculture) I estimate the value of the nine trees at $31,100. Discussion Enlargements of the photos which include measuring tapes on the stumps demonstrate that seven Monterey pines (Pines r~rdiata) and two coast redwoods (.Sequoia sempervirens) were removed. The pines range between 13- and 23-inches diameter at ground level and the redwoods from 15-17 inches diameter. In my experience, the difference between the trunk diameter near the ground and at 4-'/z feet above grade averages 10%. Since the calculation of value, when using the Trunk F'armula Metlio~ begins with the DBH (diameter at 4-'/z feet above grade) it is necessary to have an estimate of that measurement. The trunk diameters at the ground level are: Tree # diameter at ground level estimated DBI-I Monterey pine # 1 18 inch i 6.2 inch #2 14 " 12.6" #3 17" 15.3" #4 ] 3" 11.7" #5 17" 15.3" #6 16" 14.4" #7 23" 20.7" Redwood #8 1.5" 13.5" #9 17" 15.3" For eff ciency, I have calculated the average DBH of the seven pines (15.17") and of the two redwoods (14.4"} and will use those dimensions for the calculation. Since the remaining tree in one of the pictures appears to be a healthy specimen and no evidence of beetle or disease activity is present in the stumps, I will presume the trees were in good condition before they were cut. It should be noted that the trees obviously served as a screen between adjacent residences: and it will require a considerable time to reproduce that screen. PRFPARi"1~ BY: BARRIF, D. COATf;; COhSULTINCs ARBOR.15"I' OCTOBER 15.202 ~~r~~fl~ AN F.ST.[MATF: (7F Z~AI,tlls OF MINI; TREES REMC3VED wITH()t1T PERMIT FROM 14G4R S7"GN1rRIDGE DRIVE, SARAT()GA 7 Installation of plants that would reach 20-30 feet fairly quickly would seem a logical part of restitution for the remaval of this screen of trees. If that is desired, Laurus'Saratoga' planted from 5 gallon cantainers on 6 foot centers would serve that function. They would require a soaker hose for irrigation attached to a battery powered time clock, to run for 3 hours once per week for the first year. Cost would be about $900 ~r 1.00 feet of hedge. Note that the area from which these trees were removed is steeply sloped and will now be subject to erosion if the existing ivy is not adequately irrigated. Sprinklers should apply 2-inches of water every two weeks from June through November to maintain that ivy. Respectfully submitted, Barrie D. Coate Enclosure: Trunk Formula Method Pictures BDC/sl •' • V12F:1'ARFI3S3Y: I3ARKI£ D. COATS: CONSULTING ARF3ORIST CJCTO$ER l~. 20132 ~~~~. 1C9151~211~.G4AM r~ ~~ Trunk Formula Method l3arrieT). Create AssociatesConsultinp, Arbcirist4 1, RepfacemerrtCost , Cost of largest commonly available transplantable tree, as installed in an average location (as established for Norkhem Cal'rfornia by the VYestem Chapter). ff the appraised tree is in a location which will make instaNation of a replacement especiaNy difficult or expensive, you should increase this line to account for costs above the averege 2. Replacement tree Basic Price Group (per sq, inch) # 4 3. Determine the difference in trunk areas If dia = 30° or less, determine TA,,, Diarr (Diameter ~ Breast Height or @ 4.5 feet) A. TAA = 162.70 B. RepiacementtreeTAR 19.6 (refertotable 11-1992) C. SubtractTA~fram TAa (3A-3B) = 143.10 SPEC{ES: Coast Redwood. Sequoia sempervtrens TREE #: 8, 9 TRUNK FORtv4Ui..A METHOD FORM FOR NORTHERN CAUFORNIA.1992 Established by the International Society of Arboriarlture,1992 Trees 1~SS Than 3fl° dia r Appraised Value=Basic Value X Condition X Location Basic Value=Replacement Cost + (Basic Price X [TAB, TAnj X Species) 4. Multiply Basic Price by area differences 5. Adjust step 4 by Species rating 6. Basic Vsfue = 7. Adjust Line 6 by Condition 8. AdjustforLoeation: Location = Adjust Line 7 for Location 527.50 100 $1,805 $3,935 100 r (Site + Contribution + Placement) - 3 80 io 100 a 1001 = 93 i 9. Appraised Value (before damage, rf applicable) =Round Line 8 to nearest $100 Appraised Value (after damage, if applicable) 10. For Partial Loss: 11. Removal~Reeanstrudion Cost if appropriate Prepared for Gity of Saratoga Address: 14648 Stoneridge Drive Date: Oct 15, 2002 Failure Oate Job #:1 D-02-199 $1,805 $27.50' per in2 times (3.C) $3,935 53,535' $5;740 $5,740 55,358 9 55,400' TOTAL 55,4D0 x 2 Trees = 510.800 BARRIE D. COATE • a>nd ASSOCIATES Horticultural Consultants {408) 353-1052 23535 Summit Rd., Los Gatos, CA 95030 'screen between properties "' placement to function as screen P8c3e 1 'l1' IL~~ 1N15f0211At AM Trunk Formula Method KarrieD. Coate Anscxiates-Consulting Arbosists TRUNK FORMULA METHOD FORM FOR NORTHERN CALIFORNIA.1992 -~}~- Estabtished by the Intemationaf Sodety of Arboriculture, i 992 ~~~ FfiS Than 30° diameter Appraised Value=Basic Value X Condition X Location Basic Value=Replacement Cast + (Basic Price X ~TAA-TA~] X Species} SPECIES: Monterey Pine. Pines radiata TREE #: 1--7 1. Replacement Cast: 81,805 Cost of largest commonly available transplantable tree, as installed in an average facation (as established for Northern California by the Western Chapterj. if the appraised tree is in a location which will make installation of a replacement especially difficult or expensive, you should increase this line to eccount far casts above the average 2. Replacement tree Basic Price Group (Per sq. inch) # 4 $27.50 3. Determine the difference in trunk areas 1f dia = 30" or less, determine TAA, Dian 5 . (Diameter @ Breast Height or @ 4.5 feet) A TAA = 181.36 B. Replacement tree TAR = 19.6 (refer to table 11-1992} G. Subtract TAr, from TAA (3pr36) = 161.16 4. hfu{tipf5r Basic Price by area differences 827.5D per in` times (3.C) $4,448 5. Adjust step 4 by Species rating 30% $1,335 6. Basic Value = $1,805 + $1,335 $3,140 7. Adjust Line 6 by Condition 100% $3,140 8. Adjust for Location: Location = (Site + Contribution + Placement) - 3 80 % 10D°i 100% - 93% Adjust Line 7 for Location $2,930 9. Appraised Value (before damage, it applicable} =Round Line 8 to nearest $100 $2.900 Appraised Value (after damage, if applicable) 1 D. For Partial Loss: 11. RemavalJReconstruction Cast, if appropriate Prepared far: City of Saratoga Address: 14648 Stoneridge Drive Date: Od 15, 2002 Failure Date TOTAL 32,900 x 7 Trees = $20,300 Jab x:10-02-199 HARRIS D. COATS "screen between properties *" pacemert to fundfon as screen P?;? 1 and ASSOCIATES i-3ortic-ultural Consultants (4Af3) 353-1.052 23535 Summit Rd., Los Gatos, CA 95030 • • L ~~~ _ 1 k^ y ~„ ~ > ~ _ tv r ~ ~ii'r ,+ r,:.~~ i. F"f ~ CIF ~~ ~ , _~ ti ~ x z~. {, ~ ft .c~T" y~fi, t ~, ~{, ~ {, ~k , - r r ' ~ T ~ 'L1"1. ~ , ~.,{ Y' ~If T a ~,yY~.~l +~yt .. f ~., ~ `~ ~'~+ ~ ~ ~~~ i k ~ a' s I ::~ :c~ z~° ' T ,i _ r -- ~ _ ~ - ,} ~ y. ~V .y.~ tX ` S.'~ ~T r1 Ts ,r W 'r " ,~ ».. _ ~ " 4. ,9` ~ ... - ~~ ~~~ ~ ^~ a i.; b _ ' { i ~ .J7 ~ '~ '~ ~` ~~' i ;F ~~ .^~ x (% r'. ~ 1 e ~ ~ !~ _~ ~ ... r "~, ~ .. ' ' _.. n - .. Y t l ( ~ , ~.. _y Y ~ ~ ~ r ~..1!y. ~l ~1i4 }i ~. h a '", L n' ~ '~. ~'~* r .T ~' ._ '~ ~ ~ ~~ ;ter ~~~ .. x . h~ r :s. N[onterey Pine Tree #7 23-inches An Estimate of Value of Nine Trees Removed Without Permit From 14648 Stonerid~e Drive, Saratoga ~~~ y, _ - ~ T .. t, ,i.... ~ ~ 1 } rn ~ t`,T~ ~~~ .. e ~ tea, ~ ~.. - ~ ,k i r. t u h ~ 4 - r ' '~ ~~~ ~, ,, `,_ r~_ `} a ..f. .. +L # ~ ~, s ry, .. s- a, .. .~'' 3 ~ ,.'/ ... . fi~ ~ ~ .~ ~ k~ i . h T a ~ :I ,. Y ~~ i _ ~~ fF ~ ~ r r~ . _ a~~.. ,. ~" .. ~~ ~ , ~ r `,~ rt' y ~.~ - r ~- :T ~~~~~~ ~~4 I ~ '~ ~~~ ~~ ~ it tS ~ l_~ ~ ~ Y t ~ F ., ,~ ~rt a.! t. 'jf ' 1 - ~~ j. «y.t ~',Ky ~ 1 ~~ ~ .• - ! ' _ ~~ ~~ ~~ a '~ kr r _ . ~ ~ ~ ~ ~, ~. it ~ LeE, .1~ , 't n" +~ * ~ '.. 4C I r'~" ~ ~L,. _ Monterey Pine Tree #6 16-inches n.. r.,.+:...,,,.+,. ,.s~~.,t..,. ,.sAt:.... ~,..,.,... n,...,,,,,..,,a tx~:+t..,...+'n,.««:+~..,...., tiA~AO c+,,.,,.,.:,~,.,, n...<.,, c...-~ ~~i~ • i ~'~ CEIVED • ;'`~~/ r,;~`` ~,-~, ~~' ~~~._ ~~~f ~~': -,.Yt,.„ .~~... 6VOOl 2 0 ~~t~, THIS HbX'I'b ~E CbM~PL~~Y OF S~~p~q )~Y~ THE CITX CLEI~C DATE RECEIVED: „__-_ HE4.RI:VG DATE: i ~~ ~'E~,: ~ - -- i h2E~;~IPTi # _ j j i FLA1~~Nt1~(~ C~l~I~~:ISSI~N ~~F'F~~~,H... APIPLICA~'IO1~T This two-part appl.icatian must lie submitted t~ the City Clerk, 13777 . Fruitvaie Avenue, Saratoga Cl~ 95070, by x:00 p.m. within Fifteen (15) calendar da}~s of the date of the decision. yy Name of Applicant (If, ~ r~.2 ~ ~`.°;`' :'~'~~z°`%/~ differertt than Appellant): ;. _ f~-~a°<~, c r,a:~4,~... ,:T~:~,~~~~~~:~~ Project file number and address: ---------- -- Appellant Name:. - - -- . ;~ ~ 4 C r+r~/'~ t,~~.wr!~y ,/-''r •~ .w~.*{ G-~ts.+.G.~.r+~C ,~d.~, ~ F.: ~l~re Address: 1.. `l ~~ -~- _ ~'~~'xY C c-~ ti -~;, ~~~ ~s .s ~.~~ '~-c.:~ ~ ~,~,~ :.~ ~:;. Telephcane #: -- ~- - a eared: =~ ~''~ ~~--~ s.~~~s-~..~' L-~~~-..~f.s Decision being pp _ ---- -- - ,rounds for appeal (letter rxiay be attached): ~ ,y~ .~•ti~ ~~ ~'~ ~/Ir°f.L~ ~ Y~/': ~^7 `, / S .8 Wry, ~!'~'~(? AyL. ~t ~~i:1 Appellant's Signature,,, L~atc (Please do not sign this application and the attached at~thori:%~tivri ra»til it is present at City office~~ • Attachment 5 ~'~~~ AFFIDAVIT OF MAILING NOTICES STATE OF CALIFORNIA ) SS. COUNTY OF SANTA CLARA ) I, L.:. ~£. ~ ~~~ `~~- ~ ,being duly sworn, deposes and says: that I am a citizen of. the United States, over the age of 18 yte~ars; that acting for the City of Saratoga da of ~' 1"f ~. ~``'`!~ 2003 that I Planning Conunission on the ~i~ y , deposited in the United States Post Office within Santa .Clara County; a NOTICE OF HEARING, a copy of which is attached hereto, with postage thereon prepaid, addressed to the following persons at the addresses shown, to-wit: (See list attached hereto and made part hereof) that said persons are the owners of said property who are entitled to a Notice of Hearing pursuant to Section 15-45.060(b) of the Zoning Ordinance of the City of Saratoga in that said persons and their addresses are those shown on the most recent equalized roll of the Assessor of the County of Santa Clara as being owners of property within 500 feet of the property to be affected by the application; that on said day there was regular communication by United States Mail to the addresses shown. above. ~ } -~ Signed ~~ • • ~~~~~ ®ORtiS ~ase-~ JOSEPH J& ANN FITZS]MMONS S C V W D 14611 BIG BASIN WAY E 4TH ST S TOGA CA 95070 SARATOGA CA 95070 -~ GEMMA HWANG 25313 LA LOMA DR LOS ALTOS CA 94022 MATTHEW & DIANA RAGGETT ROBERT B & ET WILDS 21028 BANK MILL RD 14633 AIVIBRIC KNOLLS RD SARATOGA CA 95070 SARATOGA CA 95070 ALLEN R & LEYDA ADAMS JOSE W SAN 2155 VENTURA PL 374 W SANTA CLARA ST SANTA CLARA CA 95051 SAN JOSE CA 95113 GEOFFREY WILD 14634 AMBRIC KNOLLS RD SARATOGA CA 95070 MICHAEL J & KAREN DUTCH 21010 BANK MILL RD SARATOGA CA 95070 W(OODWARD 21025 BANK MILL RD SARATOGA CA 95070 SARATOGA OAKS ..HOMEOWNERS ASSOCIA 727 UNIVERSITY AVE LOS GATOS CA 95032 SARATOGA OAKS HOMEOWNERS ASSOC 727 UNIVERSITY AVE LOS GATOS CA 95032 I IS C MAHAFFEY 1 644 STONERIDGE DR SARATOGA CA 95070 ANN V. & JOSEPH FITZSIMMONS 14611 BIG BASIN WAY AE SARATOGA CA 95070 JOSEPH L & PATSY TOWNSEND 635 CAMPBELL TECHNOLOGY PKY 100 CAMPBELL CA 9500.8 ROBERT: B & ET WILDS 14633 AMBRIC KNOLLS RD SARATOGA CA 95070 BARBARA .MARICNKOWSKI. . 14666 AIVIBRIC KNOLLS RD SARATOGA CA 95.070 ARTHUR W & JUNE ANDERSON MICHAEL J & KAREN DUTCH 21150 AMBRIC KNOLLS RD 21010 BANK MILL RD SARATOGA CA 95070 SARATOGA CA 95070 JOHN A & DONNA STEFFEK 21001 BANK MILL RD SARATOGA CA 95070 JACK G & STACEY ORME 21027 BANK MILL RD SARATOGA CA 95070 SARATOGA OAKS .HOMEOWNERS ASSOCIA 727 UNIVERSITY AVE LOS GATOS CA 95032 SARATOGA OAKS HOMEOWNERS ASSOCIA 727 UNIVERSITY AVE LOS GATOS CA 95032 SARATOGA OAKS HOMEOWNERS ASSOC 727 UNIVERSITY AVE LOS GATOS CA 95032 SCVWD SPRINGER RD SARATOGA CA 95070 SARATOGA OAKS HOMEOWNERS ASSN IN 727 UNIVERSITY AVE LOS GATOS CA 95032 SARATOGA OAKS HOMEOWNERS ASSOC 727 UNIVERSITY AVE LOS GLTOS CA 95032 JIM A & CYNTHIA SUMMERS 14642 STONERIDGE DR SARATOGA CA 95070 ~~~ ,.n4r~ aol aZeidwa~ asp WzslaayS pa~~ yloouas Smooth Feed SheetsT"" IOACHIM 14644 STONERIDGE DR SARATOGA CA 95070 1VIARGO L & S MATOS 20880 JACKS RD SARATOGA CA 95070 FREDERICK A & EILEEN NERVO PO BOX 460007 SAN FRANCISCO CA 94146 SARATOGA -CITY OF BIG BASIN WAY SARATOGA CA 95070 PAULA & JANICE BONNET 20900 BIG BASIN WAY SARATOGA CA 95070 IRENE T THOMPSON 20860 BIG BASIN WAY SARATOGA CA 95070 ELLSWORTH W & JACQUELINE WELCH 20925 JACKS RD SARATOGA CA 95070 SARATOGA CITY OF BIG BASIN WAY SARATOGA CA 95070 BLISH RICHARD C II AND SUSAN S 14676 WILD BERRY LN SARATOGA CA 95070-5762 SOWLES BERNIECE O TRUSTEE 14674 WILD BERRY LN SARATOGA CA 95070-5762 GIANNETTO S THOMAS AND MARJORIE M TRUSTEE 14679 SPRINGER AV SARATOGA CA 95070-5751 WOOD RICHARD K AND BETSY L TRUSTEE & ET AL 14694 SYCAMORE GROVE SARATOGA CA 95070-5728 FERRAN DAVID E AND DIANE ,M 14688 FIELDSTONE DR SARATOGA CA 95070-5737 HOLLEBECK FERNE A TRUSTEE & ET AL 14682 FIELD STONE DR SARATOGA CA 95070 DOYLE ELKS S PO BOX 422 OLD LYME CT 06371 NEIDER LEROY J 16285 LOS GATOS BL -LOS GATOS CA 95032=4519 Use template for 5160® BOB & KATERINA VLAHOPOULIOTIS 20920 JACKS RD SARATOGA CA 95070 MARY L DUTRO 20825 PAMELA WAY SARATOGA CA 95070 COX 550 HAMILTON AVE 220 PALO ALTO CA 94301 PIZOR JAMES C AND WOLF- PIZOR KATHLEEN N TRU 14672 WILD BERRY LN SARATOGA CA 95070-5762 BLAIR MARIAN A TRUSTEE 18881 UVAS RD MORGAN HILL CA 95037-9422 STEARNS RICHARD W TRUSTEE 6 MAYBRIDGE RD BELVEDEVE CA 94920 BROODING RICHARD D AND CONSTANCE B TRUSTEE PO BOX 157 SARATOGA CA 95071-0157 SHANENDOAH COMPANY THE :3490 SOUTHAMPTON DR RENO NV 89509. SOUZA EDMUND TRUSTEE POBOX2 SARATOGA CA 95071 FREEMAN FLORENCE J 10316 CRESTON DR CUPERTINO CA 95014-1014 WARLOW JOSEPH C AND MELANIE J TRUSTEE ', 14690 FIELDSTONE DR SARATOGA CA 95070-5737 BAILEY IRENE M TRUSTEE 14684 FIELDSTONE. DR SARATOGA CA 95070-5737 SHIPPEE RICHARD R AND JULIE A TRUSTEE 14630 SPRINGER CT SARATOGA CA 95 070-5726 :I • COMISKY HANNAH S 19324 MONTE VISTA DR SARATOGA CA .95070-6220 ~~"~~~~ n~ ` ~a ~~~,.~r, n.~,~..,,~r i 'h®~~ Laser 5160® Smooth Feed SheetsT"" DFVINE ANDREW M ET AL 14638 SPRINGER CT ~ TOGA CA 95070-5726 _~ IWANAGA ADRIENNE R TRUSTEE 14644 SPRINGER CT. SARATOGA CA 95070-5726 HLAVA JOYCE A TRUSTEE 14662 SPRINGER AV SARATOGA CA 95070-5748 GREY LEE S TRUSTEE 14668 SPRINGER AV SARATOGA CA 95070-5748 IRETON DONNA S 14654 SPRINGER AV SARATOGA CA 95070-5720 ;~ KLEINMAN PHYLLIS .AND KLEINMAN FAMILY 1977 14636 PLACIDA CT SARATOGA CA 95070-5739 REMMELL JAMES E JR TRUSTEE 14642 PLACIDA CT SARATOGA CA 95070-5739 KLEINMAN SIMON AND PHYLLIS TRUSTEE 14636 PLACIDA CT SARATOGA CA 95070-5739 NORTHWOOD MICHAEL A 14654 PLACIDA CT SARATOGA CA 95070-5740 BERLING RONALD M AND RIENNE M 14660 WILD BERRY LN SARATOGA CA 95070-5747 RUSHING JACK R AND LYNN W 14640 SPRINGER CT SARATOGA CA 95070-5726 GIANNETTO MARJORIE E AND S T TRUSTEE 15195 BECKY LN MONTE SERENO CA 95030- 2105 COAKLEY RUBY TRUSTEE 14664 SPRINGER AV SARATOGA CA 95070-5748 THOMP S ON KAREN AND JAMES 14670 SPRINGER AV SARATOGA CA 95070-5748 COMBS ROY E AND ANN TRUSTEE PO BOX 308 SARATOGA CA 95071-0308 FLORSHEIM MARY F 14638 PLACIDA CT SARATOGA CA 95070-5739 FRANCIS HELEN G FBO FRANCIS BYPASS TR ET AL 14644 PLACIDA CT SARATOGA CA 95070-5739 BALLARD MICHAEL AND KELLIE PO BOX 59664 POTOMAC MD 20859 COLEMAN MICHAEL P AND MAUREEN C 14656 PLACIDA CT SARATOGA CA 95070-5740 BRUBAKER ADA M TRUSTEE 14662 WILD BERRY LN SARATOGA CA 95070-5747 Use.temptate for 5160® FONNER CHARLES AND BARBARA - 14642 SPRINGER CT SARATOGA CA 95070=5726 BAGNATO PATRICIA L TRUSTEE 235 NOB HILL AV LOS GATOS CA 95032 SYVERTSON CLA.RENCE A TRUSTEE & ET AL 14666 SPRINGER AV SARATOGA CA 95070-5748 WOODRUFF HERBERT AND ROSEMARIE 14656 SPRINGER AV SARATOGA CA 95070-5720 HARTLEY YASUKO F 14650 SPRINGER AV SARATOGA CA 95070-5720 GIJILMETTE VICTOR M TRUSTEE .14640 PLACIDA GT SARATOGA CA 95070-5739 HARPER ERNEST T AND ROSEMARY P 14646 PLACIDA CT SARATOGA CA 95070-5739 SANDER THOMAS B AND GERDA M 14652 PLACIDA CT SARATOGA CA 95070-5740 MORIARTY JOSEPH AND LISA 14658 PLACIDA CT SARATOGA CA 95 070-5740 KIM YOUNG I 14664 WILD BERRY LN SARATOGA .CA 95 070-5747 ~~~ D.~'. ~r~~~® t~ririrpcc f ~be(~ Laser 5160® Smooth Feed SheetsT1" Use template for 5160® TAYLOR RAYMOND M JR ; WOODWORTH LOIS D WUERFLEIN ROBERT D AND 14666 WILD BERRY LN TRUSTEE & ET AL SUE L SARATOGA CA 95070-5747 14668 WILD BERRY LN 14668 STONERIDGE DR ' SARATOGA CA 95070-5747 ! SARATOGA CA 95070-5743 MILLER CHERIE B 14666 STONERIDGE DR SARATOGA CA 95070-5743 ROTHMULLER M. JANE .14660 STONERIDGE DR SARATOGA CA 95070-5743 SCHRAGA BURTON L AND KAREN L 14646 STONERIDGE DR SARATOGA CA 95070=5742 ISHERWOOD CHARLES S AND PATRICIA M TRUSTEE 14665 FIELDSTONE DR SARATOGA CA 95070-5760 KIBORT BERNARD R AND ANN M TRUSTEE 14664 STONERIDGE DR SARATOGA CA 95070-5743 JENKEL THEODORE A JR AND EILEEN F TRUSTEE 14650 STONERIDGE DR SARATOGA CA 95070-5742 MELLEN-BANAKAS FRANCES TRUSTEE 14669 FIELDSTONE DR SARATOGA CA 95070-5760 TJADEN DARRYL L AND ANNE F 14663 FIELDSTONE DR SARATOGA CA 95070-5760 LOPRESTO ROBERT L TRUSTEE & ET AL 14659 FIELDSTONE DR SARATOGA CA 95070-5734 MOUTAFIAN DORA 14634 FIELDSTONE DR SARATOGA CA 95070-5732 PAULSEN ELKE M TRUSTEE :14640 FIELDSTONE DR SARATOGA CA 95070-5732 REEDY ROGER F AND MARY C 14646 FIELDSTONE DR SARATOGA CA 95070-5732 O'MALLEY THOMAS J AND BARBARA A 14654 FIELDSTONE DR SARATOGA CA 95070-5733 BRIGHT NICHOLAS J TRUSTEE & ET AL :14657 FIELDSTONE DR SARATOGA CA 95070-5734 BULJAN GEORGE T AND HELEN J TRUSTEE 14636 FIELDSTONE DR SARATOGA CA 95070-5732 CROSS JUDSON S TRUSTEE 14642 FIELDSTONE DR SARATOGA CA 95070-5732 ANDERSON NORMAN R AND MARY D TRUSTEE 14650 FIELDSTONE DR SARATOGA CA 95070-5733 JORDAN JEFF K AND MARY A TRUSTEE 14656 FIELDSTONE DR SARATOGA CA 95070-5733 LARCEN MARDELL 14662 STONERIDGE DR SARATOGA CA 95070-5743 BRENCHLEY WILLIAM M TRUSTEE P O BOX 338 SARATOGA CA 95071-0338 MACMORRAN JAMES R AND NANCY M ET AL 1155 CHANNING AV PALO ALTO CA 94301 FLEMING EDWIN T AND GERALDINE T TRUSTEE 14661- FIELDSTONE DR SARATOGA CA 95070-5734 SARATOGA OAKS HOMEOWNERS ASSOC 1935 DRY CREEK RD STE 203 CAMPBELL CA 95008-3631 RAPPORT JACK TRUSTEE 14638 FIELDSTONE DR SARATOGA CA 95070-5732 KEIRNAN MELINDA AND MCGEE KEVIN 14644 FIELDSTONE DR SARATOGA CA 95070-5732 ANDERSON NORMAN R AND MARY D 14650 FIELDSTONE DR SARATOGA CA 95070-5733 HOFFMAN CHARLES E A~ MAUREEN S 14658 FIELDSTONE DR SARATOGA CA 95070-5733 ~~®~. //.~ ~~~® Aaidress Labels Laser 5160 Smooth deed SheetsT"" VIORRISON DAVID AND JANET ~. 146 0 FIELDSTONE DR S TOGA CA 95070-5761 BOOKER JOE T AND CAROLYN E TRUSTEE 14662 FIELDSTONE DR SARATOGA CA 95070-5761 ALDRIDGE BARBARA 14655 FIELDSTONE DR SARATOGA CA 95070-5734 BROSTROM EDWARD H AND KAY C 14662 C BIG BASIN WY SARATOGA CA 95070-6047 HANSEN-STURM-CRAIG AND QUELLA CLAUDIA TRUST 14664 B BIG BASIN WY UNIT 15 SARATOGA CA 95070-6048. PIZZILLO THOMAS A ET AL 1.4666 C BIG BASIN WY SARATOGA CA 95070-6062 L~HMAN GAYLEN W AND ELIZABETH 14510 BIG BASIN WY SARATOGA CA 95070-6090 KEAST DENISE T 14662 A BIG BASIN WY SARATOGA CA 95070 MARSHALL FRANK J AND JUDITH M TRUSTEE 14510 BIG BASIN WY UNIT #265 SARATOGA CA 95070 HENSLIN WILLIAM E TRUSTEE & ET AL 14666 A BIG BASIN WY UNIT 3 SARATOGA CA 95070-6042 .MARSHALL FRANK J AND JUDITH M 14510 BIG BASIN WY UNIT #265 SARATOGA CA 950.70-6324 MOYLES DAVID P AND DENISE B TRUSTEE 20201 HILL AV SARATOGA CA 95070-6352 SUN PETER T AND ROSA S ET AL 19951 DURHAM CT SARATOGA CA 95070 BOWERS MARILYN H TRUSTEE 14652 D BIG BASIN WY SARATOGA CA 95070-6044 SMERDON GARY J AND WHEATLEY SANDRA L ET AL 14654 B BIG BASIN WY SARATOGA CA 95070-6009 WOLFE DONALD I:, 14656 C BIG BASIN WY SARATOGA CA 95070-6045 ~NDEBERRY JEROME E 1558 C BIG BASIN WY UNIT 26 SARATOGA CA 95070-6042 GRAHAM NANCY B TRUSTEE 1650 CAMERON RD ELK CA 95432 ANDERSON MARGARET M .TRUSTEE 14656 B BIG BASIN WY SARATOGA CA 95070-6045 BLANCHARD ROBERT N 14658 B BIG BASIN WY SARATOGA CA 95070-6063 -Use template for 5160® PANELLI EDWARD A .AND LORNA C TRUSTEE 14656 STONERIDGE DR SARATOGA CA 95070-5743 GRACE LARRY W 14662 B BIG BASIN WY SARATOGA CA -95070-6047 BELUR RAKISH 14664 C-BIG BASIN WY SARATOGA CA 95070-6048 MILLER HENRY S AND EVELYN J 123 LA RINCONADA DR LOS GATOS CA 95030-1716 GENOVESE KAREN A 14650 C BIG $ASIN WY SARATOGA CA 95070-6043 KATHERMAN VIRGINIA C TRUSTEE P O BOX 191 SARATOGA CA 95071-0191 PARKER RUSSELL 14654 A BIG BASIN WY SARATOGA CA 95070-6009 HAYDON SANDRA I: AND SANDRA L TR/T TRUSTEE 135 ALTURA VISTA LOS GATOS CA 95032 BURRELL MARGARET C 14658 A BIG BASIN WY UNIT 9 ' SARATOGA CA 95070-6042 COSENTINO-ROUSH GEORGE E AND COSENTINO PAUL: 6585 LITTLE FALLS DR SAN JOSE CA 95120-4050 ~~~~~. n~ ~~EE~Y® ~4ddress Labels Laser 51COa Smooth Feed SheetsT"" ABNEY JULIANNE K 14660 A BIG BASIN WY SARATOGA CA 95070-6046 GATEHOUSE CONDOMINUM HOMEOWNERS ASSN THE 20810 4TH ST UNIT 1 SARATOGA CA 95070-5844 KAMIAK SANDRA TRUSTEE 20810 4TH ST UNIT 4 SARATOGA CA 9.5070-5844 SCHWENDINGER RICHARD L AND PATRICIA A P.O. BOX- 266 SARATOGA CA 95071 HARTIVIAN DENISE S 14660 C BIG BASIN WY SARATOGA CA 95070 TRAVIS WARD C 20810 4TH ST UNIT 2 SARATOGA CA 95070-5844 POKRESS WAYNE R AND SUSAN K .:20812 4TH ST UNIT 1 SARATOGA CA 950'70-5845 Use template for 5160® WONG FRANK W - 14660 D BIG BASIN WY SARATOGA CA 95 070-6046 MCGRATH ANN F TRUSTEE 20810 4TH ST UNIT 3 SARATOGA CA 95070-5844 WARREN KATHRYN B ET AL SO1 CLIFFSIDE CT PT RICHMOND- CA .94801 MURPHY CAMERON AND TINA COCHRANE ELSIE M 20812 4TH ST UNIT 4 800 BLOSSOM HILL RD UNIT 72 SARATOGA CA .95070-S84S LOS GATOS CA 95032 DEMARTINIS STANLEY A AND GRISWOLD LAURA J MIl2IAM L TRUSTEE ' 20812 4TH ST UNIT 7 21315 SARATOGA HILLS RD SARATOGA CA 95070-5846 SARATOGA CA 95070-5376 JAKOB ROBERT M PO BOX 6214 SAN JOSE CA 95150-6214 TIGHE BRIAN B TRUSTEE & ET AL 337 JUNIPERO PLAZA SANTA BARBARA CA 93105 TIGHE BRIAN R AND ANITALYNN M TRUSTEE 6374 CANDLEWOOD CT CUPERTINO CA 95014-4610 GLANTZ WILLIAM J AND JENNIFER C ET AL 20812 4TH ST UNIT 15 SARATOGA CA 95070-5847 SANFORD PETER L TRUSTEE 109 LIMESTONE LN SANTA CRUZ CA 95060 BARRIE-SODERSTROM KATHLEEN C 12908 PIERCE RD SARATOGA CA 95070-3714 BRENNOCK THOMAS M AND PAULA A 20812 4TH ST UNIT 23 SARATOGA CA 95070-5848 ROGERS WILLIAM AND DIANA 20812 4TH ST UNIT 8 SARATOGA CA 95070-5846 NG AND ZE~ . JENG CHYI RO CHYI 15214 BELLE CT SARATOGA CA 95070 SHON CHANG SUN AND SANG. S 20812 4TH ST UNIT 14 SARATOGA CA 95070-5847 DORSA DANIEL A JR TRUSTEE ZARECKY GARY L AND DIANE & ET AL 20812 4TH ST UNIT 19 ::20812 4TH ST UNIT 16 SARATOGA CA 95070-5847 SARATOGA CA 95070-5847 BODEN MIKE J AND LINDA L 20812 4TH ST UNIT 21 SARATOGA CA 95070-5848 WHEELER LORRAINE A 20812 4TH ST UNIT 20 SARATOGA CA 95070-5848 YEN KIRK KAND PI-CHENG C THANAWALA ASHISH A A~ 20812 4TH ST UNIT 22 SINHA SHEFALI SARATOGA CA 95070-5848 .20812 4TH ST UNIT 25 SARATOGA CA 95070-5848 ~~~ ~. ~~,~E~2~~ Address L~be[s Laser 5160® Smooth Feed SheetsT"" ~ CARNEY JAMES AND NORMA ~ TRUSTEE 13959 TRINITY CT S~TOGA CA 95070-5343 EAKLE STEPHEN S 20760 4TH ST UNIT 11 SARATOGA CA 95070-5851 BRASH LAURA NG FLORA 20760 4TH ST UNIT 9 21285 SARATOGA HILLS RD SARATOGA CA 95070-5851 SARATOGA CA 95070-5375 ANDERSON RONALD A EGGLESTON ROGER B AND 20760 4TH ST UNIT 8 ROSAL;EE SARATOGA CA 95070-5851 ' 12487 ARROYO DE ARGUELLO SARATOGA CA 95070-3010 Use template for 5160® HERMAN THEODORE C TRUSTEE 20760 4TH ST UNIT 12 SARATOGA CA 95070-5851 SCHRANZ VIKTOR AND KRISTALY ERIKA G 20760 4TH ST UNIT 7 SARATOGA CA 95070-5851 WOOTTEN LAURA L 20760 4TH ST UNIT 6 SARATOGA CA 95070-5850 CRUZ VERONICA TRUSTEE CZWORNIAK KENNETH J SILBERSTEIN J H AND LILLIAN 20760 4TH ST UNIT 3 20760 4TH ST UNIT 4 !TRUSTEE SARATOGA CA 95070-5850 SARATOGA CA 95070-5850 20760 4TH ST UNIT 1 SARATOGA CA 95070-5850 RUSIN ANNE S ET AL LYU CHUNG-NAN AND LU BOBORICKEN STEPHEN AND 20760 4TH ST UNIT 2 ~I' ANNE SARATOGA CA 95070-5850 19782 BRAEMAR DR 1140 W LATIMER SARATOGA CA 95070-5001 CAMPBELL CA .95008-1700 R~SSLER CYNTHIA A 20740 4TH ST UNIT 9 SARATOGA CA 95070-5853 BINDER LESLIE A 20740 4TH ST UNIT 10 SARATOGA CA 95070-5853 FALCONE VIRGINIA M TRUSTEE & ET AL 520 VISTA DEL MAR APTOS CA 95003 FRADIN DAVID M 20740 4TH ST UNIT 8 SARATOGA CA 95070-5853 STEARNS JAY M 20740 4TH ST UNIT 5 SARATOGA CA 95070-5852 KOOT ROSE S 20700 4TH ST UNIT 6 SARATOGA CA 95070-5843 LAWSON RONALD G AND MELTON VICTOR AND REGINA CINGOLANI GEORGE AND LINDA E TRUSTEE BEVERLY 20740 4TH ST UNIT 3 4662 BLUERIDGE DR 20740 4TH ST UNIT 1 SARATOGA CA 95070-5852 SAN JOSE CA 95129 SARATOGA CA 95070-5852 ANTABLIAN AREVIG 20740 4TH ST UNIT 2 SAR.ATOGA CA 95070-5852 MAURER FREDERICK J 20720 4TH ST UNIT 17 SARATOGA CA 95070-5895 BLACK 70HN P AND CHRISTINA D 20720 4TH ST UNIT 16 SARATOGA CA 95070-5895 RA DAVID R BARRIE KATHLEEN C 20 4TH ST UNIT 15 12908 PIERCE RD SARATOGA CA 95070-5855 SARATOGA CA 95070-3714 ~~/~~ : ~~iE6~'`~'® address Labels PARK JIN W AND. MIN K 20720 4TH ST UNIT 11 SARATOGA CA 95070-5855 ~~~Q~ Laser 5160® Smooth Feed SheetsT"" 30RJA SALVADOR 3 0 LILLE LN UNIT 214 I NEWPORT BEACH CA 92663- x665 Use template for 5160® - I PETAN FLORENCE TAI HSUEH H ET AL ~ ~ I 20720 4TH ST UNIT 9 20720 4TH ST UNIT 10 ' SARATOGA CA 95070-5855 SARATOGA CA 95070-5855 ._ ~' ' WILLIAMS SHELLIE S JR KIRK GEORGE E AND NANCY G TRUSTEE TRUSTEE -11951 BROOK RIDGE DR 20270 LA PALOMA AV SARATOGA CA 98070 SARATOGA CA 95070-5960 WALSH T F TRUSTEE 12759 PLYMOUTH DR SARATOGA CA 95070-3936 BANG HUNG SUK AND EUN JA 20720 4TH ST UNIT 1. SARATOGA CA 95070-5854 DAVIS LESLIE. 20700 4TH ST UNIT 12 SARATOGA CA 95070-5803 JACKSON DEBRA D 20720 4TH ST UNIT 3 SARATOGA CA 95070-5854 FORTE KATHERINE A 20720 4TH ST UNIT 2 ' SARATOGA CA 95070-5854 KELLY NOVELLE V TRUSTEE 20700 4TH ST UNIT 9 SARATOGA CA 95070-5803 CHANG WAYNE C AND SU-TI L TRUSTEE 419 GALLERIA DR UNIT 6 SAN JOSE CA 95134-2434. LIANIDES MARK C TRUSTEE 20700 4TH ST UNIT 6 SARATOGA CA 95070-5843 CHIAVETTA GARY G AND MADELINE S TRUSTEE 19548 CHARDONNAY UNIT CT SARATOGA CA 95070 KAO MABEL TRUSTEE ~ 20800 4TH ST UNIT 12 ', SARATOGA CA .95070-5861 ~ MCCURDY HELEN C TRUSTEE 617 RTVERVIEW DR CAPITOLA CA 95010 ARCHER MICHAEL E AND GAYLE L TRUSTEE P O BOX 7367 INCLINE VILLAGE NV 89452- 7367 LEPIANE SYLVAN E 15890 SHANNON RD LOS GATOS CA 95032-5729 GASIK KATHRYN TRUSTEE 159 OLD ADOBE RD LOS GATOS CA 95032 FALCONE MARK C AND CYNTHIA. A TRUSTEE 1388 POE LN SAN JOSE CA 95130-1342 STRAW RICHARD E AND. BARBARA L 20720 4TH ST UNIT 4 SARATOGA CA 95070-5854 STARTS EII:EEN A 14510 A BIG BASIN `WY UNIT 228 SARATOGA CA 95070-6012 WEISKAL NATALIE J 20700 4TH ST UNIT 10 SARATOGA CA 95070-5803 RA~ LEUNG DENNIS C AND G :.20700 4TH ST UNIT 5 SARATOGA CA 95070-5843 GOLDMAN JOAN C 1624 LYLE D~2 SAN JOSE, CA 95129-4810 ZANGER CARL F AND BETTY J TRUSTEE 10229 ADRIANA AV CUPERTINO CA 95014-1125 LAWSON LINDA AND RONALD 14090 ELVIlZA ST SARATOGA CA 95070-5815 DUNCANSON ROBERT A AND YVONNE L TRUSTEE 20800 4TH ST UNIT 8 SARATOGA CA 95070-5861 GILLEN LAWRENCE S AND LAURA N 6025 FOOTHILL GLEN DR SAN JOSE CA 95123-4508 TSAY CHEN-HUI AND LI MF~ CHUNG 3821 THOMPSON CREEK CT SAN JOSE CA 95135-] 000 ~~~~ -;~I~ ~~~.~'® Raddress Labels Laser 5160® smooth Feed SheetsT'" PLYCKA JOSEPH A AND 1V~TLDRED I TRUSTEE . 20800 4TH ST UNIT 6 ~S~TOGA CA 95070-5861 ALVORD FRED L AND DORINE 13782 CALLE TACUBA SARATOGA CA 95070-4921 ARCHER MICHAEL E AND GAYLE L TRUSTEE P O BOX 7367 INCLINE VILLAGE NV 89452- 7367 PAOLI JENNIFER L ET AL 16280 LOS SERENOS ROBLES MONTE SERENO CA 95030 MANZAGOL DONALD S AND KATHLEEN M TRUSTEE 23362 WAYFARER CT AUBURN CA 95602 T~BERG VERDA M TRUSTEE 20780 4TH ST UNIT 9 SARATOGA CA 95070-5801 RHEE PETER H 1150 SCOTT BL STE D2 SANTA CLARA CA 95050 BADER RICHARD F AND PATRICIA J 27720 MICHAELS DR SARATOGA CA 95070 WARREN KATHRYN B ET AL 501 CLIFFSIDE CT PT RICHMOND CA 94801 • LONG JOSEPH P JR AND SUSAN D P O BOX 2095 SARATOGA CA 95070-0095 FLENNIKEN MATHEW T AND MILLER VALARY A 20800 4TH ST UNIT 2 SARATOGA CA 95070-5897 DUMONT DENNIS 20790 4TH ST UNIT 5 SARATOGA CA 95070-5802 GANZHORN HARRY E AND ELSBETH R TRUSTEE 15943 VIEWFIELD RD MONTE SERENO CA 95030- 3148 TU MIKE M AND SHANL;I HU 20780 4TH ST UNIT 11 SARATOGA CA 95070-5801 MEDEIl20S ANNA K TRUSTEE 20780 4TH ST UNIT 10 SARATOGA CA 95070 GALE KATHLEEN M TRUSTEE 3720 CAPITOLA RD SANTA CRUZ CA 95062 JIMENEZ NATALIA 20780 4TH ST UNIT 4 SARATOGA CA 95070-5849 Use, template, for 5160® HU MIN HUEI 20800.4TH ST UNIT 4 'i ' ' SARATOGA CA .95070-589.7 DIERKES CARL L TRUSTEE PO BOX 495 SARATOGA CA 95071-0495 ARCHER MICHAEL E AND GAYLE L TRUSTEE P O BOX 7367 INCLINE VILLAGE NV 89452- 7367. TING SAI LUEN AND YE SHAG YING 20790 4TH ST UNIT 1 SARATOGA` CA 95070-5896 SUNDERLAND MICHAEL J TRUSTEE 380 BR.ANHAM LN UNIT 206 SAN JOSE CA 95136 ZAK CHRISTINE M 20780 4TH ST UNIT 7 SARATOGA CA 95070-5849 CARATOZZOLO JAMES R AND GAIL L ET AL 20435 CHALET LN SARATOGA CA 95070-4926 BURGER BERT AND VIVIAN D TRUSTEE 20780 4TH ST UNIT 1 SARATOGA CA 95070-5849 ~'®~ ll.~ A RY® address Labels Laser 516Qa p09L5 ~~se-~ Charlotte Miller 14681 Fieldstone Dr ~ Saratoga, CA 95070 Property Owner 14685 Fieldstone Dr Saratoga, CA 95070 Property Owner 14689 Fieldstone Dr Saratoga, CA 95070 • • i• ITEM 2 REPORT TO THE PLANNING COMMISSION Application No./Location: Type of Application: Applicant/Owner Staff Planner: Date: APN: App # 03-006/ 12161 Parker Ranch Road Fence Variance Lee Wieder/ Yu-Ning Chen John F. Livingstone AICP, Associate Planner ~ ~,~ June 25, 2003 ~- 366-43-007 Department Head: Q 500 foot radius around 12161 Parker Ranch Rd. Q Parker Ranch Road 12161 Roperties w rthin 500 feet 12161 Parker Ranch c;. - v ~ V a ~. ~ (O ~ ~~~~ E S • 0 150 300 450 600 750 fl l ~~ J 12161 Parker Ranch Road ~~~~~~ EXECUTIVE SUMMARY CASE HISTORY Application filed: Application complete: Notice published: Mailing completed: Posting completed: PROJECT DESCRIPTION 01/10/03 05/02/03 06/1U03 06/06/03 06/1ll03 The applicant is requesting a Fence Variance to the front and side yard setbacks, design and height requirements. The lot size is approximately 1.01 Acres and the site is zoned Hillside Residential.- STAFF RECOMMENDATION 1. Make findings in the affirmative to approve the northern side yard fence, with the decorative points removed by adopting the attached Resolution with conditions. Deny the remaining requested fence Variances by adopting the attached Resolution. ATTACHMENTS 1. Resolution Approving a Variance for the side yard fence for safety reasons 2. Resolution Denying Fence Variances 3. Resolution No. FE-90-001 4. City of Saratoga Noticing Labels, Noticing Affidavit, and Notice. 5. Applicant's Letter, Neighbors Letter and Plans, Exhibit "A" • • ~~~®02 File No. 03-006,• 12161 Parker Ranch Road STAFF ANALYSIS. ZONING: HR (Hillside Residential) GENERAL PLAN DESIGNATION: RHC (Residential Hillside) MEASURE G: Not applicable PARCEL SIZE: 1.01 Acres AVERAGE SITE SLOPE: 14% GRADING REQUIRED: No significant grading will occur. ENVIRONMENTAL DETERMINATION: The proposal is Categorically Exempt from the Environmental Quality Act (CEQA) pursuant Section 15303, "New Construction or Conversion of Small Structures", Class 3 (e) of the Public Resources Code (CEQA). MATERIALS AND COLORS PROPOSED: The applicant is proposing a black wrought iron fence with decorative points at the top of the fence. The fence has been constructed and a notice of nuisance abatement has been issued. That notice is being contested. The proposed • variance, if granted, would cure the code violation. PROJECT DISCUSSION The applicant is requesting Variances to both Ciry Code Section 15-29 and Resolution FE- 90-001. The following is a breakdown of the requested variances:- Variances to City Code Ciry Code requires that no fence be permitted in a front setback that exceeds three feet in height. The applicant's property has a front setback of 30 feet. The applicant's fence exceeds the height limit in that the fence height increases to five feet at a point l3 feet from the property line. The applicant is requesting a variance to this requirement. Variances to the Parker Ranch Homeowners Regulations FE-90-001 The Planning Commission adopted resolution FE-90-001 in 1990 pursuant to .section 15- 29.020 of the Saratoga City Code. The resolution grants an exemption from the City Code's fence enclosure area requirements for the Parker Ranch neighborhood subject to various conditions set forth in the resolution. FE-90-001 Section 1, #4 requires that all fences be setback a nunimum of 20 feet from property lines except that fences shall be setback 30 feet from the front property line. The applicant is requesting a variance to both the side and • front setback requirement. C:\MyDocuments\Variances\ParkerReanchRd12161FenVar(RSTand BP Commenrs)l.doc ~~ ~~~ ~O~ File No. 03-006,• 12161 Parker Ranch Road FE-90-001 requires that the proposed fence style be open and contain no sharp points possibly injurious to wildlife. The applicant is requesting a variance to keep the existing construction of the fence that includes decorative points. There is an existing wire fence that surrounds the rear of the property within the 20-foot setback established by FE-90-001. The fence appears to have been built in 1984, prior to FE-90-001. Staff is recommending that this fence remain in place as a legal nonconforming fence. The fence is surrounded by mature landscaping; and provides an enclosure around the pool as required by the. Uniform Building Code. As an existing non-conforming use, no variance is required. Findings ofApproval for the North Fence In order to approve a variance application the Planning Commission must make all of .the required variance findings in the affirmative. If any one of the findings cannot be made the request must be denied. The following is review of each of the required findings for a variance: 1. That because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, strict enforcement of the specified regulations would deprive the applicant of privileges enjoyed by the owners of other properties in the vicinity and classified in the same zoning district. This finding can be made in the affirmative for the North Fence in that the lot is unique in topography in that the front yard of the lot leads to a five-foot drop onto the neighboring property below. The strict enforcement of the fence regulation would deprive the property. owner the full use of the front yard area without the possibility of someone accidentally falling down to the neighboring property's cement driveway. 2. That the granting of the variance will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and classified in the same zoning district. This finding can be made in the affirmative in that this is a unique situation with a potentially hazardous five-foot drop onto the neighboring property's cement driveway. 3. That the granting of the variance will not be detrimental to the public health, safety or welfare, or materially injurious to properties or improvements in the vicinity. This finding can be made in the affirmative in that the. proposed fence will not be detrimental to the public health, safety or welfare and will help reduce the possibility of an accidental fall onto the neighboring property. Variance Findings ofDenial for the remaining Wroraght Iron Fence The following findings for denial are for all of the fence variance requests with the exception • of the North Fence that is being recommended for approval. C:\MyDocuments\Variances\ParkerReanchRd12161FenVar(RSTand BP Comments)l.doc ~~~~0~ File No. 03-006,• 12161 Parker Ranch Road 1. That because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, strict enforcement of the specified regulations would deprive the applicant of privileges enjoyed by the owners of other properties in the vicinity and classified in the same zoning distdct. This finding cannot be made in the affirmative in that proposed fencing located in the front and side yard setback is not .applicable to a special circumstance and is only a landscape design feature. The applicant has not provided, and staff has been unable to identify, any special circumstance regarding the size, shape, topography, location or surroundings of the applicant's property when considered in relation to other properties in the vicinity.. The applicant has noted that other properties have existing front yard fences. The existing fences in the neighborhood have not been determined to be built illegally after the approval of FE-90-001 and therefore are considered legal nonconforming fences. These existing fences may be the reason that the Planning Commission imposed the setback requirements set forth in FE-90-001. In any event the existence of fences on adjoining properties is not relevant to the Planning Commission's consideration of special circumstances on the applicant's property. 2. -That the granting of the variance will not constitute a grant of special, privilege inconsistent with the limitations on other properties in the vicinity and classified in the same zoning district. i This finding cannot be made in the affirmative in that granting the variance for the fence located in the front yard with the decorative points would constitute a special privilege not received by any of the other neighbors. The Ciry Code and Resolution FE90-001 do not allow other property owners to construct new fences within the 30-foot front yard setback or to have decorative points on fencing. 3. That the granting of the variance will not be detrimental to the public health; safety or welfare, or materially injurious to properties or improvements in the vicinity. This finding cannot be made in the affirmative. It would not satisfy health, safety or welfare in Hillside areas to protect neighborhood identity and rural neighborhood character and allow movement of wildlife. Trees No trees are proposed to be removed as part of the proposed project. Correspondence No negative correspondence was received on this application at the date that the staff report was distributed to the Planning Commission. C:\MyDocuments\Variances\ParkerReanchRd12161FenVar(RSTand BP Comments)l.doc ~~~~©~ File No. 03-006,• 12161 Parker Ranch Road STAFF RECOMMENDATION Staff recommends the Planning Commission Deny the requested fence Variances by adopting the attached Resolution-and make findings in the affirmative to approve the northern side yard fence, with the decorative points removed, by adopting the second attached Resolution with conditions. • • • C:\MyDocuments\Variances\ParkerReanchRd12161FenVar(RSTand BP Comments)Ldoc ~ ~ ~ ®®~ • Attachment 1 • ~~~~®~ APPROVAL OF RESOLUTION NO.03- CITY OF SAR.ATOGA PLANNING .COMMISSION STATE OF CALIFORNIA Chen; 12161 Parker Ranch Road WHEREAS, the City of Saratoga Planning Commission has received an application for a Fence Variance to maintain the existing black wrought iron fence located in the front yard of the existing house; and WHEREAS, the City of Saratoga Planning Commission has Denied all. of the Fence Variances requested by the applicant by adopting a separate resolution of deriial with the exception of approving one portion of fence on the northern side property line that acts as a barrier to reduce the possibility of someone accidentally falling down the neighbors five-foot retaining wall; and WHEREAS, the Planning Commission held a duly noticed Public Hearing at which time all interested parties were given a full opportunity to be heard and to present evidence; and WHEREAS, the proposed project consisting Exempt from the Environmental Quality Act Construction or Conversion of Small Structures", (CEQA); and of construction of a fence is Categorically (CEQA) pursuant Section 15303, "New Class 3 (e) of the Public ,Resources Code • • WHEREAS, the applicant has met the burden of proof required to support said application for Variance approval, and the following findings have been determined: 1. That because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, strict enforcement of the specified regulations would deprive the applicant of privileges enjoyed by the owners of other properties in the vicinity and classified in the same zoning district. This finding can be made in the affirmative for the North Fence in that the lot is unique in topography in that the front yard of the lot leads to a five-foot drop onto the neighboring property below. The strict enforcement of the fence regulation would deprive the property owner the full use of the front yard area without the possibility of someone accidentally falling down to the neighboring property's cement driveway. 2. That the granting of the variance will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and classified in the same zoning district: This finding can be made in the affirmative in that this is a unique situation with a potentially hazardous five-foot drop onto the neighboring property's cement driveway. • ~~'~~QB 3. That the granting of the variance will not be detrimental to the, public health, safety or welfare, or materially injurious to properties or improvements in the vicinity. This finding can be made in the affirmative in that the proposed fence will not be detrimental to the public health, safety or welfare and will help reduce the possibility of an accidental fall onto the neighboring property. Now, THEREFORE; the Planning Commission of the City of Saratoga does hereby resolve as follows: Section 1. After careful consideration of the site plan, architectural drawings, plaris and other exhibits submitted in connection with this matter, the application of Yuh-Ning Chen for Variance approval is hereby granted subject to the following conditions: COMMUNITY DEVELOPMENT 1. The development shall be located and constructed as shown on Exhibit "A" date stamped March 20, 2003, incorporated by reference. All changes to the approved plans must be submitted in writing with plans showing the changes and are subject to the Community Development Director's approval. 3. A Boundary Survey shall be submitted showing the exact location of fencing in relation to the Property Lines. If the approved fencing is found to be located on the neighboring property or property line, it shall be moved one foot onto the applicant's property. 4. The property owner shall install self-closing gates around the pool area as required by the Uniform Building Code. S. The applicant shall alter the location and design of the existing sheds as needed to comply with all City of Saratoga Code Regulations. 6. Where feasible, landscaping shall be designed and operated to treat storm water runoff by incorporating elements that collect, detain and infiltrate runoff. In areas that provide detention of water, plants that are tolerant of saturated soil conditions and prolong exposure to water shall be specified. 7. Pest resistant landscaping plants shall be considered for use throughout the landscaped area, especially along any hardscaped area. 8. Plant materials selected shall be appropriate to site specific characteristics .such as soil type, topography, climate, amount and timing of sunlight,. prevailing winds, rainfall, air movement, patterns of land use, ecological consistency and plant interactions to ensure successful establishment. 9. Existing native trees, shrubs, and ground cover shall be retained and incorporated into the landscape plan to the maximum extent possible. OO0009' 10. Proper maintenance of landscaping, with minimal pesticide use, shall be the responsibility of the property owner. 11. The decorative points shall be removed from the approved fence and caps placed on the exposed ends. CITY ATTORNEY 12. Applicant agrees to hold City harmless from all costs and expenses, including attorney's fees, incurred by the Ciry or held to be the liability of Ciry in connection with City's defense of its actions in any proceeding brought in any State or Federal Court, challenging the Ciry's action with respect to the applicant's project. Section 2. A Building Permit must be issued and construction commenced within 24 months from the date of adoption of this Resolution or approval will expire. Section 3. All applicable requirements of the State, County, City and other Governmental entities must be met. Section 4. Unless appealed pursuant to the requirements of Article 15-90 of the Saratoga City Code, this Resolution shall become effective fifteen (15) days from the date of adoption. PASSED AND ADOPTED by the City of Saratoga Planning Commission, State of California, this 25th day of June 2003 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Chair, Planning Commission ATTEST: Secretary, Planning Commission This permit is hereby accepted upon the express terms and conditions hereof, and shall have no force or effect unless and until agreed to, in writing, by the Applicant, and Property Owner or Authorized Agent. The undersigned hereby acknowledges the approved terms and conditions and agrees to fully conform to and comply with said terms and conditions within the recommended time frames approved by the City Planning Commission. Property Owner or Authorized Agent Date • ~~~~~~ Attachment 2 ~~~®~g. APPROVAL OF RESOLUTION NO.03- DENYING REQUESTED FENCE VARIANCES CITY OF SARATOGA PLANNING COMMISSION STATE OF CALIFORNIA Chen; 12161 Parker Ranch Road WHEREAS, the City of Saratoga Planning Commission has received an application for a Fence Variance to maintain the existing black wrought iron fence located in the front yard and side yard of the existing house; and WHEREAS, the City of Saratoga Planning Commission .has Denied all of the Fence Variances requested by the applicant by adopting this resolution of denial with the exception of a separate Resolution approving one portion of fence on the northern side property line that acts as a barrier to reduce the possibility of someone accidentally falling down the neighbors five- foot retaining wall; and WHEREAS, the Planning Commission held a duly noticed Public Hearing at which time all interested parties were given a full opportunity to be heard and to present evidence; and WHEREAS,. the proposed project consisting of construction of a fence is Categorically Exempt from the. Environmental Quality Act (CEQA) pursuant Section 15303, "New Construction or Conversion of Small Structures", Class 3 (e) of the Public Resources Code (CEQA); and WHEREAS, the applicant has not met the burden of proof required to support said application for Variance approval, and the following findings have been determined: The following findings for denial-are for all of the fence variance requests with the exception of the North Fence that is being recommended for approval. 1. That because of special circumstances applicable to the property, including size, shape, topography, ~ location or surroundings, strict enforcement of the specified regulations would deprive the applicant of privileges enjoyed by the owners of other properties in the vicinity and classified in the same zoning district. This finding cannot be made in the affirmative in that proposed fencirig located in the front, and side yard setback is not applicable to a special circumstance and is only a landscape design feature. The applicant has not provided, and staff has been unable to identify, any special circumstance regarding the size, shape, topography, location or surroundings of the applicant's property when considered in relation to other properties in the vicinity. The applicant has noted that other properties have existing front yard fences. The existing fences in the neighborhood have not been determined to be built illegally after the approval of FE-90-001 and therefore are considered legal nonconforming fences. These existing fences may be the reason that the Planning Commission imposed the setback requirements set forth in FE-90-001. In any ~~'~®~? event the existence of fences on adjoining properties is not relevant to the Planning Commission's consideration of special circumstances on the applicant's property. 2. That the granting of the variance will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and classified in the same zoning district. This finding cannot be made in the affirmative in that granting the variance for the fence located in the front yard with the decorative points would constitute a special privilege not received by any of the other neighbors. The City Code and Resolution FE90-001 do not allow other property owners to construct new fences within the 30-foot front yard setback or to have decorative points on fencing. 3. That the granting of the variance will not be detrimental to the public health, safety or welfare, or materially injurious to properties or improvements in the vicinity. This finding cannot be made in the affirmative. It would not satisfy health, safety or welfare in Hillside areas to protect neighborhood identity and. rural neighborhood character and allow movement of wildlife. Now, THEREFORE, the Planning Commission of the City of Saratoga does hereby resolve as follows: • Section 1. After careful consideration of the site plan and other exhibits submitted in connection with this matter, the application of Yuh-Ning Chen for Variance approval is hereby denied subject to the following conditions: Section 2. Applicant agrees to hold City harmless from -all costs and expenses, including attorney's fees, incurred by the City or held to be the liability of City in connection with Ciry's defense of its actions in any .proceeding brought in any State or Federal Court, challenging the City's action with respect to the applicant's project. Section 3. All applicable requirements of the State, County, City and other Governmental entities must be met. Section 4. Unless appealed pursuant to the requirements of Article 15-90 of the Saratoga City Code, this Resolution shall become effective fifteen (15) days from the date of adoption. • ~~~®~L3 PASSED AND ADOPTED by the City of Saratoga Planning Commission, State of California, • this 25th day of June 2003 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Chair, Planning Commission ATTEST: Secretary, Planning Commission This permit is hereby accepted upon the express terms and conditions hereof, and shall. have no force or effect unless and until agreed to, in writing, by the Applicant, and Property Owner or Authorized Agent. The undersigned hereby acknowledges the approved terms and conditions and agrees to fully conform to and comply .with said terms and conditions within the recommended time frames approved by the City Planning Commission. Property Owner or Authorized Agent Date ~~~~~~ • Attachment 3 ~~~~~ ,, RESOLUTION NO. FE-90-001 CITY OF SARATOGA PLANNING COMMISSION STATE OF CALIFORNIA PARKER RANCH - TRACTS 6526 and 6528 WHEREAS, the City of Saratoga Planning Commission has re- ceived the petitio om morel than 60 a of the Pa rker Ranch Homeowna' fence enclosure fr ers, and; WHEREAS, the Planning Commission held a duly noticed public hearing at which time all interested parties were .given a full opportunity to be heard and to present evidence; and WHEREAS, the applicant has met the burden of proof required to support said application, and the following findings have been determined: The .proposed fence regulations do not allow more than 50~ of the. lot area to be enclosed. The proposed fence style is open and contains no sharp points possibly injurious to wildlife. No open space areas will be enclosed by proposed fencing. Conditions required • fencing be .setback property lines, and lines, to ensure the open spaces. by this resolution require that all twenty (20) feet from side and rear thirty (30) feet from front property adequate passage of wildlife through NOW, THEREFORE, the Planning Commission of the City of Saratoga-does hereby resolve as follows: Section 1. After careful consideration of the proposed regulations and other exhibits submitted in connection-with this matter, the application of-the Parker Ranch Homeowners for hill- side fencing exception be and the same is hereby granted subject to the following conditions: 1. No more -than 50% of a lot area, exclusive of any portions designated as open space may be enclosed by a fence. 