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Home My WebLink About08-03-2004 City Council Agenda Packetl..-~' ROLL CALL REPORT OF POSTING AGENDA AGENDA CITY OF SARATOGA CITY COUNCIL AGENDA TUESDAY, AUGUST 3, 2004 3:00 P.M. *SITE VISITS WILL BE MADE TO THE FOLLOWING ITEMS ON THE CITY COUNCIL AGENDA FOR AUGUST 4, 2004 ON AUGUST 3, 2004 1) 18372 Swathmore Drive 2) 15301 Peach Hill Road The City Council conducts site visits to properties which are new items on the City Council agenda. The site visits are held on Tuesday preceding the Wednesday hearing between 3 :00 p.m. - 5:00 p.m. Site visits only occur when there is an appeal scheduled before the City Council. It is not necessary for the applicant to be present, but you are invited to join the Council 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. Please contact staff Tuesday morning for an estimated time of the site visit. ADJOURNMENT In compliance with the Americans with Disabilities Act (ADA), tf you need special assistance to participate in this meeting, please contact the City Clerk at (408) 868-1269 or ctc[erk~a~saratoga.ca.us. Notification 48 hours prior to the meeting wil/ enable the City to make reasonable arrangements to ensure accessibility to this meeting (28 CFR 35. /02-35.104 ADA Title II). Certificate of Posting of Agenda: I, Cathleen Boyer, City Clerk for the City of Saratoga, declare that the foregoing agenda for the meeting of the City Council of the City of Saratoga was posted on July 29, 2004 at the office of the City of Saratoga, 13777 Fruitvale Ave., Saratoga, CA 95070 and was available for public review at that location. The aEenda is also available on the City's website at www saratoea.ca.us of July 2004 at Saratoga, California. /C. Gtv Clerk ARCHIVE COPY AGENDA REGULAR MEETING SARATOGA CITY COUNCIL AUGUST 4, 2004 - CLOSED SESSION - 6:OOP.M. ADMINISTRATIVE CONFERENCE ROOM, 13777 FRUITVALE AVENUE ANNOUNCEMENT OF CLOSED SESSION ITEMS CALL MEETING TO ORDER Conference With Labor Negotiators (Gov't Code 54957.6): Agency designated representatives: Lorie Tinfow, Assistant City Manager & Tom Sullivan, Community Development Director Employee organization: Non SEA Members Public Employee Performance Evaluation (Gov't Code 54957) Title: City Manager REGULAR MEETING - 7:00 P.M. -CIVIC THEATER/COUNCIL CHAMBERS AT 13777 FRUITVALE AVENUE MAYOR'S REPORT ON CLOSED SESSION PLEDGE OF ALLEGIANCE ROLL CALL REPORT OF CITY CLERK ON POSTING OF AGENDA (Pursuant to Gov't. Code 54954.2, the agenda for this meeting was properly posted on July 29, 2004) COMMUNICATIONS FROM COMMISSIONS & PUBLIC Oral Communications on Non-Aeendized Items Any member of the public will be allowed to address the City Council for up to three (3) minutes on matters not on this agenda. The law generally prohibits the Council from discussing or taking action on such items. However, the Council may instruct staff accordingly regarding Oral Communications under Council Direction to Staff. Communications from Boards and Commissions The City Council will receive reports from the Boards and Commissions listed below and may provide direction regarding matters to be considered by those Boards and Commissions. Recommendationsfrom Boards and Commissions requiring City Council approval are considered as independent agenda items. Written Communications None Oral Communications -Council Direction to Staff Instruction to Staff regarding actions on current Oral Communications. ANNOUNCEMENTS There are four vacancies available on the Library Commission to fill expired terms. Applications and information regarding these vacancies are available on the City `s website at www.saratota.ca.us or by contacting the City Clerk's Office. Deadline to file is September 9, 2004. CEREMONIAL ITEMS None SPECIAL PRESENTATIONS None CONSENT CALENDAR The Consent Calendar contains routine items of business. Items in this section will be acted in one motion, unless removed by the Mayor or a Council member. Any member of the public may speak to an item on the Consent Calendar at this time, or request the Mayor remove an item from the Consent Calendar for discussion. Public Speakers are limited to three (3) minutes. 1 A. Approval of City Council Minutes -July 6, 2004 Recommended action: Approve minutes. 1 B. Approval of City Council Minutes -July 7, 2004 Recommended action: Approve minutes. 1 C. Approval of City Council Minutes -July 26, 2004 Recommended action: Approve minutes. 1D. Review of Check Register Recommended action: Approve check register. 1 E. 2004 Pavement Management Program -Award of Construction Contract Recommended action: Award bid and execute construction contract; approve change orders. 1F. Contract Renewal for Municipal Traffic Engineering Recommended action: Approve aone-year contract and authorize City Manager to execute the same. 1G. Contract Renewal for Municipal Public Works Inspectors Recommended action: Approve one-yeaz contracts and authorize City Manager to execute the same. 1H. IT Support Contract with City of Palo Alto Recommended action: Approve contract and authorize City Manager to execute the same. lI. Final Acceptance of Subdivision Public Improvements and Dedications Within Tract 9330 and SDR 1311 Recommended action: Grant final acceptance of the subdivision public improvements and dedications within Tract 9330 and SDR 1311; Adopt Resolution rescinding the previously rejected Offers of Dedications and accepting offers of dedication for Tract 9330 and SDR 1311 with the exception of no-build easements shown on Tract 9330. 1J. Brookglen, El Quito and Wildwood Pazks: Parks Upgrade Project -Increase of Change Order Authority Recommended action: Approve change order amount of $48,000.00 for additional pathway work associated with the Brookglen, El Quito and Wildwood Pazks Upgrade Project. PUBLIC HEARINGS Applicants/Appellants and their representatives have a total of ten minutes maximum for opening statements. Members of the public may comment on any item for up to three minutes. Applicant/Appellants and their representatives have a total of five minutes maximum for closing statements. Items requested for continuance are subject to Council's approval at the Council meeting. 2. Appeal of a Denial of a Planning Commission Decision Denying a Tree Removal Permit Appeal at 18325 Swarthmore Recommended action: Continue public hearing and take appropriate action. 3. Appeal of a planning Commission Decision to Conditionally Approve a Design Review Application No. 03-245 to Construct a Secondazy Dwelling Unit Located at 15301 Peach Hill Road Recommended action: Conduct public hearing and take appropriate action. 4. Adoption of Utility User Tax Ordinance, Advisory Ballot Measure Regarding Use of Utility User Tax Revenues, and Resolution Placing the Ordinance and Advisory Measure on the November 2, 2004 Ballot and Providing Direction Regarding Preparation of Ballot Arguments Recommended action: Introduce and waive first reading of Utility User Tax Ordinance to become effective only if approved by the voters of the City of Saratoga; Adopt text for Advisory Ballot Measure Regarding Use of Utility User Tax Revenues; Adopt Resolution placing advisory measure and utility user tax ordinance on the ballot for the November 2, 2004 election; If Council so wishes, designate Councilmembers to prepare ballot arguments in support or opposition to the two measures. OLD BUSINESS 5. Report on Approach to Resolving Orchard Dirt and Mud Tracked into the Saratoga Library Recommended action: Accept report and direct staff accordingly. NEW BUSINESS 6. City Wide Festival Recommended action: Accept report and direct staff accordingly. Appointment of a City Representative to serve on the Joint Economic Development Policy Committee (JEDPC) Recommended action: Appoint Council representative to the JEDPC. COMMISSION ASSIGNMENT REPORTS Manor Waltonsmith None Vice Manor King City/School Ad-Hoc Committee Councilmember Bo og sian None Councilmember Kline Village Ad-Hoc Committee Councilmember Streit Revenue Review Committee CITY COUNCIL ITEMS OTHER CITY MANAGER'S REPORT In compliance with the Americans with Disabilities Act (ADA), if you need special assistance to participate in this meeting, please contact the City Clerk at (408) 868-1269 or ctclerk@saratoga.ca.us. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting (28 CFR 35.102-35.104 ADA Title II). Certificate of Posting of Agenda: I, Cathleen Boyer, City Clerk for the City of Saratoga, declare that the foregoing agenda for the meeting of the City Council of the City of Saratoga was posted on July 29, 2004 at the office of the City of Saratoga, 13777 Fruitvale Ave., Saratoga, CA 95070 and was available for public review at that location. The agenda is also available on the City's website at www.sarato ap ca.us Signed this 29`" day of July 2004 at Saratoga, California. Cathleen Boyer, CMC, City Clerk CITY OF SARATOGA CITY COUNCIL MEETING CALENDAR 2004 g/lg Summer Recess 9/1 Regulaz Meeting -Joint meeting with Montalvo Boazd 9/15 Regular Meeting 10/6 Regular Meeting 10/20 Regular Meeting 11/3 Regulaz Meeting 11/17 Regulaz Meeting 12/1 Regular Meeting 12/15 Regulaz Meeting -Council Reorganization SARATOGA CITY COUNCIL MEETING DATE: August 4, 2004 ORIGINATING DEP • City Manager's Office PREPARED BY: Cathleen Boye ity Clerk AGENDA ITEM: ' CITY MANAGER: ~~~~-•~-" DEPT HEAD: SUBJECT: City Council Minutes RECOMMENDED ACTION: Approve minutes. REPORT SUMMARY: Approve minutes as submitted for the following City Council Meeting: Joint Meeting -July 6, 2004 FISCAL IMPACTS: N/A CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: N/A ALTERNATIVE ACTION: N/A FOLLOW UP ACTION: Retain minutes for legislative history. ADVERTISING, NOTICING AND PUBLIC CONTACT: N/A ATTACHMENTS: Attachment A -Minutes July 6, 2004 MINUTES SARATOGA CITY COUNCIL JOINT MEETING ARTS COMMISSION FINANCE COMMISSION HERITAGE PRESERVATION COMMISSION LIBRARY COMMISSION PARKS & RECREATION COMMISSION PLANNING COMMISSION PUBLIC SAFETY COMMISSION JULY 6, 2004 The City Council of the City of Sazatoga met in Open Session in the portable classroom located between the Recreation Center and Corporation Yard at 3:30 p.m. Vice Mayor King called the Study Session to order at 3:40 p.m, and noted that Mayor Waltonsmith would be arriving late. ROLL CALL PRESENT: Councilmembers Norman Kline, Stan Bogosian, Nick Streit Vice Mayor Kathleen King ABSENT: Mayor Ann Waltonsmith (arrived at 4:55 p.m.) ALSO PRESENT: Dave Anderson, City Manager Lorie Tinfow, Assistant City Manager Cathleen Boyer, City Clerk Lori Bums, Human Resource Analyst Danielle Surdin, Administrative Analyst Tom Sullivan, Community Development Director John Livingstone, Associate Planner John Cherbone, Public Works Director Cary Bloomquist, Administrative Analyst Kim Saxton-Heinrichs, Recreation Supervisor REPORT OF CITY CLERK ON POSTING OF AGENDA FOR JULY 6 2004 Cathleen Boyer, City Clerk, reported that pursuant to Government Code Section 54954.2, the agenda for the meeting of July 6, 2004 was properly posted on July 1, 2004. COMMISSION WORKPLAN SUMMARY -2004-OS Commission Activity Estimated Funds Funds number of NOT in in staff hours bud et bud e1 Arts Librazy Art Wall Activities 15 $500 Gateway public art 35+ $0 $75K in CIP Mustard Walk ' '°~ .. _.___ ~.._...,.,..,mi„~~,..,, RPCtival 50+ $2,357 Murals 35+ $10,300+ maintenance Rotating Art Program (10 sites) 35+ $3700 + maintenance Form a subcommittee and sponsor 15 $1000 Sarato a Reads (could be a Rec class TOTAL ESTIMATED STAFF 190+ TIME HOURS TOTAL FUNDS FOR $1,300 INCIDENTAL EXPENSES TOTAL ADDITIONAL FUNDING At least REQUESTED $17,857 Tracy Halgren, Chair, explained each activity. Chair Halgren stated that the staff at the Saratoga Library has been encouraging them to purchase a banner to display by the Art Wall indicating that the Arts Commission sponsors the wall. Chair Halgren also noted that this year the Commission would like to hold a reception for all the artists who participated in the Art Wall program. Chair Halgren noted "Art in the Park" has been cancelled but the Commission would continue to work with the Heritage Preservation Committee on the "Mustazd Walk". Chair Halgren noted that they would like to participate in the planning of one major festival such as a "Vintage Sazatoga" or a "Blossom Festival" type event. In regazds to the murals project, Chair Halgren noted that Saratoga Business Development Council (SBDC) have expressed interest in this program and noted that once the Sazatoga Monte Sereno Community Foundation is up and running they might be able to help raise money for the program. Chair Halgren noted future projects: Percent for Arts Ordinance, Mascot Fundraiser, and Music in the Pazk. Council direction to the Arts Commission: • Use $1300.00 already budgeted to purchase the banner for the Art Wall and the reception for the artist. • Mascot Fundraiser and Mural Program -approach the Foundation. • Rotatig Art -approach the Foundation • Music in the Pazk -incorporate the idea as part of a citywide festival (will be agendized on a future Council agenda). • Saratoga Reads -should be sponsored by the City Council not the Commissions. • Talk with Heritage Preservation Commission in regards to "Mustazd Walk" #rry 1 Finance Support to Budget & Finance $0 Re ortin Processes Review proposed revenue $0 enhancement alternatives Develop Plan for enhanced $0 likely communication of financial information to the community TOTAL ESTIMATED STAFF Not yet TIME OURS re orted TOTAL FUNDS FOR $600 2 TOTAL ADDITIONAL FUNDING $0 Richard Allen, Chair, explained each activity and stated that the Finance Commission was not requesting any additional funding for FY 2004-05. Chair Allen noted that the Finance Commission has tried to improve communications between the residents and the City. Chair Allen noted that the Commission would start drafting a "Reserve Policy". Council direction to the Finance Commission: Review Revenue Review Committee's report Draft a "Reserve Policy" Look at other cities for "best known methods" Heritage Review Approximately 20 Requests 80 I $0; No fe Preservation for Additions to Historic Homes collected Bring the Historic Park Master Plan to 10 $0 the Council for Review and A royal 100 $0; funded by Prepare a Restoration plan for the McWilliams House for Council a grant Review and proceed with required process for hiring Historic Architect, Contractor and completing restoration work Monitor the work on the Book-Go- 5 $0 Round Qualify up to 3 homes for Mills Act Staff time $0 (Deposit Account, Fees charged to d by cov a licant for Staff Time ivt„crarA Walk (food and advertising) fee 40 $2,000 Historic Calendars (funded through HPC time ~U Historical Preservation Foundation onl Apply to the State of California for 12 $1,000 for i Historic Landmazk Status for es photos/cop McWilliams House, Book-Go-Round, and the Warner Hutton House, and encourage others to apply for Hakone Gardens and the Cit Museum Investigate State Historic Landmark 5 #435: research and copy fees from $50 Sonoma State 18 $0 Desi ate more Landmarks Investigate the Designation of Oak 50 $2,000 for Street and Horseshoe Lane as Heritage signs Lanes Investigate Landmazk Status of HPC time $0 Heritage Orchard onl $30,000 3 Restart the Historic Homes Plaques 20 $300 Program: Plaques $100 each; budget for 3 Herita e Orchard Oversi t 10 $0 Pre are an Ado t-a-Tree Pro am 80 $0 Adopt-a-Tree Kiosk (Funded as part 80 $0 of the Herita e Orchard Restoration) Update and Manage Heritage 5 $0 Resource List Investigate Standards for Historic HPC time $0 Si s onl TOTAL ESTIMATED STAFF 515 TIME HOURS TOTAL FUNDS FOR $1,300 INCIDENTAL EXPENSES TOTAL ADDITIONAL FUNDING $5,350 REQUESTED Patricia Bailey, Chair, explained each activity and noted that their list was prioritized. Council direction to the Heritage Preservation Commission: • Move activity titled "Update and Manage Heritage Resource List" to the top of the activity list. • Pursue Adopt a Tree Program & Historic Home Plaques -work with Foundation. • Discuss the "Mustard Walk" with Arts Commission. • Council consensus not to spend Council contingency fund and any unfunded projects. t ' ~. Library Continue Education of the $500 Community, City Council, and the Library Commission about library services and financial issues Saratoga Library Facility and $0 Grounds: recommend finish work and use of leftover bond funds Support Recruitment of New $0 Commissioners Library Funding: make $0 recommendations on funding options and riorities TOTAL ESTIMATED STAFF Not yet TIME HOURS re orted TOTAL FUNDS FOR $1,055 INCIDENTAL EXPENSES TOTAL ADDITIONAL FUNDING $500 REQUESTED 4 Lori Bums, Library Commission Liaison, explained each activity. Ruth Gipstein, Library Commissioner, added that the Commission's goal is to educate the community and start looking for new commissioners. Council direction to the Library Commission: • When library issues research "best known methods" and form recommendations to City Council. • Recruit residents that aze qualified to be a Library Commissioner. ,~, ~v a c; , ~ M ~ ~ ,,,. ~ '; Parks & Trails: support on-going DeAnza 96 $1,200 for Funding Rec. Trail Task Force; present trails trails signs; no in CIP signage proposal and install trail additional for Odd signage; create and publish a City trail funds needed fellows map; identify link for Saratoga-to-the- for other items. trail. Sea; pursue new trail developments; support a trail through Odd Fellows property; manage trails maintenance matrix Kevin Moran Pazk: develop plan for 32 Funding unused space and old Orchard listed in CIP Pazk Amenities: develop plan for more 2 $0 flat ass at various locations Skate Park: Location; Campbell Skate 6 $0 Park Dog Park: review needs and plans for 12 $25,000 Dog a Saratoga dog pazk or off-leash hours; Park Donation review regional dog park plan or anized throu h Cit of Cam bell Use Fee: update group park user 10 $0 agreements; update park use fee schedule; review and implement pazk use fee olic Events and Community Involvement: 10 $500 for events ^ Creek clean-up in Sept 04 ^ Playground reopening; participate in inter-commission events (Mustard Walk, Herita a Pazk, etc. Master Plan(s): 5 $0 ^ Update Open Space Element; • Update park usage matrix (free vs. paid use); ^ Review community vs. neighborhood park designation; develop plans for future pazk amenities; • Develop pazk tree preservation and maintenance matrix; • Update Park Master Plan; ^ Update Trails Master Plan TOTAL ESTIMATED STAFF 173 TIME HOURS TOTAL FUNDS FOR $1,650 INCIDENTAL EXPENSES TOTAL ADDITIONAL FUNDING $26,700 REQUESTED Greg Gates, Chair, explained each activity. Chair Gates noted that they held the first task force meeting for the DeAnza Trail Task Force. Chair Gates noted that the PRC recently gained two new Commissioners. A discussion took place in regazds to the various school districts interested in the City taking over the maintenance of their fields. Council directed staff to contact the City of Cupertino and request a copy of their agreement and program guidelines. In regazds to the Dog Park, Council noted that there were no funds available in the budget. Council direction to the Parks & Recreation Commission: • Replace trial signs in poor condition with the $1,200.00 that is already budgeted. Investigate shift of maintenance for school play fields. • Sazatoga-to-the-Sea -find out where it stands within the County. Investigate San Jose Water District's 3 acres of land • Staff to report to Council in regards to options for aCity-wide trails map Investigate Kevin Moran Pazk as a "wireless pazk" ~„ Planning Zoning Code Updates: $0 • Mixed use development standards ^ Public &Quasi-Public Facilities Districts ^ P-A: Professional and Administrative Office District ^ Sign Ordinance • Design Review: Multi-family dwelling and commercial structures ^ R-M: Multi-family residential districts Generator Use Permit re uirement General Plan Updates $0 ^ Open Space, Parks and Trails Master Plan, and Conservation ^ Land Use Development Review (see workplan $0 for project details) 6 TOTAL ESTIMATED STAFF riamm~g Commission TIME (HOURSI activities are mandated TOTAL FUNDS FOR $1,500 INCIDENTAL EXPENSES $0 TOTAL ADDITIONAL FUNDING Mohammad Gazakani, Chair, explained the Planning Commission's work plan for FY 04- 05. Chair Gazakani noted that most of their activities are mandated. In regazds to the Land Use Element update, Tom Sullivan, Community Development Director, noted that Planner Oosterhous has held two meeting with the AdHoc Committee. A discussion took place in regards to the development of the Village. Council compared the Village to the Town of Los Gatos whose Planning Commission and City Council has a say in what goes into their downtown. :x fir= ... ,; ~, .~ . ~ ~ a<; . ~,,, ..... ,, Public PSC Commissioner Training 1 $1500 Safe 40 $2000 Emer enc Pr azedness Brochure 0 $50 PSC Commissioners CERT Trainin Neighborhood Traffic Management 300 School Traffic Task Force (not shown 20 in worl lan) 60 School Traffic Improvement (not shown in workplan) TOTAL ESTIMATED STAFF I 421 TOTAL FUNDS FOR INCIDENTAL EXPENSES - I $3,550 TOTAL ADDITIONAL FUNDING in CIP Some CIP $600 Lorie Tinfow, Assistant City Manager, explained the activities of the Public Safety Commission. Assistant City Manager Tinfow explained that the Commission would like to gain more experience in emergency preparedness and require that every Commissioner participate in CERT program. Council direction to the Public Safety Commission: Develop emergency brochure and place it on the City's web - no funding CERT -use $600 already budgeted • Additional training -approach Council in three month for funds or find other funding source (i.e.Grants). ADJOURNMENT Mayor Waltonsmith thanked everyone for coming to the joint meeting. There being no further business Mayor Waltonsmith adjourned the meeting at 6:30 p.m. Respectfully submitted, Cathleen Boyer, CMC City Clerk SARATOGA CIT MEETING DATE: August 4, 2004 ORIGINATING DTP ity Manager's Office PREPARED BY: Cathleen Boyers Clerk Y COUNCIL AGENDA ITEM: CITY MANAGER: ~~~ DEPT HEAD: SUBJECT: City Council Minutes RECOMMENDED ACTION: Approve minutes. REPORT SUMMARY: Approve minutes as submitted for the following City Council Meeting: Regular Meeting -July 7, 2004 FISCAL IMPACTS: N/A CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: N/A ALTERNATIVE ACTION: N/A FOLLOW UP ACTION: Retain minutes for legislative history. ADVERTISING, NOTICING AND PUBLIC CONTACT: N/A ATTACHMENTS: Attachment A -Minutes July 7, 2004 MINUTES SAgATOGA CITY COUNCIL JULY 7, 2004 The City Council of the City of Saratoga held a Joint Session with the Library Commission in the Administrative Conference Room, 13777 Fruitvale Avenue, at 5:30 p.m. The following Library Commissioners were present: Chair Anne Cross, Cathy Foscato, Ruth Gipstein, Pragati Grover, Marcia Manzo and Staff Liaison Lori Burns. Chair Cross thanked the Council for the opportunity to meet with them this evening Chair Cross pointed out the Commission's accomplishments from September 2003-July 2004: • Consolidated and prioritized different "punch list" to create the Library Construction Project List that gives an overall account of the items left to be finished Overseeing the completion of the items on the Library Construction Project List • Produced a comprehensive map of the Saratoga library • Endorsed Measure B and educated the public Oversaw the Librazy Capital Improvement Plan • Recommend to the City Council the naming of an existing bench • Reviewed the Art Donation Policy Discussed consequences of the failure of Measure B First Commission to turn in Form 700 Refined Mission Statement • Developed a work plan and budget requests • Co-Sponsored Saratoga Reads Established the attendance and report of the President of the Saratoga Libraries Asked for a Arts Commission Liaison • Recommend the erection of the flagpole at the library -will produce revenue for the City Attended Commission training sponsored by the City of Saratoga • Reviewed Library User Fees • Interfaced with the Joint Powers Authority Board Kept apprised of the activities and success of the Book-Go-Round • Co-hosted the Chamber of Commerce mixer in May Chair Cross announced that the Saratoga Library was #1 for the third year in a row in the Santa Clara Librazy System. Chair Cross noted that this year 800 children signed up for the summer reading program and 150 children attended the kick-off event. Commissioner Manzo stated that the circulation in the Library is 1/3 higher than the highest level ever. Commissioner Manzo stated that an average 500 pieces of material are checked out of the librazy in an hour. Commissioner Manzo noted that the Friends would be purchasing another self-checkout terminal. In regards to Saratoga Reads, Commissioner Manzo stated that she would approach the Friends of the Saratoga Libraries and request that they purchase a few copies of the selected book. Mayor Waltonsmith thanked the Library Commission for attending tonight's Joint Session. The City Council met in Closed Session in the Administrative Conference Room, 13777 Fruitvale Avenue, at 6:30 p.m. ADJOURNED TO CLOSED SESSION - 6:30 P.M. Conference With Legal Counsel -Existing Litigation (Gov't Code Section 54956.9(c): (1 case) Comcast Phone of California LLC v. State Board of Equalization. Alameda County Superior Court Case No. RG04151862 Conference With Labor Ne otig ators (Gov't Code 54957.6): Agency designated representatives: Lorie Tinfow, Assistant City Manager & Tom Sullivan, Community Development Director Employee organization: Non SEA Members MAYOR'S REPORT ON CLOSED SESSION - 7:00 a.m. Mayor Waltonsmith reported there was Council discussion but no action was taken. Mayor Waltonsmith called the Regular City Council meeting to order at 7:00 p.m. and lead the Pledge of Allegiance. ROLL CALL PRESENT: Councilmembers Stan Bogosian, Norman Kline, Nick Streit, Vice Mayor Kathleen King, Mayor Ann Waltonsmith ABSENT: None ALSO PRESENT: Dave Anderson, City Manager Lorie Tinfow, Assistant City Manager Richard Taylor, City Attorney Cathleen Boyer, City Clerk Tom Sullivan, Community Development Director John Cherbone, Public Works Director REPORT OF CITY CLERK ON POSTING OF AGENDA FOR JULY 7, 2004 Cathleen Boyer, City Clerk, reported that pursuant to Government Code Section 54954.2, the agenda for the meeting of July 7, 2004 was properly posted on July 1, 2004. 2 COMMUNICATIONS FORM COMMISSIONS & PUBLIC ORAL COMMUNICATIONS None COMMUNICATIONS FROM COMMISSIONS Anne Cross, Chair/Library Commission, noted that prior to the City Council meeting the Library Commission met with the Council. Chair Cross highlighted the Commission's accomplishments from Sept 2003 -July 2004. Evan Baker, Revenue Review Committee (RRC), explained the backgound of the formation of the RRC and stated that it was called the Vision Ad-Hoc Committee but changed it's name because the goup decided that developing a vision for the future was less pressing than addressing the deterioration of City infrastructure and remedying the lack of adequate revenue. Mr. Baker noted that the RRC was present this evening to recommend to the City Council to place a Utility Users Tax on the November 2004 ballot. Mr. Baker explained that the RRC is recommending the following: • WT set at 5% Assessed on cable, telephone, electricity, gas and water • Provide an exemption for residents who qualify for "lifeline" services In place for 10 years with a "sunset" date Include an Advisory Measure for voter direction on fund use Mr. Baker stated that in May and June the Committee conducted meetings with City Commissioners, Homeowner's Association members, and the public. Mr. Baker stated that at the community meeting several questions were asked: 1) How did the City get to this point? 2) What steps have already been taken to cut expenditures and/or to increase revenue? 3) What aze the alternatives to a UUT? 4) What are the consequences of no action? Mr. Baker answered question #1: • Substantial revenue loss over the past 15 years - $18,626,762 between 1992-2006 Saratoga's portion of property tax is small -City only receives 4% or $3.1 million Property tax is a large part of the City's budget - 31 % of City's budget • City's portion of all tax revenues expected to remain flat • All cost continue to increase: o Property tax will only increase 1 o Sales and Transient Occupancy Tax have decreased since 2000, and for 2004-OS will remain at roughly the same levels as last year o Expected increases in Vehicle Licensing Fees aze offset by State's planned takeaway in property tax o Sheriff's budget for 2004-OS includes an increase of $350,000 per year for existing service level o City's contribution to Employees pension fund increasing - $230,500 in 2004-OS o Worker's Compensation and health insurance expected to increase by $45,000 in 2004-OS o Supplies, material and other services purchased by the City continue to increase Responding to question #2, Mr. Baker explained all budget reductions the City has implemented from 2002-2005. Referring to question #3, Mr. Baker explained other alternatives to a iNT such as: • Local sales tax • Parcel tax • Special assessment • General bond obligation • Landscape & Lighting District • Increase to existing taxes Mr. Baker continued to explain the advantages of a WT. _ Responding to question #4, Vic Monia, RRC member, explained that if no action is taken the following could happen: • Continued deterioration of street medians and building • Higher costs for future repair • Could lose City programs and services as funds are shifted • City maybe forced to sell assets • Capital Projects maybe cut to free up funds for service needs • Funding cuts to outside groups such as SASCC and Chamber of Commerce Councilmember Bogosian asked why the RRC was recommending a general tax instead of a special tax. Mr. Monia responded that the Committee was recommending the iJUT because it's the easiest way. Mr. Monia stated that the RRC the Council hasn't authorized the RRC to spend money on polling and secondly time is running out. Mr. Monia pointed out that if the measure were not on the ballot in November 2004 it would have to wait 2 yeazs. Mr. Monia stated that the WT may not pass in November and the City will have two more years to figure out what to do, meanwhile road conditions aze going to get worse and cost are going to go up Darren Deffner, PG&E/Government Relations Representative, stated that although - PG&E is neutral on what the City does with respect to a UUT, they strongly support the City move forwazd using the model WT Ordinance to implement such a measure. Mr. 4 Deffner explained that this model was created by a group of City Attorney's from the League of California Cities with assistance by PG&E and other utility companies. Mr. Deffner stated that PG&E strongly urges the adoption of the model ordinance without deviation for three main reasons: 1) Lessens the delay of implementation because their law department would not have to review it 2) Computer programming is kept at a minimum which lowers the cost to the City 3) Other versions of a WT ordinance maybe so complicated that they would not be able to implement it due to programming or legal constraints In regards to exemptions for low-income residents, Councihnember Kline asked if exemptions were built into the model ordinance. Mr. Deffner responded that the model ordinance includes the process by which exemptions could take place. In general, exceptions should be broad customers classes - because that is how their system is created for example;"industrial", "residential" or "agriculture". Mr. Deffner stated that the ordinance could be structured in certain ways to exempt certain classes. In regards to low-income customers, PG&E has a program called "CARE". The Ordinance could be transmitted to say that all "CARE" customers in Sazatoga should be exempted. If the City creates another method of organizing low- incomeresidents their internal system would not have the ability to it break it down that way any other way and it would come back to City staff that would have to delineate every customer. Councihnember Bogosian asked if other utility companies followed the model ordinance. Mr. Deffner stated that other utilities are included in the model ordinance. City Manager Anderson noted that the City Attorney is in the process of reviewing the mode] ordinance. Jeff Swartz stated that he supports the recommendations of the Revenue Review Committee and encourages the Council to place a UUT on the November ballot. In conclusion, Mr. Baker stated that the City has deferred infrastructure and facilities maintenance because of insufficient revenue for many yeazs. Mr. Baker stated that the City needs an annual source of $3 million in additional revenue for maintenance and the WT is the best option. Councilmember Streit thanked the RRC and noted that he would support a 5% WT to be placed on the November 2004 ballot for a couple of reasons: Saratoga is a special place and he plans on keeping it that way Does not want to see the infrastructure deteriorate any more that it akeady has Councilmember Streit stated that if the WT passes in November he pledges that while he is on the City Council the money would only be spent on infrastructure. Councilmember Kline noted that he would also support the 5% WT on the November 2004 ballot and an advisory measure stating that money be spent on infrastructure. Councilmember Bogosian stated that he is uncomfortable with the WT because he feels it is being rushed through. Councilmember Bogosian stated that the community should be polled and he is confident that a measure could pass a specific tax that would address the infrastructure needs. Councilmember Bogosian stated that he appreciated Councilmember Streit's pledge, but questioned what will happen two years from now when new Councilmembers aze seated. Councilmember Bogosian stated that he is not arguing that that the City needs a dependable revenue stream, but feels the WT is not the right method. Councilmember Bogosian stated that he would like to see the City do a poll asking the people of Sazatoga what they would be willing to pay for. Councilmember Bogosian stated that he would not support placing the WT on the November ballot without polling the community and data from the community In regards to polling the community, Vice Mayor King stated that it would cost between $40-$70 thousand dollazs to conduct a poll. In regards to placing the measure on the November ballot, Vice Mayor King stated that it would cost the City approximately $68,000. If the City waits until March 2005, the cost would be $80, 000, if the measure is placed on the November 2005 ballot the costs goes up to $220,000. Vice Mayor King explained that the advantage of a WT. Vice Mayor King stated that she would support placing the WT on the November 2004 ballot. Mayor Waltonsmith thanked the RRC for their work. Mayor Waltonsmith stated that she supports placing the WT on the November 2004 ballot. STREIT/ KING MOVED TO ACCEPT REPORTTiSCH~D cT a PDiRECT STAFF jjHLLV 1 i~aal.~.+.. ~--- _ _ _ _ MOTION PASSED 4-1 WITH BOGOSIAN OPPOSING. WRITTEN COMMUNICATIONS None COUNCIL DIRECTION TO STAFF None ANNOUNCEMENTS None Consensus of the City Council to hear Public Hearing item 4 after the Ceremonial Items. CEREMONIAL ITEMS l A. COMMENDATIONS FOR BOBBY CHANDRA -OUTGOING LIBRARY - COMMISSIONER STAFF RECOMMENDATION: Present commendation. Mayor Waltonsmith read the proclamation. Commissioner Chandra was not present to accept the commendation. 1B COMMISSION MEMBE~AND OATH F OFFICEPUBLIC SAFETY STAFF RECOMMENDATION: Adopt resolutions and administer Oath of Office. TITLE OF RESOLUTION: 04-054 & 055 STREIT/KLINE MOVED TO ADOPT RESO~UmvO nMPMOc, iON G MOTION PASSED 5-0. STREIT/KLINE MOVED TO ADOPT RESOLUTION APPOINTING MARK CHAPMAN AND DENISE GOLDBERG TO THE PARKS AND RECREATION COMMISSION. MOTION PASSED 5-0. City Clerk Boyer administered the Oath of Office to Rollin Swanson. Mark Chapman and Denise Goldberg were not present. 1C. PROCLAMATION -SUPPORTING "SARATOGA READS" STAFF RECOMMENDATION: Read proclamation. Mayor Waltonsmith read the proclamation and presented it to Ar[s Commissioner Lee Murray and Library Commissioner Pragati Grover. SPECIAL PRESENTATIONS None PUBLIC HEARINGS 4 DEPNYING A TREE REMOVAL PERMIT APPEAL AT 1083 DECISION SWARTHMORE STAFF RECOMMENDATION: Conduct public hearing; uphold the Planning Commission action denying the appeal of a Staff decision. Tom Sullivan, Community Development Director, presented staff report. Director Sullivan explained that the appellant is requesting the City Council reverse a Planning Commission denial of a Tree Removal Permit application. The Appellant submitted a request to remove a mature Coast Redwood on February 11, 2004. This request was reviewed and denied on February 20, 2004 in conjunction with the criteria found in Section 15-50.080 and was subsequently denied on February 2Q 2004. The property owner submitted the appeal to the Planning Commission on March 2, 2004. On April 28, 2004 the Planning Commission on a 5-2 vote denied the appeal upholding the Staff denial of the requested Tree Removal Permit. The Planning Commission previously denied a tree removal permit for this very same tree. The City Attorney determined that a sufficient number of changes had been made to the tree ordinance to allow a new application to be accepted for processing. Director Sullivan explained the two principal guides used by staff and the Planning Commission in coming to a decision regazding the tree. Director Sullivan noted that staff denied the application for a Tree Removal Permit principally because there were alternative methods of repaving the driveway that do not require the removal of the tree. Director Sullivan stated that City Arborist David Babby provided a report containing two alternatives for the applicant to consider using and detailed instructions on how to implement either alternative. Councihnember Streit questioned the stability of the tree if the City and the property owner cut the roots on both sides. Councilmember Streit stated unless the curb and gutter was removed the City would not know how much of the root system would have to be severed. Councihnember Streit stated that he doesn't have enough information tonight to make a decision without doing the necessary exploratory work. Councilmember Kline noted that he concurred with Councilmember Streit. Councilmember Kline stated that he would not support leaning the tree or cutting 50% of the roots if any liability could possibly fall onto the City. In regards to the necessary repairs that need to be made on the curb and gutter, Councilmember Kline recommended that Council direct staff to tear it up and let the City Arborist do exploratory work. David Babby, City Arborist, responded to Councilmember Streit and Councilmember Kline's questions. Mr. Babby stated that in his opinion a buttress root is lifting the curb and gutter, and if removed may cause the tree to be unstable. Mayor Waltonsmith stated that some cities place curbs around roots. Mr. Babby stated that the City of Burlingame does install "bump out" curbs Vice Mayor King noted that she has seen several trees in the same situation as the tree on Swarthmore and asked why other trees haven't cause damage to the surrounding azeas. Mr. Babby responded that there are many variables why the roots have cause damage around the tree such as: Hazdscape on the driveway is substandard -there is no rebaz under the cement. Lack of or too much water Type of soil Mr. Babby stated that a Redwood trees is a tree that will take everything in its path. Mr. Babby stated that if you look at the way they grow -the base is twice as large as the trunk. Mohammad Gazakani, Chair/Planning Commission, stated that this application came before the Commision one yeaz ago because the administrative approval to remove the tree was appealed by a neighbor. Chair Garakani stated that the Commission denied the removal of the tree and because of the revised tree ordinance the application to remove the tree was allowed to appeal the decision. Chair Gazakani stated that the Commission heazd the appeal on April 14, 2004 and after a three hour discussion continued it to Apri128, 2004 where the Commission denied the request to remove the tree. Mayor Waltonsmith opened the public hearing and invited public comments. Adel Gundy Duvall noted that she was the property owner at 18325 Swarthmore Drive. Ms. Duvall stated that she has been a resident in Saratoga since 1968. Ms. Duvall explained the situation of the tree and noted that the root have destroyed the drive at the property located on Swarthmore. Ms. Duvall stated that in order to replace the driveway, lazge roots would have to be removed which will make the tree unstable. Ms Duvall stated that the tree could fall and hurt or kill someone. Ms. Duvall requested that the Council allow her to remove the tree. Joel Donahoe noted that he represented Ms. Duvall. Mr. Donahoe stated that the tree is in the wrong place. Mr. Donahoe stated that the alternatives suggested in Mr. Babby's report aze only temporary repairs. Mr. Donahoe stated that if 50% of the roots were severed the tree would be unstable. Mr. Donahoe stated the reasons why removal of the tree is the only option. Mr. Donahoe noted that the tree is directly above a gas line and cited a letter by PG&E personnel. Mr. Donahow stated that although PG&E could not say the tree imposed danger to the public; there is a potential risk. Mr. Donahoe requested that the City Council grant the removal of the tree. Mr. Donahoe pointed out that personal property rights should be recognized in regazds to this tree. Mr. Donahoe stated that the only way to solve this problem is to remove the tree. 9 Gil Mitchell noted that he was a registered consulting azborist with the American Society of Consulting Arborist. Mr. Mitchell noted that on Apri127, 2004 he inspected the tree in question. Mr. Mitchell noted that if the driveway, curb and gutter were to be repaired to their original grades, two- three buttress roots would be damaged. Mr. Mitchell noted that if the buttress roots were damaged the tree would be unstable. Mr. Mitchell noted that he recommends that the City allow the removal of the tree. Christa Werling noted that she was a friend of Ms. Duvall. Ms. Werling stated if the tree is not removed the property value would go down. Ms. Werling requested that the City Council allow the removal of the tree. Yvonne Zivanic noted that she lives next door to the property located at 13825 Swarthmore Drive. Ms. Zivanic stated that the tree could fall on her house. Ms. Zivanic stated that she worked very hard to move to Sazatoga and now she wonders if her family made the wrong decision. Jim Dillinger noted that he is the resident at the property in question. Mr. Dillinger stated that the tree should be removed because it is a hazazd. Mazk Beandoin noted that he was a certified azborist and a landscape architect. Mr. Beandoin stated that the tree is in a bad place. Referring to the tree in question, Mr. Beandoin noted that the tree is only 45 years old and is still growing. Mr. Beandoin stated that as the tree grows it would cause more damage. Mr. Beandoin stated that he recommends removal of the tree. Tom Morman noted that he was a real estate agent. Mr. Morman stated that the property value of the house on Swarthmore would decrease if the tree is not removed. Kazl Clemons noted that he supports saving the tree. Olregario Lara noted that he has lived at his property for 41 years. Mr. Olregario noted that he lives across the street from 18325 Swarthmore Drive. Mr. Olregario stated that he supports keeping the tree because it is a living thing and provides oxygen. Mr. Olregario noted that he has watched the tree grow for the last 41 years and stated that he feels it is a landmazk in the neighborhood. Elizabeth Lara noted that she supports saving the tree. Ms. Laza pointed out and provided photos of redwood trees throughout the City like the tree on Swarthmore Drive. Mary McGuire noted that she has lived across the street from the redwood tree for the past 8-''/z years. Ms. McGuire noted that she supports the Planning Commission's decision and urged the City to uphold it. Ms. McGuire noted that she hasn't heard any compelling reasons why the tree should be removed. 10 Tom Corson noted that none of the experts who spoke in regards to removing the tree had any ownership in Saratoga. Mr. Corson noted that this tree was valued at $18,000. Mr. Corson noted that the Planning Commission did a tremendous job, twice, and urged the Council to uphold their decision and deny the appeal. Mr. Donahoe stated the options provided by the City's azborist would make the tree unstable and create added risks. Mr. Donahoe reiterated why the tree should be removed and urged the Council to grant the appeal. Mayor Waltonsmith closed the public hearing Councihnember Kline noted that he has mixed reactions in regards to this tree. Councilmember Kline noted that the tree is healthy but all azborist stated that if you remove the root system on both sides the tree would be unstable. Councilmember Kline noted that he doesn't know if the root system can be removed under the curb and gutter until the curb and gutter is removed. Councilmember Kline noted that after the exploratory work, if the azborist reports that the roots on both sides cannot be severed he would support removal of the tree. Councilmember Streit noted that he concurred with Councilmember Kline. Councilmember Streit noted that safety is his priority in this situation. Vice Mayor King noted that the Planning Commission spent many hours on this situation and she is very comfortable with their decision. Vice Mayor King noted that she concurred with her colleagues that the exploratory work must be performed. Councilmember Bogosian noted that he has at least 20 redwood trees on his property, some larger than the one on Swarthmore. Councilmember Bogosian stated that all of the azborists have stated that the buttress roots would be damaged if severed, which would make the tree unstable. Councilmember Bogosian noted that he could support overturning the Planning Commission's decision. Mayor Waltonsmith noted that trees are planted in the wrong places all over the City of Saratoga. Mayor Waltonsmith noted that she feels trees are assets. Mayor Waltonsmith noted that she feels that the tree on Swarthmore is a healthy tree and supports saving it. KING/KLINE MOVED TO DIRECT STAFF TO REMOVE CURB AND GUTTER AROUND ROOT SYSTEM AND CONTINUE THE PUBLIC HEARING ON AUGUST 4.2004. MOTION PASSED 4-1 WITH BOGOSIAN OPPOSING. 11 CONSENT CALENDAR 2A. APPROVAL OF CITY COUNCIL MINUTES -MAY 19, 2004 STAFF RECOMMENDATION: Approve minutes. BOGOSIAN/STREIT MOVED TO APPROVE CITY COUNCIL MINUTES FROM MAY 19, 2004. MOTION PASSED 5-0. 2B. APPROVAL OF CITY COUNCIL MINUTES -JUNE 16, 2004 STAFF RECOMMENDATION: Approve minutes. BOGOSIAN/STREIT MOVED TO APPROVE CITY COUNCIL MINUTES FROM JUNE 16.2004. MOTION PASSED 5-0. 2C. REVIEW OF CHECK REGISTER STAFF RECOMMENDATION: Approve check register. BOGOSIAN/STREIT MOVED TO APPROVE CHECK REGISTER. MOTION PASSED 5-0. 2D. AGREEMENT BETWEEN THE CITY OF SARATOGA AND DAVID AND SUSAN CARTER -18947 HARLEIGH DRIVE, SARATOGA AND CITY PROPERTY KNOWN AS ASSESSOR'S PARCEL NUMBER 389-29-020 STAFF RECOMMENDATION: Ratify execution and recordation of Agreement. BOGOSIAN/STREIT MOVED TO RATIFY EXECUTION AND RECORDATION OF AGREEMENT. MOTION PASSED 5-0. 2E. DESIGN SERVICES FOR BLANEY PLAZA IMPROVEMENTS -PHASE II STAFF RECOMMENDATION: Approve professional services contract from Greg Ing and Associates in the amount of $9,500; Authorize City Manager to execute a professional services agreement; Authorize staff to expend up to $7,500 for surveying and miscellaneous costs associated with the project. Councilmember Bogosian requested that item 2E be removed from the Consent Calendar. 12 Councilmember Bogosian asked how much money the City has spend on Blaney Plaza. Director Cherbone responded that approximately $60,000 has been spend on Blaney Plaza. Councilmember Bogosian asked how much was budgeted for this project in the CIP. Director Cherbone responded $120,000. Councilmember Kline asked how much would the City save if the project was stopped completely Director Cherbone responded $120,000. Mayor Waltonsmith suggested that Council schedule a site visit to Blaney Plaza to assess the needs. Director Cherbone explained that the irrigation system, the landscaping, and a few benches should be replaced in Blaney Plaza. Director Cherbone added that some improvements should be done for safety reasons, although most improvements are strictly for aesthetics. Consensus of the City Council to schedule a site visit to Blaney Plaza and continue the item to July 21, 2004. 2F EQUIPMENT UPGRADE PROJECTI-NOTIE OF CAM LETION UND STAFF RECOMMENDATION: Accept Notice of Completion. BOGOSIAN/STREIT MOVED TO ACCEPT NOTICE OF COMPLETION. MOTION PASSED 5-0. 2G. ENTER INTO A REVISED CORE NATURAL GAS AGREEMENT WITH ABAG POWER STAFF RECOMMENDATION: Authorize the City Manager to sign the Revised Core Natural Gas Agreement with ABAG POWER BOGOSIAN/STREIT MOVED TO AUTHORIZEAT,D~FI~N WITH AB G POWER. MOTION PASSED 5-0. Consensus of the City Council to move to new Business item 6. 13 NEW BUSINESS 6. RESOLUTION OF INTENT TO AMEND ORDINANCE NO. 225 - AN INTERIM ORDINANCE EXTENDING A MORATORIUM ON NEW PERSONAL SERVICE BUSINESSES LOCATED ON THE GROUND FLOOR IN THE VILLAGE AND DECLARING THE SAME TO BE AN URGENCY MEASURE TO TAKE EFFECT IMMEDIATELY STAFF RECOMMENDATION: Accept report and direct staff accordingly. Tom Sullivan, Community Development Director, presented staff report. Director Sullivan noted that on November 19, 2003 Ordinance 225 was adopted on a four-fifths vote establishing a moratorium on Personal Services businesses on the ground floor of buildings in the Village. On June 14, 2004, Arlen and Jim Rosefeld sent a letter to the Council requesting that Ordinance 225 be amended to allow new personal services businesses to be located on the ground or first floor as long as it is not fronting on Big Basin Way. Jim Rosefeld noted that he owned a building in the Village. Mr. Rosefeld noted that he has a possible tenant for a space in the alley, which is not suited for retail. Mr. Rosefeld requested that the Council amend Ordinance 225. BOGOSIAN/STREIT MOVED TO ADOPT RESOLUTION OF INTENT TO AMEND ORDINANCE 225. MOTION PASSED 5-0. PUBLIC HEARINGS 3. RESOLUTION ORDERING THE ABATEMENT OF A PUBLIC NUISANCE BY REMOVAL OF HAZARDOUS VEGETATION STAFF RECOMMENDATION: Conduct public heazing. No other action is necessazy -properties listed on the 2004 Brush Abatement report are in compliance. Cathleen Boyer, City Clerk, presented staff report. City Clerk Boyer stated that this year three properties were listed on the 2004 Brush Program Commencement Report. As of June 22, 2004 all three properties have been inspected and aze in compliance with the program standards. No public hearing is necessary. Mayor Waltonsmith opened the public hearing and invited public comments. Seeing none, Mayor Waltonsmith closed the public hearing. This item required no Council action. 14 OLD BUSINESS None NEW BUSINESS 5. ESTABLISHING A COMMITTEE TO RECOMMEND OPTIONS FOR RESOLVING ORCHARD DIRT AND MUD TRACKED INTO THE SARATOGA LIBRARY STAFF RECOMMENDATION: Provide direction to staff regazding the composition of a proposed Committee to develop recommendations that will address problems associated with dirt and mud tracked into the Library from the Orchard. Lorie Tinfow, Assistant City Manager, presented staff report. Assistant City Manager Tinfow explained that the Sazatoga Library opened to the public on June 21, 2003. Many students from Redwood Middle School use the Library after school. This spring, Library staff noticed an increase in dirt and mud being tracked into the building by students who walk through the orchard. There is also as a problem with mud and water in the restrooms as students try to wash off their shoes. Several suggestions have been made to resolve the problem such as installing an asphalt path through the orchard as existed previously, or distributing a mulch material over the dirt path currently in use. Both have impacts on Orchard operations. Assistant City Manager Tinfow noted that a successful resolution would require input from various stakeholders. Staff proposes bring in representatives from the following groups together for a meeting: • Two from the Library Commission • Two from the Heritage Preservation Commission • Appropriate Library staff • Appropriate City staff • At least one Councilmember • Orchazdist Matt Novacovich In addition, Assistant City Manager Tinfow stated that a suggestion has been made to include at least one representative from the Youth Commission who attends Redwood Middle School to participate on behalf of the users. Assistant City Manager Tinfow stated that this Committee would likely need to meet once or twice over the summer to identify options and/or recommendations for Council consideration, with the goal of remedying the problem before school starts in the Fall. Councilmember Kline requested that prior to the meeting, staff prepare a list of options and associated costs. 15 Councilmember Bogosian requested that the committee come up with viable options and come back to the Council as soon as possible. Vice Mayor King suggested that only one person from each group be appointed to serve on the committee. A discussion took place in regazds to the difference of opinion between Councilmember Kline and Councilmember Streit. Consensus of the City Council to appoint both Councilmember Kline and Councilmember Streit and one member from each group listed in report with the exception of two appointed staff members. 7. PERMISSION TO FILL PARKS MAINTENANCE WORKER I POSITION VACANCY STAFF RECOMMENDATION: Council designate this position as "essential" and authorize City Manager to fill the Pazks Maintenance Worker I position. Lorie Tinfow, Assistant City Manager, presented staff report. Assistant City Manager Tinfow explained that the staff hiring freeze enacted in 2003-2004 with exceptions of department directors and essential employees continue to be in effect for FY 2004-2005. The Parks Maintenance Worker I has given notice that he will be leaving the City for another opportunity. At this time staff requests direction on whether or not Council considers this position "essential" and wishes to authorize the City Manager to release the hiring freeze to fill this position. Assistant City Manager Tinfow briefly explained the duties of a Parks Maintenance Worker I. KING/BOGOSIAN MOVED TO DESIGNATE THE POSITION OF PARKS MAINTENANCE WORKER I AS "ESSENTIAL" AND AUTHORIZE CITY MANAGER TO FILL THE PARKS MAINTENANCE WORKER I POSITION. MOTION PASSED 5-0. COMMISSION ASSIGNMENT REPORTS Mayor Waltonsmith reported the following information: VTA Restroom Ad-Hoc - would be presented to Council on August 4, 2004. Vice Mayor King reported the following information: Arts Commission - co-sponsoring "Saratoga Reads". City/School Ad-Hoc Committee -working with Cupertino Union School District regazding their interest in maintenance agreements with the City for their fields. Councilmember Bogosian had no reportable information. Councilmember Kline reported the following information: Village Ad-Hoc Committee -would start working on a "Business Development Plan". 16 Councilmember Streit had no reportable information. CITY COUNCIL ITEMS Councilmember Kline requested that staff be directed to bring an item back to Council for discussion regazding "bump outs". City Attorney Taylor stated that there were two issues: 1) rules applying to personal property 2) City's right to manger right-of--ways. Councilmember Kline requested that a report regazding a citywide festival centered on a theme be agendized. Consensus of the Council to support Councilmember Kline's request. Councilmember Streit stated that there has been a lot of interest in maintenance agreements between the school districts and the City. Councilmember Streit requested that Council give direction to the Pazks and Recreation Commission to investigate this issue. Vice Mayor King noted that she supported Councilmember Streit's request. OTHER None CITY MANAGER'S REPORT None ADJOURNMENT There being no further business, Mayor Waltonsmith adjourned the meeting at 11:20 p.m. Respectfully submitted, Cathleen Boyer, CMC City Clerk 17 SARATOGA CITY COUNCIL MEETING DATE: August 4, 2004 ORIGINATING DEP • City Manager's Office PREPARED BY: ~ ~ ~~ i Cathleen Boyer, Clerk AGENDA ITEM: is CITY MANAGER: ~~Gi~`~- DEPT HEAD: SUBJECT: City Council Minutes RECOMMENDED ACTION: Approve minutes. REPORT SUMMARY: Approve minutes as submitted for the following City Council Meeting: Special Meeting -July 26, 2004 FISCAL IMPACTS: N/A CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: N/A ALTERNATIVE ACTION: N/A FOLLOW UP ACTION: Retain minutes for legislative history. ADVERTISING, NOTICING AND PUBLIC CONTACT: N/A ATTACHMENTS: Attachment A -Minutes July 26, 2004 MINUTES SARATOGA CITY COUNCIL SPECIAL MEETING JULY 26, 2004 The City Council of the City of Saratoga met in a Special Meeting, in the Administrative Conference Room 13777 Fruitvale Avenue at 9:30 a.m. CALL TO ORDER Mayor Waltonsmith called the meeting to order at 9:35 a.m. ROLL CALL PRESENT: Mayor Ann Waltonsmith, Vice Mayor Kathleen King, Councilmember Stan Bogosian, Councihnember Norman Kline ABSENT: Councilmember Nick Streit ALSO PRESENT: Dave Anderson, City Manager Cathleen Boyer, City Clerk Iveta Harvancik, City Engineer REPORT OF CITY CLERK POSTING OF AGENDA FOR JULY 26 2004 Pursuant to Government Code 54956, the agenda for this meeting was properly posted on July 26, 2004. 1. HIGHWAY 9/BIG BASIN WAY INTERSECTION IMPROVEMENTS - PROJECT MANAGEMENT TRANSFER STAFF RECOMMENDATION: Adopt resolution authorizing the City Manager to sign a cooperative agreement with the Saratoga Fire District for Highway 9Big Basin Way Improvements, and approving payment to the District of $152,895 for said improvements. TITLE OF RESOLUTION: 04-063 Iveta Harvancik, City Engineer, presented staff report. Engineer Harvancik explained that on November 6, 2002 the City Council adopted a resolution approving the application for a new and temporary fire station with conditions. One of the conditions of approval required that Saratoga Fire Protection District (SFPD) would share the responsibility with the City for design and construction of improvements to the Highway 9Big Basin intersection. Engineer Harvancik explained on July 9, 2004 the City received an encroachment permit from Caltrans with the requirement that a single general contractor be retained for all the work and originally planned reasonability sharing become impractical Engineer Harvancik stated that staff met with the SFPD and discussed the possible options on how to proceed with the project to avoid any additional costs and delay. In conclusion, Engineer Harvancik explained that the SFPD would become the lead agency and administer the construction of all improvements within Caltrans right-of--way. City staff agrees that this approach would simplify the process by constructing all improvements at the same time and by the same contractor. In addition, Engineer Harvancik noted that the time period for the road construction and temporary right turn lane would be much shorter by using the contractor previously selected by the SFPD, thus eliminating new bid- soliciting process necessary if the City were to undertake the work. Dave Anderson, City Manager, pointed out that by using the SFPD contractor it lowered the cost to the City by $50,000. KINGBOGOSIAN MOVED TO ADOPT RESOLUTION APPROVING A COOPERATIVE AGREEMENT WITH THE SARATOGA FIRE DISTRICT FOR IMPROVEMENTS TO THE HIGHWAY 9BIG BASIN WAY INTERSECTION. MOTION PASSED 4-0-1 WITH STREIT ABSENT. ADJOURNMENT Mayor Waltonsmith adjourned the meeting at 9:45 a.m. Respectfully submitted, Cathleen Boyer, City Clerk City of Saratoga SARATOGA CITY COUNCIL MEETING DATE: August 4, 2004 AGENDA ITEM: I ORIGINATING DEPT: Administrative Services CITY MANAGER: ~/ -~-/ ~~~-- PREPARED BY: Jaye Tkach.~'( DEPT HEAD: !/ SUBJECT: Check Register: 7/29/04 RECOMMENDED ACTION(S): Approve the Check Register. REPORT SUMMARY: Attached is the Check Register. FISCAL IMPACTS: None CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION(S): None ALTERNATIVE ACTION(S): None FOLLOW UP ACTION(S): None ADVERTISING, NOTICING AND PUBLIC CONTACT: None ATTACHMENTS: Check Register Certification. nd Name Date manuar .~~W 7/2912004 Checks Checks AP CHECKS A97027-97141 GENERAL 403,306.25 2,736.56 1 100 COPS-SLESF 711.39 110 Traffic Safety 18 467 48 150 Streets & Roads . , 180 LLA Districts 9,180.40 250 Dev Services 6,735.28 260 Environmental 9,328.73 270 Housing & Comm 29.43 290 Recreation 27,819.10 291 Teen Services 187.60 292 Facility Ops 1,421.39 293 Theatre Surcharge 18.39 310 Park Develpmt 00 720 320 Library Expansion . 734.77 28 351 Public Safety , 955.26 12 352 Infrastructure , 420.00 66 353 Facility Park and Trail , 2,075.03 354 400 Library Debt 420 Leonard Creek 720 Cable N 54 619 740 PD #3 . 800 Deposit Agency 618,729.74 2,736.56 PAYROLL CHECKS: 630078-30154 TOTAL T~(~-~- 7%a9/o~ Apr-99 r W W O N N W O a 6 m F~ 205 G W a ZO .. w~ ~ rv E U ~ w~ w'~ ar W wo m . 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MaU w : a o a F ap ap F O E• w w a a g ° z a ° ~ a a z [ . F p ] > F > ~ E `£n r ~ F u ~ ~ a ' ° r + a Z Nr x F F4 r O Z E~ O i Z r-r D < C C h ~ Oi OZ~ U U R m a r a °m rv SFr xR U°i m i N 5 U r 1~ C o 0 x Z o m o m ~ O £x O 4 ox~ a ~ w r ~ mao ~ oh ~ p Z r ~ o N a 4 5 z u° a ° o m ~o o> x W W v1 7 % N m OU N Z (] 'J r N N mH 7 r 00 Orl 1E SARATOGA CITY COUNCIL MEETING DATE: A~~a~~~* 5. znna AGENDA ITEM: ORIGINATING DEPT: Pnhlir Wnrks CITY MANAGER: O~Jn~ PREPARED BY: Mnrg~n Kessler ~~ DEPT HEAD: v~ l~ Vn /~/~ ` SUBJECT: 2004 Pavement Management Program -Award of Construction Contract RECOMMENDED ACTION: 1. Move to declare Bortolotto & Co. of San Carlos to be the lowest responsible bidder on the project. 2. Move to awazd a construction contract to Bortolotto & Co. in the amount of $580,577.39. 3. Approve additional work to contract in the amount of $200,000.00. 4. Move to authorize staff to execute change orders to the contract up to $100,000. REPORT SUMMARY: Sealed bids for the 2004 Pavement Management Program were opened on Thursday, October 31st. A total of eight contractors submitted bids and a summary of the bids received is attached (Attachment 1). Bortolotto & Co. of San Cazlos submitted the lowest bid of $580,577.39, which is 19% below the Engineer's Estimate of $714,040.00. Bid amounts came in unexpectedly low, which can be attributed to current material prices. Staff has carefully checked the bid along with the listed references and has determined that the bid is responsive to the Notice Inviting Sealed Bids dated July 19`h, 2004. Staff recommends incorporating additional work into the contract in the amount of $200,000.00, because of the favorable bids received. This additional amount will be fully covered by the PMP budget, and will allow for the overlay of additional City streets per the recommendations of the City's adopted Pavement Management Program. The scope of work includes furnishing all materials, equipment, and labor to resurface and re-stripe segments of public roadway and walkway at various locations throughout the City (see attached location map). It is therefore recommended that Bortolotto & Co. be the lowest responsible bidder on the project, and to award a construction contract this firm in the amount of their bid. Further, it is recommended that the Council authorize staff to execute change orders to the contract up to an amount of $100,000 to cover any unforeseen circumstances and address additional work, which may arise during the course of the project. FISCAL IMPACTS: Funding for this work is programmed in the adopted budget under the PMP and the Sobey Road/Quito Road Traffic Improvement C1P, which together contain sufficient funds to cover the contract and recommended change order amounts. CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: Bortolotto & Co. will not be declared the lowest responsible bidder and a construction contract will not be awarded to that firm. The Council may make specific findings to declare another bidder to be the lowest responsible bidder, or reject all of the bids and direct staff to re-bid the entire project. However, staff does not believe that a lower bid will beobtained by re-bidding the project due to the competitive nature of the current bids received. ALTERNATIVE ACTION(S): None in addition to the above. FOLLOW UP ACTION(S): The contract will be executed and the contractor will be issued a Notice to Proceed. Work will begin as soon as possible, and be completed by within 45 working days. ADVERTISING, NOTICING AND PUBLIC CONTACT: Nothing additional. ATTACHMENTS: 1. Bid Summary. 2. Map of included streets 3. List of included streets O '~ r W v V A O O O O fT O V V W ID ~ a 3 c _ V _ O _ U t A W _ N _ -+ _ O fO W V T N A W N ~ Z ~ c a ' - so O ~ - ~ ~ O N O O O N O Cn O (T O O O N N , ~ , J , O ~ p ~ A % ~ -+ ~ ~ O OD D C r r r r r r r ~ D D amrt amrt r O 0 ~ z ~ ~ ~ ~ ~ ~ ~ D D c » z T z ? N N 0 ~ ~ ~ ~ ~ ~ ~ ~ s D D D D ~ ~ ~ "' °A m m f ~ is A ~ ~ ~ c c c c' m d a O d d ~ n ~ ~ (D 2 m c O T 3 4 4 ~ ~ o ~ ~ T m c ~ n m v ~ m 0 0 0 ~ N ~ m o m o ~ ~ m m m ~ N ~ a w Q _d 5i d d m 3 m N C1 ~ e A W N W N ~ ~ ,n.. ~ O O J W N d ~ O~ ~O (~ N m o m m ~ O ~ N O 7 N ~ ~ fD d N ~ ~ m 0 o ~ oo '~ C g• O o W W o 7 ' N (O 71 C TI C (O (D t0 V • ! ! W O O (T O ~ ~ N N O O O O O O N O (p ~ ~ 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 N 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 m N R 3 ° : . m ~ N N ~ _ O A W m - N N O O (D E N V (n W W N W N O 0 0 0 0 0 0 0 0 0 0 N W ~ O N Ii C f 0 O m O o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 W ~ C .Z ~ v ~ 3. ~ o (O O N O j J O N V VI ~ M .'T N t0 O A tD ~ ~ N ~ (T O t0 W ~ (.ti p X 0 0 (T 0 0 0 0 V 0 0 0 0 0 - ~ ~ O Q O ~ 0 0 0 0 do J V ~ 0 0 0 0 0 (0 0 0 n O ~1 N A _ m V l 0 V ~ O a1 A N W V O W W A ~I O O W ( JI Ut O N O Ut O A W ( P ~ A C T O O N A W W 01 N -+ J N N W Ut A O O O O ( D O 01 C P O N ~ N O O N N O imn :a i f A 3 O ~ ~ I? ~ N /O 0 A ~ v0 d 3 D m 3 d 7 m N 3 m O f0 'm 3 01 V O N O 01 V ~O N W V O O M~ W O Ol N N V N fA V O W A ao O O 0 ci o C a X 1 0 O O 0 O 0 O 0 O 0 O t 0 0 N ~ N N I n ~ D ~ O N O m O N N W N ~ N (J~ 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ( ~ )1 0 O ~ 7 .Nil N O N ~ (TI > > ~ N ) A W W W O N O O N A N N V 0 iy Y7 O ~I O O O O O N O D) cn A 00 0 01 I J O) O O 01 O 0 O 0 O 0 O 0 O 0 O 0 O 0 O 0 O 0 O 0 O 0 O 0 O 01 N O ~I t0 D) 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O c J D1 Qo ~ C 7 W O O N N O A O 0 O 0 O 0 O 00 N C N O ~ ~;,' ID ~ OI O O A O N N W O ~ Ot 0 0 0 0 0 0 0 0 0 N 0 O 0 O 0 V 0 0 0 0 0 0 0 0 0 0 0 0 0 VI 0 0 ~ N O' A N 3 n N N v + ~ ~ a1 O m N N OD V OD W -+ W O 00 P1 O N O O O W O - O N N fJ W -' J O OD V1 W O O O O O O O O O O O O O O O O O O A O O O O O O O O O A N J Ot OD O O O O O O O O O O O O O O O O O O 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 n T N CTS o Ic -, ~ a C1 N O O A O A O A O A O O O N W ~ 01 A W et ? ~ N O O Ot O W W G1 N O O O O O O O O O O O O O O O O O O O O O O O N ~ N A O O O O O O O 9 ~_ ~ W O O O N ~ O ~ N ~ ~ N ~I N A A ~ O OD J N N W N ~j O 0 O 0 O 0 O 0 O 0 (T 0 N 0 01 0 0 o ? OD ~ O O OD N W O O ~ W A J J N 0 0 0 0 0 0 0 0 0 0 0 0 0 0 D1 O N O O O O O o O O O O O O O O O O N m W -+ ° ~ C 3 0 0 O o O CN7 1 N 0 0 0 00 ~ m Cf ~ '~ O O) ( 0 O W N N N [O O 0 0 A 0 0 0 0 0 W 0 N 0 0 O 0 O 0 O 0 O 0 O 0 O 0 IJ 4 0 1 0 1 y 0 0 < 7 -.{ J A W _ Q 1 J .