HomeMy WebLinkAbout102-Attachment 1: July 6, 2011 Staff Report with Attachments.pdf SARATOGA CITY COUNCIL
MEETING DATE: July 6, 2011 AGENDA ITEM:
DEPARTMENT: Community Development CITY MANAGER: Dave Anderson
PREPARED BY: Richard Taylor, City Attorney DIRECTOR: Chris Riordan
SUBJECT: Preannexation Agreement and Initiation of Annexation for 19351 Redberry Drive (APN 510-25-062)
RECOMMENDED ACTION: Approve attached Preannexation Agreement and resolution
initiating annexation of 19351 Redberry Drive (APN 510-25-062), an approximately 1.39 (gross)
acre parcel contiguous with the limits of the City of Saratoga and within the City’s Sphere of
Influence and Urban Service Boundaries.
REPORT SUMMARY: The City has received a request from the owners of 19351 Redberry
Drive (“Applicants”) that their property be annexed into the City of Saratoga. The request is
supported by nearby landowners at 19403 and 19370 Redberry Drive and 19280 Bainter Avenue
(“Neighbors”). The annexation would occur subject to existing County approvals of a major
remodel of the main house and a new second unit that comply with the County Code but not
certain portions of the Saratoga Code; the City would accept the County approvals as legal non-
conforming structures and be responsible for issuing and administering grading, building, and
other permits consistent with the County approvals and subject to certain modifications described
in the Preannexation Agreement. The parcel conforms to the applicable land use and density
criteria contained in the City Code and the General Plan. The parcel has a General Plan
designation of Hillside Open Space (OS-H) and is located in the Hillside Residential (HR)
Prezone area.
PROPOSED PREANNEXATION AGREEMENT: In 2010 the Applicants applied for and
received County approvals for a major remodel of the existing main house and for construction
of a second unit. The Neighbors challenged those approvals and the parties explored
opportunities for resolving their differences outside of court and the County appeals process.
The parties have reached a settlement calling for certain modifications to the project as approved
by the County, annexation to the City, and City administration and oversight of the building
process. (Details on the history of the process are included in the recitals to the Preannexation
Agreement included as Attachment 1.)
The attached Preannexation Agreement sets forth the terms under which the City would annex
the property and process permits for the remodel and second unit to be located as described in
Exhibit B to the agreement. The agreement was prepared by the Owner and the Neighbors and
modified somewhat by staff. The Owner and the Neighbors have agreed to all staff’s changes.
The Preannexation Agreement provides that the City would annex the property subject to the
existing County approvals (and modifications agreed to by the Owners and Neighbors described
in Exhibit B) such that the building plans and a future swimming pool/deck application would
not be subject to compliance with the City’s zoning regulations. The project was designed to
comply with County development standards and does not comply with several City standards
(e.g., height, floor area (due to basement floor area), graded material volume, impervious surface,
and possibly setbacks). As with annexations of existing structures built to conform to County but
not City standards, the proposed structures on the annexed property would be considered as legal
non-conforming structures in accordance with section 15-65.035(a) of the City Code. A copy of
the County approvals will be available for review in the Community Development Department
beginning Tuesday, July 5.
The Preannexation Agreement provides that the City would be responsible for issuing,
administering, monitoring and enforcing all permits required to move forward with the County
approvals as modified by the Preannexation Agreement. Because the County approvals were
issued in 2010 the City would apply the Building Regulations from Chapter 16 of the City Code
that were in effect in 2010. The applicants would pay all applicable City fees for the requested
permits. The applicants could apply for necessary permits any time after approval of the
Preannexation Agreement but the City may not issue any permits until the annexation has been
completed.
ANNEXATION PROCEDURES: The Cortese-Knox-Hertzberg Local Government
Reorganization Act of 2000 (the Act) provides that cities in Santa Clara County may proceed
independently of LAFCO in processing annexation applications within the City’s Urban Service
Area (Government Code Section 56757). A public meeting and noticing is not necessary and the
City Council may consider the Initiation of Annexation as a routine agenda item at a regular
meeting and may waive protest proceedings because the annexation is being made by a petition
with 100 percent consent of the property owner.
The Act requires that cities follow the procedures used by LAFCO to the extent practicable. The
Act establishes a three-part process for annexations: (1) Initiation of Annexation; (2) Protest
Proceedings which may be waived by the City Council; and (3) Approval of Annexation.
Furthermore, the City Council is required to make findings pursuant to Government Code
Section 56757 prior to adopting the resolution approving the annexation. After the resolution is
adopted, a certified copy of the resolution and paperwork is submitted to LAFCO.