2. No solid fencing shall be permitted as stipulated in Section 15-29.020 of the Saratoga City Code. 3. All fence enclosures greater than 50% of the .lot area in existence as of August 8, 1990, may be approved by the .Planning Director. Future requests for fence enclo;r ved exceeding 50% of the lot area shall be reviewed and app by the Planning Commission as a modification to the approved fence plan. • 4. All fences shall be setback a minimum of twenty (20) feet from property lines except that fences shall be setback thirty (30) feet from the front property line. • • • i ~ ... . ~ r ' Res. FE-90-001 Par Ranch, Tracts 6526 & 6 5. All proposed fence plans shall be submitted. to the Planning Director for review and approval. 6. -Prior to the Director's approval of-the fence plan, a com= approved by wed and i . e prehensive landscape plan shall be rev the Planning Director.' Landscaping shall include indigenous and drought tolerant species that will be complementary to~ the vegetation currently within the open space areas.' Upon the Director shall and landscaping , completion of the fence conduct an inspection to ensure satisfactory completion of , the landscape plan. 7. Fence style deemed approved by this exception shall be limited to open styles shown in Exhibit "A" attached.. 8. No fences shall be contiguous with any neighboring fences. 9. Side and rear yard fencing may be located on the property ch fencing is adjacent to h en su line with no setbacks w dedicated open space. Section 2. All applicable requirements of the State, Coun- ty, City and other governmental entities must be met. Section 3. Unless appealed pursuant to the requirements of Article 15-90 of the Saratoga City Code, this Resolution shall become effective ten (10) days from the date of adoption. PASSED AND ADOPTED by the City of Saratoga Planning Commis- sion, State of California, this 8th .day of August, 1990, by the following roll call vote: AYES: NOES: ABSENT: .fl~C~ ~fi~, ~ airperson; Planni g Commission ATTEST• ecre ry, arming Commission The foregoing conditions are hereby accepted: Sig ature of App icant Date Secye~- j~ ~'<,..-12~., ~~-~-~~ f7~ ~'-'e.(CIJZ'~-C~/:J G1~.r''J L~ 4 ~ ~ G~-~ ~ C~~~~~.~ • Attachment 4 • ~'~~®~~ • AFFIDAVIT OF MAILING NOTICES STATE OF CALIFORNIA ) SS. COUNTY OF SANTA CLARA ) I, John F. Livingstone, being duly sworn, deposes and says: that I am a citizen of the United States, over the age of 18 years; that acting for the City of Saratoga Planning Commission on the 6th day of June, 2003, that I deposited in the mail room at the.City of Saratoga, a NOTICE OF HEARING, a copy of which is attached hereto, with postage thereon prepaid, addressed to the following persons at the addresses shown, to-wit: (See list attached hereto and made part hereof) that said persons are the owners of said property who are entitled to a Notice of Hearing pursuant to the Zoning Ordinance of the City of Saratoga in that said persons and their addresses are those shown on the most recent equalized roll of the Assessor of the County of Santa Clara as being owners of property within 500 feet of the property to be affected by the application 12161 Parker Ranch Road; that on said day there was regular communication by United States Mail to the addresses shown above. n F. Livingstone A P Associate Planner • ~~~®~9 City of Saratoga Community Development Department 13777 Fruitvale Avenue Saratoga, CA 95070 408-868-1222 NOTICE OF PUBLIC HEARING The City of Saratoga's Planning Commission announces the following public hearing on Wednesday, the 25`h day of June 2003, at 7:00 p.m. Located in the City Council Chambers at 13777 Fruitvale Avenue; Saratoga; CA 95070. Details are available at the Saratoga Community Development Department; Monday through Friday 8:00 a.m. - 5:00 p.m. App. NO.03-006 (366-43-007) - CHEN,12161 Parker Ranch Road; -Request for Fence Variances to the front and . side yard setbacks, design and height requirements. The lot size is approximately 1.01 Acres and the site is zoned Hillside Residential (See enclosed map). • All interested persons may appear and be heard at the above time and place. If you challenge a decision of the Planning Commission pursuant to a Public Hearing in court, you may be limited to raising only those issues you or someone else raised at the Public Hearing. In order for information to be included in the Planning Commission's information packets, written communications should be filed on or before the Tuesday, a week before the meeting. This notice has been sent to all owners of property within 500 feet of the project that is the subject of this notice. The City uses the official roll produced by the County Assessor's office annually, in preparing its notice mailing fists. In some cases, out>of -date information or difficulties with the U.S. Postal Service may result in notices not being delivered to all residents potentially affected by a project. If you believe that your .neighbors would be interested in the project described in this notice, we encourage you to provide them with a copy of this notice. This will ensure that everyone in your Community has as much information as possible concerning this project. John F. Livingstone, AICP Associate Planner 408.868.1231 • ~~~~~® u D n D 7 O I~ 12161 Parker Ranch Road ~~Q©21 ITEM 3 _~~-t~. • • REPQRT TQ THE PI~~~I~~ ~O~I~IISSI~~ Agplieation ~Io.: #03-121 Type of Apptlieatian: Amendment. to an. Approved Design Review Project Location: I4805 Versailles vvay Apghc~ntf Owner: JALAN Staff Planner: Thomas Sullivan, AIeP Date: June 25, 2Q(13 APN: 397-17-433 Department Head ' 43 "' ~ j ~ ~ i -I i `\ '+. j a wa iun ` aoo +aa ease}__ I ~ ~ i i ~; I i i l ~ i i ~ ~ I l ;: \ ~, i 1 ,- .. _ . , r,_._. ~ ;. , ~ t, i ~~ ;~ - ~~~~ ~ I ~- -~; ~ Sl , \ i I I.. ~ ~ ~ \\ J I I ~ i t i I i \ . ' ``; i f~ ~ i ~ i ~ i~ ~i ~ I ~ i F ~\y~ f' l i I I , I ~ I' ~- I I ~_ i I ~~. 1 '~-`.~"~ ~ r~ 1 i I ~ i i ~~ k- ~~~~~~ Staff Recommendation Staff recommends the Planning Commission deny the request by adopting the attached Resolution. Project Description The applicant received approval to demolish the existing 4,217 square foot, single-story residence and has requested Design Review approval to construct a new 6,037 square foot, one-story residence with a 3,209 square foot basement. The maximum height of the residence is proposed to be 2S feet six inches. The site is 40,060 square feet and is locatedwithin an R-1-40,000 zoning district. The Planning Commission approved the Design Review application with conditions by adopting Resolution DR-O1-028. The applicant subsequently requested Staff to approve the amendment to the approved plans to allow the pool to be placed in the center of the rear yard. Staff denied the request to approve the change due to concerns over the loss of additional trees. Early in the construction phase, the applicant requested approval to remove tree #1, a 29-inch diameter Giant Sequoia. Staff denied the request. The applicant's contractors had to be repeatedly reminded to not stack material under this tree and to keep the protective fencing up. Staff is also concerned about the proposed pavers to be located under the canopy of the large Coast Live Oak. • The applicant is now requesting that the Planning Commission approve an amendment to the previously approved project. The applicant desires to move the location of the swimming pool. To accomplish this, additional trees must be removed. These additional trees are #S and #6 from the original City Arborist Report. (Attached) Both of these trees are Coast Redwoods and both of the trees are 11-inches in diameter. Previously the pool was going to be placed where the tot lot is now proposed. Attachments 1. Draft Resolution Denying the Request 2. Resolution DR-O1-028. 3. Arborist Report-dated July 25, 2001 4. Correspondence Flans, Exhibit "A" (~~~(~~~ • Attachment 1 • ~~~~~~ • DRAFT RESOLUTION NO. CITY OF SARATOGA PLANNING COMMISSION STATE OF CALIFORNIA WHEREAS, the City of Saratoga Planning Commission has received an application for an amendment to an approved project located at 19805 Versailles Way ;and WHEREAS, the Planning Commission held a duly noticed Public Hearing at which time all interested parties were given a full opportunity to be heard and to present evidence; and WHEREAS, the applicant has failed to met the burden of proof required to support said application, and the following finding have been determined: ^ The ro osed location of the s ool is not in accord with the ob'ectives of the Zo ' P P ~~g P J ~ Ordinance, Article IS-50 in that the four trees were previously removed to accommodate a s•avitnnvng pool Additional trees would have to be removed to accommodate the swimnvng pool construction in the proposed new location. The new location of the pool hardscape would damage the-root zone of a large Coast Live Oak NOW, THEREFORE, the Planning Commission of the City of Saratoga does hereby resolve as follows: Section 1. After careful consideration of the site plan and other exhibits submitted in connection with this matter, the application of approval be and the same is hereby denied. Section 2. Unless appealed pursuant to the requirements of Article 15-90 of the Saratoga Ciry Code, this Resolution shall become effective fifteen (1S) days from the date of adoption. PASSED AND ADOPTED by the City of Saratoga Planning Commission, State of California, June 25, 2003 by the following roll call vote: • ~~~~o~ ' ~ AYES: NOES: ABSENT: ABSTAIN: Chair, Planning Commission ATTEST: Secretary to the Planning Commission i• i~ ~~~~~~ Attachment 2 • ~~~®~ • ~ . o. DR-O1-028 APPROVAL OF RESOLUTION N CITY OF SARATOGA PLANNING COMMISSION STATE OF CALIFORNIA JALAN;19805 Versailles Way WHEREAS, the City of Saratoga Planning Commission has received an application for Design Review approval for the construction of a new 6,037 square foot residence on a 40,060 square foot parcel; and WHEREAS, the Planning Commission held a duly noticed Public Hearing at which time all interested parties were given a full opportunity to be heard and to present evidence; and Whereas the project is Categorically Exempt from the Environmental Quality Act (CEQA) pursuant Section 15303, titled "New Construction or Conversion of Small Structures"; Class 3 (a) of the Public Resources Code (CEQA). This. exemption allows .for the construction or conversion of up to three single-family residences. The site is in an urbanized area and is connected to utility and roadway infrastructure and involves the construction of one single family home and associated out buildings; and WHEREAS, the applicant has met the burden of proof required to support said application for Design Review approval, and the following findings have been determined: The height, elevations and placement on the site of the proposed residence, when considered with reference to: (i) the nature and location of residential structures on adjacent lots and within the neighborhood; and (ii) community view sheds, will avoid unreasonable interference with views and privacy, in.that twenty-three trees are on the site and four would be removed in order to construct the project. That a mixture of Coast Redwoods and Coast Live Oaks be planted.. These replacement trees shall be 24-inch box trees. Said trees continue to provide screening and privacy to the site and adj acent properties. Additionally, the pool is proposed to be placed in a location on the lot, which is already screened from adjacent properties. The proposed entry porch (at the 49 ft. setback) is identified by the use of arched windows and columns. The setback portions of the building duninish in mass or "importance" from the street as they continue to be setback from the street. The "climinishing effect" of the setback portions of the building is achieved by the increase in setback. ^ The natural landscape will be preserved insofar as practicable by designing structures to follow the natural contours of the site and t~nimi~ing tree and soil removal; grade changes will be I1Linimi~ed and will be iri keeping with the general appearance of neighboring developed areas and undeveloped areas in that the lot is nearly flat with an average slope of 3.3 percent. The proposed grading is to ~~~~~~~ File No. DR-01-007/ 01-011;19752 irersailles Way construct the basement and swirruriing pool, not to alter the topography in order to construct the residence. Additionally, twenty-three trees are on the site and four would be removed in order to construct the project. Four 24-inch Coast Live Oaks and or Coast Redwoods are the replacement trees. ^ The proposed main or accessory structure in relation to structures on adjacent lots, and to the surrounding region, will mi]Lm~e the perception of excessive bulk and will be integrated into the natural environment, in that the roof line is varied as the building setbacks are increased from the front property line. The project proposes vertical cast stone columns to give pedimentation; additionally, window trim and an eave line with corbels. The use of stone and stucco, arched and rectangular fenestration and soft colors that include taupe and light brown break up the mass of the building. The project also proposes large stone wainscot of a burnt Apricot color on the structure's public facades. The front entry porch is 49 feet from the front setback. Other elements of the front elevation increase in setback from the front property line. As a point of reference the existing residence that would be demolished is 70-feet from the front setback. The proposed main or accessory structure will be compatible in terms of bulk and height with (i) existing residential structures on adjacent lots and those within the immediate neighborhood and within the same zoning district; and (ii) the natural environment; and shall not (i) unreasonably impair the, light and air of adjacent properties; nor (ii) unreasonably impair the ability of adjacent properties to utilize solar energy in that the structure's design incorporates elements and materials which minimise the perception of bulk and integrate the residence into the surrounding environment. The neighborhood is an eclectic mix of "statement" architecture and ranch style homes. The proposed project fits with the eclectic nature of the neighborhood. It does however depart from the ranch style architecture. The project setbacks provide sunlight and air corridors. ^ The proposed site development or grading plan incorporates current grading and erosion control standards used by the City in the construction require aCity-issued building permit. Appropriate grading and erosion control methods will be required as a part of that permit. ^ The proposed residence will conform to each of the applicable design policies and techniques set forth in the Residential Design Guidelines and as required by Section 15- 45.055. In particular the project conforms to Policy 1 "Minimize the Perception of Bulk", Technique #1, "Minimise Changes to Natural Topography"; Policy 1, Technique #3, "Use Materials and Color to Reduce Bulk"; Policy 1 Technique #4 "Minim~e Building Height"; Policy 1, Technique. #6 "Use of Architectural Features to Break Up Massing"; Policy 1, Technique #5, "Design Structure to Fit with Existing Neighborhood"; Policy 2, "Integrate Structures with the Environment," Technique #3, "Use Landscaping to Blend Structure with the Environment", Policy ~~Q!~Q'8 C:~IvlyDocuments~19805Veisailles SR DR01028.doc ~~ , : File No. DR-DI-007/ 01-011;19752 [~ersailles Way 3, "Avoid Interference with Privacy", Technique #3 "Use Landscaping to Enhance Privacy" and Policy 3, Technique #4 "Reduce Noise Impacts on Adjacent Dwellings". Now, THEREFORE, the Planning Commission of the Ciry of Saratoga does hereby resolve as follows: Section 1. After careful consideration of the site plan, architectural drawings, plans and other exhibits submitted in connection with this matter, the application of RAJKUMAR JALAN for Design Review approval is hereby granted subject to the following conditions: COMMUNITY DEVELOPMENT 1. The development shall be located and constructed as shown on Exhibit "A", incorporated by reference. . 2. Tile roof shall match the stone of the building material. 3. Plant additional mature Redwood trees to provide screening along the east side property line. 4. Plant additional landscaping in front of the building to soften the entry. At a minimum plant mature 48 inch box olive trees at either end of the portico. 5. The basement shall not be converted to a secondary dwelling unit as defined by the City's Municipal Code in absence of abiding by the City's Secondary Dwelling Unit process and obtaining the requisite building permits. The deed to the property shall include a statement to such. The deed restriction shall be reviewed and approved by the Director of Community Development and shown on the Title Report prior to issuance of building permits. 6. Prior to issuance of a Building Permit, the following shall be submitted to the Planning Division staff in order to issue a Zoning Clearance: a. Four (4) sets of complete construction plans incorporating this Resolurion as a separate plan page and containing the following revisions: i. Two fireplaces are included on the plans and only one may be wood burning. The other fireplace shall be gas as burning. One wood burning fireplace with a gas starter and one gas-burning fireplace shall be noted on the drawings. Both chimneys shall be indicated on the plans. ii. All the recommendations of the City Arborist shall be followed and incorporated into the plans. iii. The site plan shall be stamped and signed by a Registered Civil Engineer or Licensed Land Surveyor. C:~ivlyDocumentsU9805Veisailles SR DR01028.doc ~ ~~~ ~ ~~ • File No. DR-01-007 01-011;19752 [~ersailles Way iv. The site plan shall contain a note with the following language: "Prior to .foundation inspection by the .City, the RCE or LLS of record shall provide a written certification that the vemcal and horizontal are as approved by the Planning- Commission" 7. No Ordinance-size tree, with the exception of tree #'s 7, 8, 9, and14, shall be removed without first obtaining a Tree Removal Permit. 8. No fence or wall shall exceed six feet in height and no fence or wall located within any required front yard shall exceed three feet in height. 9. No structure shall be permitted in any easement. 10. A storm water retention plan indicating how all storm water will be retained on- site, and incorporating the New Development and Construction -Best Management Practices. If all storm water cannot be retained on-site due to topographic, soils or other constraints, an explanatory note shall be provided on the plan. CITY ARBORIST il. All recommendations in the City Arborist's Report dated 04/23/01 shall be followed and incorporated into the plans. This includes, but is not limited to: a. The Arborist Report shall be incorporated, as a separate plan page, to the construction plan set and the grading plan set and all applicable measures noted on the site and grading plans. The recommendations found in the Arborist Report are to be considered Conditions of Approval: b. Five (5) ft. chain link tree protective fencing shall be shown on the site plan as recommended by the Arborist with a note "to remain in place throughout construction." The fencing shall be inspected by staff prior to issuance of a Building Permit. . c. A note shall be included on the site plan stating that no construction equipment or private vehicles shall park or be stored within the dripline of any ordinance protected trees on the site. d. Four 24-inch box Coast Live, Oak and/or Coast Redwood trees shall be planted as replacement trees. The plantings are also required to provide year-round pnvacy screening. 12. Prior to issuance of a Building Permit, the applicant shall submit to the City, in a form acceptable to the Community Development Director, security in the amount of $15,422 pursuant to the report and recommendation by the City Arborist to guarantee the maintenance and preservation of trees on the subject site. C:~ivlyDocuments~19805Vecsailles SR DR01028.doc ~P~, j,'y~~®~® • ''i , ; File No. DR-01-007 01-011;19752 [~ersailles Way 13. Prior to Final Occupancy approval, the City Arborist shall inspect the site to verify compliance with tree protective measures. Upon a favorable site inspection by the Arborist and, any replacement trees having been planted, the bond shall be released. 14. Any future landscaping shall be designed and installed in accordance with 'the Arborist's recommendations. 15. A project arborist certified by the International Society of Arboriculture shall be retained to (1) provide on site supervision during key aspects of construction of the residence, pool and driveway for the purpose of preventing or minimizing damage to trees; and (2) provide regular written progress reports to the Ciry of these supervision functions as they occur. FIRE PROTECTION DISTRICT 16. The roof covering shall be.fire retardant, Uniform Building Code Class "A" prepared or built-up roofing. (Reference Uniform Fire Code Appendix 3, City of Saratoga Code 16-20:210). I 17. Automatic sprinklers shall be installed in the newly constructed garage (2 heads per stall), workshops, or storage areas, which are not, constructed as habitable space. To insure proper sprinkler operation, the garage shall have a smooth, flat, horizontal ,ceiling. The designer/architect shall contact the San Jose Water Company to determine the size of service and meter needed to meet fire suppression and domestic requirements.. (City of Saratoga Code 16-15.090[I]). 18. All driveways shall have a 14-foot minimum width plus one-foot shoulders. 19. Plans shall be checked for weed/brush abatement accessibility. 20. Early Warning Fire Alarm System shall be installed and maintained in accordance with the provisions of Ciry of Saratoga Code Article 16-60. (Alternative requirements, sprinkler systems 16-60-E). 21. Early Warning Fire Alarm System shall have documentation relative to the ', proposed installation and shall be submitted to the fire district for approval. 22. Automatic sprinklers are required for the residential dwelling (including the square footage of the basement). Documentation of the proposed installation and all calculations shall be submitted to the fire district for approval. A four head calculated sprinkler system is required. The sprinkler system shall be installed by a licensed contractor. CITY ATTORNEY 23. Applicant agrees to hold City harmless from all costs and expenses, including attorney's fees, incurred by the City or held to be the liability of Ciry in connection C:~ivlyDocumencs~19805Vetsailles SR DR01028.doc ~ ~ ~y sz versailles wa • File No. DR-01-007 01-011;197 y with City's defense of its actions in any proceeding brought in any State or Federal Court, challenging the City's action with respect to the applicant's project. 24. Noncompliance with any of the conditions of this permit shall constitute a violation of the permit. Because it is impossible to estimate damages the City could incur due to the violation, liquidated damages of $250 shall be payable to this City per each day of the violation. PLANNING COMMISSION 25. That the. applicant submits detailed landscape and irrigation plans at the time of building permit application. 26. That the applicant revises the site plan so that the pool equipment is relocated to the opposite side of the house, closer to the pool. 27. That subject to the review and approval of the City Arborist and the Community Development Director the front setback shall be increased by five feet. 28. That the entry portico be substantially reduced in height and projection from the main structure. Redesign shall be approved by the Community Development Director. Section 2. Construction must be commenced within 24 months or approval will expire. Section 3. All applicable requirements of the State, County; City and other Governmental entities must be met. Section 4. Unless appealed pursuant to the requirements of Article 15-90 of the Saratoga City Code, this Resolution shall become effective fifteen (15) days from the date of adoption. PASSED AND ADOPTED by the City of Saratoga Planning Commission, State of California, this 14th day of November 2001 by the following roll call vote: AYES: ROUPE, HUNTER, GARAKANI, KURASCH, ZUTSHI NOES: NONE ABSENT: BARRY, JACKMAN ABSTAIN: NONE > Acting Cha Panning Commission C:~IvlyDocuments~19805VersaillesSRDR01028.doc ~r ,~~~~ l-01- • 19 52 [jersailles Wa • File No. DR-01-007/~'J~'- 011, 7 y ATTEST: Secretary, Planning Commission This permit is hereby accepted upon the express terms and conditions hereof, and shall have no force or effect unless and until agreed to, in writing, by the Applicant, and Property Owner or Authorized Agent. The undersigned hereby acknowledges the approved terms and conditions and agrees to fully conform to and comply with said terms and conditions within the recommended time frames approved by the City Planning Commission. Property Owner or Authorized Agent //-/9-0/ Date C:~ivIyDocuments~19805Ve~sailles SR DR01026.doc ~~~®~..~ •I Attachment 3 • _ BARRIE D. COh o E AND ASSOCIATES ,~ ~ ,l~`° Horticultural Consultants ~° ~~~ (408) 353-1052 ~. ~, ~~ r~ Fax (408) 353-1238 ~; ; l ~ ~ 23535 Summit Rd. Los Gatos, CA 95033 1: - ; TREE SURVEY AND PRESERVATION RECOMMENDATIONS AT TAE JALAN PROPERTY 19805 VERSAILLES WAY SARATOGA Prepared at the Request of: Community Planning Deparhnent City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 Site Visit by: Michael L. Bench Consulting Arborist July 25, 2001 Job # 07-O1-150 Plan Received: 6/28/01 Plan Due: 07/30/01 D ~C~~~~~ AUG 1 0 2001 CITY OF SARATOGA COMMUNITY DEVELOPMENT ~~'~0~~ TREE SURVEY AND PRESERVATI~COIvA~ENDATIONS AT THE JALAN PROPERTY, 19805 VERSAILLES WAY, SARATOGA Assignment At the request of the Community Planning Department, City of Saratoga, this report reviews the proposal to demolish an existing home with an existing swimming pool, and to construct a new home with a large basement, and to construct a new swimming pool. This evaluation reviews this proposal in the context of potential damage to or the removal of existing trees. This report further provides information about the health and structure of the trees on site, and makes recommendations by which damage to them can be restricted to prevent significant decline. Comments and suggestions contained in this report presume that the locations of trees in relation to proposed construction are accurately presented on the plans provided. Summary This proposal exposes twenty-three trees to some level of risk by construction. Four trees (#7, 8, 9, and 14) are in conflict with the proposed construction and would be removed by implementation of this design, and one tree # 11 would be so severely damaged that it would not be expected to survive. Installation of replacement trees, which equal the values of the trees removed, are suggested. Procedures are suggested to mitigate the damage that would be expected to the retained trees. A combination bond is suggested in accordance with the levels of the expected risks. Observations There are fourteen trees on this site and nine trees located on the adjacent property toward~the east that are at risk of damage by proposed construction. The attached map shows the locations of these trees and their approximate canopy dimensions. Each tree has been tagged with a metallic label indicating its assigned number. The twenty-three trees are classified as follows: Tree #1 Giant sequoia (Sequoia gigantea) Tree #2 Hollywood juniper (Juniperus chinensis 'Kaizuka') Trees #3, 4, 16 Coast live oak (Quercus agrifolia) Trees #5, 6, 10 Coast redwood (Sequoia sempervirens) Trees #7, 8 Monterey pine (Pinus radiata) Tree #9 Monterey cypress (Cupressus macrocarpa) Tree # 13 Blue Atlas cedar. (Cedrus atlantica 'Glauca') Tree # 14 Dracaena (Cordyl ine austral is) Tree # I S Italian cypress (Cupressus macrocarpa) = 8 trees PREPARED BY: MICHAEL L. BENCH, CONSULTING ARBORIST JULY 25, 2001 ~~~®~ TREE SURVEY AND PRESERVA~ RECOIvIlvIENDATIONS AT ~ 2 THE JALAN PROPERTY, 19805 VERSAILLES WAY, SARATOGA Number 15 represents eight trees that are in a row on the adjacent property on the east. The health and structure of each specimen is rated on a scale of 1 to 5 (Excellent -Poor) on the data sheets that follow this text. Please note that each trees structure is distinguished from health. The structure rating is a visual evaluation of each tree's ability to remain standing and to maintain its branching without breaking or splitting apart. Damage of this nature can occur despite exceptional health. Also, structure is not an aesthetic focus. A tree that has an excellent structure may not necessarily be aesthetically pleasing. Because the various combinations of health and structure sometimes require interpretation, the combination of health and structure ratings for the trees are converted to individual descriptive ratings as follows: Exceptional S ecimens Fine S ecimens Fair S ecimens Marginal S cimens Poor S ecimens 3-6, 10, 14-1.6 1, 2,.12 7, 8, 11 9 Fine specimens must be retained if possible but without major design revisions. Mitigation procedures recommended here are intended to limit damage within accepted horticultural standards in order to prevent decline. Fair specimens are worth retaining but again without major design revisions. Mitigation must prevent further decline. Marginal specimens are typically worth retaining but could be removed if necessary to facilitate construction. Mitigations recommended here are intended to prevent significant decline. Poor specimens cannot significantly improve regardless of care. For any which are considered hazardous, removal is recommended. For those retained, mitigation may. not be typically requested. Tree # 1 the giant sequoia is in decline and will continue to decline: It has a disease Botryospheria dotlzidea that is untreatable in this species. Because cypress trees # 15 (8-trees) and # 16 are located on the adjacent property, I recommend that these must be treated as Exceptional regardless of their condition. The root collars of trees #3 and 4 are covered by fill soil. This condition exposes them to disease, such as oak root fungus (Armillaria mellea), which can kill infected trees over a period of time. This risk can usually be eliminated for all practical purposes by removing. the fill soil, which fosters the conditions that favor the disease. • PREPAKED BY: MICHAEL L. BENCH, CONSULTING ARBORIST JULY 25, 2001 °i.Y~~~~ TREE SURVEY AND PRESERVATIO• COIvIlviENDATIONS AT • 3 THE JALAN PROPERTY, 19805 VERSAILLES WAY, SARATOGA Impacts of Proposed Construction Trees #7, 8 and 9 are in conflict with construction of the proposed pool. In addition, tree # 11 would be so severely damaged by pool construction that it would not be expected to survive. Because of the low condition rating of these trees, replacement for these are recommended: Also, there are six small coast redwood trees in the area of proposed pool construction. These trees could be transplanted. If at least four of these coast redwood trees can be successfully transplanted without jeopardizing the retained trees #2-6, 10, 12, 13, 15, or 16, I recommend transplanting as the preferred option. The smallest of these coast redwoods could be moved using a tree spade. However, this option is incumbent upon avoiding damage to the retained trees by the tree spade truck such as soil compaction in the root zones. The spade truck would have to operate completely outside the driplines of retained trees. It appears that it would require that the small redwood trees would have to be transplanted after demolition but before the initiation of construction. A grading fill area is proposed (contour elevation 460' on the Grading and Drainage Plan) for pool construction within a few feet of the trunks of trees #5 and 6. This grading would expose .trees #5 and 6 to severe risk of root loss. Also, the proposed fill to change the contour elevation to 462' would put tree # 10 at significant risk. In my opinion, this ~ /~ grading must not be done. If retaining walls must be constructed to avoid this grading, I recommend retaining walls be constructed. In this event, retaining walls and the space required for the construction activity to construct the walls must be kept a minimum distance from the trunks of the retained trees. The minimum clearance distances must be: f from the trunk Trees #5, 6 8 eet Tree # 10 15 feet from the trunk Tree # 12 12 feet from the trunk Tree # 13 12 feet from the trunk Tree # 16 is at risk of significant root loss by the demolition of the existing concrete path and dog kennel on the east side of this property. The concrete must be removed. without disturbing the soil, which no doubt contains significant volumes of absorbing roots directly beneath the concrete. Trees #5, 6, 50, 12 and 13 would likely decline if these trees do not receive supplemental irrigation during construction, assuming construction would occur during the. dry season. In addition to the specific risks noted, the retained trees maybe subjected to one or more of the following damaging events that are common to construction sites: 1. The stockpiling of materials or the storage of equipment under the canopies. 2. The dumping of construction materials, especially waste materials, such as painting products, mortar, concrete, etc.) under the canopies. 3. The construction traffic, including foot traffic across the root systems, and the parking of vehicles or construction equipment under the canopies. 4. The trenching across root zones for-new utilities or for landscape irrigation. PKEPARED BY: MICHAEL L. BENCH, CONSULTING ARBORIST JULY 25, 2001 ®~~®~~ TREE SURVEY AND PRESERVATION RECONA~IENDATIONS AT ~ 4 ' THE JALAN PROPERTY, 19805 VERSAILLES WAY, SARATOGA 5. The grading of the surface soil resulting in the removal of quantities of absorbing root tips. 6. Broken branches or bark injuries as a result of construction equipment passing too close. 7. Landscaping, including incompatible plant species, trenching across tree root zones for irrigation, excessive soil disturbance of tree root zones, grading to create contours, etc. Virtually any landscape feature inside a tree's root zone results in a percentage of root damage. If the percentage is significant the affected trees will decline or die. Recommendations The following mitigation suggestions are intended to reduce the- extent of construction damage to acceptable levels, so that retained trees can reasonably be assured of survival without decline. If any changes to these plans occur during construction, the following may require alteration. 1. I recommend that the Grading and Drainage Plan be revised to assure that no grading, construction, or construction activity would occur within the minimum clearances required to prevent significant damage to trees #5, 6, 10, 12 and 13. See Observations section of this report. 2. I recommend that demolition of any portion of the concrete pathway or the dog kennel within 25 feet of the trunk of tree # 16 be done by hand. The exposed soil following demolition of the concrete must be covered with 3-inches of wood chips in order to prevent desiccation of the absorbing roots. The wood chips must be spread immediately following demolition (1-2 hours) the spreading must be done by hand and thoroughly wet down. 3. I suggest that construction period fencing be provided and located as noted on the attached map. Fencing must be of chainlink a minimum height of 5 feet, mounted on steel posts driven 18-inches into the ground. Fencing must be in place prior to the arrival of any other materials or equipment and must remain in place until all construction is completed and given final approval. The protective fencing must not be temporarily moved during construction. Fencing must be located exactly as shown on the attached map. 4: There must be no grading, trenching, or surface scraping beneath the driplines of retained trees, (either before or after the construction period fencing is installed or removed). Where this, may conflict with drainage. or other requirements our office must be consulted. 5. Trenches for any utilities (gas, water, phone, TV cable, etc.) must be located outside the driplines of retained trees unless specifically indicated on the enclosed plan. For any-tree where this cannot be achieved, I suggest a project arborist be retained to determine acceptable locations. A 2-foot section of each trench adjacent to any tree must be left exposed for inspections by our office. PREPARED BY: MICHAEL L. BENCH, CONSULTING ARBORIST JULY 25, 2001 ~~~~~.9 TREE SURVEY AND PRESERVATI ~CONA~IEENDATIONS AT • 5 THE JALAN PROPERTY, 19805 VERSAILLES WAY, SARATOGA 6. Supplemental irrigation must be provided to retained trees #5, 6, 10, 12 and 13 during the dry months (any month receiving less than 1 inch of rainfall). Irrigate with 10 gallons for each inch of trunk diameter every two weeks throughout the construction period. This can be achieved by the use of a simple soaker hose for each tree laid 6 feet from the trunk: 7. Excavated soil may not be piled or dumped (even temporarily} under the canopies of trees. 8. Any pruning must be done by an International Society of Arboricultural certified arborist and according to ISA Western Chapter Standards, 1988. 9. Landscape pathways and other amenities that are constructed under the canopies of trees must be constructed completely on-grade without excavation. 10. Landscape irrigation trenches, which cross a root zone, and/or excavations for any other landscape features must be no closer to a trunk than 15 times the trunk diameter from tree trunks. However, radial trenches may be made if the trenches reach no closer than 5 times the trunk diameter to any tree's trunk, and if the spokes of such a design are no closer than 10 feet apart at the perimeter of the canopy. 11. Sprinkler irrigation must be designed so that it does not strike the trunks of trees. Only drip or soaker hose irrigation is allowed beneath the canopies of oak trees. imam of 12. Lawn or other plants that regwre frequent imgation must be h>Iruted to a max 20% of the entire root zone and a minimum distance of seven times the trunk diameter from the trunk of oak trees. 13. Bender board or similar edging material must not be used beneath the canopies of existing trees, because its installation requires trenching of 4-6 inches, which may result in significant root damage. 14. Materials or equipment must not be stored, stockpiled, dumped under the driplines of trees, or buried. on site. Any excess materials (including mortar, concrete, paint products, etc.) must be removed from site. 15. I suggest that Transplanted trees (if done as described) must receive weekly supplemental watering like any other newly installed containerized nwsery plant. The root balls of transplanted trees must be kept thoroughly damp but not saturated at all times before transplanting and during transplant -and after transplant for at least one year. Value Assessment The value of the trees are addressed according to ISA Standards, Seventh Edition, 1992. • PREPARED BY: MICHAEL L. BENCH, CONSULTING ARBORIST JULY 25, 2001 L~ ~~i'1._n ~/GrQ TREE SURVEY AND PRESERVATI~RECOMMENDATIONS AT • (~ THE JALAN PROPERTY, 19805 VERSAILLES WAY, SARATOGA Trees #7, 8, 9, 11, and 14 are expected to be removed by implementation of this design. These have a total value of $1,588. An equivalent replacement would be four 24-inch- boxed native specimens or one 36-inch boxed specimen. Transplant of even two of the existing small coast redwood trees would likely equal or exceed this value. Replacements are suggested. I recommend that the owner be given the option of removing or providing protection for tree #l. If removed its value is $1,204, which is approximately equivalent to one 36-inch boxed native specimen. However, 36-inch boxed specimens and sometimes 24-inch boxed specimens may not be available at the end of the project unless the trees are secured with a grower at the onset of construction. I recommend that it be required that replacement trees be secured within 60 days of the issuance of permits. I recommend a combination bond (a + b) as follows: a. The combined value of all of the retained trees with the exception of # 15, is $49,112. For these, I suggest a bond equal to 20% of their total value ($9,822) to assure their. protection. b. The Italian cypress trees represented by tree # 15 are quite valuable individually. Each • tree is at least equal to a 52-inch boxed specimen, which has a value of $7,000 each. For the protection of these, I recommend a bond equal to the value of 10% ($5,600) of their total value ($56,000). Acceptable native tree replacements are: Coast live oak -Quercus agrifol is Valley oak -Quercus lobata Big leaf maple -Ater macrophyllum California buckeye - Aesculus californica Coast Redwood -Sequoia sempervirens Respectfully submi Michael L. Bench, ssociate ~q$, Ba ~ oate, ri~pa ~~u MLB/sl Enclosures: Glossary of Terms . Tree Data Accumulation Charts Tree Protection Before, During and After Construction PREPARED BY: MICHAEL L. BENCH, CONSULTING ARBORIST JULY 25, 2001 ~~~®~~. TREE SURVEY AND PRESERVATI~COMIvv1ENDATIONS AT ~ ~] THE JALAN PROPERTY, 19805 VERSAILLES WAY, SARATOGA Protective Fencing Radial Trenching Beneath Tree Canopies Map PREPARED BY: MICHAEL L. BENCH, CONSULTIlVG ARBORIST JULY 25, 2001 • • ~~~~~~~ BARRIE D. COA~ AND ASSOCIATES Horticultural Consultants (408) 353-1052 Fax (408) 353-1238 23535 Summit Rd. Los Gatos, CA 95033 GLOSSARY Co-dominant (stems, branches) equal in size and relative importance, usually associated with either the trunks or stems, or scaffold limbs (branches) in the crown. Crown -The portion of a tree above the trunk including the branches and foliage. Culhvar - A named plant selection from which identical or nearly identical plants can be produced, usually by vegetative propagation or cloning. Recurrent - A-term used to describe a mature tree crown composed of branches lacking a central leader resulting in around-headed tree. Excurrent - A term used to describe a tree crown in which a strong central leader is present to -the top of a tree with lateral branches that progressively decrease in length upward from the base. Girdling root - A root that partially or entirely encircles the trunk and/or large buttress roots, which could restrict growth and downward movement of photosynthates. Included bark -Bark which is entrapped in narrow-angled attachments of two or more stems, branches, or a stem and branch(es). Such attachments are weakly attached and subject to splitting. out. Kinked root - A taproot or a major root(s) which is sharply bent and can cause plant instability and reduction of movement of water, nutrients, and photosynthates. Root collar -The flared, lower portion of the base of a tree where the roots and stem merge. Also referred to as the "root crown". Leader -The main stem or trunk that forms the apex of the tree. Stem -The axis (trunk of a central leader tree) of a plant on which branches are attached. Temporary branches - A small branch on the trunk or between scaffold branches retained to shade, nourish, and. protect the trunk of small young trees. These branches are kept small and gradually removed as the trunk develops. DeSnition of Woody Parts Trunk -The main stem of a tree between the ground and the lowest scaffold branch. Scafl'old branches - In decurrent trees, the branches that form the main structure of the crown. Limb - A major structural part. Branch - A smaller part, attached to a limb or scaffold branch. Branc6let - A small part, attached to a branch. Twig -Avery small part attached to a branchlet. Leaf -The main photosynthetic organ of most plants. ~~Q®i~a~ .' ~ . ... ' _ .-. , . - ..._ .. .. ~ ~ I ~ ~ .... - _ . ~.... ~~ . . .. .. 8 vas ~' JaaHI/%IO" ~~ ~ /^.A/ O~ • ~f ' 0]'00• E ~2.502'~ ~~ '' + O: V OO'~~ __ _ ~ _ a _ ------'- ii ;' 1 - ~~ ~~ ~ ~ '/' ' NIh11V ' r ••~ ~~ ~/ it"fra Ml is ..m.a. - ~ i ', . `i ~_' '-, r ~ .a•' NOT Retained - -; i . ~ i~ ~, I ~ ~ PNleuive Fence ~ ~d /I ~ I ~ ' I __ ~ 1 if Tree RI ,~ 1~ ,1 IS Relsined 11 r i 11 flll / ' /~_ f IdEO I i ~ E ~. ' 4.~.;..>I. i 11 1 , l ~~ i .. ;~ _ 11 \ I I ~ 1 ---' I ~I ' ' f f~' f 1 / iW ~ ~ PI I i M 7 I I M i \ w.o Prvteclive Fend .,o L-- ~ rwA i ~ 11'w A ° _ I ~ ~~ ~ .. ,.bK _ ~._ ~. i ~~ ~ 1 tEI ROUEE 5' 6 ~, ;,». ~ ~ ~s 1 1 _ ~ 1 ! 1. . ~ v __+_ 1 1wa.n 0 -.` ..________.- 1 %I li ~.~s.l T- a ~ ii /y~ lll~w..y ~ I - ~ 1 . l / I; 1 ~~,. 1 ~,~ ~ }s ~ m 1 .~ ~ I li 1 ~ ~, // ~ bO 11 'Ir I~. i ; ~/ /ry 9 f. ~--~ I I -/ YNICCI{ve , () / FeOa `~ 1 ~ ~~.% y y Tree Survey Md Yremrvaim M .mendalims M The 1 Uarrk D. Corte w . E, ~soci.tes lalan A9~Y `I ~~ -r~//~ (105) 333-1032 23335 Summit Road Igd05 Vcmillo Wry, Sarwop tub MU)-01-150 I Los Gatos, CA 93033 ~~~ l'ilY of SmWlµ Commuouy Plvmily Dryumxal NORTINLTURAL CDNSULTANi Date: 1 30 2001 CONSULTING ARBORLST Sao: ma redund .a+?~ 00 w.s' 1 .- 2 ~-60.22 1 i' iiy ~j- 1 1~: _- ____.___-~ ~ ~ ~ .' Qj 5^ }~ 1 ~ 1 1C ~ • ~ \ I i ~ ~ Tra numbers cofrespond to evaluation cMn3. ~ .~ j . - .'• ~ ~ ~ ~ 1 K All dimeroi0ro and vee luwlioro ~ . . ' / u.,r _ are a111PIUR1n1alC. ." _ .._ 'h ... .. ~~~ 11'21• 177.32' ~ J~I~ ._... - B ~~ l JALAid --R(=S It -+lq/(11X(~,1 WESTFALL ENGINEERS . I NG . GRAD I NGi~ DR °Ti ~L.9M~9~6] ~j/ 1.50) BIC 6•BIa VeT. 6MaTOG. Ce aWIO twetEm-oz•• - '19805 VER3 AY • • Job Title: Jalan Job Address: 19805 Versailles Way Job #07-01-150 7 01 i Measurements Condition PruninplCablinq Needs Pest/Oisease Problems Recommend . ARRIE D COATS I , , ! , I I ! I I ! ~ ~ ? ; I I l ! ! I o ~ ! I i I ~ ! I ~ I ~ ! I I I I , 1~ I I I C I ~, ~ ~ i~ '~ I p I ~" ' ~ , I I ~ i ; ! . Nand ASSOCIATES v} ~ { = I 1 ' 1 I ! I I mo, { ~ . I I , z I ' ~ : = i ~ ~ ' ~ ~ I W ~ ~ m I 4 '~ twig ~ ~ J I : (408)3531062 i, , , , w ~ ~ ,n I z I } = I c~ Q z I c9 I a! } w ti p I I? I I~ ! I I m ; to ;~; !q !~ p I ; O t N !U !p i w~ W I~ a I , I !w I , , I , - ~~ , ~ w 2 , , O , Z I , p ~ I ~ i , , ~ , , ~ d' J W D 13535 Suotsi Rand l C t CA95030 W I F, ~ v) , , I ® I I I , I ,~, , ~ w ~ ~ ~ , ~ , Z , N I y ~ z w , w J ~ ~ a , , , Q ~ 3 I p I U w ~ g ! ~ J 1 -' -- ; ~ ; z ¢ w a .aa a aa, ~,~ i N m i i ~ W I ~ r F } i H p ~ v x !~~ o ! i ~ i~ p c i ~~ ~ m ~ ~ z , , 2 i Z 2 i Z~ (A W Z `~ O 0~ N ~ p F- U }~ i r O O i U U w ~ i ~+- i~ '~ ~ - ~ ~ - ~ i H' x} -~ i i i w I S{ x i Q x i W ~ i R J ' p~ ~ p , i D ' i Z i ~ ~ ~ ~i > I>'~ i O J i O; O O~ 0;~ m Z U i W I , Z w= _ i F I F O p; p' O I m l~ ~ m I m= w l n. ~ _ F I O I I ! m l m i m I m I w I Q d' N i W' z m m i i O ' 1 0 W 1 W W , W Key # Plant Name p i p p p x v~ x v~ v x U U U v m v a p !~ H m m z z oc ~ 1 ' Giant uoia , 29.0 } 33 ' 55 30 3 ,1 4 i } I ! ~ I ~ I ~ ~ I I , I I , uoiadendron i anteum , } _ I ~ i I ! I I i i ~ ~ I ~ ~ ! ~ I I r . in 660 X $27/sq. in. _ $ 17,825 X sp. Gass 30% _ $5,347 X cond. 75% _ $ 4,011 X loc. 30% _ $ 1,203 Total Value 2 Hoil oad Juni ~ 8.0 ~ x ~ 4.0 ~ 3.0. ~ 10V6I 25 ~ 30 2 J 1 ~ 3 ~ ~ ~ ~ } ~ I I ~ ~ ~ ~ ~ ~ ' I ~ Juni rus chinensis 'Kaizuka' ~ , } , I ~x2 ~x7 5x2 ~ ~ ~ ~ I I ~ ~ ~ ~ . , ' . in 88 X $27/sq. in. _ $ 2,376 X sp. Gass 70% _ $1,663 X cond. 90% _ $ 1,497 X loc. 60% _ $ 898 Total Value 3 Coast Live Oak 24.0 ; 25 40 45 1 3 5 I I ` 3 ~ ~ ~ ~ 2 QuerCUS a ritblia I i I ~ i I I I I I I 1 }~ I I I I I ~~ I ~ t . in 452 X $27/sq. in. _ $ 12,208 X sp. Gass 100% _ $12,208 X cond. 75% _ $ 9,156 X lac. 75% _ $ 6,867 Total Value 4 Coast Live Oak , 24.0 ; I i 1 25 ~ 40 } 45 1 } 3 5 } I I I I , I 4~ B i i i i i . in 452 X $27/sq. in. _ $ 12,208 X sp. Gass 100% _ $12,208 X cond. 753'0 = $ 9,156 X loc. 75% _ $ 6,867 Total Value 5 Coast Redwood 11.01 12 50 20 ~ ~ ~ ~ ~ ~ , 1 2 i 2 ' ! ~ ~ ~ ~ ~ ~ ~ I ' y ~ I ~ I ~ ' , Se uoia sem rvirens , , I i I I ~ I , ' . in 95 X $27/sq. in. _ $ 2,565 X sp. Gass 90% _ $2,308 X coed. 90% _ $ 2,077 X loc. 60% _ $ 1,246 Total Value 6 Coast Redwood 11.0 ; 12 ! 45 20 ~ 1 2 2 I I I ~ ! I ~ ~ ~ ! ; ' ' 1 ~ } I i 1 I } I I I I i I I I I I I I . in 95 X $27/sq. in. _ $ 2,565 X sp. Gass 90°k = $2,308 X cond. 90°k = $ 2,077 X loc. 60% _ $ 1,246 Total Value 7 Montere Pine ! 18.0 ~ I I 19 50 45 ~ , 2 1. 3 6~ ! I ~ ~ I I ~ I , I ~ I , I ' ' Pinus radiate ' ' ~ ' ! ' I ' ~ 1 ~ ~ I s . in 254 X $27/sq. in. _ $ 6,867 X sp. Gass 30% _ $2,060 X cond. 60°k = $ 1,236 X loc. 50°k = $ 618 Total Value REPLACEMENT TREE VALUES 5-gal = $36 15-gal = $120 24"box =•$420 36"box = $1,320 48"bo~,000 52"box = $7,000 "72"bo 15,000 1 =BEST, 5 =WORST ~elof3 • Job ~e: jalan Job Address:l~ Versailles Way 1 Job #~1-150 7/25/01 Measurements Condition PrunlnQ/Cabllnp Needs PestlDisease Problems Recommend . 1 1 ' ; 1 { 1 i ~ I 1 ~ 1 { i ; I 1 1 { 1 ~ ; ~ 1 I 1 1 1 ~ I 1 { I 1 1 I ~ 1 ; ; I 1 1 ; 1 ; 1~ 1 I ~ ~ { r 1 { ; I 1 BARRIE D. COATS 1 ~, '; 1 1 ' _ 1 l 0 3 ' 1 1 1 ' ' i! i ~, 1 ° 1 : = ' ~ ~ W ' W ! _ and ASSOCIATES ~ ~ 1 ~ ' ' ; 1 ;~ 1 1 ~ I : 1 i i 1 ~ " ' W ~ ~ Z 1 1 ~ i ~ i F i i , x ~ ~ i 1 I 1 ~ i -W i i i~ ~ y ' ~ ' 1 1 1 1 4 W i i s ' > 1 ~ ~ 1 ; i i~ i i in i z ~ ~ ' Z 1 Z 1~~ i~ ~ W i ~ C a' Q ~~ ~ in ' ~ ~~ ~ ° 1 ~ i W ~ W i ~ ' Fr- (408)353i052 ~ 1 1 ~ 1 1 1 1 1 LL 1 1 ; 1 i F- 1 1 ~ ; U Z Z I Z I O 1 ~ 1 w 1 ~ Z I 1 1 ° O I 1 1' } i ~ 1 ~ ~ a 1 11 ~ 1 ~ ; J 1 23535 iwei Raad ; 'u N ~ ; ~ i 1 ® 1 ; i ,~ i w 1 ; i d: i z i r- ~ ug 1 ? 1 ~ -~ i x i w w l 1 ~ 1 ~ i W W i a: d 'q 1 3 ; ° 1 g 1 g ~ i i 0 i W i ' ~ ~ ~ i W a a LaeCaGe.CA 990©0 ~~~ ~ 1 1 1 1 W { ~ ~- {~ ; o f ; 1~ ° o f -- I m z z 1 z _ ~ ; I z~ ~ 1 z 1~ c9 cn i O ~ o ; I O ~ O v ;~ °; v ; v I w 3 1" 1~ ~ 1 N 1 1 ~9 ; 1 1 1 ;~ 1 I w t- ~ x~~ x ~ C V i I ° 1 ~ 1 i i. 3 3 ~ ~ I~ 1 o w 1 1 1 z z r- i U I 1 1 z~ -- W ~ i 1 1 o n o o 0 f-' x= J i 1 x I x s g `-' '~ J ~ 1~ 1 1~ 1 Z 0 s a 1 1 O I O 1~ ~ m m 1 1 J 1 ; 0 1~ l m I ~ w 1 Q ° m 1 1 I vWi 1 w~ ~° { O O 0: m t w o w I w w Key # Plant Name m 1°c ° G I .m 1 m { I ° l 0 1° w 1 a x l fA x I F- 1 1 l !n 1 v I x ; 1 ; i 1 v 1 v I v I v 1 Q: v l a z 1 ; 1 1 I H 1° 1~ 1 D! ~ D: z i z d' K 8 Montere Pine 1 16.01. 1 ~ ~ 1 1 1 1 17 1 1 1 1 45 ; 30 ! 