~ _~ ~ N f0 ~ A A ~ O -~ W N 0 f0 1 O 0 0 1 ~ 0 I O 1 0 O 0 D O 0 N 0 E 0 1 0 0 0 7 4 0 1 W 1 V N N J N O O J W (n N a 4 o 1 0 0 0 0 0 o o o o o cn o o o o ow N 0 °0 °0 0 0 0 °o °o °0 °0 °0 0 0 0 °o °o O ~I~ I ~ z -~ m x o° o ~ n D o . . m ~ o > > ~ ~ m f a w N ~ <~ ° ~ N ~ ° m m a ~ ~ ~ c m ~ Z o o ~ m d ~ (~ c 'll 0 > 3 a S v n~i 3 > ~ ~ m ~~ m ~ m p ~ °- n a m °' o ~ (07~ ~ N ~ O N 0 .o S O ~ W O G1 M W W M N o ~ o ~p A .. ~ O ~p A 3 ~ 3 N ~ a °' ~~ m ~ r. ~ O~ < •* ~ o ~ ~ m 3 SARATOGA CITY COUNCIL MEETING DATE: August 4, 2004 AGENDA ITEM: ORIGINATING DEPT: Public Works CITY MANAGER: ~~L~~`r -- PREPARED BY: John Cherbone DEPT HEAD: ~ ~ SUBJECT: Contract Renewal for Municipal Traffic Engineering RECOMMENDED ACTION(S): Approve aone-yeaz contract renewal with Fehr & Peers Associates, Inc. for on-call Traffic Engineering Services and authorize City Manager to execute the same. REPORT SUMMARY: Fehr & Peers has been providing on-call Traffic Engineering services for the City for over two yeazs and has performed their services well. They have thorough knowledge of traffic conditions in Saratoga and a strong ability to work with the public. Sohrab Rashid, the lead consultant to the City, has done an excellent job working with the Public Safety Commission and with staff on various traffic issues and projects. If approved, this will be the second one-year extension to their contract. Fehr & Peers has agreed to hold their current rates for the contract renewal period. Sohrab's rate is $155/hr, which includes a City discount of $10/hr. Sohrab's normal billing rate is $165/hr. It is therefore recommended that City Council approve an extension to the existing contract with Fehr & Peers Associates, Inc. for on-call Traffic Engineering Services and authorize the City Manager to execute the same. FISCAL IMPACTS: Funding for the contract is included in the adopted budget as well as in the CIP. CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION(S): The existing contract would not be extended. ALTERNATIVE ACTION(S): The Council could direct staff to solicit additional proposals. FOLLOW UP ACTION(S): The contract extension will be executed. ADVERTISING, NOTICING AND PUBLIC CONTACT: Nothing additional. ATTACHMENTS: 1. Existing contract. 2 of 2 FEHR st PEERS iRANSPO RTATIUN CONSULTANTS FEHR & PEERS ASSOCIATES, INC. Hourly Billing Rates Classi5cation Hourly Rate Senior Principal $180.00 - $195.00 Principal $135.00 - $195.00 Senior Associate $130.00 - $170.00 Associate $122.00 - $160.00 Senior Engineer/Planner $90.00 - $145.00 Engineer/Planner $75.00 - $115.00 Senior Technical Support $75.00 - $105.00 Administrative Support $45.00 - $80.00 Technician $52.00 - $85.00 Intem $50.00 - $70.00 Note: Reimbursable expenses are invoiced at cost plus 10% for handling including the following: Reproduction work at $.07 per sheet Plotter /Computer use at $10 per hour Personal auto mileage at $.365 per mile Communication Expense (Telephone, fax, E-mail, etc.) ' CITY OF SARATOGA , STANDARD ', INDEPENDENT CONTRACTOR AGREEMENT THIS AGREEMENT is made at Saratoga, CalifornCa by anand eF hr & ePeers OF SARp,TOGA, a municipal corporation ( tY )~ Associates, Inc., ("Contractor"), who agree as follows: RECITALS WHEREAS, City requires the services of a qualified contractor to provide the work product described in Exhibit A of this Agreement; and WHEREAS, City lacks the qualified personnel to provide the specified work product; and WHEREAS, Contractor is duly qualified to provide the required work product; and WHEREAS, Contractor is agreeable to providing such work product on the terms and conditions hereinafter set forth. NOW THEREFORE, the parties hereto agree as follows: 1, RESULTS TO BE ACHIEVED actorbshallop ovide to C tycthe lwork set forth in this Agreement, ~~ Contractor is not product described in Exhibit A ("Scope of Work ). authorized to undertake any efforts or incur any costs whatsoever under the terms of this Agreement until receipt of a fully executed Purchase Order from the Finance Department of the City of Saratoga. 2, TERM The term of this Agreement commences on January en 2002, and extends through January, 2003, unless it is exteanrtd1e s retain the mutual agreement between the parties, provided that the p right to terminate this Agreement as provided in Exhibit D at all times. 3 pA_~ T City shall pay Contractor for pursuant to this Agreement at the time and in work product produced the manner set forth in Page 1 City of Saratoga/Standard Contract Agreement My Documents/Contracts 03/15/01 • Exhibit B ('`Payment"). The payments specified in Exhibit B shall be the only payments to be made to Contractor in connectio Bement. CContractor completion of the Scope of Work pursuant to this Agr shall submit all billings to City in the manner specified in Exhibit B; or, if no manner is specifi acti e which Contractor uls a forhbilling~clien s s miler to procedures and p City. 4. rH~ly,T.Fe aND EQUIPMENT Except as set forth in Exhibit C ("Facilities and Equipment ), Contractor shall, at its soluired foran ompleting furnish all facilities and equipment; which may be req the Scope of Work pursuant to this Agreement. City shall furnish to Contractor only the facilities and equipment listed in Exhibit C according to the terms and conditions set forth in Exhibit C. GENERAL PROVISIONS City and Contractor agree to and shall 5 General Provisions"). abide by the general provisions set forth in Exhibit D (~~ rovisions and any In the event of any inconsistency between said general p other terms or conditions of this Agreement, the other term or condition shall control insofar as it is inconsistent with the General Provisions. 6, EXHIBITS All exhibits referred to in this Agreement are~att of this. hereto and are by this reference incorporated herein and made a p Agreement. This Agreement shall be ~, CONTRACT ADMINISTRATION administered on behalf of City by John Cherbone, Public Work to rece~ve The Administrator has complete authority ( Administrator' ). olicies consistent with this information, interpret and define City's p Agreement, onden em and 1 other ommun cations shalll be directede toeno All corresp through the Administrator or his or her designee. g, NOS All notices or communication concerningand ma~ e compliance with the terms of this Agreement shall be in writing given either personally, by certified mail, return receipt requested, or by overnight express carrier. The notice seals neoretheedate uponbwhichithe and received on the date delivered in p postal authority or overnight express carrier in ThetParties shall lmak gg° d delivered to the address of the receiving Party• notice of any notices or faith .efforts to provide advance courtesy under no communications hereunder via telefacsimile. However, circumstances shall such courtesy notice satisfy the notice requirements set page 2 of 19 Agreement My uocuu 03/15/01 1 , forth above; nor -shall lack of such courtesy. notice affect the validity of service pursuant to 'the notice requirement set forth abovdesim ate any hereto, by giving ten .(10) days written notice to the other, may gn other address as substitue onN trCe eor commun cations sh 1 be give~t t°, communication shall be gi the parties at the addresses set Sorth below until specified otherwise in writing: Notices to^Con~tractor~hall be SUt~ f~ Zoo ~. J ~T.se rk~ GSiI(7 Notices to Ciry shall be sent to: ~- \ ~' ~_ .~pn.~ City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 With a copy (which copy shall not constitute notice) to: Ciry Clerk City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 g, ENTIRE AGREEMENT This Agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to Contractor's completion of the Scope of Work on be~e5 ~~ ranpeCt to ~e all of the covenants and agreement~ann rewh tsoever. Each party to this rendering of such services in any romises or Agreement acknowledges that no representations, induaceny epnaztst,yp or anyone agreements, orally or otherwise,h ch are not embodied herein, and that no acting on behalf of any pam'~ other agreement, statementNoor ~e dmentt alteration, or vhanation of the shall be valid or binding. and si ned by terms of this Agreement shall be valid unless made in writing g the parties hereto. City of Saratoga/Standard Contract Agreement My Documents/Contracts 03/15/01 of 1 J J J • • IN WITNESS WHEREOF, the parties hereto have executed this Agreement• t CONTRACTOR: ' ~~ qA . S fi ~ ~ ~, • Date: !~1 .+ ~ /~, By: , ' Print Name: ~ .S~ ~ r~ b ~ ^ s (~, `~ ' A~ iG-f'e/O~ic~ M~,~°~e~ Position: Spti CITY OF SARATOGA, a municipal corporation O~~ Date: By: Name: /s [__~7 %~~ Y~Khi~~ Title: / APPROVED AS TO FORM: ~ ...,.~ ~ r, 2 ~+ Z -~ ~v^-~- ~j Z OfTZ ~-' -- - Date: By City Attorney APPROVED AS TO BUDGET AUTHORITY AND INSURANCE: //-/~ Ti~~[ O OGa Date: By: dministrative Services Director Attac~ is Exhibit A -- Scope of Work Schedule Exhibit B -- Contract Payment and Reporting Exhibit C -- Facilities and Equipment Exhibit D -- General Provisions Exhibit E -- Insurance Requirements Paee 4 of Contract My Uocun 03/15/01 EXHIBIT A SCOPE OF WORK Contractor shall complete the attached Scope of Work. J page 5 of 19 City of Saratoga/Standard Contract Agreement My Documents/Contracts 03/15/0] • Exhibit A - Scoue of Work CONSULTANT TASKS On request of the Public Works Director, the Traffic Engineer will perform traffic engineering services on behalf of the City to include but not limited to: Nei 6borhood Traffic Management • Attend neighborhood workshops and public meetings to gather input and explain issues regarding traffic calming. • Work with residents to complete an initial field review and define the study area of traffic calming issue. • Organize and facilitate the traffic calming plan development process. • Design or obtain designs of traffic calming devices to be implemented or installed. • Collect data and evaluate the effectiveness of traffic calming devices. • Prioritize deployments and maintain an adopted annual budget for traffic calming. • Periodically update the NTMP as needed. General Traffic Engineering • Receive requests from City staff, residents, and Public Safety Commission. • Investigate and report on traffic related issues and problems referred by staff and Public Safety Commission. • Perform traffic and transportation related studies and prepare reports with findings and recommendations on matters referred for investigation. Attend meetings with City staff, advisory commissions and City Council to present reports as needed or when requested. • Prepare letters, memos, correspondences in response to inquires referred for investigation. re are and/or review Traffic • Assist in the review of land development applications; p p Impact Analysis performed in connection with these applications; generate conditions of project approvals Tor consideration by the Planning Commission/City Council. • Coordinate and perform activities in connection with the Traffic LOS Monitoring requirements of the Congestion Management Program Annual Monitoring and Conformance reports. • Compile and maintain data and statistics for the City and file updated information with appropriate agencies as necessary. • Assist with Speed Zone Survey as necessary. Follow up on traffic related work orders. Page 2 ~, • EXHIBIT B PAYIViENT ;, 1, TOTAL COMPENSATION City shall pay Contractor for time, and materials per the attached fee schedP le date effectivre me 16/02 forwork~to be performed and reimbtusable costs incurred tusuant to this Ag 2, INV~ S CO~eate~ of thlissAg ement,lbased on the costtfor ork once a month during performed and reimbursable expenses incurred prior to the invoice .ate. Invoices shall contain the following information: a, Serial identifications of bills, i:e., Bill No. 1; b, The beginningoandmle ngmthe total contractllamount,dthe amount c, A summary of prior billings, the total due this period, and the remaining balance available for all remaining billing periods. 3. MONTHLY PAYMENTS City shall make monthly payments, based Work,cand forlautho~ized reimburs blee xpenses ncurredn of the Scope of 4, REIMBURSABLE EXPENSES There shall be no right to reimbursement of expenses incurred by Contractor except as specified in Exhibit A to this Agreement. Contract Agreement 6of19 My Docun 03/15/01 • FEHRS~PEERS ASSOCIATES INC. ~!, Transportation Consultants , . , FEHR & PEERS ASSOCIATES, INC. FP 2002 Hourly Billing Rates Hourly Rate, Classification , Senior Principal Principal Senior Associate Associate Senior Engineer/Planner Engineer/Planner Senior Technical Support Administrative Support Technician Intem $175.00 $135.00 $135.00 $120.00 $80.00 $75.00 $65.00 $45.00 $50.00 $45.00 - $185.00 - $175.00 -$170.00 (S Rashid $140) -$145.00 (S. DeBorde $135) - $130.00 - $100.00 - $95:00 , - $78.00 - $85.00 - $60.00 Note: Reimbursable expenses are invoiced at cost plus ] 0% for handling including the following: Reproduction work at $.07 per sheet Plotter /Computer use at $10 per hour Personal auto mileage at $.365 per mile Communication Expense (Telephone, fax, E-mail, etc.) effective 1/16/01 ' ~ • ' ~ EXHIBIT C FACILITIES AND EQUIPMENT ' City shall furnish physical facilities such as desks, filing cabinets, '' and conference space, as may be reasonably necessary fo re orris ctoanrd the ' while, consulting with City employees and reviewing and time of information in possession of City. The location, quantity, furnishing said physical facilities shall be in the sole disWh Cri noay involve no event shall City be obligated to furnish any facility incurring any direct expense, including, but not limiting the generality of this exclusion, long-distance telephone or other communication charges, vehicles, and reproduction facilities. Contractor sh ul ose othercthan mcthe premises, facilities, supplies or equipment for any p rP performance of Contractor's obligations under this Agreement. City of Saratoga/Standard Convect Agreement My Documents/Contracts 03/]5/07 7of19 EXHIBIT D GENERAL PROVISIONS 1. INDEPENDENT CONTRACTOR At all times during the term of this Agreement, Contractor Contractor shallecomplet nthe tScope of Work be an employee of City. roved methods and practices in hereunder in accordance with currently aPP Contractor's field. City shall have the right to control Contractor only with respect to specifying the results to be obtain~dorcontrol thecmeans by which this Agreement. City shall not have the righ Contractor accomplishes services rendered pursuant to this Agreement. Likewise, no relationship of employer and employee issubcontract r hor Agreement between the City and Contractor or any employee of Contractor. Nothing contained in this Agreement shall be construed as limiting the right of Contractor to engage in Contractor's profession separate and apart from this Aglr-fe'o~+anntce by Contra tort of the do not interfere or conflict with the p obligations set forth in this Agreement. Interference or conflict will be determined at the, sole discretion of the City. 2. STANDARD OF PERFORMANCE , Contractor shall complete the Scope. of Work required pursuant to this Agreement in the manner and according to the standards observed ed in the geeographical azeai n which profession in which Contractor is engag Contractor practices its profession. All u°antp o dais oAgreement eshall be which Contractor delivers to City p prepared in a substantial, fir norrnallanobserved byka per sonr practic ng in to the standards of quality Y Contractor's profession. 3, TIME Contractor shall devote such time to the Scope of Work pursuant to this Agreement as may be reasonably necessary for satisfactory performance of Contractor's obligations pursuant to this Agreement. 4, CONTRACTOR NO AGENT Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Coee aentrto bind City to authority, express or implied, pursuant to this Ag any obligation whatsoever. 03/15/01 • BENEFITS AND TAXES Contractor, shall not have ,any claim under ' 5. for 'seniority, vacation time, . this Agreement or otherwise against City vacation pay, sick leave, personal .time off, overtime, health 1 disability,> ', medical care, hospital caze, insurance benefits,, social security, kind. unemployment, workers compensation, or employee benefita ofalanc~y ~ Contractor shall be .solely liable for and obligated to p y applicable taxes, including, but not limited to, federal and state income taxes, ,and in connects and arllwl a 1 tytrtha r C1tyl maynin~r nbecause 1of ,' harmless from anY such taxes. City shall have no obligation Contractors failu or N°thhold any taxes on behalf of Contractor.:. , whatsoever to paY 6. ASSIGNMENT PROHIBITED No party to this Agreement rr~ay assign any right or obligation pursuant to this Agreement. Any attempted or purported assignment of any right or obligation pursuant to this P.grevenein shall be void and of no effect. However, with the consent of the City gi writing, Contractor is entitled to subcontrbae ssec fed byoCityf the work to be performed under this Agreement as may P 7. PERSON a. Qualifications. Contractor shall assign only competent personnel to complete the Scope of Work pursuant to ~trm during the terme event that City, in its sole discretion,-at anY such persons,' of this Agreement, desires the removal of any Contractor shall, immediately upon receiving eos a of= per on of such desire of City, cause the removal of such p b. Employment Eligibility. Contracto subcontractor rretained by employees of Contractor and anY Bement have provided the Contractor in connection with this Agr and employment necessary documentation to establish identity eligibility as required by the Immigration Refoa c ma n ationl will of 1986. Failure to provide the necessary Immigration Refonnnand Control Act of 19861 as required by the g, CONFLICT OF INTEREST a of the Contractor's knowledgeeand belief there aze ono relevant facts or circumstances which could give rise to a conflict of interest on the part of Contractor, or that the Contractor has already disclosed all such relevant information. Page 9 of 19 City of Saratoga/Standard Contract Agreement My Documents/Contreets 03/15/01 • b: Subseq renotentiallconilict of interest n thetpart of Contract r Tans actLlal o p discovered after award,Th s a°S losu~e Shall include aldescription in writing to the City. of actions, which the Contractor has taken or proposes to take, ' after consultation with the City to avoid, mitigate, or neutralize the actual or potential conflict. Within 45 days, the Contractor shall have taken all necessary steps to avoid, mitigate, or neutralize the conflict of interest to the satisfaction of the City. c. Interests of City Officers and Staff. No officer, member or employee of City and no member of the City Counc reemaentaor the pecuniary interest, direct or indirect, in this A ember of any proceeds thereof. Neither ContractorCno board or committee. or ' Contractor's family shall serve on any ~' ractice or action hold any such position which either by rule, p nominates, recommends, or supervises Contractor's operations or authorizes funding to Contractor. g. COMPLIANCE WITH LAWS a. In General. Contractor shall take eneralabrules and oregulations comply with all laws, policies, g established by City and shall comply with the common law and all laws, ordinances, codes and regulations of governom ernina bodies) (including federal, erfoerman el of th Scope of Work he eunder, applicable to the p rovisions of the Occupational includianngd H alth Act olf 979 as amended. Safety b. Licenses and Permits. Contractor r alificationans and approvals City that it has all licenses, permits, q of whatsoever nature which are legally required for Contractor to practice its profession. Contractor represents and warrants to City that Contractor shall, at its sole cost and expens licen es, permits, all times during the term of this Agreement any and approvals which are legally required forC nttr~to° shall btain its profession. In additive tter~me hereofna~ valid City of Saratoga and maintain during Business License. c. Funding Agency Requiremf cal ass'stanceefrom anotheren ty, Agreement may be funded by Contractor shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. Page 10 of 19 City of Saratoga/Standard Convect Agreement My Documents/Contracts 03/15/07 • d. Drug-free Workplace. Contractor and Contractor's employees and subcontractors shall comply with .the City's policy of maintaining a drug-free workplace. Neither Contractor "nor Contractor's employees and subcontractors shall unlawfully manufaCtur~, distribute, dispense, posses$ or use controlled substances, as defined in 21 U.S. Code Section 812'facili ding manes orawbrksite ' cocaine, and amphetamines, at any t3'~ p erformin services used in any manner in connection with p g pursuant to this Agreement. If Contractor or any employee or subcontractor of Contractor is convicted or pleads nolo conterldere to a criminal drug statute violation occurring at such a facility, premises, or worksite, the Contractor, within five days thereafter, shall notify the City. e. Discrimination Prohibited. Contractor assures and agrees that Contractor will comply with Title VII of the Civil Rights Act of 1964 and other laws prohibiting discrimination and that no person shall, on the grounds of race, creed, color, disability, sex, sexual orientation, national origin, age, religion, Vietnam era veteran's status, political affiliation, or any other non-merit factors be excluded from participating in, be denied the benefits of, or be otherwise subjected to discrimination under this Agreement. 10. DOCUMENTS AND RECORDS a. Property of City. All reports, data, maps, models, charts, . studies, surveys, photographs, memoranda or other written documents or materials prepared by Contractor pursuant to this Agreement shall become the property of City upon completion of the work to be performed hereunder or upon termination of this Agreement. City agrees to assume the full liability arising out of the City's improper use of any information provided by Contractor. b. Retention of Records. Until the expiration of five yeazs after the furnishing of any services pursuant to this TganY Pear Y designat d shall retain and make available to the ClC Uzis Agreement, and by the City, upon written request by tY, such books, documents and records of Contractor (and anlya ooazse documents, and records of any subcontractor(s)) necessary or convenient for audit purposes to certify the nature and extent of the reasonable cost of services to City. c. Use Of Recycled Products. Contractor shall prepaze and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. Page 11 of 19 . c.,.e,..na /Standard Contract Agreement My Documents/Contracts 03/15/01 d. Professional Seal..' Where. applicable in the determination of~'the , contract administrator, the first page of , a technical report, first page of design specifications, and each .'page'.' °f ~e slicers ed ' " drawings shall be stamped/sealed and ~ signed eY aration. ~ The professional responsible for the .report/design p p ' stamp/sea] shall be in a.block entitled "Seal ~rld Signature of Registgred Professional with report/d.esign responsibility" as .pet ' the sample below. Seal and Signature of Registered_P~ofessior~al 11. CONFIDENTIAL INFORMATION Contractor shall hold any confidential information received from City in the course of performing this Agreement in trust and confidencee tanYler dunng the t rm of the Agreement information to any person or entity, Bement, or termination or at any time thereafter. Upon expiration of this Agr as provided herein, Contractor shall return materials which contain ant Contractor may keep one copy for its confidential information to City. confidential information is confidential file. For purposes of this paragraph, defined as all information disclosed to Contractor which relates to City's, past, present, and future activities, as well as a ublice recorde under Agreement, which information is not otherwise of p California law. 12. RESPONSIBILITY OF CONTRACTOR Contractor shall take all responsibility for the work, shall bear ~subcontractora o the City,eto C ty indirectly resulting to Contractor, to any on account of officers and employees, or to parties designated by the City, the performance or character of the work, unforeseen difficulties, accidents, occurrences or other causes to the esubcontractored on active or passive negligence of the Contractor or of any a ree that City, its 13. INDEMNIFICATION Contractor apd City g loss, injury, employees, agents and officials shall be full attorneys dfeesm latigation costs, damage, claim, lawsuit; cost, expense, defense costs, court costs or any other cost to the extent arising out of or in any v,,ay related to the negligent performance of this Agreement. Accordingly, the provisions of this indemnity provision aze intended by the parties to be interpreted and construed to provide the fullest protection possible under the law to the City. Contractor acknowledges that City would not enter into this agreement in the absence of the commitment of Paae 12 of 19 My Documents/Contracts 03/15/01 r Contractor to indemnify and protect City as set forth below. a. Indemnity. Contractor shall defend, indemnify and hold harmless City, its employees, agents and officials; from any liability, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs arising out of the performance of this Agreement. All obligations under this provision are to be paid by'Contractor as they are incurred by the City. Limitation on Indemnity. ,Without affecting the rights of City under any provision of this agreement or this section, Contractor shall not be required to defend, indemnify and hold harmless City as set forth above for liability attributable to the fault of City, provided such fault is determined by agreement between the parties or the findings of a court of competent jurisdiction. c. Scope of Contractoo~Obligovision ofhthis Agreement will not be under this or any P workers' compensation act or limited by the provisions of any similar act. Contractor expressly waives its statutory immunity under such statutes or laws as to City, its employees and officials. d. Subcontractors. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor, sub tier contractor or any other person or entity involved by, for, with or on behalf of Contractor in the performance or subject matter of this Agreement. In the event Contractor fails to obtain such indemnity obligations from others as required here, Contractor agrees to be fully responsible according to the terms of this section. e. In General. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns, or heirs of Contractor and shall su ose of termination of this agreement or thl des heret ore ognize and Section 2782 of the Civil Code the p agree that this Agreement is not a construction contract. By execution of this Agreement, Contractor o ~ionse hereof and that that it has read and understands the p this paragraph is a material element of consideration. City approval of the insurance contracts required by this Agreement does not relieve the Contractor or subcontractors from liability under this paragraph. City o2 Saracoga/ ~~~,~°~ My Documents/Contracts 03/15/01 Pave 13 • 14. INSURPxrE 1tE0UIREMENTS Contractor shall procure and maintain fo; the duration of the contract insurance as set forth in Exhibit E. ' The~cost of such insurance shall be iricluded in the Contractor's bid. 15. DEFAULT AND REMEDIES ~ ' a. Events of default. Each of the following shall constitute an event of default hereunder: 1. Failure to perform any obligation under this Agreement ~ and failure to cure such breach immediately upon receiving notice of such breach, if the breach is such thau~ c is immed]ately the health, welfare, or safety of the p endangered; or ' 2. Failure to perform any obligation under this Agreement and failure to cure such breach within fifteen (15) days of receiving notice of such breach, if the breach is such that the City determines that the health, Werovided that if the nature of the 'not immediately endangered, p breach is such that the City determines it will reasonably require more than fifteen (15) days to comet ncesathe cureland V be in default if Contractor promptly diligently proceeds to completion of the cure. b. Remedies upon default.. Upon any Contractor default, City shall have the right to immediately suspend or terminate the Agreement, seek specific performance; or contract with another party to perform this Agreement. c. No Waiver. Failure by City to seek any remedy for any default hereunder shall not constitute a waiver of any other rights hereunder or any right to seek any remedy for any subsequent default. 16. TERMINATION . Either party may terminate this Agreement with or without cause by provldmg 10 days notice in writing to the other Party' The City may terminate this Agreement at any tune without prior notice in the event that Contractor commits a material breach of the terms of this Agreement. Upon termination, this Agreement shall become of no further force or affect whatsoever and each of th app t fir a~ceptablee selrvices and discharged here-from, subject to p Yet rendered prior to the expiration of the notice of termination. Notwithstanding the foregoing, the provisions of this oducedniconfidential retention of records, City's rights to material p information, contractor's responsibility, indemnification, insurance, dispute Page 14 of 19 City of Saratoga/Standard Contract Agreement My Documents/Contracts 03/15/07 • ' resolution, litigation, and jurisdiction and severability shall survive termination of this Agreerrient. 11,7; DISPUTE RESOLUTION The parties shall make a good faith effort to ' dis ute or claim arising under this Agreement. If the parties fail settle any P P shall submit them to non-binding to resolve such dis utes or claims, they arties for at least 8' hours mediation in' California at shazed' expense of the ,p of mediations. If mediation does nbt arrive , at a satisfactory iesult, arbitration, if agreed to by all parties, or litigation may be pursued. In the event any dispute resolution processes are isivolved, , each party shall beaz its own costs and attorneys fees. lg, JURISDICTION AND SEVERp,BILITY This Agreement shall be administered and interpreted under the laweement shalltbeoin th tostate Jurisdiction of litigation arising from this Agr alifomia. If any part of this and venue shall be in Santa Clara Countycable laws, such part shall be Agreement is found to conflict with aPP inoperative, null and void insofaz as it conflicts with said laws, but the remainder of this Agreement shall be in full force and effect. 19, NOTICE OF NON-RENEWAL Contractor understands and agrees that there is no representation, implication, or understanding that the City will request that work product provideContractoraundern ae new agreement be supplemented or continued by following expiration or termination of this Agreement. Cofmtracr ° by City tlo rights or claims to notice or hearing re o o not ~e ~,ork product from continue to request or retain all or any p Contractor following the expiration or termination of this Agreement. 2p. 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. WAIVER. Neither the acceptance of work or payment for work pursuant to this Agreement shall constitute a waiver of any rights or obligations arising under this Agreement. The f ~s ri ht shallsin noeeventebe deemed a waiver obligations or to exercise City g of the right to do so thereafter. Dove t 5 of 19 Agreement My Docvn 03/15/01 EXHIBIT E INS C~ Please refer to the insurance requirements listed below. Ti °to Contractor s "X" indicated in the space before the' requirement app y Agreement (ignore any not checked). Contractor shall provide its insurance broker(s)/agent(s) with a copy of these requirements and request that they provide Certificates of Insurance complete with copies of all requ13d77 Fnl ty~enAvenue,ASaratogaa CA Services Officer, City of Saratoga, 95070. Contractor shall furnish City with copies of original endorsements affecting coverage required by this Exhibit E. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalbefors endorsements and certificates are to be received and approved by City work commences. City has the right to require Contractor's ins of cies~ provide complete, certified copies of all required insurance P these including endorsements affecting the coverage required by specifications. X Commercial General/Business indicated: X r~ Liability Insurance with coverage as $1,000,000 per occurrence/$2,000,000 aggregate limits for bodily injury and property damage per $ _ per occurrence bodily injury/$ ----- occurre Percy damage Coverage for X, C, U hazards MUST be evidenced on the Certificate of Insurance If the standard ISO Form wor Sinn {° containedllin ContraEtoro's other comparable wording, liability insurance policy, an endorsemennsurancee and lanY that said insurance will be primary insurance or self-insurance maintained by City, its officers, employees, agents or volunteers shall be in excess of Contractor's insurance and shall not contribute to it. ?{ Auto Liability Insurance with coverage as indicated: }{ $1,000,000 combined single limit for bodily injury and property damage page 16 of 19 City of Saratoga/Standard Contract Agreement My Documents/Contracts 03/15/07 • s $ per person/$ per accident for bodily m~ury $ per occurrence for property damage _ $ 500,000 combined single limit for bodily injury and property damage _ Garage keepers extra liability endorsement to extend coverage to all vehicles in the card, custody and control of the contractor, . regardless of where the behicles are kept or driven. }{ Professional/Errors and Omissions Liability with coverage as indicated: X $1,000,000 per loss/ .$2,000,000 aggregate $5,000,000 per loss/ $5,000,000 aggregate Contractor must maintain Professional/Errors 8G Omissions Liability coverage for a period of three years after the expiration of this Agreement. Contractor may satisfy this requirement by renewal of existing coverage or purchase of either prior acts or tail coverage applicable to said three year period. ' }{ Workers' Compensation Insurance }{ Including minimum $1,000,000 Employer's Liability The Employer's Liability policy shall be endorsed to waive any right of subrogation as respects the City, its employees or agents. The Contractor makes the following certification, required by section 1861 of the California Labor Code: I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insuranc~e~nsuchordo sio s before provisions of that code, and I will comply P commencing the performance of the work of this contract X Additional Insured Endorsement(s) for Commercial General/Business Liability coverage naming the City of Saratoga, its officers, employees and agents as additional insured. (NOTE: additional insured language on the Certificate of Insurance is NOT acceptable without a separate endorsement such as Form CG 20 10) X The Certificate of Insurance MUST provide 30 days notice of cancellation, (10 days notice for non-payment of premium). NOTE: the Page 17 of 19 City of Saratoga/Standard Contract Agreement My Documents/Contracts 03/15/01 J • • following words must be crossed out or deleted f rbut failure odard cancellation clause: "...endeavor to ..." AND ". mail such notice shall impose no obligation or liability of any kind an its agents or representatives." upon the comp Y, _ All subcontractors used rzlust comply wifh the above requirements except as noted below: As to all of the checked insurance requirements above, the following shall apply: deductibles or a. Deductibles and Self-Insured Retentions. '~Y roved by the self-insured retentions must be d ~e~'(j ~eandu er shall reduce City. At the option of the City, or eliminate suchtsdoa cers,l offi~als Band employeese oro(2) the respects the City, rocure a bond guaranteeing payment of losses Contractor shall p claim administration and defense and related investigations, expenses. b. City as Additional Insured. The City, its officers, officials, employees and volunteers are to be cover ed-formedsby or on respects: liability arising out of activities p behalf of the Contractor; products and completed operations of the Contractor, premises owned, occupied or used by the Contractor, or automobiles owned, leased, hired or borrowed by the Contractor. The cov=ro~g tion~afforded to the cCity,mtsa offices, the scope of the p officials, employees or volunteers. c, Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: failure to comply with reporting PrOV1sions of the policies 1. AnY rovided to the City, its officers, shall not Flo ees orrvolunteers. officials, emp y 2, The Contractor's insurance shall apply separately to each insured ag ~ to the limits of the insurer's liabil tl' rought, except with resp page 18 of 19 Contract My Docun m 115101 • • i J 3. Coverage shall not be suspended, ,voided, canceled by either party, reduced in coverage or in limits except after thirty (30)~ , days' prior written notice by certified mail, return r~ceipY requested, has been given to the City. d. Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A: VII My Docur. 03/15/01 J Page 19 of 19 ;ontract Agreement SARATOGA CITY COUNCIL MEETING DATE: August 4, 2004 AGENDA ITEM: ~~~ ORIGINATING DEPT: Public Works CITY MANAGER: pgEPARED BY: John Cherbone DEPT HEAD: SUBJECT: Contract Renewal for Public Works Inspectors RECOMMENDED ACTION(S): Approve one-yeaz contract renewals with James A Jeffers, Dolf Dini (Dini Group), and Howard Lewis for Public Works Inspection Services and authorize City Manager to execute the same. REPORT SUMMARY: The City is fortunate to have three very knowledgeable Public Work Inspectors providing services to the City. Jim, Dolf, and Howard bring over 150 years of construction experience to the job on a daily basis making sure that all capital projects, maintenance projects, gading projects, subdivisions, and encroachments aze completed in the highest of quality. Currently all three inspectors work part time. The number of hours worked is based on the amount of work occurring in the City at any given time. They provide their inspection services at a very reasonable rate of $40.00/hr, which includes transportation costs. This rate is an increase over last years rate of $37.00/hr, a rate that has been in affect since June of 2000. It is therefore recommended that City Council approve one year extensions to the existing contracts with James A Jeffers, Dolf Dini (Dini Group), and Howard Lewis for Public Works Inspection Services and authorize City Manager to execute the same. FISCAL IMPACTS: Funding for the contracts is included in the adopted budget as well as in the CIP. CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION(S): The existing contracts would not be extended. ALTERNATIVE ACTION(S): The Council could direct staff to solicit additional proposals. FOLLOW UP ACTION(S): The contract extensions will be executed. ADVERTISING, NOTICING AND PUBLIC CONTACT: Nothing additional. ATTACHMENTS: None. 2of2 SARATOGA CITY COUNCIL MEETING DATE: August 4, 2004 AGENDA TI'EM: ORIGINATING DEPT: Community Development PREPARED BY: Ben Cheng ~ ~ CTI'Y MANAGER: ~~ DEPT HEAD: SUBJECT: TT Support Contract with City of Palo Alto RECOMMENDED ACTION: Approve Contract for IT support from the City of Palo Alto and direct the City Manager to sign the contract on the City's behalf. REPORT SUMMARY: Through the development and adoption of the 2004-OS fiscal yeaz budget the need for Staff reduction became appazent. One of the positions eliminated was the Technology Coordinator. The adopted 2004-OS budget provides funds for contract services support to replace this position. The City of Sazatoga has sought limited assistance from the City of Palo Alto in the past and found their assistance to be more than adequate. The City Attorney has reviewed the draft language on the contract. FISCAL IMPACTS: Would not exceed $59,000 CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: N/A ALTERNATIVE ACTION: N/A FOLLOW UP ACTION: N/A ADVERTISING, NOTICING AND PUBLIC CONTACT: N/A ATTACHMENTS: Contract provided by City of Palo Alto for signatures. AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES BETWEEN THE CITY OF PALO ALTO AND THE CITY OF SARATOGA This Agreement for Information Technology Services is made this day of by and between the City of Palo Alto ("Palo Alto") and the City of Saratoga ("Agency"). RECITALS WHEREAS, Palo Alto has an established information technology operation; and WHEREAS, Agency desires information technology services and has requested that Palo Alto provide information technology services within the jurisdiction of Agency; and WHEREAS, Palo Alto has the capacity to provide such services to Agency as are hereinafter described, and is willing to do so. NOW, THEREFORE, in consideration of the following covenants, terms, and conditions, the parties agree: SECTION 1. Term. The term of this Agreement shall be from July 1, 2004 and shall terminate on June 30, 2005. Time is of the essence regarding the performance of this Agreement. SECTION 2. Termination by Either Party. Any party may terminate this agreement at any time, with or without cause, by providing thirty (30) days written notice of intent to terminate. In any event of termination under this paragraph, Palo Alto shall be paid for all services performed until such termination. SECTION 3. Scope of Services. Palo Alto shall perform on an "on call" basis at the request and direction of Agency those services set forth in Exhibit "A", entitled "Scope of Services and Fee Schedule", attached hereto and incorporated herein by reference. // // 040G28 sm O1002GG ~ 1 SECTION 4. Agency's Obligations. 4.1 Agency shall perform those obligations of Agency described in Exhibit "A". SECT~_ Compe~on 5.1 During the term of this Agreement, commencing upon execution of the Agreement, Agency agrees to pay Palo Alto a not-to-exceed amount of Fifty Thousand Dollars ($50,000), based on the hourly rates set forth in Exhibit "A", for IT support services as described in Exhibit "A". 5.2 Palo Alto shall submit billing statements to Agency no more often than monthly, and payment shall be due within thirty (30) days from the invoice date. Payments shall be sent to: Chief Information Officer 250 Hamilton Avenue Palo Alto, CA 94301 Any payments not received on or before the date when payment is due shall accrue interest between the date when payment is due `- and the date payment is received at the prevailing rate of return earned by Palo Alto's investments during that period. 5.3 In the event of early termination of this agreement, in accordance with Section 2, Palo Alto shall bill Agency for its work performed under this agreement in the final month during which such termination is effective. Indemnification and Hold Harmless. SECTS 6 Agency acknowledges that it desires provision of all services set forth in Section 3 and has requested that Palo Alto provide such services. Therefore, Agency expressly agrees to defend, indemnify and hold harmless Palo Alto, its officers, employees, and agents from any and all demands, claims, liabilities, losses, charges, costs, or damages caused by or arising out of Palo Alto's acts or omissions in the performance of this agreement. The foregoing indemnity shall not apply to claims arising from the unlawful acts (lo ee as harassment or discrimination) of a City of Palo Alto emp Y SECT~~• Confidentiality. 7.1 The parties acknowledge that in the beuexposedato as a consequence of this Agreement, they each may or acquire information that is proprietary to or confidential to 2 (WOG28 sm 0~0026G the other party or its contractors. The parties agree that they __ will each notify the other of any such proprietary or confidential information, and shall hold such information in strict confidence and shall not copy, reproduce, sell, assign, license, market, transfer, give or otherwise disclose such information to third parties or use such information for any purposes whatsoever, without the express written permission of the other party, other than for the provision of services under this Agreement. The parties agree to advise each of their employees, agents, and representatives of their obligations to keep such information confidential. All such confidential and proprietary information described herein and any deliverable provided hereunder, in whatever form, are hereinafter collectively referred to as "Confidential Information." The parties shall use their reasonable efforts to assist each other in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, the parties shall use reasonable efforts to advise each other immediately in the event that either learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement, and will reasonably cooperate in seeking relief against any such person. 7.2 Notwithstanding the obligations set forth in - Section 7.1, the confidentiality obligations of the parties shall not extend to information that: is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than receiving party; was known to the receiving party as of the time of its disclosure; or is independently developed by the receiving party; or is subsequently learned from a third party not under a confidentiality obligation to the providing party; or is required to be disclosed pursuant to court order or government directive whereupon the receiving party shall provide notice to the other party prior to such disclosure. SECTION 8. No Warranty. No warranties, whether express or implied, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose, are made by Palo Alto and Palo Alto makes no warranties with respect to hardware equipment or software or for the installation thereof. In no event will Palo Alto be liable to Agency or any other party for any loss, including time, money, goodwill and consequential damages, which may arise from the use, operation or modification of the Palo performed or product(s) produced under this Agreement by Alto. 040628 sm 0100266 3 SECTION 9. Notices. All notices shall be submitted, in writing, and sent by the United States mail, certified and postage prepaid, by private express delivery service, by facsimile transmission followed by delivery of hard copy, or by any other process mutually acceptable to the parties to the addresses stated below or to any other address noticed in writing. PALO ALTO: City Clerk 250 Hamilton Avenue Palo Alto, CA 94301 Tel: (650) 329-2572 With a copy to: Chief Information Officer 250 Hamilton Avenue Palo Alto, CA 94301 Tel: (650) 329-2492 AGENCY: City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 Attention: Thomas Sullivan, AICP Community Development Director Tel: (408) 868-1232 SECTION 10. Miscellaneous. 10.1 This Agreement shall be governed by and construed in accordance with the laws of the state of California. Any changes resulting in program modifications shall be provided in writing by Palo Alto to Agency as soon as Legislative bodies enact any new or modified regulations. 10.2 This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. 10.3 Palo Alto shall not be deemed in default on account of any delay or failure to perform any obligations in accordance with Agency laws, the laws of the State of California, the Palo Alto Municipal Code, and the terms of this Agreement, which directly results from an Act of God, including, without limitation, the act of a superior legal authority or an occurrence of nature. 10.4 The headings are not a part of this Agreement and - shall have no effect upon the construction or interpretation of any part of this Agreement. 040628 sm 0100266 4 10.5 This Agreement constitutes the ent and theremare between the parties concerning its subject matter, arties not no other oral or written agreements between the p incorporated in this Agreement. 10.6 This Agreement shall not be modified, unless the parties first agree to and approve of such modification in writing through a duly authorized amendment. 10.7 If a court of competent jurisdiction finds or rules that any provision of this Agreement is void or unenforceable, the unaffected provisions of this Agreement shall remain in effect. 10.8 The prevailing party in any action brought to enforce the terms of this agreement may recover from the other party its reasonable costs and attorneys' fees expended in connection with such an action. IN WITNESS WHEREOF, Agreement in Palo Alto, County the date first above stated. "PALO ALTO" CITY OF PALO ALTO the parties have executed thon of Santa Clara, California, "AGENCY" CITY OF SARATOGA City Manager Mayor ATTEST: City Clerk APPROVED AS TO FORM: Senior Asst. City Attorney APPROVED: Assistant City Manager ----- Chief Information Officer Director of Administrative Services Attachment: Exhibit "A" APPROVED AS TO FORM: City Attorney Scope of Services and Fee Schedule 5 040628 sm 0100266 Exhibit A Scope of Services Network Administration Support Services The following list of services, projects and tasks are to be provided as part of advanced network administration support provided by the City of Palo Alto. Palo Alto shall provide the services on an "on call" basis at the request of and as directed by Saratoga IT staff: These advanced network administration services shall be provided at an hourly rate of $120/hour up to a rnaximum of $50,000. 1) Exchange Server a. Advice on a backup system b. Advice on a new backup tape drive c. Resolve errors logs from event viewer d Document the process for disaster recovery if system failure e. Fine tuning that maintains the integrity of the server f. Advise and train IT staff on processes g. General maintenance as specified by Saratoga IT staff 2) AS400 a. Support on the AS400 server in coordination with the AS400 support vendor through an established suppon; agreement. b. Support on the FITE GLTi software application in coordination with the I-TI'E support vendor through an established support a,~t-eement. c. Assist and advise with the I TTE yearly upgrades and new tax rule upgrades d. General maintenance 3) NETWORK, Primary and Backup Domain Controller (PDC and BDC), File server, Firewall a. Troubleshoot event viewer error logs b. If PDC is down, verify that BDC is able to take over properly c. Standardize security setup, authorization, with a specialist, go over features and necessity of the aceive directory. d. Review network traffic monitoring e. Review, consult, and enhance current network serup. Provide advice for preventative maintenance for overall network stability f. Go over setup and proper management methods g. Review and configure firewall h. General maintenance 4) Other a. Advance knowledge consultation with hardware, software, network infrastructure on an on-call basis. Response times for on-call suppon would be a maximum of 4 hours for remote assistance and a maximum of one day for onsite support or as negotiated b. Consultation on telecommunication infrastructure c. Setup Restrospect backup system that backs up my documents, Exchange, File Server, Website. Would require a backup tape drive to store data remotely. d. Assistance with future new Ciry of Saratoga websice server installation. SARATOGA CITY COUNCIL MEETING DATE: August 4, 2004 ORIGINATING DEPT: Public Works AGENDA ITEM: CITY MANAGER: PREPARED BY: Iveta Harvancik DEPT HEAD: SUBJECT: Final acceptance of subdivision public improvements and dedications within Tract 9330 and SDR 1311. RECOMMENDED ACTION(S): Move to grant final acceptance of the subdivision public improvements and dedications within Tract 9330 and SDR 1311. 2. Move to adopt Resolution rescinding the previously rejected Offers of Dedications and accepting offers of dedication for Tract 9330 and SDR 1311 with the exception of no- build easements shown on Tract 9330. REPORT SUMMARY: The subdivision public improvements within Tract 9330 have been completed and satisfactorily maintained by the subdivider for the required one-year maintenance/warranty period. Consequently, staff is recommending that the City Council grant final acceptance of these improvements and dedications. This can be accomplished by adopting the attached Resolution which rescinds the previously rejected Offers of Dedications made on the Final Maps with the exception of no-build easements shown on Tract 9330. FISCAL IMPACTS: None. CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION(S): The subdivision public improvements would continue to remain as private improvements and the dedications will not be accepted by the City. FOLLOW UP ACTION(S): The Resolutions will be recorded. ADVERTISING, NOTICING AND PUBLIC CONTACT: Nothing additional. ATTACHMENTS: 1. Resolution Accepting Dedication of Streets for Tract 9330 and SDR 1311. 2. Tract 9330 site map. 2 of 2 Recording requested by, and to be returned to: City of Saratoga Department of Public Works 13777 Fruitvale Avenue Saratoga, California 95070 RESOLUTION N0.36-B- RESOLUTION ACCEPTING OFFERS OF DEDICATION TRACT NO. 9330 AND SDR NO. 1311 It appearing that on or about July 21, 2004 the streets, storm drains and other improvements as shown on the hereinafter referred to subdivision map and on approved improvement plans therefore were completed and thereafter were maintained by the subdivider for a period of not less than an additional year from the date of satisfactory completion. NOW, THEREFORE, the City Council of the City of Saratoga hereby resolves as follows: That portion of the City's previous resolution rejecting the dedication of certain streets, storm drains and other easement as shown on the following described maps: Map of Tract 9330 recorded in book 745 of Maps, Pages 46, 47, and 48 Santa Claza County Records on December 14, 2001; and 2. Parcel Map recorded in book 419 of Maps, Page 27 Santa Clara County Records on May 30, 1978. And as set forth in the City Clerk's certification on said maps, is hereby rescinded and the previously rejected offers of dedication on said map are hereby accepted, except the following: NO-BUILD EASEMENT and all of the above streets which are accepted under this resolution are hereby declared to be public streets of the City of Sazatoga, County of Santa Clara, State of California. FURTHER, that certain Warranty/Maintenance Bond posted with the City on September 19, 2001, in the amount of $241,600 (Bond No. 9489000449), is hereby authorized to be released to the subdivider of Tract No. 9330. The above and foregoing resolution was passed and adopted on the day of 20 , at a regular meeting of the City Council of Saratoga by the following vote: AYES: NOES: ABSENT: ABSTAIN: Ann Waltonsmith, Mayor ATTEST: Cathleen Boyer, City Clerk SITE MAP Application No.: Location: ApplicantlOwner: APN: a SD-99-003 14800 Bohlman Road Sobrato Development 517-13-018, 517-13-019 soa tooo 1500 2000 Feet -- SARATOGA CITY COUNCIL MEETING DATE: a,~gyct 5, 2nna AGENDA ITEM: ORIGINATING DEPT: Pnhlic Wnrks CITY MANAGER: ~~ PREPARED BY: Mnrgan Kesster~/{~,~ DEPT HEAD: SUBJECT: Brookglen, EI Quito~a~/nd Wildwood Parks: Parks Upgrade Project -Increase of Change Order Authority RECOMMENDED ACTION: Approve change order amount of $48,000.00 for additional pathway work associated with the Brookglen, El Quito and Wildwood Pazks Upgrade Project REPORT SUMMARY: For the past several months, park upgrade work has been ongoing at Brookglen, Wildwood and El Quito parks. Brookglen and Wildwood parks have been completed, as are the play and parcourse structures at EI Quito Park. The remaining work at El Quito involves the completion of the footpath that connects the play/picnic azea with the sidewalk along Paseo Presada. The total budget in the CIP for the three pazk upgrades is $600,000 ($250,000 For El Quito and $350,000 for Wildwood and Brookglen). This amount was to include design, park play equipment purchase and installation, irrigation drainage and all site work and path construction associated with the parks. The pazks upgrades were conducted such that the City acted as "general contractor", where City staff solicited the design, purchased play equipment from the manufacturer, and contracted to have the equipment installed and site work done by separate contractors. This method was chosen so as to lower the overall cost of the project by eliminating the mazgin charged by a general contractor. The site work was contracted under atime-and-materials agreement, where work is paid strictly in terms of hourly labor and materials cost. The contactor marks up these costs by 20% and 15%, respectively. This type of contract is advantageous and ensures lower prices where the scope of work is convoluted, and/or has the potential for many field changes. In this case, when the estimate for the site work was provided for Council approval, it was approximated that $138,000 would be adequate to cover the costs of the play area work and the footpaths. It has been found that the pathway installations, particularly at El Quito, have encumbered costs higher than originally estimated. Following the last invoice submitted by George Bianchi Construction, the site work cost to date plus the cost to complete the path is $200,100, which is $48,000 over the present change order authority for Bianchi's contract. In order to complete the pathway at El Quito Park and to cover current costs, it is recommended that Council authorize staff to execute a change order in the amount of $48,000. This amount is fully covered in the parks upgrade CIP's. FISCAL IMPACTS: The adopted parks upgrade budget contains sufficient funds to cover the recommended change order amount. CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: The change order would not be approved, and the remaining pathway work would not be done at this time. ALTERNATIVE ACTION(S): None in addition to the above. FOLLOW UP ACTION(S): The contractor will be notified to complete the remaining pathway work. Work will begin as soon as possible, and be completed by within 10 working days. ADVERTISING, NOTICING AND PUBLIC CONTACT: Nothing additional. ATTACHMENTS: None. SARATOGA CITY COUNCIL MEETING DATE: August 3, 2004 ORIGINATING DEPT: Community Development PREPARED BY: Thomas Sullivan, AICP AGENDA ITEM: Z CITY MANAGER: ~~~~ DEPT HEAD: SUBJECT: Appeal of a Denial of a Planning Commission decision denying a Tree Removal Permit Appeal at 18325 Swathmore RECOMMENDED ACTION: Staff recommends the City Council discuss and take appropriate action based on the information gained from the site visit that was conducted Tuesday afternoon. REPORT SUMMARY: Staff has attached the July 7, 2004 Staff report and its various attachments. Staff has also attached the Planning Commission minutes related to this issue. The City Council minutes for the July 7, 2004 meeting are on consent calendars for adoption this evening. FISCAL IMPACTS: None CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: N/A ALTERNATIVE ACTION: N/A FOLLOW UP ACTION: N/A ADVERTISING, NOTICING AND PUBLIC CONTACT: This item was continued to a date certain; as such no additional noticing was required. The site visit was noticed to the general area. ATTACHMENTS: 1. Draft Resolution Upholding Planning Commission Action 2. July 7, 2004 Staff Report and Attachments 3. Planning Commission Minutes RESOLUTION NO. A RESOLUTION OF THE CITY COUNCILOF THE CITY OF SARATOGA UPHOLDING THE PIANNING COMMISSION ACTION DENYING AN ADMINISTRATIVE ACTION DENYING A TREE REMOVAL PERMIT FOR 18325 SWATHMORE WHEREAS, the City of Saratoga Planning Commission considered an appeal of a Staff Denial of a Tree Removal Permit at 18325 Swathmore Drive; 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 appellant did not met the bun3en of proof required supporting said appeal, and the Planning Commission had determined the following: The proposed removal of the mature Coast Redwood is not consistent with seven of the nine criteria set forth in Section 15-50.080 (Determination on Permit) of the Tree Regulations. Only criteria #5 and #9 could be met in the affirmative WHEREAS, on June 16, 2004, following a duly noticed and conducted de novo Public Hearing at which all interested parties were given a full opportunity to be heard and to present evidence, the City Councfl considered all testimony and evidence presented including all materials prepared by City Staff, the Appellant and other interested parties and rendered its decision on the Appeal sought by Gundy Duvall for removal of a Redwood tree from 18326 Swarthmore Avenue; and WHEREAS, California Code of Civil Procedure section 1094.6 Governs any judicial review of this decision, and each applicant and each appellant is hereby notified that if such applicant or appellant intends to seek judicial review, the deadline for any such court action is not later that the 90 day following the date on which this decision became final (this decision shall become final on the date that the Notice of the Decision is mailed to the applicant and the appellant), and; WHEREAS, the City Council determined that there are alternative methods of repairing the driveway that do no require the removal. NOW, THEREFORE BE IT RESOLVED, that the appeal filed by Gundy Duvall is denied and the Planning Commission's action is upheld. The above and foregoing resolution was passed and adopted at a regulaz meeting of the Saratoga City Council held on August 3, 2004, on the following roll-call vote, to wit: AYES: NOES: ABSENT: ABSTAIN: Ann Waltonsmith, Mayor ATTEST: Cathleen Boyer, City Clerk SARATOGA CITY COUNCIL MEETING DATE: July 7, 2004 ORIGINATING DEPT: Community Development PREPARED BY: Thomas Sullivan, AICP AGENDA ITEM: CITY MANAGER: DEPT HEAD: SUBJECT: Appeal of a Denial of a Planning Commission decision Denying a Tree Removal Permit Appeal at 18325 Swathmore RECOMMENDED ACTION: Uphold the Planning Commission Action Denying the Appeal of a Staff Decision. REPORT SUMMARY: The appellant is requesting the City Council reverse a Planning Commission action upholding a Staff denial of a Tree Remova] Permit application. The Appellant submitted a request to remove a mature Coast Redwood (52-inch diameter at breast height) on February 11, 2004. This request was reviewed in conjunction with the criteria found in Section 15-50.080 and was subsequently denied on February 20, 2004. The property owner submitted the appeal to the Planning Commission on March 2, 2004. On Aprfl 28, 2004 the Planning Commission on a 5-2 vote denied the appeal, upholding the Staff denial of the requested Tree Removal Permit. The Planning Commission previously denied a tree removal permit for this very same tree. The City Attorney determined that a sufficient number of changes had been made to the Tree Regulations to allow a new application to be accepted for processing. Sections 15-50.010 and 15-50.080 were the two principal guides used by the Staff and the Planning Commission in coming to a decision regarding the tree. 15-50.010 Findings; purposes of Article. The City Council finds that the City is primarily a residential community; that the economics of property values is inseparably connected with the rural attractiveness of the area, much of which is attributable to the wooded hillsides and the native and ornamental trees located throughout the City; that the preservation of such trees is necessary for the health, safety and welfare of the residents of the City in order to preserve scenic beauty, prevent erosion of topsoil, protect against flood hazards and the risk of landslides, counteract pollutants in the air, maintain the climatic balance and decrease wind velocities. To compliment and strengthen zoning, subdivision and other land use standards and regulations, while at the same time recognizing the privileges of private property ownership, the City Council adopts this ordinance to establish basic standards and measures for the maintenance, removal, and replacement of trees. Thus, this ordinance is designed to provide a stable and sustainable urban forest to preserve and protect significant historic heritage values, and to enhance the unique aesthetic character and environment of this City. 15-50.080 Determination on permit. (a) Criteria. Each application for a tree removal pruning or encroachment permit shall be reviewed and determined on the basis of the following criteria: (1) The condition of the tree with respect to disease, imminent danger of falling, proximity to existing or proposed structures and interference with utility services. Staff determined that the tree appears to be healthy. (2) The necessity to remove the tree because of physical damage or threatened damage to improvements or impervious surfaces on the property. Staff determined that while the tree roots have buckled the driveway, there ate acceptable methods of repairing the driveway without removing the tree. (3) The topography of the land and the effect of the tree removal upon erosion, soil retention and the diversion or increased flow of surface waters, particularly on steep slopes. The topography is not an issue (4) The number, species, size and location of existing trees in the area and the effect the removal would have upon shade, privacy impact, scenic beauty, property values, erosion control, and the general welfare of residents in the area. This tree and its companion in the front yard is a neighborhood landmark. (5) The age and number of healthy trees the property is able to support according to good forestry practices. There are other healthy and large trees on the property. (6) Whether or not there are any alternatives that would allow for retaining or not encroaching on the protected tree. There are alternative methods of repairing the driveway that do no require the removal' (7) Whether the approval of the request would be contrary to or in conflict with the general purpose and intent of this Article. The provisions of 15-50.010 of the Tree Regulations do not support the removal of the tree. (8) Any other information relevant to the public health, safety, or general welfare and the purposes of this ordinance as set forth in section 15-50.010. No other relevant information has been provided at the time ofthe preparation ofthis StaffReport. (9) The necessity to remove the tree for economic or other enjoyment of the property when there is no other feasible alternative to the removal. Arguably this criterion can be met. Staff denied the application for a Tree Removal Permit principally because there are alternative methods of repaving the driveway that do not require the removal of the tree. The attached City Arborist Report supports this position. Mr. Bobby has provided two alternatives for the applicant to consider using. Within the report the City Arborist gives detailed instructions on how to implement either alternative. The Arborist Report also makes a series of general directions regazding the driveway replacement. "Option One (Standard Base Course Materials) This option involves using standard base material and would likely yield a 10- to 20-year compatibility with the tree's roots growing against and beneath surrounding hazdscape. Overall, this option would require the least installation time and be the most cost-effecrive." "Option Two (Structural Soil Mix.) This option involves using CU-Structural Soil as a base material. It would likely provide a longer range of compatibility (estimated at 15- to 25-yeazs) but is more time consuming, costly and labor-intensive. It involves extracting and replacing soil azound existing roots to a minimum two-foot depth so roots could grow away from the driveway surface, minimize uplift of the hardscape and achieve the required proctor density." The Planning Commission conducted the first of two hearings on this matter on Apri114, 2004. They continued that hearing until Apri128, 2004, requesting additional information from both the Owner/Appellant and the City Arborist. The requested information is attached. Tree Inventory Table information • Suggested type of replacement trees • Suggested location(s) of replacement trees • Will the removal of the Redwood by the driveway negatively impact the other existing Redwood? • Can the raised curb be removed in say two years and minor root pruning be accomplished by the City without