The Act and other state laws require the preparation of a number of documents as part of the
annexation process. These documents fall into three categories: a service plan, LAFCO
materials, and the California Environmental Quality Act (CEQA) materials. These are described
below:
Service Plan All annexations are to begin with a proposed service plan for the area to be
annexed. This plan includes a description of the parcel to be annexed; the reasons for the
proposal; and a listing and description including the level, range, any change to, and
financing of services to be provided to the annexed parcel (see attachment 2). The service
plan should also include an indication of any improvement or upgrading of structures,
roads, sewer or water facilities, or other conditions that the City would impose or require
on the annexed lands. No improvements or upgrades are recommended as part of this
proposal and all services will be consistent with the current conditions.
LAFCO Materials – Cities in Santa Clara County proceeding independently of LAFCO
are required to make the findings listed below before approving an annexation. The
formal findings need not be made until the adoption of the final annexation resolution.
Each finding is followed by a brief description of Staff’s review.
• That the unincorporated territory is within the urban service area of the city as
adopted by Commission. Staff had confirmed that the property to be annexed is
within the City’s Urban Service Area.
• That the County Surveyor has determined the boundaries of the proposal to be
definite and certain, and in compliance with LAFCO’s road annexation policies.
A map will be prepared and provided to the County Surveyor once initiation of
annexation has been approved by the City Council.
• That the proposal does not split lines of assessment or ownership. Staff has
determined that the property to be annexed does not split lines of assessment or ownership.
• That the proposal does not create islands or areas in which it would be difficult to
provide municipal services. Staff has reviewed the geography of the proposed
annexation and concluded that it would not create an island or present difficulties
in providing municipal services since the majority of the services will remain
unchanged.
• That the proposal is consistent with the adopted General Plan of the City. The
land use designation for the annexation parcel is OS-H (Hillside Open Space). The land has been pre-zoned HR (Hillside Residential) which is consistent with
the General Plan Designation and the nearby zoning. The General Plan provides
that lands in the hillsides should be considered for annexation if they meet the
following Policy:
Policy LU 14 – Land shall not be annexed to Saratoga unless it is
contiguous to the existing city limits, within the Sphere of Influence, and it
is determined by the city that public services can be provided without
unreasonable cost to the City and dilution of services to existing residents.
As discussed throughout this document, the annexation parcel is contiguous to the
existing city limits, is within the Sphere of Influence, and has existing public
services that would not unreasonably change the cost to the City or dilute services
to existing residents.
California Environmental Quality Act -- Annexations are categorically exempt from the
California Environmental Quality Act (CEQA) pursuant to the Guidelines for
Implementation of CEQA (14 Cal Code §15319). The Category 19 Exemption includes
annexations of individual small parcels of the minimum size for facilities exempted by
Section 15303 which exempts up to three single-family residences. CEQA applies only
to projects which have the potential of causing a significant effect on the environment.
Where it can be seen with certainty that there is no possibility that the activity in question
may have a significant effect on the environment, the activity is not subject to
CEQA. This annexation would not have the potential to cause a significant effect on the
environment because the area contains existing public utilities.
FISCAL IMPACTS:
No impact. The applicant is responsible for all City review fees and County of Santa Clara
processing fees.
CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION:
Future development of the parcel would be subject to requirements of Santa Clara County in lieu
of City of Saratoga development standards.
ALTERNATIVE ACTION:
Deny the proposed resolution initiating annexation and provide Staff with direction.
FOLLOW UP ACTION:
Work with the applicant to have the annexation map prepared for review by the County Surveyor
and return to the City Council for final annexation approval upon completion of that review.
ADVERTISING, NOTICING AND PUBLIC CONTACT:
This item was posted as a City Council agenda item and was included in the packet made
available on the City’s web site in advance of the meeting. A copy of the agenda packet is also
made available at the Saratoga Branch Library each Monday in advance of the Council meeting
and residents may subscribe to the agenda on-line by opting in at www.saratoga.ca.us. Noticing
is not required.
ATTACHMENTS:
1. Proposed Pre-annexation Agreement showing staff recommended revisions
2. Resolution approving Initiation of the Annexation
3. List of Services Report
FARAHANCHI/MOKHLESI/HOLTON/KOWNACKI/PFEIFFER
PREANNEXATION AGREEMENT
THIS PREANNEXATION AGREEMENT (“Agreement”) is made and entered into this __ day
of ________ , 2011 by and between the CITY OF SARATOGA (“City”), a municipal
corporation of the State of California, Fariba Farahanchi and Nima Mokhlesi (collectively “the
Farahanchi/Mokhlesis”), John Holton and Wanda Kownacki (“the Holton/Kownackis”), and
Jim Pfeiffer (“Pfeiffer”, and collectively with the Holton/Kownackis, “the Neighbors”). The
Farahanchi/Mokhlesis are sometimes referred to herein as “the Owners” and the Owners, City
and Neighbors are collectively referred to herein as “the Parties.”