1 2 1 1 1 3 1 6 1 i i 1 1 1 1 1 1 1 1 1 ~ 1 i i 1 1 1 1 1 = ~ ~ I 1 i 1 i 1 1 I 1 r 1 i - 1 1 1 1 1 1 i 1 1 1 i 1 1 1 1 1 l 1 1 1 1 1 1 1 1 1 1 1 i 1 1 1 1 1 1 1 i 1 1 1 1 1 . in 201 X $27/sq . in. _ $ 5,426 X sp. Bass 30% _ $1,628 X cond. 60% _ $ 977 X loc. 50°~ _ $ 488 Total Value 9 Mon C Tess 9.0 ; x 4.0 ; 1 12 120 ; 20 4 ~ 2 5 I = ; ; ~ i 1 Cu ressus maaoca a 1 1 1 1 1x4 1 1 1 1 1 1 1 1 1 1 1 1 ~ 1 1 1 1 ~ 1 1 1 1 1 1 1 1 1 1 1 . in 89 X $27/sq . in. _ $ 2,403 X sp. Gass 509° _ $1,202 X card. 45% _ $ 541 X loc. 40°k $ 216 Total Value 10 Coast Redwood 20.0 = x ~ 20.0 ~ 16.0 X40\1 ~ 75 ~ 35 1 ~ 3 ~ 5 ~ ~ ~ ~ ~ ~ ~ ~ 1; .x2 1 ~ ~ I 1 1 ~. 1 i 1 ~ 1 1 1 1 1 1 . in 672 X $27/sq . in. _ $ 18,14 X sp. Bass 90% _ $16,330 X cond. 60% _ $ 9,798 X loc. 60% _ $ 5,879 Total Value 11 Coast Redwood 1 8.0 1 x 1 1 3.0 ~ 1 1 1 10 1 30 ~ 15 1 1 1 3 1 1 1 1 3 1 7 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 i ~ 1 1 1 1 1 1 ~ 1 1 1 1 1 1 1 1 1 i 1 ' 1 1 1 1 1 1 1 1 1X3 1 . . 14X3 1 1 1 1 ~ 1 1 1 1 1 1 1 . in 61 X $27/sq . in. _ $ 1,647 X sp. Gass 90'y° _ $1,482 X cond. 30% _ $ 445 X loc. 60% _ $ 267 Total Value 12 Caast Redwood 24.01 1 ~ 1 1 .26 1,100 ~ 20 3 j 2 5 1 1 ~ ~ ~ 1 i l 1 1 1 1 1 1 1 ~ 1 1 1 1 ~ 1 ~ ~ 1 1 1 1 ~ ~ ~ 1 1 1 1 ~ 1 ~ 1 1 1 1 1 1 1 1 1 ~ 1 1 F 1 1 1 1 1 1 . in 452 X $271sq . in. = $ 12,208 X sp. Gass 90% _ $10,987 X cond. 60% _ $ 6,592 X loc. 60°k = . $ 3,955 Total Value 13 Blue Atlas Cedar 1 17.0 ; x 1 1 1 6.0 ; 5.0 , 19 i 75 1 30 1 1 1 1 2 3 1 1 1 1 1 1 1 1 ~ 1 1 ~ 1 1 1 1 1 1 1 1 1 ~ 1 l 1 1 1 t 1 Ceders aHantica lauca 1 1 1 1 1 1 1X1 1 1 1 i 1 1 1 1 1 1 1 1 ~ 1 ~ 1 1 1 . in 261 X $27/sq . in. _ $ 7,047 X sp. Gass 90% _ $6,342 X cond. 90% _ $ 5,708 X loc. 60% _ $ 3,425 Total Value 14 Dracaena 5.0 . ~ x ~ 5.0 ~ =-9x3 110 ~ 15 1 ~ 3 ~ 4 ~ 1 1 1 ~ ~ 1 1 ~ ~ 1 1 1 ~ j 1 ~ ~ 1 ( i ~ 1 ~ 1 ~ 1 Cord line australls 1 1 ~x8 ~ 17x4 1 ~ 1 1 1 1 1 1 1 1 1 ' ' . in 98 X $27/sq . in. _ $ 2,646 X sp. Gass 30% _ $794 X cond. 75% _ $ 595 X loc. 60% _ $ 357 Total Value REPLACEMENT TREE VALUES 5-gal = $36 15-gal = $120 24"box = $420 36"box = $1,320 48"box = $5,000 52"box = $7,000 72"box = $15,000 1 =BEST, 5 =WORST Page 2 of 3 CSC Job Title: Jalan Job Address: 19805 Versailles Way Job #07-01-150 • 7/"L5/U7 Measurements Condition Pruning/Cabling Needs PesilDisease Problems Recommend. ; : ~ ~ I BARRIE D. COATS ' ~ o ~ ; ; ~ ~ : o ~ : ` ~ _ 'O i i -( i - i i i '" i ~ Z ~ i i i ~ i W' { i~ i N i 7. and ASSOCIATES w ; ~ I ; _ ; v ; , o ~ ' ~ ; ; ~ ; N ~ ~ I > v o, ~ ~ x d i i i i W i ' i O' ~ C9 i i i C7 I# i i W' i (> ~ ~~ t,Y 1 0 } > ~~ i i W i '~ i Z i Z ~ O i~' ,.W i i~ i.~ i N~ ''~ i O i N ~ i W i W a (406) 35310.52 0 ~ ~ (,~ I ( ~ z ~ I cg ~ ^ ~ .- ~ U ^ ~ ~ H I t9 ~ ~ p ! ; ~ ~ W ! o: ^ ~ i ~ ~ ~ ~ ~ O N ~~ ( i N i 1 ~' 4 ( Z ~ i Z i H i? i i^; O i Z ~~ i} i Q: ' J' ~~ ~~~ ~~ ~' F"' i i i~ i ~ i W i ¢¢ i ~ J i? i W i U i Z i W' ~ ~ i~ i^ i U i~ i~ ~"' '~ i Z a W (:7Ip, ~ 9~ ~ i N ~ i i 0: ~ i ~ i j i ce' ~ (~ i F i~'~' W i Z i a `-' i 0 i 0 i W i J i J- Q i W i W -} i ~ W ~ ~ i t i i i O , O~^~ O i O 3 ~ ~~ - ~~ i U i i - ' F- H~ i Q x I~ i C 1^ Z i Z i Z~ Z i~ i N i Z ~ H ~~ i~ i i U i U i V" i g Qa4 I U . > > ~ ~ ~ v ~ ~ Y , m ~ cn ~ > ' F i i i W x i W ~ i^^~ ~ i 3 i y > i 0 i J i 2 U i W i g, Z i~ i~ ^ i^ i 0 O _ ~ J i x ; _ ~ C7 ; 4: ~ i ~ i Z ~ ~ O I O ( O ~ O ( ~ { ~ i ~ W i W ~ LL7 i ~ I O ~ O W ( W I U ~ rd ~^~ m ~ m i W ~ a I ~. i 0 ~' ~~~ 4: K ~ W~ `~ i ~ D: I Q: ~ O O W ~ W~ W W. Key # Plant Name ^~^;.^ I^ x I y x I~ ; v ~ x v I U I v ~ v I z ; U a ? I -- ^ I~;~ I o: z z I~ ~ ( ~ ~ 15 Italian C ress 8 trees 9.0 I ; I ~ 10 ; 30 I 5. 2 ; 1 3 ~ i ; I ; I I = ~ I ; CU r@SSUS S@m NlrerlS ~ ~ ~ i i i i i ~ ' . in 63.6 X $27lsq. in. _ $ 1,717 X sp. doss 50% _ $858 X cond. 90% _ $ ~ 773 X loc. 70% _ $ 56,000 1 tree ual to 52" boxed s admen or $7,000 each Total Value 16 Coast Live Oak 35.01, 37 45 1 60 1 2 3 ~ ~ ~ I ~ I I ~ ~ I ~ I ~ ~ 1 ~ ~ ~ I I I I ~ ~ ~. ~ I i ~ ~ I ~ I ~ •I I ~ ~ ~ , I ~ ~ I . in 962 X $27/sq. in. _ $ 25,964 X sp. doss 100% _ $25,964 X cond. 90% ~ _ $ 23,367 X loc. 75% _ $ 17,526 Total Value REPLACEMENT TREE VALUES 5-gal = $36 15-gal = $120 24"box = $420 36"box = $1,320 1 =BEST, 5 =WORST 48"box 000 52"box = $7,000 72"bo,000 ~ ~3 of 3 ^^~' `Y • Attachment 4 • ~~~®~8 ~.. ;..~- _ • 323 Quarrv Lane. Ste ] • Pleasantaa. GA 9?~hh P?~: 92s 9~1.-C1?9 t=az: 43: -S i -U f %4 February 2Q, 2QQ3 rear Nei ~hbors: ifir. Rajk.unzar Jalan, the owner of 198Q5 Versailles vJay is seeking sign-off approval on the removal of four pine trees in his back lawn area.. ~rJhile other trees will remain; the teLnoval of these four pines will allow Mr: Jalan to construct a swimming pool on his property. The r~~m ov~3 of `~hese trees will not affec± the overall screening of the home; .many other - trees ~j-iil rer~1 il~ to provide an element of privacy. Zf you tvc~~i]a llk la: discuss the issue, feel free to contact his contractor, Paul Doble @ r.`-.: (~~0)9~ 7 -u~+~ ~. FTe will help answer Sour questions and concerns. If you are u_~re.able to the removal of the trees, please sign and date in the space provided - - below. Best Regards, Roble & San Custom ~Harles. Inc. ~ ~ me of Neisbboring Resident ~~ v ~ ~~~~ ante (~~;~®29 ® -~' N 89~~D19'21" E 170.82' o ~~ ~~ ~~ o~ f i o ~ I \ o ~ ~ _ o ~~ ' 1 _-- ~ '_- 8 \~ ~~~ \ '/~ ` ~~ ~ ~~ C ~ I \~ ~~~ `--_ _~_~ o ~ i~ ~ ~ F r ~ ~ ~~-. . p:. \ ~ ~ -4.._ ~. o~ p,~`~`~:,: ~' a p~?X s ~ ~O~ ~ O9~ ~"~ ~ N _ ~~_p ///~~ `a' _..' =moo -------- ---------- i '~ p ~ i ~ _~ O i ~ "~- O i / ~ N rn ~/ Q1 W fV -P ~ OD .i.3'.~i..._ ..y...~,.s...,z.._,.~ _.._ __._ - ~.syti~~:a`~~...,~~...oor ~.."z~~ r~ ~.~tir{".~_ :a.__ ~ _ _ _- ~'. "`~l ll'="~ i~~.s~3~i ._ _ .... ... -. _, uwaS~aGarur~eu{I1a14iRCC.~rIL[LGO~miW~gicWf3n>SIK?YGOa>~:acL~4•~mlifWil rhCF07tU.inrar0~:'J••.-. w2Cmibumcen'.+yWawra:au tta.C.v.n. vtur+a '~ -Agavsw./v.vo[sfam'saut p_______ •~ m . '- ~°:r?2~v7.'4'~3r:fFR~}CFiJ{QF~~ '"!~f.~~'.7'Qf°c:~s~ 0u~ - .l~y..r~r<ra~^~v; •?r: - ~~ ~~ % ~ ~ ~ - - jgO~~000pf.)U~OC ~U~OO~~Q~: Jpp ~ . ~"--- , •.._~. - .. A'(H7NU ~ U pu.Rr a~ ~• o.r11~ ~ i~rnat•'r,\/•. ~, '. ~~:, ' ~ - eN1NY . 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Ra~;:u~n.~ar Jala~, the OWi1er U? 11~'QJ VersallleS 't~f8y iS See~.lil~ Sl~n-O£f al,:Jpi'ovc^_l Gil. the removal of folx pine trees ire his back lazx-n area. ~~l:ile other gees t~Tili rel-nain, the reLrtoval cf these fo,xr pines ~:~i.11 a11ow l~~lr: alan to construct a. surimminj pool on leis propert~~. The a:cir~~ . -'~ ~ -here trees w~li not a:Tfect the overall screenirig of the home; many other. trees ~_,~~' , _ , ~_i~n -`n provide at'1 element of ~rivac}~. '.:i i .:;? d15Cl1SS the 2ssLe; feel I?'ee t0 CJIItaCt 1T2S CGiiaaCtoT, t cLil IiCwie 1 ;~_ ~ ~- - e ~,Zll help a=:svaer yo~,~r gaes~ions a:ndconcerns. iI you _~ _ _ ~ °ea'ole to ?~;".1e rernc ;Tai oz tl~e Trees, please si~T°ri and date in the space prrvided below. hest ~ ega-ds, ,.7 ~C?b~e~".~ ~G'n ~~?stC)II2 t"i0ii18~, 1_ii~. ~ ~ ~ ©3 \ame ofi~iei~hoo:ir.<~ Resident Date •i • •.. .> _.y .~,,~ } 233 C~~aar:y .Lane, S`te i } ~ • PieaScntOCt. CA 94x56 ' _ Ph:92~-931._049 :'~2\: 9~ ~-7: I -~f I ~14 February 20, ~OG~ Dear ~r~eighbors: - Mr. Rajlc.un~ar Jalan; the ow!ier of 198Q5 Versailles ~~Jay is seeki;:~g sign-off approval on. the removal of four pine trees in his back.lawn area. While.other trees will remain; the removal of these fo~~zr pines will allow Ivlr: 3alan to constrv.ct a sv~~mn~ing pool on his property The re-,; ~~al` of these trees will not affect the overall screening of the home; many other tree; ~,~ i~' rel~airt u~ provide an element of privacy. i~ ~~~~ ~~,~~~Ialik:, ~~; discuss the issue, feel free to contact his contractor, Paul Doble @ (~Z~} 9~ ] -0=93. I-Ie will help ansv~er your questions and concerns. If you are agreeable to the removal of the'trees, please sign anal date in the space provided '' below. Best Regards, Dcrhle ~ Son ~ustom;Hor~~es, Inc. L~~ , - -- ~ ~ )\Tama of Nei~hboring.Resident Date ::~, . 123 Qaarrv Lane, Ste j 1; - • ".P;easantan. C:A ~4~5b Ph: 925-9 ~ 1-049 rebruary 10, ~GCJJ rear iJei~nbors: R~ir. Rajkumar Jalan, the owner of 19805 Versailles F~%ay is seeking sign-off approval on the removal of fo11r pine trees in his back lawn area. ~~Jllile other trees will remain, the removal of these four pines will a11o~u Mr: Jalan to constrv.ct a swimming pool on his property. The rer;~:~~~ ~.i ~,r These bees will not affect the overall screening of the home; many other ~xees ~,~i11 r~~~~_~_n ro provide an element of privacy. if ~-vu 'wvtiiu iii`c iV d1SC11SS the 15S11e; feel 1i'ee i0 CUntact 1T15 COn~'actOT, Paill Boole -~ + 921 ~ ; ? -~4~93. ~e will_ help answer your questions and concerns- If you ~ i _i __; eeable to the removal of the trees, please si.gm and date in the space provided below. Best Regards, ~ioble ~; for. Custom Home:, Ine. - ,-=,- ,. ~/f Name'of Neighboring Resident ~-~ ; note r r ' •.. < I - _ II ~ E° ~~~ 1 ~~¢s I~ ~In~Ti,~+- ~ ~ ~ii~ - ~ W F W ' GRburm eovER (~:)~ ~ ~; _ _ ~ a~ i ~ 1 ~ !1 , ~ ~ ~ FRUIT~TREES (TYP.) ~tL ~ , .~ sdl~Jds E ' ~ O , j roTS ~ ~ ~ ll H EP '~. E. CDMPOSTA A ~ ;- ~` ; v ~~ ~,- ~ °00oo0ooc~0oob..oQOO~~o OOOO _ I ,~ boo ~ ~~~~ ~. ~: GREI;NHOLiSk~E ~- ~ ~1 / Y ~ ~ ~ ~ ~: (FUTURE) O ~ ~ ~ \~ ~ ~~ ~O ~ n) nnas~Tniaab7 ~ ENTRY ©` ~ ; ~ ~,. •.... -' " ' ~ O _ ~r -, B1 SlrtetAddrzss:l6BDSVetsyllaWaY ~-+ ; ~ A t ~ L FOUNTAIN FOUNTAIN W~ ~ ~~ ~ t3AT , ; " ~ ~ c~ o wl~sr ~r~ ~ ~ ~ B' e , -- r / \ ~/jl I I' I ~ ~~ ~... ] BATH ~ '• D)hY ongU ~Rmdw al ~ -«.e, BENCH ~ ~ ~ ~ 'I riz gavrlaRr4aooo / a ~ ~'' , .. ~ A5TER SATM C ~ I -_ r F 52ceCW 40 05D r ~ 5 MASTER 5EpR0DM 21 c)Alb b1 FgdfArt 6{NOs e. ~ ~ - GEDRgOM `°4 BEDRDDMG 4'lo Q. ~ ros rep msswcn~r eona.c. ~ ~'-l)" g. \ 9 1 ~ A>ry 196Y HIGH AFU 0 3 VEGGIE PLANTE tt S." _ ~ _ ~ l \ _ Kr Aug s~~ls~ me,y ~ - I BURNT . - ~ ~- Patlo anderEx Oak wdYbe ~' ~{ -- - LND ~ J ..- ~ ~ I APRICOT apler and grade beam system.-. - (~ d ~t ~ ~ RETREAT ~~; ~_ I ~ ~,~~~,~ ~ J PILASTERS `~. FALLOW'UNDER- m v ~ •o . ,' ~ ^1, gTUOV II. LIGHTS ~. EXIST}NG OAKS (TYP.) ~ ~ ~•. ~ rrwoR1 ~ (,I,~,) o ~ ; ~~~ ~J'`O ~ p a LOW STONE WALLS ~ ~ .~ 4 '~' 2t FHGH ('TYP.) ~ ~ r~-~ pININD ~ FDYER ENT0. (r;~~ ~' - A ~~~/ .ENHANCED I vVVT 44 wa~a a \ PAVING ( ~ ~ - r I ~ ~ ~ u P ~ ~'. -'WOOD ARBORW/~ \ •:' 2J . ~ - & PRECAST CONCRETE. • ' . .. • 1 PN PNTY ~O QQ ~ c z ~ ~; COLLiMNS ~ ~ ~~_ _ u II ~ uwNG I ©C wr~ry1 S'aSa~~% • 2O~X4O~POOL W~ ~ KITCMEN~ _~ I ~~~ "~'~F.W B cuauED-EDGE ~~ , ~~ ~ '~ ~ ~ ' ~ ~ ~ ~l ENHANCBD PAVING ~ ~'~'~' I ~ .~ ~ ~ :~, -ARBOR (TYPJ ~ ~ ~ a I B • •' (TYP.) _- e ; ~ ... ,. ' I Li ~~i IJ':L~ ~ NDDIi - - W a SPA WI WALL- I ~ I LJ ~ ~ .: . ~ '.: I ~ ., -- FLAGSTONE J, ~ { ~ W~ /`yL~'\ ~: WATERFALL ~ o Iir •; :. PAVING (TYPJ ~ .. _ V OO ~_ ~ t f' W.I. FENCE AROUND I ~~~ ~ Q /`W~, ~ °i ~' .. .POOL '# ' o,f yJ - .J'• ••. F0.MILY - PLAYROOM `' 1~ ~ `~1 ti ~~" k: -Proposed-ReplaeementTree-. 1 ~ ~ L"` 0 6a r4-36"BoERedwopds. ~ / jllJ . ~ ~ q COLORED CONC $ , - - ~'lll~ ( FFF ' '• ~ : ' W/STEP PADS Ott , • TH I I; ~J 1~1 l J 3'•0''> E HIGH AFU o •" ~ ~ .BURNT ~ °,ti` . C ,' .. ~ = APRICOT ~• LAWN (TYP.) - • STONE . ~n ~ 36" .. 3 CAR GARAGE I i - °• WALLTf~ Picr' SAc ~ ~ MATCH ' HOME'S EXISTINGON•SITE~ •, ~ : '• • BOULDERS (TYP~ a o ~" _ _-_ ~ ~ l ,:WAINSCOT a 12EACH ~ . ,1. ~ ~ .4 •u • ~ I ~ W c I ~ J QQ ., a #Y • Q t+ b 4 O 1 •'o • I Z~ z PLAY STRUCT[JI~E ~ -- • ' O ~ -' ~ N Q [N WOOD CHIPS u e \ ' ~ ' t ~ i i / ~~. ~ ~ ~ ~ ~ -1 ~ d a. O , D W Z a -~ yiV15 O - a t ~ ~ .'~ - EsLShoelTreeLeeend` ~_mn - Qrd ' Y' ~ ro ~ sl2 ~ ~ i ~ /% ~ ~ ~ / I c~sn~w aae. Tangy .I 2CwumumumC ~m CamplmeTree TeRem i.~~AY ~~1200 a FRUIT TREES- ~~ ~ -- .. ..• ,, JQuaiusn®kL cne,tLtv<o~ re Rem . . ~ . , 4Qn< "b~rl Casi ctwedakTU Rem ' ` ~ s ' ' I 5 $e4 , pem . Go tRedwood.. 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I +; ~~bBB~IT ~a ACCESS LAND DEVELOPMENT SERVICES - 637 Middlefield Road - Palo Alto, CA. 94301 f (650) 325-9681 Fax (650) 325-8911 accesspar ,aol.com 1 June 16, 2003 John Livingstone City-of Saratoga 13777 Fruitvale Ave. Saratoga, CA. 95070 RE: Fence_ Variance Request for 12161 Parker Ranch Road June 25, 2003 Saratoga Planning Commission Hearing Dear Mr. Livingstone: For the June 25 Planning Commission meeting please find enclosed the following documents: • Variance Request Summary • Site Plan that identifies sections of fence that were built prior to Resolution No. Fe-90-001 (Identified by the green sections) and sections of wrought iron fence that currently exist, necessitating variance application (Identified by the blue • sections). The specific scope of the variance requested is identified by the pink sections. • Photo exhibit of existing fences on the property and location of those fences as referenced on the site plan. • A site plan that shows the required location for the fences if no variance is granted. ' • March 20, 2003 letter to John Livingstone describing reasons for variance request and Exhibit A attachment of photographs of fences at eight (8) homes in the ll Parker Ranch neighborhood that do not have 30 foot fence set-backs from front property line, six (6) homes that do not have 20 foot set-backs from side property lines and eight (8) homes that have wrought iron fencing with spearhead points. It has not been conclusively determined whether the construction of these fences occurred prior to Resolution No.FE. 90-001, but only that these and others like them exist throughout the Parker Ranch neighborhood, and these non-conforming fences appear to be a relatively recent construction. t c .:. .~'~` • January 27, 2003 document entitled "Supplemental Information" discussing how 20' side-yard fence set-back from the property line was established. • Letter from neighbor across the street supporting the variance. Discussions with Nei hors In addition to the letter of support from Hong and Liu Lynn Chen at 12156 Parker Ranch Road, contact was made with the following neighbors: Pam East at 12147 Parker Ranch Road (next door neighbor) Grover & Betty Sinsley at 12048 Parker Ranch Road Mrs. Hasan at 12182 Parker Ranch Road Mr. & Mrs. Lawson at 12375 Farr Ranch Road In addition to meeting with Hong and Liu Lynn Chen, I met with the Mr. & Mrs. Sinsley and Mr. and Mrs Lawson. I spoke briefly with Mrs. East, who told me during our initial telephone conversation that her objection to the boundary fence was based on not wanting to see it. After checking with her attorney she called me back to tell me that unfortunately her attorney told her that she could not meet with me. Mrs. Hasan was not interested in talking and I was unable to make any contact with the applicant's other next door neighbor, Mrs. Clark at 12189 Parker Ranch Road. Both the Sinsleys and the Lawsons expressed their desire to see the two neighbors, the Chens and the Easts, reconcile their differences. The Sinsleys strongly believe that reconciliation can happen through come sort of compromise, specifically some sort of visual buffer so that the East family does not have to look up from their driveway to see wrought iron fencing looming over them. Very truly yours, ~~( Lee Wieder applicant's Representative ACCESS LAND DEVELOPMENT SERVICES 637 Middlefield Road Palo Alto, CA. 94301 ' (650) 325-9681 Fax (650) 325-8911 accesspar(c~,aol.com Variance Request Summary for 12161 Parker Ranch Road The variance request for 12161 Parker Ranch Road is summarized below as it pertains to Resolution No. FE-90-001 and Municipal Code Ordinance 15-29.020 and 15-29.010. Side Yard Fence Variance requested from 20 foot setback requirement (Section 1, Condition #4 of the Resolution) that will allow the side yard fences to remain at property lines and from the requirement (Section 1, Condition #8) that will allow neighboring backyard fences to be contiguous. The grounds for this request are that safety considerations require a boundary fence above the sharp drop created by the neighbor's retaining wall, and also that applicants wish to enjoy amenities similar to those enjoyed by other residents who have similar boundary fences. Front Fence Variance requested from 30 foot setback requirement (Section 1, Condition # 4 of the Resolution) that will allow the front yard fence to be set-back 10 feet. Fence Style Exemption requested to Ordinance 15-29.020 (c) (3) for decorative tops of fences, to the extent that those fences are considered to constitute "fencing material having exposed sharp points," on the grounds that similar spearhead fencing is in use throughout the "designated neighborhood area," though it is not known when this spearhead fencing was constructed and even though many of them may appear to be constructed within the last 10 years (after 1990). Note: The two existing storage sheds on the south side year property line shall be moved to a location that will be in compliance with Ordinance 15-80.030 d (1) Violation of constructing anon-compliance fence (Ordinance 15-05.040) and creating a public nuisance (Ordinance 15-95.0030) shall no longer be an issue with the variance and Ordinance exemption approval requested above. • :7 • ~ / / ~ / / ~ ~ 5' IRON ' % ,' (SEE PH( / ; ~ ~% SHEET 2 , , , , , / ~ , , , , , , ' / ; , , , 5' slacx~ AET. WAIL LOT 16 TRACT 6526 446-M-25 lOT 14 TRACT 6526 aaa-M-25 RWI E'\ 104 ~(' \~ o DECK ~ ~ POOL s' wood oaYq GDL P~n FENCE )USE ° °~ / HOUSE ANC N De ENTRY 1 ~ ~~6 5' WIRE FENCE HIGH WALL e -.. 5' IRON 8 5 HCA FEf/CEO RET. WALL ~~' 6' IRON r FENCE 1 ~ ~ :~ `J ~ ... J lO CONCRETE l2 ' ' DRIVEWAY > \ `~ O kh h h // /~/ ~.~b.,, ~~. ~ '~' ~ ! i ro, I I I I I EXI I PRA I I I I 1 / I / / "f STREET MONUMENiI ELEVARON 100.00' I / r CONCRETE ~ f ~ ORIYEWAY wr0-"F ~ eQ IRON GATE , I 5'707 '_~ / D~ 1rb~., o Ct• ' ' 8' OIA ~' WiRE~ ~ : i `L ~~ 9 -' ~ ~ # ~D 3' IRON , ~P '-S' IRON-„r FENCE FENCE © / ~~ 10' PSE ~ ~~ 448-M-25 / QP /, /, (ADDITIONAL) LEGEND -~' FENCE BUILT PRIOR TO RESOLUTION / ~~ CURRENT FENCE /' ~ PROPOSED LOCATION ~-~. PROPOSED: MOVE EXISTING FENCE 1 10' PSE LIMIT LINE (REDUCE ENCLOSED AREA 1,123E SF = 0.03 NOTES ASSESSOR PARCEL: 366-43-07 ADDRESS: 12161 PARKER RANCH ROAD OWNER: TSUNG-CHING WU & YUH-NING CHEN EXISTING USE: RESIDENTIAL ZONING: RESIDENTIAL LOT SIZE: 1.01 AC AREA ENCLOSED BY FENCE: 0.52 AC (`.~1.5% OF LOT) :AREA ENCLOSED BY FENCE: 0.49 AC (48.5% OF LOT) PLAN PREPARED BY: HMH ENGINEERS 1570 OAKLAND ROAD, SUITE 200 SAN JOSE, CA 95131 408-487-2200 i) THIS SITE PLAN REPRESENTS A FIELD SURVEY OF TOPOGRAPHIC FEATURES ONLY, THE PROPERTY LINES SHOWN HEREON ARE BASED ON RECORD DATA AND WERE NOT FIELD SURVEYED. NO SCALE 20~ GRAPHIC SCAIR 1 INCH 20 FEET PSE PUBLIC SERVICE EASEMENT PEE PEDESTRIAN AND EQUESTRIAN ACCESS EASEMENT ~ WLE WATER LINE EASEMENT -.--~- ~-•- EXISTING FENCE BOUNDARY LINE ~ DA PHOTO EXHIBIT (SHEET 2 of 2) D - 0a0ai 03"'03 San Jose ~ L"'~^ SITE PLAN sh1et ~ Srale: 1' = 20' (4089 18i•2200 Designed: Ns. 030695 o - Pleasanton ~ WU &CHEN RESIDENCE Q Drawn: T.M ' ~ 1p261 80o-7936 ECP f6} ~ ~~~ Of 2 Sheets o cn«kee: so Gilroy ~ / 2161 PARKER RANCH ROAD JOB NUMBER Prof. Engr: MIM M081 818-0707 ~Of'C9U ! 166.00.00 ~ ... ...- or,.nnuc ~ FNa~ atrscxm nwr. ~~ rwwJnhal~raascan SAN JOSE CALJFORNA I I 1 , \ I ~ , I I / / I 1 I 1 11 I I I I I 1 11 1 , / I 1 t I 1 I 1 1 I I 1 Q ^ .v9• ~~ I ' \ M di I `~ I 1 I I 1 II 1 1 p \` ~ I 1 oN `\ I I I I ~ ^ M 1 , a~ 11 r , '\, ~ I 1 I f U I `\Ir• ~ ~ ~ 1 1 , ,~ , . ~\, ` 1 1~ 4a8-M-25 1 ~' \` 8"w ar tl ' I t0I I' l'1 ~ , ' 1(jf I ~ 20 WLE I of I ' ' ~ 50310R264 I W 1 ~~ i 5132GR324 S ~ ~ ~ 520908734 FEN 1 1 f 1 f J r ^'>r 1 SANTA CLARA VALLEY WATER ~' ` r S ED~ f( 1 1 2 i DISTRICT EASEMENT ~ ' x 1 1 reotno~to 1 i LOT 15 \ I ~ TRACT 6526 ~ o 446-M-26 1 i, t APN 366-43-07 1 t 1 1 1 ~ ~~ t \ 1 t ``\. 11/ ~\` 1 ' 11~ I ,1 t tl 1 1 1 I 1 ~ 1 t , t , ~ , ~ , ~ , , , , , , , , , , i SECTION A-A SCALE 1"=4' VICINITY MAP i i O OB (AS SEEN FROM NEIGHBOR'S DRIVEWAY) _o~~ F +r ~~gj~ f~~ e a:.;g,: ~~ ~: 4 .,_ f a ;, ,,#' ', ~:4 ; .~: O €~ ~ ~ ~} f w ~'~ ':; O I q~a~. 3 ,t'~ .. I y ~p,Jh~ c *f,, ~ ~e a.r „~' . © ~ ~ IRON FENCE DETAIL TAKEN AT SECTION A-A ~,;« ~ ~ ~; ` , ~~ D SITE PLAN ~2` oes ~ - ~~ : Ple>n~nton WU A CNEN RESIDENCE o"°"" T'" _ ;~ ~ "~'°o-'°'° 1 9x161 PARKER RANCH ROAD ~ 2 ~~ cn~ea: ~ {~(~/~ boy ,roe r~MaER BY DALE RENSIONS Fps} ~ ~18~02.DYIG ,"""v' ~ SAN CNJFO(WA 168.00' II WIRE FENCE DETAI L WOOD FENCE DETAI L C7 • / NOTES ,' /' I ~ ~' % SEE PH( ASSESSOR PARCEL: 366-43-07 ' ~ SHEET 2 I ADDRESS: 12161 PARKER RANCH ROAD / ~' ; ~~ OWNER: TSUNG-CHING WU & YUH-NING CHEN ,` ' 1 EXISTING USE: RESIDENTIAL / ~ i ~ ~ ZONING: RESIDENTIAL ~ , ~ , LOT SIZE: 1. , ~ ,' ~EXISTItlG AREA ENCLOSED BY FENCE: 0.52 AC (51'.5% OF LOT) r' ,, (PROPOSED: AREA ENCLOSED BY FENCE: 0.49 AC (4&5X OF LOT ~ ( I PLAN PREPARED BY: HMH ENGINEERS ~ {~i 1570 OAKLAND ROAD, SUITE 200 f ~ ~ ~ SAN JOSE, CA 95131 II SECTION A-A 4os-4a7-22o0 f ~ i 1 SCALE 1"=4' I I r , ~ 1) THIS SITE PLAN REPRESENTS A FIELD SURVEY OF 1 i TOPOGRAPHIC FEATURES ONLY. THE PROPERTY L1NES ' '~ i ' SHOWN HEREON ARE BASED ON RECORD DATA AND / i ~ I WERE NOT FIELD SURVEYED. 1 , , 1 ~,, I 1 1 I I , qq I ^ ' I Q ~ N o ~ , `\~ , , LOT t4 O p ~~ 1 I ~ 1 TRACT 6526 ~ Qab~ ~ i ,\- ' I 448-M-25 ~ ~ ~ I 1 V ~ ~ ' ' I ~\~ 1 ~ ' \,11 ~' 1 ~ 448-A1-25 f `,\~8~p,T~ I ` Q 1, ~ , ,~ ~ ~ i m' i i~ r 1p4 I ' , ' I ~i i ~ 20' WLE ip6 503708284 ro 3'NGH o I '' 5t 3208324 5 ro ~° t tp aEr. wAU , 1 ~ 520908734 / , 'M Q ,~ ;~~ ' M' ~ SANTA CLARA VALLEY WATER ~ / S D DECK 5 IRON s' Hw ~ ~ a ? ~ DISTRICT EASEMENT , POOL ~® , wAtt LOT 15 r TRACT 6526 ° o s' IRON 446-M-25 POOL P~ p F~ ~ w~l(,T e " VI ~ ~~E A~ HOUSE r APN 366-43-07 ~ O HOUSE ,#:° O 1.",'.'.'F .'r STREET MOMIMENT (EENpI M ) . 1, r p~'~ ~ ~ 611. , /,p) ELEVATION 100.00' (ASSUMED) 11 / "'~C CONCRETE ~~ O 1 // ti. T' 'r 1 ~\, r O ~'. 1,~'~i .. 1/~ ~~- / ~ a ~' ENTRY ~.'.'.'.'.. r ~ ~+ *''r s IRON/ i ~.:. 0 1 BLOpc o ~1 i ,pr 7 , DAOPOSED: ~1 RET, MALL ~? ~, c I Q ~ ,',',','~o,' MOVE EXISi1NG FENCE TO 111 OS"W 3j JJ ~" ' p /~' fROM 10' PSE UMIT LINE (REDUCE ENCLOSED ~~ s' MIRE j ~~ i ' ~ 6 r ' QO AREA 1,1231 SF = 0.03 AC) ~ fE~ 8 waa0 1j8 s' ro 7 ; ^ ~' /Q`O i EE~7LE 0 FU ' ~` aA o ro m ~ SHE rf aA 5 ~2p , 4ry /Q~G ' ~ a~ aces 3' IRON i ~' s' I 0 / ~ 1 NKN 20 FEET i i 10' PSE /~ Q~ LOT 16 448-M-25 QP TRACT 6526 /' LfGf 448-M-25 ~L~Q41({EO Lpc.AT/ N __"' eF ~ pSE PUBLIC SERVICE EASEMENT FENC+N~ ~ PEE PEDESTRIAN AND EQUESTRIAN ACCESS EASEMENT /~ _. WLE WATER LINE EASEMENT -~-~ -x- EXISTING FENCE BOUNDARY LINE ® PHOTO EXHIBIT (SHEET 2 of 2) /, oal« orle-os Sen Jose ~°L spy snaet Saalx ,• . 2a aoa re7-seoo ~r`', ~~ {~ 81TE PLAN 1 ~ ~ ~ - Pleasanton ° ~ Na sio5 n m WU & CHEN RESIDENCE ~ Z Shasta ~ Drawn: TJI IiQl1 E00-1886 Erp ~ 3a; o ~ ~ (iaroy ~~ *~* 12161 PARKER RANCH ROAD ~ NuMaER Proj Elpr. YUI I/Oal BN!-0T07 4, pF ~ Fa.: 31eeEw0l.Owc ~~ `~ /2(~ sw~ GWFORNIA 188.00.00 _...... a~,.d~w• a a i i 8 • June 16, 2003 Saratoga Planning Commission 13777 Fruitvale Saratoga, CA. 95070 RE: Support for Fence Variance Request 12161 Parker Ranch Road Dear Members of the City Planning Commission: It is our understanding that our neighbor, Yuh-Ning Chen, would like to keep in the same place her rod iron fencing in the front and on the sides of her home. We have no problem with this and support her request. It would be ashamed if she had to disrupt the mature landscaping that is beginning to cover the fencing by having to relocate that fencing. Hopefully any fencing relocation is kept to a minimum, if it is at all required. • Since we have lived across the street from her for years, we appreciate how she has maintained her beautiful landscaping and find that the type of fencing and its location unobtrusive. For the record, though we have the same last name, we are not related. Thank you. Very t ly y -f3i,rs, on an iu Lynn Chen 12156 Parker Ranch Road Saratoga, CA. 95070 • ACCESS LAND DEVELOPMENT SERVICES • ' 637 Middlefield Road ' Palo Alto, CA. 94301 (650) 325-9681 Fax (650) 325-8911 accesspar(~r~,ao Lcom March 20, 2003 John Livingstone City of Saratoga 13777 Fruitvale Ave. Saratoga, CA. 95070 Re: Requested Information for Fence Variance Request per City's February 4, 2003 Letter for Property at 12161 Parker Ranch Road Dear Mr. Livingstone: Pursuant to our recent meeting of March 14, 2003 I am responding below to each item in your earlier letter of February 4, 2003. Also, I have included an updated preliminary title report dated January 29, 2003. • Detailed Response 1. A site plan stamped by a Licensed Land Surveyor has been completed and includes details for all fencing around the site including height, type of material and distances to structures and property lines. 2. The elevation of each fence type with dimensions and photographs has been provided. 3. The fence ordinance or requirements that are not in compliance on the property include: a. The newly constructed side-yard fences in the front and sides of applicants' dwelling do not comply with the 20 foot set-back and to do so would result in the fences having to be contiguously aligned with the side of the house. Therefore, the variance request is to retain the new side-yard fences in their present location. *The side yard fences to the rear of the dwelling are lawful in that they pre-date the Resolution. (See asterisk footnote on last page for description of fence locations and attached December 19 letter to John Livingston & 1/27/03 Supplement for a further explanation.) Note that this explanation focuses on the northern side yard fence which if in particular is not retained might result in any one family members' child, especially during f a large family gathering in which there is a lot of activity, falling accidentally . - John Livingstone -March 20, 2003 • Page 2 onto the northern neighbor's asphalt driveway directly 9 feet below (See photo B from large photo exhibit & Section A-A on the site plan that shows a 9 foot drop from the 5' rod-iron fence). As further noted in the letter the Planning Commission "can find and determine that the fence is required for safety reasons, according to zoning Regulation 15-29.020 c (2). b. Where the side-yard fences in the front yard set-back are higher than three feet (3), the applicant will comply with lowering that part of the fencing to meet code. c. Likewise, staff's reference to the "sharp points" on the existing fences have been a fencing feature throughout the subdivision (see attached Exhibit A with photos) and does not present any danger to persons or wildlife. Moreover, there has been no known incident in which there has resulted any injury due to these spearhead-type fence features, though these features allegedly are not allowed. Regardless, the applicant would like to retain this feature as a number of their other neighbors have done and enjoyed for many years. d. The front yard fence does not comply with the 30 foot set-back. The present location of the fence varies from.•a 10'set-back from the front property line on its south-side to mostly no set-back for most of its front-yard fence. Although • there are more than half-dozen homes in this subdivision whose fences are on or near their property line (see attached Exhibit A with photos), the applicant is willing to move the fence back to a distance that will then allow them to be in compliance with having no more than 50% of their lot area, exclusive of open space, be enclosed by a fence. The applicant requests a variance to the 30' set-back from property-line requirement and justifies this request by noting for the record the number of its other neighbors who have been enjoying less than a 30' set-back for years. (See attached Exhibit A with photos) 4. As for code violations on the site, the only potential one that has been called to the applicant's attention are the two storage sheds that are along the southern property line. However, these sheds were erected by the previous property owner prior to 1990, and therefore are unaffected by the Resolution. (Shed dimensions: Length: 16 ft., Width: 3 ft. 8 inches, Height: 5 ft.6 inches and shed dimensions #2: Length: 13 ft., Width: 7 ft.,Height: 8 ft. 8 inches) 5. Please see attached Exhibit A with photos for a listing of those homes whose fences the applicant believes do not comply with Resolution No. Fe 90-001. Although there may be some homes built before this Resolution the applicant believes that the construction of their fences may have occurred after. John Livingstone -March 20, 2003 Page 3 6. The existing fences enclose approximately 51.5% of the lot area, exclusive of the open space, according to the Licensed Land Surveyor. Moving the front fence in from its existing location to 10 feet from the front .property line (along the 10' P.S.E line on the north-side of the driveway) will reduce the enclosed area by approximately 1123 sq.ft. (0.03 acres) This will result in an enclosed area of 48.5% and thereby bringing the property into conformance with this requirement. 7. The existing fencing along the backyards of the applicant's neighbors on both sides, contiguous to the applicants' fences, were constructed prior to passage of the Resolution, and are therefore permitted. Overall, the applicant, feels that they will be deprived of the privileges enjoyed by the owners of other properties in the vicinity and classified in the same zoning district if their requested fencing variance is not granted (Zoning Regulation 15-70.060 a). I understand that this response letter and its attachments will be distributed for review and that during this process additional information may be requested in order to deem the application complete. I trust that this review process and determination will be done •,j expeditiously and wish to thank staff and the Planning Commission in advance for their consideration. Very truly yours, Lee Wieder cc: Yuh-Ning Chen Attachments: Site Plan & Photo Exhibit of Fences Exhibit A with photos: Homes not in Compliance December 19, 2002 Letter to John Livingstone & Supplement, 1 /27/03 *3a: Fencing that predates the Resolution. On the northern side-yard the fencing that begins at the line perpendicular to the property line between what is indicated as the 3 ft. High Ret. Wall & the 5 ft. Iron ,Fence and on the southern side-yard the fencing that ~) begins at the 6 ft. wood fence that is perpendicular to the property line. i... --.~ FENCE VARIANCE REQUESTED INFORMATION For ~ _ 12161 PARKER RANCH ROAD Submitted March 20, 2003 • EXHIBIT A HOMES 1N THE AREA THAT DO NOT COMPLY* WITH RESOLUTION NO. FE.90-001 Homes Not Complying with 30' Fence Set-Back from Front Property Line according to accompanyln~ photographs and site visit by Yuh-Nin Chen • 12148 Parker Ranch Road • 12182 Parker Ranch Road • 12189 Parker Ranch Rvad** • 12441 Parker Ranch Road • 12637 Star Ridge Court** • 21463 Continental Circle** • 12264 Farr Ranch Road • 12360 Farr Ranch Road (1) Homes Not Complying with 20' Fence Set-Back from Side ProRerty Line according to accompanyina photographs and site visit by Yuh Nin Chen • 12296 Farr Ranch Road** • 12749 Star Ridge Court** • 21471 Star Ridge Court ** • 12273 Vista Arroyo Court* • 12301 Vista Arroyo Court** • 12329 Vista Arroyo Court** *Per conversation with Mr. Livingstone, his letter of February 4, 2003 requesting this information was meant to say "after" Resolution No. Fe 90-01 and not "prior to" Resolution No: Fe 90-01. **Rod Iron Fence with spearhead points - , ., .. • r"- a .~ ~ ~ j a t ~1-~-- - -- - -- ------ - - ~., ~ • jz J ~'Z- • • 4 ~" \ ~ ~ ~-`- j~ _ I /l~ IJ ~~ ~ ~ E;~ r ~ r ~~ ~' a } ~' -?Fk ~-s , r ~ si z~.. .~t~_. s c:,nk m~>~c ._~ 7 Y T '. j... i.i~ ~r_ r'" _ ~' , j i ,~ , -,Tr t ~~~r"t $ ~,, .. £.. :,, e .~.. r ~; k I~ } ~~° -.~ . ... ~~. ~ M~ ~} ',i - ~. ~, - ~~ _~ V4 - '~~~ L ~. f'4 L - )q~ sc y x . ~.- r ryt 1'- 7 ~ ^_^ qr -4, Yr' x -'t *y-V' ~_i ~ ".~ :. 1`. - vJ 5 7 -j4 c 4._ } C. k r'. ~ ~` t>j~ i.,,7u .,f. a. __..,~. _, r. .~...e at.. ._br.-,_~~'~.;. '"r_;~.,.w.-'C:,... .J'~.:,-i. .-....:`a[:... T. .,.~._.. _. .. I ,, ~,/ i.,- • ~. _.. _ . __ _.._ > -- -- -__ • .~ •. • • f =.,.. _ - ~ ~ ~, ~~ ~'C • • • • J .. ~.. ~. -~~._ _.__ -__ _ ,_ - __-.~ . _. r 1._ - - t ~ .. ~~ ~~~~~ -~z~~ ~~ (f __ ~"--._.: .. ..~ ...... .. . __. .__.... ..,. .....,c_..... -..,~..,. ..:.., _: - .- iri_ ,.a:V~ _ ~ '~ . ~ ~""'...7r!L4~:.`M~~_~yw "eM iiw ' sY _ d 1~`a~~ ~'a ::. V~«3°~ _ _ ~ P s ACCESS LAND DEVELOPMENT SERVICES • 63'7 Middlefield Road Palo Alto, CA. 94301 (650) 325-9681/ Fax 618-1675 E-Mail: accesspar (a3aol.com VIA FACSIlVIILE & MAIL December 19, 2002 John Livingstone City of Saratoga 13777 Fruitvale Ave. Saratoga, CA. 95070 Re: Preliminary Staff Review to Dat 12161 Parker Ranch Road Ce N # 366t043--007 Side-Yazd Fence for rr~perty Dear Mr. Livingstone: As you suggested, on behalf of the property owner a re uestis tollocate the front fence ~, attachments regarding a potential vanan~e request. Th q less than a 30 foot set-back from the front property line and to locate the southern side- ~~ yard fence less than 20 feet from the south side-yard property line. Attached is a site plan sketch of the home on the lot and the neighbor's driveway to the south. City Resolution No. Fe-90-001 states, "All fences shall be set back a minimum of twenty (20) feet from property lines except that fences shall be .setback thirty (30) feet from the front property line. " Since this house is located exactly 20 feet from its side property lines, aside-yard fence would not be in compliance unless the fence was located contiguous to the side of the house, which would result in a zero set-back from the fence to the house. If requested it can be demonstrated that there are other homes in the same subdivision with aside-yard fences less than 20 feet from their side-yazd property line and fencing less than 30 feet from their front property line that have been er Weebelieve the approval of Resolutions No. Fe-90-001. Without the same consideration}, • the owner of the subject property is "deprived of the privileges enjoyed by the owZoninf other properties in the vicinity and classifted in the same zoning district. ( g Regulation 15-70.060 a.) • There also is a concern that children playing and moving between mi ht accidentally fall yards need the safety bamer of a fence to insure that none of them g into the southern neighbor's asphalt driveway directly below. According to the zoning regulation of 15-29.020 c (2) "the Planning Commission's finding and determination that the fence is required for safety reasons" would require the fence on the south side-yazd to be less than 20 feet from the property line. ~, ...,,.,M ....,~„ ...... ~N..~...„~,,...~r,> ............ ... ............, John Livingstone December 19, 2002 Page 2 Based upon the information provided, please advice as to any other information needed to support a variance request. Thank you for your preliminary review and respectfully request a meeting prior to the end of this year. I will call to schedule. Very truly yours, ~~~ . Lee Wieder For Yuh-Ning Chen cc: Yuh-Ning Chen Stuart Clark Attachments: Exhibit iII Sketch of resident lgcafion on lot - Resolution No. Fe-90-001 Parcel Map ~ , .. • t~ si Supplemental Information to Application of 1/10/03 for Variance Request of . Resolution No. Fe-90-001 Property Address: 12161 Parker Ranch Road (APN. #366-043-007) As a matter of public record, the Parker Ranch Homeowners Association's request to the - City that resulted in Resolution No. Fe-90-001 addressed only a 30 foot fence set-back from the front property line. It was through the deliberations of the Planning Commission that a 20-foot fence set back from the side-yard property line was added and resulted in Resolution No.Fe-90-001. Tlie intent of the 20-foot side yard set-back from the property line was to "ensure adequate passage of wildlife." Originally staff recommended 30 foot setback for a wildlife passage corridor: "While staff acknowledges that only a portion of lots will be enclosed, fencing can be located on a side or rear property line. If this should occur on two more adjacent lots, wildlife would be impeded in its access to open space area. Therefore staff recommends that fencing be set back 30 feet from any property line to prevent common fencing between lots. " (From Staff Analysis report for FE-90- OOI,Parker Ranch Homeowner's Association 6526 & 6528) On March 23, 1994 the Planning Commission approved "an exception to a condition that requires all fencing to be setback 20 feet from the side property lines" for the property at 12375 Farr Ranch Road. During that public meeting, staff reminded the Commission of S' ' the purpose of the 20-foot side-yard setback. "Staff feels some setback should be maintained from the property line to ensure adequate passage of wildlife, which was the purpose of the 20 foot setback requirement: " (From Staffs Executive Report for File Nos.SM-93-1-, FE-90-001.1, V-93- 031 & DR-93-046 for 12375 Farr Ranch Road) In the case of this variance request for 12161 Parker Ranch Road, the "wildlife passage" issue is one which should not, logically, be a factor in considering this request. This is because the existing "backyard" boundary fence between the subject property and the neighbor to the south at 12147 Parker Ranch Road, combined with the cut and fill of the neighbor's driveway, has since the time of erection of that boundary effectively precluded any movement of wildlife between the properties. Thus, erection of the "new" boundary fence on the south side-yard property line could not have any adverse effect of wildlife passage, and should not be a factor precluding the grant of a variance. • Also, it should be noted that a Santa Clara Valley Water County District easement on the property at 12161 Parker Road encumbers approximately one-quarter of this 1 acre property from the backyard fence down to Prospect Road. Most of other lots are larger than one acre. This easement has resulted in limiting the location of citing the residence and side-yard fences on the remaining portion of the lot while at the same time allowing the deer and other species of wildlife to enjoy the privately owned scenic open space along the .back hillside of the property. To require 20 feet side-yard fence set-backs & 30 feet from the front property line is a hardship that is requested not to be imposed. Submitted 1/27/03 Supplemental Information to Application of 1/10/03 for Variance Request of Resolution No. Fe-90-001 Property Address: 12161 Parker Ranch Road (APN #366-043-007) As a matter of public record, the Parker Ranch Homeowners Association's request to the City that resulted in Resolution No. Fe-90-001 addressed only a 30 foot fence set-back from the front property line. It was through the deliberations of the Planning Commission that a 20-foot fence set back from the side-yazd property line was added and resulted in Resolution No.Fe-90-001. The intent of the 20-foot side yazd set-back from the property line was to "ensure adequate passage of wildlife." Originally staff recommended 30 foot setback for a wildlife passage corridor: "While staff acknowledges that only a portion of lots will be enclosed, fencing can be located on a side or rear property line. If this should occur on two more adjacent lots, wildlife would be impeded in its access to open space area. Therefore staff recommends that fencing be set back 30 feet from any property line to prevent common fencing between lots. " (From Staff Analysis report for FE-90- 001, Parker Ranch Homeowner's Association 6526 & 6528) On Mazch 23, 1994 the Planning Commission approved "an exception to a condition that requires all fencing to be setback 20 feet from the side property lines" for the property at 12375 Farr Ranch Road. During that public meeting, staff reminded the Commission of ` the purpose of the 20-foot side-yard setback. "Staff feels some setback should be maintained from the property line to ensure adequate passage of wildlife, which was the purpose of the 20 foot setback requirement. " (From Staffs Executive Report for File Nos.SM-93-1-, FE-90-001.1, V-93- 031 & DR-93-046 for 12375 Farr Ranch Road) In the case of this variance request for 12161 Pazker Ranch Road, the "wildlife passage" issue is one which should not, logically, be a factor in considering this request. This is because the existing "backyard" boundary fence between the subject property and the neighbor to the south at 12147 Parker Ranch Road, combined with the cut and fill of the neighbor's driveway, has since the time of erection of that boundary effectively precluded any movement of wildlife between the properties. Thus, erection of the "new" boundary fence on the south side-yard property line could not have any adverse effect of wildlife passage, and should not be a factor precluding the grant of a variance. • Also, it should be noted that a Santa Clara Valley Water County District easement on the property at 12161 Parker Road encumbers approximately one-quarter of this 1 acre property from the backyazd fence down to Prospect Road. Most of other lots are larger than one acre. This easement has resulted in limiting the location of citing the residence and side-yard fences on the remaining portion of the lot while at the same time allowing the deer and other species of wildlife to enjoy the privately owned scenic open space along the back hillside of the property. To require 20 feet side-yard fence set-backs & 30 feet from the front property line is a hardship that is requested not to be imposed. Submitted 1/27/03 i. BERLrNER COHEN ATTORNBXS AT LAW APARTNERSHIP INCLUDING DROFE9StONAI. CORPORATIONS TEN AI,NIA.D~ BOULivvARD ELEVENTH FLOOR SAN JOSE, CALIFORNIA 95113-2233 7')rLEPHONE: (408) 286-5800 FACSIMII L: (408)998-5388 Facsimixe Cover Sheet Date: June 18, 2003 Time: CONFIDBWTIALTTY NOTJ?: • 08/18/03 VYED 18:12 FA% 4089382579 BERLINER & COHEN 0 Cony Sent Via U.S.1VIai1: ~'es X No The information contained in this facsimile (faz) message is kgnlly privileged and confidential information intended only for the use of the receiver or firm named dim"'- If the reader of this message is nor the intended receiver, you are hueby notified that any dissemination, distribution of copy of this fax is strictly prohibitcd.n~y~ ge ~ ~~ a~the address above viavia tbetUnited S tes sender at the telephone Dumber prorided above and return the prigi Pos181 Service. 'I'hanlc you. Sender: 7olie Houston File #: 10554-001 Re: Wu/Chen Application for Variance 12151 Parker R.aneh Road Planning Commission Aate: rune 25, 2003 Pages: (including Cover Sheet) Receiver: Kristen Firm: Saratoga Community ]development Department Facsimile #: 867-8555 Office #: 8681222 Hard MESSAGE: Please add the attached lettex to the agenda for the 3une 25 Planning Commission meeting. l~ all pages are not xeceived, oz if copies are illegible, contact the Copy Center at the following direct dial number (408) 286-5800 Ext. 8042; or if busy, contact Sender's Secretary, Carol Millwood, at Ext.2423. r~ooi 06/18/03 WED 16:13 FA% 4089382579 BERLINER & COHEN BERLINER COHEN • ATTORNI:.YS AT LAW SIWFORD0.BERLINER" ANDREwLFABER LMDAACALWrI JAMES P.CASHMAN A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS WKLVMiI J. GpINES' ROBERT w. HuMPHREY9 sl'EVEN J. CASAD NANCY J. JOHNSON A'1ADEN Bd~BV ARD TEN AI • RAIPH J. SWANSON pEGGY L SPRING6AY JEROLD A. ~~ ROBERT L CHORTEK - ELEVEN'T'H FL~R ,pgEpH E. pWORAK saMUEL t PARa JONATHAN D. W~ KATHLEEN x sIPLE CALIFORNIA 95113-2233 5AN JOSE FRANK R I UBH~P,US N F. KELLEY MARK "~~~ , q'EI,EPHOAiE: {408) 28b-5800 - FACSIMILE: (408) 998-5388 'A PfOt~'p11~ ~~0" www.berliner.com RETIRED sArnUEL J. COHEN Brag O>Rco - MercaO.OA June 18, 2003 Chair Hunter and Members of the Saratoga Planning Commission City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 • Re: W~t/Chen Application for Variance 1ZI61 Parker Ranch Road Planning Commission Date: June 25, 2003 PAUL A PELO51 THOMA$ P. MURPHY NADIR V. HOLOBER BRIAN L. SMETI_ER MK~•IAFS VIOWdTI JDL16 HOUSTON CHRISTUW E. PICONE EILEEN P. KENNEDY PE>T=R BAIOfIEK HARRY A LOPR Dear Chair Hunter and Ivlembers of the Saratoga Planning Commission: X002 JDHN F. pOMU~fiUE SETH J. COHEN MpNICA & BOROCHOFF CHRISTINE M. LONG KRISTIN 6FNG p{ARMAN D. TUNNEY pAVID D. WADE NATHANIEL WE1WdS W K ~.sETT BRIAN N. KIM AARON M.VAL&Nrl of couNSa HUGH t IsOLq STEVEN L }1ALLGRIM50N ERIC WONG NANCY L BRANCT CHARLES W. VOLPB JEFFREY S. KAUFMAN We represent Mr. and Mrs. East, who are the owners of the property located at 12147 Parker Ranch Road, Saratoga, California. This letter serves as the Fasts' objection to the. variance requested by Mr. Wu and Ms. Chen (the "Applicanu"), the property owners of the property located at 12161 Parker Ranch Road (the "Property"). The Fasts are opposed to the Applicants' proposed variance because the City cannot legally make the necessary findings to grant this variance, and there is ongoing litigation concerning this fence that should be addressed by the court prior to any City of Saratoga ("City") action. Litieption Hista The Applicants have been involved in ongoing litigation. with not only with the City, but also with Mr. and Mrs. East and the Parker Ranch Homeowners' Association (the "Association"). This litigation is ongoing and is briefly outlined below. On or about November 1999, the City and the Association were notified of the Applicants' violation of the City's Zoning Resolution F1;-90-001 (hereinafter "City's Zoning"; a • UH1592563.1 Ot'OBIH03.10554001 06/18/03 I9ED 16:13 FA% 4089382579 BERLINER & COHEN Chair Hunter and Members of the Saratoga Planning Commission. June 18, 2003 • copy of Resolution FE 97-001 is attached) for the exact fence thatlthean~~seeond att mpt to variance for at this ttme. It should be emphasized that this was the App install an illegal fence in violation of the City's ~ Zoning and the Association's Covenants, Conditions and Restrictions ("CCRs"). Both times the Applicants were informed that they could not install a fence in the front-yard setback and side-yard setbacks, yet they proceeded to install their fence. (I,etfers from Ms. East are attached) The City investigated the violations and initiated abatement proceedings. The City held administrative hearings and upheld the zoning violations against the Applicants. In addition, the Superior Court of Santa Clara County recently upheld the City's decision regarding abatement of the illegal fence. (Writ of Mandate, Case. No. CV807506; the court denied Applicants' Writ of Mandate request in March 2003.) ' Since the Applicants refused to removed the illegal fence pursuant to the City's abatement order, in March of 2001 the Easts and the Association were left with no other alternative but the commence .litigation with the Applicants for violations of the CC&Rs regazding their illegal fence 'The Applicants responded not by removing the illegal fence, but by filing across-Complaint and a Petition for Writ of Mandate against the City :for enforcing- the City's Zoning violation against them. This above-mentioned litigation is ongoing and granting this variance-will not provide the City, the Association, or the Easts the relief that they are seeking, which is the enforcement of the City's Zoning and the CCRs. • The City Cannot Make Necessary Variance Findin We submit that the Planning Corrunission cannot grant the variance that the Applicants are requesting because it will not be able to legally make the necessary findings based on the evidence in the record. Pursuant to the City's City Code Article 15-70, the Planning Commission may grant a variance on the basis of the application and the evidence submitting after it makes all of the required findings. (See City Code § 15-70.060.) Further, under the City. Code and Government Code section 65906, a .variance can be sustained only if the all of the applicable administrative requirements are met. See 1"opanga Assn for a Scenic Community v. County of Las Angeles,. l l Cal.3d 506, 518 (1974). City Code Section 15-70.060 (a), (b) and (c) are applicable to this variance request and set forth are below: (a) That because of special circumstances applicable to the .property, including size, shape, topography, location, or surroundings, strict enforcement of the specified regulations would deprive the applicant of privileges enjoyed by the owner of other properties in the vicinity and classified in the same zoning district (b) That the granting of the variance will not constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and classified in the same zoning distract. v~s~sas.t -2- 01-061803.1psg4ppl ~ 003 06/18/03 WED 16:13 FA% 4089382579 BERLINER & COHEN Chair Hunter and Members of the Saratoga PlanninS Commission June 18, 2003 • (c) That the granting of the variance will not be detrimental to the public health, safety, or welfare, or materially injurious to properties. or improvements in the vicinity. p'indings for 15-70.060(a): The City cannot make required findings that there are special circumstances applicable to the Property that the enforcement of the City's Zoning deprives the Applicants of privileges enjoyed by owners of other properties in the vicinity and in the same zoning district. • The Applicants are subject to both Resolution FE-90-001 and the CCRs, the same restrictions that apply to all of the neighboring properties. :Even though the Applicants allege that there are "several other homes in the same subdivision with a front yard fence less than the required 30 feet," this is not a sufficient finding and it does not legally entitle them to a variance. • There aze no special circumstances applicable to the Property that makes granting this variance necessary. There is :nothing unique about the Property that would require a fence variance. The Property 's atel a 10 feetllbetween the Appl eantsa fen eusattd topography. There is approxlm y landscaping and the Fasts' retaining wall. The ,Fasts' retaining wall is not a untque characteristic or special-circumstance applicable to the Applicants' Property. • The Applicants' statement that "since the house is located exactly 20 feet from its side property lines, aside-yard fence would not be in compliance unless the fence was located contiguous to the side of the house, which would result in a zero set-back from the fence to the house" is erroneous and is not a special circumstance applicale to the Property. The Applicants' house maybe 20 feet from the side yazd property line, but the location where the illegal fence has been installed is not next to the house, but in the side yard towards the front portion of the lot. There is, in fact, space to have a fence within the required side-yard setbacks. Findings for 15-70.060(b): The granting of this variance to the Applicants will constitute a grant of special privilege inconsistent with the limitations on other properties in the vicinity and in the same Zoning district. A variance may not be granted if it will adversely affect the interests of the public or the interests of other residents and property owners within the vicinity of the Applicants' Property. All of the properties within the Parker Ranch area are subject to the CCU Rs owners City's zoning regulations pursuant to Resolution FE-90-001. These pro rty have not only privately contracted for, or agreed to be bound by, such fence limitations, but are also bound by the City s Zoning. Granting this variance would be a special privilege inconsistent with the other properties in the Parker Ranch area. Findings for 1.5-'10.060(c): The granting of this variance would be detrimental to the public health, safety, and welfare, and would materially affect the properties or improvements in s r~ooa u~sz3as.