risk to the tree? The Planning Commission requested specific information to be provided by the Applicant/Appellam. • Timetable to accomplish removal and improvements. FISCAL IMPACTS: None CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: A tree that is significant to the neighborhood will be lost. ALTERNATIVE ACTION: N/A FOLLOW UP ACTION: N/A ADVERTISING, NOTICING AND PUBLIC CONTACT: The matter was advertised in the Saratoga News in the June 22, 2004 edition, mailed notices were sent to property owners within 500 feet of 18325 Swathmore and it was posted on the Kiosk at City Hall. ATTACHMENTS: 1. Draft Resolution Upholding Planning Commission Action 2. City Arborist materials 3. Materials submitted supporting the Appellant 4. Materials submitted opposing the Appellant RESOLUTION NO. A RESOLUTION OF THE CITY COlTNCIL OF THE CITY OF SARATOGA UPHOLDING THE PLANNING COMMISSION ACTION DENYING AN ADMINISTRATIVE ACTION DENYING A TREE REMOVAL PERMIT FOR 18325 SWATHMORE WHEREAS, the Ciry of Saratoga Planning Commission considered an appeal of a Staff Denial of a Tree Removal Permit at 18375 Swathmore Drive; and WHEREAS, the Planning Commission held a duly noticed Public Hearing at wMch tithe all interested parties were given a full opportunity to be heard and to present evidence; and WHEREAS, the appellant did not met the burden of proof required supporting said appeal, and the planning Commission had determined the following: The proposed removal of the marure Coast Redwood is not consistent with seven of the nine criteria set forth in Section 15-50.080 (Determination on Permit) of the Tree Regulations. Only criteria #5 and #9 could be met in the affirmative WHEREAS, on June 16, 2004, following a duly noticed and conducted de novo Public Hearing at which all interested parties were given a full opportunity to be heard and to present evidence, the Ciry Council considered all testimony and evidence presented including all materials prepared by Ciry Staff, the Appellant and other interested parties and rendered its decision on the Appeal sought by Gundy Duvall for removal of a Redwood tree from 18326 Swarthmore Avenue; and WHEREAS, California Code of Civi] Procedure section 1094.6 Governs any judicial review of this decision, and each applicant and each appellant is hereby notified that if such applicant or appellant intends to seek judicial review, the deadline for any such court action is not later that the 90 day following the date on which this decision became final (this decision shall become final on the date that the Notice of the Decision is mailed to the applicant and the appellant), and; WHEREAS, the City CouncIl determined that there are alternative methods of repairing the driveway that do no require the removal. NOW, THEREFORE BE IT RESOLVED, that the appeal filed by Gundy Duvall is denied and the Planning Commission's action is upheld. The above and foregoing resolution was passed and adopted at a regular meeting of the Saratoga City Council held on July 7, 2004, on the follov,+ingroll-call vote, to wit: AYES: NOES: ABSENT: ABSTAIN: Ann Waltonsmith, Mayor ATTEST: Cathleen Boyer, Ciry Clerk - ARBOR RESOURCES Professional Arboricultural Consulting & Tree Care . April 5, 2004 Mr. Tom Sullivan, Director Community Development Department City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 RE: CU-STRUCTURAL SOIL at the Duvall Property 18325 Swarthmore Drive, Saratoga Dear Mr. Sullivan: I have evaluated the damaged driveway at above-referenced site to determine feasible options for its reinstallation while preserving the adjacent Coast Redwood (Sequoia sempervirens). My observations reveal the existing driveway is substandard and highly vulnerable to shrink/swell and heaving by roots. Beneath the surface, there appears to be a fow-inch root and several smaller ones causing an estimated 90-percent of the visible damage. I believe these few roots could be removed without resulting in tree mortality or instability, provided the lawn and street side roots remain viable. This letter presents two options that would achieve a reasonably high assurance of tree • survival and stability, one using standard base course materials and the other engineered structural soil mix. Recommendations are also provided for establishing a driveway setback, mitigating damage. to the rolled cwb/gutter located against the trunk's base, raising the lawn grade between the large surface roots, and providing supplemental water. Option One (Standard Base Course Materials) This option involves using standard base matenals and would likely yield a 10- to 20-year compatibility with Ute tree's roots growing against and beneath surrounding hardscape. Overall, this option would require the ]east installation time and be the most cost-effective. General guidelines for this option are as follows: • Remove the existing driveway surface. Starting closest to the trunk, manually dig all soil to the required driveway grade, which should not exceed asix-inch depth beneath existing soil grade (the approximate grade of the lawn). • At 8 to 10 inches from the trunk's base, cleanly severe all roots within the top six-inch soil layer. The freshly cut ends of roots > 1-inch in diameter should be immediately wrapped in a plastic bag secwed by a rubber band. • Compact the subgrade if necessary. To help suppress futwe root growth for possibly a three- to four-year period, a root deterrent, such as Biobamer®, can be laid on -the soil subgrade. A plastic barrier and/or Biobamer can also be placed vertically against the cut roots. Install the subbase materials and compact to the required levels. • • Install a heavily reinforced driveway that is to code or stronger. P.O. Sox 25295, San Mateo, California 94402 • Email: arborresources@earthlink.net Phone: 650.654.335] Fzx: 650.654.3352 • Licensed Contractor #796763 ARBOR RESOURCES Professional Arboricultural Consulting & Tree Care • Apri15, 2004 18325 Swarthmore Drive page 2 Option Two (Structural Soil Mial This option involves using CU-Structural Soil"" as a base course material. It would likely provide a longer range of compatibility (estimated at 15 to 25 years) but is more time consuming, costly and labor-intensive. It involves extracting and replacing soil around existing roots to a minimum two-foot depth so roots could grow away from the driveway surface, rninimi~e uplift of the hazdscape, and achieve the required proctor density. General guidelines for this option are as follows: • Following driveway removal, prune visible roots located immediately beneath the surface using the same guidelines specified for Option One. • Extract soil beneath the entire driveway surface to a two-foot depth by manually digging or using a pneumatic atr device. Roots >_ 2 inches in diameter must be retained during the process (excludes those visible immediately beneath the driveway surface). • Immediately after the roots are exposed, moistened burlap sacks should be laid on the exposed roots and remain continually moist until the soil mix is installed. The subgrade should not be compacted; however, the structural soil can be at t 90%. • • The structural soil should be installed the same day it is delivered and must remain continually moist. The mix should be used beneath the entire driveway surface and will require being manually installed around roots that are retained. Equipment and/or vehicles should not travel over or park on exposed roots. General Recommendations These recommendations would apply to both options and are as follows: • The new driveway should be designed at least 18 inches from the trunk's base. • The rolled curb and gutter should be modified to reflect a slight bow at least six inches from the trunk's base and should be reinforced within five feet of the trunk. Furthermore, the entire length of the curb along the property should contain a lip that is two inches higher than the existing lawn grade. The "valleys" of the lawn can be filled in using non-compacted soil or sand. Equipment and/or vehicles must not travel over or pazk on unpaved soil. Provide water to this tree two weeks before and two weeks after the project is performed. I suggest supplying approximately 350 gallons by deep-root injection. • The removal of all hardscape should not damage the trunk or roots. • All work should be performed under direction of an ISA Certified Arborist. Sincerely, ~~ D~ d L. Babby, RCA . Consulting Arborist P.O. Box 25295. San Mateo. California 94402 • Email: arborresources@earthlink.net Phone: 650.654.3351 Fax: 650.654."x352 Licensed Contractor #796763 ARBOR RESOURCES • professional Arboricultural Consulting & Tree Care Apri120, 2004 Mr. Tom Sullivan, Director Community Development Department City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 RE: COAST REDWOOD at the Duvall Property 18325 Swarthmore Drive, Saratoga Dear Mr. Sullivan: I have received and reviewed yow letter, dated April 15, 2004, regarding the Coast Redwood (Sequoia sempervirens) at the above-referenced site. Information regarding tree size, condition and monetary value is summarized on the attached Tree Inventory Table. My responses to yow questions are presented below. Tree Replacement(s) I find that one tree of 48-inch box size would be an appropriate replacement size to install in the front yard, at least 30 feet from the adjacent Coast Redwood and outside from beneath the canopy of the neighboring Chinese Elm (Ulmus parvijolia). A suitable species includes Coast Live Oak (Quercus agrijolia), Holly Oak (Quercus ilex), Cork Oak (Quercus suber), Southern Live Oak (Quercus virginiana) or Red Oak (Quercus suber). Impacts to the Adjacent Redwood The removal of the subject tree is not expected to adversely impact the adjacent Coast Redwood. To achieve this, the removal of roots between the trunks must be limited to those found within the two pronounced mounds immediately west and northwest of the subject tree's trunk. These azeas should be marked prior to grinding. The stump and roots must be ground rather than pulled up using an excavator. Rolled Curb and Gutter Replacement I believe the existing cwb/gutter could be removed and replaced at any time without significantly impacting the tree. The size and amount of roots that would require pruning need to be verified once the hazdscape is removed. Please note that the cwb/gutter would be potentially subject to damage within ] 0 to 15 years following its reinstallation. Sincerely, ~~~'~/ David L. Babby, R Consulting Arborist Attachment: Tree Inventory Table P.O. Box 25295. San Mateo. California 94402 • Email: arborresources@earthlink.net Phone: 650.6543351 • Fay: 650.654.3352 • Licensed Contractor #796763 ARBOR RESOURCES Professional Arboricultural Consulting & Tree Care • TREE INVENTORY TABLE a a ~ ~ ~ ~ ~ ~~ ~ ~ QQ ~,~4 8 ' ~.v ,^ A ~ ~ .v ~ g ° g NO. TREE NAME Coast Redwood (Se dasem rvirens) 45.1 90 40 75% 100% Cmod - 518,700 REPLACEMENT TREE VALUES 13 Ilon = 5120 24-i~rch box =5420 36-inch box = Sl 320 48-inch box = 53,000 32-inch box ° 57,000 72-inch box = EI3,0110 Sue: 18315 Swanrhmwe Drive, Sormoga Preporedjor: City ojSaratoga Community Develapmenf Deparlmou Prepared by: Daeid L Bobby, RCA Apri110, 100/ (}utxly:lluvall . 18372 fiwarlhtnorc. A it 12, 2004 Saratoga, CA 95070 ~ Itli: 18325 Swarthi»w+e, Saratoga „ peai:lvlra.Ihtvatl, L>'t T'cbrusry 5, 2004 I inspceted.the Soguoia sempervimns (C:oast redwciod) located next to the drive et ihe.abovc trrcattipned pmperty, The followitt8 report and recommendations are submitted for yow cnnsi~eratibn The extensive root system and,suhsequcrtt damage to t}te drivewiiy is quite substattfiul. Yoiv ahentatives if you wish tp r~lsce the driveway avc' limited; Vou can either remove the tree or rdnove. the moss that ere ceusitig rho problcm..i do not recommend the root mmoval optiim as it would seriously destabilize the trees support system and create a hazardous and poton6al liability situation. In order to etfeotively end safely utilize your propaiy, 1 recommend that the ti+ee betentoved. 1f you hove any further questions mgarding this maucr pleagc c<intflet me. 8inw~raly. ~~ ~• ,~ . .. Tree Health Professionals, Inc. EVALUATION OF ONE COAST REDWOOD TREE 18325 SWARTHMORE DRIVE SARATOGA, CALIFORNIA Prepared at the request of Ms. Gundy Duvall 18372 Swarthmore Drive Saratoga, CA 95070 Site visit by: Gil Mitchell, RCA ISA Certified Arborist April 27, 2004 April 28, 2004 A A` 137 E. Hamilton Ave., Suite 201 Campbell, CA 95008 (408) 929-3040 Fax (408) 871-0289 ~~~ Mew Adelgunde Duvall 18372 Swarthmore Drive Saratoga, CA 95070 (408) 379-4413 April 20, 2004 City Of Saratoga Mr. Tom Sullivan, AICP Community Development Director 13777 Fruitvale Avenue Saratoga, CA 95070 Re: 18325 Swarthmore Coast Redwood Dear Mr. Sullivan, In your letter dated April 15, 2004, you stated that the Planning Commission requested a timetable for the tree removal and driveway repairs if permission of removal is granted. The timetable is subject to adverse weather conditions or any unforeseen issues and based on the contractors current work load: Remove & dispose of tree & roots, stump grinding, removal & disposal of existing driveway concrete, preparation of driveway base/form construction, to pour & finish the new driveway. Approximately 60-90 Days Be assured that it is my endeavor to complete this project as quickly as possible in order to remove the current unsafe conditions. Thank you for your consideration and time spent on this project. Sincerely, ~'4- .~w '~S'v'' ,/) ~ ~ ~ ~ ~ ~' ~, A. Duvall unJ~j APR 2 0 2004 U CITY OFSARATOGA ~`~MIINITV 4F1IB1 no. Hand delivered Time/Date ~~~U~~ Pacific Gas and Electric Company August 19, 2003 GUNDY DU VALL, 18372 Swarthmore Dr. Saratoga, Ca. 95070 Dear Gundy, Thank you for drawing our attention to the large redwood tree adjacent to your driveway and curb at 18325 Swarthmore Dr. in Saratoga. In addition to the damage done to your driveway, and the city's curb, the gas main is being placed at risk. The 2" diameter steel pipeline, which serves the adjacent neighborhood, was installed in 1958 and runs immediately under the trunk of this tree. Long-term damage done by the tree roots or a catastrophic tree failure could cause a rupture of the gas. pipeline. • This tree should be removed to repair the existing damage, and to prevent reoccurrence. !t is obvious that whoever planted this tree did not consider the long-term impact that a full-grown redwood tree would have it planted immediately over a pipeline and adjacent to a concrete driveway and asphalt street. After removal of the tree, and prior to stump and root grinding, PG&E wilt need to temporarily cut off the affected pipeline so that stump grinding can be competed safely. PG&E work should be completed prior to driveway replacement, as some of our excavation work will be in the driveway and we would not want to damage new concrete. Upon city approval of the tree removal, please contact me at (408) 725-2143 so that we may coordinate our repair activities. ~ '~/ Drew Kelly P.E. Division Gas Engineer ~ ~ Good evening, My name is Drew Kelly, and I am a friend of Gundy Du Wall. For the past month, I have been assisting Gundy in her attempt to remove the redwood tree and .replace the driveway on her property at 18325 Swarthmore Drive. We met with Tom Sullivan, and he suggested that concrete pavers could be used to replace the existing driveway. Gundy has met with 2 contractors. The first indicated that they would be unwilling to install a replacement driveway because tree roots would cause future damage and the driveway would need replacement in a few years. The contractor did not want to install a new driveway because of obvious liability issues. The second contractor, Valley Concrete, has provided a letter that is attached to Gundy's handout package. Nick Salmida, founder and owner of Valley Concrete has indicated that $1,000 to $1500 per year would be required to relevel the pavers due to ongoing lifting caused by the roots. Periodically, the driveway would have to be raised and replaced due to new root growth. Nick Salmida states that installation of a paver driveway would only be a temporary measure because of the ongoing growth of this redwood tree. The city now controls trees that are be planted in street areas. A homeowner would not be allowed to plant a redwood tree three feet from a driveway, a curb, and a gutter. Additionally a homeowner would not be allowed to install this tree directly over a gas main serving the neighborhood and adjacent to the sewer service. Planting of a tree at this location 50 years ago was a major mistake. The person who planted this tree did not consider the long-term consequences of planting a redwood tree that would continue to grow in size for hundreds of years. The city staff concurred with the recommendation from an arborist that this tree should be removed to prevent ongoing damage to the street and driveway. Gundy was at UCLA with heart problems during the Planning Commission meeting that resulted in the denial of permission to remove this redwood tree. I request that Gundy have a chance to be reheard by the City of Saratoga and that new evidence indicating that concrete pavers are not a viable repair option be heard. I join with Gundy in requesting that the City of Saratoga reconsider and allow Gundy to remove the tree, replace her driveway, and restore her property to a safe condition. • • • Damage. to the driveway caused by the roots.lifting,the concrete fnllawed b5' water intrusion. TTzii demonstrates the economic use bf the prape'rty_ (}'~~Q~~ ' MARK BEAUDOIN LANDSCAPE ARCHITECT A.S.L.A. ~tTffIED ARBORIST W.C. 1050 P.O. BOX 2033 SAN JOS£,CALIFORNIA 95]09 TELEPHONE (408j 395-2862 _ . ___ TREE REPORT GUNDZ' DLTVALL 18325 SWAR3'HNIORE Sp,Rp,TO GA, CALIFORNIA ON JULY 7, 2003,1 INSPECTED THE LARGE 42 INCH DLAME7ER COAST REDWOOD. .. (SEQUOIA SEMPERVIRENS} AT THE 18325 SWARTHMORE ADDRESS IN SARATOGA, CALIFORNIA WITH THE FOLLOWING FINDINGS: I }THE TREE IS A HEALTHY SPECIMEN PLANTED IN THE WRONG LOCATION. 2, THE TREE 1S LOCATED ONLY 2 FEET FROM THE DRIVEWAY INTERSECTION W]TH.T~ ® DOT LLAR D NEWAY CREATINGIPEDESTRIAN TRIPPING HAZARDS. ODD A $5000 3}THE TREE IS 12 INCHES FROM THE STREET GUTTER AND HAS RAISED THE GUTTER pREVENTING WATER FLOW AND HAS CAUSED UNSANITARY PONDING OF WATER UPSTREAM FROM THE DRIVEWAY AND PROVIDES A BREEDING AREA FOR MOSQUITOS. 4}THE TREE IS PLANTED DIRECTLY OVER A GAS MAIN AND COULD BREAK THE MAIN CREATING ANOTHER POTENTIAL HAZARD TO THE NEIGHBORHOOD: 5; THE TREE IS PLANTED VERY NEAR TO A SEWER LINE AND MAY CAUSE DAMAGE AND BLOCKAGE TO THIS LINE. 6;IF EXISTING DAMAGE IS REPAIRED WITHOUT TREE REMOVAL, THE TREE WILL CONTINUE TO EXPAND IN DIAMETER AND SIZE AND WILL REPEAT DAMAGE ON AN INCREASINGLY FREQUENT CYCLE. BECAUSE THE TREE IS SO CLOSE TO INFRASTRUCTURE; THERE IS NO WAY 7'O PREVENT THIS REPEATED DAMAGE. THE BEST SOLUTION TO ELIMINATE THE PROBLEMS CREATED BY THIS REDWOOD TREE ]S TO REMOVE IT AND REPLANT ANOTHER REPLACEMENT TREE IN A BETTER LOCATION. IF THERE ARE FURTHER QUESTIONS ON THIS REPORT; PLEASE CALL ME AT 408-395-~ OR MY CELL PHONE 656-580. S/I~NCERE'LY YOU.~jR,S~ ,L Ei:(3~1'Q~ October 9, 2003 ~~dy 18325 Swarthmore Drive Saratoga, CA 95070 Re: Concrete Evaluation // ~7 oncreie, ~nc. Valley Concrete, Inc. has been in business since 1978 and specializes in residential concrete work. We do a variety of finishes, including: broom, exposed, salt, brick, stamped, and pavers. On October 7, 2003, I came out to your property located at 18325 Swarthmore Drive in Saratoga, to evaluate yow damaged driveway. Yow driveway has majordamage caused by the roots of a tree that is located next to the driveway. These roots have lifted the concrete and caused it to crack, separate and deteriorate. At this time yow driveway poses a major tripping risk, which could result in a lawsuit and does not fit in aesthetically with yow neighborhood. Suggestion: 1. Replace the concrete, in the conventional sense, by removing all of the surface roots, re-grading the soil and placing back the concrete at a uniform level. However, this suggestion may cause the tree to, I) become weak and fall during a winter storm, and 2) become weak and die, or 3) regenerate the surface roots and re-damage ~ow new driveway in a very short time. 2. Remove the existing driveway and replace~with pavers blocks. This can be done without disturbing the root system. The pavers, with sand base, would be floated over the top of all the existing roots. However, since the surface root system would still exist, approximately once every year it would be necessary for Valley Concrete to return and re-level your driveway. This would require us to pull out any effected pavers, re-doing the sub- base and then re-set the pavers back into the driveway.. This would cost an additional $],000.00 - $1,500.00 / year. Of cowse, this suggestion is very temporary. After a few years the roots would completely outgrow the possibility of maintaining a usable driveway. The driveway would be completely uneven and create just as much of a tripping hazard as it does presently. It is my professional opinion that the only way to replace yow driveway Properly, to rid you of your tripping hazard and potential lawsuit(s), and to make yow driveway aesthetically pleasing to the neighborhood it will necessary to completely remove the tree next to yow driveway. Otherwise any and all repairs will only be temporary. If you have any other questions, please cal] me at 408-287-6091. CUSTOM CONCRE7 ~ ~ woxx Thank you for your time and consideration. FREE ESTIMATE O~rE~E, OC uo„xe;~smpre Sincerely, / ~' ~". ~9~ NICK SAIA111IDA r ~CLk~7~'T"ti' "" - President 1ck Salamida t o2o RufT Ihive .San lose . Cp, 95t tat 6t3 Owner/President Phone: (408) 2s7~jt' Fu; tgpg> ~-60y5 www.valleycm~crete.com 1 non RUFF DRIVE SAN JOSE, CA 95110 (408) 287-6091 FAX (408) 287-6095 LICENSE #603078 f • October 15, 2003 • Good evening, My name is Gundy Duvall and I have lived in Saratoga since March 1,1968. I am proud and happy to live in our beautiful city. I stand before you tonight facing a diletttma that I cannot resolve without your assistance. My property at ]8325 Swarthmore Dr. has a large redwood tree right neat to the driveway, close to the sewer line, and on top of the gas line serving the whole street. The tree roots have destroyed the driveway and created a dangerous situation. I understand the City's concern for trees and their importance to the neighborhood. I agree wholeheartedly with the City, I love trees as much as anybody. Over the years in real estate, property management and being involved in rentals, I always tried every possible way to save trees, tearing out a patio that was very much damaged by tree roots and changing the layout for the new patio so that the tree could be saved. Recognizing the situation with my redwood tree, the City gave me permission to remove the tree so that the driveway could be replaced. My neighbor, Tom Corson appealed the decision to the Planning Commission and won. I was unable to attend the meeting, as I was at-UCLA being treated for bead problems. Included in the package that I handed out, is a letter from Valley Concrete. Also • enclosed is a letter from PG&E. My insurance company is very concerned and I could lose my coverage. To make it short, to replace the driveway, the very large roots under the driveway must be removed. If these roots are removed there is a very strong possibility that the tree would fall and butt or kill someone. I am sorry but l cannot live with that thought. If the driveway is not replaced, it is only a matter of time before someone gets hurt. l have lived with this thought day and night for months and I hope and pray that. you and the City will give me your answer before anything happens. Thank you very much for allowing me to speak. Please help me. ~ ~ . '' EVALUATION OF ONE COAST REDWOOD TREE @ 18325 SWARTHMORE DRNE, SARATOGA, CALIFORNIA April 28, 2004 Page 2 of 3 Assignment To evaluate the damage that one coast redwood (Sequoia sempervirens) tree's root zone has done to the contiguous street, curb, and driveway. The tree is located in the front yard and directly adjacent to the street, curb, and the driveway. The tree was evaluated from the ground and was not climbed. Swarthmore Drive is oriented East-West for the purposes of this report. Summary This species of tree should never have been planted so close to the driveway and the street .The tree creates an unsafe environment for bicyclists and pedestrians who happen by when a vehicle is backing out of the driveway. The roots from the tree have damaged the concrete curb, the asphalt street, and the concrete driveway. In order to mitigate the damage, which would include rebuilding the curb, street, and driveway at their original soil grade, I expect that one to three buttress roots will be damaged and/or removed. This will adversely affect the health and the stability of the tree. In which case, I suggest that the tree be removed. Photographs Six photographs (Photo #1-#6) are included with this report and are provided as visual aids to support the observations and conclusions. S Roots & Pavement Soils under driveways and streets are usually compacted to remove 90-95 percent of the pore space. Soil of this nature is not conducive to root growth. Roots are more likely to damage curbs, streets, and driveways (1) because of the compaction of soil that is necessary to sustain the weight of vehicles that travel over or park on these surfaces. On the other hand, root development can be remarkably different in deeply irrigated lawn. Using pervious pavers is now preferred for driveways that are directly adjacent to existing trees but the problem in the case of the client's tree is the amount of roots that will need to be removed in order to lower the surface of the street, curb, and driveway such that there is adequate drainage. I believe that the amount of excavation, and the method of excavation, that would need to be done to install pavers, concrete, and/or structural soil would significantly damage Ute root system of this tree. Specific Observations The tree is located in the front yard and directly adjacent to the street, the curb, and the driveway. The tree is approximately 90 feet tall and has a trunk that measures 46 inches in diameter (photo #1). The tree has an irregular foliaz canopy with virtually no branches originating on the southeast side of the tree. The slope of the street runs downhill from west to east. The raised portion of the curb and street, which has been created by at least one buttress root, has changed the grade such that water puddles create a "lake" in front of the client's property that is several inches deep (photo #2). The curb at this location appears to be at least four inches above the original soil grade. Visible damage to the street and curb are found adjacent to the tree and out to eight feet south of the edge of the trunk, and six feet to the east and west along the curb (photo #3, #4). Damage to the driveway is up to 14 feet up the driveway and towards the house (photo #5) From v• EVALUATION OF ONE COAST RIDWOOD TREE • Q 18325 SWARTHMORE DRIVE, SARATOGA, CALIFORNIA . April 28, 2004 Page 3 of 3 the edge of the tree. The damage, shown as the upheaval of broken concrete (photo #~, has affected the drainage pattern of waterflowing away from the garage and towards the street Mitigation Of Damage There are two issues when mitigating the damage created by the roots of the coast redwood tree. The first issue would be correcting the drainage problems that now exist in the street In order to do this; the street will need to be surveyed, the existing curb and street removed within a six to eight foot radius from the tree, then roots removed along with the subsurface material followed by the construction of a new portion of street and curb. I believe in order to do the replacement tbe contractor would have to go at least eight to 12 inches below the existing grade which will create major damage to at least one buttress root The second issue would be replacing the driveway. The new driveway needs to be surveyed and then placed such that water will flow away from the garage and out to the street This will affect an area with a radius of at least 14 feet from the trunk of the tree and up to eight inches below the existing soil grade. I believe replacing the driveway would cause major damage to one to two buttress roots. Conclusions This species of tree should never have been planted so close to the street and the driveway. Given the upheaval of the concrete and asphalt, and the taper or slope associated with the upheaval (photo;N2, #3, & #5) of the curb and driveway, I suggest [hat one buttress root is creating the . damage to the curb and street, and one to two buttress roots are creating damage to the driveway. • In order to repair the damage to the street, curb, and driveway, which would include replacement at their original soil grade, would cause irreparable harm to the root system of the tree. Which in turn would affect the health and stability of the tree. Given that the roots would be removed on the windward (during storms) side of the tree I suggest that an unstable tree could be the resWt I suggest that the tree be removed. Respectfitlly submi~~ed, ~~ ,~ Gil Mitchell, RCA ISA Certified Arborist Enclosure: Statement of Limiting Conditions Photographs Literature Cited 1. Harris, Richard W., ARBORICULTURE, Second Edition, PRENTICE HALL, 1983. Page 504-505. ~ ~ Tree Location: 18325 Swarthmore Drive, Saratoga Photo #1 • • r~ Tree Location: 18325 Swarthmore Drive, Saratoga Photo #2 • • • Tree Location: 18325 Swarthmore Drive, Saratoga Photo #3 . Tree Location: 18325 Swarthmore Drive, Saratoga - • Photo #4 u • 'free Location: 18325 Swarthmore Drive, Saratoga Photo #5 • :7 • Tree Location: 18325 Swarthmore Drive, Saratoga Photo #6 .,_ _ _- -MARK BEAUDOIN LANDSCAPE ARCHITECT A.S.L.A. Arborist-International Society of Arboriculture C.A.P.C.A. Pest ControF Advisor P.o. Box 2032 • Sen Joze, California 95109 Telephone (4081 395-2862 TREE REPORT GUNDY DUVAL 18372 SWARTHMORE DRIVE SARATOGA,CALIFORNIA 95070 RE:COAST RIDWOOD AT 18325 SWARTHMORE DRIVE SARATOGA,CALIF. DEAR GUNDI, ALMOST A YEAR HAS PASSED SINCE I FIRST REVEIWED THE COAST REDWOOD NEXT TO THE DRIVE WAY AT 18325 SWARTHMORE DRIVE. THE COLNTINIJED SINCE THE TREE IS CONTINUINGG TO~GROW AND EXPAND~IN DL~1ER. I AGAIN EMPHASIZE THAT THE TREE IS A FAIRLY HEALTHY SPECA41;T1 PLANTED BY MAN IN THE WRONG PLACE. WIRE IT IS NOT ONLY NON-NATIVE BUT IS MUCH TOO CLOSE TO INFRASTRUCTURE THAT WII.L CONTINUE TO BE DAMAGED OVER TIIv1E. I UNDERSTAND YOUR CONCERNS -THAT THE TREE WILL CONTINUE TO CREATE TRIPPING HAZARDS FOR PEDES3'RI.°,NS,COSTLY REPAIRS, AND MAY POSSIBLY FALL ON PEDESTRIANS OR NEARBY STRUCTURES. HOWEVER IF THE THE CITY OF $ARATOGA INSISTS ON THE TREE REMAINWG, DAVID BABBY FROM ARBOR RESOURCES HAS 'FR'O GOOD OPTIONS FOR REPLACING THE DRIVEWAY AND DOING HIS BEST TO RESOURCES AND THE COITY OF SARATOGA S INC~ST'RUCTIONS~REGARDING THIS TREE AND FUTURE DAMAGES OR INJURIES OCCUR FROM THE TREE, I BELIEVE BOTH ARBOR RESOURCES AND THE CITY OF SARATOGA WILL RECOGNIZE THEIR PROPER LEVEL OF RESPONSB;II,ITY. I APPRECIATE THE BEAUTY AND MAJESTY OF COAST REDWOODS IN THEIR NATIVE ENVIItONMENT ALONG THE CALIFORNL^. COAST WHERE THERE IS PLUSS ADEQUATEOR OM FO THEIIt LARHGE ROORT SYSTEMS AND TRUNKS THEALTHIER COAST REDWE OOD SPECA4ENS FROM MAY REAR DEACK ASINTHE SUN SETS BEHIND THEM. IF YOU HAVE FURTHER QUESTIONS, PLEASE CALL ME AT 408-395-2862. SINCE LY YOURS, ~~a~-~- BEAUDOIN Adelgunde Duvall 18372 Swarthmore Drive Saratoga, CA 95070 (408) 379-4413 April 20, 2004 C'Ity Of Saratoga Mr. Tom Sullivan, AICP Community Development Director 13777 Fruitvale Avenue Saratoga, CA 95070 Re: 18325 Swarthmore Coast Redwood Dear Mr. Sullivan, In your letter dated April 15, 2004, you stated that the Planning Commission requested a timetable for the tree removal and driveway repairs if Permission of removal is granted. The timetable is subject to adverse weather conditions or any unforeseen issues and based on the contractors current work load: Remove & dispose of tree i;< roots, stump grinding, removal & disposal of existing driveway concrete, preparation of driveway base/forrn construction, to pour & finish the new driveway. Approximately 60-90 Days Be assured that it is my endeavor to complete this project as quickly as possible in order to remove the current unsafe conditions. Thank you for your consideration and time spent on this project. Sincerely, //~ ,, ,)) ~ ~ ~ B ~ ~ ~, A. Duvall d~llj APR 2 0 2004 ~lU~f CITY OF SARATOGA '"MlMrrv nFVFi n~• Hand delivered Time/Date ~~0~0~ J Pacific Gas and Electric Company August 19, 2003 GUNDY DU VALL, 18372 Swarthmore Dr. Saratoga, Ca. 95070 s Dear Gundy> Thank you for drawing our attention to the large redwood tree adjacent to your driveway and curb at 18325 Swarthmore Dr. in Saratoga. In addftion to the damage done to your driveway, and the cfty's curb, the gas main is being placed at risk. The 2° diameter steel pipeline, which serves the adjacent neighborhood, was installed in 1956 and runs immediately under the trunk of this tree. Long-term damage do1ee by the tree roots or a catastrophic tree failure could cause a rupture of the gas pipe This tree should be removed to repair the existing damage, and to prevent reoccurrence. It is obvious that whoee would have f planted mmed ately overla pipe) eland adja ent full-grown redwood to a concrete driveway and asphalt street. After removal of the tree, and prior to stump and roof 9nindi 9 can be compeed safely. temporarily cut off the affected pipeline so that stump g 9 PG&E work should be completed prior to driveway replacement, as some of our excavation work will be in the driveway and we would not want to damage new concrete. Upon city approval of the tree removal, please contact me at {408) 725-2143 so that we may coordinate our repair activities. ~~ Drew Kelly P.E. Division Gas Engineer Ap-I 15.2004 tiAr:TFrorrreeC~~ ~ODrive, Dear Mr. Corson. distribution SY~ ~ your rletgtlborhood- I was referred -Ay name is Yang X~o~ W ~ re~+tirt9 ~ redwood trees.in your area. 1 woaid Ike by Mr. Gene Lowe to addresstitoBe cancerris atihis time. abaK the cast d rerouting our gas-te~lY ardatd VIe redwood tree loaded ~ 1832.5 Y~r~ ltrnore Drive- The relocation wie oust approwmaBely S15.OOD, given ~ sign~icarrt ofiset~ ~ a to clear the tree roots. Fbarever. PGa4E does not recorrenend reraWiri9 ~ this time. Atthotrgl'+ desired fo ~ #erve-a redwood tree .above our gas malt 8!-'en the potential risk, p does not Peee an immediate hazard to the publ~-~ Dam reoorb& diow ra iidirs6on d Ore tree elfeQirg our gas ine, and we wal oontiriue to mon)tor the situation.arrd take aPProPr~ action the urge, h you still wish to ~Poiade this relocation now, Please corm me and we wll Prepare cost estinede and desigt. You also e> abaR a tree possibly irnPectifg 1hB 9ris Ina at your residerioe, 1833! ~rrarthmore Drive. Upon inspection, we have delermnrxt titid there ism ~ ~~ -~Y Y~ y acid our gas Ina ghren the adequate assiaed PGBE w~ oorrthwre >D enGOech on our far~llly, i- shol>Id not present a potar>6e0 mondrrr the ir~tegrN d ite facAities and take appropriate action 4o ensue sate and reliable energy de6veryto Is ~~' PE G~ a Tvls. Gundy Duval ,J~ ~~~~~~ ~~~, ~~ APR 21 2004 U CITY OF SARATOGA °+MI MIT' nFVFl r'^~ .. • • LQO©Q° • April 28, 2004 Hello, my name is Drew Kelly, and I am a friend of Gundy Du Wall. I workfor PGBE and am normally the Gas Distribution Engineer responsible for the Western Santa Clara Valley. I am a registered Mechanical Engineer in the State of California. I wrote one of the letters from PG&E which is included in the package just handed to you on Gundy's behaH. I would like to clarify a point. There has been some concern that as a friend of Gundy Du Wall, that I should not have authored this letter for PGBE. At the time that I wrote this letter, I had not met Gundy Du Wall, but I had talked to her twice briefly on the phone. Consistent with my normal responsibilities for PGBE, I provided this letter to Gundy. Subsequently, I became a friend of Gundy,'and as her friend,l stand here today. . The redwood tree that we are discussing is a beautiful tree that was planted in the wrong location. To date the tree has: Destroyed Gundy's driveway Raised the city curb and street Prevented proper drainage by the city gutter Caused large ruts in Gundy's front yard Future growth of this tree will: Destroy replacement driveway(s) Block the sewer line serving this home and prevent simple Yepair or replacement • Cause further damage to the street Infringe upon the width of the street and driver visibility The opponents of Gundy's application allege that her lack of maintenance is to blame for the damage to her driveway. There is no maintenance that Gundy could have performed or can perform that will prevent damage caused by the inevitable growth of this tree. I would like to add the following points: Redwood trees are not native to the Santa Clara County valley floor. Economic access to Gundy's home is prevented by the presence of this tree. If the Planning Commission denies permission to remove this tree, it inadvertently sends the following messages to property owners in Saratoga. Don't plant trees that will become large and ultimately be subject to city jurisdiction. Cut down any trees approaching the size criteria established by the city ordinance. These unintentional messages are contrary to the ultimate goal of preserving the scenic beauty of Saratoga. Thank you for considering Gundy's request to remove this tree. ~~~ l! We, the undersigned, do hereby request that the Planning Commission, City of Saratoga, and/or any other governmental entities so empowered, grant the request of Mrs. Gundy Duvall, who is the owner of the property ]mown as 18325 Swarthmore Dr., Saratoga, California, 95070, to remove the Redwood tree located on the southeast comer of the lawn at said address. It is readily apparent this tree is creating huge problems in the driveway, lawn, and curb areas. The potential hazards, thus liabilities appeaz numerous, and real. We concur with Mrs. DuVall's assessment -that removal is the only logical and sure choice to alleviate said hazards and liabilities. NAME ~ _ ADDRESS ~ ~~ ~ ~- 5u ~~ ~~ ~~d.~~~`:.~ 2e~-awcc Sc~ ,- ~~ R ~~ ~ ~~ ~~ ~~ ~~"~ ~~ ~~~ ~1~d7•t~~t, 1 ~~b3 M c,C~~ ~SVQ u 4 4 ~ Ca-y tee. . 1~3%3 McCo~ Ave. 1 deg 1ZfeC~ ~ ~~s9 ht~ ~~~s~ ~~~ 6 Cl t "~ ~! Se/'~ l~ is~~ ~ ~8~~ ~ ~~~~ ~~ ~'j9} /~l c ~o fl ~~~~ (~ ~ 5WG{~ ~1~t ~ ~ ~c IAA >~~- . C~ ~~~ . ~, s n~o~-~a ~ ~1t1SAN i " ~ZG6^w,eC(~ -S~l~ A ~ ~.. ^,1~ % 'tom.-[ .b.~Jr-t' sa,r ~ A~' ~h n ~ ~K~~D ~-MU~- ~'~~~ ~ J ~ ~~k ~GiJ ~ Ot ~~G~l~ ~' _ ~~ ~ ~~' .~ ~~~ v ~; ~ 'Y1a~.~m ~+~~~c ~',,~,,~. ~/,r~y 1 S old 8 CS~v»c 5 r~1 ~gN~~ ~~i:~r ~Fre~.f~nc.c~~y.~, -~ ` .~ ~$36o S~~-7rc~n~cc.~ri~j y~ i ~-3 ; Z ~.cJ~,;r~~ir-~o,e. ~v~. 1~3~t~4 i,leu,sa~ ~v~2v~~-e. l~`i'ZZ C tc~r~So~1 Add V I ~Z G~ ~~~e ~~' 1 `63~1~C ~u~d~ ~~' , As April 25, 2004 City of Saratoga Community Development Department 13777 Froitvale Avenue Saratoga, CA 95070 ,J~ ~~~u~i~ ~~ u~ APR 2 6 2004 L CITY OF SARA Ivan ~`"MIMnv11~VC1 n~• RE: Application #03-140 (403-27-030) Appellant DWALL, Site Location 18325 Swarthmore Dr. -Appeal of an Administrative Decision to decry a tree removal permtt Dear Council Members: I am not able to attend the meeting regarding the above-mentioned public hearing and hereby request chat you regard this with as much credibility as if I were able to present my feelings in person. I reside and own, with my husband and children, our home at 18252 Swarthmore 'Drive. - The people that owned the property in this area prior to development, the Ballard, Ross, -McCoy and Arguello families farmed these sections of land and at some poim in time decided to sell their land to create Sunland Park. In 1956 when this neighborhood was developed and my f~n;ly moved in (I was only 4 ;years old at the time), hundreds of apricot, plum and walnut trees were removed in order to make room for this housing development. Since that time, hundreds of trees have been planted and have grown to make this a very desirable Saratoga neighborhood. Also, every year numerous trees have been removed and new landscaping installed and this neighborhood still maintains a green atmosphere and robust with trees. It is evident that the subject tree has created an unsafe condition and liability for the habitants and homeowners as well as the neighbors. There appears to be damage not only to the yard and driveway, but to the gutter and city street. Obviously there could be other unseen damages possibly to the sewer, water lines and foundation of the home. Let's spare the homeowners the costs of long, drawn-out root blocking. Let's be reasonable about the demands being placed on the homeowners. I ask that you allow the removal of the tree and that the homeowners replace it with an appropriate tree or landscaping of their choice...and not be required to replace it with the full value of the tree. I think this neighborhood has done well without much policing during the last 48+ years and I have faith that an appropriate replacement will take place. I also ask that the City take into consideration what their liability may be with regard to the condition of the gutter and the street as it certainly has created street flooding and could have other unknown liabilities. I look forward to hearing a favorable decision. R spectfull , , a y rson 18252'Swarthmore Dr. Saratoga, CA 95070 408-866-4776 u r w: co.~osr.. 15337.b1~aulhmor6 Drive sew c~;r~ 9emo (408) 3705910 February 23, 2004 Mr. Robert Gynn Jr• Chairmen PGI~E Corp. One Market, Spear Tower, Suite 2400 San Frarlasoo, CA 94105 Dear Mr. Glynn: I am writing m You about a matter of utmost importance 1b our r>sightxxhood. ReoerrtlY, one of your empbyees weM before the Saratoga City Courxal and, stating that he represerrted , pGBE, asked them to cut down a 50-Year-old 100-fioot lslf heritage red+HOOd on our street. 1 have attached the two letters that he gave the city. M the first he claims to represent Your company (on its lettertread) and states that the tree 'oxdd' damage !roar gas main in the @Vent ~ •gtagVbPMC tree failure' (VVI18beV8r that ~s). !n the. eeoond, he sishes l1e rs the applicarrt/landlord's'friend", and goes irrto Personal details of her health problems and various other things irrelevant to PGti~E or its gas main. Certainly, nothing that I would expel fiom a professional from your company were I tD cafl and ask for advice about potsrrtial oonlrat between a tree and your main or lines. I am therefore writing to you on behaH of myself as well as my neighbors Ole t.ara, Lisa Lana, Dan Mercado, Mary McGuire, and Karl and Linda Clemons. I read on your website that 'PG&E is committed to the environment, from dean-air veh'~cles to the redNrood forests." Woe hope this is true for our redwood as well. tt is the largest tree felt in out Sunland Park neighborhood. The harm to our neighborhood horn the loss of this tree wottid be immeasurable. Vlfe had, in fact, saved it. V11e had taken the matter before the Saratoga Planning Commission and, in what we were idd was a final decision, they voted S1 to keep it Your employee then went before the sty council and, based on his representations about the main, they concluded that a gross injustice had been done, that ttie neighbort~ood was indeed in danger, and have now put us on notae that the tree will be desGvyed. This will occur in a matter of a few days. We have the fdlawing questions and requests: 1. Does Draw Kelley indeed work for PG&E and is this indeed your comparys Position? 2. The let6ertt~d he used o~ins ony a PG&E bpo without any address, phone number, or anything else that I am used to seeing on a letterttead. h looks very odd b us. Was this written on youreomparry's3tationary? 3. The property in question has another huge redwood Just 'adjacent to the one in question and equally pro>omate to your gas main. 1 live next door and have a srcnilarly situated redwood as well. Why is PGB~E riot insisting on their desUuctiort? For that matter, why are we not cutting down all of the trees in Saratoga that live' near the gas main? Page 2 Februay 24, 2x04 . 4. ff Mr. Kelley's letter does, ~ fad, represent Your company's Position, on what is it • based? What is 'Catastrophic tree failure"? What evidence is there that this tree has done artyttting at all b the gas maim? 5. The main Ls, aocordir-g b Drew Kelley's Iet6eG ahrtost 50 years old (wtedt is weN beyond its useful life, I believe). He further sues that service b the street wiN have b be tart off to allow the tree to be cut dawn. Lisa Lars called your company and was bid that moving the main was relatively easy. In the spirit of the enrironnlerttaf and community-rela6ed pol'~ies stated on your webeite~ Ls there nothing 1haR you car- do b help us save our tree? Your oomparly's website states the following (emphasis added).. Ewdeoawawlal /tier Pacific Gee and Electric Corriperya Pdiq re ib be an errvirorrnerkli leader by providing safe, eoonanir:el and reliable products and services in a responsible and . DoinO more rb that ar impact on the snvirornnxrt fs less dices us to adopt new tedrrolopiea, imp-ove orr envirorrnental meneg~nsrA prac~oes, brand atrorw flee rrMh local oorrrrrai~ raedr act tD amkatwiders m addraes diallergea and oonlribute ito the devebpnrertt d public policies ~ raise the bar for our induety. Comnwaib Pacific Gee and E~led.~~riYWa[~~co`mp~~~~ayyrry~~i~s '19,0Y0~o p~opl~e~y~ lawllM MV f!fflPlfrla.lu~ lA ~~Ifa1 ~ rlrre and oosraf3s. • The city has indicated that they will be issuing a permit b exit down the tree in a matter of a few days, So time is of the essence. The loss of this tree (espeaaNy under these arcumstances) would be tragic. In the spirit of the above we ask you b please become a part of the sdution and help us save our redvaood. Sincerely, 7 Thomas W. Corsoi'r _ ~ ~ '- r IG 1 GUNDY DU VALL, 18372 Swarthmore Dr. °5aratoga; t^,e. 95070 Dear Gundy, August 19, 2003 Thank you for drawing our attention to the large redwood tree adjacent to your driveway and curb at 18325 Swarthmore Dr. in Saratoga. In addition to the damage done to your driveway, and the aty's curb, the gas main is being placed at risk. The 2' diameter steel pipeline, which serves the adjacent neighborhood, was installed in 1956 and runs immediately underthe trunk at this tree. Long-?em~.danr>HQe,dor-eb~',the treemotsore c~iasirophic Tree failure could cause a nrpture of the gas pipeline. This tree should be removed to repair the existing damage, and to prevent reoccurrence. tt is obvious that whoever planted this Vee did nat t~nsider the long-term impact that a fulhgrown redwood tree would have K planted immediately over a pipeline and adjacent to a concrete driveway and asphalt street After removal of the tree, and prior to stump and root grinding, PG&E will need to temporeriy cut oft the affected pipeline so that stump grinding can be competed safely. PG8E work should be completed prior to driveway reptacemeni, as some of our excavation work wiA be fn the driveway and vre would not want to damage new concrete. Upon city approval of the tree removal, please contact me at {408) 725-2143 so that we may coordinate our repair activities. ' W"v Drew Kelly P.E Division Gas Engineer s Good evening, N-Y name is Drew Kelly and I am a friend of Lundy DuVaIL For the pest morttlt, have been assisting Lundy In her attempt io remove the redwood tree and repla ~8 rneway on her property at 18325 Swarthmore Drive. We metwtlh Tom CSI and he suggested that concrete pavers could be used to replace the existing driveway. Lundy has met with 2 contractors. The first indicated tj18t They would be unwilling to ir>,staN a replacement driveway because tree-tools would cause a major maintenance problem and the driveway would need replacement In a few years. The contractor did not want to instaN a new driveway b~ause of obvious IiabiHty issues. The second ~ntractor, VaNey Concrete, has Provided a letter; which is attached to Gund>~s handout package. Nick Salmida, founder and owner of Valley Concrete has indicated that ~1p00 to $1500 per year would be required to relevei the pavers due m ongoing lifting of ' , the pavers. Periodically, thedriveway would have to be raised and replaced because of new root growth. Flick Salamida states that installation o(a pavaer driveway would only be a temporary measure because of the ongoirq growth of his redwood tree- -- - The city now controls trees that:are to be planted in street areas. A homeowner • would not be allowed to plant a redwood tree three feetfrom a driveway and 8 curband gutter. Additionally a homeowner would not be allowed to instaN this tree directy over a gas main serving the neighborhood and adjacent to the sewer :service. Planting of a tree at this location 50 years ago was a major mistake. The person who planted this tree did not consider the long term consequer~ of planting a .redwood tree that would .continue to grow in size #or hundreds of years. The city stab concurred with the recommendation from an arbotlst mat ' this tree should be removed to~prevent ongoing damage to the street and driveway. Lundy was at UCLA with heart problems during the Planning Commission meeting that resulted in the denial of permission to remove this redwood tree. I request that Lundy have a chance to be reheard by the City of Saratoga. and that new evidence indicating that concrete pavers are not a viable .repair option be heard. I join with Lundy in requesting that the City of Saratoga reconsider and allow Lundy to remove the tree,, replace her driveway, and restore her properly to a safe condition. • • paertricCassad I Oecbic 1' ea ~ naooo ------ s.,r~,ua+m March,, 2004 Mr. Thomas W. Corson 1!317 SwaRhmt>R Drive Saratoga, C14 95070 Dear Mr. Corson This is in response to your letter of February 23.2004 to Robert Glynn, Jr., regarding a neighborhood redwood tree and possible contlid with our gas pipeline facility. Our comparry is sensitive to your concerns regarding the preservation of the tree. V11e have reviewed the irdortnation you provided and also reviewed whet oCdlfred iMemaNy. YourIelGBr rim to~our P Peline~nd (Z) rvas_ PGBE represented at the October 15~~ Saratoga City a Counal Mrteting? PG8E is concerned chat the tree located al 18325 SwaAhrrwre [ki+re ~ ~~~ ~~ bYr gas pipeline located direcBy under the trtrrrk From our perspedlve, __ removal of the tree or rerouting our pipeline. Please be aware ronu whether or rwt~ associated with the relocation option of the pipeline fadlNy. ~~, the Prey ~~ and n;move the bee is a corAl'id that must be resolved between cilY ce~hpprs, ft appears that the conflid also iMOhres other issues, such as root-caused dama0e to an adjacent driverraY and curb. ' Your second area of concern was the potential conflid of interest. Mr. KeNy is an employee or PG8E, and he wes ading on behalf of the company when he initiated the August 19°i, 2003 -~~' in response to Ms. Gundy DuVall's inquiry. However,~e ~s a~ rop~~~Courrci meeting was on hiand ffeelings and not~lw a of PG8E. personal opinions of pour ifacitities, p~eas~e ycoMad Gene Lowe ~Manager~ Engalrreerin9 and Planning, at 916386- n 5116. sincereN. K/u'3t-- ~~~~'~ ~ Pamela S. , P Director Gas Dist-ieudor- S ectmical services ce: Thomas 8. King Eugene H. Laws Ernestine Pugh s U Thomss w. c«son 18337 Swarthrtare Drive Sanrtoga, caiifornia 95070 (408) 3706910 April 2, 2004 Mr. Eugene Lowe PG&E Corp. 5555 Florin-Perkins 12d. Sacramento, CA 95826 VIA FACSIMILE - 916-386-5142 Dear Mr. Lowe: This is a follow up on our telephone conversation today regarding the issue of potential oonlfict with the trees in our neighbortwod and PG&E's gas main. I understand the following taased on that conversation: 1) You will have a PGB~E engineer provide me witl't an estimate for relocation of the gas marn:__-- 2) That same engineer will also provide me with a written evaluation of my redwood, which is similarly sfiuated with r+egavd ib the main. Regarding Drew Kelly's letter of8/19,103, it is my understanding that 1) His reference to `long term damage done by tree roots" in the last sentence of the first paragraph is speculative. You informed me that PG8~E is unav+are of any damage at aB m the gas main at the presets time. 2) Nis n~ference to "catastrophic tree 'failure' in the same sentence refers to the tree falling ~. 3) The statement'This tree should be removed to repair the ebsting damage, and io preyerrt reoocurrerrce.' refers ony to damage ~ the driveway and does not relate in any way >b the gas main. I appredate your working with me to dariy the intent of the above, as I am sure we c:an botl'r agree that we would not want to inadvertenty mislead the aty regarding the underlying fads. Furthemrore, it is my understanding Iran you that PG&E does not nonnaly initiate action for the removal of a tree in these dreumstanoes unless there is an immediate hazard, of which you agree thane is none. You informed me that this situation arose because the properly owner contacted your company, suggested the hypothetical situation, and that your company's position under those dreumstanoes is that removing the tree obviousy removes any hypoti~etical risk. H any of the above is incorrect, please let me know immediately. I appreciate your woridrtg with us on this matter, especialy as it ooncems many of the trees in the neighborF-ood, not just the one in question. `J y~,~~„qo„.~ torso ABSENT: None C~ ALSO PRESENT: Dave Anderson, City Manager Lone Tinfow, Assistam City Manage Richard Taylor, City Attorney Cathleen Boyer, City Clerk Danielle Surdin, Administrative Analyst Jesse Helots, Administrative Services Director Tom Sullivan, Community Development Director John Cherbone, Public Works Director Iveta Harvancik, City Engineer Morgan Kessler, Assistant Engineer Cary Bloomquist, Administrative Analyst REPORT OF CITY CLERK ON POSTING OF AGENDA FORSEPTEMBER 1S, 200Li Cathleen Boyer, City Clerk, reported that pursuam to Govermne~ Cade Section 54954.2, the agenda for the meeting of October 15, 2003, was properly posted on October 9, 7A03. COMMDNICATTONS FROM C011L11iISSIONS & PIIBLiC ORAL CONIMITNICATTONS The following people requested to speak: Gundy Duvall noted that she has lived in Saratoga sire 1996. Ms. Duvall explained to tie Council her dilemma regarding a redwood trce on her rental properly located at 18325 Swarthmore Drive. Ms. Duvall noted that she applied for a tree removal permit a neighbor, Mr. Corson, appealedthe decision and won Ms. Duvall explained that the tree is causing a hazardous condition in her driveway. Ms. Duvall poimed out that she has included a letter from PG&E and Valley Concrete urging the Council to overrule the Planning Commissions decision. Larry Clark referred to the photos he provided to the City Council. Mr. Clark pointed out that the concrete has lifted 6-7 inches, which is very unsafe. Mr. Clark noted that Ms. Duvall is willing to replace trees in replace of the one she is asking m remove. Drew Kelley stated that he represented PG&E and was trying to assist Ms. DuVall's attempt to remove ! ' the redwood tree and. replace the driveway. Mr. Kelley noted that it would be too expensive to replace tbe driveway with pavers due to the fact that every year Ms.DuVall would have to spend approximately S] 500 to leave the pavers re-leveled Mr. Kelley poimed out the original property owner did not consider the placeme~ of the tree so close to the driveway. Mr. Kelley urged the Councr7 to allow Ms. Duvall to L J • if23 ~ 4!]104 19:14 P Mtpl/aww.serato~.w.u.+JhitmM~•2(hmidregulu'~GZOn>m'/'ZOwed/10150 remove the tree and replace hs dnveway. 12 rats in Marvin Becks noted that be has a concern about rodems. Mr. Becker stated that he has trapped • ~ p~ month. Mr. Becker pointed out that squirrel are also becoming a problem. Tom ~~ noted that he was cotlcemed about the home that is utlds construction across the street from his property. Mr. Marinette noted that during the permitting process several changes were supposed to be made to the design When the construction began it did not look Ir~ce the changes were addrevgod. The elevation looks to be 1=/s feet above were it was pemnitted to be. Bill Brack noted that ~otecbed trees near and on the propertylocated at~80 f)ak PMr. Br'eck be placed around the pr rued that Council stop all constructon at this property. David Mighdoll noted that he was present this evening to discuss the construction that is taking plane at the property located at 13641 Ronnie Way. Mr. Mighdoll pointed oul that the Planning Deperlmem made an error on the grade which was presented to them by the develops 154 feet above of what it was suppose to be. Mr. Mighdoll noted that he also opposed the height and bulk of the project. David Maths noted that he was also present in oppose the project on ]3641 Ronnie Way. Mr. Mather noted that currently the grade is 1 'h feet above where the dirt stands. Mr. Mather requested that the Council look i~o this issue. Lisa Schallop noted she was present this evening representing her husband who is on the Planning Commission. Mrs. Schallop noted that some of the tree removal appeals that are brought to the Planning Commission are politically motivated and neighbors against neighbors. Mrs. Schallop suggested that tree loyal appeals be brought to the City Council instead of the Phumiag Commrssion. C MMi7N7CATIONS FROM COMMLSSIONS None .wrri~'x [`OMMIINICATIONS None COIINCIL DIRECTTON TO STAFF In regards to Ms. DuVall's issue, Vice Mayor Waltonsmtih asked ifthe City Council was allowed to hear. the appeal. no, the Council cannot hear this issue. City Attorney Taylor pointed. out City Attorney Taylor responded 4/1lOM1 19:16 P ~f'Z3 http://www.saretoga.ea.us~html' O15o' ~~ s _ S • SARATOGA CITY COUNCII. OCTOBER 15, 2003 The City Council of the City of Saratoga met in Closed Session, Administrative Conference Room. 13777 Fruitvale Avenue at 6:00 p.m Conference with Legal Counsel -Threatened Litigation: Significant expos~me to litigation pursoaat to Government Code secdoa 54956.9(b): (2 potential cases) Conference with Legal Counsel -Initiation of litigation (Gov't Code section 54956.9(c): (2 potential cases). The following.people requested to speak . Saul Ozveron stated that the conditions of the property at 14460 Quito Raed created s fire hard and had increased the rodent popuhation in the area due to an accwnulation of trash and discarded materials on the property. She asked that the City remove the trash to protect public health. Connie Palladino expressed concern that the trash and other materials on the property at 14460 Quito Road created a health hard and asked that ttse.City clean up the property. . John Palladino stated that the City has been aware of the conditions at the properly at 14460 Quito Road for some time a~ asked that the City act to remove the fire hard Jim Cuthbertson informed the Council that be has observed a sigeificxnt increase in the rat population in the vicinity at 14460 Quito Road in the last 5-6 months. He asked tbat the City Council cleso up that property to reduce the rat problem. The City Manager informed the Council that he would look i~o the matter and get back to a neighborhood representative• MAYOR'S REPORT ON CLOSED SESSION - 7:00 am. Mayor Streit reported there was Council discussion but no action was taken. Mayor Streit called the Regular City Council meeting to order at 7:00 p.m. and lead the Pledge of Allegiance. ROLL CALL PRF.SEIVT: Councilmembers Stan Bogosian Kathleen King, Nomlan Kline, Vice Mayor Ann Waltonsmith, • Mayor Nick Streit 4/7/04 19:14 P x'23 rotso ht$:/hvww.~rrto~-~ .that in the Tree ordinance it does not provide appeal of this type of decision of the Planning Commissroa to the City Council -the Plamm~g Commission's decisions are final. City Attorney Taylor explained that if circumstances changed since the original appeal was acted on the applicant is free to reappty. Vice Mayor Waltonsmtih requested a report from staff in regards to the construction pmjed locatcd at 13A61 Ronnie Way ,~T*NOITNCEMENTS Mayor Streit made the following announcements: The City Council will hold a 2nd Community Meeting Tuesday, October 28, 2003 at 7:00 p.m in the Civic Theater Tn discuss the following: • Continue discussion of City owned property and facilities - - _- -- _ • City Infrastruct~ • Community Discussion. on "Vision of Saratoga" On October 26, 2003 from 11:00 a.m. - 4:00 p.m. the Saratoga Rotary, in conjunction with many local groups, will be celebrating cultural diversity at their `Building Bridges" eves at West Valley College. CEREMONIAL ITEMS lA CO1vII-IENI)ATIONS FOR LIBBARY EXPANSION MEMBERS STAFF RECOMMENDATION: prat commendations. Mayor Streit presented commendations to the following members of the Lrlxary fixpansion Committee: Marcia Manzo, Ann Cross and Wylis Peck 1B. PROCLAMATION -DECLARING THE WEEK OF OCTOBER ]9-25, 2003 AS "TEEN READ WEEK" STAFF RECOMII~NDATION: Read Proclamaton and pdesent commendations to student Potts. Mayor Streit read the proclamation and presented it to Judith Sutton, Saratoga High School English teacher. Mrs. Sutton introduced the Poetry Contest winners from Saratoga High School as follows: Calvin Wang, Jessica. Chang, Karen Ivesl, Jensine Lee, Nolan Marcos and 4/7/04 19:27 P] .f 23 I • • Olegario Lara 18324 Swarthmore Drive Saratoga,' CA 95070 April 2, 2004 Planning Commission City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 Dear City of Saratoga: I have lived in Saratoga for 60 years. 40 of those years I have lived directly across the street from a roughly 110-foot majestic Cal'rfomia Redwood tree that is in perfect health & beauty. I am 83 years old and do not understand why, for the second time in a year, the City of Saratoga is contemplating to even discuss the removal of this tree. From our last hearing on this, Ms. Gundy, the owner of this house (who • happens to not live at that address) never even bothered to make attempts to remedy the situation. The problem is that the TREE is NOT the problem; the problem is that Ms. Gundy would rather focus all her time & money on removing it then to work on continuing to allow this tree to be a vital enhancement to our neighborhood. I believe that Ms. Gundy is going for shock value by taping up her driveway with crime scene tape rather than looking for options that many of my neighbors have already presented. Any reasonable. person would have already removed the broken slab in order to prevent the hazard that she showcases. I have had a wonderful certified arborist who came to my house to prune my Persimmon Tree make a suggestion. He said he has seen other Saratoga residents preserve these trees so close to their driveway and streets by removing the concrete driveway, removing the offending roots and then re-pouring the driveway in sections OR better yet, use pavers or brides that have shown to be much more forgiving for the roots. Swarthmore Drive ~ntinues to lose many of its older trees due to careless homeowners who just do not want them. For example: Last year I lost six 45 foot trees on my property line due to a new homeowner who illegally removed these trees without any permits. This real estate agent, Mo Tajik, removed them so he could maximize the lot size to build his brand new house. Mo Tajik never suffered any 0®®©26 • consequence from his actions. It is obvious he does cares about maximizing his dollar worth rath neighborhood• However, due to his actions, I lost which no one but myself seems to care about. not like trees and only er than our Saratoga my privacy and shade I hope that the City of Saratoga insists that Ms. Gundy focus her time and attention to beautifying all her rental properties including the horuees at t~h'~s the street from me. She had 20 years to care for the redwood house and now due to her negligence, she instead points fingers at the tree as though it is to blame. Olegario G. Lara of Swarthmore Drive ~~ ~ ~ ~ MURPHY LAW CORPORATION 26 FERN LANE • sAN ANS ELM O, CALIFORNIA 94960 1415) 451-2084 Apri15, 2004 Pamela S. Johnson, P.E., Director Gas Distribution and Technical services Pacific Gas and Electric Company P.O. Box 770000 San Francisco, CA 94177 Dear Ms. Johnson; Thank you for your letter dated March 4, 2004, to my client, Thomas W. Corson, regarding a tree in his neighborhood and a possible conflict with your gas pipeline facility. In the fourth paragraph of that letter, you stated that, "Mr. Kelly's appearance at the City Council meeting was on his own time as a concerned private citizen. His comments represented his personal opinions and feelings and not those of PG&E." We have recently obtained a copy of the official minutes of the meeting of the Saratoga City Council held on October 15, 2003, which state the following regarding Mr. Kelly's appearance before the Council: Drew Kelley stated that he represented P&E and was trying to assist Ms. Duvall 's attempt to remove the redwood tree and replace the driveway. Mr. Kelley noted that it would be too expensive to replace the driveway with pavers due to the fact that every year Ms. Duvall would have to spend approximately $1500 to have the pavers re-leveled. Mr. Kelley pointed out the original property owner did not consider the placement of the tree so close to the driveway. Mr. Kelley urged the Council to allow Ms. Duvall to remove the tree and replace her driveway. [Emphasis added to the first sentence] Your March 4 letter seems to suggest that Mr. Kelley misrepresented the nature and extent of his authority when he appeared before the City Council. From what you have said, it now appears that, in truth and in fact, Mr. Kelley did not represent PG&E when he tried to assist Ms. Duvall's attempt to remove the redwood tree and replace the driveway. In any event, the harm was done nevertheless. Is my understanding correct? I would appreciate hearing from you right away since the Saratoga Planning Commission intends to reconsider this entire matter at it's meeting next week. Ver~yyours, , ;. 