RECITALS
A. WHEREAS, the Farahanchi/Mokhlesis are the owners of a certain parcel of real property
located at 19351 Redberry Drive in the County of Santa Clara and more particularly described in
Exhibit A, attached hereto and incorporated herein (“Property”);
B. WHEREAS, Pfeiffer is the owner of a certain parcel of real property located in the
unincorporated County of Santa Clara at 19403 Redberry Drive, Los Gatos, California;
C. WHEREAS, the Holton/Kownackis are the owners of certain parcels of real property
located in the County of Santa Clara at 19280 Bainter Ave, Los Gatos (though within the city
limits of Saratoga), California and 19370 Redberry Drive, Los Gatos (though within the city
limits of Saratoga), California;
D. WHEREAS, the Farahanchi/Mokhlesis Property is located in unincorporated Santa Clara
County adjacent to the city limits of Saratoga, is within the Saratoga Sphere of Influence and
Urban Service Area and is developed with a single family dwelling;
E. WHEREAS, in 2010, the Farahanchi/Mokhlesis applied to the County of Santa Clara for
approvals necessary to remodel/add to the existing main house and to construct a secondary
house more than 50 feet from the main house on the Property (collectively, the
“Farahanchi/Mokhlesi Applications”);
F. WHEREAS, in 2010, the County approved the Farahanchi/Mokhlesi’s Applications
relating to the main house and driveway, consisting of: 1) a grading permit; 2) design review
exemption; 3) exemption from environmental review; 4) issuance of a tree removal permit for
two oak trees; and 5) issuance of a building permit (collectively the “County Main House
Approvals”);
G. WHEREAS, in 2010, the County Zoning Administrator approved the
Farahanchi/Mokhlesi’s Application related to the location of the secondary unit (“County
Secondary House Approval”; the County Main House Approvals and County Secondary House
Approval are sometimes collectively referred to as the “County Approvals”);
H. WHEREAS, on December 15, 2010, the Neighbors appealed the County Secondary House
Approval to the County Planning Commission;
I. WHEREAS, on January 18, 2011, the Neighbors initiated a lawsuit against the County and
the Owners regarding the County Approvals, as Action No. 111-CV-192055, Santa Clara County
Superior Court;
J. WHEREAS, on April 7, 2011, the County Planning Commission denied the Neighbors’
appeal of the County Secondary House Approval;
K. WHEREAS, on or about April 25, 2011, the Neighbors appealed the County Secondary
House Approval to the County Board of Supervisors;
L. WHEREAS, the Owners and Neighbors are willing to agree to modification of the County
Approvals to include a number of modified and additional conditions, attached hereto as Exhibit
B (the “Modifying/Additional Conditions”);
M. WHEREAS, as provided herein, the Parties intend and agree that the Property be annexed
to the City;
N. WHEREAS, annexation of the Property to the City in accordance with the terms of this
Agreement will result in rational comprehensive planning and foster predictability, certainty,
economy and efficiency in future land use planning and will establish a permanent and definable
border between the City and the County of Santa Clara in furtherance of State, County and City
policies and consistent with West Valley Hillsides Preservation Strategies, Strategy #2, Action 1
and Action 2;
O. WHEREAS, as provided herein, the Parties intend and agree that the City shall be the
entity responsible for issuing, administering, monitoring and enforcing all permits approved as
part of the County Approvals and issuing, administering, monitoring and enforcing all building
permit and all other necessary permits and approvals pursuant to the terms of the County
Approvals, as modified and amended by the Modifying/Additional Conditions (collectively the
"Modified Approvals"), to allow for the remodel/addition to the primary dwelling and
construction of the secondary dwelling unit on the Property;
P. WHEREAS. Owners and Neighbors have jointly submitted to City the documents
comprising the County Approvals by letter dated July __, 2011 with the understanding that the
Secondary House Approval is the subject of a pending appeal to the County which will be moot
if the Property is annexed to the City.
Q. WHEREAS, the purpose of this Agreement is to set forth the City’s and
Farahanchi/Mokhlesi’s respective responsibilities in pursuing annexation of the Property;
NOW, THEREFORE, in consideration of the foregoing, the Parties hereby agree as follows:
1. Annexation. The Parties agree that in order to provide for rational long-term land use
planning and to establish a permanent and definable border between the City and County of
Santa Clara, the Property should be annexed to the City. City agrees to take the steps necessary to
achieve annexation of the Property at the soonest possible opportunity. Owners hereby consent to
annexation of the Property and agree to support said annexation.