~ -3- 01-061803.10554001 06/18/09 wED 16:14 FA% 4089982579 BERLINER & COHEN f~j005 Chair Hunter and Members of the Saratoga Planning Commission Tune 18, 2003 the vicinity. The granting of this variance would also undermine the City's Zoning and the CC&Rs. The granting of this variance is nor necessary for any safety reason whatsoever: It should be noted for the record that Ms. Chen personally testified under oath that there have been no accidents regarding the retaining wall drop-off on the Easts' property. Additionally, the safety concern for the Applicants' children (ages 10 and 13) that has. recently been raised by them has not been acted upon for over IO years. 'When the Applicants' originally moved into their house. over 10 years ago, they first sought approvals and permits for their entry. gate, not a fence for their small children. Then approximately 10 years later, on about November 1999, they .illegally installed a fence, after being informed that it was in violation of ,the CC&Rs and the City's Zoning. The Applicants have. resided on their Property for approximately l0 years without a fence and without any evidence of accidents resulting from their Property not having a side or front yard fence. • There is absolutely no evidence .that this fence is necessary for safety. The'~ariance is Against City Policy In 1990, when the Applicants were residents of Parker Ranch subdivision and members of the Association, the Association worked for over 14 months with the Ciry Planning • Department, the Planning Commission, City Attorney and City Council on the amended fencing. ordinance, which resulted in Ordinance 71.74 and Resolution FE-90-001. (See attached memo to neighbors.) The concerns of the citizens, the Planning Department, Planning .Commission and City Council were considered in adopting the new fencing regulations, which included removal of the 4,000 square foot restriction on fenced enclosed areas; added new setback conditions for rear and side lot lines in order to prevent contiguous fencing and to guarantee corridors for the passage of wildlife; achieved their goals to revegetate the land and live in harmony with wildlife and not to enclose properties with obtrusive fencing like some of the neighboring subdivisions. 1~or the above reasons, we respectfully request that you deny the grant of this variance. Sincerely, BERLINER COHEN JOLIE HQUSTON E•Mait: jh@berliner.com JH:cem cc: John and Pam East Bill Clayton, Parker Ranch Homeowners' Association City Attorney • 1JH~5g25a3.t ~- o~-0ateoa•,~aoo~ 06/18/03 R'ED 16:14 FAg 4089382579 BERLINER & COHEN - ~-. •~ --- gySOLIITION iQa- gE-g0-001 CITY OP Sp,RATOGA PLAHNTNa CQM2+iY$SI03i STATE OF CALIFORNIA ~ ooa • PARR .R.AIiCB - TRACTS 652f and 65Za Planning ComxaisSion has re~ 1P88REA8, i~he City of Saratoga - ceived the petition for hi than 6 ~~ of the Parker Ranch Hameown- . fence enclosure from more ers, and; y~rgEgEp,B, the Planns.n9 Commission hart ~s were g yen aufull . hearing at which time all interested p opportunity to pe heard and to present evidence; and pEEREAS~ the applicant has met the lowing ~ ndsngsf haveube n to support said application, and tha fol. deteriained The proposed fence regulations do not allow more than 50$ of, the lot area to be enclosed. . • he roposed fence, style is ope ~~ nd contains no sharp T P urlous to wlldli points poss~lY in7 , No open space areas will be enclosed by proposed fencing. this resolution require that all; Conditions required by ZO feet from side and rear fencing be setback twenty ( ) property l.i.nes, and thirty (30) feet-from front property lines, to ensure the adequate passage of wildlife through • epee. spaces . the Planning Commission of the City of NoSP, THEREFORE, Saratoga does hereby resolve as follows: o p5ea consideration of the P= P Sectiaa 1. After earefu]. connection with this xequlatians aril other exhibits subbaitted in at2ted subject ter the application of the Parker Rlsch z~Y ~ rs for .hill- mat side fencing excePtiori be and the same tp 'the following conditions: exclusive of a~iy pertions 1, No morE than 50$ of a lot area, a fence. designated as open space may be enclosed by • o solid fencing shal]. be pe~itted•as stipulated in Section • x• N + a Cit Code 15-29.020 of ~e Sara_Qg Y All fence enclosuzes greater tOanm~O~ be pproved by,ethe 3. existence as of Auguste 8, 199 r Director. F;:ture requests for fanCe ehelo Dyed Planning ' exceeding 50~ of the.s5ianras shmod f~catioriw'~o the approved by the Planning Comm fence plan. ~• ~ 20 feet 4 , All rences shall be sexcect thatn feunmc sf hall be setback fxom proPe='tY lines P ro arty line. thirty (3a3 fast froa- the (rout P P • ' 08/18/03 SPED 18:14 FA% 4089382579 BERLINER & COHEN ,__ .._ • lib L 1 i t ~~r ~~+~ ~ ~~~ - ~ - ~.;CiU-1~^195+ • Res . FE-9 0 -o o i, par..dr R~eh, Tracts 652 b i 65. , g, All Proposed tense plans shall be submitted to the Planning, • Directo_ Pox' review and approval. g. Prlar to the Director's approval of the fr "~• a oom- prehensive landscape p3an steal]. be reviews ..~`'gd by the Planning Director. ~ndscaping shall inc,-.•~a : ~~~•:°na2L5 and drought tolerant species that will ba Comple:~z~ti--ary tO the vegptat_on currently witlsin the open-the Director .shall completion of the fence and landscaping letion of conduct an inspection to ensure sat7.sfactory-comp the landscape plan. 7. Fence style deeped aPprpVe ~ Exh bit a'c a tachedhall be limited to open styles shorn 8. Na fences shall be contiguous with any neighboring fences. g, side and rear yard fencing-may be located on the property line with no setbacks when such fencing is adZa~ent to dedicated oFen space. 8ectioa 2. Ali applicable requirements Of the state,. Ccuri- ty, City and other governmental entities must be mew. BectidA 3. 'Unless appealed pursuant to the r=quiremeritS of Article 35-90 of the Saratoga City Code, this ~asalution shall beco~ue effective ten (10) days From the date of adoption. pA88ED AND ADOPTED by the City of Saratoga sta~990 cby the • sivn, State of California, this 8th day of Augu , ~ following roll call vote: AYES: NGEBi A88ENT: airperscn, Planni comiaissioss ATTEST' .~h~' ec 8 r~+, anrt]slg Co~,issioA ' The foregoing conditions are hereby ac~gpted: ~.s~- 16,1 ~~~ scant ate . si atuxe of App Sec, ~~ pl~•-r~.~.. (~t---~- h~o ~v---<--~ G~-~ a a; c,.~'• f... , [~j 007 • 06/18/03 ~9ED 16:15 FA% 4089382579 BERLINER & COHEN i• November 19, 1999 Architectural Committee Parker Ranch Homeowners Saratoga, CA 95070 To Whom It May Concern: 1 am attaching a copy of a letter I have, sent to our neighbors at 12161 Parker Ranch Road. Unfortunately, they are building a fence which I believe does riot meet the code specified in the CC&R's of our homeowners regulations. This~is not something I enjoy doing, but 1 feel in the best interest of our neighborhood, it must be done. 1 have been aware of several fences in our neighborhood going up which may also be questionable. This one however affects my property directly. i do not know what the procedures are, so I will wait for notification from someone from the committee. For your information l have notified. the City of • Saratoga planning department also. l would appreciate information from you as to what should happen concerning this matter: Sincerely, ~~ ~~~ Pam East 996.1142 X008 C] 06/18/03 R'ED 16:15 FA% 4089382579 BERLINER & COHEN X009 • November 10.-1999 Dear Mr. And Mrs. T. C. Wu, ou are intending ~sb~ ~i~ohn and 1 I am writing this letter regarding the fencing y enclose your entire yard. As a resident ofa dr se keepingywith the intended do not beltieve that enclosing your entl y urpose and beauty of our hillside commun ity~e first homeowners to reside in p purchased our lot in 1983. We were amo g Parker Ranch. What we Loved most about the au ~tasehd here because aulesbY the beautiful landscape and open space. We p . had been established to ensure that this beauty ws and Boats of udr We.do not fee! that your intended f onCfrom ouerpos tionenuelationship to your lot it would neighborhood. 1n add~t This is appear that we have a 12 foot fenus a d defeats our efforts to make: our property aesthetically very unappealing to as beautiful as possible. Ori finally you went ahead and started to build thl~ns foef Wring are in1Parkeon 9 as to how it might affect us or what the spec~ficdt Ranch. This was upsetting, especially since W Would (like you to disduss you e do not see the need to enclose your yard. We plans which affect our property with us first to make sure it is also in' our best . interest as homeowners in Parker Ranch. We would appreciate some discussion with you. We will be out of town until November 17 ,but we feel it is necessary to discuss this issue soon. Thank you for your time and consideration concerning this matter. Sincerely, ..ms~ss...~ Q`'"r~` ~ GJ~~`...~ Pam East 996-1142 • 06/18/03 tiVED 16:15 FA% 4089382579•. FROM :Panasonic FAX 5YS7E~ • BERLINER & COHEN PF~JI~ N0. 40g99C,i142 FE YNC A'1~ PARKER RANCH bolo. Jun. 28 2000 02:5~'M t'2 The Parker Ranch Homeuw~ncrs Association petition to e,~cempt our~neighboxhood from the X000 square foot restriction on fenced enclosures was presented turd discussed at two public hearings before the Saratoga Planning Commission on July 25 and August 8. Our goal was to come np with a set of rules which was acceptable to the City as well as to the homeowners, and which would e:lhaace and protect the environment in the hillsides. The P12xming CotruniSSion, upon recommendation of, the Planning Staff, decided to modify the rules which the homeowners had already voted on in the fencing petition which was signed by 80% of the lat owners in Parker Ytanch. Consequently, we need to conduct a new vote in order to modify our CC&R's so thst we can lzava~ enforceable and meaningfiil fencing rules for Parker Ranch. The planning Commission has added some new setback conditions for rear and side lOt lines in order to prevent contiguous fencing, but they have also offetxed to grant exceptions to these setbacks to hommeowners who demonstrate special topography ortteeds' which would justify feracisig on the rear or side lot lines. Contiguous fencing is not being pennirted in order to guarantee a corridor fur passage of wildlife. 1=encing on a lot line next to-open space is allowed. Open fences in existence as of August 8,1990 have been grartdfarhered in if they meet the spirit of the new regulations. Ttxey should not have sharp points which are dangerous to wildlife and they shauld leave open corridors for the passage of wildlife. The goal of the fencing ivies is to promote attractive lardscaping, so fencing puns must be subiniaed to the Planning 1?eparanent and the Parker Ranch Architectural Control Committee alotag with landscaping pla~ns> specifically including draught-tolerant native plants well adapted to our hillside eT>viroruxaent. Three styles of fencing wr71 be allowed: black wrought iron, wire mesh, and open wood slats which you can see through. Fencing should blend in as much as possible with the surrounding envitoriment. At the bottom of this page you will find a voting form to sign and return to Ronni 7,,acroute, 12832 Star Ridge Court, Saratoga, before the meeting on November 7. It is very important for you to, vote an thus change, or else we will be left without meaningful and enforceable CC&R's. 'I',he meat page is the exact wording of die Sarazoga Planning Comnussion's fencing regulations for Parker Ranch wlueh we wish to incorporate as an amendment to our CC&R's replacing the current fencing language in Attiele LX, Section 6 ("Fences, walls and hedges may lx constructed or planted only per the Ciry of Saratogst's HC-RD Zvniztg District Regt~lacians; 'proximate to the principal structure and in no event to enclose or encompass an area in excess of 4,000 square feet.' " ). FENCING VOTE: AMENDIvi~1yT' TO THE CCBzR'S • X, the undersigned lot owner at Parker Ranch,votc to amend the CCBtR's in order Lo replace the current 4U00 squaze foot restriction on fencing enclosure by a new sctof riles as voted by t}~e Saratoga Planning Commi~ssioxi on August 8, 1990. Printed Name: Signature: Lot Number: ,A,ddress: Date: • 06/18/Oa 1oED 16:.16 FA% g089a82579 - '-FROM Panesar~ic FAX SYSTH•' I~ BERLINER & COHEN f~JO11 Pi'IONE N0. ~ 408°961142 ,,tin. co + uc.xrTl r.~ Parker R~:~ich Homeowners Association P. O. Box 3077 Saratoga, CA 9$070-1.077 May 4,1994 bear Homeowners, The Board of Directors of the Pazker Ranch Homeowners Association, in response to requests by many homeowners, has been working with the City of Saratoga for the past fourteen months to modify our fencing regulations in order to remove the 4000 ,square foot limitation on the enclosed area. During our annual meeting of November 1988, 70% of the homeowners voted to amend the CC&R's by~ deltting the 4000 square foot restriction {l0°10 of the •liomeowners opposed this change and 20% of the owners, mosdyhon-residents, did not vote). VYhen the Homeowners Association submitted the amended fencing code to the City for approval, the City Attorney explained that the current fencing ordinance did not permit any neighborhood exemptions from. the 4000 square foot restriction and that a new.legal procedure for exemptions would have to be established. After many meetings with the Planning Commission, the Planning Staff, the City Attorney and the. • City Council, a new ordinance was fuially passed by the Ciry Council on Apri118, 1990 (copy attached). The changts from the former ordinance are contained in . Section S, Paragraph 3. This new ordinance allows a hillside neighborhood such as Parker Ranch to request an exempdon to the 4000 square £oot restriction. In order to obtain the exemption, 60% of the homeowners must petition the City. Our proposal, which is attached, ar-d for which we are askistg you to vote, would allor~v each homeowner to enclose up to 609'0 of the gross area of his lot. In order to comply with, the City ordinance, we,are proposing that only open fencing, such as wrought iron wad wire mesh without any sharp points be permitted. Neitlitr perimeter fencing nor fencing of open space areas is allowed, per the City Council's explicit instructions. The maximum height of the fence is six feot. A fence more than three feet high must have a front setback from the street of thirty feet in order to comply with City regulations. . After the City accepts a hillside neighborhood's proposal for an amended fencing code, homeowners in that neighborhood will no longer have to obtairx individual variances for fences meeting the above standazds. Of course, homeowners • who do not want to fence will not have td fence. 't'his process will allow us to legalize existing fences for which no variances have been obtained and which meet all of the • ~ criteria. Our goal for all existing fences has been to find a speedy process and .s 06/18/03 WED 16:16 FA% 4089382579 BERLINER & COHEN ~ 012 .-= ,,~ .~ -• ..- ..-.~ .-... -• PHO~ Np, a0899611a2 Jun. 28 2000 02:59PM P5 •~Qpq •: P2ndsoni C FAX 5YSTQ'" t convenient avenue to legalize them where they meet the aesthetic -goals of the • Iomeowners Association. If they do not follow the rules precisely, then we would like to find a compromise that would be acceptable to the homeowner, the Associaoon, and the City, The procedure for legalizing existing fences will be as follows: 1) Plans will be submitted to the Ar~chitcctural Control Com~niiitee, to be followed by a site visit by the committee to the property to see if the fence conforms to the goals of our CC&R's, and 2) The Saratoga Planning Deparanent w~l verify that fences confflrm to the spirit of the ordinance by verifying plans and making a short site visit. The purpose of this process is to grant legal status to existing fences while permitting construction of nevv fences exceeding the 4000 square foot limitation. All of this will be possible if the Homeowners Association approves the proposal and petition addressed to the Plarming Comc~nission by a EO% majority. We have attached the proposal we are addressing tv the City and are asking you to sigma the enclosed petition and return it to Ronni Lacrovte at 12832 Star Ridge Court by May 18. . We hope that this approach will help us to solve our fencing problems so that we will be able to landscape Parker Ranch without losing our fruzt trees, ornaments] shrubs sad tendez flowers to herds of voracious deer, C~ goal is to revegetatc the • land and live in harmony Wide wildlife, not enclose all of our prvpcrties with obtrusive fencing like some of the neighboring subdivisions. We 'would like to use fencing judiciously irl order to improve the appearance of Parker Ranch. Xf you have any comments and wauld like to share your ideas, please feel .free to contact any member of the hoard of Directors. . Sin rely, Ronni Lacroute • 741-5879 ,Attachments: 1„ Proposal for modification of fencing CC&R's and neighborhood exemption from the 4000 square foot limitation and petition to the Ciry of Saratoga to implement the proposal for rnodificatiom in the Parker Ranch fencing code. ~ 18 1990, and effective 2. Hillside fencing ordinance passed by Ciry Council o ~. Ap , one month later(see Section I, Paragraph 3). • 06/18/03 wED 16:16 FAg 4089382579 BERLINER & COHEN mow,. _, __ __. .. 0013 ~~ ~• ,~06yyt~ll4G -- _-. .-FR011 Panasoni c FAX ~~'" . OBDINANCE 170.71. ~~~ AN oADTNANCE OF TSE CITY OF SARATOGA AMHNI~ING g~t/i`ION 15-29.020 OP TFlE CITY CODE CONCSRNlNG FENCAiG V9'xTHIN gII,7~SIDE DiS'TR,ICTS The City Council of the City of Saratoga hereby ordains as follows: • SBCTIOl7 1s Paragraph (e) of Section 15-29.024 in Article 15-29 of the City Code is amended to read as follows: .. .", , , •~• "' '~(c) Area of enclose. Except for fencing around recreational ~ courts and fencing which constitutes part of a corral, no fencing on a singly site 'shall encompass or enclose an area in excess of four thousand square feet (excluding the, area of any pool) unless aQproved by the Planning Commission, which appcoval may be granted in any of the following cases: (l) Where the Planning Commission finds and determines that the visibility of th8 fence from public streets and adjacent properties will substantially be reduced by the topography, landscaping or gther features of Lhe site. (2) Where the Planning Commission finds and determines that the . fence is required for safety reasons. •r,~ ~ i 4 _~ (3) Where an exemption from the restriction against fencing enclosure '~he n~ W has beep granted by the Planning Commission fora "designated neighborhood area," as hereinafter defined, fri response t~o a petition for such exemption signed by the owners of lots comprising not less than sixty percent of the designated area. Befors granting such exemption, the Planning Commission shall conduct a public hearing on the petition, with notice thereof sent by mail at least • ten days prior to the date of the hearing _t4 a11,•persons ow~g . •- _.property located' within the designated neighborhood area and • ~ ~ ~ ~~ within 500 feet from Lhe boundaries of such area. As s condition for granting an exemption, the Planning Commission may establish alternative rules concerning the enclosure of sites in the designated neighborhood area, including, but not limited to, rules pertair:irtg to the. amount of enclosure, the design and type of fencing, and mitigation of visual impacts; PROVIDED, however, in no event Shall such rules Permit enclosure of more than sixty percent of the gross site area, or the inste]Iation of any solid. fences or walls, or use Of any fene'-ng mstterial having exposed sharp points, or the in5tall8.tiOI1 of any fencing within 9n area . dedicated as open Space. • Rev. 4/4/90 -1- 06/18/03 VYED 16:17 FAg 4089382579 ~KERLINER & COHEN __._ _ ~_ __.^~.f~j014 -FR~1'"1 meson ~ c Fix sv5 i ~r° ..~.,. __,-- .. .NEW (AND HOPF~~TLLX FINAL) FENQNG R~ F'OR PARI~?R RANCH SOURCE: }2~SOLUT'ION NO. Flr-90-QO1 , CzTX OF SARA.TOGA PLANNING COMMISSION, DA's AUGUST 8, 1990 1. No more than, 50% of a log area, exclusive of any portions designated as open space may be enclosed by a fence. 2, ~ No solid fencing shall be pexmitted as stipulated in Section 15-29.020 of the Saratoga City Code {which permits 60 feet of solid fencing to provide privacy). 3. All fence enclosures greater than SO% of the lot area in existence as of August $, Future ~reque~sts~for fencs'-" °- _,._ ,~ 1990, may be approved by the Planting Director, enclosures exceeding 50% of the lot area shall be reviewed and approved by -the Planning Commissiol~ as a modification to the approved fence plan. 4. All fences shall be setback a minimum of twen ~ fe~t from th fra~t~rtySline except that fences shall be setback thirty (3) , (the street side). • 5. All proposed fence plans shall be submitted to the Planning Director of the Ci C`of Saratoga and to the Parker Ranch Architectural Review Committee for revs and approval, 6. Priox to the Taireetor's approval of the fence plan, a comprehensive landscape plan shall be reviewed and approved by the Plazurting Director. Landscapin$~shall include indigenous and drought tolerant species that will be complementary to the vegetation currently within the open space areas. Upon completion of the fence and landscaping, the~Director'shall~ conduct~an inspecrion to ensute ~~~ satisfactory completion of the landscape plan. 7. Fence styles deemed approved shall be limited to black wrought ixon fencing,. wire mesh and apen wood slat fencing. $. No fences shall be contiguous with any neighboring fences. be located on tl~e property line with no setbacks 9. Side and rear Yard fencii-g may when such fencing is adjacent to dedicated open space. • CLAYTON & McEVOY A Professional Corporation 333 West Sarita Clara Street, Suite 950 San Jose, California 95113-1721 William B. Clayton, Jr. Laurence J. McEvoy Kevin C. Bedolla Henry W. Rous, Of Counsel June 18, 2003 Chair and Members of the City of Saratoga Planning Commission City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 Re: 12161 Parker Ranch Road Application for Variance Meeting Date: June 25, 2003, 7:00 p.m. Members of the Planning Commission: Telephone: (408) 293-9100 Facsimile: (408) 293-4172 wbc@clayton-mcevoy.com HAND DELIVERY I represent Parker Ranch Homeowners Association (PRHA). 12161 Parker Ranch Road is a property located within the Parker Ranch subdivision. The property, and its owners, are bound by the provisions of the recorded Covenants Conditions & Restrictions affecting the properties. I have been advised that this matter is going before the City ofSaratoga Planning Commission at the next scheduled meeting, that being June 25, 2003, at 7:30 p.m. Please accept this letter as a letter in opposition to the application for the variance request. We understand that two variance requests have been made: one concerning a side yard fence set back, and the other concerning a front yard fence set back. Both requests for variance are in direct conflict the existing recorded Covenants Conditions & Restrictions which bind the subject property. Without knowing what has actually been-provided to the City by the Applicant, we believe it is important that this file reflect the following: 1. The existing wrought iron fences which are the subject of the request for variance were installed ~vithotlt the homeowner seeking the required consent and approval from the Homeowner's Association (PRHA). 2: On May 5, 2000, a Notice and Order to Abate Public Nuisance at 12161 Parker Ranch Road, APN 366-43-007 was issued by the City Manager of the City of Saratoga ordering the removal of the subject fences (See Exhibit A). 3. On July 19, 2000, the Nuisance Abatement Appeals Board for the City of Saratoga heard the appeal of the homeowners. 4. The appeal was denied by the Nuisance Abatement Appeals Board pursuant to the findings and decision dated September 19, 2000 (See Exhibit 4 to Exhibit C.) 5. The homeowners sought judicial review of the decision. Chair and Members of the City of Saratoga Planning Commission City of Saratoga June 4, 2002 Page 2 6. On April 17, 2003, the homeowner's petition for review of the decision of the Nuisance Abatement Appeals Board was heard. Judge William F. Martin issued ari Order denying the Application for a Writ (See Exhibit B). 7. On March 27, 2.001, Parker Ranch Homeowner's Association and adjacent homeowners Pamela East and John East filed complaint for permanent mandatory injunction seeking removal of the subject fences as being in violation of the Covenants Conditions & Restrictions affecting the property (an amended complaint is attached Exhibit C). That litigation is still pending and the City of Saratoga is a party to that litigation: The litigation seeks to enforce the Covenants Conditions & Restrictions for Parker Ranch Homeowners Association, as amended, (Exhibit 1 (c) to the Exhibit C). The fencing regulations found in the Covenants Conditions & Restrictions of the development and the fencing regulations set forth in the Saratoga Planning Commission Resolution FE-90-001 are compatible and identical having been reached following an extensive series of public hearings in 1990 and 1991. As a result of the City of Saratoga enforcement through its Nuisance Abatement Proceedings, the existing conditions on the homeowner's property are undeniably a nuisance per se. The City of Saratoga's current path of action should be to enforce its abatement order and physically remove these fences. The object of the Application for Variance, in part, would seek to retroactively have this body circumvent the holdings of its Nuisance Abatement Appeals Board as upheld by Judge Harris in his order. The fence is currently exist illegally as a result of the defiance of the homeowners of the City Hill Side Fencing Ordinance 15- 29.020, Resolution No.: FE-90-001, and the Covenants Conditions & Restrictions of the Homeowner's Association Article IX, Section 6. The Applicant suggests that the location of the home relative to the property line shared with the neighbor East results in a zero set back from the fence to the house and would disallow an_existing footpath that connects the front and back yards. It is observed that the fences in question are front yard fences, and exist between the home and street. There would not be a "zero set back from the fence to the house" as the existing illegal fences do not parallel the house, but rather are in front of it. The Applicant suggests tl~e need of a "safety barrier" as additional basis for the variance. The Homeowner's Association is unaware of any facts that would preclude the existence of a compliant fence performing the same function where the non-compliant fences currently exist. A compliant fence would have the same function as advanced by the Applicant, if safety were the true motivation. Therefore, the Homeowner's Association would suggest. to the Planning Commission that there are no special circumstances applicable to this Property that could result in findings supportive of the requested variance. Additionally, a grant of the variance would result in a grant of special privilege to this Applicant, a disregard the existence of contrary Covenants Conditions & Restrictions which bind- the property, and serve to circumvent the Nuisance Abatement process. Lastly, denying this variance would not be detrimental to the health, safety and well being of the public, nor the property owner. The property owners may install fences on their property consistent with the current Covenants Conditions & Restrictions which bind the property. Chair and Members of the City of Saratoga Planning Conunission City of Saratoga June 4, 2002 Page 3 It is respectfully requested that the Planning Commission deny the Application for the Variance as the facts in this case do not support the findings that would be required to grant such a Variance. Very truly yours, WBC:nI Enclosures EXHIBIT A cat ~; 13"i77 FRUITVALE A~'E;v'UE • SARATOGA. CALIFORNIA 9050 • (-051 t+ii~-1'?Ui~ Incorporated October??. 1956 May ~, 2000 DELIVERED BY CERTIFIED MAIL RETURN RECEIPT REQUESTED MAILED TO ADDRESSEE ON MAY 5, 2000 Tsunb Ching Wu &Yuh-Ning Chen 12161 Parker Ranch Road Saratoga, CA 9070 Re: Violations of Saratoga Municipal Code . At 12.161 Parker Ranch Road Dear Tsunb Ching Wu &Yuh-Ning Chen: COI'\CIL \IE~iBEP;. .,..-..,,._ ,~y~. ~. - ..; ;:c:~s.~; :- The purpose of this letter is to notify you that numerous violations of the Saratoga Municipal Code are occurring on the property at 12161 Parker Ranch Road, APN 366-43-007 (`'subject property"), and that these violations must cease immediately. You are hereby notified that both of the following are hereby issued to assure that said violations cease: (1) a notice and order to abate a nuisance; and (2) a notice requiring removal of a use and/or structure in violation of the City Ordinance and request for City Attorney to commence court action to enjoin said violations. NOTICE AND ORDER TO ABATE PUBLIC NUISANCE NOTICE IS HEREBY GIVEl~? that a Notice and Order to Abate Public Nuisance has hereby been served on the owner of record of property located at 12161 Parker Ranch Road, Saratoga, CA, APN 366-43-007. The conditions that have been found by the Saratoga Ciro- Manager to exist which warrant the declaration of a nuisance.on the subject property- are, ir. general, violations of the following code sections. • SARATOGA MUNICIPAL CODE SECTION 15-29.020 Fencing within hillside districts. The Saratoga Planning Commission is authorized to establish alternative rules concerning the enclosure of sites in designated neighborhood areas. The Saratoga Planning Commission adopted such alternative rules for the Parker Ranch in City of Saratoga Planning Commission Resolution FE-90-001. A fence has been constructed on the subject property in violation of said Ciry of Saratoga Planning Commission Resolution and the Saratoga Municipal Code. Tsung-Ching Wu &Yuh-King Chen notice and Order to'Cure Violations of Saratoga Municipal Code fay 5, 2000 Page 2 of ~ SARATOGA PLANNNG COMMISSION RESOLUTION NO. FE-90-001 Section 1(4). This section requires that all fences shall have a minimum setback of twenty feet from property lines except for fences on the front property line which shall have a minimum setback of 30 feet. A fence constructed on the subject property violates this provision in that it is not setback the required distance from either the front or side property lines and therefore is in violation of said Ciry of Saratoga Planning Commission Resolution and the Saratoga Municipal Code. SARATOGA PLANNING COMMISSION RESOLUTION NO. FE-90- 001 Section 1(5). This section requires that all proposed fence plans shall be submitted to the Planning Commission for review and approval. No plans for a fence constructed on the subject property were submitted to the Saratoga Planning Commission and therefore said fence was constructed in violation of said City of Saratoga Planning Commission Resolution and the Saratoga Municipal Code. SARATOGA MUNICIPAL CODE SECTION 15-29.020 Fencing within hillside districts. This section requires that no fencing shall have exposed sharp points. A fence constructed on the subject property has exposed sharp points and therefore is in violation of the Saratoga Municipal Code. SARATOGA MUNICIPAL CODE SECTION 15-0.040 Compliance with Regulations. This section requires that no land shall be used, and no building or structure shall be erected, constructed, enlarged, altered, moved, or used except in conformity with the regulations as established in the Saratoga Municipal Code. Constructing anon-complying fence violates this provision. SARATOGA MUNICIPAL CODE SECTION 1~-95.0030 Violations as constituting misdemeanor or infraction offense; penalties. This section provides that violations of regulations regarding fences shall constitute a public nuisance. The construction and existence of anon-complying fence is in violation of the Saratoga Municipal Code and therefore constitutes a public nuisance. Summary Description of Violations: The following is a general summary of the above-described violations.. It is not intended to be exhaustive, but rather to contain examples of violations. An illegal fence exists on the subject property- in violation of City ordinances and Planning Commission resolutions as a result of the owner of the subject property having undertaken the construction of a noncomplying fence without required approval from the Planning Commission.. As constructed, the existing fence does not conform with city regulations. -The property owners, Tsung-Ching Wu and Yuh-Ning Chen have been notified of the violations numerous times. On December 30, 1999, a "Notice of Municipal -Code Violation" was sent to the property owners. This letter requested the removal. of the illegal fence. However, the request was not complied with b~• the propert}' owners. The existence Tsuna-China Oyu & Yuh-King Chen Notice and Order to"'Cure Violations of Saratoga Municipal Code Iv1ay ~, ?000 Page 3 of ~ of anon-complying fence violates the Saratoga I~lunicipal Code. These violations have occurred and continue to occur. Action Required to be Taken. The owners of the subject property are hereby given ten (10) days from the date of this letter to commence abatement of the above-described nuisance and thirty (30) days from the date of this letter in which to complete abatement of said violations constituting the nuisance. The Ciry- Manager has determined that- the fence must be removed. Should the owner choose not to remove the illegal fence, the City will proceed with all legal remedies .available. Notice that Abatement Work May. be Done by City and Costs Charged to Owner of Subject Property.. If the abatement work is not commenced or completed within the above-specified times, the Ciry Manager may proceed to cause the work to be done and charge the costs thereof against the property or its owner. The City shall be entitled to collect all costs and expenses of said work, including administrative enforcement costs and attorney-fees. Notice of Right to Appeal this Notice and Order to Abate Nuisance. The Notice and Order To Abate Public Nuisance may be appealed by any person having any record or legal interest in-the property by filing an appeal in writing with the City Manager within 30 days of the date of service of this Notice and Order.- FAILURE TO APPEAL WILL CONSTITUTE A WAIVER OF ALL RIGHTS TO AN ADMINISTRATIVE HEARING AND DETERMINTATION OF THIS MATTER Notice of Intention to Record of Notice of Code Violation. If compliance is not had R•ith the Notice and Order to Abate Nuisance and no appeal has -been properly and timely filed, the City Manager intends to and shall record of a "Notice of Code Violation" with -the County Recorder against the subject properry•. Date: May 5, 2000 CITY OF SARATOGA 1 ~ ~ , WII.LIAM NOR INTERIM CITY MANAGER Tsung-Chine Vii u 8 Yuh-King Chen Notice and Order to Cure Violations of Saratoga Municipal Code Ma}• 5, ?000 Paee 4 of ~ NOTICE REQUIRING REMOVAL OF USE AND/OR STRUCTURE IN VIOLATION OF CITY ZONING ORDINANCE AND REQUEST FOR CITY ATTORNEY TO COMMENCE LEGAL PROCEEDINGS TO ENFORCE THE CITY ZONING ORDINANCE NOTICE IS HEREBY GIVEN that a Notice Requiring Removal of Use and/or Structure in Violation of City Zoning Ordinance has hereby-been served on the owners of record of property located. at 12161 Parker Ranch Road, Saratoga, CA, Ai'N 366-43-007. The conditions that have been found by the Saratoga Planning Director to exist which warrant the issuance of this Notice are, in general, violation of the following code sections. SARATOGA MUNICIPAL CODE SECTION 15-29.020 Fencing within hillside districts. The Saratoga Planning Commission is authorized to establish alternative rules concerning the enclosure of sites in designated neighborhood areas. The Saratoga Planning Commission adopted such alternative rules for the Parker Ranch in City of Saratoga Planning Commission Resolution FE-90-001. A fence has been constructed on the subject property in violation of said Ciry of Saratoga Planning Commission Resolution and the Saratoga Municipal Code. SARATOGA PLANNNG COMMISSIOl\T RESOLUTION NO. FE-90-001 Section 1(4). This section requires that all fences shall have a minimum setback of twenty feet from property lines except for fences on the front. property line which shall have a minimum setback of 30 feet. A fence constructed on the subject property violates this provision in that i~--is not setback the required distance from either the front or side property lines and therefore is in violation of said City of Saratoga Planning Commission Resolution and the Saratoga Municipal Code. SARATOGA PLANNING COMMISSION RESOLUTION NO. FE-90- 001 Section 1(5). This section requires that all proposed fence plans shall be submitted to the Planning Commission for review and approval. No plans for a fence constructed on the. subject property were submitted to the Saratoga Planning Commission and therefore said fence was constructed in violation of said Ciry of Saratoga Planning Commission Resolution and the Saratoga Municipal Code. SARATOGA MUNICIPAL CODE SECTION 15-29.020 Fencing within hillside districts. This section requires that no fencing shall have. exposed sharp points. A fence constructed on the subject property has exposed sharp points and therefore is in violation of the Saratoga Municipal Code. Tsung-Ching 1Fiu & Yuh-King Chen Notice and Order to C"tire Violations of Saratoga Municipal Code May 5, 2000 Page 5 of ~ SARATOGA MUNICIPAL CODE SECTION.15-05.040 Compliance with Regulations. This section requires .that no land shall be used, and no building or structure .shall be erected, constructed, enlarged,. altered, moved, or used except in conformity with the regulations as established in the Saratoga Municipal Code. Constructing anon-complying fence violates this provision. SARATOGA MUNICIPAL CODE SECTION 15-95.0030 Violations as constituting misdemeanor or infraction offense; penalties. This section provides that violations of regulations regarding fences shall constitute a public nuisance. The construction and existence of anon-complying fence is in violation of the Saratoga Municipal Code and therefore constitutes a public nuisance. The City Planning Director has requested the City Attorney to commence legal proceedings to enforce the provisions of the Ciry Zoning Ordinance. If the City Attorney commences or sustains any such civil legal proceedings, the Ciry shall be entitled to collect all costs and expenses of same, including without limitation, reasonable attorney's fees and reasonable investigation costs, which shall be set by the court and made a part of any judgment in any such action or proceeding. Notice of Intention to Record Notice of Code Violation. If compliance is not had with the Notice Requiring Removal of Use and/or Structure in Violation of the Ciry Zoning Ordinance within thirty (30) days from the date of service of this Notice and no request for hearing before the City Manager is requested within twenty (20) days from the date of this notice, the City Manager intends to and shall record of a "Notice of Code Violation" with the County-Recorder against the subject property. Date: May 5, 2000 SARATOGA PLANNING DIRECTOR . SW L REN Questions regarding this matter should be directed to the Community Service Officers, Rebecca Spoulos or John Burns, 13777 Fruitvale Avenue, Saratoga, CA 95070, telephone number (408) 8b8-1200. EXHIBIT B APR-29-2003 TUE 12:50 PM WITTWERPARKIN FAX N0, 8314294057 P. 02/18 (ENDORSED) APR ~ ~ 2003 KIF~! TOAA~ Chlet ExecWFid ORkar/Ciark Superior Court of CA Count' of Santa Clara BY ~_ DEPUTY SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA Tsutig-Chung Wu, et al., Petitioner, v. City oC Saratoga, et al., Respondents. Case No. CV 807506 ORDER RFt: PETTTION FOR WRIT OF ADMINISTRATIVE MANDAMUS The petition for writ of administrative mandamus came on regularly for hearing on April 17, 2003 in Dt;partrnent 15 before the Honorable William F. Martin. The matter having been sub-nitted, the Court issues the following decision and order: ]ticlevarit Facts The City of Saratogs ("City") Code Enforcement department received a citizen complaint nn November 14, 1999, that a fence was being constructed at Petitioners' home at 12161 Parker P.a~~eh ko,ad that appeared to be in violation of fence restrictions. (Administrative Record ("Ak")1:x1}s. D, K.) A Public Safety Officer inspected the property on November 23, 1999, and found the fence slit! under catstruction, and Petitioners were contacted. (AR Exh. D,} In January, 2000, ati inspection was made and the fence had been completed rather than rertioved. APR-29-2003 TUE 12;50 PM WITTWERPARKIN FAX N0. 8314294057 P. 03/18 1 z 3 .~ S G' 7 8 ~~ 10 11 12 13 14 15 1G 17 18 19 20 21 22 23 24 2i 2.6 27 ?8 AlZ Txh. I1.) I~.tters were sent to the Petitioners requesting compliance. After these efforts :iilcci, a Notice and Order to Abate Public Nuisance was issued in May, 2000. These facts stablish that the fence way built after adoption of relevant ordinances and resolutions, in that the ;)(titer caw the fence being built in 1999. 'fhe City contends in its response to proposed .upplcntental evidence, elsewhere, that a citircn's complaint initiating an investigation about a fence should have information about when the fence was built, so that the Cily can determine whether the fence predated or postdated the passage of the relevant regulations. The fence here was observed beirig built in 1999 and so postdated the relevant regulations. '1 he. facts are essentially undisputed. Petitioners concede in their Reply at p.3 that: "Petitioners have never argued that their fence would not violate the setback requirements of the l:~encing Regulations if those re~ulatione were valid and enforceable." Petitioners appealed the Notice and Order to Abate Public Nuisance to the City of Saratoga Nuisance Abatement Appeals Board ("NAAB"). (AR Exh. Q.) The NAAii decisio« dealt only with application of the City's ordinances and planning cornn~ission resolutions to the facts. It referred issues concerning the constitutionality, validity a1~d propriety of the adoption and enforcement of these regulations to the City Attorney. The I'3AA1:3 found that the fence violated the following: Saratoga City Code Section 15-29.020 - "Fencing within hillside districts." It is not disputed that this Corte section enacted restrictive fencing regulations in this Section, but permitted the Saratoga Pianni~ig Commission to establish alternative rules concerning designated neighborhoods in accordance with specific procedures in the Section. The violations were rtes of the Plannin Commission resolutions that follow, but the NAAB also found that the t g violations thereby violated-the City Code. (AR Bxh. 5, p.3.) Saratoga Planning Commission Resolution No. FE-90-001, Section 1(4) and Saratoga City Code Section 15-29.010(b), which require that fences have a minimum setback of 20 feet from the property lines except the front property line which shall have a setback of at least 3t feet. 't'he City Code is rnore restrictive, if the resolution does not apply. There is no dispute that the fences do not meet these requirements. ~ Saratoga I'launing Commission Resolution No. FE-90-001, Section 1(5), which requires that all fence plans be submitted to the planning Commission for review and approval.. There is no dispute that this was not done here. UKLjF,R ItE: PE'1'tT[ON FOR WRIT 2 CASir NO. CV 80750b APR-29-2003 TUE 12:51 PM WITTWERPARKIt~ 1 z 3 b 7 R'~ 9 10 Il 12 13 l4 iS 16 17 16 19 20 21 22 23 2A 25 26 27 2a FAX N0. 8314294057 P. 04/18 Saratoga City Codu Section 15-29.020 - "Fencing within hillside districts; 'which requires illat no fencing shall have exposed sharp points. There is no substantial dispute that there are clccorative items on the fence,-although petitioners claim these decorative. items are not sharp pvints ;end (~lr, with the other regulations) claim these are not unusual in surrounding 1)1'Q11Crt1CS' fcClceS. o Saratoga City Code Sectism 15-05.040, requiring compliance with land use regulations. i Saratoga City Code Section 15-95.0030, that violation of fencing regulations constitutes a public nuisance. (AR Exh. S.) As indicated above, these: factual findings are not the primary area of dispute. Subsequently, on Apri15, 20(?2, the City Attorney issued an opinion concerning the legal challenges of pelitioners to the validity and constitutionality ofthe enforcement of the regulations. The City Attorney opined that the resolution and its enforcement were valid, constitutional and not discriminatory. (AR Exh. U.) Petitioners challenge these conclusions most Clearly in their Petition. Petitioners filed the instant Petition on May 2, 2002. Motion to Sunt~l~ment Administrative Record. Petitioners moved on February l4, 2003, to Supplement the Administrative Record. 'The proposed supplemental materials primarily concern evidence of what the City has done to itrvcsligatc fenciltg corttplaints outside of this subdivision, and efforts by Petitioners' attorney after the hearing below to have the City investigate 27 other homes in Petitioners' subdivision witt- allegedly sirnilariy nonconforming fences. The City opposed that-motion, arguing the cviQ~ncc was irrelevant and also that it could have been previously submitted. The City sought, ho:~lever, if petitioners wera perntittcd to augment the record, to augment the record also with evidence that ttlc City lrad invcstigatcd.2 of the 27 homes when Petitioners supplied the dates A~:rt tllc fences had been built on those 2 Properties. The Court denied the Motion to Augment tote Record by order tiled April 1, 2003. Yctitioners rely an the augmenting evidence in their supporting memorandum, and the t:ity relies on tlie. respondinl;, augmenting evidence in its response. This evidence basically concerns whether there was discriminatory enforcement vf.the ordinance. This issue will be or;nt.k x~: rt: rrrtoty roR wxrr 3 CASE NO. CV SO75ob APR-29-2003 TUE 12 51 PM WITTWERPARKIN FAX N0. 8314294057 1 2. 3 4 S 6 7 s 9 10 11 12 13 14 15 16 }7 18 19. 20 21 ?.2 23 2~ 25 2G 27 2.A ~afern~d to below, as the Court determines that even with the additional evidence Petitioners would fsil to prove actual discrimination based on constitutionally invidious factors. )iscassion of=gal Issues 1. Standards of Review P. 05/18 Although Code of Civil Pmcedure §1085 is mentioned in the Petition at q6, the Writ is brought primarily for review of an administrative order under Code of Civil Procedure § 1094.5. 5cction 1094.5 provides: (b)'fhe inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order ar decision is not supported by the findings, or the findings are not supported by the evidence. (c} Where it is claimed that the findings are not supported by the evidence, in caties in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In al{ other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record. '1'herc is no showing supporting the "independent judgment" standard of review, -Even if the "i~idepcndent judgment" standard were applicable (as in cases where a vested right such as a professional license is at stake), "in exercising its independent judgment, a trial court must affc a strong presumption of coaectness concerning the administrative findings, and the party ch<ellcnging the administrative decisio~i bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda v. City of Angels (1999) 20 Cal.4th $OS, 817.) 1'etitioncrs essentially challenge two u'eas: {1) the application of the fence regulations to 1'ctitior-crs, and (2) the validity of the ordinances and resolutions, including the means by which tticy were adapted. The applicable standard of review for these discrete questions is best explained in Harro,nan Co. v. l oxen of Tiburon (1991) 235 Cal.App.3d 388, 392: "When the plaintiffs allege the town abused its discretion by denying their application..., review is limited to the administrative record to determine whether C)ftC)F,R kl;: PE,I'[Ti0i~1 Ft7t2 WRIT 4 CASs Nt_l. C;V 807506 APR-29-2003 TUE 12:52 PM WITTWERPARKIN FAX N0. 8314294057 P. 06/18 1 2. 3 4 5 6 .~ s 9~ 1U 11 12 13 ld 1S lb 17 !fi l9 20 21- 22 ?3 21 ?5 2G 27 28 the town proceeded in the manner requircd.by law or if there is substantial cvidcttce to support the town s decision- (Citations.) By challenging the town's interpretation and applicability of a statute, plaintiffs raise a question of law requiring an independent determination by the reviewing court. (Citations.) Petitioners do not actually challenge the factual determination that their fence did not :orrtply with the cited regulations. Substantial evidence thus supports that finding. Petitioners challenge to the City's action was distilled to its essence in their Reply, p. 1, as follows: "l, the fencing regulations set forth in Saratoga Planning Commission Resolution No. rl-9U-001 (the `Fencing Regulations'}are invalid, since they were not lawfully enacted; irttd 2. the enforcement proceedings against Petitioners are discriminatory and arbitrary, thereby vivlatindy the 14th A-nendment of the United Stares Constitution, and rendering the Fencing ltegulatians unenforceable." Tl~e first question of alleged flaws in enactment of the regulations is a mixed question of law and fact. The law that is cited requires certain notices and hearings and enactment by the correct body. T'he facts cancan whether the correct notices and hearings were provided and whether the Planning Commission could issue the Fencing Regulations. Under the standards ~ semmarized in Ilarron~n, supra, this Court can independently determine what kind of hearings, ncaticcs or other acts were required bylaw to enact the measures, and the correct body~to enact them. Under those standards, however; the facts about the notices and hearings must be contained in the record- The fact that the Planning Commission enacted the regulation is not ~ dispurcd. Petitioners alleged originally that correct notices and hearings were not provided, in the .time: frame of 1990 and before, and put the-City to its proof that notices and hearings were regularly pravided. Petitioners, however, produce no proof in the record, either by declaration o. t~,stimony, including in fife transcript of the hearing, that the necessary procedures for passage of the regulations were; not provided. The City relics on statements in the regulations that certify that such procedures were provided, and the presumption that they were provided. Moreover, tlt~ City contends that the Statute of Limitations bars Petitioner's challenge to the validity of the enactment of the regulations. attnt:R ur.