1: ;:, 1 Barry A. M6rphy Attorney for Thomas W Corson • I. 1 f.J ,~ ~ • April, 5, 2004 To: Planning Commission City of Saratoga California Re: Redwood Tree at 18325 Swarthmore Dr. Dear Commissioners, My name is Karl Clemons, and with my wife Lynda Treat-Clemons, reside at 18349 Swarthmore Dr., two houses to the west of the redwood tree. We are unable to be present at the April 15 meeting because of previous business travel commitments. Thus, w'e are writing this letter to voice ow opinion concerning the destruction of the above referenced redwood tree. As each of the n~h~aws of Sazat a has allowed foruthe~cwrent appeal t be fiu derWe only a Chang g aze not in favor of destroying this tree merely because of damage to a driveway. The tree provides a wonderful aesthetic value of an established neighborhood as well as ambiance. Removal of the tree downgrades both of these aspects in ow neighoborhazods a ed, tract ow azea one step closer to the appeazance of an unestablished, p Y P development. Reasons to remove the tree have been presenotential ru twe of the natural driveway, exorbitant costs of driveway maintenance, and P P gas utility running underneath the tree. We believe the owner should get additional estimates concerning driveway repair and maintenance, as well as seek the advice of professional azborists. With regard to the gas line, given the age of the line (ca. 40 years) and its placement, then all Vees and hedges on the North side of Swarthmore Drive vv~thtn 10 to 20 feet of the line should likely be removed as potential hazards or possible causes of a gas line ruptwe. For our own property this would include a 40 foot wide juniper hedge and a magnolia tree, neither of which would we like to see destroyed. We believe that a reversal of your previous ruling in this matter (denial of tree removal) to a vote allowing the tree to be removed sets a precedent of ignorionwner has done in this planning Commission of the City of Sazatoga, which the property instance from the previous appeal. Namely, fix the driveway without damaging the tree, which has not been done to date. We do not dispute the need for the repair of the driveway and view it as an eyesore in the neighborhood as well as a serious safety hazard. On February l9, 2004 we sent an email to Mr. Tom Sullivan with a suggestion for a course of action. We believe this to be a very reasonable and logical suggestion. The text of this suggestion is quoted below. We are sure that Mr. Sullivan could provide you the full text of the email if need be. (~®~i©24 ,'.. . "In addition, I would like to make a suggestion that could obviate any need to destroy the tree and may in fact save the owner money. It is obvious to all of us that the concrete driveway is severely cracked and presents a serious hazard for tripping and such. Were this my own property I would approach the situation as follows. I would have the old broken driveway concrete removed in order to determine what actually caused it to break. The current presumption is the tree's roots, but that has yet to be proven by anyone. It may well be that it is a single root causing the problem or it could also be that a depression has developed in the soil underlying the driveway that also contributes to the problem. The old concrete driveway needs to be removed regardless and before a new driveway could be installed. Why not do the removal of the old driveway first? With luck there would be a simple fix, which allows the tree to remain and a new driveway to be installed, which should save some money for the owner and solve all of these problems." Once again, we ask that the appeal to remove the tree be denied and that the owner be directed to seek alternatives for repairs of the driveway without damage to the tree Thank you for your attention to this matter. Sincerely, /~a~/ ~C' Kaz] V. Clemons, Ph.D. Lynda Treat-Clemons, Ph.D. Homeowners at: ] 8349 Swarthmore Dr. Sazatoga, CA 95070 • • E3~~~25 • • April 6, 2004 HAND DELIVERED Planning Commission City of Saratoga 13777 Ftuitvale Avenue Saratoga, CA 95070 Thomas W. Corson 18337 Swarthmore Drive Saratoga, Cal'rfomia 95070 (408) 370910 Dear Commissioners, This letter is in support of the Community Development Directors decison to deny a tree removal permit for the rental property located at 18325 Swarthmore Drive owned by Gundy• Duvall. First, I would like to formally note our objection to re-hearing this s1e ed~falt thissmatterr was decided last year, there are no new fads, and it was cteadY rant my appeal and resolved with finality when this Planning Commission decided to g preserve this tree. We were told (correctly) that that decision was final and relied on that There are no new fads or circumstances here, only the owners stubborn refusal to do anything other than destroy the tree. Nothing in the new law speaks of its provisions being retroactive and there is nothing in the public hearing minutes to indicate that there was any intent to make the new law retroactive. Nevertheless, we find ourselves dealing with this again and so I shall. The criteria for removal are set out below. I will address each item in turn. (1) The condition of the tree with respect to disease, imminent danger of falling, proximity to existing or proposed structures and interference with utility services. The tree is completely healthy. It is in no danger of falling. It is not near an existing or proposed structurePGBE's gas Ib nen but athatb clahm I sndcompletely unsubstantiated ~alnd there is a services, namely e dily evailab e' alternative, namely for PG&E to move the gas main to PG&E, (2) The necessity to remove the tree because of physical damage or threatened damage to improvements orimpervious surfaces on the property. The only IHoiwevee dlis thehownersbnegligence and inattention to thehprob em for the better driveway. part of 10 years that has caused the problem to escalate to the degree that it has. The tree should not have to pay the ultimate penalty of her negligence. Furthermore, there are readily available alternativesnoreforeg d snot necessary toeemove the tree to f ~he d e~Y and in the staff report). this criterion is not met. ~®~©28 ~ Page 2 2004 il retention i ~ • upon eros on, so nd and the etiect of the tree remov (3) The topography o/ th and the diversion or increased flow of sun`ace waters, particularly on steep slopes. li • cable. This criterion is non-app (4) The number, species, size and location of existing trees in the area and the effect the removal would have upon shade, privacy impact, scenic beauty, property values, erosion control, and the general welfare of residents in the area. This is the largest remaining tree in Sunland Park. Its loss would be a tragedy. tt shades several homes, including my own. It is a magnificent specimen and greatly enhances our property values. This criterion for removal is Dearly not met. (5) The age and number of healthy trees the property is able to support according to good forestry practices. There seems to be some debate as to the meaning of this criterion and it is indeed poorly written and in need of clarification. I suggest to you that R can only mean that if there are too many trees on a property, then some can be removed. That is clearly not the case here. The existing two redwoods are doing just fine. I believe staffs interpretation is that if there are enough other trees on the property or in the neighborhood, then some can be removed. believe this is incorrect. First, the criterion says "property" and nothing else. Even if one were ' ders to include the entire street, we are by no means well treed. I have lost three huge con adjacent to just my own home. The property can Geariy support the two redwood trees currently there. Therefore, I suggest to you that this criterion for removal is not met. (6) tNhether or not there are any altematives that would allow for retaining or not encroaching on the protected tree. As described in the staff report, there are several viable alternatives for repairing the driveway as well as dealing with other speculative issues such as the PG&E line (they can move it, after all, it is simply a 2" pipe). In addition, I refer you to the property at 14760 Farwell, with identical circumstances, namely a large redwood in potential conflict with an adjacent driveway. As you will see, the pavers are working just fine. Furthermore, the city has established correct precedent when it determined in July 2003 to deny a pennft for the removal of that tree. Accordingly, this criterion for removal has not been met. (7) Whether the approval of the request would be contrary to or in conflict with the general purpose and intent of this Article. The stated purpose of Article 15-50 Tree Regulations is as follows: 15-50.010 Findings; purposes of Article. The City Council finds that the City is primarily a residential community; that the economics of property values is inseparably connected with the rural attractiveness of the area, much of which is attributable to the wooded hillsides and the native and ornamental trees located throughout the City; that the preservation of such trees is necessary for the health, safety and welfare of the residents of the City in order to preserve scenic beauty, prevent erosion of topsoil, protect against flood hazards and the risk of landslides, counteract pollutants in the air, maintain the climatic balance and decrease wind velocities. ~~©C~29 .zoos ~ ~ P9pe 3 To compliment•d strengthen zoning, subdivision and other land use standards and regulations, while at the same time recognizing the privileges of private property ownership, the City Council adopts this ordinance to establish basic standards and measures for the maintenance, removal, and replacement of trees. Thus, this ordinance is designed to provide a stable and sustainable urban forest to preserve and protect significant historic heritage values, and to enhance the unique aesthetic character and environment of this City. This says everything in favor of preserving the tree and nothing in favor of rThe Ong it'nssib er of a certain style of driveway (slab) or speculative conflicts with pipes. Y Po property ownership privilege argument that could be made is °I have the right to neglect the problem with the driveway for 10 years. I then have the right to come to the city and point out what a huge risk that has caused. I further have the right to destroy the tree because I refuse to util'¢e (or even consider) pavers and insist on a slab driveway". That is hardly the intent of the tree ordinance. (8) Any other information relevant to the public health, safety, or general welfare and the purposes of this ordinance as set forth in section 15-50.010. The only safety issue presented by this tree is the danger posed by its removal. PG&E said themselves they will have to shut off service. A crane will have to be brought in. Public safety is best protected by leaving the tree just as it is. Everything else in 15-50.010 is clearly in favor of preserving the tree. (g) The necessity to remove the tree for economic or other enjoyment of the property when there is no other feasible aRemative to the removal. There is absolutely no necessity to remove this free for the economic (or any other) enjoyment of the property. It is a rental property. Tenants are living there right now, despite the tree, or the driveway. These same tenants could easily have chosen one of the other rental properties that Gundy owns. She has four on Swarthmore Drive alone. Mostly, they sit vacant for months and sometimes in excess of a year at a time. The tenants picked this home despite the tree or driveway. It was in fact these same tenants who provided the original impetus for stopping the first permit and the resulting appeal. The wife approached me on the day before the tree was to be cut down, told me of its impending demise, and stated that she and her husband were appalled that Gundy was going to cut them down (she initially intal~ sa~ecthe ttree in the redwoods). That was the triggering event that gave rise to my apps {~ place. Furthermore, this criterion clearly states that there must be- no other feasible aRemative for removal. Clearly, in this case there are alternatives, as amply described above and in the staff report. This criterion for removal is also not met. Therefore, I ask that you find that the criteria are not met for removal and deny the appeal. Finally, in the unfortunate event that you decide to remove this tree, I request that at the very least that it be replaced at full value and the performance thereof secured by the appropriate bond. Anything less than this would be unconscionable. 0.00030 . .,, . ~ Page 4 s Respectfully, ~~ ~J ~~--~ Thomas W. Corson 18337 Swarthmore Drive ,~, zooa ~~ 00031 • s • Mary McGuire • Dan Mercado 18336 Swarthmore Drive Saratoga, CA 95070 April 5, 2004 City of Saratoga planning Commission Saratoga, CA 95070 Dear planning Commissioners: I am writing to support the decision of Tom Sullivan and request that you spare the life of the redwood at ] 8325 Swarthmore Drive. Ow home is located across the street from the property in question. One of the unique and special things about living in Saratoga is the rural feeling with the mature trees, vhde streets, and lack of sidewalks. We recently lost several trees on the block to chainsaws, and fear that we may be about to lose that which is special about our neighborhood. We do not want to lose another, especially one so beautiful and majestic, when it is entirely preventable We discussed this with you at length last spring/summer, and nothing has changed since than. The Property owner, who has never lived in the home, has refused to take any remedial action ortunity to a peal to~you. fYou will hear a lot of smoke andemirrors about had another opp P what the tree "might" do, but it is without substance and/or evidence. The PG& E person is a personal friend of Ms. Duvall, and does not speak as a PG&E employee as he purports to, but as her personal friend. There is no evidence whatsoever that this tree's roots have damaged anything except for the driveway....th Tretos the evidence that they have impacted the gas line and/or represent a dan8 neighborhood. PG&E admitted this in a conversation with Neighbor Corson. I want to emphasize that this is not an attempt to vilify Ms. Duvall. She is not in the best of health, and she has many rental properties, including this so severe pre~isely because the fact of the matter is that the damage to her driveway g to that amount of she let the problem go unchecked for at least 8 years. (I can only spec time, as it has been cracking the driveway since we moved to the block in March of 1996.) If you find that you must vote to remove the tree, we ask that it be replaced with one of equal value. Thank you for helping to keep our neighborhood beautiful. __ __ ....- __._ .... __--UQ~~~~~_"- r `~. • • ~J • Regards, / A ~ ~ ~" ~G ~~ ~~~_ l ~~Fi~%"~(/ McGurre Dan Mercado 18336 Swarthmore Drive • OQ©033 Apri115, 200M1 AAr. Ttlor-taeforsat '18337 Svrarthmore Dave, ~ ~ Saratoga, CA 96070 Dear Mr. Corsart: ivty name is Yang Xrao, and I oversee the gas d~ ~ ~ system in your neighborhood. I was referred by Mr. Gene Lowe tb hollow up an your caraer-ts regarding the redwood trees at your seed. 1 world Ake to address those concerns ffi this time. You inquired about the cost d rerotlirg our gas facnny around the. redwood. tree located ffi 1ti325 SyNarUtmare Drive. The relocation win cost approtamately 515,000. given the signnicant onset ^egrtited to dear the tree roes. However. PGBE does oat recommend reramng ffi 1F+is tiros. pntrougft k a not a desired scenario ~ ttave,a redrtrood tree above ou gas main given 4ta polertlial risk, it does not pose art immediate tta~rd to the pubii~ Quc.patrd records snow ra indication aff~ t9ocrdiha~ie 1kte, and we win oonimue to monitor the situation and take appropriate change, n you stirs wish to "s1i6aDe tltis reiocation now. please artraa me and vve wnl Pr'sPBfe a detailed cost estimate and desigt. You also e~ressed cartcerrrs abaS a tree passbly tntpectirg Ute gas Arse ffi your residence. 18337 Slvanhmore Drive. Upon inspecGOn, we have dztenninad thffi there fs rw oonWG bet 1he~ ~ your property and air gas Ane given the adequa6e AnFlougFl encroedt on our facility. N should not preser+t a poven6al rfsk Rest assured 1'GBiE wiN cantirwe 1p monAOr the integrly d ns taaAties and take appropriate aaion to ensure sere and reliable energy delivery to ns wstomers. yam, rang xiao. PE Gas Distrnxfion Fligineer c. Ms. Gandy DuVaA ,J~ ~(~~D~C~ ~~I, p~ APR 212004 U CITY OF SARATOGA Q~OOQS insurance questions Subject: RE: Insurance questions From: Mike Baxter <mike.baxter.gw51@statefarm.com> . Date: Wed, 28 Apr 2004 18:40:08 -0500 To: "'corson@infodyn.com"' <corson@infodyn.com> No, State Farm will still defend you against a law suit as a result of the tree....Mike --Original Message----- From: corson@infodyn.com (mailto:corson@infodyn.com] sent: Tuesdayr April 27~ ?004 1:55 PM To: Mike Baxter Subject: Re: Insurance questions I forgot to ask about personal injury. Are the answers any different if the tree falls over and injures or kills someone? TC Mike Baxter wrote: Tom, let me know if you need anything else....Mike --Original Message----- From: corson@infodYn.com [mailto:corson@infodYn.com] Sent: Thursday, April 22, 2004 11:40 AM i To: Mike Baxter Subject: Insurance questions '~. Hi Mike, These are the questions I had regarding my sequoia tree and some isspes -. that have come up regarding the redwood tree next door at 18325 Swarthmore Dr: ~, 1) My tFea has )3egutr t:o sFask my dF}veway. Aie~ E in airy way ssveFed~ €9F the damage? No... ` 2) The damage currently is a crack. If I don't repair it now and it lifts the driveway, am I covered if, say, someone trips and falls over it? ~. Yes, but we would insist you repair the liability hazard or we would not renew your coverage. 3) If I don't repair it and it deteriorates, would State Farm cancel my coverage? Yes. 9) Can I simply repair the driveway or do I have to remove the tree? We would only require the liability hazard be fixed. i.e.: the cracked driveway/sidewalk. 5) An issue has come up with the large redwood on the neighboring property at 18325 Swarthmore. If this tree were to fall over and cause damage to my home, would i have any coverage from State Farm or would my only recourse be against the owner? Your policy covers the damage to your home no matter where the tree is located if it falls on your house. Zf you could provide documentation that ffie neiglitior had hof prdperly mairifaihed ffie free ahd fhefefore iniglit have been negligent State Farm would attempt to recover our cost from your neighbor's homeowners liability coverage. 6) It I do have coverage for 5) above, would State Farm hold the owner - 1ia151@ afid stibY6g3La the Elaifn? See an§W8f L6 #5 2 • u 4/28/04 16:45 PM Apri15, 2004 Pamela S. Johnson, P.E., Director Gas Distribution and Technical services Pacific Gas and Electric Company P.O. Box 770000 San Francisco, CA 94177 Dear Ms. Johnson; Thank you for your letter dated March 4, 2004, to my client, Thomas W. Corson, regazding a tree in his Saratoga neighborhood and a possible conflict with your gas pipeline facility. In the fourth paragraph of that letter, you stated that, "Mr. Kelly's appearance at the City Council meeting was on his own time as a concerned private citizen. His comments represented his personal opinions and feelings and not those of PG&E." We have recently obtained a copy of the official minutes of the meeting of the Sazatoga City Council held on October 15, 2003, which state the following regarding Mr. Kelly's appearance before the Council: Drew Kelley stated that he represented P&E and was trying to assist Ms. Duvall 's attempt to remove the redwood tree and replace the driveway. Mr. Kelley noted that it would be too expensive to replace the driveway with pavers due to the fact that every yeaz Ms. Duvall would have to spend approximately $1500 to have the pavers re-leveled. Mr. Kelley pointed out the original property owner did not consider the placement of the tree so close to the driveway. Mr. Kelley urged the Council to allow Ms. Duvall to remove the tree and replace her driveway. [emphasis added to the first sentence] Your March 4 letter seems to suggest that Mr. Kelley misrepresented the nature and extent of his authority when he appeared before the City Council. From what you have said, it now appears that, in troth and in fact, Mr. Kelley did not represent PG&E when he tried to assist Ms. Duvall's attempt to remove the redwood tree and replace the driveway. Is my understanding correct? Very truly yours, Barry A. Murphy Attorney for Thomas W. Corson e. JAMES E. TOOTHMAN SC ASSOCIATES JAMES E. TOOTHMAN JOEL F. DONAHOE ASHLEY ANN DORRIS WENDY M. SWANBON ATTORNEYS AT LAW 61 EAST MAIN STREET, SUITE A LD$ GATOS, CALIFORNIA 9SO3O EMAIL: info®jet-law.com AREA CODE (4061 TELEPHONE 395-6021 FACSIMILE 395-1088 July 7, 2004 Via Hand Delivery Members of the City Council City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 JUL ~ 7 2004 Re: Appeal of Planning Commission's Decision to Deny Tree Removal Permit at 18325 Swarthmore Drive; Meeting July 7, 2004, Agenda Item 4 Dear Members of the City Council: This law office has been retained by Appellant Adelgunde Duvall to assist her with the presentation of her appeal of the Planning Commissions Denial of her requested permit to remove one of two Coast Redwood trees located in the front yard of her property located at 18325 Swarthmore Dr. in Saratoga, California. Accordingly, Ms. Duvall hereby submits this written response to the Community Development's report and recommendations prepared by Thomas Sullivan, AICP, referring to Item 4 on the City Council's meeting agenda for July 7, 2004. I. INTRODUCTION This proceeding is about a Redwood tree that was woefully misplaced by a prior owner of the subject property. With its trunk located approximately two feet from the property's driveway and one foot from the street's curb, the roots of this tree have naturally grown laterally so as to cause extensive visible damage to both, resulting in an existing condition that is glaringly dangerous and unattractive. That this tree should never have been planted in the place it now stands cannot reasonably be disputed. That the roots of the tree have caused this substantial damage to Ms. DuVall's property and will continue to disrupt any repairs to the driveway and street over time are similarly beyond reasonable dispute. Nevertheless, as stated in its Report, the Planning Commission denied Ms. DuVall's request for permission simply to remove the cause of such ongoing damage upon the argument that there are supposed alternatives. Such purported alternatives, however, both as described by the City's arborist and in light of risks pointed out by certified arborists Gil Mitchell, Mark Beaudoin and Chris Hall, do not adequately address the potential for destabilization ofthe tree due to necessary removal of one or more of the offending roots. Members of City Council July 7, 2004 Page 2 Indeed, to deny Ms. DuVall's requested permit would place her in an impossible situation. At best, the City suggests methods of repair that it contends would stave off further damage for as little as only 10-15 more years, thus requiring further similar repairs at a later date. At worst, these repairs could very well themselves result in the disturbance of buttress roots necessary for this 90- foot tree to remain standing. Neither the language of Sections 15-50.010 and 15-50.080 nor the principals they seek to codify can reasonably be applied so as to impose such substantial continuing expense on Ms. Duvall, not to mention exposure to potential liability for injuries or damage should the tree fall as a result of attempted temporary repairs. In short, and as is explained in greater detail below, any and all options suggested to address this problem apart from removal cannot change the simple fact that this Redwood is in the wrong place. Whether now, a year from now, or some years down the road, the tree must be removed, and denial of this permit would only delay the inevitable to Ms. DuVall's ongoing financial detriment. To withhold permission to address what is the only immediate and permanent solution to this dilemma is not called for under any practical application of facts to the factors set forth in Section 15-50.080, and in any event is at odds with Section 15-50.010's express recognition of privileges Ms. Duvall should enjoy with respect to her own private property. Ms. Duvall respectfully urges this Council to grant her appeal enabling for the issuance of the permit necessary to solve this problem. H. APPLICATION OF SECTION 15-50.080 Pursuant to its de novo review of Ms. DuVall's permit application to the Planning commission as is appropriate in this appeal, Section 15-50.080 sets forth descriptions of the criteria this Council may consider in making its review and determination. However, Ms. Duvall disagrees with the Community Development Department's implication that all or a majority of each itemized criteria must be met to support removal, as is implied by its proposed Resolution. Rather, the relative weight offacts supporting removal under just one such criterion may outweigh, on balance, facts supporting denial under any or all remaining criteria, in which case a finding for removal would be proper. That having been said, substantial facts exist in this instance to support granting the permit for removal of the tree under all of Section 15-50.080's criteria except Subsection (a)(3) regarding topography, which the Planning commission concedes is inapplicable here. A. Subsection (al(l) -Whether or not the Tree is Relatively Healthy, its Proximity to Existing Structures and Potential Interference with Utility Services Support Removal under these Criteria. The Planning commission's only finding applied to this Subsection is that it has "determined that the tree appears to be healthy." Even assuming this is accurate, whether the tree can continue to do well for itself is at least questionable, given that the driveway and street cover one whole side ofwhere the tree's roots are trying to grow. Nevertheless, it should be noted that Subsection (a)(1) does not refer to the "health" of the tree as a factor, but rather the "condition" of the tree as it relates to, among other things, proximity to existing structures and interference with utility services. Members of City Council July 7, 2004 Page 3 As for proximity to existing structures, the tree's truck rests less than two feet from both the curb lining Swarthmore Drive and the driveway on the subject property. Its roots have grown beneath each of these structures so as to cause aseveral-inch separation in the driveway and a several-inch change in the grade of the curb and gutter which, in turn, has prevented drainage and resulted in deep puddles in front of the property. Indeed, the tree's close proximity to these structures is extreme, and should factor against a finding that the tree is in good condition for the purpose of this criterion. With respect to utility services, the fact the tree sits above a PG&E gas main should not be discounted. Although the latest letter from PG&E attached to the Planning commission's Report (dated April 15, 2004 from Yang Xiao to Thomas Corson) does state that the tree does not pose an "immediate hazard to the public," the same sentence sets forth PG&E's position that "it is not a desired scenario to have a redwood tree above our [PG&E's] gas main given the potential risk." Further, as stated in another PG&E letter attached to the Planning commission's Report (dated March 4, 2004 from Pamela Johnson to Mr. Corson), "PG&E is concerned that the tree located at 18325 Swarthmore Drive could cause damage to our gas pipeline located duectly under the trunk," and that "[f]rom PG&E's perspective, this risk can be resolved by removal of the tree or rerouting the pipeline." As evidenced by these letters, PG&E does in fact consider the location of the tree in relation to its gas main at least a potential hazard and/or risk that also should support removal under this Subsection. B. Subsections (a)(2), (a)(6) and (a)(9) -Removal of the Tree is Necessary Due to Actual Physical Damage it has Caused to the Driveway and Street, Repeated Damage that Shall Occur Absent Removal, Resulting Detriment to Enjoyment of the Property, and the Lack of Feasible Alternatives. As they relate to the facts at issue before this Council, the criteria listed in Subsections (a)(2), (a)(6) and (a)(9) are substantially similar so as to warrant the same analysis. These criteria list factors for removal as follows: (2) The necessity to remove the tree because ofphysical damage or threatened damage to improvements or impervious surfaces on the property. (6) Whether or not there are any alternatives that would allow for retaining or not encroaching on the protected tree. (9) The necessity to remove the tree for economic or other enjoyment of the property when there is no other feasible alternative to the removal. Here, the Planning commission acknowledges that the tree's roots have caused significant destruction to Ms. DuVall's driveway, and does not dispute that it has caused the damage to the curb and street. Accordingly, the issue before this Council under these criteria is the availability of feasible alternatives to removal that may effectively eliminate the continuation of such damage and otherwise allow for economic and general enjoyment of the property. Members of City Council July 7, 2004 Page 4 1. Absent Removal, the Tree's Roots will Continue to Grow and Damage the Driveway and Street and any Repairs Thereto As any arborist present at the hearing on this appeal might attest, coast redwoods have been known to live for more than 2,000 years, grow to 370 feet tall, and have roots that spread out laterally 60 to 80 feet from the base of their trunks. (See, e.g., "Trees Study a Tall Order," by Glennda Chui, San lose Mercury News, Science & Health, May 11, 2004.) Though not likely to reach such mammoth proportions in its present location on Ms. DuVall's property in the urban forest of Saratoga, this approximately 50-year-old tree is certain to continue trying to grow and expand the radius and density of its roots to the ultimate damage of any structure that may otherwise impede its progress. Just as Swarthmore Drive cannot reasonably be moved so as to accommodate for the tree's expansion, Ms. Duvall submits that the driveway similarly cannot reasonably be moved so as to remain connected to the existing garage and stay within that property's boundary. Accordingly, such structures shall always be vulnerable to the destructive growth of the tree so long as it exists. 2. Anv Repairs to the Street and/or Driveway are Inherently Temoorary In its Report, the Planning commission cites two options proposed by David Babby, the City Arborist as alternatives for repairing Ms. DuVall's driveway that he contends would not require removal of the tree. Expense to Ms. Duvall of pursuing such options aside, Mr. Babby acknowledges that these options may remain compatible with the continuing growth of the tree's roots for as little as 10 or 15 years. This estimate may even be ambitious as opposed to realistic, as a recent quote obtained by Ms. Duvall for curb, gutter and driveway repair from Valley Concrete, Inc. (total: $9,645.00) specifically notes that such repairs maybe expected to stop root damage for only one year. (See Estimate dated June 25, 2004, attached hereto.) Either way, it is clear that any repairs that may be done without removing the tree are temporary so as to require additional and/or continuing maintenance in the relatively near future. In other words, Mr. Babby's proposals, on their face, provide only means for avoiding rather than solving the problem the tree necessarily will continue cause, all at Ms. DuVall's continuing significant expense. Ms. Duvall respectfully submits that such "alternatives" are so wholly impractical so as to eliminate it from any reasonable interpretation of what constitutes a realistic or feasible alternative under Subsections (a)(6) and (a)(9). 3. The City Arborist's "Alternatives" Pose Unacceptable Risks Related to Destabilization of the Tree .In his two Options set forth in his Recommendation letter dated April 5, 2004, attached to and cited generally in the Planning commission's Report, Mr. Babby suggests that one of the first steps for each option is to "sever all roots within the top six-inch soil layer" "at "8 to 10 inches from the trunk's base" beneath the existing surface of the driveway. Mr. Babby also opines that he "believe[s] these few roots could be removed without resulting in tree mortality or instability, provided the lawn and street side roots remain viable," and that such options "would achieve a reasonably high assurance of tree survival and stability." Members of City Council July 7, 2004 Page 5 In contrast, in his Evaluation of the tree dated April 28, 2004 attached to the Planning Commission's Report, certified azborist Gil Mitchell advises that (a) replacing the driveway will cause major damage to one to two buttress roots," (b) that reparation of the curb and gutter could damage at least one more, (c) that the subject roots are on the windward side of the tree during storms, and (d) that such damage to buttress roots will "adversely affect the health and stability of the tree." Similarly, a report submitted by certified arborist Chris Hall, dated April 12, 2004 and attached to the Planning commission's Report, recommends that the tree roots causing the problem not be removed, "as it would seriously destabilize the trees support system and create a hazazdous and potential liability situation." Both Mr. Mitchell and Mr. Hall recommend that the tree be removed. Whereas Mr. Babby's "reasonably high assurance" of continuing stability following root removal under the driveway is contingent on the buttress root(s) under the curb and street remaining in place, both the driveway and curb need repair. At the same time, Mr. Mitchell's and Mr. Hall's evaluations create frightening doubt with respect to the effect of potential repairs to the driveway, regazdless of whether or not any roots under the curb or street are disturbed. In his Tree Report dated Apri123, 2004 and attached to the Planning commission's Report, certified azborist Mark Beaudoin addresses Mr. Babby's Options specifically, and suggests to Ms. Duvall that if the City insists on preventing the removal of the tree, and if she were to follow Mr. Babby's instructions, and if injuries or damage is nonetheless caused by the tree, that perhaps the City and/or Mr. Babby's company will hold itself accountable. Ms. Duvall is not in a position to rest on that assumption. Given the barely imaginable damage and/or injury that would undoubtedly result should this 90-foot tree fall, Ms. Duvall contends that the potential consequences of even the slightest risk related to proposed repairs necessarily make such risk proportionately huge. Here, in light of the information contained in all available azborist reports, the continuing stability of the tree following the repairs proposed by Mr. Babby cannot be adequately assured. Particularly as compazed to the immediate and permanent solution removing the tree would provide, the "alternatives" proposed by the Planning commission and/or Mr. Babby simply cannot reasonably be considered feasible. C. Subsections (aZ(4) and (x1(51 -Notwithstanding its Recognition and Appreciation by Members of the Neighborhood, the Tree is but One of Two Similar Redwoods in the Front Yard of the Property, and any Scenic Beauty is Marred by the Unappealing Damage it Will Continue to Cause As the Planning commission's Report concedes, there are other healthy and lazge trees on Ms. DuVall's property. Accordingly, although the tree is large, its removal will not result in a dearth of lazge trees at or around Ms. DuVall's property or the greater neighborhood. Members of City Council July 7, 2004 Page 6 In particular, there is another similar redwood tree in the same front yard. As also is stated in the Planning commission's Report, "the tree and it companion in the front yard is a neighborhood landmark." The Planing commission makes no other finding with respect to factors pertaitung to shade, privacy, erosion control and/or general welfare of the residents as might be applicable under the criteria of these Subsections. That having been said, the sole issue before the Council related to these criteria (assuming for the purpose of argument that designation as one half of a landmark implies scenic beauty) is whether the scenic beauty of this tree so far outweighs the practical reasons for removing the tree under the ordinance as set forth elsewhere in this brief, that it must be allowed to exist and cause damage to property. Especially in light of the unsightliness of this damage, Ms. Duvall must submit that it does not. D. Subsections (aj{71 and {a)(8] -The General Purpose and Intent of the Subject Ordinance, Both as Written as Reasonably Construed, Strongly Supports Removal of the Tree Section 15-50.010, as cited in the Planning commission's Report, sets forth the purpose of the City of Saratoga's ordinances pertaining to trees.. Considerations stated therein regarding prevention of erosion, protection against floods and landslides, counteraction against pollutants, maintaining climatic balance and decreasing wind velocities should not be deemed applicable to this single tree located in Ms. DuVall's suburban front yazd. Of course, Ms. Duvall appreciates and respects the City's policy with respect to rural attractiveness that may indeed be furthered by the existence of this particular redwood on Swarthmore Drive. However, because the removal of this tree is necessary, not for any desired additional development or particular aesthetic, but rather simply to provide the only realistic option for stopping the current and continuing physical damage to her property, she must strongly disagree with the Planning commission's unsubstantiated assertion that "[t]he provisions of Section 15-50.010 do not support the removal of the tree." As Section 15-50.010 states, the City Council adopted this ordinance to compliment and strengthen land use standards, "while at the same time recognizing the privileges of private property ownership." Notably, no where does this ordinance state or otherwise suggest that preservation of trees is presumed more important than preservation of existing property. In addition to its failure to account for the significant risks all proposed alternatives to tree removal impose on the stability of the tree, the Planning commission's apparent minimization of Ms. DuVall's rights as a private property owner in the face of such significant expense, energy and exposure to liability makeup the main bases of this appeal to the City Council. Duvall has gone through all the necessary and appropriate channels to simply request from the Planning commission and this City Council the wherewithal to fix and forever cease the cause of substantial physical damage to her property. Should this Council unfortunately be inclined to determine, for whatever reason, that denial of Ms. DuVall's requested permit was appropriate, she respectfully implores the Council to cazefully consider the unintended effect such a decision would likely have on other Sazatoga's residents. Specifically, awareness of Ms. DuVall's plight may well result in reluctance on the part of other property owners to plant new trees that may become subject to restrictions under the City's ordinances, and may even induce others to remove existing healthy and appropriately placed trees Members of City Council July 7, 2004 Page 7 before they reach a certain size for fear of losing reasonable control of that portion of the property they otherwise own. III. CONCLUSION This tree is in the wrong place. Its unfortunate placement some 50 years ago has resulted in significant physical damage to Ms. DuVall's property and the street, and will continue to cause the same or similar damage so long as it remains. Any and all alternatives to removal with respect to necessary repairs are wholly impractical, unnecessarily expensive, and unduly risky methods of avoiding, rather than addressing the issue. All available facts and applicable ordinances ultimately point to the unavoidable conclusion that the tree must be removed. For all of the above reasons, Ms. Duvall respectfully urges this Council to grant this appeal. Very truly yours, JAMES E. TOOTHMAN & ASSOCIATES ~L>~- JOE .DONAHOE Attorneys for Appellant Adelgunde Duvall ~:~ cc: Client \\XP-SERVER\toothman\CLIENT\Duvall\Brief wpd 06r?5/2904 93:9 4062876895 ~/vALLEV CQaCRETE ~vszo~t coi>~traFrre ~,~,G~x~~f wonx `-' FREE ESTiMItT[ ~b~[; ~'~~~, ~[~~, #~. lwnw~'IO7~fi 'Y..i ~y,~,, ~ STOtvu~ous8 J21. f W {apB)227-~~~s • f92i) 676t?0o 6:T; ', PuGE 01 STETE LIC. #03~3~ 1!.' 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PLEDGE OF ALLEGIANCE ELECTION OF A NEW PLANNING COMMISSION CHAIR AND VICE CHAIR Commissioner Garakani placed his name for consideration as Chair. Commissioner Nagpal asked if Commissioner Hun[er could be re-elected. Director Tom Sullivan replied that the Municipal Code prevents a Planning Commission Chair from serving consecutive terms. Motion: Upon motion and second, Commissioner Garakani was selected to serve as Chair. AYES: Garakani, Hunter, Nagpal, Rodgers, Schallop and Uhl NOES: None ABSENT: Zutshi ABSTAIN: None Commissioner Uh] nominated Commissioner Nagpal to serve as Vice Chair. Commissioner Nagpal recommended that Commissioner Zutshi be nominated for Vice Chair. Director Tom Sullivan said that Code does not preclude the Vice Chair from serving two consecutive terms. Commission Minutes of April 14, 2004 Motion: Upon motia Chair. AYES: NOES: ABSENT: ABSTAIN: n and second, Commissioner Nagpal was selected to serve as Vice Garakani, Hunter, Nagpal, Rodgers, Schallop and Uhl None Zutshi None APPROVAL OF MINUTES -Regular Meeting of March 10, 2004. Motion: Upon motion of Commissioner Nagpal, seconded by Commissioner Hunter, the Planning Commission minutes of the regular meeting of March 10, 2004, were adopted as submitted with corrections to pages 3. (5-0-1-1; Commissioner Zutshi was absent and Commissioner Rodgers abstained) REPORT OF POSTING AGENDA Director Tom Sullivan announced that, pursuant to Government Code 54954.2, the agenda for this meeting was properly posted on April 8, 2004. REPORT OF APPEAL RIGHTS Director Tom Sullivan 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), except for Item No. 2 for which the Planning Commission action will be final. ORAL COMMUNICATION Ms. Emma Wykoff, 18660 Paseo Lado, Saratoga: Suggested that the City consider ways to improve and enhance their notification process. • Said that recently, she was not properly notified of an approval for which she had general concerns. The City has old mailing information for her property although this information had been updated with the County Assessor's Office. • Suggested that notices be sent to the physical address even if the database has a different address for the owner. • Thanked the Commission for hearing her concerns. Commissioner Hunter asked Director Tom Sullivan if his staff is aware of these questions. Director Tom Sullivan said that the County sells the City of Saratoga the information used for mailings. Both City Ordinance and Government Code require that these mailings go to the owner's address included on the Assessor's roles. In many cases, there are absentee property owners. Commissioner Uh] asked how often this information is updated. Director Tom Sullivan replied once a year. Commission Minutes of April 14, 2004 Commissioner Schallop asked why not mail both to the site and the owner's address, if they are different. Director Tom Sullivan replied that this would double the mailing. Commissioner Schallop suggested that this be done only if the two are different. Chair Garakani said that Planning Department staff would look into this issue further. *** CONSENT CALENDAR There were no Consent Calendaz Items. *** PUBLIC HEARING -ITEM NO. 1 APPLICATION #03-140 403-27-049 - A ellant DUVALL Site Location - 18325 Swarthmore Drive: Appeal of an Administrative Decision to DENY a Tree Removal Permit a[ 18325 Swarthmore Drive to remove a lazge Redwood tree. The tree in question is a 161-inch, mature Redwood and is located next to the driveway. (TOM SULLIVAN) Director Tom Sullivan presented the staff report as follows: • Advised that the appellant is appealing the denial of a Tree Removal Permit for property located a[ 18325 Swarthmore Drive, seeking reversal of that denial. • Stated that the request for the removal of a Coastal Redwood was reviewed and denied administratively on February 11, 2004. The appellant appealed that decision on Mazch 2, 2004. • Reported that the Planning Commission considered an appeal of another Tree Removal Permit application for this same tree that had been approved administratively. The Commission granted that appeal, overturning the administrative approval. • Explained that since that time, the City has adopted a new Tree Ordinance. As a result of the new Ordinance, the City Attorney felt that there were sufficient changes in the required criteria that [he City could allow this property owner to re-apply for a Tree Removal Permit. • Stated that when staff looked at the criteria under the new Tree Ordinance, it was determined that most of the required criteria could not be met in order to support approval of this request. • Said that the City's Arborist reviewed this tree and submitted a report in which options were offered for dealing with the repaving of the driveway, which has been greatly damaged by the tree's root system. One option would be to use standard base course material and the other would be to use structural soil mix, which allows the roots to go down deeper. Either option would work. Option 1 would last about 10 years and Option 2 would last about 15 to 20 years. Commissioner Schallop asked if staff is surprised by the different assessment offered by the City's Arborist and the report provided by the property owner's Arborist. Director Tom Sullivan replied no. Commission Minutes of April 14, 2004 Commissioner Schallop asked if the property owner could be required to provide a replacement tree if this one were to be removed. Director Tom Sullivan replied that the Commission could do so. Commissioner Rodgers asked staff if the goal to preserve and protect is the starting point of the Tree Ordinance. Director Tom Sullivan replied yes. Commissioner Rodgers pointed out that seven of nine criteria could not be met and wondered how many must be met in order to approve such a request. Director Tom Sullivan replied that the Tree Ordinance does not set a minimum number of criteria that must be met in order to support an application to remove a tree. Commissioner Schallop asked if the same criteria are considered when removing a tree for new construction. Director Tom Sullivan replied yes. He added that it could be suggested that a proposed structure be relocated on a site to preserve a tree instead of removing it. Commissioner Rodgers asked whether the age and number of trees on a property are taken into account and whether a removal might be approved if there was overcrowding of trees. Director Tom Sullivan answered that if there are sufficient trees so that the removal of one would not severely impact the property it could be a basis for approval. He added that this property has two large Redwoods in the front yard, one at the mid point and the second at the street, adjacent to the driveway. Chair Garakani opened the Public Heating for Agenda Item No. 1. Mrs. Gunde Duvall, Appellant and Property Owner, 18325 Swarthmore Drive, Saratoga: • Said that she has owned this property since 1968 and is proud to live in this beautiful City. Explained that this large tree is located right next to the driveway and is on top of sewer and gas lines. • Said that she understands the importance of trees and loves trees as much as anyone else. Informed that she worked for years in the fields of property management and real estate. Reminded that the City had originally given permission for the removal of this tree but that her neighbor, Mr. Tom Corson, appealed that decision. • Pointed out letters from PG&E and Valley Concrete and advised that she could lose her insurance coverage for this property as a result of potential hazards as a result of this tree. Said that the tree's roots are beneath the driveway and must be removed as it is causing a risk of having people fall and get hurt. • Stated her hope that the City could give her the answer she needs before anything happens. Asked for the Commission's help with this. Commissioner Uhl asked Ms. Gunde Duvall if she has any documentation from her insurer to support her concerns about loss of insurance coverage. Commission Minutes of Mrs. Gunde Duvall replied no but said that there is a good chance that they will cancel. Commissioner Nagpal asked if her insurance company is aware of this situation. Mrs. Gunde Duvall replied that her agent is aware but the main office is not. Commissioner Nagpal asked Mrs. Gunde Duvall if her Arborist is present this evening. Mrs. Gunde Duvall replied that the Arborist is out of town for 10 days. Commissioner Nagpal asked Mrs. Gunde Duvall if her Arborist had reviewed the recommendations of the City's Arborist. Mrs. Gunde Duvall said that many different people she consulted advised her that taking this tree out is the only solution. Commissioner Hunter asked Mrs. Gunde Duvall if her Arborist saw the two options outlined in the City Arborist's report. Mrs. Gunde Duvall reported that the crack in her driveway continues to grown larger. Commissioner Nagpal stated that the City Arborist's report states the belief that some roots can be removed without causing mortality of this tree. Did Chris Hall, her Arborist, see that report. Mrs. Gunde Duvall replied no. Chair Garakani pointed out that Chris Hall wrote his report just three days ago. Miss. Elizabeth Mercado, 18336 Swarthmore Drive, Saratoga: • Advised that she is six years old and would feel bad if this tree got cut down. • Presented her drawing of the tree to the Commission. Ms. Mary McGuire, 18336 Swarthmore Drive, Saratoga: • Declared the fundament issue being that this tree impacts the entire neighborhood. Stated that it is a beautiful tree and a landmark and that she would like to see it preserved. Pointed out that the gas pipe is only atwo-inch pipe. • Cautioned that a petition that will be turned in was presented to people for signature without telling them the facts. She was able to explain the other side to one person who had signed it. • Asked for help in keeping this neighborhood beautiful. Chair Garakani welcomed the next speaker and advised those in attendance that Ms. Lisa Kurasch worked on the updated Tree Ordinance as well as having served on the Planning Commission. Ms. Lisa Kurasch, 18665 Ravenwood Drive, Saratoga: • Said it was nice to see the Commission this evening. • Urged the Commission to take staff's recommendation seriously as this is an issue of properly using and interpreting the new Tree Ordinance. Saratoga Planning Commission Minutes of April 14 2004 Page 6 • Stated that this application is for a new driveway and does not represent a safety problem, adding that she has sufficient confidence in City staff that if this were a safety issue, they would have information to that effect. • Took issue with the fact that the nine criteria cannot be met in order to support the removal of this tree. Commissioner Schallop asked Ms. Lisa Kurasch if she has seen this driveway. Ms. Lisa Kurasch: • Replied yes. • Added that there are alternative methods available for installing a new driveway on this property. • Recommended that staff's decision be looked at seriously and upheld. • Suggested that perhaps the gas main could be moved. • Expressed her pleasure that the new Ordinance is coming up for a test here. • Reminded that this is a 161-inch circumference tree, a landmark tree. Chair Garakani: • Asked how Ms. Lisa Kurasch would look at this request if there were danger involved. • Reminded that the property owner is concerned. She is willing to pay to fix the situation but not for the potential consequences if someone were to be injured on the property as a result of the current conditions. • Asked how Mrs. Gunde Duvall can be assured that if this tree falls, it is not her fault. Ms. Lisa Kurasch: • Replied that there are no guarantees anywhere. • Reminded that the required criteria to support removal have not been met and that there are alternatives to removal of this tree. • Said that more information in support of the stated safety concerns raised are needed. Commissioner Schallop asked Ms. Lisa Kurasch about [he equivalent value in replacement trees being required to allow the removal of this tree. Ms. Lisa Kurasch: • Replied that the tree is valuable to the community and would be difficult to replace. • Said that the context needs to be considered. This is an exceptional tree. People value this tree. Commissioner LJhI asked about moving the gas line. Director Tom Sullivan said that this is PG&E's gas main line for this neighborhood but it would be physically possible to relocate it. Mr. Jim Dillinger, 18326 Swarthmore Drive, Saratoga: • Stated that a lot of people are present and there is a big concern in dealing with feelings and emotions of one side of the issue versus [he other. • Pointed out that this property owner is trying to alleviate a problem and that the main issue is not the driveway. • Said that this tree's roots are branching off in every direction. Saratoga Planning Commission Minutes of April 14, 2004 Page 7 • Reported that the Arborist drilled only in one area when evaluating this tree. • Said that Mrs. Gunde Duvall is not just concerned with fixing the driveway. The damage caused by the roots of this tree aze impeding the water flow down the street. Water stays paddled with no place to go. The curb is damaged. Who pays to fix it. • Stated that no one is protecting Mrs. Gunde Duvall. • Advised that the yazd is a mess with roots above grade. • Pointed out that the solutions offered by the City's Arborist provides a 15 to 21 yeaz solution for Option 1 and a 20 to 25 year solution for Option 2. Therefore, he believes that someone else will have to deal with this issue again in 15 to 20 years. • Stated that this is a street issue and a yard issue. It is the City's mandate to protect the citizens of Sazatoga. • Said that the top half of this tree is almost barren. It is stressed per one Arborist's report. • Pointed out that the only one who gets some shade from this tree is Mr. Tom Corson and he has three other trees in the area providing him with sufficient shade. • Stated that this is not a heritage tree as it was planted about 45 years ago by a homeowner. • Declared that the big question for staff is what changed in the criteria whereby they could approve a removal of this tree a yeaz ago but could not support the same request now. He read some of the criteria from the previous staff-approved Tree Removal Permit. At that time, the City wanted this tree out and only changed its position when others complained. • Stated that Mrs. Gunde Duvall is asking for your help not for any type of monetary gain but simply because this tree is a hazazd. Commissioner Nagpal asked whether PG&E's letter outlines potential damage to the gas main by this tree. Mr. Jim Dillinger: • Replied no. • Elaborated by adding that this two-inch gas pipe is located directly beneath this tree. • Cautioned that with 30 years in fire service, he warns that no one wants to see a natural gas fire. Commissioner Rodgers asked if this gas main is impaired. Mr. Jim Dillinger replied no. As of this moment it is not impaired. However, the potential problem is of concern. Commissioner Rodgers asked if this tree is the same age as the house. Mr. Jim Dillinger replied no, the house is slightly older. Commissioner Hunter asked Mr. Jim Dillinger how long he has resided on this property. Mr. Jim Dillinger replied approximately 13 months. The situation is twice as bad as when he first moved in. He added that he moved onto the property with the understanding that the tree would be removed and the driveway replaced. Right now, he cannot use this driveway. Commissioner Nagpal pointed out that preventative steps could have been taken in years past and asked why they did not occur. Sazatoga Planning Commission Minutes of April 14 2004 Page 8 Mr. Jim Di]linger: • Explained that Mrs. Gunde Duvall had applied for and received a Tree Removal Permit but it was overturned upon appeal. • Added that since that time, he put barrier tape up and parks his truck over a crack to prevent anyone from tripping over it. • Said that Mrs. Gunde Duvall wants to deal with the entire problem, the potential impacts on the gas main, the water runoff issue and the uneven grade in the front yard. Mr. Mo Tajik, 18312 Swarthmore Drive, Saratoga: • Identified his property as being across the street. Agreed that when it rains the water puddle sits there. • Said that he loves trees. This one is beautiful and he looks at it every day. • Expressed his opinion that the potential hazard supercedes the beauty of this tree. • Stated that the removal of this tree would not take away from the beauty of this street as there is another lovely Redwood tree located close by on this property. Chair Gazakani questioned whether the roots of that second Redwood tree might not be compromised should this tree's roots be dug out after it is cut down. Mr. Mo Tajik replied that this second tree is further from the street and curb. Mr. Julio Bermudez, 18360 Swarthmore Drive, Saratoga: Explained that the reason he bought a home in this azea is because it is beautiful and picturesque. • Said that it is unfortunate that this tree was planted in this particular location. • Stated that this tree creates a potential City liability if someone should trip and become injured. • Said that there are a couple of good options. Chair Garakani said that he too is concerned about liability. Mr. Wayne Garrahan, 18422 Clemson Avenue, Saratoga: Asked staff for a definition of a heritage tree. Director Tom Sullivan said a tree is designated as being a heritage tree by the City Council. This is not a heritage tree. The Heritage Preservation Commission reviews trees under consideration for heritage tree status and then forwards a recommendation on to Council. Council can so designates a tree as being a heritage tree. Mr. Wayne Garrahan: • Identified himself as the Vice President of the neighborhood Homeowner's Association. • Stated that it was a big mistake to plant this tree in this poor location. • Said that there are two large trees on this property and that this one is creating problems including standing water, where mosquitoes can breed, and tripping hazazds. • Declared his love of trees too. Cautioned that he is loath to plant any new trees on his own property for feaz that he would be prevented from removing it in the future should the tree become a problem. ~sion Minutes of A • Suggested that this tree be looked at and that the Comrrussioners put themselves in the shoes of this property owner and come up with a reasonable solution. • Stated that if [here were 10 Arborist reports, there would be 10 different recommendations. Described his experience when living in Campbell whereby one large tree on a neighboring property lost two ]azge limbs, one of which fell onto his house while the second just missed the gas main. Said he understands the emotional appeals for the retention of this tree but that the property owner has offered a replacement tree. • Appealed to the Commission to use good sense. Commissioner Hunter asked Mr. Wayne Garrahan if his cotnments represent the HOA or his own views. Mr. Wayne Garrahan said that he is representing himself as a local homeowner. Ms. Doris Livezey, 1107 Little Oak Circle, San Jose: Said that she resides in San Jose and is a representative of Our City Forest. • Stated that trees are a wise investment for the community. • Agreed that this driveway is an atrocious sight but that it can be properly corrected without removal of this tree. • Agreed that this tree was planted in a poor location. • Said that trees are beneficial, offering cooling, sound attenuation and habitat for birds and squirrels. • Suggested that this tree can be saved. 'ssioner Nagpal asked Ms. Doris Livezey if the pruning of roots for this tree would create Comma stability issue for the tree. Ms. Doris Livezey replied that a large portion of this tree's roots aze under the driveway. However, if done properly, there would not be a stability issue for this tree. Commissioner Nagpal asked Ms. Doris Livezey if she is an Arborist. Ms. Doris Livezey replied no. Chair Garakani pondered whether an Arborist would provide liability for their work. Ms. Doris Livezey commended the City for its Tree Ordinance. Commissioner Hunter asked Ms. Doris Livezey if the Coastal Redwood is native to the area. Ms. Doris Livezey said she did not know. Commissioner Hunter pointed out that the Coastal Redwood has a very large taproot and is one of the least likely species to come down. Ms. Doris Livezey agrees that it has one of the deepest taproots around. Commission Minutes of A to Mr. Larry Clark, 1217 Autumnsong Way, San Jose: • Identified himself as a friend to Mrs. Gunde Duvall. • Said that this tree was located without any foresight about how large it would grow. • Suggested that the bottom line here is liability. • Advised that he used to work for Valley Concrete and gave an anecdotal account of seeing a tree fall over after having had its roots removal and even though the process had been supervised by the City of San Jose's own Arborist. Commissioner Rodgers asked Mr. Larry Clark what species of tree char was. Mr. Larry Clark said he was not sure but that it was an older tree. Commissioner Rodgers wondered about the qualifications of the supervising Arborist in that situation. Mr. Larry Clark reminded that it was the City of San Jose's own Arborist. Commissioner Hunter asked whether the age of the tree has been verified and how long the driveway has been in this condition. Commissioner Rodgers asked Mr. Larry Clark if he pours concrete driveways. Mr. Larry Clark replied that he used to. Commissioner Rodgers asked Mr. Larry Clark for the genera] depth of a driveway. Mr. Larry Clark said that it ranges between five and five-and-a-half inches in depth with base rock and a four-and-a-half inch slab. Mr. Richard Williams, 18396 Purdue Avenue, Saratoga: • Said he is present to speak on behalf of this property owner, Mrs. Gunde Duvall. • Stated that this situation is unfair to the tenant on this property and to the property owner. • Suggested that someone look at both reports. • Pointed out that atwo-inch gas line can do a great damage to the general area. • Informed that the driveway is unusable right now. • Stated that this is a fairness issue. Mr. Chris Wiles, 18363 Purdue Drive, Saratoga: • Said that [his issue should not be about a few neighbors but the whole neighborhood, using good use and common sense. • Stated that this tree continues to cause damage and any steps recommended only offer a temporary solution. Declared that this tree was improperly located on this property and that its roots must be damaging the utilities beneath it. • Suggested the benefits of having the City foster an environment whereby trees are evaluated for their appropriateness prior to planting. • Said he was concerned about the opposition to this request as having self-interests as opposed to this owner's interests. Saratoga Planning Commission Minutes of April 14, 2004 Page 11 Ms. Georgeann Wiles, 18363 Purdue Drive, Saratoga: • Said that trees are needed to provide photosynthesis and aesthetic appeal. • Questioned what assurances could be offered that there is a long-term solution available. • Stated that there is life-threatening damage that has occurred. • Wondered who would be willing to assume the liability if Mrs. Gunde Duvall cannot ge[ insurance for her property. • Said that if the City has any liability, that means she personally does too as a taxpayer. Commissioner Nagpal asked Ms. Georgeann Wiles where Purdue is in relation to this property. Ms. Georgeann Wiles replied that her street is the second street from the north. Ms. Emma Wyckoff, 18660 Paseo Lado, Saratoga: • Stated that during the last public hearing on this particular tree, she spoke before the Commission. • Said that she has planted 16 trees on her own property. • Pointed out that many mature evergreen trees have just disappeared in the neighborhood as well as the canopy of a large magnolia. • Expressed concern over the declining number of trees in the neighborhood. • Suggested that the City coach homeowners on how to best locate trees on a site. • Said that if there is a way to save this tree, to go with that path. • Agreed that it is a tough call. • Pointed out that this particular homeowner owns several properties in the neighborhood and that some speakers may support her for that reason. However, she herself has no vested interest in this property. Ms. Angie Fredrick, 18377 Purdue Drive, Saratoga: • Said that she has lived in the area for 46 years and is a past school administrator and member of the Saratoga Public Safety Commission. • Said that her prime concem is the safety of people and that a hazardous condition should not be retained. • Expressed her support for this property owner who should be allowed to remove this tree. Mr. Paul Morris, 18325 Vanderbilt Drive, Saratoga: • Expressed his support for this property owner. • Questioned if this tree stays, what is the plan for the street and curb repairs. • Said that roots on the street side would also probably have to be shaved back too. • Stated that he would like to see this property owner prevail. Ms. Elizabeth Lara, 18872 Devon Avenue, Saratoga: • Informed that Commission that she resides within an adjacent subdivision but had the opportunity to grow up on this street, having spent her first 18 years there. • Stated that this tree has been subject to 25 years of benign neglect. • Reminded that the original application last year was for the removal of both of these Redwood trees. • Gave a list of reasons to retain trees as well as identified a list of organizations devoted to the preservation of trees. Commission Minutes of 12 • Said that we need to find a way to co-exist with these mature trees and that liability is not a valid argument here. Said that she lived for 10 years among the Redwoods in Santa Cruz and that they don't just fall down. • Pointed out that the Arborist says this tree is stable. • Said that she spoke with PG&E and was told that a gas line is easy to move. • Provided photographs of neighborhood trees. • Asked the Commission to review its options and consider extending the life of this tree. Chair Garakani asked whether Ms. Lara would be willing to help this property owner with the liability. Ms. Elizabeth Lara countered that this owner has neglected the tree. Commissioner Nagpal stated that this is the wrong location for this tree and asked Ms. Elizabeth Lara what species of tree she would plant there. Ms. Elizabeth Lara said she would defer this question to her father, standing beside her this evening. Mr. Olegario G. Lara, 18324 Swarthmore Drive, Saratoga: • Stated that nothing could replace this tree. Ms. Elizabeth Lara: Advised that her father is 83 years old and has lived in Saratoga for 60 years. • Added that another neighbor, Mr. Tajik, removed six trees illegally. • Stated that a tree is a living thing and that a neighborhood without trees is a dead neighborhood. Mr. Tom Corson, 18337 Swarthmore Drive, Saratoga: • Said that he previously submitted a letter. Questioned being charged by a previous speaker with having ulterior motives. • Advised that legal issues have come up and that the local homeowners association has been disbanded by the Superior Court. • Opined that Mr. Dillinger has nothing invested in this neighborhood. • Said that this issue was previously reviewed and that there are no new facts here. • Said that the biggest issue is the gas main and that this is a real slippery slope that could be precedent setting. • Said it would be wrong to overturn this action since the Planning Commission previously determined that this tree must stay. • Added that the updated Tree Ordinance is supposed to protect trees and that this tree deserves protection. Mr. Ivan Burnett, 18468 Swarthmore Drive, Saratoga: • Said that he has been in the area for 42 years and has seen a lot of changes in the area. • Said that he himself lost four or five trees. • Reported that most of the soil is adobe, which does not allow roots to go down through that. All of the roots of this tree are way up high. Said that if these roots are cut, there would not be enough left to hold this tree up. • Argued that cutting its roots off cannot repair this tree. Commission Minutes of 14,2004 • Added that the issue of puddled water is that it breeds mosquitoes. • Stated that no one can park in this driveway as it is too dangerous. 