2. City Processing of Modified Approvals.
a. The City agrees to accept the Modified Approvals and to be the entity responsible
for issuing, administering, monitoring and enforcing all permits necessary for
development of the improvements contemplated by the Modified Approvals, including the
grading permit and building permits, and the Farahanchi/Mokhlesis agree to accept the
Modified Approvals and to construct their main house remodel/addition and secondary
unit in accordance with the Modified Approvals and to pay all fees and submit all
materials required for the City to process the annexation, issue, administer, monitor and
enforce the Modified Approvals and all necessary permits and approvals. To the extent
practicable without prejudicing previously submitted requests for City approvals, the City
further agrees to expedite processing of all applications submitted by the
Farahanchi/Mokhlesis for the Modified Approvals and to expedite issuance of all
necessary permits and approvals.
b. All Parties recognize that the development described by the Modified Approvals
may be inconsistent in certain respects with otherwise applicable City standards set forth
in certain regulations contained in the City Code that regulate the topics identified in
Exhibit C attached hereto. Nevertheless, the Parties agree that in processing and
approving the permits for the project the City will not require compliance with the City
Code provisions that would be inconsistent with the development of the Modified
Approvals, including but not limited to those regulations that regulate the topics identified
in Exhibit C, but only to the extent necessary to allow Owners to build the development
described by the Modified Approvals. The main house, secondary house, pool and related
hardscape built as contemplated in Exhibit B to this Agreement shall be treated as though
constructed prior to annexation, and therefore as legal nonconforming structures pursuant
to Section 15-65.035(a) of the City Code.
c. The Parties agree that the City will require compliance with the City building
standards set forth in Chapter 16 of the Saratoga City Code that may not apply to
development within the County; for example inclusion of an Early Warning Alarm
System. Because the City grading, building, and other permits will be replacing building,
grading, and other permits issued by the County in 2010, the standards set forth in Chapter
16 of the Saratoga City Code as of December 31, 2010 shall be the standards applied in
connection with the Modified Approvals.
d. With respect to Exhibit B hereto, the Parties agree that notwithstanding anything
to the contrary in that exhibit: (i) all references to “Plans” refer to the development plans
approved by the County Building Department as part of building permit No. 46049 issued
on 12/15/10; (ii) all references to “the City’s consulting arborist” refer to the arborist on
staff in the Community Development Department or, at City’s sole discretion, a consulting
arborist to be selected by the City; (iii) if called upon to make determinations pursuant to
sections 2.d or 4b the arborist shall apply only the standards set forth in Exhibit B in those
paragraphs and those decisions shall not be construed as decisions pursuant to the
Saratoga City Code.
3. Timing of Annexation. The City shall consider initiating annexation of the Property at its
July 6, 2011 City Council Meeting. Should the City approve the initiation of annexation of the
Property at that meeting, then City shall expeditiously process the annexation through the
necessary activities of the County surveyor and LAFCO, and upon completion of all necessary
processes, the annexation shall be brought to the Saratoga City Council for its final decision.
4. Construction Limitations. Prior to annexation of the Property, no construction of
improvements on the Property shall occur; however, should the City approve initiation of
annexation of the Property, City staff shall thereafter accept and process grading and building
permit applications for the Property, but shall not issue permits until annexation of the Property
is completed. In any event, all construction of the improvements on the Property shall be subject
to the City’s tree protection requirements under City Code Article 15-50, and to City’s
construction rules under Chapter 16 of the Saratoga City Code as that Chapter existed on
December 31, 2010.
5. Swimming Pool/Deck. In the City’s processing of an application by Owners for a
swimming pool and associated patio/deck on the Property, the site coverage limitations of City
Code Section 15-13.080, shall not apply. Owners shall submit their application for the swimming
pool and associated patio/deck no later than August 31, 2013.
6. Survival of Rights and Obligations. The rights and obligations of the Parties as set forth in
this Agreement shall survive annexation of the Property to the City.
7. Termination of Agreement. This Agreement shall have no further force and effect and
each Party shall be released from the obligations set forth herein in the event that annexation of
the Property to the City has not occurred within four (4) months after the date of City’s approval
of this Agreement.
8. Legal Action. Any party may, in addition to any other rights or remedies herein provided,
institute legal action to cure, correct, or remedy any default, enforce any covenant or agreement
herein, enjoin any threatened or attempted violation hereof, enforce by specific performance the
obligations and rights of the Parties hereto or obtain any other remedy consistent with this
Agreement. In no event shall any Party be entitled hereunder to monetary damages for any action
or inaction of another Party hereunder, including breach of contract. Nothing in this Section shall
be deemed to limit any Party's rights under the Tort Claims Act or the City's right to collect fees
allowable and otherwise due and payable or to impose penalties for violations of City ordinances.