•: rr-•rrrto;v i'ox R~iu~r s C115E NU. CV 80?506 RPR-29-2003 TUE 12:52 PM WITTWERPARKIN FAX N0. 8314294057 P. 07/18 2 .'} 6 9 l0 11 13 I3 In 15 16 17 is 19 20 21 22 ?3 24 25 2b 27 2F. 1'he second question concerns discriminatory and arbitrary enforcement of the fencing rcgulaiions. Pctitioricrs allege that enforcement occurred because of petitioners race or ethnicity as Asi~~ns. Thy procedures for finding such an "as applied" equal protection violation were outiinecl itt People v. Superior Court (4Villia»~s) (1992) 8 Ca1.App.4th 688, where it was contended that tl3e prosecution had issued a preemptory challenge under Code of Civil Procedure § 1'/0.G because the judge was black. Therefore, it was contended that Section 170.6 itself was not di:,crirninatory but, "as applied", denied equal protection. Similarly, Petitioners contend that facially iicutral fencing regulations, "as applied", singled out petitioners because they are Asian Americans. The court explained the applicable procedures: "pgttal protection claims can be divided into three broad categories.... The first and most common type is a claim that a stattate discriminates on its face.... [9J The second type of equal protection claim is that neutral application of a facially neutral statute hac a [racially) disparate impact.... [~] The third type of claim is that (state ojJficersJ are unequally administering a facially neutral statute...." (Citation.) IC is not contended that section 170.6 is discriminatory on its face or that its neutral application has a racially disparate impact. The equal protection claim tendered here is essentially that the statute cannot be utilized by a party to disqua{ify a judge on the .ground of group bias. "Court[s] ha[ve] found a denial of equal protection where procedures implementing a neutral statute operate(] to exclude persons ... on racial grounds ..." (Citation.) However, [t]he unlawful administration by state off cers of a state statute fair on its face,'resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful ducrlminntion.' " (Citation.) Just as in cases of peremptory challenges to prospective jurors, any party charging that his adversary has used a section.170.6 challenge in a manner violating equal protection hears the burden of proving purposeful discrimination. (Citation.) To resolve the claim of purposeful discrimination tendered here, we adopt "the prima facie burden of proof rules" enunciated in decisions dealing with equal protection claims in other contexts. Thus a party charging that an adversary has invoked a section ~170.G challenge solely on the ground of group bias bears an initial burden of establishing a prima facie case of invidious discrimination; if a prima facie case is established, the adversary then assumes the burden of demonstrating that the peremptory challenge was not predicated on group bias alone; if the adversary offers arace-neutral basis for the peremptory challenge, the trial court determines whether or not the charging party, here the defendant, teas established purposeful discrimination. (Citations.) nt:l]P.R KI's: FF1T"PION I:OI( vVRI't' t;ASF: N0. CV 8075CX~ APR-29-2003 TUE 12:53 PM WITTWERPARKIN FAX N0. 8314294057 P. 08/18 2 d 5, G 7 3 9 1~ 11 12 13 Id 15 16 1"1 I8 l) 2U 2l 22 ~3 za 2S 2b 2'J z~ In order to prevail, defendant must establish a prima facie case first by showing tlint the prosecutor exercised a Pere»+ptory ci+allenge to remove a ....member of a cognizable racial group, and the-t by showing facts and any other relevant circtsmsta-tces x~hich raise an inference that the prosecutor excluded the judge an account of his race. (Citatio+t.) As articulated by the California Supreme Court: "To establish a prima facie case, the ...party should first make as complete a record as possible; second, the ... party must establish that the perso[n] excluded [is a] metnbe(r] of a cognizable group; and third, the ... party must show a strong likelihood that the person isJ being excluded because of group association. [Citations.)" (Citation.) (Emphasis in Bold, added) On the Administrative Record here, including the transcript of the hearing before the NAAI~, there is virtually no proof adduced of an "element of intentional or purposeful discri+nination" beyond the alleged disparate impact on petitioners (nor is there evidence of disparate impact in this record). Bven considering the supplement to the record (which is not ,part of the record, the request to supplement having been denied), the proof would allegedly be that the City customarily investigates fencing complaints, and the City has not investigated Petitioners complaints' (about other fences in their development) which post-date Petitioners ~~ being ordered to comply with the ordinance. No evidence exists in the record of disparate impact or selective enforcement of the fencing regulations prior to the appeal of the order enjoining petitioners' fence, because there is no evidence that prior to that appeal that any citizen had complained about the other 27 fences. Importantly, there is a total absence in the record (or even in the supplemental evidence) of ar+y uvidencc of implied or expressed purpose or intent to discriminate. 1=or such an "as ai~plicd" challenge to regulations, evidence should exist in the record fot the court to review of racial animus or pretext: This will be explained in more detail below. 2. Valid't of Passa a of the A licable Re ulations Alleged Im ro ~r Dele ation of Powers and Other Alle ed Faults in Enactment. Petitioners claim the regulations they violated were not legitimately passed. The claim is that the Government Code and c~~c law make clear that only the city council can enact such a fencing regrtlation, not the Planning Commission, which enacted the regulation here. Petitioners claim that there was an invalid delegation to the Planning Commission of the power to issur. the fencing regulations for the Parker Ranch subdivision. This argument is based QRt)ksR i.F.: pE'1T1 t~N TOR WRIT ~ CASE N0. CV SQ7506 APR-29-2003 TUE 1254 PM WITTWERPARKIN FAX N0. 8314294057 P. 09/18 1 3 4 S 6 7 9 ll) 12 13 14 15 16 l7 !8 19 20 21 22 23 2A 25 26 27 2$ ~~n Govemmcnt Code §tiS853's requirement that regulations under Section 65850 [for "structures," "size and use of lots," "building setback," "the percentage of a lot which may be occupied by a building or structure"J be adopted by city councils, after recommendation of the pl~inning commission and hearings as prescribed in Sections 65854-65857. That is, such rcf,ulations are not to be adopted by the Planning Commission itself. The City Attorney's argument below, as here, was that the regulations here constitute an exception or conditional use under the zoning ordinance adopted by the City, and thus are within t];c po~vcrs of the Planning Commission to issue conditional use permits or variances if given that power in the relevant ordinances. The City relies upon Essick x City of Los Angeles (1950) 34 Cal.?.d G 14, G23. It was similarly contended in Essick that the granting of a use permit to the Forest Lawn cemetery constituted a "changing, amending or altering" of a zone which, under the city's charter (Los Angeles being a charter city) was to be done by council ordinance upon recommendation froze the commission, not by mere administrative resolution, as had been done. In Is'ssick, the Supreme Court held that the City could act by administrative resolution, nod ordinance, to grant the use permit.. The Court accepted the City's arguments "that the granting of a conditional use permit authorizes a change within, rather than of, a zone; that the 'changing, amending or altering' of a x.one [as would require an ordinance) means action affecting the entire zone, such, for example, as the changing of its boundaries or of its classification, as from rrsiduntial to commercial, etc.; that the use `deemed essential or desirable to the public convenience or welfare'... including cemeteries (as well as airports, schools, libraries, public utilities, etc..)... for which a conditional use permit is authorized by the Zoning Plan itself is e.ntircly di fferenf iu scope, nature, and purpose from. the change of a zone..., that, in consequence the provisions [requiring an ordinance] do not control the procedure to be followed when a conditional use permit is granted." (Essick, 34 Cal.2d at p. 622;) The L'ssick-court relied on LVheeler v. Gregg (1949) 90 Ca1.App.Zd 34$, 363, in which the court noted that eonditionai use penr~its or variances can be granted administratively. "lay the specific terms of the ordinance such uses are permitted in any zoning district sub}ect only io a.finding by the planning co~ttrnicsion, in the frrst instance, or the city council on appeal, that the use is essential or tlesirablc to the public convenience or welfare. The decision to grant a conditional use permit ~~ does not create a new zone.lt merely affirms as a fact the existence of the circumstances under ~~ which the ordinance by its terms prescribes that such permit shall issue." (Wheeler, icl.) I ORDER RL: P~TITIO?v' FOR WRIT' 8 CASF. NO. CV 807506 APR-29-2003 TUE 12:54 PM WITTWERPARKIN FAX N0. 8314294057 1 2 ~ 3 1 S 6 7 8 9 10 11 12 13 14 l5 16 17 18 19 2U 21 22 23 24 25 2G 2"I 2A T'he question presented is whether the Planning Commission's Fencing Regulations for k~e Parker Ranch subdivision are mare like a general zoning or planning regulation requiring :ouncil approval, its contcndc:ci by Petitioners, or, as the City contends, more like a conditional zse permit or variance, as in Essick and Wheeler. The l;iillside i'encing Ordinance here, 15-29.020 (AR Exh. E), appears to give the Planning Commission powers more like those delegated in Essick. The Ordinance proclaims certain requirements for fencing generally. Then the Ordinal makes these subject to exceptions by the Planning Commission for cases where (1) the fences Iess visible, (2) the fence is regt~ire(l far safety,r or, as here, (3) the Commission grants an P. 10/18 exemption foe "designated neighborhood areas" on petition of owners in the area and completion of certain procedures for issuance of a substitute regulation. The latter occurred here, and the fencing regulations at issue -Planning Commission Resolution No. FL'-90-001 (AR Exh. I•~ - wc-re issued for Parker Ranch. Although Petitioners once challenged whether a proper hearing and native occurred for the issuance o.f the regulation, the City pointed out that Resolution No. FIi-90-OOl recites and duly attests that "the Planning Commission.held a duly noticed public hooting." (AR lixtr.l=.) Petitioners adduced no proof that such hearing and notice did not occur. Petitioners claim that a Planning Commission does not have the power to pass "'deviations from ar amendments to the existing zoning ordinance"' (quoting, Matthew Bender ~c Co., California Real T:stcete I,uw arsd Practice, §265.01[1] (1997)), and contends the Cily did so hLre. The primary point of Petitioners in support of this argument is that the Planning C'ommission's Fencing Regulation is not an exemption. or conditional use permit because it is more restrictive than the City's Fencing Ordinance, 15-29.020. Petitioners point out that the fencing.regulationhos setback requirements (30 feat in the front, ZO on the side artd rear) whereas the Ordinance does not. It shou]d be noted, however, that t'n~ Urdirtance also required fences not be of a length of over 60 feet, and for parallel fences to be separated by ut least 5 feet, which would lead to some setback requirements for fences on lots of this size even if the Fencing Regulation did not exist. The City contends the Ordinance restricts enclosures to 4000 square feet aild the Fencing Regulation expands this to 50% of the lot. The City contends in its opinion blow that this would be 50% rather than 40°10 enclosure permitted l 1'herc is no evidence the pCritioners ever applied Cor an exception or variance Cor safcry reasons, although Choir petition and the argument below argued the Ioncc was nccossary for thv safety of petitioner's chiidron. OR!)6K RF: Pt°fITIUN FUt2 WRIT 9 CASE Nd. CV 807506 APR-29-2003 TUE 12;55 PM WITTWERPARKIN FAX N0. 8314294057 P. 11/18 1 2 3 4 5 6~ 7 8 9 to 11 12 13 !=1 15 l6 17 18 t9 20 21 42 23 24 25 26 z~ 'lf i the ordinance, which aseumes an average lot size in Parker Ranch of 10,000 square feet (at a .000 sq. feet enclosuie). (AR Exlt. U, p. 3.) In the City's Respondent's Brief here, the Gity now ,Mims that the regulation would allow G000 square feet enclosure instead of 4000, which -ssamcs an average lot size of 12,000 square feet (at 509'0). (Resp. Brief p.19 J Neither slculation makes sense. Assuming a typical rectangulaz lot, as the Subject lot is diagramed in L'xhibit C, one. example of a 12,000 square foot lot would have measurements of 120 feet by 100 feet. Allowing For the required total setbacks of 4U feet on the sides and 50 feet front to back world ;tllow for a maximum enclosure of 60 feet by 70 feet, or 4200 square feet. If the lot is narrotvcr, the enclosure would be smaller. It does not seem possible to conceive of a lot of the Siz+: estimated by the City that would permit such setbacks and a 509'0 or 6000 square foot enclosure a_ti the City claims. In fact, however, the lots in the subdivision appear to be of several oclcl sires. (AR Exh. Q, Exh. 2.) The regulation appears to provide an enclosure roughly rgeiivalcnt to or slightly more than the 4000 square feet allowed under the basic Ordinance, with emphasis orr achieving this by uniform setback requirements rather than by a set percentage. `l~hc fencing regulation also requires submission of fencing plans to the Planning Director, and requires a comprehensive landscape plan, whereas the Ordinance does not. On balance, the Court finds that the planning Commission Fencing Regulation at issue is equ'tvalcttt to the granting of the variance or conditional use permit that can be delegated to it under i'ssick, supra,-and Wheeler v. Gregg, supra, and not an amendment to coning. Statute of T,imitations. The City also argues that even if the Resolution were invalid, any protest of petitioners of tt~e regulations is barred by the following statutes of limitations: Government Code §65009(c)(1) [1?roviding "90 days after the legislative body's decision" to "attack, review, set aside, void, or :annul the decision of a legislative body to adopt or amend a zoning ordinance"] and Code of Cavil 1'roecdurc §1094.6 [for "any decision of a local agency... or of any commission, board, officer or agent thereof' that petition be brought "not later than the 90th day following the date on which the decision becomes final"]• Petitioners do not respond to the argument concerning the statutes of limitations in the Reply. A few questions exist, however, as to the statute of limitations• First, if a regulation is invalid "ab initio" because it was an improper delegation of po;vers, is it subject to the statute of limitations or dots it not continue tv be subject to attack at c)RDLx RE;: PI:1'1't•tON FOR W1;IT 10 cnse ivo. cv Ra~sa~ ...::...:,..~,.,.~..a ~.~,, ,,,,,,,,;,,,w~..,~.~.~.~.~,:_u: APR-29-2003 TUE 12:56 PM WITTWERPARKIN FAX N0, 8314294057 P. 12/18 2 3 4 5 G 7 s 9 10 I1 i2 1:1 14 IS 1G 17 is ]9 20 21 22 23 24 25 2G z~~ Z~ ny ~in,c? Apparently, in similar circumstances, courts have held that a challenge must be timely rou~lrt. In Kaufi,:an v. Gross & Co. (1974) 23 Ca1.3d 750, the Supreme Court reviewed several ascs concerning a similar argument that the applicable "statute of limitations cannot operate to rar z proceeding attacking a deed suffering from `jurisdictional' defects rendering it void ab nitio." ((d., at 754,) The court held that even an alleged "jurisdictional" defect in proceedings anderlyirt6 a tax deed, such as there a failure to provide notice, may not be raised after a r,,;tsonablu statutory period of limitation. (Id.) (See also, San Marcus Water Dist. v. San Marcos Unified School Dist. (1987) 190 C.al.App.3d 1083,1085, fn.l [statute of limitations prevents recovccy of fee that was void all initio as a gift of public funds]; cf. Estate of O'Dea (1973) 29 Cal.App.3d 759,769.) While in an egregious case of a hidden, wrongful delegation of powers it may be improper to apply a statute of limitations, it does not appear here that the regulation wac cat~c~.aled or that any owner of property in the subdivision challenged the fence regulation within tlic 90 days permitted. Thus, application of the statute of limitations to the instant challenge is just. .Second, there could be some difficulty in determining whether this is the decision of a "legislative" body under the Government Code statute of limitations or of an administrative "ahcncy" under. Section 1094.6. 'fltis, in effect, is the issue presented in ilie preceding section, ar~d resalved by determining that this was a proper administrative decision under Essick, supru. in either case, however, the limitations period is 90 days. Petitioners challenge to this regulation c«mes more than a decade after it was passed. 'Ctzird, it appears that Petitioners did not buy their property until 1991 and the regulation was adopted in 1990. They could argue that they would not have had standing to challenge the regulation in 1990 when the statutory period ran. Yet, the argument that Petitioners were not yei hroPerty owners cuts the other way. They bought the property with the regulation already cristing that affected its fencing. 'they had the option, which then-current property owners did not, that if they abjectcd to the regulation, to not purchase the property. Petitioners nowhere orl;uc or show that the regulations were concealed or there was reason for them to be unaware o the l~encing Regulations. (See, City of West Hoftywood v. Beverly Towers, Inc. (1991)52 Ca1.3c 1184, 1194 [constrrretive notice by buyers presumed of governing zoning regulations); Bright Ueveloprtrent v. City of Tracy (1993} 20 Cal.App.4th 783, 798 ["An ordinance, policy or standa URI3~:R RE: PE"1'TT[UN F'OR WRlT 11 CAS(? NU. Gv SO'150G ... ._.... ... .~... ..t....~.... . K`~:w V.... ... APR-29-2003 TUE 12:56 PM WITTWERPARKIN FAX N0. 8314294057 P. 13/18 1 2 3 4 5 6 7 8 10 11 12 13 14 15 1G 17 18 1~ ~0 2i 22 23 2A 2S 26 27 2a f a pablic agency which is written and accessible is reasonably calculated to apprise interested attics of their responsibilities nett would suffice to supply constructive notice."].) 'fhc. City's Statute of Limitations objection is thus well taken and is SUSTAINED, and provides another ground for rejecting Pctitiuuers argument thatthe regulations were improperly ins>cd. 3, piscriminato~ Enforcement as. Violation of Due Process and E ual Protection l~~tcte of Discrintinatoty Enforcement As set out in Section 1, above, the Court finds no evidence in the record of any outright ~xhnssion of discriminatory intent by any City officer. Similarly, the Court cannot find discrimination to be implied or inferable in the City's allegedly inconsistent enforcement of the fer_cing orclinanee. Moreover, the Court's order of March 27, 2003 denied Petitioner's motion to subrttit supposed supplemental evidence to the record, which purports to be evidence of alleged inconsistc;ut enforcement. Petitioners point out that they raised before the NAAB the alleged fact that some 27 other }tonics in their development also have fences that, if built after the passage of the Fencing R~'gulations, violate these regulations. (A.R Bxh. Q at Exhs. 1, 2, 3; and Exh R at pp. S, 12-17) In the hearing, the City's attorney i-~vited petitioners to complain to the City about the fences on i other Properties, as a citizen had complained about theirs. (Exh. R at p. 17J That is the extent { of ittfurmation in the record. The supplemental evidence (which the Court denied) consists of letters from Petitioners' counsel over the two years following the hearing urging the City to investigate the other properties; the City's request for more information about the dates on which the other fences ~erc built; and evidence which allegedly shows that the City investigated other fencing violatitms outside of this development without being provided dates. The City proposed evidence in reply that showed it did investigate two homes when plaintiffs were able to provide dates on there, in which one removed the fence and the other showed a variance had been l;rtntecl. As set out above, this is hardly enough to make out a case of discriminatory enforcement b:tscd an Asian ethnicity, even Overt; the supplemental evidence admitted. First, on the facts, there is no proof that the other homes with alleged nonconforming fences were not owned by Asian-Americans. 't'he schedule attached a_e Exhibit 1 to Petitioners' own appeal brief to the ORllL•'It RE: P6TffION FQR WRIT 12 CASE NCI. CV 8U75U6 APR-29-2003 TUE 12:57 PM WITTWERPARKIN 1 1 2 3 4 S G 7 9 10' ll 12 13 14 1S 16 l7 18 19 20 21 2Z 23 24 25 26 27 28 FAX N0. 8314294057 P. 14/18 '~AAI3 (AR F,xh_ Q) show that of the 27 other homes which Petitioners claimed had non- :ouforrning fenccs;'some were owned by persons with surnames of Tam, Kv, Chan, Yau, Chang, ]'a acid Chian. While these may not be of Asian origin, Petitioners present no statistics of race or ctk~nicity that form arty sort of prima facie case of disparate impact. in fact, in the opening brief, Petitioners acknowledge this by arguing they were "'singled out' by Respondents based on their ethriie origin, or same orlter arbitrary, invidious criterion which has resulted in the law being aPi'licd to them unequally." (Opening Brief, p. 8.) They argue only that "most" of the 27 other i~otnes wrre not owned by Asian-Americans. (1d.} Petitioners do not argue what arbitrary or invidious criterion was applied to them other than t'ace. Petitioners do not show, indeed, what other criteria except race (ar now gender) are considered invidious and subject to strict scrutiny for equal protection purposes. (Clark v. Jeter (1988) 486 U.S. 45G, 4ti1 [discriminatory cl~SSifications are usually lawful and not subject to ~ strict scrutiny if not based on race or national origin].) Therefore, the facts before the City on the record were only one complaint about a fence of P:titiortcrs, with no complaints having been lodged against 27 other alleged non-confotnting fences. Moreover, these other fences may have been built before the regulation went into effect and be owned by persons of unknown ethnicity. Finally, the complaints by Petitioners about those other fences are of questionable relevance. Not only did they come after the hearing, but th4 complaints do not seem to be motivated by offense or argument that the other fences ought to l;c removed, but rather scent generated only to support an argument that Petitioners' non- eattforrrting fence be allowed to remain. The Court dots not find discriminatory enforcement or an "as applied" violation of equal `protection by disparate impact upon Asian-Americans on this record. Intentional Discriminator~Intent Must Be Shown Even if disparate impact on Petitioners as Asian-Americans had been shown, it is r:e~ccssary to make some showing of intentional discrimination. Among many cases explaining this is l~irn v. Workers' Comp. Appeals Bd. (1999) 73 Ca1.App.4th 1357. In Kim, petitioner rcclugsted reversal of an administrative ruling of the Workers' Compensation Appeals Board that had made interpreter's fees part of the costs included in the $16,0001ittut on recovery of living exp~:ttscs. 't'his ruling, of course, would disadvantage any person who spoke another language. ORgl:R IZE: PETITION ROR WRIT 13 CAST NU. CV t307506 APR-29-2003 TUE 12:58 PM WITTWERPARKIN FAX N0. 8314294057 P. 15/18 he cut~it 1•~cld that such disparate impact was not determinative of violation of equal-protection, 2 saying: 3 4 5 6 7 9 10 11 12 l3 14 15 IG 17 18 l~ 20 2l 22 23 ?a 25 2f 27 2S Most taws which run afoul of the equal protection clause discriminate explicitly between groups of people, but the clause also might apply to laws which, though evenhanded on their-face, in operation have a disproportionate impact on certain ~,roups. (For example, a required minimum height for police officer candidates may disproportionately impact female candidates.) l3c-t neither explicit discrimination nor discrimination by "disparate impact" is unconstitutional unless motivated at least in part by purpose or intent to harm a protected group. (Arlington Heights v. Metropolitan Housing Corp. (1977) 429 U.S. 252, 265 [97 S.Ct. 555, 563, 50 L.Ed.2d 450] ["Proof of racially discrimiruttory intent or purpose is required to show a violation of the Equal Protection Clause"]; Washington v. Davis (1976) 426 U.S. 229, 242 [96 S.Ct. 2040, 2049.48 L.Ed.2d 597] ["Disproportionate impact ... is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule that [suspect] classifications are to be subjected to the strictest scrutiny ...."]; People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 7l 1 [10 Ca1.Rptr.2d 873] [" "'[O]fficial action [is] ... not ... unconstitutional solely because it results in a racially disproportionate impact.... Proof of ... discriminatory intent or purpose is required to show a violation of the Equal Protection Clause..." "'].) (Id., at 1361-1362, emphasis added.) As shown in ih~ quote in Section 1 of People v. Williams, supra, 8 Ca1.App.4th 688, assuming a prima facie shotiving of'intentional discrimination was made by showing disparate impact, this could be opposed by a showing of a neutral purpose for the act in question. The City here relics on the record, clearly, which showed no complaints about fences at the other homes. or irifo.~rnation of the dates those fences were built. Even in the supplemental evidence, Petitioners do not show- they ever previously complained about other homes, or on what dates the other fences were built. The City caught Petitioners in the act of building their fence. Petitioners r~><1ke no attempt to refute this evidence which shows grace-neutral reason why the regulations wet.; enforced against Petitioners. The City cites other cases which sinularly have held there to be lack of proof of racial animus. (City of Banning v. Desert UutdoorAdvertising, Inc. (1962) 209 Cat.App.2d 152, 155 ["A discriminatory intcut or purpose is not presumed. (Citat.ions.) To the contrary, the good faith. of those enforcing the law and the validity of their action in the premises are presumed. (Citation,)1'he burden of proving discrimination is upon the complaining party. (Citation.)"].) ~r-:r~zx >z~:: tai: t'ITfON' 1~OR VVRTI' 14 CA}L' NO. CV X07506 APR-29-2003 TUE 12 58 PM WITTWERPARKIN FAX H0. 8314294057 P. 16/18 2 3 4 S G 7 $ 9 10 ll l2 13 14 15 lb 17 18 "!n a prosecution or law enforcement proceeding arising out of the violation of a statute, he mete showing o~ a failure to institute such a prosecution or proceeding with respect to other ;sown violations does not require a finding that the prosecution or enforcement proceeding in luestion was prompted by intentional or gucposeful discrimination. (Citations.)" (Id.) The ~ituzlion is similar to that in City etc. of San Francisco v. Durton (1962) 201 Ca1.App.2d 749, 755, where the court said: Defendastts claim that their constitutional rights were violated because no other action ... has been comTnenced against other property owners in the azca despite known infractions of the zoning ordinance. ....But in Wade v. City & County of San Francisco (1947) 82 Cal.App.2d 337 (l$6 P.2d 181], the court painted out "that mere lax enforcement of a law yr ordinance violates no constitutional rights" (p. 339) and that... it is necessary...to... allege, and there must be proved, an enforcement... which is intentionally ciiscriminatoty. The court said... (p. 339): "ln each of those cases the distinction between mere laxity of enforcement and intentional or purposeful discrimination is recognired and it is held that while mere laxity of enforcement, although it may result in the unequal application of the law to those who arc entitled to be treated alike, is not a denial of equal protection in the constitutional sense, it is otherwise in the case of deliberate or intentional discriminatory enforcement which is a denial of the equal protection guazanteed by the Constitution." .... Enforcement of ordinances of this kind must start somewhere. Assuming the city had "permitted" others to violate the ordinance, mere inaction is not Necessarily the result of an intentional or arbitrary scheme to discriminate against defendants. Without more the city may not be precluded from enforcing the ordinance against defendants. "Permitting some persons to violate a zoning regulation. does not preclude its enforcement against others. (Citation.)" (Citations:) (1'd.) 19 20 21 22 23 2a 25 2G 2'1 28 (Sec also, ?'own of Atherton v. Templeton (1961)198 Ca1.App.2d 146, 155.) Thcrc is also authority that the burden of proof for showing racial animus is high. Both parties cite Kawaaka v. City of Arroyo Grande (9th Cir. 1994) 17 F.3d 1227, 1234, ~ Lout ati the City points out, the court did not find violation of equal protection to persons of Japanese ancestry in a city's water moratorium there despite a record of actual statements icy a city council member about "Japanese people." There is no equivalent showing here - no showing at all - of animus based ati race. There is no showing of selective hroseeution for other invidious or unjustifiable basis. UIcp~R 1:T: PF.1'ITtON rOR WRIT I S C:ASL NO. CV 807506 APR-29-2003 TUE 12:59 PM WITTWERPARKIN FAX N0. 8314294057 P. 17/18 1 2 3 ,~ S t~ i 7' 14 11 ]2 13 14 la 1G 17 1£ 19 20 2t ?.2 23 24 'l5 2t 27 ?.S CONCLUSION For the al.~ove reasons, the Petition for Writ is DENIER. 1~atLd:_.._A~R 2 8 700 O1tla~R 1tE: PE"fiTION FOR ~1R1T CASL NO. CV 807506 V~llLU~1M F. MAl3TlN William 1r. Martin 3udge of the Superior Court 16 APR-29-2003 TUE 12:59 Phi WITTWERPARKIN FAX N0. 8314294057 IN THE SUPERIOR COUR7 OF THE STATE OF CALIFORNIA 1N AND FOR THE COUNTY OF SANTA Cl<ARA Piaintifi: TSUNG-CHUNG WU, et al Defendant; CITY OF SARATOGA, eta{ PROOF Or SERVICE BY MAIL OF: ORDER RE: PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS Pr 18/18 (ENDpRSEO) APR ;~ 8 2003 KIRI TOHR~ cn+cr ExewtNO on~r~c~erk 5uporior Court of GA County of 6enla Clara BY ~.g.. DEPUi'Y CV$07506 f: CLERK'S CCRTIF{GATE OF MAILING: 1 ~ e f~lthafe a dnin a sealed enhvelope addressed as shown of this document was mailed first clas.., postag y P p below and the document was mailed at San Jose, California on X128 2003 KIRI TORRE, COUNTY CLERK Robert 1'orio, Esq. CARR i~ FERREI.L, LC.P 2?.25 East Bayshore Road, Suite 200 Palo Alto, CA 94303 BY R~NE~ HOGEF35 Deputy RENEE ROGERS William T. Parkin, Esq. WITTWER & PARKIN, LLP 147 South River Street, Suite 221 Santa Cruz, CA 95060 `_ _ _~ EXHIBIT C 1 2 3 4 s 6 7 8 9 to 11 lz 13 14 15 16 17 is 19 20 21 22 23 24 25 2.6 27 2s William B. Clayton, Jr. (SB #60811) CLAYTON & McEVOY, P.C. 333 W. Santa Clara St. #950 San Jose, California 95113-1717 Telephone: (408) 293-9100 Attorney for Plaintiff, Parker Ranch Homeowners Association Jolie Houston (SB#171069) BERLINER COHEN Ten Almaden Boulevard, Eleventh Floor San Jose, California 95113-2233 Telephone: (408) 286-5800 Attorney for Plaintiffs, John East and Pamela East r-. .. _ j L_ i ., T t .` L_ J '~' -~, „„ ~,:, !. - , _ ~ f:., ~~~ ~~„ y~7 ~~U^Y ~~~~ °~ IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA PARKER RANCH HOMEOWNERS ASSOCIATION, PAMELA EAST, JOHN EAST Case No. CV 797015 FIRST AMENDED COMPLAINT FOR PERMANENT MANDATORY INJUNCTION Plaintiff(s), V. TSUNG-CHING WU, YUH-NING CHEN, DOES I through V inclusive; Defendant(s). Comes now Plaintiff PARKER RANCH HOMEOWNERS ASSOCIATION (PRHA) and Plaintiffs PAMELA EAST and JOHN EAST (EAST) and allege as follows: GENERAL ALLEGATIONS 1. Plaintiff PARKER RANCH HOMEOWNERS ASSOCIATION (PRHA) is, First Amended Complaint For Permanent 1 Mandatory Injunction 1 ~ z 3 4 5 6 7 e 9 10 and at all times mentioned in this Complaint has been, a nonprofit mutual benefit corporation existing by virtue of the laws of California and is the residential homeowners .association for ~ the common interest subdivision known as the Parker Ranch. 2. Defendant's Tsung-Ching Wu and Yuh-Ning Chen (WU/CHEN) are residents of the County in Santa Clara, State of California. 3. Parker Ranch is a "Planned Development" as .defined in Civil Code § 1351 (k). All properties within the development, including individually owned and separate interests are subject to a Declaration of Covenants, Conditions and Restrictions initially recorded ~, September 20, 1979 in the office of the County Recorder of Santa Clara County as Instrument 11 lz 13 14 15 16 i7 la 19 20 21 22 23 24 2 5' 26 27 28 No. 6503842, Book E 805 Page 326.(CC&R's) (A true and correct copy is attached as Exhibit 1 and incorporated by reference as if set forth in full.) 4. Plaintiff Pamela East and John East are owners of record of residential real property located within the Planned Development of Parker Ranch. commonly known as 12147 Parker Ranch Road, Saratoga, CA 95070. 5. Plaintiffs are unaware of the identities of capacities of Does I through V inclusive, and sue said defendants by such fictitious names, alleging that they are responsible in some method, manner, or means in performing or preventing the performance of such actions and obligations herein alleged, and Plaintiffs pray leave to amend this complaint to allege the true names and capacities when they have been determined. 6: Each of the Defendants are the agent, employee, representative, contractor or property co-owner of the other defendants, and in performing the actions, failing to perform the actions or otherwise conduct themselves in a manner consistent with the covenants conditions and restrictions. of Parker Ranch Homeowners Association were acting in such course and First Amended Complaint For Permanent 2 Mandatory Injunction 1 2 3 4 5 6 i 7 s. 9 to 11 lz 13 14 15 16 17 la 19 20 21 z2 23 24 2s 26 27 2s scope of the relationship herein alleged with the full and complete authority of the other Defendants. 7. Subsequent to September 20, 1979 the CC&R's of Parker Ranch have been I amended as follows: a. "Modification of Declaration of Restrictions" recorded Apri123, 1982 in the. office of the County Recorder of Santa Clara County as Instrument No. 7345104, Book G742 Page 383. [Exhibit 1 (a)] b. "Modification of Restrictions" recorded July 11,1984 in the office in the County Recorder of Santa Clara County as Instrument No. 8122210.[Exhibit 1 (b)]. c. "Amendment to Declaration of Covenants, Conditions and Restrictions" recorded in May 22, 1991 in the office of the County Recorder of Santa Clara County as Instrument No. 10912062.[Exhibit 1 (c)]. 8. Defendants WLJ/CHEN are the owners of record of residential real property located within the Planned Development of Parker Ranch commonly known as 12161 Parker Ranch Road, Saratoga, CA 95070; APN 366-43-007. 9. The Declaration of Covenants, Conditions and Restrictions, as amended, constitute equitable servitudes that inure to the benefit of, and are binding upon, all owners of lots with in the Parker Ranch Planned Development, including Defendant owners. 10. Pursuant to the CC&R's. ARTICLE V BOARD OF DIRECTORS, Section 5 Powers and Duties: "The Board (and Declarant until election of the first Board of Directors) shall have the following authority and powers to be exercised for the benefit of the Association and owners:" Subsection (i): First Amended Complaint For Permanent 3 Mandatory Injunction 1 2 3 4 5 6. 7 a 9 to 11 12 13 14 15 16 17 is 19 20 zl 22 23 24 2s 26 27 2s "To collect the delinquent assessments by suit or otherwise and to enjoin or seek damages from other owners for violations of the covenants herein contained on the part of the owners to be performed or for violations of the rules hereinafter referred to";(Exhibit 1, p. 6) 1.1. Pursuant to the CC&R's, , ARTICLE X GENERAL PROVISIONS, Section 1. Enforcement: "The Association, the Declarant, the City, and any owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereinafter imposed by the provisions of this Declaration: Should legal action be necessary, the prevailing party shall be entitled to recover its court costs and attorney's fees in addition to any other judgment or order sought." (Exhibit 1, p. 17) 12. Pursuant to the Bylaws of PRHA, ARTICLE VIII, Section 1. The Board of Directors shall have the following powers: (a) The powers set forth in Section 5 of Article V of the Declaration; (d) The power to exercise for the Association all powers, duties and authority vested in or delegated to this Association and not reserved to members by other provisions of these Bylaws, the Articles of Incorporation or the Declaration; A true and correct a copy of the PRHA Bylaws is attached as Exhibit 2 to this Complaint and incorporated herein by reference as if set forth in full. 13. On or about August 8, 1990, the Planning Commission of the City of Saratoga adopted Resolution No.FE 90-001 Fencing Rules for Parker Ranch (Resolution) substantially identical to the provisions of the "Amendment to Declaration of Covenants, Conditions and Restrictions filed for record in the Office of the Recorder of the County Santa Clara as First Amended Complaint For Permanent 4 Mandatory Injunction 1 2 3 4 5 6 a 9 to 11 12 13 14 15 16 17 is 19 20 2i 2a 23 24 25 26 27 28 Document No. 10212062 on May 22, 1991.(Amendment) (A true and correct copy of the ,Resolution is attached as Exhibit 3 to this Complaint and incorporated herein by reference as if ~ set forth in full.) Both Resolution FE 90-001, and the Amendment require that all fences be set back a minimum of twenty (20) feet from property lines, except fences shall be set back thirty (30) feet from the property line (the street side); proposed fence plans shall be submitted to the Planning Director of the City of Saratoga and to Parker Ranch Architecture Review Committee for review approval; and the fence styles shall contain no spikes or pointed edges: 14. After the commencement of this action, pursuant to Civil Code Section 1354(d) the Parties have stipulated in writing to be ordered to the Alternative Dispute Resolution process ofnon-binding judicial arbitration conducted under the supervision of this Court. FIRST CAUSE OF ACTION (Violation of Covenants Conditions and Restrictions) 15. Plaintiffs incorporate by reference paragraphs 1 through 14 of the General Allegations as if set forth in full. 16. On or about November 10, 1999, Pamela East, a property owner at Parker Ranch residing at 12147 Parker Ranch Road, Saratoga, CA, wrote to Defendants WU/CHEN to express concern over the intended installation of fences on their property. Ms. East specifically advised that "we do not feel that your intended fencing adheres to the rules and goals of our neighborhood". Defendants did not respond to the letter and continued with the unauthorized installation of the noncompliant fences on their property. 17. On or about November 19, 1999, Pamela East, initiated a written inquiry to the Architectural Committee of PRHA Board of Directors advising that a fence was being built First Amended Complaint For Permanent 5 Mandatory Injunction 1 2 3 4 5 6 7 s 9 to 11 12 13 14 15 16 17 is 19 20 zl zz 23 24 25 26 27 28 which she believed was in violation of the CC&R's of the homeowners association. On December 6, 1999, Carol Greenleaf, President of Parker Ranch Board of Directors advised Defendants WUCHEN that the Board of Directors and Architectural Committee had found Defendants to be in violation of Article IX Section 6 of the CC& R's. She further confirned that copies of the restrictions had been personally delivered to them in July of 1998: She confirmed that "The Parker Ranch Board of Directors and the Architectural Control Committee '~, voted unanimously to demand the removal of the existing fence. Any reinstallation of the fence must comply with the CC&R's". 18. Defendants repeatedly refused to comply with the request of PRHA Board of Directors and its attorney to bring their property into compliance and to remove fences ,erected in violation of the fencing standards set forth in the Amendment to the CC&R's, and as adopted by City of Saratoga Resolution No.FE 90-001. 19. On or about May 5, 2000 a Notice and Order to Abate Public Nuisance (Notice) at 12161 Parker Ranch Road, Saratoga,•California, 95070; APN #366-43-007 was issued. Said Notice was duly served on Defendants on May 12, 2000. Defendants appealed the Notice and appeared at the Appeal Hearing on July 19, 2000. On September 14, 2000, the Nuisance Abatement Appeals Board for the City of Saratoga issued its decision following Hearing of Appeal. In so doing, it rendered Findings of Fact as part. of its decision. A true and correct copy of the decision is attached to this Complaint as Exhibit 4. 20. Despite the provisions of the CC&R's, as amended; the Bylaws, and the abatement proceedings of the City of Saratoga, Defendant owners have taken no corrective action concerning their violations and have refused to do so. As a result, Defendant owners are in violation of the CC&R's and continue to be in such violation in that their fences erected on First Amended Complaint For Permanent 6 Mandatory Injunction 1 2 3 4 s 6 7 a 9 to 11 12 13 14 15 16 17 18 19 20 zl z2 23 24 25 26 27 2a their property: a) Violate the setback requirements which require a fence not to be installed. within thirty (30) feet of the front street property line; [Amendment Article IX, Section 6 D]; b) Violate the setback requirement which require a fence not to be installed within twenty (20) feet of property lines; [Amendment Article IX, Section 6 D]; c) No fence plans were submitted to either PRHA Architectural Control Committee or the Planning Director of the City of Saratoga for review and approval. [Article IX, Section 6 E]; d) The fence style is in violation of styles mandated. [Article IX, Section 6 G]; e) No more than 50% of the lot area, exclusive of any portions designated as open space, maybe enclosed by a fence.[Article IX, Section 6 A]. 21. As a proximate result of Defendants' breach of the CC&R's, as amended, Plaintiff has incurred and will continue to incur attorneys fees, costs, and expenses in connection with the enforcement of the clear provisions of the CC&R's, and Defendants' violation of them. 22. Plaintiff is entitled to recover attorneys fees, costs, expenses incurred in enforcing the CC&R's. 23. The continued violation of the CC&R's of PRHA, as amended, by Defendant owners interferes with the Association's members' quiet enjoyment of their lots in the development. 24: Defendant owners continued violations of the CC&R's, as amended, are offensive, annoying, and defy the authority of the. duly constituted PRHA to enforce the First Amended Complaint For Permanent 7 Mandatory Injunction 1. 2 3 4 5 6 7 e 9 to 11 12 13 14 15 16 17 la 19 20 21 22 23 24 25 26 27 28 restrictive covenants and equitable servitudes affecting all properties in the Parker Raneh Development. 25. Continued violation of the CC&R's, as amended, by Defendants, and each of them, will irreparably harm Plaintiff and its members by diminishing the desirability, attractiveness, usefulness, and economic value of the lots and homes located within the .development; obstruct the open space guidelines of the development; interfere with the unobstructed passage of deer and other non-domestic animals through the development and by making future enforcement of the CC&R's with respect similar violations impractical, if not impossible. This defiance by Defendants and each of them of the clear intent of the Homeowners Association and its members as expressed by the adoption of the CC&R's and ', the amendments thereto, their continued ownership and occupation of their property with full knowledge of the applicable restrictions, is open hostile and in direct disregard for the equitable servitude which binds and conditions-their use of their property. 26. Violation of the CC&R's, as amended, by Defendants, is repeated and continuous and will, therefore, require a multiplicity of actions and constitute undue hardship to the Plaintiff and all its members, if permitted to continue. 27. Plaintiff has no adequate remedy at law to compel Defendants to comply with the CC&R's, as amended, nor can Plaintiff be compensated adequately for the injuries by an award damages, in that it will be impossible for Plaintiff to determine the precise amount of damages it will suffer if Defendants conduct is not restrained; the usefulness and economic value of the subdivision will be substantially diminished; efforts of other owners to sell or lease their properties will be prejudiced; and owners of nearby properties (all members of Plaintiffs association) will be subject to the unsightly appearance of illegal fences in violation of setback First Amended Complaint For Pernzanent 8 Mandatory Injunction 1 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 zo 21 22. 23 24 25 26 27 28 requirements, and styles, such that their use and occupancy of their owri properties will be impaired. Wherefore Plaintiff PRHA prays for judgment as follows: 1. For a permanent mandatory injunction directing Defendants and each of them to remove the non-compliant and unauthorized fences and to restore their property to its condition prior to the installation of said fences or in the alternative to bring them .into compliance with the PRHA CC&R's as amended. 2. For attorneys fees and costs necessary and incurred in prosecuting this I action. 3. For such other relief as a court considers just and proper. (Dated: ~l,ll_t~ ~3- ~av 1 (Dated: ~ ~~„~ First Amended Complaint For Permanent Mandatory Injunction 9 Attorney for the Plaintif~ v Parker Ranch Homeowners Association BERLINER COHEN By ~ } Jolie ston Attorney for the Plaintiffs John East and Pamela East EXHIBIT 1 . ... • ~ .- ;. . . j .. . ~ t• .I DECt.AR.\TIOii ;~;~~, C,,;~ G;:C, 6103, a~ ~jTY Dc ~':.:TOGA CUVEP+~\tiTS, CONDITIONS A;:D RESTRICTI:('ti5 E &OS ~:;; 32S Tl!IS DECLARATIOtl made on the dace hereir.afte: set forth by 1~j PSlC:!::r,I. }C2 L::C, a oartrers`tio, L-r .T~~CIC R. E;.AI:hnFL'., P.~. rc~l \?~.i:`; TITIE Cic71PAt•J1', /' a con ^a icn 1 I..) hereina~er referred to as "Declarant". v~ I uITNESSETit: h . :;, ~ ~ CITY OF SAP.ATOCA ! '•13;77 Fruitvalc Ave. ~•^~ •' r ~• 65U3~42 1••~'• ~~~t TO C:~ CHARGED ! Saratoga, CA 95070 ~~ . l.~~Dn""'~ W'TH .~ a ,~ ' ~~ j' !~. '. ,~ ~'~~ ; :.~ti l:i!I:REAS, Declarant is the os.~ter of certain property ir. [he County of Santa Clara, State of California, which is acre parCicularly described as all Lots as shown on the subdivision ma, of that certain Tract No. 652E kno•.rt as THE PARKER RA.`IC}t, Unit filed in the office of the County Recorder of Santa Clara County,. California, on AUc~ UC 7 Z 3 1979 in hisp Book .¢¢Q , at Pages Z 5. 2 ~~ f'' z L, hereinafter .referred co as "Subdivision Map". ptOl: T}iEREFORE, Declarant hereby declares tha: all o.` the property described above shall be held, sold and con~•eyed, subject to the following caser,;ents, restrictions,'covenants and conditions ~:hich are for the purpose of enchanting and protecti;~, the value, attractiveness and desirability of, and vl;ich shall r;:n with, the ~_ real property and be Sinding on all parties having ar.~ riEht, title or inreresC in the described property or a^;~ part thereof, their heirs, successors ar.d assigns and shall inure to the benefit of each o:.•ner thereof. ARTICLE I DEFIt:ITIO". Section 1. "Associar.ior." sha'_1 mean and re:e: to- TttF. PARKER 1 ~~ PJ1t:CN }tOP(F.OIJt:ERS ASSJCIATIOil, its successors and assif.as. Section 2. "o-..•ner" shall. mean a::d refer cc the record owner, vhethcr one o: more persons ,or entities, of a fee s!-; '.e title to any let ::hich is a part of the property, includi;;p, con:rac: sellers, best excl~:ding those having such interest cerely as secu:i.y fen the perior- manc~ of an obligatio. Section 1. "['roper[;•" shall meal: ar,c! nett: :n that certain real property hereinbef~:e described and such ads:i:ioas.thcr~•to as may i:ereafcer be brought ~.•ithin the jurisdiction of ch•_ ,association b•: annexation. Section ~~ "Com.~ion Area" shn!1 r:can all r:~l proi,er,~• c~-iect b: the Association for the use and enjoyr.,anc of tine ~;,-;ors. Thr Cc+r^o^ are,; tc• Ur•u•.nrJ by the Association at the ci!a~: of :'`e conveyance iti j - 1 - 1 ~~ , ~, 1 f- } ~. E 805 r::32'7 •' [h?t designated on the subdividion mop kno:m as _PA f~ }( F~ 1 / $~~{_, Tract ho. ~~~~_, Parcel(s) ~_,~ ~ 1,X1 San[a Clara Couney, California, as "Con•,mon Acea", 1 Section 5. "Lot" shall mean and refer to nny plot of land show;: upon the recorded subdivision map of the property with the exception cE the Consmon Area. Section 6. "Declarant" shall mesa <,,^.d refer to B~A CkWELL, ~~-~4r2p~?~L?SC!iP ~ VA L. LEY i / TLF ~Li~if? GL LORD and.-its successors and assigns 1E such s•,:ccessors ur assigns should acquire more than one u::developed lot from the declarant for the pur- pose of development. Section 1. "Iortgage" shall mean and include a deed of trust as well as a mortgage in the conventional sense. Section 8. "Dfortgagee" shall mean and includo a beneficiary under or holder of a deed of trust as well as a mortgage. Section 9. "cfer,:ber". shall mean ant! refer to every person or entity who holds membership in the Association. Section 10. "[toarit of Directors" sl:a' 1 mean a re~•erning body of the Association, as hereinabove provided, elected pursuant to the provisions of the Declaration. ' Section 11. "Structure" shall refer to a:~y improvement erected o; constructed on tiro property with the exception of the ir.~proved street itself. Arric[.e lI EfhitDcNS APPURTEi4r\.+T TO PRO:"ERTIES Section 1. Upon the conveyance of any pcrtion o: the property, each grantee shall accept the same su'oj~ct to t!:e covenaits, conditions and restrictions herein and shall agree to be bo::nd by the same. The burdens imposed by the covenants, conditions and restrictions in this Declaration arc to be imposed upon the grant.ec eF all lots, will consti- tute a general schc-c for the benefit of all ewr.ers and will be imposrd u?on grantees Lj express covenants, ir. deed:: tFe;~ receive a;:d shall con- stitute covenants running with the laid er equita5le servitudes on the land, as the case may be, and arc intended to be ti~din~ upon Cite future os.^ter of an interest in the herein described prcpc•:ty. A.ny broach or interference with any of the rights or benefits herein e_;ablished may be enjoined or abated by appropriate proccedin~,s b;~ Declara;_, its successors or assigns, the Association, or ar.y c;l:er ew;~er. Section 2. Failure to enforce an;' condition er covenant herein shall not constitute a waiver of the right ce de so thr.rcafter. - 2 . • ~ .: - ', ~- ' f.: •, 4 G r F':- ' ;; ~ ~~; • -. ART ICI.E III ~v ~~ ®~~ r,s:3~ ~'~ ~`•:`~ Lam; PROPERT'1 RIGtlTB ~ 1 ~;~i: ~ •r~` Section 1, Oxnrr'e Eaeo,:,ontn of Enloymanti Evory cwnor ohall L > i hnva n right and easement cf enjoyment into the Cour..on A: ea erhich ehali / i `" bn appurtenant to and shall pass with tho title to ovary let, aubjoct to ~• "``' 'ti =-'~; ~ . ~' ~' ' tho follcering provisions: t • • . (a) The right of Cho Association to ouapand the •~oCing rights ~ `~i:`;',• and ri ht to ucs of the Coen Araa b nn cencr for any poriod during ~ g Y '=~. ~• ;',: which any esacsn~ent against his Lot~remaina unpaid; and fo: o poriod '`''•.