13 Mr. Jim Dillinger, speaking in rebuttal for property owner Mrs. Gunde Duvall: • Stated that the support for Mrs. Gunde Duvall is ten to one. • Rebutted Mr. Corson's charge that he is just passing through. • Said that maybe he won't stay in this house forever, but he is here in the community to stay, having moved here from Oregon. • Added that attacking an individual has nothing to do with this issue. Asked the Commission to please look at the liability. • Assured that no Arborist would be willing to assume the liability for what may or may not happen following their cutting of a tree's roots. • Thanked the Commission for doing this hazd job. Chair Garakani closed the Public Hearing for Agenda Item No. 1. Commissioner Hunter: • Implored the audience to not let this tree divide a neighborhood. • Said that so many of them have lived there for so many years. • Agreed that this is a difficult discussion and the Commission made it last summer. • Pointed out [hat she has a standing water issue on her own property. Thanked the representative from Our Urban Forest for attending this meeting. • Said that the loss of trees will affect all of us. • Stated that everyone has some level of liability. • Suggested that pervious pavers are an alternative for the driveway. • Said that this is a beautiful tree that looks healthy. • Advised that she will support staff's recommendation since the City has swell-qualified Arborist and his recommendations were clear. • Added that people aze much smarter now about trees and taking care of them when building driveways. Commissioner Schallop suggested focusing on the criteria rather than the competing experts. Asked if a safety issue was raised in the PG&E letter. Director Tom Sullivan reported that since the last Planning Commission action lots of discussion has occurred regarding the issue of the gas main between himself, PG&E and Mrs. Gunde Duvall. The gas main can be moved if it is a concern. Commissioner Uhl: • Said that this is a tough situation. Pointed out that the City's goal is to preserve its trees. Trees are assets and not liabilities while driveways are liabilities and not assets. • Staled his desire for a stronger argument that all possible efforts have been made to preserve this tree and his belief that not all of the possible efforts have been taken. Said that due to the need to preserve trees, he is supporting the City staff recommendation to deny this request to remove this tree. Page 14 Sarato a Planning Commission Minutes of April 14 2004 Chair Garakani said that if roots are cut on two sides of this tree, the driveway side and the street side, he questions whether this tree could survive. Expressed concern for potential for danger. Commissioner Uhl said that this owner could have taken every effort [o preserve this tree. Reported that he personally had to cut a portion off of his own roof to accommodate a large Oak tree that is growing right next to his house. Commissioner Nagpal: Pointed out that the Arborist recommends cutting back the roots only on the driveway side. It does not need to be done on the street side as the Arborist did not review that option. Suggested the need for a more detailed technical review. Commissioner Rodgers said that the applicant needs to remove the roots to fix the driveway that is in appalling condition. Commissioner Hunter pointed out that on Bohlman Road ditching was done on both sides of a row of redwood trees. These trees remain in great shape today. Commissioner LJhI pointed out that the Arborist's solutions are 10 to 20 year solutions and suggested sending this back for further review. Commissioner Hunter asked whether the street would be resurfaced as a way to address its current condition. Director Tom Sullivan said that the existing rolled curb could be removed. Commissioner Schallop asked if a replacement tree of equal value is a viable option. Commissioner Rodgers pointed out that the Tree Ordinance calls for protecting Coastal Redwoods when possible. She added that it would be difficult for a new tree to become established in this type of soil. Commissioner Nagpal expressed concern that nothing has been done in an attempt to deal with this situation over the last year. Chair Garakani reminded that the remedy for this property owner was to cut down this tree. Mrs. Duvall is worried that this tree could fall. Commissioner Hunter pointed out that the City of Sunnyvale makes it a practice to pull up concrete and look below. Perhaps that step should be required of this driveway to better assess the situation. Commissioner Uhl supported that idea, saying that the Commission does not have a complete idea of all options available. Commissioner Nagpal said that even if they are not able to save this tree, at least all efforts would have been attempted. Pointed out that tonight's is a completely new hearing. Agreed that this tree was planted in the wrong location. Minutes of April 14, 2004 Chair Gazakani stated that this driveway is a liability and it should be totally removed. 15 Director Tom Sullivan: • Reminded that per the Arborist's report the roots can be removed from beneath the driveway without mortality of this tree. • Reiterated that with the change in criteria under the recently adopted Tree Ordinance, staff changed its position from last year as now there are alternatives to removal. Chair Garakani reminded that the root removal is recommended for the driveway side only while there are root problems from every direction. Director Tom Sullivan said should the Commission elect to continue action on this item to the next meeting, staff will need specific direction on what additional information is desired. Commissioner Schallop supported the idea of coming to a decision this evening with the applicant having the option to appeal to Council. Stated that soliciting more reports would simply equal a battle of the experts. Commissioner Hunter said that with the removal of the one Redwood tree by the driveway, there is also the potential for the second nearby Redwood to be compromised. Commissioner Rodgers stated that there are acceptable methods of repairing this driveway per the Arborist and pointed out that the applicant's Arboris['s report is not as detailed as the City's. Commissioner Uhl pointed out that this owner could appeal a denial to Council. However, the owner needs to demonstrate that she has done everything possible to preserve this tree. Chair Garakani: Questioned [he wisdom of sending something to Council if the Planning Commnission can work to solve this situation. • Stated that he is here to make sure the City of Sazatoga's residents aze best served. • Advised that he looks at this situation from a perspective of what would he want to do if this tree were in his yard. Said that he came to serve on the Commission due to the issue of trees. • Suggested that more data be provided to allow the Commission to make a decision. Commissioner Schallop reminded that staff would require more specific direction on what is required Commissioner Hunter asked if anyone has a motion. Commissioner Uhl said that it would be important to establish a replacement value in the event that this tree cannot be saved. He said he wants to see along-term solution and not just a 10-year solution. Commissioner Nagpal asked what the Arborist and staff should be instructed to provide. Commissioner Hunter cautioned that it is extremely expensive to send the Arborist out and that it costs approximately $2,500 to remove a tree of this size. Commission Minutes of April 14, 2004 16 Commissioner Nagpal said that information that is important is which roots could be trimmed while retaining the tree's stability. Commissioner Hunter suggested that the existing driveway be pulled up so that the Arborist could reassess the situation. Director Tom Sullivan advise that there would be a lot of expense for the property owner without kC10Wing WhaC the Planning Commission and/or Council is going to do. Commissioner Uhl said he would like more facts for the Planning Commission to consider at the next meeting or to send this matter on to Council with a denial and let the Council make the decision. Chair Garakani said that more facts are needed. Commissioner Rodgers asked what type of information. Chair Garakani said whether the roots in the other directions must also be removed. Motion: Upon motion of Commissioner Hunter, seconded by Commissioner Uhl, the Planning Commission voted on whether to accept staff s recommendation to DENY an Appeal of an Administrative Decision denying a Tree Removal Permit (Application #03-140) to allow the removal of a 161-inch Redwood tree on property located at 18325 Swarthmore Drive, by the following roll call vote: AYES: Hunter, Rodgers and Uhl NOES: Garakani, Nagpal and Schallop ABSENT: Zutshi ABSTAIN: None The motion failed to reach a majority and an amended motion was made: Motion: Upon motion of Commissioner Uhl, seconded by Commissioner Schallop, the Planning Commission CONTINUED consideration of the Appeal of an Administrative Decision, denying a Tree Removal Permit (Application #03-140) to allow the removal of a 161-inch Redwood tree on property located at 18325 Swarthmore Drive, to the next regular meeting on April 28, 2004, with the request that the City staff pursue additional information: 1. Longer term solutions for the condition of the driveway in order to support retention of the tree; 2. Establishment of a replacement value if the tree is to be removed, 3, Evaluation of whether the removal of one tree will jeopardize the viability of the second nearby Redwood tree and 4. Establishment of a compliance schedule and timeline, by the following roll call vote: AYES: Garakani, Hunter, Nagpal, Rodgers, Schallop and Uhl NOES: None ABSENT: Zutshi ABSTAIN: None Saratoga Planning Commission Minutes of April 14 2004 Page 17 *** PUBLIC HEARING -ITEM N0.2 APPLICATION #04 042 (386 41-040) Appellant CHIN Aonlicant KENIGSBERG. 20067 Karn Circle: Appeal of an Administrative Design Review Application, which proposes to construct a 225 square foot ground floor addition and a 167 square foot second story addition to an existing 2,900 squaze foot two-story home at 20067 Karn Circle. The property is 13,120 square feet and is zoned R-1- 12,500. Appellant Chin, owner of an adjacent property, has filed an appeal of this application pursuant to Municipal Code Section 15-45.065(c) after receiving a "Notice of Intent to Approve." (LATA VASUDEVAN) Assistant Planner Lata Vasudevan presented the staff report as follows: Advised that a Notice of Intent to Approve was mailed to the owners within 250 feet of 20067 Karn Circle on February 19a'. • Stated that a neighbor appealed this action based upon privacy impact concerns. • Said that staff had required the applicant to use an obscured glass on the proposed new bay window for the remodeled master bathroom to eliminate privacy impacts from that window onto the neighbor's property, however, the appellant was not satisfied that this would eliminate the impacts on his property. • Advised that staff visited the neighbor's property and finds that there is sufficient landscape buffering in place between the two properties. There are no unreasonable impacts on the privacy of the neighbors and this project meets all required findings. • Informed that a letter of support was provided by the Greenbrier Homeowners Association for this remodel and addition. • Recommended that the Commission adopt a Resolution denying this appeal and approving Application #04-042 with conditions. Reminded that the Commission's action is final. Chair Gazakani opened the Public Hearing for Agenda Item No. 2. Mr. Paul and Elaine Chin, Appellants, 20052 Seagull Way, Saratoga: • Thanked the Commission for its time and visit to his property. • Said he is a former director of the Greenbrier Homeowners Association. • Expressed concern over the massiveness of an imposing structure invading open air space and creating a negative and crowded feeling equaling visual pollution. • Stated that this addition is too much, too close, too high and too near. • Said that this imposition of excessive bulk should not be imposed upon him. • Said that the sepazation between properties is a critical factor in establishing the flavor of a neighborhood. • Asked that the Commission help keep Sazatoga, Sazatoga. • Said that this project would have negative impacts on his home and neighborhood. • Worried that this addition would result in privacy issues, as the result of overlooking into his yazd. • Suggested that the motivation for this addition is simply to enhance the sales price of this home. Commissioner Hunter advised the Chins that she went into the neighbor's master bedroom. These neighbors just want to enhance their master bath and closet, which is very tiny right now. of April 14, 2004 Page 18 Commissioner Nagpal pointed out that this is the master bath that is being extended. Mr. Paul Chin reiterated his concern that it's more, close and high. Commissioner Rodgers asked if the Chins had looked out to their home from this one to see what the view would be. Mr. Paul Chin said that he feels guilty appealing this request but this is the proper way to object. xe added that these are nice neighbors. Commissioner Rodgers complimented the Chins on their beautiful yard. Chair Garakani pointed out that the lazge Magnolia tree in the Chins' backyard is already larger than this structure and the new addition. Mr. Paul Chin explained that this tree was put in by a previous owner and is only partially effective as a screen. Chair Gazakani said he tried and determined that it would take a real effort to see azound this tree. Asked if the Chin's issue is the enjoyment and use of their yazd. Mr. Paul Chin replied the use of both the yard and house, the overall ambiance. Commissioner Rodgers pointed out [hat varied rooflines aze proposed which offers better articulation of this house. Chair Garakani reiterated that this addition would not be visible from the Chin property as a result of the Magnolia tree and the second story is an already existing condition of the neighbor's home. Asked Mr. Pau] Chin what rooms are on the second floor of his home. Mr. Pau] Chin replied the master bedroom and a study. Commissioner Hunter pointed out that the Chins are already looking at a two-story structure from their home and that a mature hedge is in place as well as another screening tree, a Yew. She added that the use of an obscured glass, fixed bay window instead of a functioning clear window would not affect privacy on the Chin property. Mr. Paul Chin said that he has resided on this property since 1990 and always sees their house. Commissioner Uhl asked Mr. Paul Chin if he could offer any suggestion for a compromise. Mr. Paul Chin replied he wanted no perception of bulk and therefore no addition to this neighbor's house. Commissioner Nagpal asked staff if the setback requirements have changed in the last 10 yeazs. Saratoga Planning Commission Minutes of April 14 2004 Page 19 Planner Lata Vasudevan replied that about two years ago the Ordinance was amended regazding side yard setbacks for second stories, which extended the required setback. Will and Linda Kenigsberg, Applicants, 20067 Karn Circle, Saratoga: • Advised that they had offered the Chins the opportunity to go over their proposed plans and to view their house from their second story but were unsuccessful in doing so. • Said that Mr. Chin told them he does not want any modifications to their home. • Informed the Commission that they ran their plans buy the other neighbors and obtained a letter of support from the Homeowners Association, which represents 159 of the 176 families. • Said that their home is the same mode] as the Chin home. It is a beautiful house but the master bath does not match the rest. They want a larger closet in their master bedroom and an exercise room downstairs. • Stated that they have resided in their home here since 1971 and plan to live there for the remainder of their lives. They have zero intentions of selling despite what Mr. Chin claims is their motivation. Their children will likely live there after them. • Rebutted the points made in the Chin's written statement. • Regarding the charge that this addition results in visual pollution, their home right now is a two- story with flat walls. Their new design offers more character and articulation and is fully within required setbacks and design guidelines. • Pointed out that they are adding about 370 square feet to the existing 2,900 square foot total. The second floor addition will be setback. The height of the extension will be lower than the maximum height of the house. • Regarding the Chin's charge of environmental pollution, he explained that at the time he and his wife purchased this home, they had the option to buy a lazger model but elected not to. • In response to the issue of property values, they said that they cannot understand that argument by the Chins. As the value of this home improves, so does the value of their home. Their neighbors will not suffer by their improving this home. • Stated that [he Commissioners looked through their bathroom window and could see that no view is available into the Chin yard as a result of the magnolia tree. With this modification, only one window will face the Chin house and it will be obscured glass on a fixed window. There will be less opportunity than there is currently with the existing operating window. Ms. Linda Kenigsberg: • Said that they retained an architect to design their addition and he did an excellent job. His design will add beauty to the home and neighborhood. Mr. Will Kenigsberg added that they wanted an aesthetically pleasing addition to their home that did not look like an add on. Commissioner Nagpal thanked the Kenigsbergs for allow the Commissioners to go upstairs and see the view from [heir upstairs window overlooking the Chin property. Mr. Tim Evjenth, 20068 Karn Circle, Saratoga: • Stated that he has been a broker for 32 years and is a neighbor. Said that he too owns the same floor plan and has lived one year in this neighborhood. • Advised that any addition on this home adds value to the neighborhood and that no other neighbors are concerned about this proposed addition. Page 20 Saratoga Planning Commission Minutes of April 14 2004 • Added that if he could, he would do the same but does not have the necessary setbacks. Ms. Marylee Hoiness, 20031 Karn Circle, Saratoga: • Identified herself as a representative and former president of the Greenbrier Homeowners and Taxpayers Association. Stated that this proposal was discussed by the HOA this past week. Advised that as there is no Variance required or any view impediments, there is no reason not to support this application. Mr. Paul Chin thanked his neighbors for their excellent points and stated his chief concern being the perception of bulk, explaining that his is the only house impacted. Chair Garakani closed the Public Hearing for Agenda Item No. 2. Commissioner Nagpal: • Said that there is good screening on site and a fair amount of articulation with this addition. • Agreed with the staff report and recommendation to deny this appeal. Commissioner Hunter: Agreed. Said that since 1971, things have changed and people expect to have a lovely master bath today. Supported the denial of this appeal as this is a legitimate addition with good screening provided and therefore no problem. Commissioner Rodgers: • Also agreed. • Suggested that the view of this home from the Chin property will actually be better. • Stated that the second layer of setbacks does not create any impact. Pointed out that there is a magnificent screening magnolia. Stated her intent to vote with staff's recommendation. Commissioner Uhl: • Said that compromise is usually sought. • Stated that everything possible has been done to minimize bulk, height and size of this addition and equals a good compromise. • Expressed his support. Commissioner Schallop also agreed. Chair Garakani: Said that he does not like bulk and mass himself but with sufficient screening and articulation this project can be supported. Stated that staff looked at this proposal very carefully and he would be supporting the staff recommendation for approval of this addition. Motion: Upon motion of Commissioner Nagpal. seconded by Commissioner Hunter, the Planning Commission denied an Appeal of an Administration Design Review Saratoga Planning Cormission Minutes of April 14 2004 Page 21 approval (Application #04-042) to allow a 225 square foot ground floor addition and 167 square foot second story addition to an existing 2,900 square foot two-story home at 20067 Karn Circle, by the following roll call vote: AYES: Garakani, Hunter, Nagpal, Rodgers, Schallop and Uhl NOES: None ABSENT: Zutshi ABSTAIN: None Director Tom Sullivan advised that this is a final action on the part of the City. The only recourse for the Chins would be to file a civil action within 90 days with the Superior Court. *** PUBLIC HEARING -ITEM N0.3 APPLICATION #04 014 (397-13-0471 HURRAY 14330 Chester Avenue: The applicant requests Design Review approval to construct a new steeper roof and one-story addrtrons to an existing single story residence. Both the additions and the new roof will be greater than 18 feet in height; therefore the project requires Planning Commission approval. The maximum height of the proposed roof and additions is 22.5 feet. The proposed residence including garage will be 5,482 square feet. Materials and colors include a beige stucco exterior and brown the roof. The gross lot size is 42,776 square feet. The property is zoned R-1-40,000 (CHRISTY OOSTERHOUS) Commissioner Nagpal advised that she resides within noticing distance and will have to recuse herself from this item. She left the dais to sit in the audience. Associate Planner Christy Oosterhous presented the staff report as follows: • Advised that the applicant is seeking Design Review Approval for aone-story addition with a new steeper roof pitch that is greater than 18 feet in some areas, which requires Planning Commission approval. • Provided a technical correction to the staff report whereby the maximum height is 22.5 feet. • Described the house as approximately 5,300 square feet and using pale yellow stucco and a slate roof. The trees on site would be retained. The lot is 41,000 square feet and located within an R-1- 40,000 Zoning District. Stated that staff is supportive of this application and is recorrrmending approval. Chair Hunter sought clarification that the higher roof is on the main part of the house and the additions would have shorter roofs. Planner Christy Oosterhous replied correct. Chair Garakani opened the Public Hearing for Agenda Item No. 3. Mr. Scot Cunningham, Applicant's Representative: • Stated that the steeper pitch is sought to achieve the Province/Normandy style of architecture desired by the property owners. Chair Garakani closed the Public Hearing for Agenda Item No. 3. Sazatoea Planning Commission Minutes of Apri] 14 2004 Page 22 Commissioner Hunter said that she has no problem. This is a nice design that is well done and she is supportive. Chair Gazakani said that this addition will match the area and will look better with these additions. The design looks good. Commissioner Rodgers said that the only concern was the removal of impervious materials beneath Trees 8 and 9. Motion: Upon motion of Commissioner Hunter. seconded by Commissioner Uhl, the Planning Commission granted a Design Review Approval (Application #04-014) to construct a new steeper roof and one-story additions to an existing single-story residence at 14330 Chester Avenue, by the following roll call vote: AYES: Garakani, Hunter, Rodgers, Schallop and Uhl NOES: None ABSENT: Zutshi ABSTAIN: Nagpal *** Commissioner Nagpal returned to the dais fo]lowing the conclusion of Public Hearing Item No. 3. DIRECTOR'S ITEMS Director Tom Sullivan asked Chair Garakani to stop by the office to sign the Resolution for Item No. 2 in order to start the clock on the 90-day time frame during which any Court action would have to be filed. COMMISSION ITEMS Commissioner Hunter advised that she attended the Heritage Preservation Commission and that there are two new members of that Commission with one vacancy to be unfilled until October. Commissioner Nagpal expressed appreciation to Commissioner Hunter for her leadership as Chair over the past yeaz. Chair Gazakani congratulated Commissioner Rodgers for her marvelous job done tonight at her first meeting as a Commissioner. COMMUNICATIONS Verbal Staff reminded that the City is currently advertising for volunteers for a Citizen Advisory Commission for a General Plan Land Use Element Update. It is anticipated that the committee will meet over atwo- year period with monthly or bi-monthly meetings. Interested persons should contact the Planning Department for more information. Saratoga Planning Commission Minutes of April 14 2004 Page 23 Written better from Vini Sanxp regazding neighbor's fence color: Commissioner Hunter asked whether the Commission should consider an Ordinance to regulate the color of houses and fences on the Hillside. Director Tom Sullivan said that if a color is approved under a Design Review Approval, the owner must obtain an amendment in order to change the approved colors. However this home did not go through a Design Review process. Additionally, there aze no regulations about fence colors. Size, materials, height and setbacks are covered by Ordinance as well as how much fence enclosed area is allowed in Hillside Zoning Districts. There is nothing on colors. Asked if the Commission feels that such a regulation should be developed. Commissioner Rodgers asked how this would be implemented. Director Tom Sullivan said that an amortization schedule could be set up, however, this could create a huge Code Enforcement issue for the City. Commissioner Schallop suggested that it be limited to homes on the Hillsides that are visible from the valley. Commissioner iJhl questioned whether other cities have such rules. Commissioner Schallop suggested establishing benchmark communities. Mr. Vini Sarup, 12906 Pierce Road, Saratoga: Advised that he had discussed his neighbor's pink fence with him and the neighbor later painted his house trim and garage door the same pink as the fence. Chair Gazakani suggested this issue be added to a future agenda. Director Tom Sullivan advised that it would be a while before it comes up. Chair Garakani reminded that he wanted to include the issue of security cameras, which he talked over with Council. They suggested that this issue also be agendized for the Commission in the future. ADiOURNMENT TO NEXT MEETING Upon motion of Commissioner Hunter, seconded by Commissioner Nagpal, Chair Garakani adjourned the meeting at 10:47 p.m. to the next Regulaz Planning Commission meeting of April 28, 2004, at 7:00 p.m. MINUTES PREPARED AND SUBMITTED BY: Corinne A. Shinn, Minutes Clerk MINUTES SARATOGA PLANNING COMMISSION DATE: Wednesday, Apri128, 2004 PLACE: Council Chambers/Civic Theater, 13777 Fruitvale Avenue, Saratoga, CA TYPE: Regular Meeting Chair Gazakani called the meeting to order at 7:00 p.m. ROLL CALL Present: Commissioners Hunter, Garakani, Nagpal, Rodgers, Schallop, Uhl and Zutshi Absent: None Staff: Director Tom Sullivan and Assistant Planner Ann Welsh PLEDGE OF ALLEGIANCE APPROVAL OF MINUTES -Regular Meeting of April 14, 2004. Motion: Upon motion of Commissioner Nagpal, seconded by Commissioner Hunter, the Planning Commission minutes of the regular meeting of April 14, 2004, were adopted as submitted with corrections to pages 1, 2, 7, 13, 14 and 18. (6-0-0-1; Commissioner Zutshi abstained) ORAL COMMUNICATION There were no Oral Communications. REPORT OF POSTING AGENDA Director Tom Sullivan announced that, pursuant to Government Code 54954.2, the agenda for this meeting was properly posted on April 22, 2004. REPORT OF APPEAL RIGHTS Director Tom Sullivan 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. Saratosa Planning Commission Minutes of Apri128 2004 Page 2 *** PUBLIC HEARING -ITEM NO.1 APPLICATION #03-140 403-27-049 - A ellant DUVALL Site Location - 18325 Swarthmore Drive: Appeal of an Administrative Decision to DENY a Tree Removal Permit at 18325 Swarthmore Drive to remove a large Redwood tree. The tree in question is a 161-inch, mature Redwood and is located next to the driveway. (TOM SULLIVAN) (CONTINUED FROM MEETING ON APRIL 14, 2004) Director Tom Sullivan presented the staff report as follows: Reminded that at the last meeting, the Commission continued this item and asked that specific information be provided by the City's Arborist including providing recommendations for types and locations of replacement tree; whether the removal of this tree would harm the second nearby Redwood tree and whether the raised curb can be removed without further damaging this Redwood tree and a timetable from Mrs. Duvall for improvements if the Tree Removal Permit is approved. • Described the newest Arborist Report in which the Arborist recommends one 48-inch box tree as a replacement, planted at least 30 feet from the existing Redwood. Elm or Oak trees are named as possible replacement species. The City Arborist states that the removal of this tree would not adversely impact the second nearby Redwood tree. Additionally, the rolled curb could be removed without impacting this tree. There is the potential for additional curb and gutter damage within another 10 to 15 yeazs. Overall, the tree is rated as being in good condition and the appraised value is $18,700. Replacement values were provided in the report. Reported that Mrs. Duvall has asked for a two to three month time frame. Explained that a letter from PG&E to Mr. Corson has been provided and has a letter from Mrs. Duvall indicating her position. The Commission has been provided with copies of the previous staff report and attachments. • Advised that the staff recommendation has not changed. • Suggested that the Chair reopen the Public Hearing and that new information be addressed this evening. Commissioner Hunter asked if the Redwood tree is considered native to the area. Director Tom Sullivan replied [hat the Redwood is native to California but not indigenous to the flatlands of Santa Clara County. Commissioner Hunter asked whether a Redwood tree is held in greater esteem than, for instance, a Chinese Elm. Director Tom Sullivan replied yes, it is per the Tree Ordinance. It is one of approximately 11 trees called out. Commissioner Rodgers pointed out that while the Ordinance does not state whether any of the tree species listed aze native to the area, except for the Redwood, the others are native species for the area. Chair Gazakani opened the Public Hearing for Agenda Item No. 1. Saratoga Planning Commission Minutes of Apri128 2004 Page 3 Mr. Jim Dillinger, Applicant's Representative and Tenant, 18325 Swarthmore Drive: • Stated that he is speaking on behalf of Mrs. Duvall and himself. • Said that he can see that the Planning Commission takes this issue seriously and thanked the Commission for that, adding that he is impressed with the demeanor of the Commissioners. Said that he has some concerns as a result of the previous meeting. One is the statement that trees are an asset and not a liability. Agreed with that sentiment but added that in some instances, some trees can be a liability. • Reported that Mrs. Duvall has the desire to remove this tree, a decision that was based on advice from two certified arborists. As a responsible homeowner, she applied to the City for a Tree Removal Permit. Pointed out that the options offered by the City's Arborist aze only temporary. • Disagreed that the letters from Mrs. Duvall's azborist were not professional. Rather they were simply follow up letters to Mrs. Duvall for her personal records. She submitted them with her request for a Tree Removal Permit simply as substantiation of her request. These azborists are qualified and have been azound for a long time. In fact, their license numbers aze lower and therefore longer held than the City's Arborist. • Said that the newest report provided by Mrs. Duvall's Arborist addressed the concerns the Commission might have. The final conclusion was that the only viable long-term/permanent solution is removal of this tree. Anything less is simply a temporary solution. • Expressed concern with the City's lack of desire to deal with the street issues for two years. That street will be significantly more damaged in two years time. If the City waits, it represents negligence whereby people can get hurt. • Reminded that if the tree is retained, the roots on two sides (driveway and street) will be impacted. • Suggested that even cutting the roots on one side makes the tree's viability questionable. • Said that no one would be able to find an arborist that is willing to guarantee that this tree won't fall over if its roots aze cut. • Countered the comment made by one person that standing water is a fact of life by saying this does not include lazge puddles of water that aze the result of the uprooting of a street by a tree's root system. This puddle creates a very real problem both with mud and the potential of mosquito infestation. • Stated his opinion that the purpose of the City's Tree Ordinance is not to stop homeowners from being responsible but rather to stop the arbitrary removal of trees. In this case, Mrs. Duvall is trying to be a responsible and good citizen by removing all liability and all danger to the public. Commissioner Hunter asked whether the two azborists who provided Mrs. Duvall with reports were also providing estimates for removal of this tree. Mr. Jim Dillinger replied no. They were only asked to provide Mrs. Duvall with advice on what to do with this situation. Commissioner Nagpal asked Mr. Jim Dillinger if this azborist is here this evening. Mr. Jim Dillinger replied no, the cost to have an azbotist in attendance at this meeting would be $150 per hour. Commissioner Nagpal asked Mr. Jim Dillinger how long the driveway has been in this condition. Saratoga Planning Commission Minutes of Apri128 2004 Page 4 Mr. Jim Dillinger replied that it appears about 10 yeazs per the PG&E letter. Commissioner Nagpal asked if any interim measures were attempted during that 10-year period. Mr. Jim Dillinger replied no. Commissioner Hunter asked Mr. Jim Dillinger about his liability concerns as a renter of this property. Mr. J11T1 Dllhtlger adV1SCd that he had dlsCUSSed the condition of the driveway when he initially spoke with Mrs. Duvall about renting her property and he was told that she was making every effort to remove the tree and repair the driveway. Reminded that he currently parks his truck to prevent people from tripping. Stated his concern that if someone were to trip and fall, he would become involved in liability issues. Mr. Tom Morman, Coldwell Banker, 12029 Sazatoga Sunnyvale Road, Saratoga: • Identified himself as a real estate broker for Coldwell Banker who worked with Mrs. Duvall for yeazs. • Said that he is here to speak out on her behalf. • Stated that some flexibility is required when problems like this come up. Commissioner Hunter asked Mr. Tom Morman whether the replacement of the concrete driveway with pavers and the retention of this tree could enhance the value of this home. Mr. Tom Morman: • Stated that a mason has told Mrs. Duvall that this tree must be removed for the new driveway. • Pointed out the conflicting azborist reports. • Said that property values are in the eye of the beholder. • Said that a mistake was made in placing this tree too close to the driveway. • Advised [hat he made a similaz mistake in the 1970s and wonders if the current owners of that property are now faced with a similaz dilemma. • Expressed his hope that, as a government body, the Planning Commission will be flexible. Commissioner Rodgers asked Mr. Tom Morman whether he believed that the property value would be reduced with the retention of this tree. Mr. Tom Morman replied that it would depend on the buyer. With conflicting opinions, he would recommend the removal of this tree. Commissioner Schallop asked Mr. Tom Morman whether he is saying that a buyer would want to buy certainty. Mr. Tom Morman replied yes. Ms. Christa Werling, 2847 Gazelle Drive, San Jose: • Identified herself as a friend of Mrs. Duvall. • Said that she has arguments on the criteria. Saratoga Planning Commission Minutes of April 28 2004 Page 5 • Said that there is necessity for this removal based upon damage. The reason given to deny this removal is that there aze altematives available. However, of the two options offered, one offers a 10 to 20 yeaz solution while the other offers a 15 to 25 yeaz solution. It is unreasonable to offer such a short-term solution. • Described Criteria #4 (number of species, size, location, etc). Pointed out that removal of this tree is not expected impact the viability of the second nearby Redwood tree and that there are other healthy and large trees available on this property. • Pointed out that the property value of where this tree stands is impacted. If that tree stays, this situation would have to be disclosed upon sale of the property. • Regazding Criteria #5, she advised that poor long-range planning took place when this tree was originally planted in this location. • Regarding Criteria #9, which pertains to economic enjoyment of the property when no feasible alternatives to removal exist, said that the alternatives offered are not practical or permanent. Mr. Drew Kelly, 5790 Hillbright Circle, San Jose: • Identified himself as a Mechanical Engineer for PG&E. • Explained that he wrote one of the letters from PG&E and became of friend of Mrs. Duvall's after he had done that letter. • Stated that future growth of this tree will destroy the future driveway. • Questioned the charge of lack of maintenance regarding this tree, saying that no maintenance could have been done that would have prevented the growth of this tree. • Cautioned that the unintentional message to Sazatoga's residents is "don't plant trees." Commissioner Hunter asked about the potential impact on utilities if too many trees are removed, increasing energy use to defray the loss of natural shade and cooling provided by trees. Mr. Drew Kelly said that he supports conservation of trees located in the right place on a property. That is a great thing. This is the wrong tree in the wrong spot. Commissioner Hunter asked if there is cause for the removal many trees due to their proximity to gas lines. Mr. Drew Kelly replied that this is the largest tree he has ever seen on top of a gas line. This is not the ordinary tree situation. Commissioner Rodgers asked Mr. Drew Kelly to explain the scope of his duties for PG&E. Mr. Drew Kelly advised that he is the Gas Distribution Engineer who provides technical support for the entire Santa Clara Valley area. Commissioner Nagpal asked Mr. Drew Kelly whether PG&E has a program to evaluate trees in relation to gas lines. Mr. Drew Kelly replied no. Commissioner Nagpal asked Mr. Drew Kelly if his letter on PG&E letterhead is personal or professional correspondence. Corrunission Minutes of A Mr. Drew Kelly replied that it is based upon his individual evaluation on PG&E letterhead. 6 Mr. Olegario G. Lara, 18324 Swarthmore Drive, Saratoga: • Reported that this tree has been damaging this driveway for over 12 years. In the last 8 to 10 years or so, the driveway has been cracking and buckling. Advised that he has resided on this street for 42 yeazs. • Said that this problem could have been resolved years ago when the driveway first cracked and began lifting up. Mr. Elizabeth Lara, 18872 Devon Avenue, Saratoga: • Thanked the Commission for spending the time to deal with the issue of this tree. • Pointed out that the City's Arborist gave Mrs. Duvall several options to repair her driveway and that nothing has been done over the last year to resolve this situation. Since that time, the City's Tree Ordinance was adopted to help protect the City's tree canopy and culture of what our town represents. • Provided photographs of Redwoods in the City that are located near hardscape. • Said that her father has an Ash tree and has had to do water, sewer and driveway repairs over the years. • Suggested that thinking outside the box should occur in solving this situation. • Said she was available for any questions. Mr. Kazl Clemons, 18349 Swarthmore Drive, Sazatoga: • Said he is an eight-year resident of the street and that he is in favor of keeping this tree. • Pointed out that the Tree Ordinance is now even tougher than it was when this Tree Removal Permit was denied on appeal a year ago. • Advised that mosquitoes travel 12 miles or more and that there are other sources of mosquito infestation than a puddle on this street. Said he had made a suggestion to Director Tom Sullivan via an email message that the slab is pulled up to see what is going on beneath. Right now, there is a great deal of speculation. This might save Mrs. Duvall money in the long run using these viable alternatives to removing this tree. • Reminded that Redwood trees intertwine their roots. • Restated that he is in favor of keeping this tree if at all possible. Commissioner Nagpal asked Mr. Clemons if he were a tenant of Mrs. Duvall. Mr. Karl Clemons replied no, he is a homeowner on this street. Ms. Nancy McGuire, 18336 Swarthmore Drive, Saratoga: • Reminded that at the last meeting, she heard hysteria of the potential of exploding gas lines. However, since that time, a letter from PG&E states that there is no eminent danger and that they are continuing to monitor the situation. • Assured that she can sleep without fear. • Said that Redwood trees aze stable and sturdy trees and that having these two close together enhances their strength as their roots intertwine. Saratoga Planning Commission Minutes of Apri128 2004 Page 7 • Reported that the objective Arborist's report (the City's) gave a 100 percent stability ranking for this tree. There is no liability to Mrs. Duvall, only if gross negligence occurs per one insurer he questioned. • Pointed out that the four households closest to this tree are the ones who have been fighting to retain this tree over the last 1.5 years. • Said that it is reasonable to expect the property owner to maintain the property. • Said that it is not unusual to call Roto Rooter every six months or so to deal with roots that interfere with Sewei lines. Additionally, She herself experienced a rat infestation and learned that these rats were accessing her attic from a nearby Oak tree. However, she never considered the removal of this tree as a solution to the rat problem. • Stated that Mrs. Duvall is within her rights not to maintain her property. Mr. Tom Corson, 18337 Swarthmore Drive, Saratoga: Reported that he has provided documents pertaining to the insurance liability issue. • Advised that he spoke with both an attorney and an insurance agent. • Stated that it is nonsense to say that nothing can be done to correct this situation. Rather a property owner must deal with problems early on. • Pointed out that he has a crack in his own driveway and it cost only a couple of hundred dollars to correct. • Said that if a tree falls onto his house, his insurance pays the costs. • Stated that the issue is the tree and not the driveway. If Mrs. Duvall's driveway is repaired, her insurance company will be happy. • Said that staff was being generous in saying that Criteria #5 and Criteria #9 were met. • Said that two Redwoods planted near each other are more stable than one standing by itself. • Reminded that the Tree Protection Ordinance was cazefully crafted and that if the cost to retain this tree is not exceeding its appraised value, the tree should be kept. • Restated his opinion, given at the last hearing, that this tree needs and deserves the protection by the Planning Commission. • Agreed that trees aze assets and not liabilities as expressed by Commissioner Uhl. • Asked the Commission to implement the Ordinance with respect to this particular tree. Chair Garakani said that one could understand the reasons Mrs. Duvall states for seeking removal but what is a reason for keeping this tree. Mr. Tom Corson said that he has watched numerous trees get destroyed over the years. Chair Garakani asked Mr. Tom Corson if he enjoys looking at trees. Mr. Tom Corson replied yes. They provide enjoyment, seclusion and beauty. This tree is irreplaceable. Mr. Tim Dillinger, providing rebuttal on behalf of Mrs. Duvall: • Said that while the use of pavers is recommended in the Arborist's Report, at this point with this mature tree, this is not recommended per Mrs. Duvall's azborists and mason. • Said that the PG&E letter says "no problem." However, there is a problem and it is not just today. PG&E says they will watch it but since PG&E is operating under budget constraints at this time, if there is no problem today they will not fix it today. While the problem is not eminent, it is a less than desirable situation. Saratoga Planning Commission Minutes of Apri128 2004 Page 8 • Stated that this tree should not have been planted in this spot 43 yeazs ago. Mrs. Duvall should not be penalized for an inherited problem. • Pointed out that her original request for a Tree Removal Permit was approved by staff and later appealed by Mr. Tom Corson. Mrs. Duvall was not able to attend the original appeal hearing as she was at UCLA undergoing heart surgery. Argued that Mrs. Duvall has been trying to deal with this for a long time. While the City wants to wait before allowing the removal of this tree, this Redwood tree will continue to be a problem until it is removed. The City's Arboris[ has not provided a single viable solution. • Stated that the City Arborist was given specific mandate and his report does not represent an unbiased recommendation. He only answered the specifically asked questions. • Reported that the City's Arborist told him that if this tree were his, he would take it out. • Countered that Mrs. Duvall's azborist gave an unbiased opinion and that it is not fair to impose this burden on Mrs. Duvall, to make a homeowner spend money needlessly. • Said that while a tree is an asset, this specific tree is a liability. • Stated that he cares about the entire situation, the tree, the street and the driveway. • Said that he would not want to try to buy this home from Mrs. Duvall until this is solved. Chair Gazakani asked if Mr. Dillinger has looked at the price of removing the roots and fixing the driveway per the City Arborist's recommendations. Mr. Jim Dillinger replied that Mrs. Duvall has not sought specific bids yet due to the uncertainty of the recommendations. Chair Garakani asked Mr. Dillinger if he could provide an estimated cost. Mr. Jim Dillinger said that his guess would be approximately $5,000, adding that he has worked both as an insurance agent and contractor in the past. Commissioner Rodgers said that the City's Arborist was given the charge to find options for this tree. Mr. Jim Dillinger said that with this appeal, the City's Arborist was instructed to report back as to whether cutting the roots is viable and if so how to go about doing so. In conversation with this Arborist, he told me it would be gone if it was on his property. Mr. Mark Beaudoin: • Said that he is an Arborist. • Stated that this is a policy issue. Described an urban forest as consisting of a mixture of young, mid-aged and old trees. Said that if a mistake has been made in locating a tree, a lot of trouble occurs for the owner to remove that tree. It becomes safer to not plant trees at all, especially Oak and Redwood Trees. Chair Garakani closed the Public Hearing for Agenda Item No. 1. Commissioner Hunter asked staff for clarification on the instructions provided to the City Arborist. Commissioner Uhl also questioned the instructions given. Saratoga Planning Commission Minutes of April 28 2004 Page 9 Director Tom Sullivan said that the first instruction, with the original report, was to investigate the Urban Soils Replacement Process and to develop alternative methods of replacing the driveway while saving the tree. The Arborist was not specifically asked if the tree should or should not be saved as staff had made the decision to retain the tree. Commissioner Uhl said that a legitimate concern exists regarding future liabilities. Is there any advice regazding the future removal of this tree. Director Tom Sullivan said that the criteria, as it exists today, does not say that a feasible alternative has to last forever. The property owner can apply again but that it would probably be in another 20 years. Commissioner Schallop asked if other alternatives could be more long term. Commissioner Uh] suggested that a 10 to 20 year solution is a long time and reminded that there is no stability issue with this tree. Commissioner Schallop: • Said that there is some uncertainty about the impact of root cutting and that it is unclear how long this solution will last. • Pointed out that using pavers is more expensive than concrete. • Questioned what message this sends to the community. • Said that one reaction might be that property owners might cut down a tree before it becomes protected. • Advised that several people from the community approached him following the last hearing on this tree saying that the City's position does not make sense. • Said that this must be looked at from a practical standpoint. Commissioner Nagpal pointed out that 10 years have passed and that many driveways are doing well despite nearby trees. Commissioner Schallop: • Said that there is no way to know if 10 years from now this owner might have to come back as these proposed repairs have a potential ]ifespan of 10 yeazs. • Pointed out the new issues brought forward today, the tree replacement recommendation, the impacts on the adjacent Redwood Tree and the impacts of replacing the rolled curb and gutter. • Said it is important to balance the impact of cost versus certainty of the solution. • Stated his agreement that this is an exceptional tree but planted in the wrong location. • Expressed concern that this issue devalues being a property owner in Saratoga. Commissioner Uhl asked where financial liability comes to play in the Ordinance. Director Tom Sullivan replied under Economic Enjoyment and Use of the Property (Criteria #9). Commissioner Schallop reminded about the significant cost differences between cement and pavers. Commissioner Uhl questioned when the cost is too great. S Minutes of Apri128 2004 Page 10 Commissioner Nagpal said that it is important to determine whether the preponderance of criteria does or does not support this request. Commissioner iJhl said that there is no evidence that financial liability supports removal of this tree. Chair Gazakani reminded that the estimated cost of root cutting is about $5,000 and the cost to replace the tree would also be about $5,000. Therefore, there is no financial issue. However, Mrs. Duvall is very frightened about this situation and the potential of this tree falling over. The picture shows a puddle of water and roots tend to grown toward water sources. Director Tom Sullivan reminded that the City Arborist's report says that rolled curb and asphalt can be removed and those roots trimmed whenever necessary. Commissioner iJhl asked the difference in cost to fix versus remove the rolled curb and gutter. Commissioner Schallop: • Said that the applicant was not asked to do so. It would be an unfair burden on this applicant. • Stated the importance of using the same criteria for an existing tree on a developed property as for a property slated for new construction. • Provide his rundown on the required criteria. • Criteria #1 -Condition of Tree - There is nothing to say that this is not a healthy tree. • Criteria #2 -Necessity of Removal -The driveway is damaged. The solutions include grinding down the roots and putting pervious pavers down for a new driveway. The questions raised include length and certainty of this solution and the cost. Criteria #3 -Topography -Agree with staff that this is not an issue. • Criteria #4 -Number of Trees, Species, Size, etc. -Agreed that this is an exceptional tree that stands out. The City's Arborist has established a replacement value. • Criteria #5 -Age and Number of Trees the Property is Able to Support -Agree that a replacement tree would be required if this appeal is granted and the tree removed. • Criteria #6 -Alternatives -Agree that there are alternatives available. The question is whether it is appropriate to mandate alternatives where certainty and cost are in question. However, they may be abetter trade off than removal of the tree. • Criteria #7 -Contrary to Purpose -This is a policy question. When the tree is destroying the driveway, the potential tradeoff to removal is replacement. • Criteria #8 -Any other Information -New information has been provided, including competing PG&E letters, potential gas line impacts and a staff report that is no longer accurate. • Criteria #9 -Economic Enjoyment -This is hazd to apply. It is a tough call and somewhat subjective. • Stated that on balance, he is not comfortable that these criteria can be met. Commissioner Hunter advised those in attendance that the Planning Commission is appointed and has to this point spent 10 hours on this matter. If each Commissioner gives their own evaluation of the required criteria, this could run hours longer. Chair Garakani pointed out that this is the first Tree Removal Permit request under the new Tree Ordinance and is a sensitive issue. The Commission will ]earn from this process. Said that trees are Saratoga Planning Commission Minutes of April 28, 2004 Page 11 here to serve human beings. This represents an unbalanced situation as some enjoy this tree while others suffer as a result of this tree. The question is how to balance the issue. Commissioner Nagpal said that she has issue with the economic issue and pointed out that Mrs. Duvall did not raise this. Chair Garakani agreed that Mrs. Duvall is most concerned about liability. Commissioner Nagpal: • Provided an itemized list of issues that she came had developed based on what the applicant has stated during testimony today and last time. • Stated that the gas line issue no longer concerns her with the most recent PG&E letter dated April 15, 2004. • Identified the second issue as being the potential for people getting hurt on the driveway. • Said that it appeazs that Mrs. Duvall has not looked into the Arborist's recommendations. • Stated that she is inclined to support the City Arborist's recommendations. In the face of competing azborist reports, she would support the City's Arborist. Commissioner Schallop asked whether the limited scope in the instructions given to the City's Arborist changes that opinion. Commissioner Nagpal: • Replied that she has no problem with the instructions provided to do what is necessary to save the tree because tree protection is the basis for the Ordinance. • Stated that this is a policy issue and it is important to address policy regarding existing trees as well as trees to be removed to allow new construction to occur. • Said that she had been concerned about cutting roots on two sides. • Disagreed with the Applicant's argument that this is not a great species. • Said that Mrs. Duvall's liability argument is solved if issues are fixed. • Stated that if this were her own driveway, she would have tried to fix it years ago. Chair Gazakani: • Said that the purpose of the Tree Ordinance is to preserve trees. • Pointed out that he helped to write this Ordinance. • Said that not only older trees but also young trees are important. • Expressed concern that perhaps one message inadvertently being sent is to cut trees before they get too big to be able to cut. Commissioner Uhl reminded that this tree could be cut at a later date. At this time, none of the findings can be met. Commissioner Nagpal: • Said that it is a valid issue to investigate how trees aze viewed during construction review. • Stated that it would be worth another discussion to look at this Ordinance. • Said that she believes that Mrs. Duvall is trying to do the right thing but that the City's Arborist is telling us that the tree will be stable if certain steps are taken. Minutes of Apri128, 2004 Chair Garakani asked at what cost would removal be preferable to retention. Commissioner Nagpa] replied when all criteria are considered. Chair Gazakani reminded that Mrs. Duvall is scazed. Commissioner Hunter pointed out that Mrs. Duvall has owned this house for 32 years. 12 Chair Garakani said that the Planning Commission is trying to determine what is fair to this homeowner, her neighbors and the cormunity. Commissioner iJh] said that the message being sent out to the community is that trees aze an asset m Saratoga and that everything must be done to save trees. Driveways aze a liability, not trees. Commissioner Nagpal pointed out that this same request came to the Planning Commission a year ago and that no efforts have been made since. Commissioner Uhl stressed the importance to demonstrate economic impacts. Chair Garakani pointed out the costs of replacement and to fix the street. Commissioner Uhl said that he was not sure the Commission could impose the street repairs on this property owner but that there is nothing to support removal at this time. Commissioner Nagpal reminded that there is an appeal process available to Mrs. Duvall whereby she can go before the City Council. Commissioner Schallop said that if appealed, perhaps Mrs. Duvall would be provided some counsel by the City Council. Commissioner Rodgers: • Stressed the fact that i[ is unlawful to remove a protected tree per the Tree Ordinance. Said that if the nine required criteria could be met then a permit can be issued for removal of a tree. Said that the Commission denied this request last year using Criteria 1 through 5 of the Tree Ordinance and now need to consider Criteria 6 through 9 Said that the balance starts with preservation of trees. It is up to the property owner to prove the necessity of tree removal. However, if plausible alternatives to removal are available, those alternatives should be given priority and consideration. • Said that the cost is not just for the driveway repair now but we also need to factor cost over the yeazs that it should have been maintained but we have no solid information on cost to use in Criteria #9. • Reminded that no one says that this owner cannot come back in the future. The denial should e without prejudice. Said that the original request stated a feaz of tripping on this driveway. It is clear that this driveway has to be replaced. The gas supervisor with PG&E says that this tree is not a problem. • Poin[ed out that the City's Arborist says if the roots are cut, this tree will be stable. However, if future damage occurs, this owner can reapply. Saratoga Planning Commission Minutes of Apri128 2004 Page 13 Motion: Upon motion of Commissioner Nagpal, seconded by Commissioner Uhl, the Planning Commission denied an appeal and upheld the Administrative denial of a Tree Removal Permit (Application #03-140), without prejudice to allow the property owner to reapply in the future if conditions change, on property located at 18325 Swarthmore Drive, by the following roll call vote: AYES: Hunter, Nagpal, Rodgers, Uhl and Zutshi NOES: Garakani and Schallop ABSENT: None ABSTAIN: None Chair Garakani advised that this request has been denied and that Mrs. Duvall has 15 days to appeal this action to the City Council. *** PUBLIC HEARING -ITEM N0.2 APPLICATION #04-041 APN#393-36-026 WU/CHEN 19708 CHRISTOPHER DRIVE: The applicant proposes to demolish an existing two-story home and construct a new 4,492 square foot, two- story home. The parcel is zoned R-1-20,000 and the General Plan designation is RLD (Residential Low Density). The height of the structure is proposed to be 25.86 feet. A [wo-car attached garage with a two-car carport is proposed for the site. The existing circular driveway is to remain and the swimming pool is to be demolished. (ANN WELSH) Assistant Planner Ann Welsh presented the staff report as follows: • Advised that the applicant is seeking to demolish an existing two-story home and construct a new 4,492 square foot, two-story home. No trees are proposed for removal and the impervious coverage totals 46.3 percent. The existing pool is to be removed. • Stated that the new home will include a slightly expanded footprint and a maximum height of 25.5 feet. • Said that the neighborhood consists of a mix of one and two-story homes. • Advised that the minimum setbacks are exceeded. Described the architectural style as being Contemporary. The design is consistent with the Design Guidelines and staff recommends approval. Commissioner Nagpal asked if staff had any discussion with the applicant about being at the maximum lot coverage and if the applicant might be willing to give up any square footage. Planner Ann Welsh replied that staff had not discussed a reduction. If necessary, the applicant could possibly reduce the second floor. Commissioner Hunter questioned categorizing this home as being a Contemporary architectural design. Planner Ann Welsh agreed that this design is hard to categorize. It fits into the general category of Contemporary design with its simple lines, not a lot of ornamentation and the scaled down entrance. Commissioner Hunter agreed that this is a simpler design that is not ornate. Saratoga Planning Commission Minutes of Apri128 2004 Page 14 Commissioner IJhI asked how tall is the existing home. Planner Ann Welsh said she did not know. Chair Gazakani, upon hearing a cell phone ring in the audience, asked staff what the general rule is for cell phones. Director Tom Sullivan replied [hat they should be turned off during public meetings. Commissioner Zutshi asked if there have been any additional communications with the neighbors who had concerns about this project. Planner Ann Welsh said that she spoke with them today and they are still concerned with the sale of this home fitting into the neighborhood. She went out and verified setbacks with them by measuring them out. This will be a larger home than the neighbors' but is similaz in height to the two-story home, located two doors down. Chair Garakani opened the Public Hearing for Agenda Item No. 2. Mr. Dick Fang, Project Architect: • Said that he is representing the property owners. • Described the lot as 20,000 square feet with an existing 2,800 square foot home. The existing height is 22.5 feet. Two big maple trees will be retained and the driveway will be curved azound them in order to preserve them. • Described the second floor window placement and said that existing on-site screening trees exist. They are not removing any trees and tree protection fencing will be installed during construction. The garage door will be side facing and therefore not visible from the street. The driveway leading from the existing driveway to the new garage will be interlocking pavers. • Said that the house will consist of concrete shake tiles that are flat rather than curved. Their color is neutral. • Stated that this design is not contemporary but more Mediterranean. • Said he would be available for questions. Commissioner Hunter congratulated Mr. Fang for using aside-loading garage, which will be a real asset to this house as it makes the front of the house more attractive. Commissioner Nagpal asked if this would be a two-caz gazage. Mr. Dick Fang said that it would be atwo-car garage with atwo-car carport. Mr. Phillip Wu, Owner/Applicant, 19708 Crestbrook Drive, Saratoga: • Said that he has followed the City guidelines in designing his home and met with neighbors [o show them the plans. Stated that no issues were raised and that he hopes the Commission will approve his application. Commissioner Nagpal asked if this house would be the lazges[ on the street and whether any consideration has been given to reducing the size while still meeting his family's needs. Saratoga Planning Commission Minutes of April 28 2004 Page 15 Mr. Phillip Wu replied that the house next door is about 3,100 to 3,200 squaze feet. The other homes, which were constructed in the 1956, aze by today's standards small and out of date. Reminded that the City allows up to 4,500 square feet on a pazcel this size. Chair Garakani said that if the City allowed for a larger home, they would want more square footage. Commissioner Nagpal asked if this was currently the tallest house on the street. Mr. Phillip Wu advised that there are approximately five homes on this street. Three are two-story and two aze one-story homes. Commissioner Nagpal asked if the new home would be three feet taller. Mr. Phillip Wu replied yes. Commissioner Hunter said that she thought his home was one of the prettiest houses when she first saw it 22 years ago. She added that she thinks it is beautiful now and asked if there are any other Mediterranean style homes in the neighborhood. Mr. Phillip Wu said that in terms of function, his current home is pretty old. There is no family room and the staircase is close to the front entrance and is too steep. Said that he has the right to keep or change this home. Commissioner Hunter agreed and said she had just wanted to state it is a pretty home. Mr. Jim Stillman, 19740 Braemar Drive, Sazatoga: • Said that this is a neighborhood with different style houses. Said that there are two other homes of this same style so there will still be others left like it. • Informed that he looked at the plans today and find it to be a nice design that will fit in nicely with the neighborhood. • Said that he talked with Mr. Wu and hoped that there might be some latitude to change materials. Chair Garakani said that normally the project must match the color board approved with the project Mr. Jim Stillman said that he recommends the use of brick instead of stone. Commissioner Uhl asked Mr. Jim Stillman if he has any concerns about bulk. Mr. Jim Stillman replied no. Commissioner Nagpal asked Mr. Jim Stillman the squaze footage of his own home. Mr. Jim Stillman said his home consists of about 3,000 square feet on a quarter acre. Mr. Dick Fang, Project Architect, said that the stone they are proposing is a unique thin material that is not too different from brick. Chair Garakani closed the Public Hearing for Agenda Item No. 2. Commission Minutes of A 16 Commissioner Zutshi said that she too likes the side facing garage and said that this project is fine with her. Commissioner Rodgers said that she likes the smaller scale entryway. Commissioner Uhl expressed appreciation for the preservation of trees and for the use of pervious surfaces on the new portion of the driveway. Said that bulk had concerned him but does not appeaz to be an issue with the neighbors. Commissioner Hunter said that this is the beginning of a Mediterranean phase in the Golden Triangle Area. She added that she appreciates the side-loading gazage and is okay with this project. Commissioner Nagpal said that she echoes what has been said and was also concerned about size. One positive is the fact that this is a corner lot that is larger. Said that instead of brick, as proposed by a neighbor, she prefers the stone proposed by the applicant. Chair Garakani said that everything looks good and that there are plenty of trees to screen the house Motion: Upon motion of Commissioner Hunter, seconded by Commissioner Nagpal, the Planning Commission granted a Design Review approval to allow the construction of a new two-story residence on property located at 19708 Crestbrook Drive, by the following roll call vote: AYES: Garakani, Hunter, Nagpal, Rodgers, Schallop, Uhl and Zutshi NOES: None ABSENT: None ABSTAIN: None *** PUBLIC HEARING -ITEM N0.3 APPLICATION#03-z1x arrvrr~w-r~-uu~ .