9. Attorneys Fees and Costs. If legal action by any party is brought because of a breach of
this Agreement, or to enforce a provision of this Agreement, each party shall bear their own
attorneys fees and costs.
10. Controlling Law. This Agreement shall be construed and enforced in accord with the laws
of the State of California.
11. No Joint Venture or Partnership. The Parties to this Agreement hereby renounce the
existence of any form of joint venture or partnership between any or all of the Parties and agree
that nothing contained herein or in any document Executed in connection herewith shall be
construed as making any or all of the Parties joint venturers or partners. Further, neither the
Neighbors nor the Owners are agents of the City.
12. Indemnification. Owners hereby agree to defend, indemnify and hold the City and its
officers, officials, boards, commissions, employees, agents and volunteers (collectively “City”)
harmless from and against:
a. any and all claims, actions or proceedings to attack, set aside, void or annul any
action by City on the subject Annexation, or any of the proceedings, acts or
determinations taken, done or made prior to or concurrently with said Annexation; and
b. any and all claims, demands, actions, expenses or liabilities arising from or in any
manner relating to the performance of the construction, installation, alteration or grading
work by the Owners, or by Owners’ successor(s), or by any person acting on their behalf,
authorized by any City action described in subsection 12.a. above.
Owner’s obligations under this section shall prevail over any other provision in this
Preannexation Agreement.
13. Cooperation in the Event of Legal Challenge. In the event of any legal or equitable action
or other proceeding instituted by a third party, governmental agency or official challenging the
validity of any provision of this Agreement of the annexation proceedings described herein, the
Parties shall cooperate in defending the action or proceeding.
14. Notices. All notices or communications required hereunder between the Parties shall be in
writing and may be given either personally or by certified mail, return receipt requested. The
notice shall be deemed to have been given and received on the date delivered in person or the
date upon which the postal authority indicates that the mailing was delivered to the address of the
receiving party. Any Party hereto, by given ten (10) days written notice to the other, may
designate any other address as substitution of the address to which the notice or communication
shall be given. Notices or communications shall be given to the Parties at the addresses set forth
below until specified otherwise in writing.
City of Saratoga:
City Clerk
City of Saratoga
13777 Fruitvale Avenue
Saratoga, CA 95070
Copy to:
Richard S. Taylor
City Attorney
City of Saratoga
The Farahanchi/Mokhlesis:
Barton Hechtman
Matteoni 0’Laughlin & Hechtman
848 The Alameda
San Jose, CA 95126
bgh@matteoni.com
The Neighbors
Thomas Lippe
Lippe Gaffney Wagner LLP
329 Bryant Street, Suite 3D
San Francisco, CA 94107
tlippe@lgwlawyers.com
15. Successor and Assigns. The covenants, terms, conditions and restrictions of this
Agreement shall apply to, bind and inure to the benefit of successors in interest of the Parties
hereto, including heirs, assigns, representatives, executors, administrators and all other parties,
whether they succeed by operation of law or voluntary acts of the City or Owners. All such heirs,
representatives, successors, executors, or assigns shall be bound to every provision in this
Agreement, whether or not this Agreement is referred to in the instrument by which such heirs,
representatives, successors, executors, or assigns acquire an interest in the Property.
16. Parties in Interest. This Agreement is entered only for the benefit of the Parties executing
this Agreement and not for the benefit of any other individual, entity or person.
17. Amendment of Agreement. This Agreement may be amended in writing by the original
Parties or their successors in interest.
18. Severability. If any term, provision, covenant or condition of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of
this Agreement shall continue in full force and effect.
19. Change in Law. If a subsequent change occurs in federal or state laws or the regulations of
a federal or state agency which prevents or precludes compliance with a provision of this
Agreement, that provision shall be modified or suspended only to the extent necessary to comply
with the federal or state law or regulation.
20. Enforceability. Unless this Agreement is amended or terminated pursuant to the provisions
of this Agreement, this Agreement shall be enforceable by any Party hereto notwithstanding any
change hereinafter enacted or adopted in any applicable General Plan or Specific Plan, zoning
ordinance, subdivision ordinance or any other land use or building ordinance.
21. Entire Agreement. This Agreement, and the conditions referred to herein, and the exhibits
attached hereto, constitute the entire understanding and agreement of the Parties and supersede
all negotiations or previous agreement of the Parties with respect to all or party of the subject
matter hereof. No alteration or variation of this instrument shall be valid or binding unless
contained in an amendment to this Agreement.