• not to extend six (6) calondaz t:ontho for any infraction of its ! ~'~<_'•; published rules and regulaticno nftar a hearing by the Eoard of Diroccoro . ~l-~:F~ ~;:- of th® Association: ll f _ '='~~°~~ r ' nr a (b) Thn right of tho Aaoodintion to dndicnta or trens fi : or any part of the Ces:on Aran to eny public agency, authority or utility . ~: ~?c' for such purposes and subject to.auch conditions ae may ba agrond to by 'r-'•.•~~ ~.,,.. • the a:embera, No ouch dedication or transfer shall bo effective unlo~. an ~- • instrument signed by two-thirds (2/3) of each class of aa~era agreeing . ~'„ ~ • ~ • 'to such dedication or tranafor has been recorded and the ~:itten accnptanca , ~~: of the Agency to whom it is offered has base obtained, • '~^~= ;.;:;~ Section 2. Delegation of Use: Any owner coy delegstn, in , --;~:- ~; +,:;j= accordance with the By-Laws, hio right of enjoy~•.ent to the Ccr-~on Area / `-`r"~;:~;. ~ ~:~ J • and facilities (if constructed) to the c:na:bere of his family, his tnrants, , , :~~'i~ ;.1;,<< or contract purchasers who reside on tho property. ~r= , - • Section 3. Other Easemento: ' y '1T x~`aa c:~'• (a) Easements for installation and maintenance of utilities and ~~~!' ~f~i~= drainnge'facilitiea are shown on the recorded nap, ae well ae open apace ~,~ • and scenic easements. Within these easements, no structure, planting, or tti,^ ~:,t~,z other material shall be placed or permitted to retain which coy da:,age or ) r~ :;~.: ;~,_,,, • interfere with the ir.stallntion and oaintenance of utilities, or vtiich may ~~~/ ~~;~=_ ,••/f da:.age, interfere, or change the direction of floe of dreir,aEe facili[lep ~ ~ in the ease~enta, 1'he easet:ent area of each lot and all impro~erna[s in f ;,~° ' it shall be maintained con[inucusly by the caner of the lot, or if in a '-% ;=. t Corson Area,'by the Association, except for those improvecents fo: Which y ~:~. ~`„;: , t[y a public authority or utility company is responsible. '":%:` `+ - (b) No duelling unit and/or other structure of any kin? shall ~~~~ b~c built, erected or maintained upon any such easement, reoervacicn, or ~ ~=~.~: J ~ - right-of-vsy, and oald eaceaento, reservations and rights-o:-w•ay chall ~- _ _ :',: ~' at all times be open and accessible to public and quasi-public utility Y', ar~d other persons erecting, constructing or servicing such ccrporations, i•`. v' utilities and quasi-utilities, and to declarant, its successors ar,d assigns, ;.:.~ . .- i~-: . ali cf L•hom shall have [hc right to ingress and egress thereto and [h~re- ~ , froc:, and the right and privilege of doing whatever maybe necessar}• in, ' "• •... G-- under and upon said locations for. the carrying out of any of th^ purposes £t- of which avid easements, reservations and rights-of-vsy are hereby granted. ;..- ~~ Section 4. No Partition: There shall be no judicial partition i ~•y,- of the Coc7:.on Area nor shall Declarant or any person acquiring an;~ ~~,: X fnterest in the property or any -part thereof seek any par[i[icn CherecE. : ~•. ~', • - 3 - ~••. ~. c ~~ r , ~ ~' r .~ ~; 1 ~' ,~ . . ARTICLI; IV rS`tBERSHIP AND VOTIltC RIC!{TS ~ ~~ r~i:3~ Section 1. Evary Owner of a lot ukieh ± shall ba a member of s sub~acc to aoaoosaent• the Association. Momborahip shall ba Grpurtanant to and may not be ncParatad from ownorahip of nny lot ti•hich is cubjoct to asacasment. Soct~n ?• The Asaocintion shall have a:aberehip as folla.+s: tao claoacs o: voting Clara "A"; Clnes "A" ------- members shall be n11 ownero with tha exception of the Declarant and shall be entitled to one vote for each lot o«~ed, Fihen more than one person holds en interest ir, eny lot, all ouch persons shall be members and the vote for such lot shall be exercised as they nvong themoclvea determine,.but in no event shall more than one (1) vote be cast with respect to an lat. Y Clash g_~, Class "B" member(s) shall be the Declarant and shall be entitled to three (3) votes for each lot o• ship shall~cesse and be converted to Clnsa ., "'n ed. The Class "B" membtr- of either of the following events, whicheverAoccurseearllero~ the happening (a) When the total.votes outstanding In the Clasc "A" membership equal or exceed the ' in the Class "B" focal votes outstanding r..emberehlp; or (b) Forty-Eight (43) months from recording of the first lot conveyed by Declarant. ~. A.RTI_ CLE ~ ~. BOA.RD OF DIRECTORS Section 1, Elec~h_. . AC the first an:+.uil ceeti;t shall elect a Board of Directors consisting of five 6. the a Tera Hated representatives of cor orate , (S) 0«'~ers (or desig- for a one (1) year ter-i and P ~+ners) w_t}~ two (2) Owners to serve three (3) O'.mers to serve fora two (2) ear tcrtr; provided, however, that the first Eoard elected hereunder may be elected at a special meeting duly tailed,. said Board r 8• Ever first annual mectln y Owner entitled .to vote a.° serve until the oec:bero of the Board tray cu^ulate his votes and i,:,, any election for nuaber o` votes eq~lal to the number of members og ~ one candidate a ^ultiplied by the n~be, the Board to be elected, - of votes to'uhich such 0:-era are othe;.~ise entitled, or distribute his votes on the same principle a:aonp as many candidates as he thinks fit. The candidates receiving the highest number of votes up to the nur.ber of nembers of the Board to be elected shall be deened elected. All totes shall be cast by written ballot. Section 2. Tern: Board shall se r a term ofctwo as Provided above, members of the Y of the Month following the meeting atZwhich•they arecelecoedtor untJt da respective successors are elected, or until their death, it their removal, whichever is earlier; provided that if any me^beresip,natlen or Owner, his membership on the poard shell thereupon tcrmin.lCeeas;nytocmbern may resigr, aC ar,y tuna by giving written notice to the Secretary, and anv i N Tl t ~- i i . , .. ( . i • Y ••' a' . •.: .:~ . ~ '~ ' ' ,~ . 2 . . ; ~: ! i ~ , jj : 1 j ;. ..~~ ~: ,. ~ ., . `V :,. ,j . I . ": '~ ~~ .~~~ '~. •`j . •_~ .. . .. 1 .I ~: ~o E gU~ ~,::33U ~r'ember may be roaaved from memberohi~~ on tha Soard by vota of tho Ovn~ro; provided that unless the entire Board is removed an individual mambor ohall not be reproved if the numbar of votes cast egainot his removal exceeds sixteen and two-thirds percent (16-1/JX) of the total voto cast in ouch an election. Section 3. Mcctino,s: Three (J) r,.crbara of the Boerd ohall constitute a quorum, and if n quorum ie preocnt, the decision of a . majority of those present shall be t}ie act of tha Doard. Tho Board shall elect a Presi.dcnt who shall preside over both.lto mceting~ end those of the Owners. In the case of a tic vote at n Board MectinR, tha existing President of the-Board of Directors shall cant the deciding vote. Meetings of the Board may be called, h.ld-and conducted Sn accordance with such regulations as the Board may adopt. Tho Board may also act without a meeting by unanimous written consent of its members, The first annual meeting of Owners shall be called by Declarant within six (6) calendar months after the conveyance of a lot [o an Owner, Section 4. AEf.idavit: Until the election of a Board of Directors, Declarant shall exerc{s.• all of the pc.+er, rights, duties and fuactlons of the Board for [he benefit of [he Owners, After the first election of the Board, two (2) Board m^abera shall execute, ~ acknowledge and record an affidavit statin; the names and addresaea of the persons elected to membership on the Board. The most recently recocded of such affidavits shall 6e prir..a facie evidence that the persons therein are all of the incumbent m;mbera of the Board and shall be conclusive evidence thereof in favor of all persons who rely thereon in good faith. Section S. Powers and Duties: The Beard (and Declarant until the election of the first Board of Directors) s:~all have the following authority and powers to be exercised for the benefit of the Association and the Owners. (a) To levy assessments in adva;ce for maintenance and other purposes hereinaftcr.provided; (b) To create an assessment fund into which the Board shall place all sums collected by. assessment er otherwise, such fund to be used and expended for [he purposes herein .sec forth; (c) To increase the annual assessment or vote a special assessm~zn[ in excess of that a.:.eunt required to r..cet a^y necessary additional erpenses within the maxleun herein specified; (d) To use and expend the assess:-e^ts collecced.to maintain, care for and preserve the grounds located in tits Co.~,r.:on Area; (e) To pay taxes and assessments levied and assessed against the Coulon Area real property or jointly owned personal property, and to pay for such equipment and tools, supplies and other personal pro- perty purchased for uoe.in such maintenance; - S - c~ ~: T~ •::{ ,.•.~ :• •~ :~ :~ . .~ + .~ `1 a :~ t 1 .~ . t + i i ' ~ z ~a~ r~;r 3~~ ' (f) To use and expend tho +~aaoacment collnctad to c+aintain, care for end preaorve the Cocmon Aran in a w nner consietont with the standards for public service u~t by City of Snratoga and tho County of Ssntn Clsra, and particularly in nccordanco with the Landocapa lt~intananca Agreement executed with the City of Saratoga. ' (S) To pay for all public utilities, legal and accounting. scr•+i~es, in3urancc and other expenses r.eccaaary in the proper operntion of the Comt'aon Area or the enforcement of chess Reatrictiona; (h) To insure and keep insured all CoT.ron Arcaa against destruction by fire and other casualties; (i) To collect any delinquent assess,^cnta by suit or oChtrwioe and to en,~oin or seek damages from oth.:r aw•nere for violations of the covenants herein contained on the part of the oGrers to be performed or for violations of the rules hereinafter referred to; (~) To employ the services of n person or firm to C.anng~ the affairs of the Association herein celled the "!tanager" to the extent deemed advisable by the Board, as well as such other personnel as the Board obeli deterrsine shall be necessary or proper for the operation of the Cocmon Area, whether such personnel are employed directly or are furniohaii by the t4ansger; ~ (k) To enter into contracts and to generally leave the powers of a property manager in connection with the natters hereinbefore set forth, except that neither the Board nor any officer may encumber or dispose of gny interest of any ocaner to satisfy a judgment against ouch o:•ner for violstion of the covenants, conditiena, restrictions or agree- ~ents imposed by these restrictions or the deeds to grantees. Provided, ho•:evcr, Declarant shs11 not enter into any contract which will bind the Association for a period of tics of more than one (1) year unless such contract contains a reasonable-cancellation p-ovisicn exercisable at the option of the Association; (1) To make reasonable rules and regulations concerning the use of the herein described real property and to amend the same from ti..^..e to time, and such rules an d,regulations rnd arend^ents shall be binding upon the a.+nera ~+hen the Board has appro•:ed•them in writing; n copy of such rules and regulations and ell amendr..ents chall be delivered to each o:+ae_ prior to the tLme when the ease shall becoa:c effective; (m) To ncquire•and pay for out of the assess-:ent fund any ~terlals, supplies, furniture, labor, cervices, raintenance, repairs, structural alterations, insurance, taxes or assessaents which the Board is required to secure or pay for pursuant to the te:-is of these Restric- tions or by law, or which in its opinion shall be necessary or proper for the operation of the Coanon P.rea or for the enforcement of these Restrictions.- The Eoard ahll also pay any a;~ount necessary to discharge any lien or encur..brnnce levied against the entire property or any part thereof-which trey, in the opinion of the Board,. constitute. a lien against the Cocrson Arca rather than merely against the interest therein of - 6 - c~ r•' T • ~ 8fl~ rls: ~~2 '~ particular owners. Where one or rare oariera are responsiblo for the existence of such lien, they shall be jointly and eavarally liable for the cost of discharging it and any costa incurred by the Board by reason of acid lien or liens shall bn specifically aasoaocd to ssid o:mcro; ' (n) To keep the City of Sa~at ga p~A^^~^~ ne~nr r~nr provided With a current address or post office box number for tho Association. AP.TICLE VI COVEttANT FOR t•L4INTENASCE ASS°SSHENTS: Section 1. Creation of the Lien and Personal Ob1LRation of Assessments: The Declarant, for each lot owned ulth!n the properties, hereby covenants, and each owner of any lot by acceptance in ouch deed, is deemed to covenant-and agree, to pay to the Association: ' 1. Annual assessments or charges; and j • 2. Special assessments for capital improvenenta, such asaeaa- i assts to be established and collected as hereinafter provided. The annual and special assess:r~nts, [ogerhe: with interest, + costs and reasonable attorneys' fees, shall be a charge on the land and shall be a continuing lien upon the property against Which each such assessment is made. Each such eaneasr..ent, together with interest, COD CB andreasonable~attorneys' fees, shall"also be the personal obli- gation or the person who was the o:mer of such property at the time when the essessr..ents fell due. The personal obligation for delinquent ~i; i asseasn:ents shall not pass to his eucceoaora in title u:ilecn expressly t asauned by them. j Section 2. Purpose of Annual Assesnr„cr.ts: The annual asaeea- -teats levied by the Association shall be used exclusively to promote the recreation, health, safety and welfare of the re:tc;ente in the properties and for the maintenance of the Cocoon Area, Said a:mual assessments ~ shall include, and the Association shall acquire ar~d pay for out of the., funds derived fro~,sald annual assessments, the Yolicwing: ~ (a) . Eater, sever, garbage., electrical, li~,hti,:; telephone end gas and other necessary utility service for the Cera:on Area, if any; (b) Fire insurance covering the full insurable replacement ' value of the Co»znon P.rea -with extended coverage; • (c) Liability insurance insuring-the Association against any liability to the public or to any o:.•ner, their invitees or tenants ,. incident to [heir occupation and/or use of the Comron Area, ~:ith limits +~ o: liability to be sec by the Association, such limits and coverage to be revie::ed at least annually by the Association and increased or decreased ac 1es discretion; (d) Workran's Compensation Insurance to the extent necessary to coripiy with any applicable laws, and such other insurance as may be doe^ed necessary by the Board o_' Directors of the Association; N. ~ , ~n b i f f !~„__ ....e,._.e..._._~~----- . a~~ r,,:333 . ~ (c) Standard fidslity bond covering nll mn.:.bcra o!? the Board of Directors of thn Association aid all other e-ployaes cf tho Association i . I in an amount which shall be dacerminod by ti~a 14oard of Dlrectcrc, na f well as Officz:s and Directors liability insurance; ~ (f) F4•sintenance, repair, raplacec:st an~- all landscaping of i ' 'the Ce~on Area ar.d ouch furniohinge and equiprxnt for the Cor~-on Aroa ~ as the Association shall determine ere necessary and proper; (g) Planting, irrigation, and msincenancc of the landscaping in the Cocoon Areas, including, but not Baited to, graded elope, erosion control plantinga and drAinngc-ways (both surface and sub-eurfaco). In addition, the landscaping improvements installed in the rights-of-way, ' ~ easements and other property interests offered to the City of Snretoga for dedication (which said landscaping improveaents shall be installod • ,~ and maintalned by.the developer until acceptance by said City, and-only y r thereafter shall become the maiit[enance responsibility of the Association), s will be maintained and paid for out of the annual aasesamenta; ' ;~~ - (h) Any other ssteriala, supplies, furniture, lsbor, services, y ~ cnir.*_enance, repairs, structural alterations, insurances, taxes o: asoess- ~'==: meats which the Associationi is re ui_ed to secure and/or • q pay for pursuant co the ter:s of these Restrictions or by lea of which Sn the opinion of ~ the Associations'a Soard of Directors shall be necessary or proper for the operation of the Coaanon Area, or for the benefit of the Lot o•»ners ' and/or their interest in the Coma:op Area, or for Cite enforcement of these Restrictions. Section ~. Ptaxic~uL. Annual Assess^e^t: j (a) Until January one of the year ia-.-~•~diately following the first conveyance of n lot to nn 0•.m~r, the ma::ir..•~~ er,nual assessment shall be 51200.00 .%. (b) Froa and efter January one of the year 1,7ncdia[ely following [he conveyance of the first lot to an O:.;ier, the mn::iruz annual assese;nen:t may be increased each yea: by the -oard of Directors i•n an ac^ount not mare Cho: five percent (SX) above the maximu.•~ ann:ial easessment for the previous yza:, r:ithout a vote of the membership; (c) Frcm and after January one of the year icr,.ediately following •~., the cenveyar.ce of the first lot to a1 (1•.+ner, the ma;cimu:: annual assessment may l;e Increased by more than-five percent (5) above the prevlous year's n,:xi~~,:m assessment only by the vote or c.:itten consent of fifty-one per- cent (51X) o: more of the m:mbers in each Class;. (d)- SuS~ect to the above provisions, the Board of Directors may fix the annual assessment at such aunt within the naxtiaum as deemed necessary to fulfill the purposes of said assess~ents. Section 4. Special Assessment for Cao!tal Imero•:emencs: `In addltlon to [he annual assessments authorized above, the Association may' levy, in an;~ assessment year, a special assessc:ent, applicable to that year oily, for the purpose of defraying in uholz or in part, the .cost of any construction, reconstruction, re?air or replacement e: n capital ~~ . ~. .... ... ..:r+-•.an- ~"1i7 .'~ Y~.~ ('n rtr:~nn .,rva I••rtnr~: nv ~tv„ a.. n .,~ r..~~.. ...1 ...-.... ,.~... '~': t,_ ,• -. j .~ ;~ :~ii . ;i •'• • .' :~~ ;,1~.,. `. ~~ . ~; :1 a 1 t 1 _ -•~ .~r -~ . _ . --- •-. ... .,--• r-t. .. ................ .. ~ ;. • Section 5. Notice end Quoiua of Any Action Auth6-~zod Under Sections 3 and 4: Any action cuthorized undor Soctiona 7 or 4 ohall be o . taken et a c:xeting called for that purposo, written notica of which shell- , be sent to all r„embers not leas than thirty ()0) dsya nor rota thin sixty ~ ~' (b0) days in advance of the r..ceting. If tho proposad cction io lavored b/ ~ a majority of the votes cast ct such meeting, but c:,::h vota to leoa than the requisite fifty-one percent (517. of-each Class of mecbara, rvo:sbaro who were not present in pcrgon or by proxy ma iva ttctr aoaent in Y & writing, provided that the sar,.c is obtained by the epp:cprinte officora of the Asoociation not later than thirty (30) days frc~ Cho dcto of such a:cecing. Section. 6. Uniform Rete of Assess~ent: Both annual and spacial ~ asseasc:ents must be fixed ac a uniform rate for all lots enc! ruy ba collected on a monthly basis. Section ~. Date of Cort:iencement of Annual Assessments: ' Due Dates: The annual assessments provided for herein shall eoraence as.~ to all lots on the first day o'f the month following the conveyance of the Ce:,.nen Area. The first annual assessment shall be adjusted according to the ntraber of months remaining in the calendar year. The board of Directors shall fix the amount of the annual assessnent a,;,ainat each lo[ at least thirty (30) days in advance of the annual aasessr..ent period, a,,^,d written notice of the assessr..ent amount shall be sent to every owner subject thereto. The Board of Directors shall establish due dates Eor the assessments so that the came shall be payable in r..onthly installments of one-twelfth (1/12) of the annual assessment. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the. Association, setting fcrth whether tF.e aoeeasm~nts on n specified lot have been paid. Section 8. Effect of Dionoavr..ent of Asscssr.=-ts; Rcr..cdies of the P.ssociation: Any asoessment not paid within thirty (30) days after the due date shall beer interest frog the due date ac Che rate of nine percent (S") per annum. The Asseciatio.n may brinE en setlon of law against the owner personally obllEatcd to ply the same, o; record and fore_lose a LLeR against the property in accer~ar.ce with the laws of [ha State of California, relating to the exercise o` foreclosure power of ogle (non-judicisl). In the event of action in Cc~.::t, court costs sad reasonable attorn^_ys' fces.ahall be recovcra5lc to the extent pare±tted by las:. TIo o:.-ncr say waive or othc^:ise esca;,e 11ab111ty fcr the asees~ments provided tar herein. by non-~sc o_' the Cor.on Area or cbandons~nt of .his lot. Section 9. Subordination of the Lier. to tlo:tr.a;.es: The lien of the assessments provided for herein shall be subord'_nate to the lien o_f any rortgage. A sale or transfer of any lot shall not affect the assessment lien. }lowevcr, the sale or tra^sfcr o` anv leC pursuant to mortgage foreclosure or any proceeding in lic~.i tl~crcnf, stiill extinguish such .Lien. No sale or transfer shall rellevesuchlot f:o~ liability for any assessments thereafter becoming due or fre:~ tl~e lie;: thereof. - 9 - ~( ~'\ r-~ ; -~ ,; i '~ ;. i :~ .i i ~f ' 3 ~ ~3~ r,,~ 335 Section 10, A_saesament Surplus in Trust: No lea than once each calendar year, the members shall receive an accoun:ink of nraaaa- ment receipts and disbursements since the last account.ir,;{. If •uch ~ accounting shows that a surplus of cash resulted from a~aciamanta,~ the remberahip shall vote as to whether to refund nil o: part o! ouch surplus to the members or whether to have the c:<cess asseser..anta carried i over to future assessment periods and used Co reduce future osaeaarnenta. AL1 assessments and dues are declared to be C:u~t funds, Tho Association shall receive sll assessr:e;~ts and doss as trustee for Che various owners and shall apply said funds solely for care and maintananco as provided for in the Declaration of Covenants, Conditions and Restric- tions, Upon sale or transfer of any lot by an c~:;cr, tha ocncr'a interest in the trust fund shal•T be deemed autor..atically trar,sfcrred to and thera- after owned by the successor or transferee o.' such o:.^~er. ARTICLE VII USE. RESTRIC'CIO;~S Section 1. Architectur,:l Control: (a) No building, outhouse, garage, fence, Ga11, retaining wall, or other structure of any kind shall be erected, constructed, placed or caintained on said property, or any part thereof, nor shall any altera- tion, addition, changing, repairing, re;:odeling, or adding to the exterior thereof be made, unless prior to the co;mer~cement of any construction, e:<cavation or .other work, two co:~piete seta of plans and specifications therefore, including front, side and rear elevaticns an•~ floor plans for each floor and basement, acid two plot plans indicating a-d fixing the exact location of such :-rructures, or such altered structure, on the residential building plot with. reference to the street a^d side lines thereof, shall have been first sub^itted i~ wri[inp, for approval and approved in writing by the Declarant o: its duly a+lthurized agent. Approval of such plans, specifications and location. of buildings by the Declarant or its duly appointed agent shall be endorsed on both sets of the said plans and specifications and one set shall forthwith be returned by the Declarant to the person submitting the sa^e to the Declarnnt and the other shall be retained by the Declara^t o m its duly authorized agent. (b) The approvnl by .Declarant of a^;+ plans e: specifications submitted for approval as herein specif'_ed shall not tie deemed to be e waiver by the Declarant of the right to c5ject to ar,y o` the features or elements embodied in such plans or,s~ecificaciens if and when the sa;re feature or elements are e^~bodied in an/ subsequc;t plans or specifications for approval for use on other lots, - 10 - w T~ ~~ ~. ~, ~s i ~~ j •.~ ' ~ • . ~~ ; • . . '~ ' - ~ -~ ~' ' 7 115t -^. (c) A€ter such piano and bpaci:ication~ end other date submitted have been approved by Declarant, no building, outhou» , garage, fence, wall, retaining wall or other structure of any kind o`~slt bo erected, constructed, placed, altered or maintained upon seid property unieas the aamu shall be erected, constructed or altered in conformity wlth the plane and specifications and plot plan theretofore app:ovod by Declarant, or its duly appointed agent, as here innbova prcvid~d in this Paragraph, Section 11, and eubparagrapil horeof. (d) If any building, outhouse, garage, fen[., Wall retaining ws11 or other structure of any kind shall be erected, constructed, placed, altered or maintained upon said property, other than iii accordance with the plans and specifications and plot plan therefore, approved by Declarant, such erection, construction, placing, alteration and tresinten-. ante shall be deemed to have been undertaken without the approval of the Declarant ever having obtained as required by this Declaraticn. (e) Following the expiration of-one (i) year from Che deco of completion of eny structure or.nlteration, such structure or alteration shall be deemed to comply with all of the provisions of this Paragraph, Section 11, and subparagraphs thereof, unless notice to the contrary shall have been recorded in the office of the Country Recorder of Santa Clara County or legal proceedings shall have been instituted to enforce such compliance. . (f) In the event Declarant shall fail for a period of thirty (30) days to approve or disapprove any plats, specifications or plot pleas aubaitted to theca for approval, the same shall be deer:ed to have been approve. (g) Any agent or officer of Declare:;t may nt any reasonable tics enCer and inspect any building or property subject to the juris.-. diction of Declarant, under construction or or. or in which ;,uch agent or officer ray believe that a violation of the tour^,antr, restrictions, reservations, servitudes or casements is occurring or ha s_ occurred. (h) At such tine as. the retard title to r.o part cf said property or property abutting same .shall vest in and be o»-~ed by Declarant herein or after sir. (6) years after the date hereof; whichever occurs firs[, all of the provisions for the rights to and enforcement of the i foregoing provisions for the approval of plans, s,cciEicacic-c r.nd .plot plans shall be vested either in the Acsocistio~ acting by x^d through ' an Architectural Control Com.~ittee composed of such of its r.,embers as nay be specified by the Association, or ir. event said Association shall not then exist, then in such a co rnittee of three (3) prope:Cy o~.•r:ers in the said property c3 may be appointed by Declarant, in which latter event, Declarant may, from time to time, appoint a ne:+ sec-~ic[ee for such ;urposes and [he authority of the old coarcittec and the mecbers thereof shall therc- upon cease and terr.inate. Section 2. Lnnd Use and &uildinc Tv~e: t:o lot s!:all be used except for residential purpose. :7o buildlnE shall be ereceecl, altered, plated or permitted to remain on any lo.c other than one detached sinRl.e- family dvellinE. - 11 - ~ i N , ~., j~ b ra u w 2 .~ . ~t ;:j • i ~~ t~ e • E ~~~ r,,c 337 Section 3. DwollinR Cost Quality and S1zo• No dwollina shall bo pcrmittad on any lot at a teat of lo~a then $100,000. based upon cost levels prevailing on tha data theao covonanto aro rQCOrdad; it being tho intention and purpose of the Covanant to ~s~uro that all d:~ellings shall be of n quality of workcanahip and materials aubatnn- tially the eame.or better than that which cnn bo praducsd on tha dato these Covenants are recorded at the minicum coat otatad heroin for tha einim~,~ per-lifted-dwelling oize. The floor a: ca of tha r..sin otructure, exclusive of gnrages, shall not be less than 2,000 aquaro feet, nor shall it be core than 4,600 square feat inclusLve of garaCes. Section 4. Building Location: No buildLng shall be located cn a^y lot nearer to the front line or naercr to the aide atrc~t line than Che alni:msn buildLng setback lines in accordance with the City of Saratoga .Ordinances. •For the purpose of this Covenant, cvcrhnngs, etapa aid open porches shall not be considered as a part of a building, pro- vided, however, that this shall not be construed to permit say portion of a building on one lot to encroach upon another lot. Section S. Driveway's: Driveways greater than SO feet Sn length and private access roads shall be rr.iintained at all tir..es in a condition acceptable to the Santa Clara County Central Fire District and the Clty of Saratoga. Section 6. Nuisances: No noxious or offensive activity shall be carried on upon any-lot or the Coc,~:on Area, no shall anything~be done thereon which may be or may become'nn annoyance or nuisance to the neighborhood. Section 7. Temporary Structures: No structure of temporary character, trailer, basement; tent, ohack, garage, barn or other out- building shall be used o n-eny lot or the Coon Area at any time as a rc.^.ider,ce either teaporarily or permanently: Section S. Sip,ns: No sign of any kind shall be displayed to the public vies: or, any lot or the Corson Ar,:a without the prior written consent of the .Association-except signs used by a builds: to advertise the property during construction and sales period, custoc~ary name and address signs, and a lawn sign of not core than five oquare feet in advertising the,property for sale or rent. Section 9. Livestock and Foultrv: Cte anic:.als, livestock or poultry of eny kind shall be raised, bred o: kept en any lot or the Co-cn Area. Doos, cats or other household pets may be kept on private loto provided that Chey arc not kept, bred o: naintain.d for any coca- ce:clal purpose. Section 10. Claba a and P.efuse Dis osal: No lot nor the Coemon Area shall be used or aaintaLncd as a du.:.ping ground for rubbish. Trash, garbage or other waste sl~ailnot be kept except in sanitary containers. All equipme;~t Eor the storage or disposal of such material shall be kept in a clean and sanitary condition. - 1'L - rn t b i~~ ~.: ~,.._._ 6 h ~_ . E 6GS t~:~ 33c9 Section 11. 0±1 and Mining Oporotions: No oil drilling, 011 development op~rationa, oil ro.fining, quarrying or mining opnrntion~ of ~ nny kir:d shall be pcrmittrd upon or in nny Iot or tho Co~~:n A:aa,'nor ~ shnll oil wells, tanks, tunnels, cinarsl cxccvationa or chafto ba per- y~ ~ tnitted.upon or in any lot, tto derrick or other arructuro designed for ~ use in boring for oil or natural gas•ahall be erected, eeinteinod or ~ permitted upon any lot. i Section 12. Sight Diatnnce at Intersections: No fence, wall, hedge or shrub planting which obstructs night lines at elevations between 2 and 6 feet above the roadways shall be permitted to retain on any corner lot within the triangular area formed by the street property lines and a line connecting them at points of 25 feet frog the intersection of then street lines, or in the case of a rounded property corner from the inter- section of .the street if said property lines are extended. The saws sight line limitations shall apply on any lot within 10 feet fro;n the inter- section of a street property line with the edgy of a driveway or alley pavement. No tree shall be permitted to recvin within auf.ficient height to obstruct such sight line3. Section 13. Vehicles: No trailer and/or boat, and/or truck- end/or inoperative automobile shall be kept or stored on: `~ (a) Any lot unless enclosed within: a carport or Earage, or I unless it is .kept or stored on the rear 50 feet of the lot and is not visLble,from the street; or ~ (b) On the Common Area. I'' Section 14. Antennas, Towers, Poles or Structures: tlo antennas, towers, poles or any structure to be used for the purpose of receivLa3 radio, television or related signals with the exception of equipment installed by a duly licensed cable television frenchLsee, or ~1 ito successors or assigns, shall be installer:, affixed, counted or con- ~ strutted on the real property hereby conveyed, so ~s to be visible to ~ the public view. Any variation frc,:, this covenant shall be subject to ~ .Architectural Control Coa~ittee review. Secticn 15. Erosion Control Areas: kithin the slope areas, ro structure, planting or other r..aterial shall be placed or permitted to rcaain or other ectivities undertaken which ray damage or interfere with or change. the directiot: of flew o.' drainage channels or obstruct or retard the,flow of .water through drainage charnels. the erosion control and sloped areas of sac;: lot and all iaprovements in then shall be maintained continuously by Cha o•.rner o: the lot. Section 16. Cocoon Area AlteratLo^. o: Construction: Nothing shall be altered or constructed in or re~oved from the Co^r~on Area except upon the written consent of the Association sad the written. approval by the City of Saratoga. • - 13 - ~. N , ~ b f .1 .7 ', •~~ _. :~ .~ ;z +l ' Section 17_ Lot Development_ Declera~t'a transfv:~ao gill , undertake the work of developing nil of tho late includod within •aid property, The completion of that work and ealo, rantal andothar di~- posal of residential units is cascatial to tha ostabliol;acnt and walfaro of said property as a residential coax~unity. In order that paid t+ork-may be cocpleted and said property be established ns a fully occupiod raei- den[tal community ae rapidly as possible, nothing in this Dccleracion e`:a11 be understood or construed to: (a) Prevent Declnrant, its trnncferees, or its or their contractors, or subcontractors, from doing on any part or parts of said property o:,med or controlled. by Declarant or its o: their repro- . sentatives whatever they deter;~ine to be reasonably necesary or advisable in connection with the coa;pletion-of said work; or (b) Frevent Declarant, its transferees, or its cr their representatives frocs erecting, constructing andmaintaining en any part or parts of said property. owned or controlled by Declarant, or its transferees, or its or their contractors or subcontractors, such etruc- tures as may be reasonably necessary for the conduct of its business and disposing of same in parcels by sale, lease or otherwise; or (c) Prevent Declarant, or its transferees, or its or their contractors or subcontractors, from conducting on any past or pnrta of said property o•aned or controlled by Declarant, or its transferees, its or their business of completing enid work and of establishing said pro- perty as.s residential coc~nunity and of disposing of said property in parcels by sale, lease or otheri~ise; or (d) Prevent Declarant, or its transferees, or its or their contractors or subcontractors, from maintaining such ei3n or signs on any of said lets owned or controlled by nny of them as may be necessary in connection with the. sale, lease or other disposition of the properties. As used in this Section and its s~•b;,araarnphs, Che words "its transferees" specifically do not include purchasers o: lots icproved with ccrpieted residences. Section 13. Insurance: Nothing shall be done or kept on the Ceres Area whLch shall Increase the rate of insurance relating thereto without prior written consent of ttie Association, ar,d no o~.;;er shs11 pe^it anything to be done or kept on the Common Area which would result in the ca.^.cellation of insurance on any part of the Cot-.en Area or which ~.•oald be in violation, of say applicable law. Section 19. Landscapir~q: All landsca;,ir,i, installed by the develo~e: along the emergency .access road in tract no. 6523 and in Cornon Areas shall be maLntained by the developer during the period of construc- [ion sad shall thereafter be the responsibility c.` t'ie Association. All landscaping installed by the developer on private lots s all be maintained by the developer until the. lot is sold end occu,ied. tiithin ninety (90) days afte:.taking title, each o~rner abrees to .improve, keep and maintain the front area of his real property in a neat and order l;: appearance. The front area is defined as that portion cu^^encing at the curb line and - 1 c - r ~i r ~~. ~~ :;s . • . .~ :s. ___ . • ~ ~ 805 r::= 3~a ~• _. •` extending to the reoidencc-lo;prcved t~ortlon of the resl p:o~__;.y, Thia ~ • , -'._`: . _ :..,tine p~rio3 may b e extended by'the Declarant or [ha Asso~;~tic7; upon application, for causes beyond the reasonable control of tt:9 a:aner, ~; .--._ " ' '~'' Section 20. Improvement Plans: A road•:ay ad~e_oht t0 lots ~. •• '•=• 58,':69; 75 and' 76 shall be constructed to one-way etar.dard.ri~:t:t ai i , - •• part of the Lvprovcrasnts •inetallod for Tract tio. 6529 and~nay be uocd ao ••• • • . ~•: both a private ~drivrway and an emergency access road. The .Association -'••"• •• shall maintain this sad ali other private roads i; the de?'c;o;rsnt after • •~ •- •~ • -~~ ~ cgnvayanca of said lots with the exception of the roan te.tha ulcer tnnk d tl~.` - • ~oomo ar.d caintained by San Jose Water 4lorks and 4^Sch is .p*c~ided for •~'( =~; : • in Article IX, Section 2 herein. ~ •'1~` ~ ' •'~ ~•~~~ •• - Section 21: Scenic Easemeht A~ree:r,ent: A Scenic Ease^ent ,~ ( 4~ •-•• • •• ..Agreeaent has been entered into bet:+een the City of 5a:attg~l a:,d Che ~ ~+%~ ~' _ ..tr•~ • ~•.t = :: : ~ Declarant for scenic easetaents in the developmea:.• Said Agrecrent may be •.• aaerded only with Cit ~.`1;~~ '~ j~ v G~ y permisoion, and it shall bt enforced by the Aseoci- ~ • •- ~~~'• ~ ation and nay be enforced by the City of Sarato,a, a; the City's din- .- --• cretion. ' c :,t ;' ' ARTICLE VIII •',~ ' OBLIGATION "'0 REBUILD ~ • . ....: i • •; i Section 1. Damnge and Des [ruction Affec-f-S Residences -Duly ; ~ to Rebuild: If .all or any portion of any resider,cc is da"a;ed o_ destroyed • ,~. ~ by fire or casual [y, it shall be Che duty of the c:•~^: of :,aid.residence • • [o rebuild, repair or re construct, said residence in a r_ar.;e; ~:hich will ' .restore it substantLaliy to its appearance and ccnditien i~ adiateiy prior to the casualty. • Section 2. Variance in Exterior Appearance and Desien: Any _ • owner which has suffered damage may apply to the Declazan:.or its duly :. ~ au[i;orized agent for reconstruction, rPbuildir.;, o: repair of his resi- • 'ti ~ .. dente in a Wanner which gill provide for an exte:ie: a? •- zc; and ?e ;. a. 1 ~ ~ design different than that which existed prior, to [he dat^.of;.tl:e ~ , •~ • casualty, Application for such npprovul shall be radc in.wri[ir.g _ `' ` together with full and complete plans, apecificatioas, ~.•o,.ana•drawings .. and elevations shoving ehe proposed reconstructio^ a:;d the.c,•d result _ , • tiiercof. The Declarant or its duly authorized ebe;t shah grant such , approval only 1f [he design proposed by the o:.-ez ~.u1d result in a ~~ finished residence In har~,ony of exterior des!En 4•it` other residences un the properties. Failure of the Declarant o: '.;s :'.uly authorized agent to act within thirty (30) days after recei?: of suc',t a request in 4riting cow?led with drawings snd plot plans s~e•;i-; t;:e full and coc~piete r.a:ure of the proposed change shall ce^s;i;::;e apprcval thereof, Section 3. lime Limitation: The e•..•ne: e: c•-,Were o.` ar.y da^aEed residence and the Declarant ahs11 be obligated to proceed with all due diligence hereunder and cons^ence recens[:uction within three (3) con[hs after the damage occurs a,,d complete reccns[ructien within nine (9) months after Che daalage occurs, unless p:even'_ed,.by causes beyond their reasonable control. - 1S - N t b , t N ~.'. 4L. ~ _.. `~ ARTICLE IX • CITY IHPOS!:D CONDITIOti3 ~' ~~S hi(3~g Section 1. Ptaintenancn Covenant and Enforc;~abilit Tho Association shall cnuao the Coc:sson Arcs, landacapina, lr.:,rovnr•cnta; public righto-of-way, individual loco and Open Space to bo nalr.teineA in good -and orderly condition, repair and mainte.^.anca (inclu<!!nz, but without limitations of the foregoin3, the replanting and replacing, of any traaa that may bococ~ dieeased, destroyed or die; mnir,tenanco of tho earth eurfaca :.nd slopes - both natural and c_n_cadc _ including subdraino, malraenancc of natural vegetation in the Open Space, repair and r,.aintenance of all drainvsya natural sad c1n-aL:de, surface and aubeurface - and appurtenr.ta atructurss, caintennnce of trails and pathways, repair and tnaintenanco of retaining walls for private and public streets, repair and traintcr.anc_ of private access roads and appurtenate structures, and repair and maintenance of silt retention structures and devices; but not lncludin3 public etrcet improve©ents from back of curb to back of curb, and the earth subBrnde therefore, nor public storm drain conduits and inlet/outlet atructurna within the outside perimeter df the conduit)to the standards of accepta- bility of [he City of Saratoga, In the event the Association fella or refuses to properly keep and maintain said landscaping, etc., the City shall have the right, but not thc.obliga[ion, to ceuss acid upkeep and caintenznce to be furnished and to record a lien against the propertied for the aneunt of costs and expenses incurred by the City .in furnishing said maintenance. Such lien may be enforced by the City in a civil action brought in any court of conpctent jurisdiction, or, in the alternative, ^ay be asecssed against the properties as a special aeseee- rent and collected by the City (all provisions of lar relating to tax delinquzncy being expressly made applicable thereto). Section 2. 4later Tank P.oad: The up;ceep and maintenance for tF.e rood to the cater tank obeli be in accordance with the Agreea:ent between chc hoceo•.rners of lots G1, 62 and San Joae Natar {Forks. Section 3. Pools: do pools (e;scept apes) coy be constructed cr pcrnitted co exist in: r \ (a) Tract 652b on lotl~9 of the F'inel Hap; and (b) Tract b528 cn lots 6, 7, 8, •11, 12, 14, 15, 15, 17, 18, 19, 20, 21, 32, 33, 34, 35, 36, 37, 39, 40, 42, 50, 51, 52, 53, 54, 59, 60, 62, G3, 6;;, 65, G6, G7, 68, 69, 70, 71, 72, 73, 74 and 75 Pools on [he re.~air.ir.g to to are to be placed on slopes of 30". o; leas and will be subject to City Staff design revie» to insure correct placement in relation to treed and slope. Decisions of slid City Staff ~,y be appealed to the Planning Co;:nissior, through. the Design Review process. Section 4. Recreation Courts: No recreation courts may be constructed or paroitted to axle[ on any lot. Section 5. Desis~n Approval: Construction of residences require Design Review Approval by the City. Individual house Design shall be - 16 - ~1 ,• ~~~ .~ ' „ :. G~ nl'~4? . ovaluatad on the basis of.compatibillty arith the physical envircn:ant '~ and coer,~liancn with Site Dovalopmant Plar,. Cooplato plnas far all ~ ~ onoite grading shall be submitted for evaluation. All.gradin,Z shall ; be centourad ao ns to forte s^ooth traneitioaa, and nil Grading shall nasal[ in acooth trannition~ botc~nan nntural and nan-cado slopoa. . Section b. Fenced ar.d Nalla: Fences, wdlla and h~d;,ao say ba constructed o: plnnted only por tiro City of Saratoga'a :?C-"J Zonlrg Dla- trict Regulations - "pro:ciesta to the principal atructu:,: and in no event to enclose or oncoapass an area in excnao of 4,000 square fact". ---__ ARTICLE X • G'.'\cRAL PROVISIONS Section 1. Enforce went: The Asaoci~tion, the C_clarant, the City, and any o:.:ier, shall have the right to enforca,~by dry proceeding nt lau or in equity, all restrictions, conditions, covens^=e, reeorvations, liens and charges now or hereafter imposed by the provisions of this Declaration. Should legal action be naceasary, tho prevailing party •~ shall be entitled to recover its court costa and attorneys' fees in ' addition to any other ,judgment or order sought. . Section 2. Severability: Invalidation of an}' o-c of -these covenants or restrictions by ~udgaent or court order shall 1n no wny affect any provisions which shall remain in full force and nffect., Section 3. Amendment: The covennnta and res[r:ctioas of this Declaration shall run with and bind the land, and chnll ir.~re to the bznefit of and be enforceable by the Association or the o= er of any lot subject to this Declaration, their reapec[ive legal representatives, heirs, successors and assigns, for a ter:o of twenty (2v) }•ears frog .the date this Declaration is recorded, after which [ice acid covenants shall bz auto ~atically extended for successive periods of ten (~C) years unless • revoked by an instn~a:ent signed by not less than seventy-rive percent (JS) of the lot o•,rncrs in each Class of t:e~bership am ccnsented to • in writing by the City of Saratoga. The covenants and restrictions of [his Declaration may be emended by an inatrum~nt aigr.ed by not lead than seventy-five percent (75'/.) of tlye lot o:mers in each Ctass of ne¢bership and/or by a court ,judgment and written consent o_° the City cf Saratoga, a^,d in no other way. Any such•acsendeent must be recorded in tho office of the Santa Clara County Recorder to become effective. Section 4. Subordination: It ie further provided that a ` • : breach of any of the co:tdittonn. contnined herein. or n.` a-y re-entry `~ ~ `~,',' j~~;..,~ by reason of such breach shall not defeat o: render invalid the lien ~ ~ • ;/, • ;.• of say Martgage or Deed of Trust Cade in good faith and fen value as . • ;~~ to said premises or any part thereof; but said conditions shall be V ~ binding upon and effective against any ok~er o.` said premises whose ~ title [hereto is acquired by foreclosure, Trustee's Salc or otheruise. Section S. Annexation: (a) Annexation Pursuant to Aoproval: Upon app:^_va1 in • uniting of the Association, pursuant to n tiro-thirds (2/3) majority of [tie votin3 power of its members, or the written assent of such r..ec:Sera. exc.luding the voting pouer or written assent cf :ha Declarant, ~ the o•.mcr of a:~/ property who desires to add is to this Ceclarntion and 1 ^y't co su5)ccc it to the )urlsdiction of the AB9oCia:lon, r~! file of ~~ -. ~:- -. r.~ i ;,; S y~ }. . • tt . ~_' '. i f~ ,~ j ;~ . ;! . f-a ~. ~zacord a D.aclaration of Annexation es deacribod in Section (5) (c) of j this Article, The procedure eat forth in this Section ohall ba in addition to sad rot in substitution far the procedure outlinod in ~ Section (b) of this Article. ~ (b) Annexation of Other Rcal Property by Davolooor: Tha ' developer may, without consent of tho'membari of tho Aaaociaticn or lot owners, annex any additional land described in Exhibit "A" attached hereto and upon the completion of oaid annaxs[ton, Cho ow;tara of the lots. located in the annexed property ehnll become r..embero~ Cho Association and entitled to the use and the enjoyment of the Co~non ; Area. This annexation procedure shall be eub~ect to the following conditions: 1. Any annexation pursuant to this Section shall be mode • prior to six (6) yenrs from the data of the issuance of [ho cAat recent Public Report issued by the Department of Real Eotato for any of the t properties described. 2, The development of the additional tracts shall be in accordance with the General Plan of development submitted to the City of Saratoga with the processing papers for this tract. 3. Detailed plane for the development of each portion of the additional tracts shall have been submitted to, and approved by, the City. of Saratoga prior to the development thereof. • 4, There shall have been recorded with respect to such additional tract, a Declaration of Annexation or simile: instrument making the lots herein eub~ect to this Declaraticn, i:;ciuding provioion aub~ecting said lots to essesament by the Association. Said Declaration shall designate which land is for residential use and which is for Comeon Areas, if any, to be owned by the Association, S. Prior to the conveyance of ar.y trprov2d lots in a recorded tracC located within the real property described ir. Exhibit "A" of Chia Declaration, fee simple title to the Cor.W:on Area within said tract shall be conveyed to the Association, free__a:~d_clear of all e;curberances and liens, except current real property taxes, which taxes shall be prorated `~ to the date of transfer, and easements, conditions ar.d reservations then of record, including Chose set forth in this D~~_laratien, (c) Declaration of Annexation: The additions suthorized under the foregoing Sections shall be made by the recordation of a Declaration of Annexation with respect to the additional properties which shall extend the scheme of this Declaration to such properties. (d) Complimentary Changes: Any Ceclarations of Annexations contemplated above may contain such corpliaentary additions and modifi- cations of the conditions, covenants, conditions and restrictions con- tained 1n this Declaration as may be necessary to reflect the different N ~ - 18 - ~• +' T~ .. I r _ ~ ®~5 ~~<<3~4 'char-attar, if any, of the added proportion, to thn.oxtnnt not inconais- ~ tent with the echec~e of this Declaration. In no ei•ant, hoNOVer, shall any such Declarations of Annexation, merger or consolidation, rovoka, modify or add to the covenants netablinhod by Chia Declaration with respect to the property already subject to Chia Declaration, oxcop[ ae :herainabove otherwise provided. IN WI?IiESS 1.1HEREOe, the undersigned; being Cho De: rant herein has hereunto set its hand and ecal thisa~ da of 1g ~, . Y 1'i i ~ :.~ I FL1C'+CS•~L FLT•GS, . a pa.-tr._-ship n ~• ~~ G• .~' . ~~ ~ r~; ~ i BY L/l L'• r1 '' . ,.. • Its c, ~ ~, ••f ~ o ' •i q ' ~ ... • T`e t-'~ralrr~ed, as ~ustee, hereby c~sents to a o• and a:5ara~irates to the ~ *~~s, joins Ln the ~-u~ pes~.rictirns. ~~F~J Docls:a:L.--i o: ~rrkints, Ct~cY;iL~a aril Vr' f 'I'II ~~~ C i'~~ ~1~•~. a ~-~;nticn;'~c ~~ .~~~~;. ..,i - •~,~ ~ ' ;~ i `+O ~~~b li - r'•p0 .1•. , ^~ r `',cn '. .. Q _.. G G ~ t,y ~ :~' Q: ~. K • ~ t .. C ,\: ~. t•.)N "' ' ro ~ . C-~ 1 ,.:: ~v~ „• - ~: .; . :~'. - -~ .r~ .,.~ ,! :~ •~ '.~ :.~ ~Z w 't i. :1~; ~. n F,~ s~ ~,.__ ~~.. ~•.. Q . -Vr.'p.~. ',1~~ - ~~ ~. ` 156G55-C `Palo 9 PARCE_ L~1: Lots 1, 2, 11, 12 ar,d 13, as aho~+n upon that certain Y.ap ontitlud, "lu:.endud 1?ep of the Subdivision of the Farr Renc"':, bnin3 the S.E. 1/4 of Sec. 26, part of the S.N. 1/4 of Suc. 26 and N. 1/2 of tho TI, £, 1/4 of Soction 37 T. 7 S. R. 2 H. H.D.H.", which Yap was fllad for record' in the offico of the Recorder of the County of Sente Clara, Stntu of California on July 26, 1907 in Book L of Heps, et pale 90, and the Enat one-half of the Northwest quartor (East 1/2 of N.N. 1/4) of Soction 35 in Township 7 S. R. 2 N. H.D.B. ~ H. EXCEFTI1fG T.