~~~~-~"" "'-- - Villa Oaks Lane: The applicant proposes to subdivide a 29.28 acres property into five clustered lots with an average lot size of 1.73 acres. The remaining 19.49-acre portion of the property is to remain in open space with a pedestrian, equestrian trail winding through the open space. Access to the property is to be via a cul-de-sac, which egresses onto Mount Eden Road. An emergency access road is proposed from Vista Regina Road to the cul-de-sac. The property has a general plan designation of RHC (Hillside Conservation) and is zoned HR (Hillside Residential District). (ANN WELSH) Assistant Planner Ann Welsh presented the staff report as follows: Advised that the applicant is proposing to subdivide a 29.28 acre lot into five lots, clustered in a 10 acre azea, with the remaining 19.49 acres to remain open space with a pedestrian and equestrian [rail. The lots would range from one to three acres with average slope of 21.8 percent. There is a Riparian Corridor on the property. • Said that there is no public road access and that a 60-Foot easement road accesses the property. Saratoga Planning Commission Minutes of April 28 2004 Page 17 • Stated that the Zoning is Hillside Residential, which requires a reduction in lot size. The five lots would require 14.3 acres of open space. The applicant proposes to provide 19.49 acres, which is greater than required. • Explained that clustering these residential lots reduces the impervious coverage and no single lot can be smaller than 20,000 square feet. Eight lots could be developed so this project is less than maximum. The fact that no residence may exceed 7,000 square feet will be addressed during Design Review. • Said that the use of cluster lots results in the preservation of natural terrain. Said that during the site visit, some of the Commissioners requested that grounds for denial be pi0vided. Said that iri oidei t0 deny this request, the finding must be made that the Tentative Map is not consistent with the General Plan and/or Specific Plans; the design of the Tentative Map must be inconsistent with the General Plan; the site must be found to be physically unsuitable for the type of development proposed; the site must be found not suitable for the proposed density; the development must be found to likely cause environmental damage and likely to cause public health damage. • Advised that staff does not believe those findings can be met for denial as there has been considerable geotechnical review of this property. • Added that the Hillside Specific Plan allows clustering as long as sufficient open space is provided. • Recommended approval. Commissioner Nagpal asked if al] findings must be made. Director Tom Sullivan said that to deny, only one finding must be made but with specific reasons. Commissioner Hunter expressed concerns about the volume of water in the Riparian Corridor. Planner Ann Welsh said that each property owner is required to retain water runoff on site. A condition of approval requires compliance with C-3 requirements that address retaining water on site. Commissioner Hunter said that including large basements with the corresponding soil removal sounds like setting this area up for disaster. Director Tom Sullivan replied that the Basement Ordinance requires geotechnical report to qualify a property for a basement and reminded that the concrete used for a basement actually helps to stabilize an area. Chair Garakani asked if the maximum square footage of 7,000 square feet for each residence includes the basement space. Planner Ann Welsh replied no. Basement space is not usually counted. She reiterated that the City has to comply with C-3 requirements as best as possible. She said that a geotechnical engineer and designer of water retention systems would design a system for this site. Thirty acres should be able to retain the storm water from five houses. Commissioner Hunter expressed concern for development of property that ranges from 21 to 36 percent slope and said she believed that the higher end was considered not developable. Commission Minutes of Apri128, 2004 18 Planner Ann Welsh replied that it is the three-acre parcel that has the 36 percent slope but that there is a development area that would be less than that on the property. Commissioner Uhl asked if the actual homes would go through Design Review. Planner Ann Welsh replied yes and said each lot would also go through an individual geotechnical review process. Commissioner Hunter asked whether this property was previously determined to be not acceptable for development. Planner Ann Welsh said that a previous owner had a hard time getting the geotechnical approval but it was for a lazger project with eight lots. He sold this property to Mr. Wu. Commissioner Uhl asked if geotechnical review would be based upon specific design of each home Planner Ann Welsh cautioned that [here is a certain entitlement to build on an approved lot. Commissioner Nagpal: Thanked Planner Ann Welsh for the guidance on denial findings. • Asked about traffic analysis and suggested that it include both an expanded area and weekends. • Said that she would like a better understanding of the geotechnical issues and that she recognizes that the owner has done additional borings and geotechnical studies. Questioned whether approving these lots would create stability issues for other surrounding properties. Asked if a Biological Resources Survey has been done. Planner Ann Welsh replied no. Commissioner Nagpal: Suggested that such a survey be sought, as there could be sensitive issues there. • Asked about the Cultural Resources and about the Geotechnical, including whether they would have to go into bedrock. Planner Ann Welsh replied that they would have to. Commissioner Nagpal asked about indirect and direct impacts on the Ripazian Corridor. Planner Ann Welsh said that Commissioner Nagpal is asking for a lot more data, which would require an Environmental Assessment. Commissioner Nagpal said that she is looking for embellishment in a couple of areas, particulazly Biological Resources. Commissioner Rodgers: Asked if the proposed fill area includes anything near the Riparian Corridor and, if so, what the potential effects might be. Sazatoea Planning Commission Minutes of Apri128 2004 Page 19 • Pointed out that the road over [he property is fill and that the emergency road should follow the natural contours of the land. • Questioned the impacts on the stream. Commissioner Nagpal thanked Planner Ann Welsh for the quality of information provided. Chair Gazakani opened the Public Hearing for Agenda Item No. 3. Mr. Maurice Abraham, Planning Consultant/Applicant's Representative: • Said that they have tried to create a development that fits the unique characteristics of this site, that respects the existing topography and geographical constraints as well as relating to its neighbors and preserves open space through the cluster concept. • Advised that they have worked with City staff and neighbors, including holding one neighborhood meeting. In addition, Mr. Ho met with individual neighbors. Some concerns were expressed but most have been supportive. They were surprised at [he small turnout at the Community Meeting so they also did a second mailing. They have refined their plan based upon feedback. • Added that the Marineros still have significant concerns regarding access. Other than that, they have addressed neighbor concerns to staff and neighbors' satisfaction and staff is recommending approval. • Gave a PowerPoint presentation that included: an overview of the site, project specifications, photo simulations and architectural concepts. • Showed an aerial photo to indicate the site boundaries as well as a slope analysis map, whereby they have tried to keep the development in the flatter areas of the site. The open space area has had a considerable number of slides or potential slide areas. Of the existing trees, they aze proposing the removal of 18, 13 of them Eucalyptus. Two Coastal Live Oaks will be relocated on site. • Provided project specifications as follows: 29 acre lot; 5 homes; 1.7 acre average (minimum being 1 acre and lazgest lot being 3 acres); 19 acres of common open space. • Showed a Tentative Map of the proposed lots, including emergency access and private access. • Advised that a small area requires grading with cut and fill equaling about 11,000 cubic yards. This equals about three inches off the entire 29 acres. • Showed conceptual building elevations for the five residential lots and photo simulations of how these homes would be visible with and without landscaping at 15 years' growth. • Reminded that the site is not visible from the road and that there would be an emergency access road off Vista Regina. Commissioner Hunter asked if these homes aze proposed as two-story. Mr. Maurice Abraham: Replied that they would be two-story homes that aze stepping downhill while the front elevations would be single-story. • Thanked the Commission and said he hoped his presentation was helpful. • Stated that the Marineros' concems include safety, visibility, traffic, noise and headlight glare. They would like access to Mt. Eden Road eliminated completely but this is not likely. • Said that he believes the revised entrance location is an improvement as it is safer and removes fewer trees. • Added that he understands the Marineros' concerns regazding safety. Saratoga Planning Commission Minutes of Apri] 28 2004 Page 20 • Said that he hopes the Commission agrees that access from Mt. Eden is the most logical and approves this project. • Advised that the project architect, Jeff King, is also present this evening. Commissioner Rodgers asked about the fill and the connecting emergency road, which she said seemed close to the Riparian Comdor. Mr. Maurice Abraham said that it has been revised from the original. They have pulled it up and added retaining walls. Commissioner Rodgers asked how close to the stream Mr. Maurice Abraham said that he would have to have the Civil Engineer figure that out. Commissioner Rodgers asked how tall the retaining walls would be. Mr. Maurice Abraham replied five feet maximum. The constraint is that they must meet up with Vista Regina. Comnssioner Rodgers asked if the emergency access road must cross the creek. Mr. Maurice Abraham replied no. Chair Gazakani pointed out how on-coming cars are coming uphill and therefore speed up. They would have to slow down to tum onto the site. Asked if there would be some area onto which they could pull off the road in order to slow down and turn onto the site. Mr. Maurice Abraham said that they could try to do that. Commissioner Nagpal asked if the 11,000 cubic yards of cut and fill includes the basements. Mr. Maurice Abraham replied no, just the subdivision itself. It does not include the grading on the five residential lots. That will be determined as the specific homes aze developed. It does include the roads. Commissioner Nagpal pointed out [he gate included on a picture and asked if this would be a gated community. Planner Ann Welsh replied yes. Chair Garakani said that a gate creates concerns about safety when leaving Mt. Eden Road. Planner Ann Welsh said that the gate could be set back from Mt. Eden Road so that more than one car can be off the road. Director Tom Sullivan agreed that the gate could be moved back. Saratoga Planning Commission Minutes of Apri128 2004 Page 21 Commissioner Rodgers expressed concern about a gated community. She said that she likes the concept of cluster houses with the open space but asked how pedestrians and equestrians would access the trails. Mr. Maurice Abraham replied that access is from Mt. Eden Road, uphill from the entrance road and not gated. Commissioner Rodgers asked if there would be room for parking. Mr. Maurice Abraham said three spaces but not large enough for a horse trailer. This is not an appropriate place to create a trailhead. Chair Garakani asked if this trail is connected to another trail. Mr. Maurice Abraham said he was not sure but that he didn't see a trail. Planner Ann Welsh reported that there are some missing links and this would not be a contiguous trail. Commissioner Nagpal said that she thought that a biological survey to look at wildlife in the Riparian Corridor would be important. Mr. Maurice Abraham said that that have not done so but would if required by the Planning Commission. Reminded that it is larger than required by San Jose and the Santa Clara Valley Water District. Commissioner Nagpal: Said that a survey should establish that [here are no species to be concerned about. • Asked if there is any issue with the Cupertino Sanitary District, other than the fact that they can accommodate sewage but not storm water from these properties. • Asked if the identified landslides are active or ancient. Mr. Maurice Abraham replied both. He said that two would be stabilized. Commissioner Nagpal asked if this project would exacerbate conditions on or off site. Mr. Maurice Abraham assured that the geotechnical study was pretty extensive. Commissioner Rodgers asked how the swampy area near the Mt. Eden access would be handled. Mr. Maurice Abraham said that the access misses the swamp azea. If they have to relocate the entrance, they may get into that. If so, they would have to put in sub-drains. Commissioner Hunter asked about the access easement. Mr. Maurice Abraham said that both are just on Carstin property. Commissioner Hunter asked if this property is landlocked. Minutes of 2004 22 Mr. Maurice Abraham said that there is a 60-foot easement for a road. Chair Garakani asked if the water retained and detained would be enough for an irrigation system. Mr. Maurice Abraham said that could be looked into but added that they plan to use drought tolerant and native species. Commissioner Rodgers asked if the plants would be fire resistant. Mr. Maurice Abraham replied he was not sure but that they would be deer resistant. Mr. Jack Daly, 21931 Via Regina, Sazatoga: • Expressed appreciation for how Mr. Ho has designed the trail system and all the open space. • Said that he has concerns about looking onto 7,000 squaze foot homes, specifically on Lots 1, 2 and 3, where he envisions a wall of concrete or stucco. • Stated that one option is to allow less than 7,000 square feet. Another option is to allow fewer lots. • Reiterated that this is his biggest concern. Commissioner Nagpal asked Mr. Jack Daly how lazge his home is. Mr. Jack Daly replied that there aze two houses on his lot, one is 2,000 square feet and the other is 1,000 squaze feet, as well as a horse facility for a total of 3,500 square feet. Mr. Till Guldimann, 21891 Via Regina, Saratoga: • Identified himself as a neighbor to Mr. Jack Daly. Thanked Mr. Ho for keeping everyone informed. • Stated that he has two basic concerns. One is the potential for landslides. If the geologist is wrong and a house slides downhill, what happens? Who is liable for cleanup? The second concern is the fact that today when he looks at the site, he sees nature. In the future will he see start-up castles? • Asked that the size of these homes be contained, as he is appalled at the idea of 7,000 square foot houses. Commissioner Uhl asked about the size of houses. Director Tom Sullivan said that nothing sets that up. The zoning simply addresses the maximum. Commissioner Nagpal asked if the size of the homes could be limited as part of this approval. Director Tom Sullivan said that this limitation would have to be justified. Commissioner Hunter expressed support for one-story homes that aze built into the hillside, earth colored and blending rightin. Director Tom Sullivan pointed out that Mr. House's house was built on the downhill side and is two- story. These are things that can be part of the conceptual requirements. Commissioner Hunter said that she agrees that these aze tall castle sized houses proposed. Saratoga Planning Commission Minutes of Apri128 2004 Page 23 Mr. Jeff King, Project Architect: • Introduced himself and said that he is available for questions. Commissioner Hunter asked Mr. Jeff King if he is awaze that houses should be blended into a hillside and not stand out. Mr. Jeff King replied absolutely. He added that 7,000 is based on lot size and determined by Code. However, it is not practical to build houses that big. In reality, they would range between 3,500 to 5,000 squaze feet. Commissioner Hunter pointed out that the designs shown aze very obvious and visible to neighbors. Mr. Jeff King said that they are simply trying to show variety to be consistent with Sazatoga guidelines. Chair Garakani asked Mr. Jeff King if he would be comfortable with restrictions to 3,500 to 5,000 square feet. Mr. Jeff King said that he would defer that question to the owner but that it seems reasonable. Mr. John Keenan, 22215 Mt. Eden Road, Saratoga: • Said that his property abuts the southwest side of Lots 2 and 3. Said that he is experiencing contained enthusiasm about this project because of a two-lane road that will run along their backyard as well as concerns about noise during construction. • Advised that they have resided in this home for 28 years. It is a rural community and they have large animals, a burro and lamb. Expressed concern that future neighbors will complain about their animals. • Suggested a disclaimer on the deed so that the buyers must acknowledge that this is a rural community with large animals nearby so that they don't complain once they move in. Said that he is concerned about people staring down into their yard from the road and about noise during the construction phase. Requested that prior to construction a solid wall be built along the property line to mitigate noise and hazard to their animals. Questioned the heights of the building sites on Lots 2 and 3. Director Tom Sullivan said that the top of the hill is about 760 feet. The midpoint on the two lots is 720 to 725 feet. Commissioner Hunter asked Mr. John Keenan how lazge his property is. Mr. John Keenan replied three acres. Planner Ann Welsh advised that one Condition requires that a revised landscape plan with buffering and fencing be provided. Mr. John Keenan said that a wood fence would not cut it. He is requesting a masonry or solid wall to act as a sound barrier. Ms. Hazel Marinero, 22501 Mt. Eden Road, Sazatoga: Commission Minutes of 24 • Said that her property is directly opposite the proposed driveway, where Mr. Carstin allowed an easement. • Said that Mr. Huerta has not yet given consent for the second easement. • Said she cannot understand why the driveway would be put there, as this is a dangerous part of the road. • Asked what kind of gate and how it would be opened and closed. Pointed out that there are four cars for their family. They have problems getting in and out of their driveway onto Mt. Eden Road. Said that this is a landlocked piece of land and that this is not a good location for the entrance to that ]and. • Suggested further studies for a safer location of access. • Advised that weekend traffic is much heavier than weekday, including bicyclists and those accessing Stevens Creek Dam. • Said that she has provided a letter outlining concems for her family and the public and that the major concern is safety. • Stated that when they moved in, this was a rural area. • Expressed concern about the aesthetics of having a road entrance across from their home. Chair Garakani asked Mrs. Hazel Marinero if they have a gate at their access. Ms. Hazel Marinero said that they do. It is difficult but they use this driveway because it is the existing entrance to their home. They left room for two cars to be off-road. She questioned how the open space would be accessed. Chair Garakani asked Ms. Hazel Marinero how their gate works. Ms. Hazel Marinero replied that right now it is a manual gate. Commissioner Rodgers asked Ms. Hazel Marinero what mitigations could be done to alleviate her concerns, be it driveway improvements or landscaping. Ms. Hazel Marinero said that her home fits into its environment. They have a 3,000 square foot home with a pool and barn. She cannot envision what could be done that would work but that she believes more thought needs to be given as to where access can go out. Mr. Ernesto Marinero, 22501 Mt. Eden Road, Saratoga: • Said that it is impressive what Mr. Ho and others have gone through but said that zero consideration has been given to the dangers of accessing this property. • Reported that he bicycles through the area with his dogs, which is already a challenge. • Said that this proposal would worsen the situation. • Explained that he works as a physicist. • Requested that a more thorough consideration of site access be done. • Said that he is pleased to hear of other residents' reservations with this project. • Stated that it must be determined how to best blend this project into the area, taking safety into consideration very carefully. Chair Garakani asked Mr. Emesto Marinero if he has looked at other alternatives for access road. Saratoga Planning Commission Minutes of April 28 2004 Page 25 Mr. Ernesto Marinero said that it is not his job to do so. He prefers not to give his private opinion. Chair Gazakani said that other options have been looked into but found not to be possible and that Mr. Marinero's suggestions would be welcome. Mr. Ernesto Marinero suggested Villa Road. Chair Garakani pointed out that there is a landslide there and that the land is very soft. Commissioner Hunter agreed that it is the responsibility of Mr. Abraham to figure this out. Ms. Anne Sanquini, 14087 Loma Rio Drive, Sazatoga: • Identified herself as a member of the Parks and Recreation Commission and the Trails Subcommittee. • Thanked Mr. Ho for working with us to develop a trail, saying that she appreciates what he is doing as well as the Planning Commission's support of this effort to develop trails. Commissioner Uhl asked Ms. Anne Sanquini if [heir feedback has been incorporated into the plans. Ms. Anne Sanquini replied yes and said that they appreciate that fact. They are looking for ways to get dedicated trails and easements. Commissioner Rodgers expressed her appreciation for Mr. Ho's efforts too. She asked if this would be an isolated trail. Ms. Ann Sanquini replied that there is public access from Mt. Eden Road and over time efforts will be made to talk to neighbors to see if more connector routes are possible. Mr. William Brooks, 20230 Merrick Drive, Saratoga: • Said that he is a member and citizen volunteer of the Trails Subcommittee. • Said that this would be a significant trail line. • Stated that he has one safety concern relating to the driveway, where the existing trail will cross. • Advised that a smooth surface and metal hooves are not compatible and encouraged some consideration to the asphalt swath (about 8 to 10 feet wide) where the surface could be roughened to accommodate the horses. Mr. Maurice Abraham: • Said that the 7,000 square foot limit is a maximum square footage allowed derived on a formula. The homes aze probably going to be between 3,500 and 5,000 square feet. • Agreed to Mr. Keenen's request for a deed restriction to disclose during the sale of these lots the fact that there are large animals in this azea with the corresponding noise. • Said that they have no problem adding screening landscaping to protect privacy and prevent people from looking down onto the Keenen property but said that they have a concern regarding use of a masonry wall as it seems out of character. However, they will work out whatever is the pleasure of the Commission. • Stated that he understands the safety concerns raised by the Marineros. Saratoga Planning Commission Minutes of Apri128 2004 Page 26 • Pointed out that in designing intersections like that, they are at the optimum spot of coming in outside of a curve while the Marineros come in on the inside of a curve. Commissioner asked whether this is where the Eucalyptus trees will be removed. Mr. Maurice Abraham replied yes. He added that traction in the pavement can be worked out to satisfy the needs of the horses. Chair Garakani closed the Public Hearing for Agenda Item No. 3. Director Tom Sullivan said that the staff has heazd the concerns of the Commission and suggests that a Study Session be set. When it is time to continue with the public hearing, another notice will go out to the whole neighborhood. Mr. Maurice Abraham asked if they would be participating in this Study Session. Director Tom Sullivan said that Study Sessions aze still public meetings. Commissioner Hunter explained that the Study Session format is more informal. *** DIRECTOR'S ITEMS There were no Director's Items. COMMISSION ITEMS Memorandum regarding noticing reouirements: Director Tom Sullivan advised that the City is following procedures as prescribed by State Law. The City must use the Assessor's Roll for addresses of property owners. Commissioner Uhl advised that he would be absent for the next meeting on May 12th COMMUNICATIONS Minutes from the City Council meeting held on April 9, 2004. ADJOURNMENT TO NEXT MEETING Upon motion of Commissioner Hunter, seconded by Commissioner Nagpal, Chair Gazakani adjourned the meeting at 11:50 p.m. to the next Regular Planning Commission meeting of May 12, 2004, at 7:00 p.m. MINLJ'tES PREPARED AND SUBMITTED BY: Corinne A. Shinn, Minutes Clerk SARATOGA CITY COUNCIL MEETING DATE: August 4, 2004 AGENDA ITEM: /~ ORIGINATING DEPT: Community Development CITY MANAGER: ~r%~ PREPARED BY: Christy Oosterhous, AIC$t~EPT HEAD: SUBJECT: Appeal of a Planning Commission decision to conditionally approve Design Review Application No. 03-245 to construct a secondary dwelling unit located at 15301 Peach Hill Road. APPELLANT: Sarita Kay Johnson Frederick, 15277 Peach Hill Road. APPLICANT: Tony Massie, property owners, 15301 Peach Hill Road. RECOMMENDED ACTION: Hold public hearing and take appropriate action. REPORT SUMMARY: At a public hearing held on June 9, 2004, the Planning Commission approved Design Review Application No. 03-245 with conditions. The design review application includes the construction of secondary dwelling unit. The height of the structure is 14 feet 6 inches. The floor area of the structure is 600 square feet. The neighbor's grounds for appeal state that the design of the dwelling unit is not consistent with the guidelines of the Residential Design Handbook and that she questions the allowable floor area. The Design Review Application was approved by the Planning Commission with conditions. Special conditions of approval included that staff shall coordinate with the applicant and appellant regarding the following: possible installation ofretaining walls, additional landscape screening, and a reduction of pathways in the applicant's rear yard. The appellant had expressed some interest in having retaining walls installed; therefore, the Planning Commission included this condition. The intent to require additional landscape screening was to increase privacy and reduce noise. The condition to reduce the paved walkways near the perimeter of the property was intended to decrease noise generated from the applicant's property and increase the appellant's privacy. Additional conditions included that the fireplace shall not be woodbuming and that additional landscape screening shall be provided for Peach Hill Road. The proposed use of the subject structure, a secondary dwelling unit, is a permitted use; therefore, only the design review of the structure is subject to discretionary review. A secondary dwelling unit is defined in the municipal code as an attached or detached residential dwelling unit which provides complete independent living facilities for one or more persons, including permanent 1 provisions for living, cooking, sleeping and sanitation on a parcel within the A, R-1, or HR district where a legally created single-family dwelling is situated. Second dwelling units are not to be sold separately from the primary dwelling, but maybe rented. The zoning ordinance permits aone-time 10% increase in allowable floor area with a recorded deed that restricts rental rates of the secondary dwelling unit to below market rates. This portion of the zoning ordinance implements the goals of the Housing Element of the General Plan which includes accommodating the City's fair share of the Bay Area regional housing need for all income groups. In summary of the attached staff report, no trees are proposed for removal, the structure received geotechnical clearance, sixteen evergreen trees are proposed, the height of the proposed structure was lowered, and the building footprint was shifted away from the appellant's property line. Relevant background documents, including the entire staff report and attachments are included in the packet materials. Pursuant to Municipal Code Section 15-45.080 the City Council must find the project does not comply with the following design review findings in order to deny the design review application and grant the appeal: (a) Avoid unreasonable interference with views and privacy. The height, elevations and placement on the site of the proposed main or accessory structure, when considered with reference to: (i) the nature and location of residential structures on adjacent lots and within the neighborhoods; and (ii) community viewshed will avoid unreasonable interference with views and privacy. (b) Preserve natural landscape. The natural landscape will be preserved insofar as practicable by designing structures to follow the natural contours of the site and minimizing tree and soil removal; grade changes will be minimized and will be in keeping with the general appearance of neighboring developed areas and undeveloped areas. (c) Preserve native and heritage trees. All heritage trees will be preserved. All native trees designated for protection will be preserved, or, given the constraints of the property, the number approved for removal will be reduced to an absolute minimum. Removal of any smaller oak trees deemed to be in good health by the City Arborist will be minimized. (d) Minimize perception of excessive bulk. The proposed main or accessory structure in relation to structures on adjacent lots, and to the surrounding region, will minimize the perception of excessive bulk and will be integrated into the natural enviromnent. (e) Compatible bulk and height. 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) urueasonable impair the ability of adjacent properties to utilize solar energy. 2 (f) Current grading and erosion control methods. The proposed site development or grading plan incorporates current grading and erosion control standazds used by the City. (g) Design policies and techniques. The proposed main or accessory structure will conform to each of the applicable design policies and techniques set forth in the Residential Design Handbook. ALTERNATIVES: 1. Deny the appeal and uphold the Planning Commission's conditional approval of the Design Review Application 03-245 adopting the attached resolution (Attachment A). 2. Grant the appeal and overturn the Planning Commission's approval of the proposed project, thus denying the Design Review Application with findings. 3. Continue the public hearing to allow the applicant an opportunity to restudy project-related issues raised by the City Council. FISCAL IMPACTS: Not applicable. ADVERTISING, NOTICING, AND PUBLIC CONTACT: Mailed notice to property owners within 500 feet, posted notice, and advertised the notice in the newspaper. ATTACHMENTS: A. Resolution Denying the Appeal. B. Statement from the appellant, Sarita Johnson, and letters of opposition received after the Planning Commissioner packets were compiled. C. Statement from the applicant in conjunction with an additional landscape screening proposal date stamped July 26.2004 (also see reduced plans date stamped July 26, 2004 an addendum to Exhibit A). D. Staff report including attachments from the June 9, 2004 Planning Commission meeting. E. Minutes from the June 9, 2004 Planning Commission meeting. F. Housing Element of the General Plan, excerpt page 4-5 G. Reduced plans, Exhibit A (also includes an addendum of additional landscape screening date stamped July 26, 2004) ATTACHMENT A RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA DENYING THE APPEAL OF THE CONDITIONAL APPROVAL OF DESIGN REVIEW APPLICATION #03-245 15301 Peach Hill Road Property owner: Tony Massie WHEREAS, the City Council of the City of Saratoga has received an appeal of the Planning Commission approval of Design Review Application #03-2451ocated at 15301 Peach Hill Road for the construction of a one-story secondary dwelling unit; and WHEREAS, on June 9, 2004 the Planning Commission held a duly noticed Public Hearing where the above project was approved and appealed to the City Council. On August 4, 2004 the City Council 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 City Council of the City of Saratoga has considered the application and all testimony and other evidence submitted in connection therewith; and WHEREAS, the City Council upheld the determination and findings of the Planning Commission approval of Design Review Application #03-245; and WHEREAS, the proposed project consisting of construction of a new secondary unit is Categorically Exempt from the Environmental Quality Act (CEQA) pursuant Section 15303, "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; and WHEREAS, the applicant has met the burden of proof required to support said application for design review approval, and the findings specified in Municipal Code Section 15- 45.080 and the following City's Residential Design Handbook have been determined: (a) Avoid unreasonable interference with views and privacy. The maximum height of the proposed secondary dwelling unit is 14 feet 6 inches. No windows are proposed on the North elevation. In addition, sixteen 15-gallon trees will be planted to buffer views of the structure from Peach Hill Road and neighboring properties and to increase privacy and reduce noise. (b) Preserve Natural Landscape. Since the building site is flat, minunal grading is proposed. The proposed secondary dwelling unit will be in keeping with the general appearance of the site and neighborhood. (c) Preserve Native and Heritage Trees. No trees are proposed for removal. No trees are located in the vicinity of the footprint of the proposed secondary dwelling unit. Mature trees are located throughout property, but primarily along the periphery. (d) Minimize perception of excessive bulls The proposed secondary dwelling unit is one- story, approximately 600 square feet, and less than 15 feet in height. It includes a hipped roof to minimize bulk. Architectural details such as arches, columns, cobble stone accents, divided light windows, and a chimney break up building lines, create architectural interest, and reduce mass and bulk. The secondary dwelling unit is situated far back from Peach Hill Road and will be surrounded by existing trees, as well as, sixteen new trees. The use of stucco and a slate the roofing in earth tone colors will blend with the natural environs. (e) Compatible bulk and height. By definition, the proposed secondary dwelling unit is physically incidental and subordinate to the main structure on the site and other residences in the vicinity. (f) Current grading and erosion control methods. The proposal shall conform to the City's current grading and erosion control standards. (g) Design policies and techniques. The proposed project conforms to all of the applicable design policies and techniques in the Residential Design Handbook in terms of compatible bulk, and avoiding unreasonable interference with privacy and views as detailed in the findings above and staff report. WHEREAS, CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1094.6 GOVERNS ANY JUDICIAL REVIEW OF THIS DECISION, AND EACH APPLICANT AND EACH APPELLANT IS HEREBY NOTIFIED THAT IF SUCH APPLICANT OR APPELLANT INTENDS TO SEEK JUDICIAL REVIEW, THE DEADLINE FOR ANY SUCH COURT ACTION IS NOT LATER THAN THE 90r" DAY FOLLOWING THE DATE ON WHICH THIS DECISION BECAME FINAL (THIS DECISION SHALL BECOME FINAL ON THE DATE THAT NOTICE OF THE DECISION IS MAILED TO THE APPLICANT AND ANY APPELLANT). Date Resolution Mailed to Applicant and any Appellants: NOW, THEREFORE, the City Council of the City of Saratoga does hereby find, decide and resolve as set forth in the recitals above and as follows: Section 1. After careful consideration of the site plan, architectural drawings, plans and other exhibits submitted in connection with this matter, Application No. 03-245 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. 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. 2. The following shall be included on the plans submitted to the Building Division for the building and grading permit plan check review process: a. Four (4) sets of complete construction plans incorporating this Resolution as a separate plan page and containing the following: i. The site plan shall be stamped and signed by a Licensed Land Surveyor. ii. 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 all building setbacks are per the approved plans" 3. FENCING REGULATIONS - 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. Any existing fences or walls not meeting the zoning ordinance standards shall be removed prior to the project being final. 4. 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. 5. Landscape plan shall be designed with efficient irrigation to reduce runoff, promote surface infiltration and minimize use of fertilizers and pesticides that can contribute to water pollution. 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. The height of the structure shall not exceed 14 feet, 6 inches as defined in Section 15-06.340 of the City Zoning Code. 8. Evergreen landscape screening including dense, tall, wide, and fast growing minimum 15- gallon Toyon trees (4), Italian Buckthorn trees (5), and Carolina Laurel Cherry trees (7) shall be installed prior to final occupancy inspection. 9. The applicant shall record a deed restriction for the secondary dwelling unit that restricts it so that it may only be rented to below market rate households prior to Building Permit issuance. 10. Staff shall coordinate with the applicant and appellant regarding the following: possible installation of retaining walls, additional landscape screening, and a reduction of pathways in the applicant's rear yard. All conditions shall be met prior to final occupancy inspection for the second dwelling unit. 11. The fireplace shall not be wood burning. 12. Additional landscape screening shall be provided by the applicant along Peach Hill Road. Staff shall review and approve location, size, and species. Screening shall be installed prior to final occupancy inspection for the second dwelling unit. FIRE DISTRICT 13. Applicant shall comply with all Fire Department conditions. GEOTECHNICAL CLEARANCE 14. The Project Geotechnical Consultant shall review and approve all geotechnical aspects of the final development plans (i.e., site preparation and grading, site drainage improvements and design parameters for foundations, walls and swimming pool) to ensure that the plans, specifications and details accurately reflect the consultants' recommendations. The Project Geotechnical Consultant shall consider the benefits of removing the distressed concrete swale (if no longer needed due to new site improvements), if there is a potential for adverse drainage or infiltration due to its lack of effectiveness or distressed condition. The results of the plan review shall be summarized by the Project Geotechnical Consultant in a letter(s) and submitted to the City Engineer for review and approval prior to issuance of permits. 15. The Project Geotechnical Consultant shall inspect, test (as needed), and approve all geotechnical aspects of the project construction. The inspections shall include, but not necessarily be limited to: site preparation and grading, site surface and subsurface drainage improvements, and excavations for fill keyways, and foundation construction prior to placement of fill, steel and concrete. The results of these inspections and the as-built conditions of the project shall be described by the geotechnical consultant in a letter(s) and submitted to the City Engineer for review and approval prior to Final Project Approval. The owner (applicant) shall pay any outstanding fees associated with the Ciry Geotechnical Consultant's review of the project prior to project Zone Cleazance. 16. The owner (applicant) shall enter into agreement holding the Ciry of Saratoga harmless from any claims or liabilities caused by or arising out of soil or slope instability, slides, slope failure or other soil related and/or erosion related conditions. CITY ATTORNEY 17. 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 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. Section 2. A Building Permit must be issued and construction commenced within 36 months from the date of adoption of this Resolution or approval will expire. Section 3. All applicable requirements of the State, Counry, City and other Governmental entities must be met. PASSED AND ADOPTED by the City Council of the City of Saratoga, State of California, the 4th day of August 2004 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Ann Waltonsmith, Mayor ATTEST: Cathleen Boyer CMC, Ciry Clerk PROOF OF SERVICE I certify and declare as follows: I am aver the age of 18, and not a party to this action. My business address is Ciry of Saratoga,13777 Fruitvale Avenue, Saratoga, CA 95070, which is located in Santa Clara County where the service described below took place. I am familiar with the business practice at my place of business for the collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business. On , [he following document(s): 1. RESOLUTION CONTAINING FINDINGS AND DECISION BY CITY COUNCIL REGARDING DENIAL OF AN APPEAL BY Sarita Kay iohnson Frederick OF 15277 Peach Hill Road FOR DESIGN REVIEW APPROVAL AT 15301 Peach Hill Road. was placed for deposit in the United States Postal Service in a sealed envelope, with postage fully paid to: APPLLIANT: APPLICANT: I certify and declare under penalty of perjury that the forgoing is true and correct. Dated: Christy Oosterhous, Associate Planner City Community Development Department Telephone #: Name of Applicant -'~~_~ ~~u~~~ (If different than Appellant): Project file number and address: ~ D~ r °~` Y~ - ~S3 D ~ ~~'~" ~`~C Decisiori~being appealed: ~_ Grounds €or appeal (Letter maybe ~~,. Applicant Signature: Date: ~ _ ~ ~/ ` ~~ ^ Municipal Code Section 15-90.010 appeals (Zoning related): • Appeals from Administrative Decisions to the Planning Commission $150.00 Municipal Gode Section 15-90.020 appeals (Zoning related); • Appeals from the Planning Commission to the City Council $250.00 ^ Request for a Continuance: • First Request • 2°d Request This Application must be submitted to Date Received: t Hearing Date: Fee: Receipt #: No Charge $250.00 within 15 days of the date of the decision. a~a,2ocx~ ^ .Municipal Code Section 2-05.030 (a) appeals: • No Hearing $100.00 • With Hearing $200.00 15288 Peach Hill Rd. - Saratoga, CA 95070 June 5, 2004 To: Saratoga Planning Commission Members: Jill Hunter Ruchi Zutshi Mike Garakani Mike Uhl Suzie Nappal Mike Schallop Linda Rogers Dear Members of the Planning Commission: We are writing in reference to the proposed pool house at 15301 Peach Hill Rd. We will be out of town the day of the Commission meeting, so we are writing this letter. We have read Dr. Johnson's letter that she submitted to you on May 25, 2004. We are in comRlete agreement with the points that she makes. Our house is directly across the street from the proposed pool house, so we would also be affected by the placement of the structure and the resulting noise. Having built our house a few years ago, we are well aware of the desire to reduce bulk and unnecessary noise in Saratoga, especially on Peach Hill Road where most of the lots are least 1 acre. We chose this site because of the appeal of the country-like atmosphere and unobtrusive houses. ., s. We believe that the pool house would be an asset, but in another - location on the property, perhaps further back from the house and the street. The current garage faces directly in front of our home and is very obtrusive. Adding a pool house alongside the garage adds significantly to the bulk in the front of the house. We would appreciate your taking into consideration our thoughts in reaching your decision. Sincerely, C~,y~, ~- c,~.~~-Q~-. Marcia Hirtenstein Clyde Wallin 408-868-0255 408-621-1981 (cell) ,. Sarita Johnson Frederick 15277 Peach Hill Road Saratoga, CA 95070 (408)741-1622 May 25, 2004 Dear ~'i-~ • `~le,ev~~, As I am a longtime resident of Saratoga (about forty yeazs) and have lived in my present home for twenty-two years, I wish to voice some of my concerns about the application of my next door neighbor, Tony Massie, 15301 Peach Hill Road, to build a 600 sq. foot detached secondary dwelling (pool house/cabana) under the low-income housing allowance because their new residence has already used the maximum allowed of 6,000 sq. feet. The designer of this new project could not have done more to inconvenience me and my husband in intruding on our privacy and serenity than by the placement of this so-called low-income housing unit (pool house/cabana) and the adjacent pool; they overlook my front door, hall windows, and breakfast room, as well as the front terrace which we use for relaxing and entertaining, The secondary unit is too neaz the edge of my property and will create a lot of extra bulk that we have to look at, and as it will be a gathering place for parties with the accompanying noise, it will greatly affect the quality of our life and the value of our property. I voiced some of these concernsao Mr. Massie.and o .the city project planner of this ,,...:. _ . w _.. particular project and some minor changes to the plans were made which did not solve the problem. After reading the Residential Design Handbook of the City of Saratoga, I realized that my objections were not unfounded. In fact, I actually wonder if, in planning these secondary structures, the designer was aware of and/or had read the handbook because the plan ignores many of the guidelines listed; guidelines about view, privacy, noise and bulk, etc. As you know, the design handbook addresses specific policies to be observed to maintain the unique physical characteristics of the residential Saratoga landscape. I have listed some of the design techniques quoted in the handbook which are to be used to adhere to the policies for the City, and then commented on how the proposed secondary dwelling (and pool) ignore these policies. 1. DESIGN POLICIES AND TECHNIQUES Policy I -Minimize Perception of Bulk a) Avoid overwhelming existine residences The Massie garage already overpowers my driveway and the addition of the adjacent secondary dwelling will add to that bulk and be out of scale to our residence and be more overwhelming to the eye. The residences and garage are already overwhelming in scope and size compared to existing residences in the neighborhood. b) Minimize building height The proposed secondary dwelling is to be 14' 6" high. The location as proposed looms vertically above our patio; therefore, no matter how high the proposed building is unless it is set much farther back away from our property line it will impact our living and view. Policy II -Integrate Structures with Environment a) Inteerate all structures on a single site Avoid a large number of accessory structures. The secondary dwelling is as far away from the main residence as possible. From the overall plot plan itself, it appears there is plenty of room to place this structure elsewhere instead of on the edge of my front terrace. b) Don't use veeetation to correct desiea nrivacv or hulk miaralrac rr~a landscanine as a mitigation but not as a design solution There has been a proposal to correct some of my objections to the secondary unity by planting a series of young shrubs and/or trees. This is not a solution to this design mistake. c) Avoid unnecess adin and soil removal. Whenever this is done, there is a risk of land slide. Policy III -Avoid Interference with Privacy (Key ingredients to quality of life in Saratoga) a} Locate buildine to minimize nrivacv impact Locate structure to increase visual distance between buildines As stated before, the secondary dwelling is on the edge of my property -the plan to move the setback 7 feet does not solve the problem. b) Avoid sitine structures in direct line of sight to neighboring residences The secondary dwelling site does not follow this rule, as is easy to see. c) Control view to adiacent properties The people using the secondary dwelling .and pool would have a direct view down to my front patio and windows to my home. We value our privacy and this would affect it negatively. d) Reduce noise impacts on adjacent dwellings Avoid siting noise sources near adjacent lots Avoid using site plans that will create problems The secondary dwelling and pool are definitely noise sources. The placement of the secondary dwelling is definitely on the edge of my acre home. Increasing the setback 7 feet does not solves the problems. 2 Policy >y -Preserve Views and Access to Views (Structure should be designed to blend in with the hillsides not project above ridgelines) a) Locate structure to minimize view blockage. Do not block neiehbor's view with structures or ta111andscaninQ. The proposed secondary dwelling does just that by its placement and if tall landscaping is added to mitigate such a design error it would compound the loss of view. b) Avoid hillside locations and designs that interfere with views c) Locate structures to reduce hei¢ht impact. The secondary dwelling is on a hillside edge and looks down on one property. In addition to the above mentioned examples of the secondary dwelling plan avoiding the policies of the design handbook, I am offended by the use of the low-income housing law as an excuse to add a cabana under the umbrella of low-income housing. The cabana was apparently am afterthought, and the residence and garage have already used the maximum allowed (6,000 sq. ft.). The maximum was designated for a reason. The intent of this law was to create low-income housing not as a measure to extend the maximum square footage. The secondary dwelling (cabana) is obviously not going to be used as low income housing. The Massies have already clearly stated this. It is a sham and abuse of the intent of the law and reflects poorly on the integrity of the City of Saratoga. Another concern is the past history of landslides on this property. The building of this structure, especially on the edge of a steep slope, as well as the excavation for the adjacent pool will impact the lot and surrounding lots to the point where I feel it will put stress on the site and possibly cause future landslides. If the City approves this project and slides are created, the City will be responsible for allowing construction on a site known for instability. It is incumbent on us to protect our home -the comfort it provides us and its value in the future. The addition of this secondary dwelling (pool house/cabana) would not only affect the quality of our living here, but considering the bulb, noisejand privacy issues, would seriously affect the property value. We purchased a home in an acre zoned area with density restrictions. The land and how it is used is important to the character of the neighborhood and therefore its value. Approval of this secondary unit as planned may be setting a precedent that we may not want to establish. Thank you for your consideration inn this>matter. Sarita Johnson Frederick ~~ -~ ~~~,f r /~-~ ~ i ~T V~^", ~~~~ ~~~ ~ ~ ~ ~~~ ~~ ~ ~~~ ~~ ~ ~ ~ ~ s~°"" ~ Cazole & Chris Horine 15250 Peach Hill Road Sazatoga, California 95070 (408)867-4308 Deaz Planning Commission, over the bur ding of a 600 square foot detached secondary dw ling( pool house/cabana) by Tony Massie at 15301 Peach Hill Road. We aze offended by the use of the low-income housing law as an excuse to build this structure. The house is over 6000 squae feet. Mr. Massie should have put more thought into his plans if he wanted a cabana and decreased the house size to accommodate the need for the cabana. I am extremely surprised that the planning commission would even consider such a request. This clearly is an abuse of the intent of the law. We aze in full agreement with Sarita J. Frederick's letter that she wrote on May 25, 2004. The addition of this secondary dwelling (pool house/cabana) would seriously affect the noise and privacy issues in our rieighborhood and therefore it's value. Thank you in advance for your consideration concerning this matter. Sincerely, ~~~C~ _ ~ Cazole Horine j , ~ i1 ~ Chris Horine /( JJ ,,J) l5 ~ ~ 0 U L5 I~ I~Jnul JUN 0 8 2004 U CITY OF SAI2ATOGA "MIINITV IlF\IPI l~^~ ~ ~ ATTACHMENT C _ -~ 2~ie Bod Flury ~esr~n group July 27, 2004 The Honorable Mayor and City Council Members City of Saratoga ~ ~ ~ ~ ~ ~2 13777 Fruitvale Avenue ~ ~ Saratoga, CA 95070 ~' ~ l JUL 2 6 2004 Re: Appeal to Planning Commission Approval ~, ~ y Op SAfiATOGA Secondary Dwelling at ~ , , "'° .' 15301 Peach Hill Road Honorable Mayor and City Council Members: We respectfully request your support of the Planning Commission's approval of the proposed secondary dwelling for Mr. and Mrs. Massie. The Massies and our staff worked closely with the City Planners in addressing the concerns voiced by the adjacent neighbor to the north, Mrs. Sarita Johnson. A series of wncessions were made relating to the placement and height of the proposed structwe. The structure was moved further away from the neighbor's house and the height reduced by approximately two feet. Additionally, the Massies volunteered to plant landscape screening to further mitigate any potential impact to the adjacent properties. These collaborative efforts resulted in a design that meets every Design Review criteria, as is outlined in the Planning Department's June 9, 2004 Report to the Planning Commission. As an act of continued good will and in an effort to further address concems over the potential impact of this structure, The Massies aze, once again, volurrteering to install additional landscaping to screen the structure including the existing garage from the Sarita Johnson property and other adjacem properties. These plantings will augment an existing greenbelt of mature trees and shrubs, which separates the properties, further buffering noise and increasing privacy. See attached Neighborhood Context Plan, photographs and Landscape Screening Plan. The proposed screening includes the planting of 46 fast growing evergreen trees and lazge shrubs. These consist of (3) 24" box CalifoTgia Live Oaks, (8) 24" box Saratoga Laurels, (7) Toyon trees / shrubs, (I 1) Pacific Wax Myrtle trees /shrubs, (9) Holly Leaf Cherry trees /shrubs, and (8) Buckthorn trees /shrubs. DESIGNERS OF FINE HOMES _ - _ _. _ ______ - - 15951 LOS GATOS BOULEVARD, SUITE 3, LOS CATOS, CALIPORNIA 95032 (408) 356 5500 FAX (408) 356-5115 In light of the fact that the proposed structwe is wnsistent with all of the Design Review findings stated in MCS 15-45.080 and outlined in the Planning Departmem's June 9,2004 Report to the Planning Commission, and in conjunction with the newly proposed extensive landscape screening plan, we ask that you uphold the Planning Commission's favorable findings and deny the appeal before you. Thank you. Sincerely yours, ,j~ Robert Flury 4-~ - Cc: Mr. and Mrs. Massie L ATTACHMENT D REPORT TO THE PLANNING COMMISSION Application No./Location: Type of Application: Applicant/Owner: Staff Planner: Date: APN: 03-245/ 15301 Peach Hill Road Design Review Bob Flurry Designs, Applicant Tony Massie, Property Owner Christy Oosterhous AICP, Associate Planner June 9, 2004 517-22-073 Department Head: ~ L~ ~ 5, i ~' - / --7 ~~,"~~ 1 ~j ,. ,. w~oc~,~Ro i \~ ~_ \~ ~- ,- ,, ,ff ~, i t i '~. ~ - / ~- r Bolter zmes arwntl nasals ri Rgect SYe ~iLrcelswNF 500 ft i. L~ i ~. ~,,1. 15301 Peach Hill Road / / r.. ~~ i:_'\ ,~ ~ •~~ t ,,. i. ~ . F ~~,~ ~,. ~ _~~ oouo©i EXECUTIVE SUMMARY CASE HISTORY Application filed: Application complete: Notice published: Mailing completed: Posting completed: PROJECT DESCRIPTION: 10/28/03 04/27/04 05/26/04 05/18/04 05/20/04 The applicant requests design review approval to build a 602 square foot detached secondary dwelling unit. The height of the structure will not exceed 14 feet 6 inches. The materials and colors of the secondary dwelling unit will match the main residence. A grey- green slate roof, wood windows, copper downspouts, cobble stone accents, and a desert tan exterior finish are proposed. The applicant is currently in the final phase of construction of the new main residence and pool, which was approved by the Planning Commission in July 2001. STAFF RECOMMENDATION: Staff recommends the Planning Commission approve the application for Design Review with required findings and conditions by adopting the attached Resolution. ATTACHMENTS: 1. Resolution of Approval. 2. Comments from Sarita Johnson. 3. Distances called out from Johnson property building pad of secondary dwelling unit. 4. Affidavit of Mailing Notices. Public Hearing notification. 5. Reduced Plans, Exhibit "A." line prior to shift in location of Notice, Mailing labels for project ©~~~~~ Application No. 03-L•15301 Peach Hill Road STAFF ANALYSIS ZONING: R-1-40,000 GENERAL PLAN DESIGNATION: RVLD (Residential Very Low Density) MEASURE G: Not applicable PARCEL SIZE: 62,378 gross square feet, 39,922 net square feet (reduction for slope) AVERAGE SITE SLOPE: 22% GRADING REQUIRED: Muumal grading will be required. ENVIRONMENTAL DETERMINATION: The proposal is Categorically Exempt from the - --- Environmental ~ualiry Act-(CEQA) pursuant Section 15303, "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. ~~~~~ Application No. 03-~I5301 Peach Hill Road PROJECT DATA: Lot Coverage: Main and secondary dwelling, &e gazage Driveway Patios, walks, and pools TOTAL Floor Area: Setbacks: Height: First Floor Second Floor Gazage Main residence total: Secondary Dwelling Unit TOTAL (basement) Front Rear Left Side Right Side Secondary dwelling Proposal Code Requirements 24% Maximum Allowable 35%* 4,919 sq. ft. 5,566 sq. ft. 4,915 sq. ft. 15,400 sq. ft. 24,015 sq. ft. Maximum Allowable* 3,591 sq. ft. 1,679 sq. ft. 726 sq. ft. 5,996 sq. ft 602 sq. ft. 6,598 sq. ft. 6,600 sq. ft 3,620 sq. ft. Min. Requirement 100 ft. 30 ft. 200 ft. 60 ft. 200 ft. 20 ft. 24 ft. 20 ft. Maximum Allowable 14 ft. 6 inches 26 ft. *Includes an allowable lOryo increase for secondary dwelling unit deed restriction that states if the property is rented it shall only be rented at below market rates. ~~~©~~ Application No. 03-15301 Peach Hill Road • PROJECT DISCUSSION The applicant requests design review approval to build a 602 square foot detached secondary dwelling unit. The height of the structure will not exceed 14 feet 6 inches. The materials and colors of the secondary dwelling unit will match the main residence. A grey- green slate roof, wood windows, copper downspouts, cobble stone accents, and a desert tan exterior finish aze proposed. The applicant is currently in the final phase of construction of the new main residence and pool, which was approved by the Planning Commission in July 2001. Zoning Code Section 15-45.060 states that whenever, as a result of the proposed construction, reconstruction or expansion, the gross floor area of all structures on the site will exceed 6,000 squaze feet Design Review is required. The proposed project exceeds 6,000 squaze feet; therefore, Planning Commission review is required. The secondary dwelling unit is a permitted use; therefore, only the design of the structure is subject to Planning Commission review. The secondary dwelling unit includes a bathroom, bedroom, kitchen, and living azea. Attached to the secondary dwelling unit is a covered, unendosed patio. A fireplace is proposed in the patio. The patio is enclosed on two sides thus excluding this azea from floor area calculations. As pazt of this application for a secondary dwelling unit, the applicant is permitted a one time ten percent increase in allowable floor azea based on a deed restriction that only allows the unit to be rented to below mazket rate households. Neighbor Correspondence Sarita Johnson, the adjacent neighbor to the north, has concerns with the proposed secondary dwelling unit. The Johnson property is located dovvnslope from the Massie property. Sarita Johnson's driveway and residence have been included on the drawings for your reference (Exhibit A, sheet 2). In summary, her concerns include proxnnity to her residence, privacy, and noise. Her comments are attached (see attachment 2). In order to study the impacts of the proposed secondary dwelling unit on Sarita Johnson's property staff required the applicant to construct story poles in February of this yeaz. Staff also required that the applicant provide the following information: the location of Sarita. Johnson's driveway and residence in relation to the Massie property, and the location of the previously demolished residence on the Massie property. In response to Johnson's concerns, staff required several modifications to the proposed plan. Modifications required by staff have been accepted by the applicant and incorporated into Exhibit A. These modifications include a reduction in height, shifting of the building footprint, and landscaping. ~~~~.~7 Application No. 03-~I5301 Peach Hell Road • The reduction in height resulted in a decrease from 16 feet 6 inches to 14 feet 6 inches. The reduction in height shall avoid any unreasonable impact to light, air, view, and privacy to the Johnson property. The footprint of the original proposal included a 15 foot distance been the newly constructed garage and proposed secondary dwelling unit. Staff required that this space be reduced as much as possible to shift the proposed dwelling away from the Johnson property. Several constraints existed in the shifting of the proposed building. These constraints were both function and structural. Staff and the applicant compromised on an eight-foot minimum between the gazage and proposed second dwelling unit. This seven foot shift away from the property line resulted in a slight increase in the distance of the structure from the Johnson property line from four to six feet as measured from several angles. Please see "Exhibit A, sheet 1" and "Attachment 3"for further clarification. Sixteen, fast growing, evergreen trees aze proposed including: Toyon trees (4), Italian Buckthorn trees (5), and Cazolina Laurel Cherry trees (7) shall be installed prior to final occupancy inspection. The landscape screening shall buffer noise from the second dwelling and increase privacy (see Exhibit A, sheet L2). Staff also considered the proximity of the demolished one-story residence with respect to the Johnson property. The current site design and layout is much improved in that the majority of existing structures are located a greater distance from the Johnson property than the previous house configuration. Staff has conducted numerous site visits to both properties and worked extensively with both the applicant and Sarita Johnson in an attempt to find a compromise. Despite project modifications, Sarita Johnson does not support the application. Sarita Johnson has also voiced concerns regarding the pool which is currently under construction at the site. The pool was approved in conjunction with the design review for the main residence in July 2001. Staff and Sarita Johnson have discussed the fact that the pool and retaining walls were approved as part of the residence and aze not a part of this application. Johnson has informed staff that her driveway is located on the Massie property as seen in Exhibit A, sheet 2. Staff has discussed with Sarita Johnson that this boundary dispute is not a part of this application and that it is between the two private parties of Massie and Johnson. Parking For a second dwelling unit, parking requirements include a minimum of one off-street parking space within a gazage. The garage requirement may be waived if the second dwelling unit is deed restricted so that it may only be rented to below market rate households. Nonetheless, athree-caz garage is located on the site thus meeting the parking requirements for both the main and the secondary dwelling unit. In addition, the site also has ample open pazking in the driveway areas. ~~~~6.. Application No. 03-(1530! Peach Hill Road Trees No trees are located in the vicinity of the proposed second dwelling unit. Arborist review was not required as part of this application. Geotechnical Clearance The application requires geotechnical review. Geotechnical Cleazance was granted with conditions, which have been incorporated in the attached Resolution. Design Review Findings The proposed project is consistent with all the following Design Review findings stated in MCS 15-45.080: (a) Avoid unreasonable interference with views and privacy. The maximum height of the proposed secondary dwelling unit is 14 feet 6 inches. No windows aze proposed on the North elevation. In addition, sixteen 15-gallon trees will be planted to buffer views of the structure from Peach Hill Road and neighboring properties and to increase privacy and reduce noise. (b) Preserve Natural Landscape. Since the building site is flat, minimal grading is proposed. The proposed secondary dwelling unit will be in keeping with the general appearance of the site and neighborhood. (c) Preserve Native and Heritage Trees. No trees are proposed for removal. No trees aze located in the vicinity of the footprint of the proposed secondary dwelling unit. Mature trees are located throughout property, but primarily along the periphery. (d) Minimize perception ofexcessive bulk The proposed secondary dwelling unit is one-story, approximately 600 squaze feet, and less than 15 feet in height. It includes a hipped roof to minimise bulk. Architectural details such as arches, columns, cobble stone accents, divided light windows, and a chimney break up building lines, create azchitectural interest, and reduce mass and bulk. The secondary dwelling unit is situated far back from Peach Hill Road and will be surrounded by existing trees, as well as, sixteen new trees. The use of stucco and a slate rile roofing in eazth tone colors will blend with the natural environs. (e) Compatible bulk and height. By definition, the proposed secondary dwelling unit is physically incidental and subordinate to the main structure on the site and other residences in the vicinity. (f) Curtentgrading and erosion control methods. The proposal shall conform to the City's current grading and erosion control standazds. ~~~~~ Application No. 03-(•IS301 Peach Hill Road • (g) Design policies and techniques. The proposed project conforms to all of the applicable design policies and techniques in the Residential Design Handbook in terms of compatible bulk, and avoiding unreasonable interference with privacy and views as detailed in the findings above and staff report. Conclusion Staff finds that all of the Design Review findings can be made in the affirmative. STAFF RECOMMENDATION Staff recommends the Planning Commission approve the application for Design Review with required findings and conditions by adopting the attached Resolution. Attachment 1 ®00009 • APPROVAL OF RESOLUTION NO. _ Application No. 03-245 CITY OF SARATOGA PLANNING COMMISSION STATE OF CALIFORNIA Massie; 15301 Peach Hill Road WHERFt1S, the City of Sazatoga Planning Commission has received an application for Design Review Approval to build a new 602 squaze foot detached secondary dwelling unit. The height of the structure will be 14 feet 6 inches. Zoning Code Section 15-45.060 states that whenever, as a result of the proposed construction, reconstruction or expansion, the gross Iloor azea of all structures on the site will exceed 6,000 squaze feet Design Review is required. The proposed project currently exceeds 6,000 squaze feet and therefore requires Planning Commission review; and WHEREAS, the Planning Commission held a duly noticed Public Hearing at which time all interested parties were given a full opportunity to be heazd and to present evidence; and WHEREAS, the proposed project consisting of construction of a new secondary unit is Categorically Exempt from the Environmental Quality Act (CEQA) pursuant Section 15303, "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; 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: (a) Avoid unreasonable interference with views and privacy. The maximum height of the proposed secondary dwelling unit is 14 feet 6 inches. No windows are proposed on the North elevation. In addition, sixteen 15-gallon trees will be planted to buffer views of the structure from Peach Hill Road and neighboring properties and to increase privacy and reduce noise. (b) Preserve Natural Iandscape. Since the buffding site is flat, minimal grading is proposed. The proposed secondary dwelling unit will be in keeping with the general appearance of the site and neighborhood. (c) Preserve Native and Heritage Trees. No trees are proposed for removal. No trees are located in the vicinity of the footprint of the proposed secondary dwelling unit. Mature trees are located throughout property, but primarily along the periphery. (d) Minimize perception of excessive bulk. The proposed secondary dwelling unit is one-story, approximately 600 square feet, and less than 15 feet in height. It includes a hipped roof to minimize bulk. Architectural details such as arches, columns, cobble stone accents, divided fight windows, and a chimney break up building lines, create architectural interest, and reduce mass and bulk. The secondary dwelling unit is situated far back from Peach Hill Road and will be ~~~~~0 • surrounded by existing trees, as well as, sixteen new trees. The use of stucco and a slate rile roofing in earth tone colors will blend with the natural environs. (e) Compatible bulk and height. By definition, the proposed secondary dwelling unit is physically incidental and subordinate to the main structure on the site and other residences in the vicinity. (f) Currentgrading and erosion control methods. The proposal shall conform to the City's current grading and erosion control standards. (g~ Design policies and techniques. The proposed project conforms to all of the applicable design policies and techniques in the Residential Design Handbook in terms of compatible bulk, and avoiding unreasonable interference with privacy and views as detailed in the findings above and staff report. 