22. Captions. The captions in this instrument have been inserted solely for convenience or
reference and are not a part of this instrument and shall have no effect upon construction or
interpretation.
23. Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed an original, all of which together shall constitute one and the same instrument and shall
be effective as of the date hereof.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their
respective representatives as follows:
CITY OF SARATOGA
City of Saratoga, A Municipal Corporation
By: ____________________________________
Howard A. Miller, Mayor Date
ATTEST:
By: Ann Sullivan, City Clerk Date
Approved as to Form:
___________________________________
City Attorney, Richard Taylor Date
OWNERS
By: Nima Mokhlesi Date
By: Fariba Farahanchi Date
NEIGHBORS
By: Wanda Kownacki Date
By: James W. Pfeiffer Date
By: John Holton Date
Exhibit A
LEGAL DESCRIPTION OF THE PROPERTY
Exhibit B
MODIFYING/ADDITIONAL CONDITIONS
The following conditions (the “Modifying/Additional Conditions”) modify the County Approvals as described in the Agreement to which this Exhibit is attached and
in paragraph 1 below. To the extent that any conflict exists between the
Modifying/Additional Conditions and the County Approvals, the Modifying/Additional
Conditions shall supersede and control:
1. Changes to the Main House.
The following changes to the main house are made relative to the development
plans approved by the County Building Department as part of building permit No. 46049
issued on 12/15/10. The location of the main house and its building “footprint” on the
Property relative to the Property boundaries shall not be altered from the location shown on these plans, except that the main house’s “footprint” may be made smaller so
long as it is located within the perimeter of the “footprint” approved in said plans. The
dimensions of the main house shall not be altered from the dimensions of the main
house shown on these plans except as described in this Exhibit B.
a. The existing primary house rests on a slab foundation. The Plans show the
elevation of this slab foundation to be 581’9” above mean sea level (msl),
measured from a local manhole cover to which an elevation of 533.75’ msl is
ascribed. The Plans show the elevation of the roof of the proposed
remodeled primary house to be 22’6” higher than the slab foundation, at 604’3” msl.
b. Without determining the accuracy of the msl elevations referenced in
subparagraph a of this paragraph 1, the Parties agree that (1) the elevation of
the roof of the main house shall be no higher than 21’6” above the existing slab foundation (the elevation of the slab foundation is believed to be 581’9”
as shown on the Plans; therefore the maximum roof elevation is believed to
be 603’3” msl); (2) the three architectural articulations shown on the Plans as
extending above the roof shall be no higher than 24’3” above the existing slab
foundation (believed to be 606’0” msl); and (3) no part of the main house, including parapets, solar panels, antennas, or anything else that might be
attached to the roof other than the chimney will extend higher than 27’3”
above the existing slab foundation (believed to be 609’0” msl); (4) the msl
elevations provided in this paragraph are for reference purposes only, and
the operative height limits are based on elevation above the existing slab foundation; and (5) Owners will leave the existing slab foundation or a visible
and accessible portion thereof in place or will install a visible and accessible
permanent monument at the same elevation as the existing slab foundation
to permanently establish the elevation of the existing slab foundation.
c. Neighbors reserve the right to request validation of these height restrictions
during and after construction by a licensed surveyor, at Neighbors’ expense,
and Owners agree to allow the surveyor access to the Property for this limited
purpose at a time that is mutually convenient for the surveyor and the
Owners.
d. Owners may elect to reduce the depth of the basement by raising the bottom
of the basement, and may make other de minimis changes that do not alter
the building envelope or location of the main house on the lot or constitute a
“rebuild” under County zoning rules or conflict with any specific provisions of
the Agreement.
e. All surfaces of the main house including walls, trim, and roofing material
and stone but excluding solar panels will meet an LRV (as defined in the
Santa Clara County Code) of 45 or less.
2. Changes to the Secondary House.
a. The secondary house shall be located such that no part of the structure other
than the 30” extension of any bay window (as long as the bay window meets
the County’s definition of a bay window in terms of size and location with respect to the structure) is located within 35 feet of the Property’s property
line abutting Redberry Drive.
b. The garage shown attached to the rear (relative to Redberry Drive) of the
secondary house will be relocated to the front side (relative to Redberry Drive) of the secondary house. This change reduces the height of the
retaining wall at the Redberry side of the secondary house, resulting in a
smaller facade facing Redberry Drive.
c. All surfaces of the secondary house including walls, trim, and roofing material and stone will meet an LRV (as defined in the Santa Clara County Code) of
45 or less in shades of natural earth tones (browns, beiges).
d. The secondary house will have a landscape plan that calls for an earth “berm”
on the Redberry Drive side of the structure (to the extent allowed by the City in light of drainage requirements associated with the nearby creek) and low
shrubs and trees to generally, but not entirely screen the façade from street
view. This landscape plan will be a condition of the building permit for the
secondary house. Pursuant to the landscape plan, utilizing some of the new
trees described in Sections 4.a. and 4.b. below, and other vegetation as necessary, Owners shall landscape the Property so that the front facade
(being the façade closest to and running parallel to Redberry Drive) of the
secondary dwelling is generally, though not entirely screened, from Redberry
Drive, given a reasonable time for the vegetation planted to grow and mature.