~REFRO1i a tract of land conveyed by Frances Elizabeth Parker to George Rothermal, Dy Dce~1 dated October 17, 1920 and recorded October 16, 19:0 in Book 521 of Cuedc, at pate 5~+3, end note Particularly daacribad as follows: Beginning at the ltortlraast co:•nar of that certain piece or parcel of land described in I;erC of F.udolph F. Ohm and Emma Ohn, his wife, to 12~encas £lizcbgth Parker, dated tiay 19, 1920 and rocorCad Hay 29, 1920 in Eook 518 of Deeds, at page 97, Records of Santa Clare County, State of California ar,d twining thence in a Nastarl Southa^ly line of land Dalonging to G. Rotl:erme116VCfaet;ethencahin a Southnastarly direction 48 taut; thCnco in an L'actarly direction 72 1/2 foot, eor~ or less, to tho Nnstern lino of a piucn or parcel of land belonging to C. Rotharrral; thtnca along paid ling in a Northwusttlrly ' diractior. 8S taut to the point of beginning, ar,d Doing a part of the £ast one-half of the. Northwest ~uartar of S::ctiori 35 T. 7 S. F., 2 W. ALSO EXCEPTI1tC TiIEREFP.ON so much the:•eof, as conveyed L•y Valley Title Cospeny of Santa Clark Cu~nty, a corporaticn, to Fzninsula Recreation In=•, a corForation, l,y Deiud dated Daca,r!~~r 2], 1959 and recorded Dacacbcr 23, 1759 in Hook 4170 of Official Rocords, pafin 309, and c?ro particularly described as fo:low9: Portion of the. Northerly 1/2 of Snctio~i ]S, Township 7 S, Range 2 N., N.D,B, C ti., and also portion of Lot 6 and Let 11 of the "Subdivision oC the Farr Ranch", a copy of.uhich was recorded in the uffien of the Fa corder o! Santa Clara Cowity in -book L of taps, c:t pace 1, a::d an d scribndoi; follous:in Lroo1: L of Ftapa, p,~ga 90, and Lamb rare particularly Deginr.ing at a point which bears S. B9~ )?~ ~;, 6e,C0 feat fron the corner eort;on to Lots 6 end 9~of said Subdivision, sai:: co-~,on corner being also tho Northeast corner of the Easterly lielf of the tlortl~west (Cent'd on next page) E:tF{IEIT "A" - Page 1:of 4 .~ . f ~, ~t ~~ . ' ':;' '..1,. :lq '.~ _' ~.:.'~ V '_ -~' .~ l -. .` .j) 1 1 .~ i i t . t ~1 ,~ - a 156GG5-C • 1'aga 10 . ~ ~~~ ls5! ~~ qunrtar of said Suction 35• said point LainC e;usignatad un paid £ubdivision ~P as "F-11", thanca from~said point of Dajirrrrinr alone thb Suutlrarly ling of Lots 8 and 9 of sai,f Subdivision .Led fire tlortharly lies of acid Section, S, H9°~27' ~, 1,271,30 fabt to a 3/v" iron pips Crura uhirh point •lins e 3 x 3 reJuood stake rwrkad 8/0 ),aar•9 :I, b9° 27' L', 50,79 foot; thoncn S, 0° S1' OS" L', ?,314,00 fact to a )/v" iron pips nonucwnt;'"~ thanco N, •43° 32' 30" ~1:,, §04,04 fart to a ~/4" iron pips t:onurr,nnt} thane. i;. 33°. 26' 40" r, 511.6 font to a 3/4" iron }rips monutrant; thanca. N. 69° 06' 10" 1:, 339,29 fbat to a 3/4" ilVtr }ri}+u raonumant; thbncb S, SO° 41' 41" L. T21,98 fast to a 3/v" iron pipe rronur;v;rrt; thanca li, 6° 0' 0" C, 550,00 feat to a point in tha center lira of a crack fMtt which point a 3/4" iron pips monunant ba.t rs ;I, (° 00' UO" L•, 30,00 fbbt; thcncn along the contbr lino of said creak !., (,3° v6' 00" L'. Bv.?7 fbat; N: 14° 23' 00" C. 270.17 feet; H, 77° 00' 00" !:. 07.00 Cant aniJ' N. 43° 21' 10" C, 319,90 fact thance lbaving the center lira of said croak N. 1C° 30' 00" L, v0,00 fact to n 3/4" centar line of Pros pact Ruad• iron I'ipa monumant lying itt the ' road; N, 83° 39' 30u tr, r thance along tare cantor lime of raid ° ' 30" ;{, 103.79 feat to a 3/v" iron pips ^onu"rsnt• N. 73 Ov 91.52 that to a 3/v" 30" N, 83,30 feat to a 3/4". iron i a iron pips munur,:rat; t1, 61° OVanee feet to a 3/4" iron pi},b monunant~ H, 03outVrii tin 14° 11' 10" H,, 143,V1 35° 29' ?0" u, 64.6; fast to a 3/4" 11 20 ~, 171,51 Cae:t; 1!, 11,v0 oat. iron pips r;.orrur..ant and S. 60° 57~ 0" 51, t thanca leaving said cantor line a::d runnirrF ;r: 29° O6' 10" k, 20,OU foot to .; 3/v" iron pips r~urru:rant lyir,E in tha tlot•th- Westerly lino of said road; thcncn t!. OC° 46' 30" :/, v5,97 fu~t to tha point of b'_ginnirrE, ALSO EXCCF'TINC TtiCRE:Fi±Otl that (Nrti,;n tllarauf eurrvayad to the Son Jose.Nate:r Norks, D` DCb~J datr_J January 9, 1761 and racordac: January lU 1961 in Book 5037 u, Official Etacordc, paE, :d3, dasoI•ibed as follows; BaginninE at an iron pi;,a at tha roost i~ortharly curnar of Yarcel "d" as said parcai is shourr un tttet cartair, kbcurd of vu; way of !'s~ lio, 167 0,' the, San Jove ,.'atrr i:orks Asse,srrent lot .lo, 113, and racorde,l in Book 126 of Ttaps at posh 17, records of S.urt.r Cla:•e C,runt%; thwrce South v0° 17' Last lU,3S fiat to an iron pipe; thcncn fron a tan);,:nt that bbars South 49° 33' .Slant curving to tha left th:•ough an .utgla of 6S° 30' With a r.rdius of 60,07 feat ,• feet to an iron i a• fO~ `n 'at'e c.lstanca u, Gti,S9 15° 57' P p , thoncn tangarrt to. tiro 1.rst rantior,cd curve South Cast 107,00 fact Lo dit iron pips; t`retrce tan};ent to tiro la~l r.~ntionad coursu, curving to tha right througl; an arrgla .rf lcv° lr,' 3U" with a radius of 92.07 foot for an arc dista.•rca of 2;5,;3 fiat to an iron pipe; thanca fron a tangant that Daars tturtfr 11° 41' 30" W.:st. and leaving said curve Nortlr 6° 00' t:ast 27,81 Coat; tlr~rrca I;or[h 63° 4(,' East ev,2? feet; thanca North 14° ?)' L'as; 19,45 fact to an iron pips (Cont'J on naxt pa`o) EXHIBIT "A" - Page 2 og L N T I f ~f~ ~.~ •~ ,~ tl ~ , :. • . :~ ~ ~i `a . F '~ .;~ }~ .i _ . J F ~ 3 ~y :'1 e I i I i t .-_ • .. - !' ; n • r in the Northerly lino oC the above nbntionad ~~ L ~~5 l~~f ~~8 said Northerly lino North el° 13' Eest 47,6@ faatyto the point~ofleng Daginnino. BsinE all of Pdreal "f3" as shown on the aforvrm~.ntionad Aocord~of Survey, Tognthar with tha.parcel u! land first t~arain daacribad an basnreant for the purpose of ingress and sZrasu, and the 3ristellation and across thanfo2lowingcdescribodspQ colaofrltnda lines ova r, under and , 8n ginning at a point which Dnara S, b9° 27' N, 64,00 foot from the cornar co:nc,on to Lots 6 and 8 ns said Lots aro shown on the tine. . of the Farr Ranch, herainabova r•fa^red Lo; said comrcon cornar Laing also the Northeast corner of tho iastarly ono-belt of the Northeast gdauait•r of Suction 35, T. 7 S. R, 2 u,, M.D,B. 6 N., acid point being pointnofnbnginnind gap of the Fnrr Ranch as "F-11"; thunc• from said B 0 46 30 C. 45.97 foot to an iron Pipe; tlranem of ProspactlRoad• 20.00 foul to an iron pipe set in the cantor linen 60° 53' SO" ~ thanca along said cantor :ins of Prospect Road N, E• 12.40 .feet to a 3/v" iron pips found at an an la tharain;, thanca continuing along said cantor lieu of Proo~act Fa gist 35° 29' 20" E, 64,@2 feat to a 2" x 2" hub sat in the canterlina tharaof °t an angle point therein; thanca continuin along said cantor lino of R~onpoct Road S. 03° 12' 20" E.~127,51 lea-Eto a 3/4" iron pipe found et"an nn;;ln point therein; caid point Doing the Trua Point of Ely ginning of this daacription; thence S, 65° v7' S0" ;r, 20.00 feat; thanca S. 1B° OS' 4.', 211.19 feat; thanca Southerly e,rd Casterly alonL a curve to the left with a radius of b0 fact and throe^h a control angles of 9S° SO' for an arc distance of 1]3,tl1 feet; t!:~nca S. 77° vS' E. 7v,00 Post; thenco l:actorly arrd Southerly along a curve to the; right with a radius of v0 feet and through a central an^'_e of 111° v5' fo±• an arc ~istnnce of 82.21 feat to a point of corr:~ounC curvature; thanca co:rtinuing Southerly along a cures to the left with a ru~.ius of 200 feat and through S.c16°rl~~ayplnu f 13° 17~ 20" for a:i arc distenca o.° 46.39 fa at; thnnc• E., 15.00 foot fron6a73/4"airon aipoint w"ich bears S, 58° 58' 10" £. el feet; thnncu 1t, 2S° 29' E,p7B, V+onu^ent; thnncu it, 770 00' QO" along n curve to the left with a radiusfof~l00hfeec la.Jdtthrou,hnu til°stcrly angle of 103° 14' for an ace distance of 140,1@ fund thence h, 77;°45ra1 ~'. 77 foot; thence i:usterly end Northsrly eio;,p, a curvy to the ri ht with n radius of 20 font th rough a central ankle of 95° 50~ distanco of 33,45 fast; tnancn !~, 18° OS' ~,; F a curve to the right With a radios of 30 f ~ 67'00 feet; thafce alonEc ee; ~~~ through a central ~: (Cont'd on r.axt p.rEyl EX~fI3IT "A'' - Page 3 e: 4 ..-.~-~! b ~~` ~~ t~$ 42.; - 15@665-C . Pagy 11 '~ - . ;:~ ~`t ~ • ..:•`: , 'r i • • •~• .. . !• i - ~~ .e . ~e ~. _ • •. ~ ~ ~~ • ~ .. 1~obG5-C I'a~;a 11 • ~ ~ ru:• angle of 9v° 15' for an arc diatdncu of w9. 16 font; ;han~rn L'. oE° 40~ C. 97,00 fnet; thence U. ?8° SS' rnnunent found in the cdntar Tinnlof P~a0.00 lust to a J/a" . canter line of pact Poad• it•on pipe iron pipe annua~~sPnetRoad, N. G1° 04 ~ JO" {•'. 'H3..10}~fat:t tooaF3/ha Prospect Road, N•t?V;unc.~ thence continuing nlor,r the caninrlina of 1? 10 }f. 143.41 fuat t~ the true point of bCCinnina. FARCE--~O~2 COHHENCIhG at thn cunnon corner Cor Sections ?S 7 South, Range ? Wtst ,~ Enstarly lino of s ~ D.H., rurtrt.rrR tlrnncn S~uthurlY6alon 3S' ~°wnahip Westerly ?0.00 chains;Jtiranca dt~ri,lt chains;, thnncn.dt righttanLlus I(orth lino of said Section JS at~d tl rnce atnriphiter1S•?S ehaina to thn chains to the point of hnsinning, and bain, Flns L~sturly•?0.00 of_tha Fortheast quarter of Section 35 F a P•srt of the East ena-half }lest H., toLathGr with a rifht1ofTManshi 7 '' , Ranpa•2 East~lina•of G P .+outh above da5cribadnlandrtoathaNorthe,ast qunrtar of StlCtiOn 3S de alon- e, the tho Southwest corner of the JOiacref intersection of the frOr' the and Cnrrie }{, ~°rdon tract rOi'd"dY at his vita ~ Iris Wita, to ;•1rn, Grsntwd by Jay. L'. Gordon . by Dead dated Harch•s and ruccti~drdnlar~Ad5or18gV Book 169 of Duds, p 6n ?g ~ lg9° Cotter, a , Santa Clara In County Rec°ra. EXHIBIT"q" _ page 4 of 4 L EXHIBIT 1(a) ,~ . _ .._~_ . _.----=----- ' y .:.. 7345104 ,vALI.P.Y TITLC CO'iPANY ~ ~ y ae ~ d ,t~C~~~~P~°dq~m:ii7co:~ce) MODIPICATION OP yQuCj7 1Tt18 ComponD ,l ley Tftle Company a S. Flrac Street DECURATIO[t OT ttFSTaICTIOHS ppR $~ 1982 Lout m Jos., G 93117 G742~ -~~383 ccorlcE x w,lSn, Rtttadar Y1lERF1~3, theta vas i Declaration of Yestrleti~ni~`eii~'ua[ed~ by VALLLY TITLE COHPAIIY, a corporation, recorded September 20, 1979 . i.n Book L805 of Official Yeeorda; Paye ]26 - ]49, Sanca•Clara County Itacotda, affecting all of '7ract tto. 6326", which Hep tae filed for record in the office of the ttaeordar of the County of Ban u Clara, State of California on April 2], 1979, in Hap Eook 448 at Pates 23, 26 and 27; and YItLALl3, the undersigned, a^ owner of more than 732 of the to a 1n said Tract tlo. 6526, desires to amend and modify ^aid Declaration by chanting Article I, Section ], Page 1; Article I, Section S, Pigr 2; Artie le VII, Section J, Page 12; Article LX, Section J, Paga 16; and Article IX, Section 6, Page 11, thereto NOVTHEREFOPS, the undersigned, ae a+mer, does hereby amend and mdify said Declaration as. to Article I, Section ], Page •1, Arelela I, Section S, Page 2; Article VII, SectLoni], Page 12; Areiele IX, Section ], Paga 16; and Article IX, Secclon 6, Page 17, and hencsforeh said Section shall ba as lollors: ArtfeIe I Seetton ], Page 1: "Property" shall Wean :nd refer co cha[ certain real property hereinbefore described as "Lots 4 thru 9 in- clusive, and 14 thru 19 inclusive, TYac[ lto. 6526, and Parcel "A" a show upon that a rtaia Parcel Hap recorded Hatch 12, 1982, in Boot. 497 of Haps at Paga 19, and, Pazcels "A" and "B" as shorn upon that certain Pareei Hap recorded Hatch 12, 1982, 1n Book 497 of !taps at Pase 20". ttf C f EE `l' • IIlCRO I.EN NOT . SIiPf j " ~- C?42~ 384 Article I Section S, Pale 2+ "Lot" shall scam and refs co any plot of laad.sharn upon the recorded Subdivision ?tap of the property, as amandrd.by recorded . Tareel 1{ap, rich the ezception of the Coaaaon Araa, Article V27 Section ], Paze 12: llwellinx Cost, f7wlit• and Size; Ito drelliag shall De permitted on any lot at a cost lase than 3130,000.OO.based upon coat levels prevailiaj oa the • d.a[a these eoveaanta are recorded; It being the intention and purpose of'.tha covenants to assure that all dwllint shall be of a•qualit:y of rorkaanship and oaterials wbstaatially the same or bat ear than that rhleh can be produced on the data chess covenants are recorded at the minimum cost stated herein for the ainimum permitted drnlling size. Tha floor area of the suin structure. , escluaive of cha ~aragcs, shall not be lase than 2,000 aQuare fact. Tha design of all structures co be built upon all iota situated rithln Tract 6526 and 6528 a1u11 be aub~ect to the za- etzictiona and procedures sec forth in Ordinance Dto. NS-3.17, the Daaiyn Raviw Ordinane~. Artie le IX, Section 3, Page 16: Pools: Pool^ are to ba placed on slopes of 305, or leas ar+d rill be sub~eet to City Staff Design Itnviar to insure correct placement in zsLation to crsas and slope. Decisions of s!Ld City Staff may be appealed to the planning Comoniaslon through the Design t;evisr process. Article IX Seeelon 6, Pa Re 17: Frnces and Vella; Penees, rails . and hedaaa may De constructed or planted only per the Clty~•of Saratoga'a HC-RD Zoning District Begulacion - "prozimata co the principal ecrueture and in no event•to anelo~s or aneompa a an area in azeua of 4,000 square feat'.'. Peneina to be rood fraw rich viva reh. ,• i . . _2_ ~ I • • ~' • • f '• - . ~ .• •.11 otter carer-.nd emdicion• of the Decleretion o[ taetrie• ~ ~~ • Ilona harefnaDove refetTed to'ehell rasala Ln full fotti and ~ ;~,~':•. •ftalt. .. •. _ , • i tel:' • _ • Lit StIt1Q3S 1tlQS.T-OT tha wsdere! •d haw hereunto aftiarad .• _, .~ ••?.`.~. •. • ~ 1st:. .. ' _••::.:•` t-efr LsnQ acnd seal.this 21st 4L of Ayril _ ,: +;' ~ - .. a -~' ,i . ~ ~ .f , fIIS:LY 22111 CO • . • ~ ~ .. • • ~ ~- ^ f . sTt . ~• - S'CAtE OF ULIFpRNIA ) SS. ,apt77~i'Y Of S.A1tTA CIJ1fU) ___•..--.-- .. • pyl APr11 2I' _3412., hefo» ^•, Clenda It.'Vitter~. s xarady bbl c. . State of Calttornla, duly cotoalasioned and sworn. personal) aDPe acoknorledtadtto aetthatche •:ecutadnthe fsaou acr a to t • rl n nattuaon and • IK YIT-tESS YHEREOf I har• hereunto saan~Yy~~Tdinn~hiafcartl~catelflratsabore la the said County of Santa C1ars the day - . rrittee. ~ ~ ' ~ ~ G~pA µ VIC:(1 RS • ~'~j~' de. w. .•••• on ~ tc "er ~ ota fY u 1C ~`»~ c,•,. s.. s... ». ~~~~ State of California S c:. .', '~, ,• . ;~.: • , '. .. ~ a • '~. ~ ~f 1 7? 1 1A? _- 1~~ ~ ~ )rf N~ } rJ Jr „'~ c..~r wJ 1rlr.•..4 wJ++r ~ ~~ ~ ar r M.l. f..~ .._~~+rLYf r• pry,r aal ~ .. ~r.u."lorsllc +.+.•••~ .d r.....~ .+ ~. a w W p....~.f w ..vr~ w ..~: • ~ w rp.+r•• Mr _ - • w ~...y.'.. ~ .a•.~•4•+ r r rr ...d .~l•.+..~"'^I w ...~ • ~ynR~S - - vytior.u TO • L(1rG Td to w) ~ ~ ~ `I ~~•~ .pIJt M1MC• ~ • W v CO.•!•~l ~ I M U..w -•+ ~ ~p~QVR i EXHIBIT 1(b) - V 1C Bt 1 72651 tPUU~1PAtIY ~f1~221C~ •/ WIZEN RECORDED t•1A1L T0: - Reca,ledald,e VALLEY TITLE COhIPANY ~ • ~ yQrje ~t1 ~ 300 S. First Street ;.:;:.I;, ~ T ~~ ~ y True Comppny San Jose, Cn 95113 "~'~~ '..._~__I - ' JUL 111984 8:OpgM -~ ~ -- GEORGE A MANN, Recorder 1 :i I.. I' i ~ S+a4 Clw C'~h. O(Gdal Recad~ h10DIFICATIOhI OF RESTRICTlON.S WHEREAS, there was filed for record a Ueclaration of Restriction, dated August 21, 1979, executed by Blackwell Ilomr.s, d partnership and Valley Titlc Company, a corparatiun, and recorded September 20, 1979 in Uook EUOS of Official Records, page 326, affectiny all of 'tract No. 6526, which map was filed for record in the office of the Recorder of the County of Santa Clara, State of California on August 23, 1979 in Book 448 of Maps, at. pages 25, 26 and 27, Santa Clara County Records; and effecting all of Tract 6528 which hlap was filed for record in the office of the Recorder in Book 499 of Maps at pages- 35-41 Santa Clara County Records. WHEREAS, the undersigned is the record owner of 75~ of. the lots in said Tract Nos. 6526 and 6528; WHEREAS, the undersigned is the record owner of 75X of the lots in said Tract 6526 and 6528 does hereby amend and modify said Declaration of Restrictions by changing the following paragraph: ' Section 3.' Pools: No pools (except spas) may be cons- tructed or permitted to exist in: (a) Tract 6528 on lots 12, 14, 15, 2U, 32., 33, 34, 37, 39, 40, 42, 43, 50, 51, 52, 53, 54, 62, 63, 64, 65, 66, 67, 68, 72, and 75 (b) Parcel J as shown on the Parcel Map filed for record on July 1, 1982 in Book 504 of Maps, Page 5, Santa Clara County Records (c) Parcels ht and N as shown on the Parcel hlap filed for record on May 25, 1983 in Book 513 of hlaps, Page 17 in Santa Clara County Records (d) Parcel E as shown on the Parcel hlap filed for re-cord on September 1, 19u2 in honk SU4 of Maps, page 8 in Santa Clara County kecords. Pools on the remaining lots are to~be placed on slopes of 30A or less and will be subject to City Staff design review to insure correct placement in relation to trees and slope. Decisions of said City Staff may be appealed to the Planning Cormission through the Design Review process. The approvals for pools on Lots 8, 21, Parcels F, L. and K are to be reviewed and approved by the Planning Commission at the time of the Design Revie~•r of .the main residence. Restrictionslhereenabovesreferreddtor~hallfremainDeinafullofo~ce and effect. Uated: April 16, 1984 M. C. JOIIVSON, 1, ;, I„~~~ ~~~ ~ ~~ C.J hi .J o l d rLgyr.il • i d c n t ~ ~ V _ ,~ ~<~~ L.-r~~•~v~r.~~-r i G`7 i/ ~~sN'!~~1~~Ti~ ~~ VALLEY TITLE COh1PANY',`°"~ ~e::~ A CORPORATION •~ !' c Pete Borello Executive Vice President ~•~ ;, I3Y .•,..~..rc. •~..- e~ ~~ GRU/1:R C. ,r,INSLCi~j',•c'E- J unrr~v rtrr~ r-nsrunr.ly ~ T:17 '~7 •).C ii State of California I County of Santa Clara ~ SS On this. /0~` day of .r,~ .~ personally appeased ,, a n the ear `~ ,. before me, Grace E, -~ - • -~ " ct r r~. x11 ~ u ~ ,persona 11 _. ~' (or-pros-~}-{o--me.on ~t basi ~of• E;atis crnty Au;rta,~.o~ t... ,,,,Y ~'x,w~n_t°Cme r STATE OF CALIFORNIA, u. county ,1 .. ............S.d ~.t a„Clara ) On .......July „ 2 a.. 1. t7.~ 4 ............................. . Ae/are nee a Narary PubtiC in and /or to%d CounrY and Stare persona/!y appeared P P, t ~ . Q O.~CCe r .I.O ......................................known to me or proved ro me on tree bash o/ tarrtlacrory.eridence to be rho ................. F.x e.4 ~ Y.~. ~.Q ..~ ~. Q.e Pretiden t 9h1(X .............. . ............................................... x n~wa co n~1 wx,n~x ~w~a navs~xxrwxxrxr.~x~tr~wa~x~ wax w x........... .~a~eeee,x ......................................... or rhs corporation that eaecuted Ma within and /oregoing insrruman t, and elsa known to me or proved to me on the Lasi: or saritlactory evidence STATE Of CALIFORNIA u. ~ COUNTY OF SANTA CLARA on ........ J,u l.y„ 2,, . ,19 8 4. , . , , , . , , , , berore me, tha undersiyned, a Notary Public in and for raid County and State, personally appeared ... Cy, r ~ $ , ~ ~„ S o,i.O n ,, ... , . , . ,known to me or proved to be wch b y the oath o/ a eredib/e witnett ~ ro be the person whore name it tubrcribed to the within inttrlumen(as wimeu rhareto, who, being by me duly sworn, dcpoted and said: That. ,h e , , , , , i t•t;der;n,.,,,,,an,ta,C1,~r~,.Co.,,,;rhar...lr.e....., watprerenrandtaw,,,M.~...J.ohnSO.na..kn.owo..t.o..him.... to.~e,the.President•of., 1,C..,J•OHM. OPl,,, ,,,a.nd,.kn.01'!n,.x.Q.,h,i,m..t.o..b.e..the..p.er.s.on h h 5.... iNC.. ~h~..a~c~Cnowgedge'~"~ot~iim••~~ia~~rsuc•~itco°~~~I~a~•~o•n°ex~cl~t~8''QR~a~~~e•t~'~i6ein named x7c'~(`k~"~"~xxxxX~9Qit7l7lX9Pzt5;3hRR`x9Qx4(l~9CX71rxD(rx07~)1 KS(DGtxtxxx.xxwXrd6ddyrJ}rxYrkiGiUdxYexL6~sYrtYrxtJ(.9(kJ0'y3Erxxxx STATE OF CALIFORNIA st. UOUNTY'OF SAANTA CLARA On , , , , , , J 41,1 y . 2 , . _~ 9 8 Q , , , , , , , ,, , , , , be/ore me, the undersigned, a No rary Public in and for sa;d County and Stare, personally appeared ....... c yr U ,S.. J,, „S_0 ~,Q n, , , , , , , • . known tome or proved l0 6e such 6y the as fh o/ a crcdibfo witneti to be the person whore nom it subscribed to the within instrument at wirneu rhncro, who, brin~by me duly sworn, dcpoted and raid: That . f12, , , , , , r..tidet in ........ ......... .......... : Santa Cara Count,y;rhar,. he war «entandraw,,,,ry,ce.L.••Reynol.ds,.,Lova•_L•;_,,, eyno ds, Grover C:.,S~nsley, Betty R. ~ins,l,ey, Raymond 0., _.Si,n.sl.ey,..y.erna. Jean Si.nsley, Ste.yen II_,, ttann ,and Sus~ri H. M n .. • ~. ..~ •. .... ........,personally known ro .h.i.m. .. „to fx the penon$ ..... dtscr De0 in and w5o execurd the within instrument as partl e $.... the eta, sign, tea! and deliver the same, that said parr l.eS acknowledged ra said alliant that ~Ry. , e><tcvted the tame; and that said al/imrt tuburibed, , h 1 .S . ,name thereto as a witness. WITNESS m y hand and ollieia! seal. ~r~.`.. S. YIL~Ati e'C[ :,. ~: ~ ............~.:. ,~'.~.a.~,~.. d ~. ~'' NOUer aL'3u: • GUrpanA Notary .... •...... • • . "t ~°"~".cr°°" 1"'", ta.,, . rtes I YrITNESS ACKNOWLEDGMENT ~- ----- vTC•ue EXHIBIT 1(c) ~,.- n.- _D COPS; : This uocument has t;C~~~~:-~-•.~• ~-.---~ ~viFh thQ original. ~~:,;~;~, ; Cl_~+~~~ COUNTY RECORDER Recording Requested By: When recorded send to: 101 2052 A? ~~•OUES? Or ,~~ r•~~~ -; hiar ZZ 3 s9 PH '91 .: ~•^ ~ J ~ i~;tt~7 SA4TA C ~:~n~ COUiYT" !_A!;E;lE KANE ~ L.~v,l RCCO;iOER q;,t;~:~ 9 ~~~t3F; Parker Ranch Homeowners Association P.O. Box 3077 Saratoga, CA 95070 AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS WHEREAS, a Declaration of Covenants, Conditions and Restrictions, dated August 21, 1979, executed by Blackwell Homes, a partnership, and Valley Title Company, a corporation, which was recorded September 20, 1979, in Book E805 of Official Records, Page 326, affecting all of Tract Number 6526, which Map was filed for record in the office of the Recorder of the County of Santa Clara, State of California, on August 23, 1979, in Bco': 448 of 2?aps at pages 25,26 and 27, Santa Clara County Records; and affecting all of .Tract 6528, which Map was filed for record in the office of the Recorder, in Book 499 of Maps at pages 35 through 41, Santa Clara County Records, by Declaration of Annexation; WHEREAS, a modification of Declaration of Restrictions, dated April 21, 1982, and executed by Valley Title Company, a corporation, and Romano R. Durini and Zlatka Durini, was filed for record on April 23, 1982, as Instrument Number 7345104, at Book C742 of Official Records, Page 383,. was recorded making certain modifications in the Declaration of Restrictions as set forth therein; WHEREAS, a Modification of Restrictions, dated April 16, 1984, -- executed by Valley Title Company, a corporation, M.C. Johnson Inc., Bryce L. Reynolds, Lova L. Reynolds, Grover C. Sinsley, Becky L. Sinsley, Cyrus J. Solon, Raymond D. Sinsley, Verna Jean Sinsley, Steven H. Mann and ,Susan H. Mann, was recorded in the office of the Recorder of the County of Santa Clara, State of California, on July 11, 1984, as Instrument Number 8122210; WHEREAS, the undersigned represent record owners of the lots in said Tract Numbers 6526 and 6528 who have approved of the following amendment and modification to said Declaration of Restrictions. by more than the minimum requisite vote; Article IX, Section 6, currently states: .Section 6. Fences and Walls: Fences, walls and hedges may be constructed or planted only per City of Saratoga's HC-RD Zoning District Regulation-"proximate, to the principal structure and in no event to enclose or encompass an area in excess of 4,000 feet". Fencing to be wood frame ,with wire mesh... is hereby amended to read as follows: Article IX, Section 6, shall be amended to state: Article IX, Section 6. Fences and Walls; "Fences, walls and hedges may be constructed or planted subject to the following rules as adopted by the Saratoga Planning Commission: A. No more than 500 of a lot area, exclusi~: a of ary portians designatec: as open space, may be enclosed by a fence. B. No solid fencing shall be permitted as stipulated in Section 15-29.0.20 of the Saratoga City Code (which permits 60 feet of solid fencing to provide privacy). C. .All fence enclosures greater than 50% of the lot area in existence as of August 8, 1990, may be approved by the. Planning Director. .Future requests .for fence enclosures exceeding 500 of the lot area shall be reviewed and approved by .the Planning Commission as a modification to the approved fence plan. D. All fences shall be set back a minimum of twenty (20) feet from property lines, except that fences shall be s.et back thirty (30) feet from the front property line (the street side). E. All proposed- fence plans shall be submitted to the- Planning Director of the City of Saratoga and to Parker Ranch Architectural Review Committee for review and approval. F. Prior to the Director's approval of the fence plan, a comprehensive landscape plan shall be reviewed and approved by the Planning Director. Landscaping shall include indigenous and drought tolerant species that will be complementary to the vegetation currently within the open space areas. Upon completion of the fence and landscaping, the Director shall conduct an inspection to insure satisfactory completion of the landscape plan. G. Fence styles. deemed approved shall be limited to black wrought iron ,fencing with no spikes or pointed edges, wood- frame fencing with wire mesh and open wood. slat fencing. H. No fences shall be contiguous with any neighboring fences. I. Side and rear yard fencing may be located on property line with no setbacks when such fencing is adjacent to dedicated open space. All other terms and conditions of the Declaration of Restrictions, as modified, amended and recorded affecting Tract Numbers 6526 and 6528 shall remain in full force and effect. IN WITNESS EREOF, the undersigned have executed this Amendment this ~ day of , 1991. IN D SYWAK resident Parker Ranch omeowners Association K LAWSON, Secreta Parker Ranch Homeowners Association STATE OF CALIFORNIA ) ss COUNTY OF SANTA CLARA ) On th~.s ~~ day of ~ ~~,~,~ , in the year 19~, 1-~cf~rc~ mo• '.•hP t~nc3Prsicrr~~d. a Ota"tV P11b11C In and for said State, GENERAL ACKNOWLEDGMENT o,,~2; • State of California • SS. County of : : ....................................................................... . On this the-day of 19~, before me, /~/ c C , the undersigned Notary Public, ersonally appeared j~j personally known to me O proved to me on the basis of satisfactory evidence • OFfIC1AL SERI no~aY P~i.g~t-c~o r+u Co be the .person(s) whose name s . -ice - "~ ( ) subscribed to the SAttTA CLARA COUNTY within instrument, and acknowledged that -~~ Pxecuted it.. M A'4t. EXP, l?CT. WITNESS my hand and official seal. ~` ~, r- setbacks when such .fencing is adjacent to dedicated open space. A11 other terms and conditions of the Declaration. of Restrictions, as modified, amended and recorded affecting Tract Numbers 6526 and 6528 shall remain in full force. and effect. IN WITNESS EREOF,. the undersigned have executed this Amendment this ~ day of , 1991. ~f` ` IN D SYWAK resident - Parker Ranch omeowners Association K LAWSON, Secreta Parker Ranch Homeowners Association STATE OF CALIFORNIA ) ss COUNTY OF SANTA CLARA ) On this ~~ day of ~ , in the year 19~, before me, the undersigned, a of Public in and for said State, . personally appeared o,pP •I~i>>F/,~ personally known to me (or proved to me on the basis of satisfactory evidence) to be the person _~, whose name ~ subscribed to the within instrument, and acknowledged that the X it. WITNESS my hand and official OFFICIAL NOTARY SEAL GREGG E KRAEf`4ER :(~ - Notary Public- California ~`~ ° . SANTA CLARA COUNTY ~ • y ~ MY Comm. Exp: CCT 08.1 ~4 EXHIBIT 2 BYLAWS OF ATHE PARRER RANCH HOMEOWNERS ASSOCIATION ARTICLE I NAME AND LOCATION The name of the corporation is THE PARKER RANCH HOMEOWNERS ASSOCIATION, hereinafter. referred to as the "Association". The principal office of the corporation shall be at a location within the. County of Santa Clara, State of California, as may be designated by the Board of Directors. ARTICLE II DEFINITIONS Section 1. "Association" shall mean and refer to ,THE PARKER RANCH HOMEOWNERS ASSOCIATION, its successors and assigns. Section 2. "Property" shall mean and refer to that certain real property described in the Declaration, and such additions thereto as may hereafter be brought within the jurisdiction of the Association. Section 3. "Common Area" shall mean and refer to all real property owned by the Association or over which it has a right of use for the common use and enjoyment of the Owners. Section 4. "Lot" -shall mean and refer to any plot of land shown upon any recorded subdivision map of the Property with the exception of the Common Area. Section 5. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of the f ee simple title to any Lot which is a part of the Property, including contract sellers but excluding those having such interest merely as security for the performance of an obligation. Section 6. "Declarant", as used in the original Declaration of Covenants, Condition and Restrictions,, shall mean 'and refer to Blackwell Homes, a partnership; Valley Title Company, a corporation; and their .successors and assigns if such successors or assigns should acquire more than one undeveloped Lot from the Declarant for the purpose of development. Section 7. "Declaration" shall mean and refer to the. Declaration of Covenants, Conditions and Restrictions recorded in (1) the office of the County Recorder of Santa Clara County, State of California, on September 20, 1979, in Book E805 of Official Records, pages 326 through 349, affecting all of Tract Number 6526, which map 'was filed for record in the office of said Recorder on August 23, 1979, in Book 448 of Maps at pages 25 through 27, and affecting all of Tract Number 6528, which map was filed for record in the office. of said Recorder on May 3, 1982, in. Book 499 of Maps at pages 35 through 41, together with any modifications, amendments and revisions to said Declaration, subsequently approved and recorded. ARTICLE III MEMBERSHIP AND VOTING RIGHTS Section 1. Every Owner shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot which is subject to assessment. • Section 2. The Association has currently one class• of voting membership, referred to in the Declaration as Class "A". Pursuant to the terms of the Declaration, all Class "B" membership ceased and converted to Class "A". Section 3. Members shall be entitled to one (1) vote for each Lot owned. When more than one person holds an interest in any Lot, all such persons shall be Members and the vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one (1) vote be cast with respect to any Lot. ARTICLE IV MEETING OF MEMBERS Section 1. Annual Meetinas: Regular annual meetings of the Members shall be held during the month of February at such times and places within the County of Santa Clara, State of California, as may be designated by the Board of .Directors. Section 2. Special Meetinas: Special meetings of the Members may be called at any time by the President or by the Board of Directors, or upon written request of twenty five percent (25%) of the Members who are entitled to vote. Section 3. Notice of Meetinas Written notice of each meeting of the Members shall be given by, or at the direction of, the Secretary or person authorized to call the meeting,•by mailing (2) a copy of such notice, postage prepaid, at least twenty (20) days but no more_,than sixty (60) days before such meeting, to each Member entitled to vote thereat, addressed to the Member's address last appearing on the books of the Association or supplied by such Member to the Association for the purpose of notice. Such notice shall specify the place, day and hour of the meeting and, in the case of a special meeting, the purpose of the meeting. Section 4. quorum: The presence at the meeting of f iffy percent (50%) of Members who are entitled to vote, or of their proxies, shall constitute a quorum for the transaction of business at all meetings. If any meeting cannot be held because a quorum is not present, the Members present, either by person or by proxy may, unless otherwise provided by law, adjourn the meeting to a time not less than forty eight (48) hours nor more than thirty (30) days from the time the original meeting was called, at which meeting the quorum requirement shall be twenty five percent (25%) of the Members who are entitled to vote. If any proposed action is favored by a majority of the votes cast at any meeting, but such vote is less than the required percentage necessary to pass the proposal, Members who were not present in person or by proxy may give their assent in writing provided the same is obtained by the appropriate officers of the Association within thirty (30) days from the date of such meeting. Section 5. Proxies: At all meetings of Members, each Member may vote in person or by proxy. All proxies shall be in writing and filed with the Secretary. Each proxy shall be * revocable and shall automatically cease upon conveyance by the Member of his/her Lot. ARTICLE V BOARD OF DIRECTORS; SELECTION; TERM OF OFFICE Section 1. Number: The affairs of the Association shall be managed by a Board. of five (5) Directors, who must be 2•ie::?bers of the Association. Section 2. Term of Office: At each annual meeting the Members shall elect Directors to fill vacancies caused by term expirations, or by resignation or removal of Directors. Elections to fill vacancies due to term expirations shall be for terms of two years each. Elections to fill vacancies caused by resignations or removals shall be for the unserved remainders of the terms. Section 3. Removal: Any Director may be removed from the Board, with or without cause, by a majority vote of the Members of the Association; provided, however, that unless the (3) entire Board is removed., an individual Director shall not be removed if the number of votes cast against his removal exceeds sixteen and two thirds percent (16-2/3%) of the total votes cast. Section 4. Resignation: Any Director may resign at any time by giving written notice to-the Secretary. Such resignation shall take effect on the date of receipt of the notice or at any later time specified therein. The Board may elect another Member to fill a vacancy resulting from a resignation, to serve until the next annual meeting of the Members. Section 5. Compensation: No Director shall receive compensation for any service he/she may render to the Association. However, any Director may be reimbursed for his/her actual expenses incurred in the performance of his/her .duties, Section 6. Action Taken Without a Meeting: The Directors shall have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written approval of all the Directors. Any action so approved shall have the same effect as though taken at a meeting of the Directors. ARTICLE VI NOMINATION AND ELECTION OF DIRECTORS Section 1. Nomination: Nomination for election to the Board of Directors shall be made by a Nominating Committee. Nominations may also be made from the floor at the annual meeting. The Nominating Committee shall consist of a Chairman, who shall be a Director, and two or more other Members of the Association. The Nominating Committee shall be appointed by the Board of Directors at each annual meeting of the Members, to-serve from the close of such annual meeting until the close of the-next annual meeting. The Nominating Committee shall make as many nominations for election to the Board of Directors as it shall in its discretion determine, but not less than the number of vacancies that are to be filled. Section 2. Election: Unless the number of candidates does not exceed the number of vacancies that are to be filled, election to the Board of Directors shall be by secret written ballot. At such election, .the Members or their proxies may cast, in respect to each vacancy, as many votes as they ar entitled to exercise under the provisions of the Declaration. The persons receiving the largest number of votes shall be elected. Cumulative voting is permitted; that is, each Member shall have as many votes as there are Directors to be elected, multiplied by the number of votes to which he/she is entitled by Article III herein, (4) and he/she may cumulate his/her votes and give them all to one candidate or distribute them among as many candidates as he/she deems fit. ARTICLE VII MEETINGS OF DIRECTORS Section 1. Regular Meetings: Regular meetings of the Board of Directors shall be held at intervals not to exceed three (3) months at such times .and places as may be fixed from time to time by resolution of the Board,- and shall be open to all Association Members. Members need not be notified of Board meetings,-but any Association Member shall, upon request to any Director, be advised of the time and place of the next Boarcl meeting. Section 2. Special Meetings: Special meetings of the Board of Directors shall be held when called by the President of the Association or by~any two Directors, after not less than three (3) days notice to each Director. Section 3. uorum: Three (3) Directors shall constitute a quorum for the transaction of business. Every act or decision done or made by a majority of the Directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the .Board. . ARTICLE VIII POWERS AND DUTIES OF THE BOARD OF DIRECTORS Section 1. Powers: The Board of Directors shall have the following powers: (a) Those powers set forth in Section 5 of. Article V of the Declaration; (b) The power to levy a reasonable transfer fee, not to exceed $200.00, to be paid upon transfer of the title to any Lot; (c) The power to suspend the voting rights and right to use of Association facilities of a Member during any period in which such Member shall be in default in the payment of any assessment levied by the Association. Such rights may also be suspended, after notice and hearings, for a period not to exceed three (3) months for infraction of published (5) rules and regulations; (d) S The power to exercise for the Association all powers, duties and authority vested in or delegated to the Association and not reserved to Members by other provisions of these Bylaws, the Articles of. Incorporation or the Declaration; and (e) The power to declare the office of a Director to be. vacant in the event such Director shall be absent from three (.3) consecutive regular meetings of the Board. Section 2. Duties: It shall be the duty of the Board of Directors to: (a) Cause to be kept a complete record of all its acts and corporate affairs •and to present a statement- thereof to the Members at the annual meeting of Members or at any special. meeting when such statement is requested in writing by twenty five percent (25%) of the. Members who are entitled to vote; (b) Supervise all officers, agents and employees of the Association and see that their duties are properly performed; (c) Fix the amount of the current-year annual assessment against each Lot, and send written notice thereof to every Member subject thereto, at least twenty (20) days in advance o.f each annual meeting. of the Members; (d) Furnish or cause an appropriate officer to furnish, upon demand- by any person, for a reasonable charge, a certificate setting forth whether the assessment on a specific Lot has-been paid. If a certificate states an assessment has been paid, such certificate shall be conclusive evidence of such payment; (e) Procure and maintain adequate liability and hazard insurance on property owned by the Association; (f) Procure and maintain a standard fidelity bond covering all Directors and all. employees of the Association, and procure directors and officers liability .insurance; (g) Cause the Common Area to be to be maintained; and (6) (h) Provide the City of Saratoga Planning Department x with a current address or post office box number. ARTICLE IX OFFICERS AND THEIR DUTIES Section 1. Enumeration of Offices: The officers of the Association shall be a President, a Vices President, a Secretary and a Treasurer, who shall at all times be Directors, and such other officers as the Board may from time to time by resolution create. Section 2. Election of Officers: The Board of Directors shall elect officers at its first meeting following each annual meeting of the Members. Section 3. Term: The officers of the Association shall be elected annually by the Board and each shall hold off ice for one (1) year unless he/she is re-elected or shall sooner resign, be removed, or otherwise be disqualified to serve. Section 4. Special Appointments: The Board may elect such other officers as the affairs of the Association may require, each of whom .shall hold office for such period, and have such authority and perform such duties, as the Board may from. time to time determine. Section 5. Resignation and Removal: Any officer may be removed from office with or without cause by the Board. Any officer may resign at any time by giving written notice to the Board, the President or the Secretary. Such resignation shall take effect on the date of receipt of such notice or at any later time specified therein, and unless otherwise specified therein. The acceptance of such resignation shall not be necessary to make it effective. Section 6. Vacancies: A vacancy in any office may he filled by appointment by .the Board. The officer appointed to such vacancy shall serve for the remainder of the term of the officer he/she replaces. Section 7. Multiple Offices: The offices of Secretary and Treasurer may be held by the same person. Otherwise, no person shall simultaneously hold more than one of any of the offices, except in the case of special offices created pursuant .to Section 4 of this Article. follows: Section 8. Duties: The duties of the officers are as (~) (a) President: The president shall preside at all meetings of the Board of Directors; shall see that -` orders and resolutions of the Board .are carried out; shall sign all leases, mortgages, deeds and other written instruments; and shall co-sign all checks and promissory notes. (b) Vice President: The Vice President shall act in the- place and stead of the President in the event of his/her absence or inability of refusal to act, and shall exercise and discharge such other duties as may be required of him by the Board. (c) Secretary: The Secretary shall record the votes and keep. the minutes of all meetings and proceedings of the Board and of the Members; shall keep the corporate seal of the Association and affix it on all papers requiring said seal; shall serve notice of meetings of the Board and of the Members; shall keep appropriate current records showing the Members of the Association together with their addresses; and shall perform such other duties as.required by the Board. (d) Treasurer: The Treasurer shall receive and deposit in appropriate bank accounts all monies of .the Association and shall disburse. such funds as directed by resolution of the Board of Directors; shall sign all checks and promissory notes of the Association; shall keep proper books of account; shall cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year; shall prepare an annual budget and statement of income and expenditures to be represented to the Members at their annual meeting; and shall deliver a copy of such budget and statement to the Diembers within ninety .(90) days after the end of .the fiscal year. ARTICLE X. COMMITTEES The Board of Directors of the Association shall appoint an .Architectural Control Committee, as provided in the Declaration, and a Nominating Committee, as provided in these bylaws. In addition, the Board of Directors shall appoint other committees as deemed appropriate in carrying out its purpose. (8) ARTICLE XI ASSESSMENTS Section 1. As more fully provided in the Declaration, which is incorporated herein by reference as if fully set forth, each Member is obligated to pay to the Association annual assessments and special .assessments which are secured by a continuing lien upon the Lot against which the assessment is made. Assessments may be billed in two or more installments per year. The Annual assessment period shall begin on the first day of January and end on the 31st day of December of every year. If any annual assessment is increased from that of-the prior year, any installment due before the date of the annual meeting of the Members that year shall be equal to the amount of the last installment of the prior year, and the amount of the increase shall be spread equally over the remaining installments due for that year. Section 2. Any assessments which are not paid when due shall be delinquent. In addition to any other legal remedies of the Association, whether enumerated here or not, if the assessment is not paid within thirty (30) days after the due date, the assessment shall bear interest from the date of delinquency at a rate of twelve percent (12%) per annum, and the Association may bring an action at law against the Member personally obliged to pay the same or foreclose the lien against the Lot nonjudicially, and interest, costs and reasonable attorneys' fees of any such action shall be added to he amount of such assessment. No Member may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his/her Lot. Section 3. Not less than once each calendar year, the Members shall receive an accounting of assessment receipts and disbursements since-the _last accounting. If such accounting shows that a surplus of cash resulted from assessments, the.lLembers shall vote as to whether to refund all or part of such surplus to the Members or whether to have the excess assessments carried over to future assessment periods and used to reduce- future assessments. All assessments are declared to be trust funds. The Association shall receive all assessments as trustee for the various Members and shall apply said funds solely for care and maintenance as provided for in the Declaration. Upon sale or transfer of any Lot by a Member, the Member's interest in the trust fund shall be deemed automatically transferred to and thereafter owned by the successor or transferee of such Member. (g) ARTICLE XII CORPORATE SEAL The Association shall have a seal in circular form having within its circumference the words: "THE .PARKER RANCH HOMEOWNERS ASSOCIATION". ARTICLE XIII AMENDMENTS Section 1. These Bylaws may be amended at a regular or special meeting of the Members by a vote of a majority of a quorum of Members present in person or by proxy. Section 2. In case of any conflict between the Articles of Incorporation and these Bylaws, the Articles shall control, and in the case of any conflict between the Declaration and these Bylaws, the Declaration shall control. ARTICLE XIV MISCELLANEOUS The fiscal year of the Association shall begin on the first day of January and end on the 3~lst day of December of every year. CERTIFICATION I, the undersigned, do hereby certify: That I am the duly elected Secretary of THE PARKER RANCH HOMEOWNERS ASSOCIATION, a California Corporation; and That the foregoing Bylaws, consisting of ten (10) pages, constitute the Bylaws of said Association as d adopted by the riembers at a meeting held on the 9th d~y,of Feb1ua~y, 1994. wson, Secretary (lo) EXHIBIT 3 ...c;SOI;UTION NO. FE-90-001 CITY OF SARATOGA PLANNING COMMISSION STATE OF CALIFORNIA `PARKER RANCH - TRACTS 6526 and 6528 WHEREAS, the City of Saratoga Planning Commission has re- ceived the petition for hillside fencing exception for increased fence enclosure from more than 60% of the Parker Ranch Homeown- ers, and; WHEREAS, the Planning Commission held a duly noticed public hearing at which time all interested parties were given a full opportunity to be-heard and to present evidence; and WHEREAS, the applicant has met the burden of proof required to support said applicat-ion, and the following findings have been determined: The proposed fence regulations do not allow more than 50% of the lot area to be enclosed. The proposed fence style is open and contains no sharp points possibly. injurious to wildlife.. No open space areas will be enclosed by proposed fencing. Conditions required by this resolution require that all fencing be setback twenty (20) feet from side and rear property lines, and thirty (30) feet from front property lines, to ensure the adequate passage of wildlife through open spaces. NOW, THEREFORE, the Planning Commission of the City of Saratoga does hereby resolve as follows: Section 1. After careful consideration of the proposed regulations and other exhibits submitted in connection with this matter, the application of the Parker Ranch Homeowners for hill- side fencing exception be and the same is hereby granted subject to the following conditions: 1. No more than 50% of a lot area, exclusive of any portions designated as open space may be enclosed by a fence. 2. No solid fencing shall be permitted as stipulated in Section 15-29.020 of the Saratoga City Code. 3. All fence enclosures greater than 50% of the lot area in existence as of August 8, 1990, may be approved by the_ Planning Director. Future requests for fence enclosures exceeding 500 of the lot area shall be reviewed and approved by the Planning Commission as a modificat-ion to the approved fence plan. ' 4. All fences shall be setback a minimum of twenty (20) feet from property lines except that fences shall be setback thirty (30) feet from the front property line. Res. FE-90-001, Parks 2anch, Tracts 6526 & 652E 5. All proposed fence plans shall be submitted to the Planning Director for review and approval. -~ 6. Prior to tfie Director's approval of the fence plan, a com- prehensive landscape plan shall be reviewed and approved by the Planning, Director. Landscaping shall include indigenous and drought tolerant species that will be complementary to the vegetation currently within the open space areas. Upon completion of-the fence and landscaping, the Director shall conduct an inspection to ensure satisfactory completion of the landscape plan. 7. Fence style deemed approved by this exception shall be limited to open styles shown in Exhibit "A" attached. 8. No fences shall be contiguous with• any neighboring fences. 9. Side and rear yard fencing may be located on the property line with no setbacks when such fencing is adjacent to dedicated open space. Section 2. All applicable requirements of the State, Coun- • ty; City and other governmental entities must be met. Section 3. Unless appealed pursuant to the requirements of Article 15-90 of the Saratoga City Code, this Resolution shall become effective ten (10) days from the date of adoption. PASSED AND ADOPTED by the City of Saratoga Planning Commis- sion, State of California, this 8th day•of August, 1990, ~by the following roll ,call vote: AYES: NOES: ABSENT: ~~ mot, ~ C~.~ ~- • airperson, Planni g Commission. ATTEST• ecre ry, Manning Commission The foregoing conditions are hereby accepted: Signature of Applicant Date t.. ACCEPTABLE FENCING ST~'LES AT PARKER RANCH YY /r~.i~• ~ ! • i~ may``. K ~ 1. n ~ ~~;, '~ '~ ~ i _ ` ~ V ~~I t ~ .'~•. ,~. ~ - ~~; vim. ~ „jam ~ ~` ^i i. ` ~ ' d~ ~~ r.Ti ' ~ ~~~ T' ~'~ '- • ~'+t f yo.~ ~S ~,~ tip! •~ .t.~ .`fir +~ ~~~•.~.• ~~~_ ~ ~. c .~-+~ . .•Y~.:'i~,' i~•.~.. '=~;. irk ~~~f4~ ~~OOD FRAME FEI~'CI\~G ~`'ITI-I \`'IRE MESH =ir}'} :~!~~ ^~id~r~a.N ~ C'' ~~; M ~1` J ~~I L ~~. ~ !~~ •t?c t1?; .: ' ,~. fi.~7:d+: .,. , . '~'CY'+r: ;ca'p' ~ '-c,•• • .. _ f~.~ Lam- i k .~.scw . •.1. i •~,l ... - ../ it Y iL1 ~fi~YII . ;-~-: ' r~~ ;~~ .~` .. ./~ ~'~~ . ~ ,*' 1 4~~,,.,`.~ •, ~: i~c ~~ ` ' Yom:' :,~~''~: ~~~~~~ :~~ 5~ ~ ~• ,, ~ ~ ~~ . <: •:. ~ .~~~. .L,• ' ~ .'.N".:«.. .~~ „~ "~/ f WOOD FRAME I~E~`CI\TG WITH ~~'IRE I~~IESH Aye _ .. . _~_ ... .. .... _.a`a_~..` . `~ -•.