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, plans and other exhibits submitted in connection with this matter, the application 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' date stamped April 27, 2004, 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. 2. The following shall be included on the plans submitted to the Building Division for the building and grading permit plan check review process: a. Four (4) sets of complete construction plans incorporating this Resolution as a separate plan page and containing the following: The site plan shall be stamped and signed by a Licensed Land Surveyor. ii. 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 all building setbacks are per the approved plans 3. FENCING REGULATIONS - 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. Any existing fences or walls not meeting the zoning ordinance standards shall be removed prior to the project being final. 4. 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. 5. Landscape plan shall be designed with efficient irrigation to reduce runoff, promote surface infiltration and minimize use of fertilizers and pesticides that can contribute to water pollution. 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. The height of the structure shall not exceed 14 feet, 6 inches as defined in Section 15- 06.340 of the Ciry Zoning Code. 8. Evergreen landscape screening including dense, tall, wide, and fast growing minimum 15- gallon Toyon trees (4), Italian Buckthorn trees (5), and Carolina Laurel Cherry trees (7) shall be installed prior to final occupancy inspection. 9. The applicant shall record a deed restriction for the secondary dwelling unit that restricts it so that it may only be rented to below market rate households prior to Building Permit issuance. FIRE DISTRICT 10. Applicant shall comply with all Fire Department conditions. GEOTECHNICAL CLEARANCE 11. The Project Geotechnical Consultant shall review and approve all geotechnical aspects of the final development plans (i.e., site preparation and grading, site drainage improvements and design parameters for foundations, walls and swimming pool) to ensure that the plans, specifications and details accurately reflect the consultants' recommendations. The Project Geotechnical Consultant shall consider the benefits of removing the distressed concrete Swale (if no longer needed due to new site improvements), if there is a potential for adverse drainage or infiltration due to its lack of effectiveness or distressed condition. The results of the plan review shall be summarized by the Project Geotechnical Consultant in a letter(s) and submitted to the Ciry Engineer for review and approval prior to issuance of permits. 12. The Project Geotechnical Consultant shall inspect, test (as needed), and approve all geotechnical aspects of the project construction. The inspections shall include, but not necessarily be limited to: site preparation and grading, site surface and subsurface drainage ~f1~®1.2 • C~ improvements, and excavations for fill keyways, and foundation construction prior to placement of fill, steel and concrete. The results of these inspections and the as-built conditions of the project shall be described by the geotechnical consultant in a letter(s) and submitted to the City Engineer for review and approval prior to Final Project Approval. The owner (applicant) shall pay any outstanding fees associated with the Ciry Geotechnical Consultant's review of the project prior to project Zone Cleazance. 13. The owner (applicant) shall enter into agreement holding the City of Sazatoga harmless from any claims or liabilities caused by or arising out of soil or slope instability, slides, slope failure or other soil related and/or erosion related conditions. CITY ATTORNEY 14. 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 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. Section 2. A Building Permit must be issued and construction commenced within 36 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 Ciry of Saratoga Planning Commission, State of California, this 9th day of June 2004 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: Chair, Planning Commission ATTEST: Secretary, Planning Commission ®®~®~a~ 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 Ciry Planning Commission. Property Owner or Authorized Agent Date ~~~~.~ Attachment 2 ~~~~ "_~ ~~ „„ y..~,.,.-. ~~~e o.,u r jury ues~gnc3roup 40t3 395 1549 P.03 Neighbor Notiflcatlon Template for Development Applications '~- /~-~.~ I ~ ~- Date: L l rJ ~y l ~~ ° . PROJECT ADDRESS: / Applicant Name: ~ t " Application Number: The Saratoga Planning Commission requires applicants to work with their neighbors to address issues and concerns regarding development applications prior to she evening of the public hearing on the proposed project. The Planning Commission does not look favorably upon neighbors who Jail to voice their concerns and issues when solicited by applicants prior to the public hearing. Stafjand the Planning Commission prefer that neighbors take this opportunity to express any c_orcerns or issues they may have directly to the applicant. Please ensure the signature oh'tltis document is representative ojall residents residing on your property. Irrespective of the opinion expressed below, you may reserve the right to amend your opinion al a later date aced communicate it to the City oj5aratoga. ^My signatwe below certifies the following: l have reviewed the project plans; l „nderstand the scone of work; and I do NOT have soy concerns or iasnes which ueed to be address by We applicant prior to the Citys public hearing on the proposed project. My signature below certifies the following: I have reviewed the project plans; I understand the scone of work; and 1 have issues or concerns, which after discussion witb the applicant, have not been addressed. My concerns are the following (please n attach'~a//,,d-ditional sheets if nece~ss~ary~)~: ~p~ ~~ ~ ~ t9_. _ ~ (JCJ t ~n -C/!~' ~, x ,~ ~'yf~~~~,~dh- Neighbor Name: ~ `~~ .J ~ ~ I5 u IN IS '~i III Neighbor Address: // 'J u NOV 1 3 2003 /l~0`7~ ~,~G,Or~- ~r"`ti ~` CITY OFSARATOGA JJd~"' " Neighbor Phone #: 7y~ /~ a Z Signature: Printed: ,,~ /_l ~ tjatY~7l"' 'YC~l1h~i~Yl City ojSaratoga Planning Department ~~c~~~.s • C~ Attachment 3 ®~~~~.~ • Attachment 4 ®~~~g9 ~ ~ AFFIDAVIT OF MAILING NOTICES STATE OF CALIFORNIA SS. COUNTY OF SANTA CIARA I C .- ,being duly sworn, deposes and says: that I am a citizen of the United States, over the age of 18 yfe/a1r/s~; that acting for the City of Sazatoga Planning Commission on the ~~day of t Y 2004, that I 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 Sazatoga 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 regulaz communication by United States Mail to the addresses shown above. C U~,~__'° ____ Signed oc~~zo City of Saratoga Community Development Depaztment 13777 Fruitvale Avenue Saratoga, CA 95070 408-868-1222 NOTICE OF HEARING The City of Saratoga's Planning Commission announces the following public hearing on Wednesday, the 9u' day of June 2004, at 7:00 p.m. in the City Council Chambers located at 13777 Fruitvale Avenue, Sazatoga, CA 95070. Details aze available at the Saratoga Community Development Department, Monday through Thursday from 7:30 a.m. - 5:00 p.m. APPLICATION #03-245 (517-22-073) Massie, 15301 Peach Hill Road; -The applicant is requesting design review approval for a detached secondary dwelling unit. Design review is required because the allowable floor area on the site exceeds 6,000 square feet. The maximum height of the propose structure is 14 feet 6 inches. The proposed Iloor azea of the structure is 602 square feet. Total Iloor azea on the site including the main residence and garage would be 6,598 squaze feet. The property is zoned R-140,000. All interested persons may appeaz and be heazd 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 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 Ciry uses the official roll produced by the County Assessor's office armually, in preparing its notice mailing lists. 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. Christy Oosterhous Associate Planner ®®~~`~• LONG HAROLD D 15269 HUME DR g s RATOGA CA 95070-6415 MARTINO RAYMOND A & LEE A 15374 MADRONE HILL RD SARATOGA CA 95070-6401 BERQUIST HERBERT C & HELEN M 15240 PIEDMONT RD SARATOGA CA 95070-6403 MCCANDLESS COMPANIES 3945 FREEDOM CJ1tCLE 1000 SANTA CLARA CA 95054-1226 GIANNANDREA JOHN & CAROL A 15363 PEACH HII.L RD SARATOGA CA 95070-6402 RINEHART ROBERT M & JULIE M 15230 MADRONE HILL RD SARATOGA CA 95070-6401 CHIDLOW CHRISTINE A TRUSTEE PO BOX 3096 SARATOGA CA 95070-1096 LINER MICHAEL S TRUSTEE ETAL 15257 HUME DR SARATOGA CA 95070-6415 SHOOR STANFORD M & LAURIE 15177 PIEDMONT RD SARATOGA CA 95070-6452 BROOKS CHARLES J & ROMONAJ 15355 PEACH HII.L RD SARATOGA CA 95070-6402 MASSIF TONY 15301 PEACH HILL RD SARATOGA CA 95070-6402 ANDRES FREDERICK S & SHARON B TRUSTEE 15255 PEACH HILL RD SARATOGA CA 95070-6469 •LAMPROS GEORGE W & GEORGETTE L TRUSTEE 15168 PIEDMONT DR - SARATOGA CA 95070-6451 HORII~IE S CHRIS & CAROLE 7 TRUSTEE 15250 PEACH HILL RD SARATOGA CA 95070-6448 JOHNSON SARTTA K 15277 PEACH HILL RD SARATOGA CA 95070-6469 DUKES DARRELL E & ANGELIN M TRUSTEE 15329 PEACH HILL RD SARATOGA CA 95070-6402 WALKER WM WAYNE & SARAHJTRUSTEE 15315 MADRONE HILL RD SARATOGA CA 95070-6401 DALE ROBERT L & PATRICIA J MCGUIRE-CHAIDES TRUSTEE KATHLEEN 15419 PEACH HII..L RD 15305 MADRONE HILL RD SARATOGA CA 95070-6402 SARATOGA CA 95070-6401 SOOZANI ALI & LIDA D 15180 PIEDMONT RD SARATOGA CA 95070-6451 LAVEY THOMAS C & JUDITH M LA~RRIET C GEORGE A & 15375 PEACH HILL RD 15397 PEACH HILL RD SARATOGA CA 95070-6402 SARATOGA CA 95070-6402 CAREY DAVID J & TERESA R 15320 PEACH HILL RD SARATOGA CA 95070-6448 JOANNE OLSEN 15195 PIEDMONT RD SARATOGA CA 95070-6452 'HRAN WILSON O II & E~T'HER W 15221 PIEDMONT RD iARATOGA CA 95070-6403 CAREY TERESA R & DAVID J 15320 PEACH HILL RD SARATOGA CA 95070-6448 NEGIN HARLEY B & JUDITH M 15172 PEACH HILL RD SARATOGA CA 95070-6448 SCATONA INVESTMENTS LLC 409 WASHINGTON ST 201 MONTEREY CA 93940-3054 JOANNE OLSEN 15195 PIEDMONT RD SARATOGA CA 95070-6452 WALLIN CLYDE R & MARCIA TRUSTEE 15288 PEACH HILL RD SARATOGA CA 95070-0000 ®~~~22 PELIO & ASSOCIATES ~ ~ • 14573 BIG BASIN WY SARATOGA CA 95070 ®~~$~~ Saratoga Planning Commission Minutes of June 9, 2004 ATTACHMENT E Motion: Upon motion of Commissioner Zutshi, seconded Planning Commission granted a Design Review App significant portion of the existing house and add square iee~ iur n w.a, ..,,~, area of 4,333 square feet on property loc at 19870 Mendelsohn Lane, with the added condition that the Tireplaces a living a family rooms be placed back-to- back in order to share a ch' y stack, by the following roll call vote: AYES: Gara unter, Nagpal, Rodgers, Schallop and Zutshi NOES: ne ABSE Uhl . TAIN: None .~« PUBLIC HEARING -ITEM NO. 3 APPLICATION #03-245 (517-22-073) MASSIF, 15301 Peach Hill Road: The applicant is requesting Design Review Approval for a detached secondary dwelling unit. Design review is required because the allowable floor area on the site exceeds 6,000 square feet. The maximum height of the proposed structure is 14 feet, 6 inches. The proposed floor area of the structure is 602 square feet. Total floor area on the site, including the main residence and garage, would be 6,598 square feet. The property is zoned R-1-40,000. (CHRISTY OOSTERHOUS) Associate Planner Christy Oosterhous presented the staff report as follows: • Advised that the applicant is seeking Design Review Approval to construct a 602 square foot detached secondary dwelling unit with a maximum height of 14 feet, 6 inches. The unit will include a slate roof and cobblestone accents. The color is sand, which matches the main residence. • Explained that in July 2001, the applicant received Design Review Approval for a new home and pool. • Added that the Planning Commission is reviewing this secondary unit this evening only because it results in a total floor area on the site in excess of 6,000 square feet. Only the design is up for consideration as the secondary dwelling unit is allowed by right. • Informed that the Code limitations for one wood burning fireplace is per structure rather than per property. • Said that the neighbor to the north has concerns. To address those concerns, modifications have been made to the plans, including a reduction in height, a shift in the positioning of the footprint and additional landscape screening. • Advised that geotechnical review and clearance has been issued. • Said that this proposal is consistent with required findings and recommended approval. Commissioner Hunter pointed out three letters and said there appears to be some confusion about why secondary units are allowed by right. Asked if the Commission has the authority to pick the siting of the unit on this property and suggested that staff explain the State Law pertaining to second units. Director Tom Sullivan: • Explained that legislation was adopted and took effect a year ago whereby the State took away any City or County right to hold hearings to approve secondary dwelling units. They are permissible as aright and cannot be reviewed at public hearings. Saratoga Planning Commission Minutes of June 9, 2004 Page 10 • Added that if a proposal reflects a conversion into a second unit, that request is handled over the counter. • Said that if a proposal is for a new second unit, it comes before the Planning Commission for Design Review only and not the use itself. The City has no authority to say yes or no to second dwelling units. • Clarified that if there were no kitchen facility, this would be a guest house rather than a second dwelling unit and would require a Use Permit approval. • Added that a deed restriction is proposed that states if this unit were to be rented, it would be rented as a BMR (below market rate) unit. This is an incentive to meet the Housing requirements assigned to the City of Saratoga. Commissioner Nagpal asked if the deed restriction lasts forever. Director Tom Sullivan replied yes. He added however that most likely these units would never be rented. Associate Planner Christy Oosterhous advised that this unit is in the general azea of the previous second unit on this property that was demolished prior to construction of the new main house. Commissioner Hunter: • Pointed out that the previous unit was visible from Peach Hill Road. • Said that there have been two letters submitted expressing concern about the visibility of the new garage. • Asked if staff had heard from these neighbors at the time that the original house plan was reviewed. Associate Planner Christy Oosterhous replied that she asked the project planner that handled that application but he didn't recall. Commissioner Rodgers asked if the proposed screening is sufficient to help alleviate the concem of the neighbors across the street. Associate Planner Christy Oosterhous said that the screening was more for the neighbors to the north driveway. There aze some Oak trees along Peach Hill Road. Chair Gazakani asked if the cherry trees would be removed. Commissioner Hunter said their removal is not proposed in the landscape plan. Chair Garakani questioned why this unit was not considered at the same time that the main house and pool were considered. Director Tom Sullivan replied that the change in the law that took effect last yeaz now allows this unit while previous requirements had onerous conditions. There were very few legally established second units in the City under the old ordinance. The City had to unadopt its old ordinance and create new requirements. Commissioner Hunter asked if cabanas could be changed into secondazy living units. Sazatoga Planning Commission Minutes of June 9, 2004 Page 11 Director Tom Sullivan said that there are no design review issues for second living units. They must simply meet setbacks, heights, materials and parking requirements. Commissioner Nagpal clarified that the Commission would not be looking at this at all if it were not for the fact that the site exceeds 6,000 square feet in total floor area. Chair Gazakani opened the Public Hearing for Agenda Item No. 3. Mr. Bob Flurry, Project Designer: • Introduced himself and said he was available for any questions from the Commission as was his client, Mr. Massie. Chair Garakani asked about the mitigation of the comer of the property. Mr. Bob Flurry said that no conclusion has been reached since the site visit with the neighbor. Commissioner Hunter asked where the screening landscaping would be planted. Mr. Bob Flurry said the location was determined to screen Mrs. Johnson's property. Commissioner Hunter said that she spent a lot of time on site today and pointed out that two neighbors who had concerns could not be here tonight. Commissioner Nagpal asked about the retaining wall in the area in which it was not installed. Mr. Bob Flurry said that the original plan had been to put it all around but that he was not involved with the project at that time. The retaining wall will remain as currently built. Chair Garakani pointed out that the applicant has two children and questioned their safety. Commissioner Hunter asked who the man was that was there during the site visit. Mr. Bob Flurry said that the man was the project manager. Commissioner Hunter asked if the neighbors had attended the original public hearing. Mr. Tony Massie, Property Owner and Applicant, 15301 Peach Hill Road, Saratoga: • Replied no. • Added that they had come to agreement regazding screening. Chair Garakani asked Mr. Massie about the plans to ensure the safety of his children to prevent them from falling off the slope. Mr. Tony Massie replied that the azea is not that steep. Instead the azea of concern is the west side of the property and they will put railings in there. Commissioner Hunter asked Mr. Tony Massie if he would be willing to remove the concrete pathway at the edge of the property. Saratoga Planning Commission Minutes of June 9, 2004 Page 12 Mr. Tony Massie advised that they originally did not install the retaining wall at that portion because Mrs. Johnson didn't want it there. - Commissioner Nagpal asked Mr. Tony Massie if he has any problem letting the grass grow to the edge with the removal of the path and installing the retaining wall there if necessary as well as putting in additional screening. Mr. Tony Massie advised that Mrs. Johnson wanted a view of the hill but that he prefers screening himself. Dr. Serita Johnson, 15277 Peach Hill Road, Sazatoga: • Said that it is satisfying to see the work done by the Planning Commission. • Opined that the staff report is biased. • Said she submitted a letter against this project. • Stated that the desert tan paint color appears yellow or gold. • Said that the secondary dwelling unit would be located next to the large garage and that the house and garage already appear bulk. This cabana will provide more bulk to the area. • Advised that the reduced height and extended setback does not adequately satisfy her concerns. • Provided copies of the City's Design Review Handbook, reading a portion that states that landscaping is not intended to mitigate design mistakes. • Said that the previous secondary unit was a one story structure with a flat roof. She could only see a small portion from her property. • Expressed her disagreement that this unit will be an improvement. • Said that she had two visits with staff and felt that her concerns were glossed over. • Stated that she is fearful of landslides. • Declared that 6,000 square feet in structures for this property is larger than what exists on surrounding properties. • Stated she has a problem with privacy, views, noise and heights. • Asked that the Commission not rely on landscaping to reduce the appearance of bulk. • Added that privacy should be addressed in the design phase per page 18 of the Design Handbook. Additionally, the handbook suggests avoiding siting at the sides of lots, not to block views. Her view is being blocked by this cabana. • Stated that several provisions of the Design Handbook are being ignored. • Questioned why the City is so eager to approve this secondary dwelling unit and the reason behind the deed restriction for low-income housing. • Suggested that this is an abuse of the intent of the law, which was not created to build cabanas. • Said that this makes no sense and that she is offended that this can be done with her concerns so minimally addressed. Commissioner Hunter asked Dr. Serita Johnson if the terrace area at the front of her house is a chief outdoor area or is another portion of the yard used more frequently. Dr. Serita Johnson said that they have a deck that they use often. Saratoga Planning Commission Minutes of June 9, 2004 Page 13 Commissioner Rodgers said that the Commissioners had tried to hear Dr. Serita Johnson's concerns out during yesterday's site visit. She asked staff if the intent of the modified State law is not to allow cabanas. Associate Planner Christy Oosterhous advised that this unit has a kitchen with cooking facilities, which makes it a secondary dwelling unit. Commissioner Rodgers asked if there aze differing opinions on interpretations of the State law, which allows secondary dwelling units as a matter of law. Dr. Serita Johnson replied that she thinks it is a sham. Commissioner Rodgers said that she does not like to see a structure there as she does not believe it complies with the spirit of State law. Dr. Serita Johnson suggested that it be relocated elsewhere on this property. Commissioner Hunter asked where the original pool used to be situated on this property. Dr. Serita Johnson replied down a flight of stairs in back of the property. She added that during the site visit with the Commissioners, they discussed trees, views, etc., but not about the requirements of the Design Handbook. Commissioner Rodgers said that there is a conflict between the desire for privacy and maintaining views. Asked if there is some sort of screening device that could be implemented, perhaps one that is moveable. Dr. Serita Johnson replied that this does not take care of noise impacts. Mr. Fred Frederick, 15277 Peach Hill Road, Sazatoga: • Identified himself as the husband of Dr. Serita Johnson. • Asked if it would be possible to get a copy of the geotechnical report in order to have it reviewed. • Clarified that they would have 15 days to appeal any decision made this evening. • Pointed out that their patio is their evening cocktail place. Director Tom Sullivan said that Mr. Fred Frederick could visit the Public Works Department where the Associate Engineer has a full geotechnical file and from whom Mr. Frederick can obtain copies. Someone from the audience asked for a definition oflow-income housing. Director Tom Sullivan clarified that low income is based upon average income levels and changes regularly. In Santa Clara County, it is fairly high and includes lots of public service employees. Commissioner Hunter said that it equals approximately $40,000 a year. These BMR units could go to elderly parents on Social Security or to teachers or firefighters that maybe at the lower end of their pay scales. Saratoga Planning Commission Minutes of June 9, 2004 Page 14 Director Tom Sullivan concurred with the information provided by Commissioner Hunter, saying that she is right on the mark. _ Mr. Tony Massie said that he understands his neighbor's concerns and is willing to put in necessazy screening. Commissioner Hunter questioned the paint color. Commissioner Nagpal asked Mr. Tony Massie if he had evaluated the possibility of locating this second unit elsewhere on his property. Mr. Tony Massie replied yes, he had but came to the conclusion that this was the most reasonable location. Commissioner Nagpal asked about the location of the original pool as an alternate site. Mr. Tony Massie replied that this area is neither sufficiently stable nor large enough and would require additional geological study. Commissioner Hunter added that the neighbor on the other side would then be concerned. Mr. Tony Massie said that there is a retaining wall on the west side of the property and that the neighbor there did not want a structure there and he didn't like the location of the original pool. Chair Gazakani stated that he has a problem with adding to the original plans approved for this site. Commissioner Hunter said that there is already permission for the pool and main house, which are almost completed. Director Tom Sullivan clarified that the Commission can deny Design Review for the structure itself but not for its use as a secondary dwelling unit. Commissioner Hunter said that if denied, it would have to go back to the drawing boazd. Commissioner Rodgers asked why this unit is needed. Mr. Tony Massie said they desire this unit to relate to the outside yazd. Admitted that they plan to utilize it as a cabana and assured that they are not constructing it as a rental unit. Chair Garakani asked Mr. Tony Massie why this unit was not included in his original plan. Mr. Tony Massie said that they chose to use the allowable square footage for the main house. Commissioner Hunter asked how large is this property. Mr. Tony Massie replied 1.5 acres with about three-quarters of an acre being flat. Commissioner Rodgers asked about landslides. Sazatoga Planning Commission Minutes of June 9, 2004 Page 15 Mr. Tony Massie advised that there was one in back, west of the large Oak tree. It was corrected about _ 18 yeazs ago. Commissioner Rodgers asked if there is a retaining wall in that area now. Mr. Tony Massie replied pretty close to that area. Chair Garakani closed the Public Hearing for Agenda Item No. 3. Commissioner Hunter said that it is very difficult as there is not just one but three neighbors who are expressing concerns about this unit. Commissioner Zutshi: • Said that she didn't find the main house to be bulky. • Pointed out that everyone is allowed to have the maximum use of his or her property. • Stated that the concerns of Dr. Serita Johnson are valid but wondered if she values privacy or views more. • Stated that she has no objections to this project. Commissioner Schallop asked about height restrictions. Commissioner Zutshi pointed out that just a little portion is viewed from the Johnson property and that Mr. Massie can put in the retaining wall. Commissioner Rodgers pointed out that Mr. Tony Massie is willing to put in screening landscaping. Commissioner Zutshi added that Mr. Massie is also willing to remove the walkway at the edge of the property. She pointed out that most property owners don't have parties all the time but rather just occasionally. Commissioner Rodgers: • Expressed her concern for the perception of bulk from Peach Hill Road, from which it appeazs there is lots of a straight wall. • Agreed that trees and landscaping could not be used for justification for bulk. Chair Garakani stated that there are several issues in the Design Handbook that aze not met by this project. Suggested that the secondary dwelling unit be incorporated as a part of the new garage structure. Commissioner Zutshi pointed out that to do so would result in a huge single structure, which would appear more bulky than two separate buildings. Chair Garakani suggested that the articulation of the roofline could deal with that fact. Commissioner Nagpal: • Said that she appreciated a lot of what Dr. Serita Johnson had to say. Saratoga Planning Commission Minutes of June 9, 2004 Page 16 Pointed out that this unit will be used as a cabana rather than a secondary dwelling unit per the applicant himself. However, the Design Review for the secondary unit is what is before the Commission today. Added that existing screening is remarkable along that side and that it doesn't appear as if there is a better location available on the property for this unit. Commissioner Rodgers reminded that staff had the applicant move the unit back by seven feet to help alleviate concerns. Commissioner Nagpal stated that the view is shielded. Commissioner Hunter: • Said that she drove around the area five times and can see where the pool house is going to be. • Reminded that 16 trees are proposed and that it would not really be seen much when these trees mature. • Said that she thinks that Peach Hill Road area is as good as it gets and has always thought so. • Agreed that it can be a huge shock to neighbors when older homes are replaced with huge new ones. • Conceded that there really is no place else on this property for this secondary unit. • Instructed the applicant to do a very good job with the screening. • Stated that the Commission has to let this unit go in there as it is a reasonable place to put it and the Commission's hands are pretty much tied. • Said that she hopes the concrete path is removed and that good screening is placed there. Director Tom Sullivan clarified that the Planning Commission has the authority to deny Design Review approval for design-based reasons but not for its intended use as a secondary unit. Commissioner Hunter said that the design is nice but the placement is in questions. Director Tom Sullivan reminded that placement is part of design. Assured that the Commission does have the authority to deny. Added that he is not specifically recommending that action but wants to be sure the Commission understands its rights to deny for design reasons. Commissioner Hunter asked if the Commission could do a conditional denial. Director Tom Sullivan replied no. Commissioner Schallop asked about the building color. Commissioner Hunter said that she agrees it appears gold and does not blend in that well. Commissioner Rodgers supported the idea of completing the existing retaining wall and screening vegetation facing Peach Hill Road. Chair Garakani said that this proposal does not fit with what is there and that he cannot accept it unless it was to be integrated with the garage somehow. As it is proposed, he cannot support this request. Commissioner Schallop: Saratoga Planning Commission Minutes of June 9, 2004 Page 17 • Stated his concurrence with Commissioner Hunter's comments. • Said that there are ways available to address the privacy and bulk issues and that screening is the - best compromise. • Announced that he is comfortable approving this request. Commissioner Nagpal asked about the issues relating to the building color. Commissioner Zutshi said that Director Tom Sullivan would take care of comparing the actual to the approved color board. Commissioner Hunter said that she is totally against wood burning fireplaces in hillside locations due to spazks and potential hillside fires. Director Tom Sullivan said that Ordinance allows one wood burning fireplace per structure. Commissioner Nagpal asked if a requirement for the completion of the retaining wall could be supported. Commissioner Hunter said if Dr. Johnson wants it. Chair Gazakani asked about potential fencing in the future. Commissioner Zutshi said that the issue of fencing would come back for review. Director Tom Sullivan advised that fencing could not be placed on top of a retaining wall but rather would have to be set back two feet from a retaining wall. Motion: Upon motion of Commissioner Nagpal, seconded by Commissioner Zutshi, the Planning Commission approved a Design Review request for a detached secondary dwelling unit, which results in a total floor area on the site at 6,598 square feet on property located at 15301 Peach Hill Road with the following additions to the conditions: • No wood burning Tireplace allowed in the secondary dwelling unit; • Staff will work with the applicant regarding the retaining wall, screening and removal of the concrete pathway along edge of the grass; • Screening will be provided for Peach Hill Road, by the following roll call vote: AYES: Hunter, Nagpal, Rodgers, Schallop and Zutshi NOES: Garakani ABSENT: Uhl ABSTAIN: None *** PUBLIC HEARING -ITEM NO. 4 AYYL1l;Al1V1V $V1-L40 JOV-IV-V'~J - uiv v~i+l .~~~~«~~~--- ---- _____ - - Road: The applicant is re approval of a Design Review and a Conditional Use Permit to .~,+.. nc CARATOGA • GOALS, POLICIES, AND OBJECT. ATTACHMENT F For all of the programs listed below, the Ciry will undertake an ongoing martcetu~K ~~~~. • •••-• consists of.' I) articles published quarterly in the Saratogan describing the City's various programs, 1) posting of the same articles continuously on the City's web site, 3J and quarterly press releases to KSAR for pasting on their Public Bulletin Board. GOAL 1: TO ACCOMMODATE THE CITY'S FAIR SHARE OF THE BAY AREA REGIONAL HOUSING NEED FOR ALL INCOME GROUPS Objective: To designate sufficient vacant land and/or sites with re-use potential to accommodate the City's allocation under the Regional Housing Needs Determination (RHND) adopted by the Association of Bay Area Governments. The RHND allocation for Saratoga between January 1, 1999 and June 30, 2006 is as follows: Units Provided Units Approved Remaining come Level I Dwelling % of Since January or Under Allocation n Units Total 1999* Construction** Very Low 75 14% 0 49 26 Income Low Income 36 7% 0 0 36 Moderate 108 20% 0 108 0 Income Above Moderate 320 59% 161 146 13 Income Total 539 100% 172 303 64 Source: ABAG 1999-2006 Regional Housing Needs Determim *As of May 2001. "Since May 2001. Distribution of wits approved or under construction since May 2001 is based proposed sales prices and rental costs of units approved or under construction in Phases I and II of Saratoga Retirement Carr A 49 of 110 units in Phase I have been reserved for households earning less than S 15,000 annually (see Appen )~ Note.' Dwelling units provided or under construction meet the U.S. Census and California Department of Finance definitions of housing unit, which require: IJ occupancy as separate living quavers in which the occupants live crnarately from any other individuals,. and 2) direct access from outside the building or through a common hall. Program 1.1: Zoning Code Changes for Second Units The City can accommodate the total number of dwelling units allocated by ABAG under the RHND through a combination of strategies, including encouraging the construction of additional second dwelling units on single-family lots.. To meet the needs of very low-, low-, and moderate-income households, the City will amend its second unit standards to include the following changes: eliminating age-related occupancy restrictions, eliminating the 1.6-acre minimum site area requirement for detached second units, 1 CITY OF SARATOGA 2002 HOUSING ELEMENT • eliminating the annual limit of 20 permits on the approval of second units, and • • allowing uncovered parking if necessary to achieve affordability to very ]ow- or low- income occupants. Require property owners receiving permits for new second units to record an affordability covenant for at least 30 yeazs restricting occupancy of their second units to very low- or low- income households at affordable rent level. The City will promote its second unit standards by posting information on the City's web site, preparing an information brochure to be distributed to public places in the City, and providing annual information to single-family property owners on the benefits of, and permit requirements for, second units. The City will monitor the production of second units through an annual report to the City Council on the number of new second units constructed each year and their affordability by income level. If the number and affordability of second units falls short of the assumptions contained in "Discussion of New Construction Objectives" (five units per yeaz), the City will adopt additional revisions to the Zoning Ordinance and additional incentives to increase the likelihood that the new construction objectives contained in the Housing Element can be achieved. Timeframe: Adopt Zoning Code amendments by July 1, 2002. Report annually to the City Council, 2002 - 2006. Adopt revisions to zoning requrements or incentives, if needed, by December 2003 to achieve new construction objectives. Responsible Agency: Community Development Department, Planning Division (draft Zoning Code amendments); Planning Commission (review and recommend amendments to City Council); City Council (adopt Zoning Code • amendments). Funding: General Fund. Program 1.2: Amend Zoning Code to Implement aMixed-use Overlay zone The City will adopt a Zoning Code amendment to implement a residential mixed-use verlay zone that will be applied to al] commercial zones within the Ciry of Saratoga, includ' sites with the greatest immediate potential for residential-mixed use shown in Fi and listed in Appendix B. The new mixed-use overlay zone will contain appropriat velopment standards, including residential density and parking standards, suitable for development.of low- and moderate-income housing. Projects that include residen ' -commercial mixed-uses will be subjected to the City's density bonus-affordability re ment (see program 2.1). The City will apply the following standards for implementatio a mixed-use overlay zone: Maximum net base density of at least welling units per acre, excluding density bonuses for very low-income, low-income, or for housing (calculated as the equivalent net density for that portion of the site developed residential use.). Dwelling units shall located in mixed-use structures above first-floor or to the reaz of non- residential uses. a City will permit residential-only structures of two stories to the reaz of commercial es fronting on a street. This provision will ensure that the 26-foot height limit does not im an impediment to achieving a maximum net residential density on mixed-use site of 25 ' s per acre with a density bonus for affordable or senior housing. . SARATOGA CITY COUNCIL MEETING DATE: August 4, 2004 ORIGINATING DEPT: City Attorney AGENDA ITEM: CITY MANAGER: L%°-' PREPARED BY: Richard Taylor DEPT. HEAD: SUBJECT: Adoption of Utility User Tax Ordinance, Advisory Ballot Measure Regarding Use of Utility User Tax Revenues, and Resolution Placing the Ordinance and Advisory Measure on the November 2, 2004 Ballot and Providing Direction Regarding Preparation of Ballot Arguments RECOMMENDED ACTIONS: 1. Introduce and waive first reading of Utility User Tax Ordinance to become effective only if approved by the voters of the City of Saratoga. 2. Adopt text for Advisory Ballot Measure Regarding Use of Utility User Tax Revenues. 3. Adopt Resolution placing advisory measure and utility user tax ordinance on the ballot for the November 2, 2004 election. 4. If Council so wishes, designate Councilmembers to prepare ballot arguments in support or opposition to the two measures. STAFF REPORT: Summary At its meeting of July 21, 2004 the City Council reviewed a draft utility user tax and companion advisory measure for voter consideration at the November election. These measures were prepared in response to the report of the Revenue Review Committee. As recommended by the Revenue Review Committee, the tax would be a 5% tax on utility usage in the City. The tax would not take effect unless approved by a majority of voters voting at the next City election. The tax would sunset after 10 years. The tax would be a "general tax," meaning that it would not be earmarked for any specific purpose. The ordinance attached to this staff report is discussed below. It is similar to the draft reviewed by the City Council on July 21, 2004 but includes a number of technical revisions in response to comments from PG&E. At its July 21 meeting the City Council directed staff to return with alternative language for a possible advisory measure. This staff report includes two options. The first is based largely on the detailed measure presented on July 21. The second presents a shorter and more general statement of policy. A third option would be have no advisory measure. The City Council initially requested preparation of an advisory measure for Council consideration because the use of tax revenues would not be restricted by the terms of the tax measure. However, there is no legal requirement that the measure be accompanied by an advisory measure. Utility User Tax The Utility User Tax Ordinance is presented as Attachment A. It would be a 5% tax on use of electric, gas, telephone (including wireless), water, and video service utilities. It would sunset after ten years. The ordinance specifies that that the tax will be used to fund the general revenues of the City. The ordinance exempts electricity and gas users from the tax on those utilities if the user is eligible for the California Alternate Rates for Energy (CARE) program established by state law. Telephone service users who are eligible for the State's "Lifeline" program would be exempt from the tax on telephone services. The ordinance also allows the City Council to establish other exemptions by resolution. This provides flexibility to adopt additional exemptions in the future in consultation with utility providers. The draft reviewed by the City Council on July 21, 2004 provided that if a user makes a partial payment to the utility provider, the provider must remit to the City the City's pro-rata share of that payment. Based on further discussions with PG&E regarding their collection programs this draft has been revised to provide that partial payments shall be applied first to the bill issued by the provider and that only after that bill is paid in full shall payments be applied to the user tax. While this could result in slightly lower initial revenues the costs of collecting the tax under the original approach could have been prohibitive. Because the tax would be a general tax, the decision to submit the tax to the voters must be approved "by atwo-thirds vote of all members" of the City Council. (Gov't Code § 53724(b).) That means that at least four "yes" votes are required to place the measure on the ballot. Although a general tax requires supermajority Council approval to be placed on the ballot, it requires approval by only a simple majority of the voters to be adopted. (Gov't Code § 53723.) All general taxes must be considered by the voters at a 2 regular election for members of the City Council. (Cal. Const. Art. XIII C § 2(b).) - In order to place the measure on the November 2, 2004 ballot, the Council must act no later than August 6, 2004. Advisory Measure Attachment B includes two alternative advisory measures that could be placed on the ballot with the WT to provide guidance to the City Council as to the manner in which revenues generated should be spent. Option 1 is based on the draft reviewed by Council on July 21. It has been revised to clarify that it is an advisory measure only. Option 2 is a more general statement of policy. The City Council may wish to change the items referenced in either option or change the level of detail in each option. Members of the public have inquired as to the legal authority for the City to propose an advisory measure regarding the use of tax revenues on the ballot that will also include the Utility Users Tax. This approach was upheld in Coleman v. Countyof Santa Clara (1998) 64 Ca1.App.4th 662. That case considered a challenge to the "Measure B" nine year general sales tax increase approved by Santa Clara County voters in 1996. The same ballot included "Measure A" - anon-binding advisory measure stating voters' intent that any new sales tax revenues be spent on a list of projects specified in the advisory measure. The plaintiffs argued that the sales tax should be considered a special tax (requiring a 2/3 vote for approval) because the advisory measure directed the manner in which the funds should be spent. The court disagreed, holding that because the advisory measure imposed no legal restriction on the use of the tax revenues it did not convert the sales tax from a general tax to a special tax. The approach under consideration by the City Council is comparable. Because the advisory measure being considered by the Council is strictly advisory and would not impose any legal constraint on the manner in which the funds from the tax could be used it does not convert the Utility Users Tax from a general tax to a special tax. Resolution Calling Election and Authorizing Rebuttal Arguments Attachment C is a resolution placing the advisory measure and the utility users tax on the November 2, 2004 ballot. On June 2, 2004 the City Council adopted Resolution 04-040 calling a regular City election and requesting the County Registrar of Voters to consolidate that election with the regular statewide election. Attachment C would amend Resolution 04-040 to request that the advisory measure and UUT also be placed on that ballot. It also directs that the City Attorney prepare an impartial analysis of each measure. The resolution would also authorize the filing of rebuttal arguments concerning the two measures. State law provides that arguments for and against each measure maybe submitted in accordance with the schedule adopted by the County Registrar of Voters. If the City wishes to authorize rebuttals to those arguments it must specifically act to do so. The resolution contains this authorization. The authorization would remain in effect for all subsequent elections unless rescinded by a future City Council. If the Council does not wish to authorize rebuttal arguments, paragraph 10 should be deleted from the resolution. Ballot Arguments State law provides that the City Council may authorize one or more members of the Council to file a written argument for or against each measure. (Elections Code section 9282.) In the event that multiple arguments are submitted, an argument submitted by an authorized member of the City Council would take precedence over another argument. If Council wishes, it may authorize Councilmembers to prepare arguments for or against each measure. FISCAL IMPACTS: If approved the users tax is projected to generate an estimated $3.2 million per year. County elections officials have estimated that the cost of the election including two ballot measures and two City Council seats is likely to be approximately $85,930. They estimate that if the ballot included one ballot measure and two council seats the cost would be approximately $62,773. ADVERTISING, NOTICING AND PUBLIC CONTACT: A public hearing notice was been published in the newspaper. CONSEQUENCES OF NOT ACTING ON RECOMMENDED MOTION(S): The City would not present a utility users tax or advisory measure to the voters. FOLLOW UP ACTIONS: Staff will implement Council direction. ATTACHMENTS: Attachment A: Utility User Tax Ordinance Attachment B: Advisory Measures -Options 1 and 2 Attachment C: Resolution Calling Election 4 ORDINANCE AN ORDINANCE ADOPTING A UTILITY USERS TAX THE CITY COUNCIL OF THE CITY OF SARATOGA DOES ORDAIN AS FOLLOWS: Section 1. Adoption. The Utility Users Tax Ordinance set forth as Attachment 1 hereto is hereby adopted in its entirety. Section 2. Publication. This ordinance or a summary thereof shall be published once in a newspaper of general circulation of the City of Saratoga within fifteen days after its adoption. Section 3. Effective Date. This ordinance shall not take effect until (a) it is approved by a majority of the voters voting thereon at a regulaz municipal election and (b) ten (10) days after the results of said election are declazed by the City Council The foregoing ordinance was introduced and read at the regulaz meeting of the City Council of the City of Sazatoga held on the 4~' day of August, 2004, and was adopted by the following vote following a second reading on the 15t day of September, 2004: AYES: ABSENT: MAYOR, CITY OF SARATOGA, CALIFORNIA ATTEST: CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY Ordinance No. AN ORDINANCE ESTABLISHING A UTILITY USERS TAX SECTION 1. Chapter 5 of the Saratoga Municipal Code is hereby amended by adding Article 5.30 thereto to read as follows: ARTICLE 5.30 Section 1.1 Purpose This article is enacted solely to raise revenue for the general governmental purposes of the City. All of the proceeds from the tax imposed by this article shall be placed in the City's general fund and used for the usual current expenses of the City. This Article shall be known and maybe cited as the Utility Users Tax Ordinance. Section 1.2 DeSnitions The following words and phrases whenever used in this Article shall be construed as defined in this section. A. "Billing Address" shall mean the mailing address of the service user where the service supplier submits invoices or bills for payment by the customer. B. "Charges for Mobile Telecommunications Services" has the same meaning and usage as set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. Sections 116 and 124) and the regulations thereunder. C. "City" shall mean the City of Saratoga. D. "City Manager" means the City Manager of the City, or his or her authorized representative. E. "Cogenerator" shall mean any corporation or person employing cogeneration (as defined in Section 218.5 of the California Public Utilities Code) for producing power for the generation of electricity for self use or sale to others from a qualified cogeneration facility (as defined in the federal Public Utility Regulatory Policies Act of 1978 and regulations thereunder). F. "Exempt Wholesale Generator" shall have the same meaning as set forth in the Federal Power Act (1S U.S.C.S. 79z-Sa) and regulations thereunder. G. "Gas" shall mean natural or manufactured gas or any alternate hydrocarbon fuel which maybe substituted therefor. H. "Mobile Telecommunications Service" has the same meaning and usage as set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 124) and the regulations thereunder. I. "Month" shall mean a calendar month. J. "Non-utility Supplier" shall mean: 1) a service supplier, other than an electrical corporation supplying electricity to all or a significant portion of the City, which generates electricity in capacities of at least 50 kilowatts for sale to others, and shall include, but is not limited to, any publicly-owned electric utility, investor-owned utility, cogenerator, exempt wholesale generator, municipal utility district, federal power marketing authority, electric rural cooperative, or other supplier or seller of electricity; 2) an electric service provider (ESP), electricity broker, marketer, aggregator, pool operator, or other electricity supplier other than a supplier of electric distribution services to all or a significant portion of the City, which sells or supplies electricity or supplemental services to electricity users within the City; and, 3) a gas service supplier, aggregator, marketer, or broker, other than a gas - corporation supplying gas to all or a significant portion of the City, which sells or supplies gas to users within the City. K. "Ordinance" shall mean the Utility Users Tax Ordinance. L. "Person" shall mean, without limitation, any natural individual, firm, trust, common law trust, estate, partnership of any kind, association, syndicate, club, joint stock company, joint venture, limited liability company, corporation (including foreign, domestic, and non-profit), municipal district or municipal corporation (other than the City), cooperative, receiver, trustee, guardian, or other representative appointed by order of any court. M. "Place of primary use" means the street address representative of where the customer's use of the telecommunications service primarily occurs, which must be the residential street address or the primary business street address of the customer. In the case of ~~ mobile telecommunications services, place of primary use" must be within the licensed service area of the home service provider, and shall have the same meaning and usage as set forth in the Mobile Telecommunications Sourcing Act (4 U.S.C. Section 116 et. seq.) and the regulations thereunder. N. "Self-Collector" means any service user subject to the tax imposed by Sections 2.2 or 2.3, hereof, which produces gas or electricity for self-use, or which receives gas or electricity directly from anon-utility supplier not under the jurisdiction of this Ordinance, or which otherwise is not having the full tax due on the use of gas or electricity in the City that is directly billed and collected by the service supplier or its billing agent. O. "Service Address" means the residential street address or the business street address of the gas, electric, water or video service user. For a telephone communication service user, "service address" means: 1) The location of the telecommunications equipment to which a service user's call is charged and from which the call originates or terminates, regardless of where the call is billed or paid; or, 2) If the location in subsection (N)(1) is unknown, the service address means the location of the service user's place of primary use. P. "Service Supplier" shall mean any regulated or non-regulated entity, or person, including the City, that provides telephone communication, electric, gas, water or video service to a user of such services within the City, and including any self- collector, that is required to collect or self-impose and remit a tax as imposed by this Ordinance, including its billing agent in the case of electric, gas, water or video service. Q. "Service User" shall mean a person required to pay a tax imposed by this Ordinance. R. "State" shall mean the State of California. S. "Tax Administrator" shall mean the Finance Director of the City. T. "Telephone Communication Services" shall include "communications services" as defined in Sections 4251 and 4252 of the Internal Revenue Code (26 U.S.C.A.), and the regulations thereunder, and shall include teletypewriter exchange and similar data services, and any service that is capable of transmitting telephonic quality communications [including the use of Internet Protocol (IP) or other similar means], whether provided by analog, digital, electronic, radio or similar means through "interconnected service" with the "public switched network" [as these terms are commonly used in the Federal Communications Act and the regulations of the Federal Communications Commission -see 47 U.S.C.A. Section 332(d)] or over digital networks by which communications with a substantial portion of the public is available (e.g., voice using internet protocol or VoIP), and whether such transmission occurs by wire, teletypewriter, cable, cable modem or digital subscriber line (DSL), internet, fiber-optic, light wave, laser, microwave, switching facilities, satellite, radio wave [including, but not limited to, mobile telecommunications service, cellular service, commercial mobile service and commercial mobile radio service (see 47 U.S.C. Section 332(d)(1) and Part 20.3 of Title 47 of the Code of Federal Regulations), personal communications service (PCS), specialized mobile radio (SMR), and other similar services regardless of radio spectrum used], or any other similar facilities, and whether charges for such service are based on time, distance, or on any other basis. U. "Telephone corporation," "electrical corporation," "gas corporation," and "water corporation" shall have the same meanings as defined in Sections 234, 218, 222 and 241, respectively, of the California Public Utilities Code, except that "electrical corporation," "gas corporation," and "water corporation" shall also be construed to include any municipality, public agency, or person engaged in the selling or supplying of electricity, gas, or water to a service user. V. "Video Service Supplier" shall mean any person, company, or service which provides one or more channels of video programming, including any communications that are ancillary, necessary or common to the use and enjoyment of the video programming, to or from an address in the City, including to or from a business, home, condominium, or apartment, where some fee is paid, whether directly or included in dues or rental charges for that service, whether or not public rights-of--way are utilized in the delivery of the video programming or communications. A "video service supplier" includes, but is not limited to, multichannel video programming distributors [as defined in 47 U.S.C.A. Section 522(13)]; open video systems (OVS) suppliers; suppliers of cable television; master antenna television; satellite master antenna television; multichannel multipoint distribution services (MMDS); direct broadcast satellite to the extent federal law permits taxation of its video services, now or in the future; and other suppliers of video programming or communications (including two- way communications), whatever their technology. W. "Video Services" means any and all services related to the providing of video programming (including origination programming), including any communications that are ancillary, necessary or common to the use or enjoyment of the video programming, regardless of the content of such video programming or communications. "Video Services" do not include services for which a tax is paid under Section 2.1 of this Article. Article 2. Taxes Imposed and Tax Rate Section 2.1 Telephone Users Tax A. There is hereby imposed a tax upon every person in the City, other than a telephone corporation, who uses telephone communication services, including intrastate, interstate, and international telephone communication services. The tax imposed by this section shall be at the rate of five percent (5%) of all charges made for such telephone communication services. If the billing address of the service user is 4 different from the service address, the service address of the service user shall be used for purposes of imposing the tax, regardless of where the telephone communication service may originate, terminate, or pass through. Charges for mobile telecommunications services are subject to taxation under this Ordinance if the customer's place of primary use is in the City, regardless of where the mobile telecommunications service may originate, terminate, or pass through. B. Notwithstanding the foregoing, the tax shall not apply to any person who qualifies and has been accepted for the lifeline telephone service rate pursuant to California Public Utilities Code Sections 873, 874 and 876, and as they maybe amended from time to time. In the event that the lifeline program is repealed or otherwise ceases to exist in a substantially similar form, the exemption granted under this subsection shall automatically terminate. C. As used in this section, the term "telephone communication services" shall not include private mobile radio service," as defined in Part 20 of Title 47 of the Code ofF~ ~~ j 1 Regulations, or "private mobile service," as defined in 47 U.S.C.A. Section 332 d 3 , which is not interconnected with the public switched network or is not provided over digital networks by which communications with a substantial portion of the public is available (e.g., voice using Internet protocol or VoIP). The tax imposed under subsection (a) above shall not be imposed upon any person for using telecommunication services to the extent that, pursuant to Sections 4252 and 4253 of the Internal Revenue Code, the amounts paid for such communication services are exempt from or not subject to the tax imposed under Section 4251 of the Internal Revenue Code. In the event that the federal excise tax on "communication services" as provided in Sections 4251, 4252 and 4253 of the Internal Revenue Code is subsequently repealed, any reference in Section 2.1 of this Ordinance to such law, including any related federal regulations, private letter rulings, case law, and other opinions interpreting these sections, shall refer to that body of law that existed immediately prior to the date of repeal, as well as to any judicial or administrative decision interpreting such federal excise tax law which is published or rendered after the date of repeal. D. As used in this section, the term "charges" shall include the value of any other services, credits, property of every kind or nature, or other consideration provided by the service user in exchange for the telephone communication services. The term "charges" shall also include charges to a service user by a hotel or motel for telephone communication services used in the City when such charges are incidental to the right of occupancy in such hotel or motel. The collection of the tax from the service user shall be the responsibility of the hotel or motel owner. E. As used in this section, the term "charges" shall not include charges for services paid for by inserting coins in coin-operated telephones except that where such coin- 5 operated telephone service is furnished for a guaranteed amount, the amounts paid under such guarantee plus any fixed monthly or other periodic charge shall be included in the base for computing the amount of the tax due. F. The Tax Administrator, from time to time, may issue and disseminate to telecommunication Service Suppliers which are subject to the tax collection requirements of this Ordinance, an administrative ruling which identifies those Telephone Communication Services that are subject to the tax of subsection (A) above and/or identifies the sourcing of such services for tax administration purposes. This administrative ruling shall not impose a new tax, revise an existing tax methodology as stated in this Section, or increase an ~istinAn administrative ruling by California Government Code Section 53750(h)(2)( ). shall not constitute a new tax or an increase in an existing tax if such administrative ruling is: 1) consistent with the existing ordinance language; and, 2) merely reflects a change in, clarification to, or new rendition of: (a) the definition, interpretation, or application of substantial nexus by a court of competent jurisdiction or by preemptive state or federal law, for purposes of taxation; (b) the sourcing of taxable transactions, which furthers administrative efficiency and minimizes multi jurisdictional taxation; or, (c) the definition, interpretation, or application of the federal excise tax rules, regulations, and laws pertaining to "communications services" (Sections 4251, 4252 and 4253 of the Internal Revenue Code) by the Internal Revenue Service, or by a state or local agency that assumes an interpretative role of those rules, regulations, and laws in the event that the federal excise tax on "communications services" is repealed. E. To prevent actual multi jurisdictional taxation of telephone communication services subject to tax under this section, any service user, upon proof to the Tax Administrator that the service user has previously paid the same tax in another state or city on such telephone communication service, shall be allowed a credit against the tax imposed to the extent of the amount of such tax legally imposed in such other state or city, provided, however, the amount of credit shall not exceed the tax owed to the City under this section. F. The tax on telephone communication services imposed by this section shall be collected from the service user by the service supplier. The amount of the tax collected in one (1) month shall be remitted to the Tax Administrator and must be received by the Tax Administrator on or before the last day of the following month. _ G. Notwithstanding the provisions of subsection A, the tax imposed under this section shall not be imposed upon any person for using intrastate telephone communication services to the extent that the amounts paid for such services are exempt from or not subject to the tax imposed under Division 2, Part 20 of the California Revenue and Taxation Code, or the tax imposed under Section 4251 of the Internal Revenue Code. Section 2.2 Electricity Users Tax A. There is hereby imposed a tax upon every person, other than an electric corporation or gas corporation, using electricity in the City. The tax imposed by this section shall be at the rate of five percent (5%) of the charges made for such electricity, and for any supplemental services or other associated activities directly related and/or necessary for the provision of electricity to the end-user, which are provided by a service supplier or non-utility supplier to a service user. The tax shall be collected from the service user by the service supplier or non-utility supplier, or its billing agent. B. Notwithstanding the foregoing, the tax shall not apply to any person, who qualifies, and has been accepted, for the California Alternate Rates for Energy (CARE) Program pursuant to California Public Utilities Code Sections 327 and 739.1 et. seq., and as it maybe amended from time to time. In the event that the CARE Program is repealed or otherwise ceases to exist in a substantially similar form, the exemption -- granted under this subsection shall automatically terminate. C. As used in this section, the term "charges" shall apply to all services, components and items that are: (i) necessary or common to the receipt, use and enjoyment of electric service; or, (ii) currently, or historically have been, included in a single or bundled rate for electric service by a local distribution company to a class of retail customers. The term "charges" shall include, but is not limited to, the following charges: 1) energy charges; 2) distribution and transmission charges; 3) metering charges; 4) stand-by, reserves, firming, ramping, voltage support, regulation, emergency, or other similar charges for supplemental services to aself-collector which produces electricity for self-use; 5) customer charges, service establishment or reestablishment charges, demand charges, fuel or other cost adjustments, power exchange charges, independent system operator (ISO) charges, stranded investment or competitive transition 7 charges (CTC), public purpose program charges, nuclear decommissioning charges, trust transfer