Owners will submit a draft of the landscape plan to Neighbors prior to submission to the City; promptly thereafter, the Owners and Neighbors shall
meet and confer, and attempt to reach agreement as to whether the
landscape plan will result in the level of screening described in the preceding
sentence. In the event the parties cannot agree on the landscape plan, the
City’s consulting arborist (or an arborist selected by the City’s consulting arborist should the City’s consulting arborist be unavailable for the task) shall
be retained to make a final, unappealable decision on the landscape plan. All
costs of the arborist shall be shared 50% by Owners and 50% by Neighbors.
3. Swimming Pool. The Owners will apply for and obtain a permit from the City for and before installing a swimming pool and associated patio/deck. The site coverage
limitations provided in Section 15-13.080 of the City Code shall not apply to such
application. .
4. Trees.
a. The following trees can be removed without the further consent of the
Neighbors: i) the two necessary to build the main house (which are the
subject of an existing County Approval, ii) the small oak not requiring a permit
for removal located where the secondary house will be constructed, and iii) the two pine trees marked with blue ribbon and located near the first curve of
the driveway. These two pine trees must remain marked with blue ribbon until
removed and must be replaced with native species such as oaks. In
removing the trees described in this Section 4.a., Owners shall comply with
City Code Article 15-50; any replacement trees required by City Code Article 15-50 shall apply toward satisfying the replacement requirements of this
Section 4.a.
b. The Parties acknowledge that there are many trees on the Property and that
their mutual intent is to preserve trees on the Property, but recognize that trees other than the five described in Section 4.a. will need to be removed in
order to accommodate the construction contemplated by this Agreement (the
“Construction Trees”). Owners have marked with a red ribbon every
Construction Tree to the best of their knowledge. The Neighbors have
viewed all such marked Construction Trees. The parties agree that certain of the Construction Trees provide visual screening of the main house from off
the property. To mitigate the loss of this visual screening and anticipated
visual impacts from the new secondary dwelling, Owners agree to plant ten
(10) new trees of native species such as oaks, of the following sizes: two 20
gallon trees, four 15 gallon trees and four 10 gallon trees. At least seven of these trees must be planted above the secondary house, to provide
screening of the main house from Redberry Drive. Upon completion of the
framing of the main house, the Owners and Neighbors shall meet and confer
at the Property, and attempt to reach agreement as to where each of the ten
(10) trees is to be planted, provided, however, that no new trees are to be planted in the level area to the west of the main house, being the anticipated
location of the pool and patio/deck described in Section 3. In the event the
parties cannot agree on the locations for each of the trees, the City’s
consulting arborist (or an arborist selected by the City’s consulting arborist
should the City’s consulting arborist be unavailable for the task) shall be retained to make a final, unappealable decision on the location of each of the
trees. All costs of the arborist shall be shared 50% by Owners and 50% by
Neighbors. The ten trees shall be planted by Owners within (60) days after
the main house Certificate of Occupancy is issued by the City, to avoid
interference with construction and damage to the new trees from construction activities.
In the event it is determined during construction that a Construction Tree
which was not marked with a red ribbon must be removed, then the Owners
and Neighbors shall meet and confer to determine, in the Neighbors’ reasonable discretion, whether the tree provides substantial visual screening
of the main house from off the property, and if so, Owners shall replace the
tree with a native species tree of similar size such as an oak, to be located in
a manner that reasonably enhances this visual screening from off the
Property. In removing Construction Trees, Owners shall comply with City Code Article 15-50; any replacement trees required by City Code Article 15-
50 shall apply toward satisfying the replacement requirements of this Section
4.b.
c. As to all trees on the Property which are not among the five trees described in Section 4.a. and not Construction Trees described in Section 4.b., and
which are of a size not requiring a permit from the City of Saratoga, for a
period of ten years from the date of this Agreement Owners shall not remove
more than two trees per year except that (i) any removal of a tree that is
ordered by a governmental agency having jurisdiction, or (ii) any removal of a tree that is certified by a licensed arborist to be dying or to be necessary to
abate an imminent hazard to personal safety or personal property, shall not
be subject to this numerical limitation. Owners shall replace any tree
removed pursuant to this paragraph with a native species tree of similar size
such as an oak, to be located in a manner that reasonably enhances the visual screening from off the property.