~i ;t7 itr ~ .f ~ / ~~ ~ , . ~ • ~ I ~ r I - i t / ' 1 i ~_~ ,i i`, ~.. 1, 1~ 1F .y _ , ~ '.-i.~~. ---~: ~ ^'~ \ ~ ~ _ ' ~ ±_,~vj . .. ~jyry ~ ?- ~ ~~ y1~~: t; ..J~ ~~ OPEC `~'n0[~ SLA"I' [=LI~CI~G ~ti'}-[IC[-1 IS '~~[::[-THROUCjH" • ;r~ \, ~• ~,r r1~~ ~ ~ ~ ~.. BLAC1~ 1~%EZOUGI-I"h IRON hE\'CII\G ~\~1"I~f-1 \'O SPIKES OR 1'O1~'~"hED h:DG1-: • ~; i 1 r.~. % 1 ~ ~~ _~~, . ~~~~' ~; ALL FENCING TO BE OPEI~T RATHER THAN SOLID MORE TH.~~N 60 FEET OF SOLID FL\C:I~G SUCH AS THIS IS NOT .~~LLO`~~ED EXHIBIT 4 r, _ _ _ NUISANCE ABATEMENT APPEALS BOARD IN AND FOR THE CITY OF SARATOGA In re the Appeal of: ) TSUNG-CHING WU AND ) YUH-NING CHEN ) DECISIO\' FOLLOWING HEARING OF APPEAL FINDINGS OF FACT AND DECISIOi~' REGARDING APPEAL OF TSUNG-CHING `i~U AND YUH-NING CHEN On July 19, 2000, the Nuisance Abatement Appeals Board ("NAAB") for the City of Saratoga convened and heard the appeal of TSUNG-CHING WU AND YUH- NING CHEN from the Notice and Order to Abate Public Nuisance at 12161 Parker Ranch Road, APN 366-43-007. Said Notice was issued by the City Manager of the City of Saratoga on May 5, 2000, and duly served on TSUNG- CHING `W AND YUH-NING CHEN on May 12, 2000. TSUNG-CHING WU AND YUH-NING CHEN appeared at said appeal hearing on July 19, 2000. Pursuant to Saratoga City Code Section 3-15.070(b), the NAAB is without authorit}~ or jurisdiction- relative to interpretation of the administrative provisions of said Code and may nat waive any requirements of said Code. In compliance with such limited jurisdiction, the NAAB did not consider the legal arguments of Counsel for Appellants challenging the validity of City regulations. Those issues have been referred to the City Attorney. Rather, the NAAB heard and considered documentary evidence and testimony under oath, to the extent relevant to its jurisdictional responsibility to determine whether or not the violations stated in the City Manager's Nuisance and Abatement Order are supported by the evidence, and based thereon made the following findings of fact and rendered the following decision based thereon. FI:YDIP 1GS OF FACT AND DECISION ON APPE,~,L OF TStTNG-CHING WU A:ti'D YUH-NING CI-IEN FINDINGS OF FACT: 1. TSUNG-CHING WU AND YUH-NING CHEN are the owners of property in the form of a single family dwelling, and known as 12161 Parker Ranch Road in the City of Saratoga. Said lot is identified as Santa Clara County Assessor's Parcel No. 366-43-007 and hereinafter referred to as the "subject property." 2. TSUNG-CHING WU AND YUH-NING CHEN have been the owners of the subject property since approximately Apri130, 1991. 3. On or about November 19, 1999, the City of Saratoga first received a complaint regarding the construction of a fence on the subject property in violation of City regulations ~ . 4. On or about November 23, 1999, a City Building Inspector investicated the above-described complaint and determined that a fence was being constructed on the subject property in violation of City Code. . 5. On or about December 30, 1999, the City sent a letter to TSUNG-CHING WU AND YUH-NINE CHEN notifying them-that they must remove this violation. 6. On May ~, 2000, the City Manager-determined that the apparent violations on the subject property warranted the declaration of a public nuisance and the issuance of a Notice and Order to Abate Public Nuisance. Said Notice was duly served by certified mail on, and received b_y_ TSUNG-CHING WU AND YIJH-NING CHEN as set forth above. 7. On June 12, 2000, TSUNG-CHING WU AND YUH-NING CHEN filed an "APPEAL OF THE NOTICE AND ORDER TO ABATE NUISANCE" with the City Clerk of the City of Saratoga. Said Appellants requested a continuance of the Appeal Hearing. The City Clerk set the continued appeal hearing for July 19, 2000. FI\"DINGS OF FACT AND DECISION ON APPE~, OF TSUti'G-CHING WU A;ti'D YUH-NING CHEN 8. The subject property has not been found qualified under the Saratoga City Code for any exemption from fence regulations based on safety reasons -- underSaratoga City Code Section 15.29-020(c) (2): 9.. The preponderance of the evidence demonstrates that the following violations of the Saratoga City Code exist on the subject property: SARATOGA CITY CODE SECTION 15-29.020 Fencinb ~rithin hillside. districts. The Saratoga City Code authorizes the Saratoga Planning Commission to establish alternative rules concerning the enclosure of sites in designated neighborhood areas in accordance with specified procedures and standards. The Saratoga Planning Commission duly adopted -such alternative rules for the Parker Ranch in City of Saratoga Planning Commission Resolution FE-90-001. A fence has been constructed on the subject property in violation of said City of Saratoga Planning Commission Resolution and the Saratoga City Code. SARATOGA PLANNING COMMISSION RESOLUTION NO. FE-90-001 Section 1(4) and Saratoga City Code Section 15-29.010 (b). These sections require that all fences shall have a minimum setback of twenty feet from property lines except for fences on the front property line which shall have a minimum setback of 30 feet. Section 1(4) of the Resolution applies under the alternative rules referenced above and Section 15.29-010(b) of the City Code applies if the alternative rules are for some reason not applicable. A fence constructed on the subject property violates both of these provisions in that it is not setback the required distance from either the front or side property lines and therefore is in violation of said City of Saratoga Planning Commission Resolution and the Saratoga City Code. SAR.ATOGA PLAI~'NING COMMISSIO\' RESOLUTIOti' NO. FE-90-001 Section 1(~). _ This section requires that all proposed fence plans shall be submitted to the Planning Commission for review and approval. No plans for a fence constructed on the subject property were submitted to the Saratoga Planning Commission and therefore said fence was constructed in violation of said City of Saratoga Planning Commission Resolution and the Saratoga City Code. SAR4TOGA CITY CODE SECTION 1~-29.020 Fencing within hillside districts. This section requires that no fencing shall have exposed sharp points. A FLtiDI~i 1GS OF FACT AI~,'D DECISION ON APPEgI, OF TSiNG-CI-IING wU A;T~'D yUH_NING CI-~N fence constructed on the subject property has exposed sharp points and therefore is in violation of the Saratoga Municipal Code. __ SARATOGA CITY CODE SECTION 15-05.040 Compliance with Regulations. This section requires that no land shall be used, and no building or structure shall be erected, constructed, enlarged, altered, moved, or used except in conformity with the regulations. as established in the Saratoga City Code. Constructing a noncomplying fence violates this provision. SARATOGA CITY CODE SECTION 15-95.0030 Violations as constituting public nuisance. This section provides that violations of regulations regarding fences shall constitute a public nuisance. The construction and existence of a noncomplying fence is in violation of the Saratoga City Code and therefore constitutes a public nuisance. ~~ DECISION: 1. The Appeal of TSUNG-CHING WU AND YUH-NING CHEN from the Notice and Order to Abate Public Nuisance is denied. 2. The determination of nuisance and the Notice and Order to Abate Public Nuisance issued by the City Manager on May 5, 2000 is upheld and remains in full force and effect. The legal arguments raised by the attorney for Appellants challenging the legal validity of applicable City regulations is outside the jurisdiction of the NAAB. The foregoing findings and decision -were taken by unanimous (3-0) vote of the NUISANCE ABATEMENT APPEALS BOARD OF~I'HE CITY OF SARATOGA. Dated: ~~ /dd ~ - J es ren, Chair ISA CE ABATEMENT APPEALS B DARD OF THE CITY OF SARATOGA a FI:~~Lh'GS OF FACT AIv'D DECISION ON APPEAL OF TSUNG-CHING wU A:\'D YUH-NING CHEN NOTICE TO APPELLANT: YOUR APPEAL HAS BEEN _. DENIED. IF YOU INTEND TO SEEK JUDICIAL REVIEW OF THIS DECISION, THE DEADLINE TO DO SO IS GOVERNED BY CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 109.6. ANY SUCH PETITION SHALL BE FILED NOT LATER THAN THE 90TH DAY FOLLOWING THE DATE ON 'WHICH THE DECISION BECOMES FINAL. THIS DECISION IS MAILED BY FIRST-CLASS MAIL, POSTAGE PREPAID, INCLUDING A COPY OF THE AFFIDAVIT OR CERTIFICATE OF MAI IN , TO TSUNG-CHINE '~YU AND YUH-NINE CHEN ON ~2 D - (DATE). s FINDIIr'GS OF FACT AND DECISION ON APPEAL OF TSUNG-CHINE NLJ AND YUI-I_NING CHEN REBECCA ATTACH CERTIFICATE OF MAILING ~~~ .. . ~- ,Q wU-i21b1 arY,~ n ~ ~ Postage 5 ~ ~ - ~, y o : • - c~ CeRified Fee r - ~•_ .S Return RecePC: Fee I , Z f '.. n •~F ~ ~•, r.:: i : ~ . p (EnCcrsement Recuired) J ~ , . , . _ • p f ..= Restricted Oeiivery Fee n •; p (Encorsement Raquired) -^/~-- •'~ %~ p Total Postage 6 Fees ~ \ ~ G ~ -•' ~ Rl fl.l Name (Please Print Clearly) (To ba completed by mailer) ~"' S eef, Apf. No.; or PO Box Na. ~. Clfy, Sfafe, ZlP. 4 s' C `~5-07~ :.~~ 6 FIri'DINGS OF FACT AND DECISION ON APPEAL OF TSUNG•CHING WU AND YUH-NING CI•IEN APR-29-2003,TUE 12:50 PM WITTWERPARKIN FAX N0. 8314294057 P. 02/18 (ENDORS~Dj APR ~ ~ 2003 Kli~! TORR~ Chle~ ExscWFld ORItarlClark SupeAOr hurt of CA Couny of Santa Clarn BY REh1FF ~~ nn DEPUTY Tsung•Chung.Wu, et al., v. C'.ity of Saratof;a, et al., SUPERIOR COURT OF CALYFORNIA COUNTY OF SANTA CLARA Pcti tioner, Respondents. Case No. CV 807506 ORAER RE: PETITION FQR WRIT OF ADMINISTRATT~/E MANDAMUS The petition for writ of administrative mandamus came on regularly for hearing on April l7, 2003 in Dt;partrnent 15 before the Honorable William F. Martin. The matter having been submitted, the Court issues the following decision and order: I~cl+;vant Facts Tt~e City of Saratoga ("City") Code Enforcement department received a citizen complaint nn 1`ovcmber 19, 1999, that a fence was being constructed at Petitioners' home at 12161 Parker P.a,lch Road that appeared to be in violation of fence restrictions. (Administrative Recotd ("AP,")1?xhs. D, K.) A Public Safety Officer inspected the property on November 23, 1999, anti found the fence slip under construction, and Petitioners were contacted. (AR Exh. D,) In Jznuary, 2000, an inspection was made and the fence had been completed rather than removed. APR-29-2003 TUE 12:50 PM WITTWERFARKIN FAX N0. 8314294057 1 z 3 S G 7 8 9 10 11 12 13 14 15 IG 17 18 t9 20 21 2?. 23 24 2~ 2,6 27 ?g P. 03/18 ~Att l~xh. D.) Lc;tters were sent to the Petitioners requesting compliance. After these efforts failed, a Notice and Order to Abate Public Nuisance was issued in May, 2000. These facts cst:tblish that the fence was built after adoption of relevant ordinances and resolutions,' in that the (~ftlccr saw the fence being built in 1999. The City contends in its response to proposed supplcntental evidence, elsewhere, that a citizen's complaint initiating an investigation about a fence should have information about when the fence was built, so that the Cily can determine whether the fence predated or postdated the passage of the relevant regulations. The fence here was observed being built in 1999 and so postdated the relevant regulations. 'Che facts are essentially undisputed. Petitioners concede in their Reply at p.3 that: "Petitioners have never argued that their fence would not violate the setback requirements of the f~ettcing Regulations if those re orations were valid and a forceable." Petitioners appealed the Notice and Order to Abate Public Nuisance to the City of Saratoga Nuisance Abatement Appeals Board ("NAAB"). (AR Exh. Q.) Tire NAAD decision dealt only with application of the City's ordinances and planning corrrrnission resolutions to the facts. It referred issues concerning the constitutionality, validity alyd propriety of the adoption and enforcement of these regulations to the City Attorney. The ~ AlAA13 found that the fence violated the following: Saratoga City Code Section t 5-29.020 - "Fencing within hillside districts" It is not disputed that this Cadc section enacted restrictive fencing regulations in this Section, but permitted the Saratoga Planning Commission to establish alternative rules concerning designated neighborhoods in accordance with specific procedures in the Section. The violations were thus of the Planning Commission resolutions that follow, but the NAAB also found that the violations thereby violated the City-Code. -(AR ~xh. 5, p.3 J ~ Saratoga Planning Commission Resolution No. 1~E-90-Q01, Section 1(4) and Saratoga City Code Section 15-29.010(b), which require that fences have a minimum setback of 20 feet from the property lines except the front property line which shall have a setback of at least 3~ feet. The City Code is more restrictive, if the resolution does not apply. There is no dispute tha[ the fences do not meet these requirements. ~ Saratoga Planning Commission Resolution Na. ~-90-001, Section 1(5), tivhich requires that all fence pans be subtnittcd to the PIanning Commission for review and approval.. There is no dispute that this was not done here. URLjF,R ttE: P$TITrON FOR WRIT 2 ('ASE NO. CV 807506 APR-29-2003 TUE 12 51 PM WITTWERPARKIN FAX N0. 8314294057 P. 04/18 1 z 3 4 5 6 7 R 9 10 I1 12 i3 14 IS 16 17 18 19 20 22 23 24 ZS 26 27 2c Saratoga City Code Section 15-29.020 - "Fencing within hillside districts; 'which requires that no fencing shall have exposed sharp points. There is no substantial dispute.that there are decorative items on the fence, although petitioners claim these decorative; items are not Sharp points and (<rs with the other regulations) claim these arc riot unusual in surrounding p1'opertle$' fl;nCeS. Saratoga City Code Section 15-05.040, requiring compliance with land use regulations. Saratoga City Code Section 15-95.0030, that violation of fencing regulations constitutes a public nuisance. (AR Exh. S J As indicated above, these factual findings are not the primary area of -dispute. Subsequently, on Apri15, 2002, the City Attorney issued an opinion concerning the legal challenges of petitioners to the validity and constitutionality of the enforcement of the regulations. The City Attorney opined that the resoh~tion and its enforcement were valid, constitutional and not discriminatory. (AR Exh. U.) Petitioners challenge these conclusions [Host clearly in their Petition. Petitioners filed the instant Petition on May 2, 2002. Motion to 5uot~lement Administrative Record. Petitioners moved on February 14, 2003, to Supplement the Administrative Record. The pmpuscd supplemental materials primarily concern evidence of what the City has done to investigate fencing eoniplaints outside of this subdivision, and efforts by Petitioners' attorney after the hearing below to have the City investigate 27 other homes in Petitioners' subdivision witlt allegedly sitnilarty nonconforming fences. The City opposed that motion, azguing the cvid~ncc was irrelevant and also that it could have been previously submitted. The City sought; hos~ever, if petitiortecs were pertttitted to augment the record, to augment the record also with evidence that the City lead investigated 2 of the 27 homes when Petitioners supplied the dates that t1-c fences had been built an those 2 properties. The Couri denied the Motion to Augment t~~e Record by order tiled April 1, 2003. Petitioners rely on the augmenting evidence in their supporting memorandum, and the City relies on tlie. respondinl;, augmenting evidence in its response. This evidence basically c<~ncerns whether there was discriminatory enforcement of the ordinance. This issue will be OF:I~F.tt RE: Pti7'ITtON FnR WRIT - 3 CASE NO. CV 807506 APR-29-2003 TUE 12:51 PM WITTWERPARKIN FAX N0. 8314294057 P. 05/18 1 ~ Z 3 4 S 6 7 s 9 10 ll ]2 13 14 15 16 17 18 19. 20 21 ?.2 23 24 25 2G 27 2F vfcrn~d to below, as the Court determines that even with the additional evidence Petitioners vould fail to prove .actual discrimination based on constitutionally invidious factors. I)iscassion of I..e:~at Issues 1. Standards of Review Although Code of Civil Procedure §1085 is mentioned in the Petition atgti, the Writ is brought primarily for review of an administrative order under Code of Civil Procedure § 1094.5. Section 1094.5- provides: (b}'fhe inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required bylaw, the order or decision is not supported by the findings, or the findings are not supported by the evidence. (c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized' by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is cstabtished if the court determines that the findings are not supported by substantial evidence in the light of the whole record. 1'ttcrc is no showing supporting the "independent judgment" standard of review, Even if the "i~tdepcndent judgment" standard were applicable (as in cases where a vested right such as a professional license is at stake), "in exercising its independent judgment, a trial court must affc ~t strong presumption of correctness concerning the administrative findings, and the party ch:ttlenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukttda v. Ciry of Angels (1999) 20 Ca1.4th 805, 817.) Petitioners essentially challenge two tu•eas: (1) the application of the fence regulations to 1'ctitiottcrs, and (2) the validity of the ordinances and resolutions, including the means by which Uicy were adapted. -The applicable standard of review for these discrete questions is best explained in Harroman Co. v. Tnwn of Tiburon (1991) 235 Cai.App.3d 388, 392: "When the plaintiffs allege the town abused its discretion by denying their application..., review is limited to the administrative record to determine whether UKt')BR RL: Pt3I'ft'tON FOtt WRiT 4 CASG I80. CV 807506 APR-29-2003 TUE 12:52 P11 WITTWERPARKIN FAX N0. 8314294057 P. 06/18 1 2. 3 4 5 6 .~ s 9 10 11 12 13 l~ 1S 1b l7 ifi l9 20 21 22 23 2~1 ?5 2G ?7 28 the town proceeded in the manner required by 1 aw ar if there is substantial evidence to support the town's decision. (Citations.) By challenging the town's interpretation and applicability of a statute, plaintiffs raise a question of law requiring an independent determination by the reviewing court. (Citations.) Petitioners do not actually challenge the factual determination that their fence did not catrtply with the cited regulations, Substantial evidence thus supports that f finding. Petitioners challenge to the City's action was distilled to its essence in their Reply, p. 1, gs follows: "l, the fencing regulations set forth in Saratoga Planning Commission Resolution No. rl 9U-001 (the `Nencing Regulations') are invalid, since they were net lawfully enacted; '~ and 2. the enforcement proceedings against Petitioners are discriminatory and arbitrary, thereby violating the 14th A-nendment of the United States Constitution, and rendering the Fencing Regulations unenforceable." The first question of alleged flaws in enactment of the regulations is a mixed question of Jaw and fact. The law that is cited requires certain notices and hearings and enactment by the correct body. The facts concern whether the correct notices and hearings were provided and whether the Planning Commission could issue the Fencing Regulations. Under the standards summarized in Ilnrronuln, supra, this Court can independently determine what kind of hearings, I Helices or other acts were required by law to enact the measures, and the correct body~to enact II them. Under these standards, however, the facts about the notices and hearings must be ~~ contained in the record. The fact that the Planning Commission enacted the regulation is not d itiputcd. Petitioners alleged originally that correct notices and hearings were not provided, in-the .time: frame of 1990 and before, and put the City to its proof that notices and hearings were regularly pravided. Petitioners, however, produce no proof in the record, either by declaration o, tcsumony, including in the transcript of the hearing, that the necessary procedures for passage of tt,e regulations were not provided. The City relics on statements in the regulations that certify th2t such procedures were provided, and the presumption that they were provided, Moreover, tlic City contends that the Statute of Limitations bars Petitioner's challenge to the validity of the enactment of the regulations. ctttnrrt x~: rrrrrto:v r'ox a~rzrr s C1~SE NO. CV 807506 APR-29-2003 TUE 1252 PM WITTWERPARKIN FAX N0. 8314294057 P. 07/18 2 3 .l 5 fi l0 11 1? 13 14 i5 16 17 18 19 20 21 22 ?3 2cl 25 26 27 28 The second question concerns discriminatory and arbitrary enforccment of the fencing l ~gnlations. Petit.ioricrs allege that enforccment occurred because of petitioners race or ethnicity s Asians. Thy procedures for finding such an "as applied° equal protection violation were ~utlinccl iu People v. Superior-Court (Williams) (1992) 8 Ca1.App.4th 688, where it was ;ontcncl~d that the prosecution had issued a preemptory challenge under Code of Civil Procedure f 1711.6 because the judge was black. Therefore, it was contended that Section 170.6 itself was zot discriminatory but, "as applied", denied equal protection. Similarly, Petitioners contend that facially neutral fencing regulations, "as applied", singled out petitioners because they are Asian Atn~:ricans. The court explained the applicabte procedures: "~gttal protection claims can be divided into three broad categories.... The first grid most common type is a claim that a statute discriminates on its face.... [~] The second type of equal protection claim is that neutral application of a facially neutral statute has a [racially] disparate impact.... [$] The third type of claim is tha! (state ojricersJ are unequally administering a facially neutral statute.... (Citation.) It is not contended that section 170.6 is discriminatory on its face or that its neutral application has a racially disparate impact. The equal protection claim tendered here is essentially that the statute cannot be utilized by a party to disqua{ify a judge on the ground of group bias. "Court[s] ha(ve) found a denial of equal protection where procedures implementing a neutral statute operate[] to exclude persons ... on racial grounds ...." (Citation.) However, [t]he unlawful administration by state officers of a state statute fair on its face,'resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentiogal or purposeful discrimination.' " (Citation.) Just as_in.cases of peremptory challenges to prospective jurors, any party charging that~is adversary has used a section .170.6 challenge in a manner violating equal protection hears the burden of proving purposeful ciiserimination. (Citation.) To resolve the claim of purposeful discrimination tendered here, we adopt "the prima facie burden of proof rules" enunciated in decisions dealing with equal protection chums in other contexts. 7'l~us a party charging that an adversary has invoked a section 170.6 challenge solely vn the ground of group bias bears an initial burden of establishing a prima facie case of invidious discrimination; if a prima facie case is established, the adversary then assumes the burden of demonstrating that the peremptory challenge was not predicated on group bias alone; if the adversary offers arace-neutral basis for the peremptory challenge, the trial court determines whether or not the charging party, here the defendant, has established purposeful discrimination. (Citations.) t)~;i]P.R RI's: FtsY'1TION l~Ok wRrC 6 CASF. NU. CV 8075iX~ APR-29-2003 TUE 12 53 PM WITTWERPARKIN FAX N0. 8314294057 P. 08/18 2 3 h 5 G 7 3 10 11 12 13 ld 15 16 17 18 1) 2U 2l 22 23 za 25 26 2'1 28 In order to prevail, defendant must establish a prima jade case frrst by showing tltczt the prosecutor exercised a peremptory challenge to remove a ... member of u co~nizahle racial group, and them by showing facts and arty other relevant circumstances x~hich raise an inference that the prosecutor excluded the judge on account of his race. (citation.) As articulated by the California Supreme Court: "To establish a pritna facie case; the ... party should first make as complete a record as possible; second, the ... party must establish that the perso[n] excluded [is a] membe[r] of a cogairable group; and third, the ... party must show a strong likelihood that the person is] being excluded because of group association. [Citations.}" (Citation.) (Emphasis in Bold, added) On the Administrative Record here, including the transcript of the hearing before the NAAf~. there is virtually no proof adduced of an "element of intentional or purposeful discrimination" beyond the alleged disparate impact on petitioners (nar is there evidence of disparate impact in this record). Bven considering the supplement to the record (which is not hart of the record, the request to supplement 1-aving been denied), the proof would allegedly be that the City customarily investigates fencing complaints, and the City has not investigated Petitioners complaints' (abort other fences in their development) which post-date Petitioners being ordered to comply with the ordinance. No evidence exists in the record of disparate impact or selective enforcement of the fencing regulations prior to the appeal of the order en}wining petitioners' fence, because there is no evidence that prior to that appeal that any citiien had complained about the other 27 fences. Importantly, there is a total absence in the record (or even in the supplemental evidence) of any evidence of implied or expressed purpose or intent to discriminate. For such an `.~ a, plied" challenge to regulations, evidence should exist in the record for the court to review of racial animus or pretext: This will be explained in more detail below - 2. Valid't of Passa a of the A licable Re ulations AI1e~d Improper Delc anon of Powers and Other Alle ed Faults in );nactment. Petitioners claim the regulations they violated were not legitimately passed. The claim i that the: Government Code and case law make cleat that only the city council can enact such a fencing regulation, not the Planning Commission, which enacted the regulation here. Petitioners claim that them was an invalid delegation to the Planning Commission of the power to issue the fencing regulations for the Parker Ranch subdivision. This argument is base ORDER f.F.: P~TT1'lON TOR Wltl'C CASt; N0. CY So"1506 APR-29-2003 TUE 1254 PM WITTWERPARKIN FAX N0. 8314294057 P. 09/18 1 3 4 S 6 7 8 9 t0 12 13 14 15 16 17 is 1) 2p 21 ?2 23 2'l 25 26 27 28 >n Government Code §b5853's requirement that.regulations under Section 65850 [for 'structures," "size and use of lots;' "building setback," "the percentage of a lot which may be ~ccupicd by a building or structure"J be adopted by city councils, after recommendation of the plr,nning commission and hearings as prescribed in Suctions 65854-65857. That is, such rc~,ulatians ,ire not to be adopted by the Planning Commission itself. 'l~he City Attorney's argument below, as here, was that the regulations here constitute an exception or conditional use under the zoning ordinance adopted by the City, and thus are within tl~e por~vcrs of the Planning Commission to issue conditional use permits or variances if given that power in the relevant Ordinances. The City relies upon Essick v. City of Los Angeles (1950) 34 Cat.?.d 614, G23. It was similarly contended in l;ssick that the granting of a use permit to the Forest I..awn cemetery constituted a "changing, amending or altering" of a zone which, under the City's charter (Los Angeles being a charter city) was to be done by council ordinance upon recommendation from the commission, not by mere administrative resolution, as had been done. In Isssick, the Supreme Court held that the City could act by administrative resolution, no~ ordinance, to grant the use perntit. The Court accepted the City's arguments "that the granting o a conditional use permit authorizes a change within, rather than of, a zone; that the 'changing, amending or altering' of a zone [as would require an ordinance) means action affecting the entire ~onc, such, for example, as the changing of its boundaries or of its classification, as from r~ysidi;ntial to commercial, etc.; that the use `deemed essential yr desirable to the public convenience or welfare'... including cemeteries (as well as airports, schools, libraries, public utilities, etc.)... for which a conditional use permit is authorized by the Zoning flan itself is crttirely diFfercnt iu scope, nature, and purpose from the change of a zone..., that, inconsequence, the provisions [requiring-an-ordinance] do not control the procedure to be followed when a conditional use permit is granted." (Essick, 34 Cal.2d at p. 622:) The ~'ssick court relied on LVht~eler v. Gregg (1949) 90 Ca1.App.2d 348, 363, in which the court noted that conditional use permits or variances can be granted administratively. "Iiy the specific terms of the ordinance such uses are permitted in any zoning district subject only to a finding by the planning co~ttmission, in the first instance, or the city council on appeal, that the use is essential or desirable to the public convenience or welfare. The decision to grant a conditional use permit does no[ create a now zone. It merely affirms as a fact the existence of the circumstances under which the ordinance by its teems prescribes that such permit shall issue." (Wheeler, id.) I ORDER I21?: PI;TITIOtr' i~OR WRIT' 8 CASF. NC). CV 80750b APR-29-2003 TUE 12;54 PM WITTWERPRRKIN FAX N0. 8314294057 1 2 t 3 ' 1 S 6 7 8 9 10 11 12 13 14 15 16 l7, 18 19 2U 21- 22 23 24 25 2G 2""/ 2S The question presented is whether the Planning Commission's Fencing Regulations for he Parker Ranch subdivision are mare like a general zoning or planning regulation requiring :auncil approval, ~~s contended by Petitioners, or, as the City contends, more like a conditional zsc pcrrnit or variance; as in Es.xick.and Wheeler. The I;iillside fencing Ordinance here, 15-29.020 {pR Exh. E), appears to give the Planning Commission powers more like those delegated in Essick. P. 10/18 The Ordinance proclaims certain requirements for fencing generally. Then the Ordinance makes tllest: subject to exceptions by the Planning Commission for cases where (t) the fences are less visible, (2) the fence is required.for safety,' or, as here, (3) the Commission grants an exemption for "designated neighborhood areas" on petition of owners in the area and completion of certain procedures for issuance of a substitute regulation. The latter occurred here, and the fencing regulations at issue -Planning Commission Resolution No. FE-90-001 (AR Exh. >~~ - wc.re issued for Parker Ranch. Although Petitioners once challenged whether a proper hearing and notice occurred for the issuance o.f the regulation, the City pointed out that Resolution No. Fti-90-OOl recites and duly attests that "the Platuiing Comnssion held a duly noticed public haring." (AR l:xtt. F.) Petitioners adduced no proof that such hearing and notice did not occur. Petitioners claim that a Planning Comtission does not have the power to pass "'deviations from or amendments to the existing zoning ordinance"' (quoting, Matthew Bender Rc Co., California Rea! Estate I,,uw and Practice, §265.01[1) {1997)), and contends the City did so hore. The primas'y point of Petitioners in support of this argument is that the Planning l C'ommission's Fencing Regulation is not an exemption or conditional use permit because it is l more restrictive than the City's )~encing Ordinance, 15-29.020. Petitioners point out that the fencing regulation has setback requirements (30 feet in the frot-t, 20 on the side attd rear) whereas the Ordinance does not. It should be noted, however, that the Urdirtance also required fences not be of a length of over 60 feet, and for parallel fences to be separated by ut least 5 feet, which would lead to some setback requirements for fences on lots of this size even if the Fencing Regulation did not exist. The City contends the Ordinance restricts enclosures to 4000 square-feet and the Fencing Regulation expands this to 50% of the lot. The City contends in its opinion blow that this would be 50% rather than 40°lo enclosure permitted t "!'here is no evidence the petitioners ever atplied for an exception or variance [ot safety reasons, although their ~setition and the argument below argued the fence was necessary for the safety of petitioner's chitdren. C7RI)ER R~: Pl~ fTI7UN FOR WKIT' 9 CA5I3 Nb. CV 807506 APR-29-2003 TUE 12:55 PM WITTWERPARKIN 1 2 3 4 5 6 7 9 10 11 12 13 11 15 l6 l "! ]A t9 20 ?1 22 23 24 25 2fi Z7 'lf FAX N0, 8314294057 P. 11/18 - the ordinance, which assumes an average lot size in parker Ranch of 10,000 square feet (at a 000 sq- feet enclosure). (AR I;xl-. U, p. 3.) In the City's Respondent's Brief here, the Gity now laims that the regulation would allow 6000 square feet enclosure instead of 4000, which stnncs ari average lot size of 12,000 square feet (at 50%). (Resp. Brief p.19.j Neither -lcul;rtion makes sense. Assuming a typical rectangulaz lot, as the subject lot is diagramed in :acllibit C, one. exampla of a 12,000 square foot lot would have measurements of 1Z0 feet by 100 feet. Allowing For the required total setbacks of dU feet on the sides and 50 fret front to back would allow For a maximum enclosure of 60 feet by 70 feet, or 4200 square feet. If the ]ot is r-arrower, the enclosure would be smaller. It does not seem possible to conceive of a lot of the siz+; cstirnated by the- City that would permit such setbacks and a 50% or 6000 square foot enclosure a, the City claims. In fact, however, the lots in the subdivision appear to be of several odd sires. (AR Exh. Q, Exh. 2.) The regulation appears to provide an enclosure roughly equivalent to or slightly more than the 4000 square feet allowed under the basic Ordinance, with cn~phasis on achieving this by uniform setback requirements rather than by a set percentage. The fencing regulation also requires submission of fencing plans to the Planning Director, and requires a comprehensive landscape plan, whereas the Ordinance does not. On balance, the Coutt finds that the Planning Commission Fencing Regulation at issue is equivalent to the granting of the variance or conditional use permit that can be delegated to it ~, under F.'ssick, supra, and Wheeler v. Gregk•, supra, and not an amendment to coning. Statute of Limitations. The City also argues that even iF the Resolution were invalid, any protest of petitioners of the regulations is barred by the following statutes of limitations: Government Code §65009(c)(1) (!?roviding "90 days after the legislative body's decision" to "attack, review, set aside, void, or snnu] the decision of a legislative body to adopt or amend a zoning ordinance'] and Codc of t:ivii Procedure § 1094.6 jfor "any decision of a local agency... or of any commission, board, officer or agent thereof' that petition be brought "not later than the 90th day following the date on which the decision becomes final"]- pelitioners do not respond to the argument concerning the statutes of limitations in the 1ZepIy. A few questions exist, however, as to the statute of limitations.. First, if a regulation is invalid "ab initio" because it was an improper delegation of powers. is it subject to the statute of limitations or does it not continue to be subject to attack at ORI3LR Ris:1'1':1'TIIONFOR W12I'T 10 CAS!? NO. CV 80756G ..,..:...., .~,;....~~~.,, ~.,-...,:,,w...,...~.,.~.........: APR-29-2003 TUE 12:56 PM WITTWERPARKIN FAX N0. 8314294057 P. 12/18 1 I 21 3 4 5 G 7 s 9 10 11 12 1 ~l 14 15, IG 17 is l9 20 21 22 23 24 25 2C 2'i Z. ny ~io,c•? Apparently, in similar circumstances, eouris have held that a challenge must be timely rought. In Kn«finan v. Gross & Co. (1979) 23 Ca1.3d 750, the Supreme Court reviewed several arcs concerning a similar argument that the applicable "statute of limitations cannot operate to gar z proceeding attacking a deed suffering from 'jurisdictional' defects rendering it void ab nitio." (Id., at 754.} The court held that even an alleged "jurisdictional" defect in proceedings ~tnderlyin6 a tax deed, such as there a failure to provide notice, may not be raised after a r~a.~onablu statutory period of limitation. (Id.) (See also, San Marcos Water Dist. v. San Marcos Unifieci School Dist. (1987) 190 Cal.App.3d 1083, 1085, fn.l [statute of limitations prevents recovery of fee that wa_ti void ab initio as a gift of public funds); cf. Estate of O'Dea (1973) 29 Ca1.App.3d 759, 7G9.) While in an esregious case of a hidden, wrongful delegation of powers it tnay be improper to apply a statute of limitations, it does not appear here that the regulation-was cat~c~.aled or that any owner of property in the subdivision challenged the fence regulation within ~, the 90 days pernutted. Thus, application of the statute of limitations to the instant challenge is just. Second, there could be some difficulty in determining whether this is the decision of a "legislative" body under the Government Code statute of limitations or of an administrative "ahency" under. Sectiun 1094.6. 'this, in effect, is the issue presented in the preceding section, ar~d risatved by determining that this was a proper administrative decision under Essick, supra. In either case, however, the limitations period is 90 days. Petitioners challenge to this regulation axnc;s more than a decade after it was passed. 'f gird, it appears that Pctitionei•s did not buy their property until 1991 and the regulation was adopted in 1990. They could argue that they would not have had standing to challenge the regulation in -1990 when the statutory period r',ut. Yet, the argument that Petitioners were not yet I;roPerty owners cuts the other way. They bought the property with the regulation already c:Yisting that affected its fencing. 'they had the option, which then-current property owners did ^ot, that if they objected to the regulation, to not purchase the property. Petitioners nowhere ~rl;uc or show that the rcgulat'sons were concealed or there was reason for them to be unaware o' the fencing Regulations. (See, City of West No[lywood v. Beverly Towers, Inc. (1991)52 Ca1.3c 1184, i 194 (constructive notice lay buyers presumed of governing zoning regulations); Brigl:t Utweloprrrent v. City of Tracy (1993) 20 Ca1.App.4th 783, 798 ("An ordinance, policy or standa~, URI31;R RF.:: PETTTtUN FUR WRIT 11 CAS[? NC). C.v 80750G APR-29-2003 TUE 12;56 PM WITTWERPARKIN FAX N0. 8314294057 P. 13/18 1 2 3 4 5 6 it 10 11 12 l3 14, l5 1G 17 Is 1~ 20 21 22 23 24 25 2C 2i 2~ f a public agency which is vrritten and accessible is reasonably calculated to apprise interested attics of their responsibilities and would suffice to supply constructive notice."].) ".fhe City's Statute of Limitations objection is thus well taken and is SUSTAINED, and irovides another ground for rejecting Petitiuners argument that the regulations were improperly ~as;cd. 3. giscriminatory Enforcement as Violation of Due Process and E ual Protection. l~~ctc of Discriminatory Enforcement As set out in Section 1, above, the Court finds no evidence in the record of any outright exprc~sion of discriminatory intent by any City officer. Similarly, the Court cannot find discrimination to be implied or inferable in the C:ity's allegedly inconsistent enforcement of the fencing ordinance. Moreover, the Court's order of March 27, 2003 denied Petitioner's motion to suL-cuit supposed supplemental evidence to the record, which purports to be evidence of alleged inconsistent enforcement. Petitioners point out that they raised before the NAAB the alleged fact that some 27 other) h~rncs in their development also have fences that, if built after the passage of the Fencing Regulations, violate those regulations. (AR Exh. Q at fixhs. 1, 2, 3; and Bxh R at pp. S, 12-17) In the hearing, the City's attorney invited petitioners to complain to the City about the fences on other properties, as a citizen had complained about theirs. (Exh. R at p. 17.) That is the extent I of infunnation in the record. The supplemental evidence {which the Court denied) consists of letters from Petitioners' counsel over the two years following the hearing urging the City to investigate the other properties; the City's rc;quest for. more information about the dates on which the other fences were built; and evidence which allegedly shows that the City investigated other fencing '. violalitms outs.idc of this development without being provided dates. The City proposed cvictence in reply chat showed it did investigate two homes when plaintiffs were able to provide dates on them, in which one removed the fence and the other showed a variance had been l~ranted. As set out above, this is hardly enough to make out a case of discriminatory enforcement based on Asian ethnicity, even were the supplemental evidence admitted. First, on the facts, there is no proof that the- other homes with alleged nonconforming fences were not owned by llsian-Americans. `1'he schedule attached ac Exhibit 1 to Pelitioneis' own appeal brief to the URDL•'R RE: PFTI'fION FQR WRIT L2 C~.5CiN0. CV 80TSO6 APR-29-2003 TUE 12 57 PM WITTWERPARKIN FAX N0. 8314294057 P. 14/18 2 3 4 5 G 9 10 11 12 13 14 15 lG l7 18 19 -2Q 21 2Z 23 24 25 26 27 2F~ IAAt3 (AR F,zh_ Q) show that of the 27 other homes which Petitioners claimed-had non-. oe~forrning fences, some were owned by persons with surnames of Tam, Kv, Chan, Yau, Chang, I'a and Chian. While these may not be of Asian origin, Petitioners present no statistics of race or :tt~nicity th<<t form ;ury sort of prima facie case of disparate impact. In fact, in the opening brief, 'etitioners acknowledge this by arguing they were "'singled out' by Respondents based on their ~thi-ie origin, or sornc~ other arbitrary, invidious criterion which has resulted in the law being ;~pplicd to them unequally." (OpeninK Brief, p. 8.) They argue only that "most" of the 27 other l~otnes wrre not owned by Asian-Americans. (Id,} Petitioners do not argue what arbitrary or invidious criterion was applied tv them other thin a'ace. Petitioners do not show, indeed, what other criteria except race (or now gender) are considered invidious and subject to strict scrutiny for equal protection purposes. (Clark v. Jeter (1988) 4S6 U.S. 45G, 4b1 [discriminatory cla_SSifications are usually lawful and not subject to st-icYscrutiny if not haled on race or national originJ.) Therefore, the facts before the City on the record were only one complaint about a fence of Paitioncrs, with no complaints having been lodged against 27 other alleged non-conforming fences. Morc;over, these other fences may have been built before the regulation went into effect and be owned by persons of unknown ethnicity. Finally, the complaints by Petitioners about those other fences are of questionable relevance. Not only did they come after the hearing, but the complaints dv not seem to be motivated by offense or argument that the other fences ought t~ be removed, but rather stem generated only to support an argument that Petitioners' non- cateforming fence be allowed to remain. The Court dots not find discriminatory enforcement or an "as applied" violation of equal protection by disparate impact upon Asian-Americans on this record. Intentional DiscriminatorX,Intent Must Be Sbown Even if disparate impact on Petitioners as Asian-Americans had been shown, it is re~cussary to make some showing of intentional discrimination. Among many cases explaining this is Kern v. Workers' Comp. Appeals Bd. (1999) 73 Ca1.App.4th 1357. In Kim, petitioner r~quCsted reversal of an administrative ruling of the Workers' Compensation Appeals Board that had matte interpreter's fees part of the costs included in the $16,000 limit on recovery of living expc`itses. "Phis ruling, of course, would disadvantage any person who spoke another language. ~l;ur;lt tt~: PrTn~toty pox wRtr 13 CAST NU. Cv 607506 APR-29-2003 TUE 12:58 PM WITTWERPARKIN FAX N0. 8314294057 P. 15/18 2 6 .l 9 10 ll 12 13 1.4 tS lG l7 18 19 2Q 21 22 23 ?4 25 26 27 2s Thu cutitt held that such disparate impact was not determinative of violation of equal protection, saying: Most laws which run afoul of the equal protection clause discriminate explicitly between groups of people, but the clause also might apply to laws which, though evenhanded an their face, in operation have a disproportionate impact on certain groups. (Far example, a required minimum height for police officer candidates Wray disproportionately impact female candidates.) 13ut neither explicit discrimination nor discrimination by "disparate impact" is unconstitutional unless motivated at least in part by purpose or intent, to harm a protected group. (Arlington Heights v. Metropolitan Housing Corp. (1977) 429 U.S. 252, 265 [97 S.Ct. BSS, 563, 50 L.Ed.2d 450) ["Proof of racially discrimini~[ory intent or purpose is required to show a violation of the Equal Protection Ciauce"]; Washington v. Davis (1976) 426 U.S. 229, 2A2 [96 S.Ct. 2040, 2049, 48 L.Ed.2d 597] ["Disproportionate impact .., is not the sole touchstone o[ an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule that (suspect] classifications are to be subjected to the strictest scrutiny ...."]; People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 711 [10 Ca1.Rptr.2d 873] [" "'[O]fficial action [isJ ... not ... unconstitutional solely because it results in a racially disproportionate impact.... Proof of ... discriminatory intent or purpose is required to show a violation of the kqual Protection Clause..." ' "].) (ld., at 1361-1362, emphasis added.) t1s shown in the quote in Scctivn 1 of People v. Williams, supra, 8 Ca1.App.4th 688, assuming a '~ prima facie showing of'intentional discrimination was made by showing disparate impact, this coald be opposed by a showing of a neutral purpose for the act in question. The City here relics on the record, clearly, which showed no complaints about fences at the other homes or iufo:mation of the dates those fences were built. Even in the supplemental evidence, Petitioners do not show they=ewer previously cornptained about other homes, or on what dates the other f~:nccs were built. The City caught Petitioners in the act of building their fence. Petitioners r~il3ce no attempt to refute this evidence which shows arace-neutral reason why the regulations w•er~ cnfc~rced against Petitioners. The City cites other cases which sinularly have held thereto be lack of proof of racial animus. (City of Banning v. Desert Outdoor Advertising, hcc. (1962) 209 Cal.App.2d 152, 155 ("A discriminatory intent or purpose is not presumed. (Citat.ions.) To the contrary, the good faith. of those enforcing the law and the validity of their action in the premises are presumed. (Citation.) T'he burden of proving discrimination is upon the complaining party. (Citation.)"].} OI:ULR RF: Yl; l'iTtON FOR YVRI"1' 14 CASL' NO. CV 807506 APR-29-2003 TllE 12:58 PM WITTWERPARKIN FAX N0. 8314294057 P. 16/18 2 3 4 S G 7 8 9 10 11 12 13 l4 15 16 17 18 19 2t) 21 22 23 ~a 25 26 27 2s "1n a prosecution or law enforcement proceeding arising out of the violation of a statute, he nitre showing o~ a failure to institute such a prosecution or proceeding with respect to other :ncnvn violations does not require a finding that the prosecution or enforcement proceedinb in question was prompted by intentional or purposeful discrimination. (Citations.)" (Id.) The situzlion is similar to that in City etc. of San Francisco v. IJurton (1962) 201 Ca1.App.2d 749, "/55, wh~rc thu court said: Defendants claim that their constitutional rights were violated because no other action ... has been comrnenced against other property owners in the area despite known infractions of the zoning ordinance. .... But in Wade v. Ciry & County of San Francisco (1947) 82 Cal.App.2d 337 [186 P.'ld 181], the court pointed out "that mere lax enforcement of a law or ordinance violates no constitutional rights" (p. 339) and that... it is necessary...to... allege, and there must be proved, an enforcement... which is intentionally riiscriminatoty.Thc court said... (p. 339): "In each of those cases the distinction between mere laxity of enforcement and intentional or purposeful discrimination is recognized and it is held that while mere laxity of enforcement, although it may result in the unequal application of the law to those who are entitled to be treated alike, is not a denial of equal protection in the constitutional sense, it is otherwise in the ease of deliberate or intentional discriminatory enforcement which is a denial of the equal protection guazanteed by the Constitution." .... Enforcement of ordinances of this kind must start somewhere. Assuming the city had "permitted" others to violate thz ordinance, mere inaction is not rtiecessarily the result of an intentional or arbitrary scheme to discriminate against defendants. Without more the city may not be precluded from enforcing the ordinance against defendants. "Permitting some persons to violate a zoning regulation. does not preclude its enforcement against others. (Citation.)" (Citations:) (Id.) (Sec; also, ?'own of Atherton v. Templeton (1961)198 Ca1.App.2d 146,155.) There is also authority that the burden of proof for showing racial animus is high. Both p~u1ies cite Kawaoka v. City of Arruyo Grande (9th Cir. 1994)17 F.3d 1227, 1234, l,ut ati the City points out, the court did not find violation of equal protection to persons of Japanese ancestry in a city's water moratorium there despite a record of actual statements icy a city council member about "Japanese people." There is no equivalent showing here - no showing at a11- of animus based on race. There is no showing of selective l~rosectttion for other invidious or unjustifiable basis. UI<[?FR l:I;: PF.1'iTJt~N rOR WRIT 15 C:ASL" NO. CV 807506 APR-29-2003 TUE 12:59 PM WITTWERPARKIN FAX N0. 8314294057 P. 17/18 1 2 3 ,1 S G 7 8 10 I1 12 13 14 1~ 1G 17 lg 19 20 21 ?.2 23 24 25 2t 2y zs CONCLUSION For the above reasons, the Pctitiou for Writ is DENIED. natLCl:__ A~ R 2 8 200 UKIaI;R KF.: PE"TI'TION FOR WRlT CASE: t30. CV 807506 NIiLLIt1M F. MARTlN William E. Martin Judge of the Superior Court 16 ......_. u -.. t:_ .__-__. . APR-29-2003 TUE 12 59 PM WITTWERPARKIN FAX N0. 8314294057 P, 18/18 IN THE SUPERIOR COURT OF THE STATE Of/ CALIFORN IN AND FOR THE COUNTY OF SANTA CI_.ARA Plaintiff: TSUNG-CHUNG WU, et al Defendant: CITY OF SARATOGA, et al PROOF Oi= SERVICE BY MAIL OF: ARbER Ri": PETITION FOR WRIT OE ADMINISTRATIVE MANDAMUS (ENDQRSED) APR ;~ 8 2003 KIRI TOHR~ CAicf ExaC~lNa OMkarlG~erk Superior Court of CA County o! 6anla Clara BY DEPUTY CV807506 f: j_,_.,~.,____._^~ Ct.ERK'S C1wRTIFICATE OF MAILING: I certify that 1 am not a party to thls case and that a true copy of this document was mailed first class, postage fully prepaid, In a sealed enve{ope addressed as shown below and the document was mailed at San Jose, California on >~I 2a 2003 Rf:NE~ HOGE~S Deputy KIRI TORRE, COUNTY CLERK BY RENEE ROGERS Robert 1'orio, Esq. C:ARR ~. FERREI.L, LLP 2225 East 13ayshore Road, Suite 200 Palo Aito, CA 94303 William T. Parkin, Esq. WITTWER & PARKIN, t_l.P 147 South River Street, Suite 221 Santa Cruz, CA 95060 ----lCJ