Exhibit C
Subjects of Inapplicable Zoning and Grading Regulations of the City of Saratoga
• Grading quantities
• Height of Main House
• Square Footage of Main House
• Impervious surface coverage limits applied to the pool, pool deck, driveway, main house
and walkways around it, secondary unit and its deck, driveway, and walking paths
surrounding it, existing parking spaces at the top of the driveway, and retaining walls
across the entire property
• Location of the Main House and Secondary House, including but not limited to setbacks
from property lines
• Discretionary design review pursuant to Article 15-45 of the Saratoga Code of the
improvements contemplated in this Agreement, including but not limited to
design/architecture of the Main House or Secondary House
• Height of the basement
• Basement not qualifying as basement (based on too much of its perimeter being above
grade, too much of its floor areas receiving daylight, certain significant areas of the
basement not being directly situated under first or second floors, or any other reason),
resulting in home being considered as having 3 stories
• Maximum height limits of retaining walls
• In application of the City’s tree protection regulations, requiring redesign/relocation of
the improvements contemplated in this Agreement to avoid (a) tree removal (i.e., the
agreed remedy is tree replacement pursuant to the City’s tree protection regulations) or
(b) placing a structure within five feet of the dripline of a protected tree (in such event the
structure must nonetheless comply with any dripline avoidance requirements of the
County and the Owners shall consult with the city arborist and comply with the protection
and mitigation (including but not limited to tree replacement) recommendations of the
city arborist addressing the absence of the five foot buffer normally required by the City).
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA
INITIATING ANNEXATION PROCEEDINGS FOR
19351 REDBERRY DRIVE (APN 510-25-062)
WHEREAS, the City Council is considering the annexation of an approximately 1.39
acre property commonly known as 19351 Redberry Drive, hereinafter referred to as ‘the
territory’, APN 510-25-062, contiguous to the City of Saratoga; and
WHEREAS, as provided in Government Code Section 56757, the City Council of the
City of Saratoga is the conducting authority for the annexation; and
WHEREAS, the territory to be annexed is in the City of Saratoga’s Urban Service Area
and Sphere of Influence and is prezoned as Hillside Residential (HR); and
WHEREAS, the territory is considered uninhabited for the purposes of annexation
proceedings because there are fewer than twelve registered voters and there is one hundred
percent (100%) owner consent for the annexation proceedings, no notice, public hearing or
election will be required for annexation approval by the City; and
WHEREAS, the City and the owners of the territory have entered a Preannexation
Agreement concerning the territory whereby the City agrees to process and the owners agree to
support the annexation.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Saratoga hereby initiates annexation proceedings and will consider annexation of the
territory to the City known as Assessor’s Parcel Number 510-25-062 located at 19351 Redberry
Drive at a meeting to be scheduled to approve the annexation.
The above and foregoing resolution was passed and adopted by the Saratoga City Council at a
regular meeting held on the 6th day of July 2011, by the following vote:
AYES:
NAYES:
ABSTAIN:
ABSENT:
Howard A. Miller, Mayor
ATTEST:
DATE:
Ann Sullivan,
City Clerk
ANNEXATION OF APN 510-25-062
(19351 REDBERRY DRIVE)
List of Services Report
Districts
Saratoga Union Elementary School NO CHANGES TO DISRICT
Los Gatos Union High School
West Valley Community College
Saratoga Cemetery
Guadalupe –Coyote Resource Conservation
Bay Area Air Quality Management
Mid-Peninsula Regional Open Space
West Valley Sanitation
Santa Clara Valley County Water
Santa Clara County Zone NC-1 County Water
Santa Clara County Importation Water-Miscellaneous
Central Fire Protection
Santa Clara Valley-Zone W-4 County Water
Area No. 01 Library Benefit Assessment County Service
Area No. 01 Library Services County Services
Santa Clara County Vector Control
Services
Santa Clara County Street Cleaning NO CHANGE IN SERVICE
Santa Clara County provides no street sweeping service. The territory to be annexed,
however, is immediately adjacent to a street served by the City street sweeping service so
is already receiving this service.
Santa Clara County Sheriff’s Department INCREASE IN SERVICE
The City of Saratoga has a contract with the Santa Clara County Sheriff’s Department
that provides two patrol cars to the City. The County has only one car for this area that
also covers the Los Gatos mountains.
Santa Clara Valley Transportation Authority NO CHANGE IN SERVICE