amounts (bond financing charges), franchise fee, franchise surcharge, annual and monthly charges, and other charges, fees and surcharges which are necessary to or common for the receipt, use and enjoyment of electric service; and, 6) charges, fees, or surcharges for electricity services or programs, which are mandated by the California Public Utilities Commission, or the Federal Energy Regulatory Commission, whether or not such charges, fees, or surcharges appear on a bundled or line item basis on the customer billing. D. As used in this section, the term "charges" shall include the value of any other services, credits, property of every kind or nature, or other consideration provided by the service user in exchange for the electricity or services related to the provision of such electricity. E. The Tax Administrator, from time to time, may survey the electric service suppliers to identify the various unbundled billing components of electric retail service that they commonly provide to residential and commercial/industrial customers in the City, and the charges therefor, including those items that are mandated by state or federal regulatory agencies as a condition of providing such electric service. The Tax Administrator, thereafter, may issue and disseminate to such electric service suppliers an administrative ruling identifying those components and items which are: i) necessary or common to the receipt, use or enjoyment of electric service; or, ii) currently, or historically have been, included in a single or bundled rate for electric service by a local distribution company to a class of retail customers. Charges for such components and items shall be subject to the tax of subsection (A) above. F. As used in this section, the term "using electricity" shall not be construed to mean: 1) The storage of electricity by a person in a battery owned or possessed by him for use in an automobile or other machinery device apart from the premises on which the electricity was received, provided, however, that the term shall include the receiving of electricity for the purpose of using it to charge the batteries 2) Electricity used and consumed by an electric utility supplier in the conduct of its business; 3) The mere receiving of such electricity by an electrical corporation or governmental agency at a point within the City for resale; 4) The use of such electricity in the production or distribution of water by a water utility or government agency G. The tax imposed in this section shall be collected from the service user by the electric service supplier or its billing agent. The amount of the tax collected in one month shall be remitted to the Tax Administrator on or before the last day of the following month; or, at the option of the person required to collect or remit the tax, such person shall remit an estimated amount of the tax measured by the tax billed in the previous month or upon the payment pattern of the service user, which must be received by the Tax Administrator on or before the last day of the following month, provided that the service user shall submit an adjusted payment or request for credit, as appropriate, within sixty (60) days following each calendar quarter. The credit, if approved by the Tax Administrator, maybe applied against any subsequent tax bill that becomes due. H. The tax on electricity provided by self-production or by anon-utility supplier or an electric utility not under the jurisdiction of this Ordinance shall be collected and remitted in the manner set forth in Section 2.4. Section 2.3 Gas Users Tax. A. There is hereby imposed a tax upon every person in the City, other than a gas corporation or electric corporation, using, in the City, gas which is transported through mains or pipes or by mobile transport. The tax imposed by this section shall be at the rate of five percent (5%) of the charges made for such gas, including all services related to the storage, transportation, and delivery of such gas. B. Notwithstanding the foregoing, the tax shall not apply to any person who qualifies, and has been accepted, for the California Alternate Rates for Energy (CARE) Program pursuant to California Public Utilities Code Sections 327 and 739.1 et. seq., and as it maybe amended from time to time. In the event that the CARE Program is repealed or otherwise ceases to exist in a substantially similar form, the exemption granted under this subsection shall automatically terminate. C. As used in this section, the term "charges" shall apply to all services, components and items for gas service that are: i) necessary or common to the receipt, use and enjoyment of gas service; or, ii) currently, or historically have been, included in a single or bundled rate for gas service by a local distribution company to a class of retail customers. The term "charges" shall include, but is not limited to, the following charges: 1) the commodity charges for purchased gas, or the cost of gas owned by the service user (including the actual costs attributed to drilling, production, lifting, storage, gathering, trunkline, pipeline, and other operating costs associated with the production and delivery of such gas), which is delivered through a gas pipeline distribution system; 2) gas transportation charges (including interstate charges to the extent not included in commodity charges); 3) storage charges; provided, however, that the service supplier shall not be required to apply the tax to any charges for gas storage services when the service supplier cannot, as a practical matter, determine the jurisdiction where such stored gas is ultimately used; but it shall be the obligation of the service user to self-collect the amount of tax not applied to any charge for gas storage by the service supplier and to remit the tax to the appropriate jurisdiction; 4) capacity or demand charges, service establishment or reestablishment charges, transition charges, customer charges, minimum charges, annual and monthly charges, and any other charges which are necessary or common to the receipt, use and enjoyment of gas service; and 5) charges, fees, or surcharges for gas services or programs, which are mandated by the California Public Utilities Commission or the Federal Energy Regulatory Commission, whether or not such charges, fees, or surcharges appear on a bundled or line item basis on the customer billing. D. As used in this section, the term "charges" shall include the value of any other services, credits, property of every kind or nature, or other consideration provided by the service user in exchange for the gas or services related to the delivery of such gas. E. The Tax Administrator, from time to time, may survey the gas service suppliers to identify the various unbundled billing components of gas retail service that they commonly provide to residential and commercial/industrial customers in the City, and the charges therefor, including those items that are mandated by state or federal regulatory agencies as a condition of providing such gas service. The Tax Administrator, thereafter, may issue and disseminate to such gas service suppliers an administrative ruling identifying those components and items which are: i) necessary or common to the receipt, use or enjoyment of gas service; or, ii) currently, or historically have been, included in a single or bundled rate for gas service by a local distribution company to a class of retail customers. Charges for such components and items shall be subject to the tax of subsection A above. F. The tax imposed by this section is not applicable to: 1) charges made for gas which is to be resold and delivered through a pipeline _ distribution system; 10 2) charges made for gas used and consumed by a public utility or governmental agency in the conduct of its business; 3) chazges made by a gas public utility or gas used and consumed in the course of its public utility business; 4) charges made for gas used in the propulsion of a motor vehicle, as authorized in the Vehicle Code of the State of California. G. The tax imposed in this section shall be collected from the service user by the gas service supplier or its billing agent. The amount of the tax collected in one month shall be remitted to the Tax Administrator on or before the last day of the following month; or, at the option of the person required to collect or remit the tax, such person shall remit an estimated amount of the tax measured by the tax billed in the previous month or upon the payment pattern of the service user, which must be received by the Tax Administrator on or before the last day of the following month, provided that the service user shall submit an adjusted payment or request for credit, as appropriate, within sixty (60) days following each calendaz quarter. The credit, if approved by the Tax Administrator, maybe applied against any subsequent tax bill that becomes due. H. The tax imposed in this section on gas provided by self-production or by anon-utility supplier not under the jurisdiction of this Ordinance shall be collected and remitted in the manner set forth in Section 2.4. Section 2.4 Collection of Tax From Self-Collectors A. Any service-user who is aself-collector shall report said fact to the Tax Administrator and shall remit the tax due directly to the Tax Administrator within thirty (30) days of such use. In lieu of paying said actual tax, the service user may, at its option, remit to the Tax Administrator within thirty (30) days of such use an estimated amount of tax measured by the tax billed in the previous month, or upon the pattern payment of similar customers of the service supplier using similar amounts of gas or electricity, provided that the service user shall submit an adjusted payment or request for credit, as appropriate, within sixty (60) days following each calendar quarter. The credit, if approved by the Tax Administrator, maybe applied against any subsequent tax bill that becomes due. B. The Tax Administrator may require said self-collector to identify its non-utility supplier and provide, subject to audit, invoices, books of account, or other satisfactory evidence documenting the quantity of gas or electricity used and the cost or price thereof. If the service user is unable to provide such satisfactory evidence, or, if the administrative cost of calculating the tax, in the opinion of the City, is excessive, the 11 City may determine the tax by applying the tax rate to the equivalent chazges the - service user would have incurred if the gas or electricity used had been provided by the service supplier, which is the primary supplier of gas or electricity within the City. Rate schedules for this purpose shall be available from the City. Section 2.5 Water Users Tax. A. There is imposed a tax upon every person using water in the City which is transported and delivered through a pipeline distribution system. 'The tax imposed by this section shall be at the rate of five percent (5%) of the charges made for such water. B. As used in this section, the term "charges" shall apply to all services, components and items that are: i) necessary for or common to the receipt, use or enjoyment of water service; or, ii) currently aze or historically have been included in a single or bundled rate for water service by a local distribution company to a class of retail customers. The term "charges" shall include, but is not limited to, the following charges: 1) water commodity charges (potable and non-potable); 2) distribution or transmission charges; 3) metering chazges; 4) customer charges, late charges, service establishment or reestablishment charges, franchise fees, franchise surcharges, annual and monthly charges, and other charges, fees and surcharges which aze necessary for or common to the receipt, use or enjoyment of water service; and, 5) charges, fees, or surcharges for water services or programs, which are mandated by a water district or a state or federal agency, whether or not such charges, fees, or surcharges appear on a bundled or line item basis on the customer billing. C. As used in this section, the term "charges" shall include the value of any other services, credits, property of every kind or nature, or other consideration provided by the service user in exchange for the water services. D. The Tax Administrator, from time to time, may survey the water service suppliers in the City to identify the various unbundled billing components of water retail service that they commonly provide to residential and commercial/industrial customers in the City, and the charges therefor, including those items that are mandated by a water district or a state or federal agency as a condition of providing such water service. The Tax Administrator, thereafter, may issue and disseminate to such water service suppliers an administrative ruling identifying those components and items which are: 12 i) necessary for or common to the receipt, use or enjoyment of water service; or, ii) currently are or historically have been included in a single or bundled rate for water _ service by a local distribution company to a class of retail customers. Charges for such components and items shall be subject to the tax of subsection A above. E. There shall be excluded from the base on which the tax imposed in this section is computed charges made for water which is to be resold and delivered through a pipeline distribution system; and charges made by a municipal water department, public utility or a city or municipal water district for water used and consumed by such department, public utility or water district in the conduct of the business of such department, utility or district. F. The tax on water service imposed by this section shall be collected from the service user by the water service supplier or its billing agent. The amount of tax collected in one (1) month shall be remitted to the Tax Administrator, and must be received by the Tax Administrator on or before the last day of the following month. Section 2.6 Video Service Users Tax. A. There is hereby imposed a tax upon every person using video services in the City from a video service supplier. The tax imposed by this section shall be at the rate of five percent (5%) of the charges made for such video services. B. As used in this section, the term "charges" shall apply to all services, components and items that are: i) necessary for or common to the receipt, use or enjoyment of video service; or, ii) currently are or historically have been included in a single or bundled rate for video service by a local video service supplier to a class of retail customers. The term "charges" shall include, but is not limited to, the following charges: 1) franchise fees and access fees (PEG), whether designated on the customer's bill or not; 2) initial installation of equipment necessary for provision and receipt of video services; 3) late fees, collection fees, bad debt recoveries, and return check fees; 4) activation fees, reactivation fees, and reconnection fees; 5) all programming services (e.g., basic services, premium services, audio services, video games, pay-per-view services, video on demand, and electronic program guide services); 6) equipment leases (e.g., converters, remote devices); and, 13 7) service calls, service protection plans, name changes, changes of services, and special services. C. As used in this section, the term "chazges" shall include the value of any other services, credits, property of every kind or nature, or other consideration provided by the service user in exchange for the video services. D. The Tax Administrator, from time to time, may survey the video service suppliers in the City to identify the various components of video service that are being offered to customers within the City, and the chazges therefor. The Tax Administrator, thereafter, may issue and disseminate to such video service suppliers an administrative ruling identifying those components: i) that are necessary for or common to the receipt, use or enjoyment of video service; or, ii) which currently are or historically have been included in a bundled rate for video service by a local distribution company. Charges for such components shall be subject to the tax of subsection A above. E. The tax imposed by this section shall be collected from the service user by the video service supplier, its billing agent, or a reseller of such services. In the case of video service, the service user shall be deemed to be the purchaser of the bulk video service (e.g., an apartment owner), unless such service is resold to individual users, in which case the service user shall be the ultimate purchaser of the video service. The amount of tax collected in one (1) month shall be remitted to the Tax Administrator, and must be received by the Tax Administrator on or before the last day of the following month. Article 3 Procedures Section 3.1 Constitutional and Statutory Exemptions. A. Nothing in this Ordinance shall be construed as imposing a tax upon any person or service when imposition of such tax upon that person or service would be in violation of federal statute, the Constitufion of the United States, or the Constitution of the State of California. B. The taxes imposed by this Ordinance shall not apply to the City. C. The City Council may, by resolution, establish one or more classes of persons or one or more classes of utility service otherwise subject to payment of a tax imposed by 14 this chapter and provide that such classes of persons or service shall be exempt, in whole or in part from such tax. D. The Tax Administrator shall prepare a list of the persons exempt from the provisions of this Ordinance by virtue of this section and furnish a copy thereof to each service supplier. E. Any service user that is exempt from the tax imposed by this Ordinance pursuant to subsection A or B shall file an application with the Tax Administrator for an exemption; provided, however, this requirement shall not apply to a service user that is a state or federal agency or subdivision with a commonly recognized name, or is a service user of telephone communication services that has received a federal excise tax exemption certificate for such service. Said application shall be made upon a form approved by the Tax Administrator and shall state those facts, declared under penalty of perjury, which qualify the applicant for an exemption, and shall include the names of all utility service suppliers serving that service user. If deemed exempt by the Tax Administrator, such service user shall give the Tax Administrator timely written notice of any change in utility service suppliers so that the Tax Administrator can properly notify the new utility service supplier of the service user's tax exempt status. A service user that fails to comply with this section shall not be entitled to a refund of utility users taxes collected and remitted to the Tax Administrator from such service user as a result of such non-compliance. Upon request of the Tax Administrator, a service supplier or non-utility supplier, or their billing agents, shall provide a list of names and addresses of those customers which, according to their billing records, are deemed exempt from the utility users tax. With respect to a service user of telephone communication services, a service supplier of such telephone communication services doing business in the City shall, upon request of the Tax Administrator, provide a copy of the federal exemption certificate for each exempt customer within the City that is served by such service supplier. F. The decision of the Tax Administrator maybe appealed pursuant to Section 3.13 of this Ordinance. Filing an application with the Tax Administrator and appeal to the City Administrator pursuant to Section 3.13 of this Ordinance is a prerequisite to a suit thereon. Section 3.2 Effect of Bundling Taxable Items with Non-Taxable Items. Except as otherwise provided by state or federal law, or as approved in writing by the Tax Administrator, if one or more non-taxable items are bundled or aggregated together with one or more taxable items (as provided for by this Ordinance) under a single charge on a service user's bill, the entire single charge shall be deemed taxable. Section 3.3 Substantial Nexus /Minimum Contacts. 15 - For purposes of imposing a tax or establishing a duty to collect and remit a tax under this Ordinance, "substantial nexus" and "minimum contacts" shall be construed broadly in favor of the imposition, collection and/or remittance of the utility users tax to the fullest extent permitted by state and federal law, and as it may change from time to time by judicial interpretation or by statutory enactment. Section 3.4 Duty to Collect: Procedures. The duty of service suppliers to collect and remit the taxes imposed by the provisions of this Ordinance shall be performed as follows: A. The tax shall be collected insofar as practicable at the same time as, and along with, the collection of the charges made in accordance with the regular billing practice of the service supplier. Where the amount paid by a service user to a service supplier is less than the full amount of the service charge and tax which has accrued for the billing periods, such amount and any subsequent payments by a service user shall be applied to the utility charge first until such charge has been fully satisfied. The Tax Administrator shall have the power to make an assessment for delinquent taxes as provided for in Section 3.8 of this Ordinance thereby relieving the service supplier from the obligation to collect these delinquent taxes. B. The duty of a service supplier to collect the tax from a service user shall commence with the beginning of the first regular billing period applicable to the service user where all charges normally included in such regular billing are subject to the provisions of this Ordinance. Where a person receives more than one billing, one or more being for different periods than another, the duty to collect shall arise separately for each billing period. Section 3.5 Filing Return and Payment. Each service supplier required by this Ordinance to remit a tax shall file a return to the Tax Administrator, on forms approved by the Tax Administrator, on or before the due date. The full amount of the tax collected shall be included with the return and filed with the Tax Administrator. The Tax Administrator is authorized to require such additional information as he or she deems necessary to determine if the tax is being levied, collected, and remitted in accordance with this Ordinance. Returns are due immediately upon cessation of business for any reason. Pursuant to Revenue and Tax Code Section 7284.6, the Tax Administrator, and its agents, shall maintain such filing returns as confidential information exempt from disclosure provisions of the Public Records Act. - Section 3.6 Collection Penalties -Service Suppliers and Self-Collectors. 16 A. Taxes collected by a service supplier from a service user, or self-collected by aself- _ collector, are delinquent if not received by the Tax Administrator on or before the due date. Should the due date occur on a weekend or legal holiday, the return must be received by the Tax Administrator on or before the first regular working day following the weekend or legal holiday. A direct deposit, including electronic fund transfers and other similar methods of electronically exchanging monies between financial accounts, made by a service supplier in satisfaction of its obligations under this subsection, shall be considered timely if the transfer is initiated on or before the due date, and the transfer settles into the City's account on or before the following business day. B. If a service supplier or aself-collector fails to remit any tax collected or owed, on or before the due date, said person shall pay a penalty for such delinquencies at the rate of fifteen percent (15%) of the total tax that is delinquent in the remittance, and shall pay interest at the rate ofthree-quarters of one percent (3/4%) per month, or any fraction thereof, on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delinquent, until paid. C. The Tax Administrator shall have the power to impose additional penalties upon persons required to collect and/or remit taxes pursuant to the provisions of this Ordinance for fraud or gross negligence in reporting or remitting at the rate of fifteen percent (15%) of the amount of the tax collected and/or required to be remitted, or as recomputed by the Tax Administrator. D. For collection purposes only, every penalty imposed and such interest that is accrued under the provisions of this section shall become a part of the tax herein required to be paid. Section 3.7 Deficiency Determination and Assessment -Tax Application Errors. A. The Tax Administrator shall make a deficiency determination if he or she determines that any person required to collect or self-collect taxes pursuant to the provisions of this Ordinance has failed to collect and remit the proper amount of tax by improperly or failing to apply the tax to one or more taxable services or charges. B. The Tax Administrator shall mail a notice of such deficiency determination to the person required to pay or remit the tax, which notice shall refer briefly to the amount of the taxes owed, plus interest at the rate ofthree-quarters of one percent (3/4%) per month, or any fraction thereof, on the amount of the tax from the date on which the tax should have been received by the City. Within fourteen (14) calendar days after the date of service of such notice, the person may request in writing to the Tax Administrator for a hearing on the matter. If the person fails to request a hearing 17 within the prescribed time period, the amount of the deficiency determination shall become a final assessment, and shall immediately be due and owing to the City. C. If the person requests a hearing, the Tax Administrator shall cause the matter to be set for hearing, which shall be held within thirty (30) days after receipt of the written request for hearing. Notice of the time and place of the hearing shall be mailed by the Tax Administrator to such person at least ten (10) calendar days prior to the hearing, and, if the Tax Administrator desires said person to produce specific records at such hearing, such notice may designate the records requested to be produced. D. At the time fixed for the hearing, the Tax Administrator shall hear all relevant testimony and evidence, including that of any other interested parties. At the discretion of the Tax Administrator, the hearing maybe continued from time to time for the purpose of allowing the presentation of additional evidence. Within a reasonable time following the conclusion of the hearing, the Tax Administrator shall issue a final assessment (ornon-assessment), thereafter, by confirming, modifying or rejecting the original deficiency determination, and shall mail a copy of such final assessment to person owing the tax. The decision of the Tax Administrator maybe appealed pursuant to Section 3.13 of this Ordinance. Filing an application with the Tax Administrator and appeal to the City Manager pursuant to Section 3.13 of this Ordinance is a prerequisite to a suit thereon. - E. Payment of the final assessment shall become delinquent if not received by the Tax Administrator on or before the thirtieth (30th) day following the date of receipt of the notice of final assessment. The penalty for delinquency shall be fifteen percent (15%) on the total amount of the assessment, along with interest at the rate of three-quarters of one percent (3/4%) per month, or any fraction thereof, on the amount of the tax, exclusive of penalties, from the date of delinquency, until paid. The applicable statute of limitations regarding a claim by the City seeking payment of a tax assessed under this Ordinance shall commence from the date of delinquency as provided in this subsection E. F. All notices under this section maybe sent by regular mail, postage prepaid, and shall be deemed received on the third calendaz day following the date of mailing, as established by a proof of mailing. Section 3.8 Administrative Remedy -Non-Paying Service Users. A. Whenever the Tax Administrator determines that a service user has deliberately withheld the amount of the tax owed by the service user from the amounts remitted to a person required to collect the tax, or whenever the Tax Administrator deems it in the best interest of the City, he or she may relieve such person of the obligation to collect the taxes due under this Ordinance from certain named service users for specific billing periods. 18 B. The service supplier shall provide the City with the names and addresses of such service users and the amounts of taxes owed under the provisions of this Ordinance. _ Whenever the service user has failed to pay the amount of tax owed for a period of two (2) or more billing periods, the service supplier shall be relieved of the obligation to collect taxes due. C. The Tax Administrator shall notify the non-paying service user that the Tax Administrator has assumed the responsibility to collect the taxes due for the stated periods and demand payment of such taxes, including the penalties and interest authorized in Subsection D. The notice shall be served on the service user by personal delivery or by deposit of the notice in the United States mail, postage prepaid, addressed to the service user at the address to which billing was made by the person required to collect the tax; or, should the service user have a change of address, to his or her last known address. D. If the service user fails to remit the tax to the Tax Administrator within thirty (30) days from the date of the service of the notice upon him or her, the Tax Administrator may impose a delinquency penalty of fifteen percent (15%) of the amount of the total tax that is owed, and shall pay interest in the rate ofthree-quarters of one percent (3/4%) per month, or any fraction thereof, on the amount of the tax, exclusive of the penalties, from the due date, until paid. Section 3.9 Actions to Collect. Any tax required to be paid by a service user under the provisions of this Ordinance shall be deemed a debt owed by the service user to the City. Any such tax collected from a service user which has not been remitted to the Tax Administrator shall be deemed a debt owed to the City by the person required to collect and remit and shall no longer be a debt of the service user. Any person owing money to the City under the provisions of this Ordinance shall be liable to an action brought in the name of the City for the recovery of such amount, including penalties and interest as provided for in this Ordinance, along with any collection costs incurred by the City as a result of the person's noncompliance with this Ordinance, including, but not limited to, reasonable attorneys fees and court costs. Any tax required to be collected by a service supplier or owed by a service user is an unsecured priority excise tax obligation under 11 U.S.C.A. Section 507(a)(8)(C). Section 3.10 Additional Powers and Duties of the Tax Administrator. A. The Tax Administrator shall have the power and duty, and is hereby directed, to enforce each and all of the provisions of this Ordinance. B. The Tax Administrator may adopt administrative rules and regulations not inconsistent with provisions of this Ordinance for the purpose of interpreting, _ clarifying, carrying out and enforcing the payment, collection and remittance of the 19 taxes herein imposed. A copy of such administrative rules and regulations shall be on file in the Tax Administrator's office. C. Upon a proper showing of good cause, the Tax Administrator may make administrafive agreements, with appropriate conditions, to vary from the strict requirements of this Ordinance and thereby: (i) conform to the billing procedures of a particular service supplier (or aself-collector) so long as said agreements result in the collection of the tax in conformance with the general purpose and scope of this Ordinance; or, (ii) to avoid a hardship where the administrative costs of collection and remittance greatly outweigh the tax benefit. A copy of each such agreement shall be on file in the Tax Administrator's office, and shall be voidable by the Tax Administrator or the City at any time. D. The Tax Administrator may conduct an audit, to ensure proper compliance with the requirements of this Ordinance, of any person required to collect and/or remit a tax pursuant to this Ordinance. The Tax Administrator shall notify said person of the initiation of an audit in writing. In the absence of fraud or other intentional misconduct, the audit period of review shall not exceed a period of three (3) years next preceding the date of receipt of the written notice by said person from the Tax Administrator. Upon completion of the audit, the Tax Administrator may make a deficiency determination pursuant to Section 3.7 of this Ordinance for all taxes, penalties and interest owed and not paid, as evidenced by information provided by such person to the Tax Administrator. If said person is unable or unwilling to provide sufficient records to enable the Tax Administrator to verify compliance with this Ordinance, the Tax Administrator is authorized to make a reasonable estimate of the deficiency. Said reasonable estimate shall be entitled to a rebuttable presumption of correctness. E. Upon receipt of a written request of a taxpayer, and for good cause, the Tax Administrator may extend the time for filing any statement required pursuant to this Ordinance for a period of not to exceed forty-five (45) days, provided that the time for filing the required statement has not already passed when the request is received. No penalty for delinquent payment shall accrue by reason of such extension. Interest shall accrue during said extension at the rate of three-quarters of one percent (3/4%) per month, prorated for any portion thereof. F. The Tax Administrator shall determine the eligibility of any person who asserts a right to exemption from, or a refund of, the tax imposed by this Ordinance. Pursuant to Section 3.1(D) of this Ordinance, the Tax Administrator shall furnish a copy of the list of exempted person to each service supplier. G. The Tax Administrator, with the written approval of the City Attorney, may compromise a claim pursuant to this Ordinance where the portion of the claim proposed to be released is less than the amount set by separate resolution of the City 20 Council relating to the settlement of general liability claims against the City, and, with the approval of the City Attorney and the City Council, may compromise such a claim where the portion proposed to be released is equal to or greater than the amount set by separate resolution of the City Council relating to the settlement of general liability claims against the City. H. Notwithstanding any provision in this Ordinance to the contrary, the Tax Administrator may waive any penalty or interest imposed upon a person required to collect and/or remit for failure to collect the tax imposed by this Ordinance if the non- collection occurred in good faith. In determining whether the non-collection was in good faith, the Tax Administrator shall take into consideration industry practice or other precedence. I. The Tax Administrator shall provide notice to all service suppliers, at least ninety (90) days prior to any annexation or other change in the city's boundaries. Said notice shall set forth the revised boundaries by street and address, along with a copy of the final annexation order from the Local Agency Formation Commission. Section 3.11 Records. A. It shall be the duty of every person required to collect and/or remit to the City any tax imposed by this Ordinance to keep and preserve, for a period of at least three (3) years, all records as may be necessary to determine the amount of such tax as he/she may have been liable for the collection of and remittance to the Tax Administrator, which records the Tax Administrator, or the Tax Administrator's designated representative, shall have the right to inspect at a reasonable time. B. The City may issue an administrative subpoena to compel a person to deliver, to the Tax Administrator, copies of all records deemed necessary by the Tax Administrator to establish compliance with this Ordinance, including the delivery of records in a common electronic format on readily available media if such records are kept electronically by the person in the usual and ordinary course of business. As an alternative to delivering the subpoenaed records to the Tax Administrator on or before the due date provided in the administrative subpoena, such person may provide access to such records outside the City on or before the due date, provided that such person shall reimburse the City for all reasonable travel expenses incurred by the City to inspect those records, including travel, lodging, meals, and other similar expenses, but excluding the normal salary or hourly wages of those persons designated by the City to conduct the inspection. C. The Tax Administrator, or the Tax Administrator's designated representative, is authorized to execute anon-disclosure agreement approved by the City Attorney to protect the confidentiality of customer information pursuant to California Revenue and Tax Code Sections 7284.6 and 7284.7. The Tax Administrator, or the Tax 21 Administrator's designated representative, may request from a person providing transportation of gas or electricity to service users within the City a list of the names and addresses, and other pertinent information, of its transportation customers within the City pursuant to Section 6354(e) of the California Public Utilities Code. D. If a service supplier uses a billing agent or billing aggregator to bill, collect, and/or remit the tax, the service supplier shall: i) provide to the Tax Administrator the name, address and telephone number of each billing agent and billing aggregator currently authorized by the service supplier to bill, collect, and/or remit the tax to the City; and, ii) upon request of the Tax Administrator, deliver, or effect the delive g ogfg angy information or records in the possession of such billing agent or billin a e ator that, in the opinion of the Tax Administrator, is necessary to verify the proper application, calculation, collection and/or remittance of such tax to the City. E. If any person subject to record-keeping under this section unreasonably denies the Tax Administrator, or the Tax Administrator's designated representative, access to such records, or fails to produce the information requested in an administrative subpoena within the time specified, then the Tax Administrator may impose a penalty of $500 on such person for each day following: i) the initial date that the person refuses to provide such access; or, ii) the due date for production of records as set forth in the administrative subpoena. This penalty shall be in addition to any other penalty imposed under this Ordinance. Section 3.12 Refunds. A. Whenever the amount of any tax has been overpaid, paid more than once, or has been erroneously or illegally collected or received by the Tax Administrator under this Ordinance, it maybe refunded as provided in this section. B. Where the amount of any individual refund claim is in excess of the amount set by separate resolution of the City Council relating to the settlement of general liability claims against the City, City Council approval shall be required. The Tax Administrator may refund any tax that has been overpaid or paid more than once or has been erroneously or illegally collected or received by the Tax Administrator under this Ordinance, provided that no refund shall be paid under the provisions of this section unless the claimant or his or her guardian, conservator, executor, or administrator has submitted a written claim to the Tax Administrator within one year of the overpayment or erroneous or illegal collection of said tax. Such claim must clearly establish claimant's right to the refund by written records showing entitlement thereto. Nothing herein shall permit the filing of a claim on behalf of a class or group of taxpayers. 22 C. The submission of a written claim, which is acted upon by the City Council, shall be a prerequisite to a suit thereon. The City Council shall act upon the refund claim within the time period set forth in Government Code Section 912.4. If the City Council fails or refuses to act on a refund claim within the time prescribed by Government Section 912.4, the claim shall be deemed to have been rejected by the City Council on the last day of the period within which the City Council was required to act upon the claim as plOVided iri Government Code Section 912.4. It is the intent of the City Council that the one year written claim requirement of this subsection be given retroactive effect; provided, however, that any claims which arose prior to the commencement of the one year claims period of this subsection, and which are not otherwise barred by a then applicable statute of limitations or claims procedure, must be filed with the Tax Administrator as provided in this subsection within ninety days following the effective date of this Ordinance. D. Notwithstanding the notice provisions of subsection B of this section, a service supplier that has collected any amount of tax in excess of the amount of tax imposed by this Ordinance and actually due from a service user (whether due to overpayment or to erroneous or illegal collection of said tax) may refund such amount to the service user, or credit to charges subsequently payable by the service user to the service supplier, and claim credit for such overpayment against the amount of tax which is due upon any other monthly returns to the Tax Administrator, provided such credit is claimed in a return dated no later than one year from the date of overpayment or erroneous or illegal collection of said tax. The Tax Administrator shall determine the validity of the service user's claim of credit, and the underlying basis for such claim. E. Notwithstanding other provisions of this section, whenever a service supplier, pursuant to an order of the California Public Utilities Commission, makes a refund to service users of charges for past utility services, the taxes paid pursuant to this Ordinance on the amount of such refunded charges shall also be refunded to service users, and the service supplier shall be entitled to claim a credit for such refunded taxes against the amount of tax which is due upon the next monthly return. In the event this Ordinance is repealed, the amounts of any refundable taxes levied under the authority of the repealed Ordinance shall be borne by the City. F. Notwithstanding subsections B and C above, a service supplier shall be entitled to take any overpayment as a credit against an underpayment whenever such overpayment has been received by the City within the three (3) years next preceding a deficiency determination or assessment by the Tax Administrator pursuant to Section 3.10(D), or during any year for which the service supplier, at the request of the Tax Administrator, has executed a waiver of the defense of the statute of limitations with regard to any claim the City may have for a utility users tax. A service supplier shall not be entitled to said credit unless it clearly establishes the right to the credit by written records showing entitlement thereto. Under no circumstances shall an 23 overpayment taken as a credit against an underpayment pursuant to this subsection qualify a service supplier for a refund to which it would not otherwise be entitled under the one-year written claim requirement of this section. Section 3.13 Appeals. A. The provisions of this section apply to any decision (other than a decision relating to a refund pursuant to Section 3.12 of this Ordinance), deficiency determination, assessment, or administrative ruling of the Tax Administrator. Any person aggrieved by any decision (other than a decision relating to a refund pursuant to Section 3.12 of this Ordinance), deficiency determination, assessment, or administrative ruling of the Tax Administrator shall be required to comply with the appeals procedure of this section. Compliance with this section shall be a prerequisite to a suit thereon. Nothing herein shall permit the filing of a claim or action on behalf of a class or group of taxpayers. B. If any person is aggrieved by any decision (other than a decision relating to a refund pursuant to Section 3.12 of this Ordinance), deficiency determination, assessment, or administrative ruling of the Tax Administrator; he or she may appeal to the City Manager by filing a notice of appeal with the City Clerk within fourteen (14) days of the date of the decision, deficiency determination, assessment, or administrative ruling of the Tax Administrator which aggrieved the service user or service supplier. C. The matter shall be set for hearing no more than thirty (30) days from the receipt of the appeal. The appellant shall be served with notice of the time and place of the hearing, as well as any relevant materials, at least five (5) calendar days prior to the hearing. The hearing may be continued from time to time upon mutual consent. At the time of the hearing, the appealing party, the Tax Administrator, the City Manager, and any other interested person may present such relevant evidence as he or she may have relating to the determination from which the appeal is taken. D. Based upon the submission of such evidence and the review of the City's files, the City Manager shall issue a written notice and order upholding, modifying or reversing the determination from which the appeal is taken. The notice shall be given within fourteen (14) days after the conclusion of the hearing and shall state the reasons for the decision. The notice shall specify that the decision is final and that any petition for judicial review shall be filed within ninety (90) days from the date of the decision in accordance with Code of Civil Procedure Section 1094.6. If the City Manager fails or refuses to act on a refund claim within the fourteen (14) day period, the claim shall be deemed to have been rejected by the City Manager on the fourteenth (14th) day. E. All notices under this section may be sent by regular mail, postage prepaid, and shall be deemed received on the third calendar day following the date of mailing, as established by a proof of mailing. 24 F. No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action, or proceeding in any court against this City or against any officer of the City to prevent or enjoin the collection under this Ordinance of any tax or any amount of tax required to be collected and/or remitted. Section 3.14 Remedies Cumulative. All remedies and penalties prescribed by this Ordinance or which are available under any other provision of law or equity, including but not limited to the California False Claims Act (Government Code Section 12650 et seq.) and the California Unfair Practices Act (Business and Professions Code Section 17070 et seq.), are cumulative. The use of one or more remedies by the City shall not bar the use of any other remedy for the purpose of enforcing the provisions of this Ordinance. Section 3.15 Notice of Changes to Ordinance. If a tax under this Ordinance is added, repealed, increased, reduced, or the tax base is changed, the Tax Administrator shall follow the notice requirements of California Public Utilities Code Section 799. Prior to the effective date of the Ordinance change, the service supplier shall provide the Tax Administrator with a copy of any written procedures describing the information that the service supplier needs to implement the ordinance change. If the service supplier fails to provide such written instructions, the Tax Administrator, or his or her agent, shall send, by first class mail, a copy of the ordinance change to all collectors and remitters of the City's utility users taxes according to the latest payment records of the Tax Administrator. Section 3.16 Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance or any part thereof is for any reason held to be invalid, unlawful or unconstitutional, such decision shall not affect the validity of the remaining portion of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared invalid, unlawful or unconstitutional. 25 Section 3.17 Future Amendment to Cited Statute. Unless specifically provided otherwise, any reference to a state or federal statute in this Ordinance shall mean such statute as it may be amended from time to time. Section 3.18 Limitation of Actions The validity of this Ordinance or of any tax levied pursuant to this Ordinance shall not be contested in any action or proceeding or defense unless such action or proceeding or defense shall have been brought or raised in a court of competent jurisdiction within sixty (60) days from the date of the adoption of this Ordinance. Unless an action or proceeding is commenced or such defense raised within said period, this Ordinance and any tax levied pursuant to this Ordinance shall be held valid and in every respect legal and incontestable. Section 3.19 Sunset This Ordinance shall automatically sunset, and its provisions shall become ineffective, ten (10) years from its effective date unless it is reauthorized by the voters. Section 3.20 Effective Date If a majority of the voters voting thereon approve this Ordinance, it shall become effective ten (10) days after the results of the election are declared by the City Council. Section 3.21 Operative Date The tax imposed under this Ordinance shall apply to bills rendered on the effective date of the Ordinance, or as soon thereafter as the respective utilities are physically and mechanically able to get "on line" for the imposition of charges, but not more than sixty (60) days after the effective date. P:\SARATOGAVvIATI\Utility Tax\WT Ordinance draft 1 7-29-04.doc 26 Attachment C Advisory Measure Options Option 1 City of Saratoga Advisory Measure 2004-1 This measure is NOT a tax. It is anon-binding advisory measure asking Saratoga voters' preferences in funding City services. This advisory measure does not limit the authority of the City Council to spend general fund revenues on general municipal services. In the event that additional funds become available to the City should the City allocate funds to the following priority projects and manage those funds in accordance with the fiscal responsibility principles listed below? Maintaining Streets and Filling Potholes: Improve local streets by resurfacing roadways with a goal of eliminating the current maintenance backlog by 2015. Repair Aging Curbs and Gutters: Repair damaged and deteriorated curbs and gutters as reported and inspected. Replace Aging Storm Drains: Repair and replace storm drains showing signs of distress with a goal of eliminating the current maintenance backlog by 2015. Sidewalk Improvements and Repairs: Repair damaged and deteriorated sidewalks with a goal of eliminating the current maintenance backlog by 2015 and install new sidewalks to provide continuous sidewalk coverage along the length of major arterials and around schools. Building Bridges: Replace or rehabilitate the three bridges in the City that are at the greatest risk of failure. Landscaped Medians: Enhance the City's appearance by replacing dead or dying plants in existing landscaped medians that aze not a part of any Landscaping Assessment District and repairing medians Citywide and reconstructing the medians on Fruitvale Avenue. Civic Center Improvements: Repair the aging sidewalks, irrigation system, and pazking lot at the City's Civic Center and replant the entire landscaped azea. City Hall Improvements: Maintain the City's investment in City Hall by re-roofing the building, upgrading the heating and ventilation system, improving access for the disabled, and enhancing the security system. Civic Theater Improvements: Restore the Civic Theater by refurbishing the seats, installing acoustical improvements, adding new sound and multi-media systems and remodeling the backstage restroom and dressing room areas. Advisory Measure Options Community Center Improvements: Maintain the City's investment in the Community Center and expand opportunities for community use by re-roofing the upper section, upgrading the heating and ventilation system, replacing aged building siding, installing new carpet, replacing the {water damaged?} ceiling, enlarging the reception office, adding new flooring in the multipurpose room, enlarging the building to add at least 2 new classrooms, replacing all landscaping around the building, and replacing the cracked concrete patio in the backyazd. North Campus Improvements: Improve the North Campus to allow full use by the City and local community groups by installing exterior lighting, landscaping improvement and signage and remodeling the Fellowship Hall, Education Building and Administrative Building. Fiscal Responsibility Principles The City should aggressively pursue other regional, state and federal funds to leverage local funds so that the infrastructure and facilities projects described above can be delivered more quickly and to allow the City to build additional infrastructure and facilities improvements that aze needed to serve the residents of Sazatoga. • No funds derived from utility user tax revenues should be used for staff salaries and administration. 100 percent of the funds should be reserved for prof ect - delivery. • An oversight committee made up of City of Sazatoga Residents should monitor the uses to which Utility User Tax proceeds are spent and report annually to the City Council and to the community. Attachment C Advisory Measure Options Option 2 City of Saratoga Advisory Measure 2004-1 This measure is NOT a tax. It is anon-binding advisory measure asking Saratoga voters' preferences in funding City services. This advisory measure does not limit the authority of the City Council to spend general fund revenues on general municipal services. Should the City of Sazatoga use funds generated by a utility user tax primarily for repair, maintenance, and improvement of City infrastructure (including streets, bridges, sidewalks, medians, buildings, storm drains, and parks), to restore financial reserves, and for selective restoration of service cuts to law enforcement in the City? RESOLUTION 04- RESOLUTION OF THE CITY OF SARATOGA AMENDING RESOLUTION NO. 04-040 TO PLACE AN ADVISORY MEASURE AND AN ORDINANCE ON THE BALLOT FOR THE GENERAL MUNICIPAL ELECTION TO BE HELD IN THE CITY OF SARATOGA ON NOVEMBER 2, 2004 WHEREAS, the Saratoga City Council on June 2, 2004 adopted Resolution No. 04-040 ordering and calling a general municipal election to be held in the city of Saratoga on November 2, 2004; and WHEREAS, the Saratoga City Council wishes to amend said resolution to direct that measures be placed before the voters concerning (1) an advisory question concerning use of any new tax revenues that may become available to the City and (2) a Utility Users Tax ordinance. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Saratoga: Resolution No. 04-040 is hereby amended to insert the following text immediately following paragraph 5: 6. At said election the following question shall be submitted to the voters: ADVISORY VOTE ONLY YES Should the City of Saratoga use funds generated by a utility user tax to finance the priority improvements listed in City of NO Saratoga Advisory Measure 2004-1? OR [City Council must select one of these options or adopt a single alternative question.] ADVISORY VOTE ONLY YES Should the City of Saratoga use funds generated by a utility user tax primarily for repair, maintenance, and improvement of City infrastructure (including streets, bridges, NO sidewalks, medians, buildings, storm drains, and parks), to restore financial reserves, and for selective restoration of service cuts to law enforcement in the Ci ? -1- 7. The text of the advisory measure referenced in item 6, above, is attached hereto as Exhibit A and the City Clerk is directed to transmit a copy of said measure to the City Attorney for preparation of an impartial analysis of the measure showing its effect on existing law and the operation of the measure. 8. At said election the following question shall be submitted to the voters: Shall the City of Saratoga adopt an ordinance YES imposing a 5% tax on users of telephone, electricity, gas, water, and video services for general revenue purposes that will sunset ten NO years from its effective date? ). The text of the measure referenced in item 8, above, is attached hereto as Exhibit B and the City Clerk is directed to transmit a copy of said measure to the City Attorney for preparation of an impartial analysis of the measure showing its effect on existing law and the operation of the measure. 10. In accordance with Elections Code section 9285(b), the City of Saratoga hereby adopts the provisions of Elections Code section 9285(a) -- authorizing and governing the filing of rebuttal arguments. The text of section 9285(a) as hereby adopted is set forth in Attachment 3. Written arguments for and against each of the measures referenced above and rebuttals to those arguments shall be filed in accordance with the schedule adopted by the Santa Clara County Registrar of Voters. -2- PASSED AND ADOPTED at a regular meeting of the City of Saratoga this 4th day of August, 2004 by the following vote: COUNCIL MEMEBERS: AYES: NOES: ABSTAINED: ABSENT: ATTEST: SIGNED: MAYOR OF THE CITY OF SARATOGA SARATOGA, CALIFORNIA CLERK OF THE CITY OF SARATOGA SARATOGA, CALIFORNIA -3- Attachment 1: City of Saratoga Advisory Measure [To be inserted following Council Action.] Attachment 2: City of Saratoga Utility Users Tax Ordinance [To be inserted following Council action.] Attachment 3: Authorization of Rebuttal Arguments In accordance with Elections Code section 9285(b) the City of Saratoga authorizes the filing of rebuttal arguments in connection with City measures in the manner prescribed by Elections Code section 9285(a) which provides as follows: If any person submits an argument against a city measure, and an argument has been filed in favor of the city measure, the elections official shall immediately send copies of that argument to the persons filing the argument in favor of the city measure. The persons filing the argument in favor of the city measure may prepare and submit a rebuttal argument not exceeding 250 words. The elections official shall send copies of the argument in favor of the measure to the persons filing the argument against the city measure, who may prepare and submit a rebuttal to the argument in favor of the city measure not exceeding 250 words. The rebuttal arguments shall be filed with the elections official not more than 10 days after the final date for filing direct arguments. Rebuttal arguments shall be printed in the same manner as the direct arguments. Each rebuttal argument shall immediately follow the direct argument it seeks to rebut. SARATOGA CITY COUNCIL MEETING DATE: August 4, 2004 AGENDA ITEM: (~ ~`"'~ ORIGINATING DEPT: City Manager's Office CITY MANAGER: '~~ PREPARED BY: Lorie Tinfow Assistant City Manager DEPT HEAD: ~- ~~- ~''-' $U$dECT: RCj101't On ApprOaCh t0 RCSOIVIng Orchard Dlrt and Mud Tracked into the Saratoga Library RECOMMENDED ACTION(S): Accept staff s approach to resolving orchard dirt and mud problem in Library. REPORT SUMMARY: The meeting between all orchard and library stakeholders to discuss possible solutions to the dirt and mud problem was held July 19. Out of that meeting, we detemvned to take the following immediate steps: Before school starts on August 21, Public Works will post a sign on Fruitvale at the start of the student- createdpath to the library that says "Library users please stay on pavement". ^ Consider posting a volunteer from the Friends of the Saratoga Libraries or other source at the sign when school starts to make sure students follow the direction. ^ Consider installing device(s) at front of library to remove diNmud from shoes (three-sided brush fixture). • Contact school officials and alert them to the problem and the actions, and ask for their assistance. If problem continues, all agreed to consider installing a 4-foot fence along 50-feet or so of the Fruitvale side of the orchard. FISCAL IMPACTS: The immediate changes include minimal costs for sign and dirt-removal devices. CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION(S): The Library staff would have to identify a way to address the problem. ALTERNATIVE ACTION(S): Direct staff to implement some other solution. FOLLOW UP ACTION(S): Staff will implement Council action. ADVERTISING, NOTICING AND PUBLIC CONTACT: Nothing additional. SARATOGA CITY COUNCIL MEETING DATE: August 4, 2004 AGENDA ITEM: ~~ ORIGINATING DEPT: Recreation CITY MANAGER: PREPARED BY: Joan Pisani DEPT HEAD: SUBJECT: City Wide Festival RECOMMENDED ACTION(S): Accept report and direct staff accordingly. REPORT SUMMARY: The City Council has expressed the desire to consolidate all City sponsored events into one big festival. During the past two years both the Arts and Heritage Commissions have sponsored new events with the Mustard Festival being held in February and Art in the Park held in September. Both have involved a considerable amount of staff time and numerous hours of volunteer support. It was suggested that maybe the one big event held could be named the "Blossom Festival" and, perhaps, include a parade. At this time, there is an insufficient staffmg level within the City to take on a big event, but there aze some other options. I met with Kristen Davis to inquire whether the Chamber of Commerce would be interested in sponsoring such an event. She said at this time they would not, but she felt the Chamber would support the City's effort. She did inform me that their Boazd just approved a Village Committee to be comprised of merchants on Big Basin Way. Their task is to sponsor special events in the downtown azea. Looking to local community services groups to sponsor a big festival, the only organization lazge enough to handle such an event is the Sazatoga Rotary Club. Currently they work all year long on the Art Show held the first Sunday each May. This event features artists, entertainment, food, and a children's azea with games. Last year Rotary Club held a new event, Building Bridges, in October. This was a huge success and they have committed to sponsoring this annually. At this time, Rotary Club is not interested in taking on another big event. For yeazs, the Chamber of Commerce sponsored the annual parade. In the eazly 1990's, the Chamber discontinued the pazade because of the amount of work involved and lack of volunteers. In 1996, Warren Lampshire, as an interested citizen, rallied support to bring back the pazade. He chaired the event and recruited many people to be on the steering committee. He also involved most community service groups and schools. The City, Chamber of Commerce and Rotary Club each contributed $5000 to fund the pazade. After three yeazs, the pazade was discontinued for the same reasons as cited by the Chamber. Attached you will find a parade summary from Warren Lampshire. If the City decides to sponsor a big event, they could contract out to a company that specializes in event planning. By hiring an independent contractor the City would not have to be directly involved in the planning, organizing and execution of the event. I have contacted two event- planning companies to get information on what services they could provide. I had general discussions with each company without specially defining the vision of the City Council. One company, At Your Request, is located in Saratoga and has lots of event planning experience. I met with the owners and within a few days received their proposal outlining a number of their ideas on a Blossom Festival. They aze very highly regazded in this community, and I have had personal experience volunteering for them at a fundraising event for the American Cancer Society. They are very organized, enthusiastic and have a good record of recruiting volunteers. Their fee to the City would be based on the level of service provided. The other company I spoke with is MLA Productions. They have produced a lazge number of two-day festivals in the Bay Area. I have attached a copy of their contract with the City of Danville so you can see the itemized list of what they do. Most of their contracts aze with the Chamber of Commerce in various cities. As you can see by the information sheet from their web page, they put on a number of highly regazded festivals. Mary Lou Atkins, the owner, was not able to meet with me because of her busy schedule this time of yeaz, but she did express an interest in the possibility of working with us. Because she works with a large number of artists and vendors, she expressed a desire for atwo-day event in a Sazatoga location that could accommodate 200 artists and additional space for several other activities. During the event MLA Productions collects all fees from artist and vendors and pays the contracting agency a pre- determined amount. In scheduling a big outdoor event, the City should look at dates in good weather months. Also, below is a listing of the events already scheduled this upcoming yeaz. In considering the type of city sponsored event and date, it would be important to not schedule an event similar to one akeady on the calendaz. Celebrate Saratoga Street Dance: September I S, 2004 Building Bridges: October 3 - 10, 2004 Village Halloween Witchy Walk-A-Bout: October 30, 2004 Tree Lighting and Village Open House: November 27, 2004 Rotary Art Show: May 4, 2005 Foothill Club Memorial Day Service: May 30, 2005 FISCAL IMPACTS: No fiscal impact at this time. CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION(S): Not applicable. ALTERNATIVE ACTION(S): Not applicable. FOLLOW UP ACTION(S): Staff will follow up on direction given by City Council. ADVERTISING, NOTICING AND PUBLIC CONTACT: Nothing additional. ATTACHMENTS: 1. Pazade Summ~uy by Warren Lampshire. 2. At Your Request Proposal. 3. MLA Productions Web Page and Contract with Danville. ~~Gt, ~ ~ Vtit Q (A"t' REPORT OF COMMUNITY PARADE 1995 1996 1998 THE COMMUNITY PARADE WHILE IT WAS WELL RECEIVED BY THE COMMUNITY IS A VERY LARGE TASK THAT REQUIRES MANY HOURS OF PLANNING, INVESTIGATION, COOPERATION AND ASSIGNMENTS OF MANY PEOPLE. 1. PERSONNEL: THE PARADE COMMITTEE WAS MADE UP OF APPROXIMATELY 16 MEMBERS ACTING IN VARIOUS CAPACITIES. IN ADDITION TO THE COMMITTEE MEMBERS, AN ADDITIONAL 20-22 VOLUNTEERS WERE NEEDED ON THE DAY OF THE PARADE TO HANDLE TRAFFIC, AND THE PARADE PARTICIPANTS WHO ASSEMBLED AT THREE DIFFERENT LOCATIONS AROUND THE CITY. 2. FUND RAISING WAS AN EXTREMELY IMPORTANT FACTOR AS THE PARADE REQUIRED APPROXIMATELY $20,000.00. 3. THE SHERIFF'S COSTS WERE ONE OF THE LARGEST SINGLE EXPENSES TO SECURE TRAFFIC AVENUES, BLOCK STREETS, ETC. 4. ORDERING OF TROPHIES AND PLANNING IN ADVANCE OF THE NUMBER OF TROPHIES WAS AN EXTENSIVE JOB. WE USED _ PROFESSIONAL JUDGES TO AWARD THE ULTIMATE PRIZES. THESE JUDGES ARE WELL KNOWN THROUGH THE STATE TO JUDGE ENTRIES. THIS IS A EXTRA MONETARY CONSIDERATION THAT WAS PAID FROM THE PARADE COMMITTEE TREASURY. 5. THE PLANNING FOR THE ANNUAL PARADE COMMENCED TEN MONTHS IN ADVANCE IN ORDER TO COORDINATE THE MANY PARTICIPANTS AND THEIR AVAILABILITY. 6. PARADES REQUIRE BANDS AND THE VARIOUS HIGH SCHOOL BANDS HAD OTHER COMMZTTEMENTS THAT REQUIRED CONSIDERATION.PARTICIPATING BANDS TRAVELED SOME DISTANCE AND IT WAS REQUIRED IN CERTAIN CASES TO COMPENSATE FOR THE TRAVEL EXPENSE. 7. INSURANCE IS A MAJOR ISSUE AS IT IS REQUIRED TO PROTECT THE COORDINATORS, THE CITY OF SARATOGA, AND OTHER SPONSORS FROM CLAIMS IN THE EVENT OF INJURY. 8. PREPARATION OF THE ASSEMBLY AREAS ON THE DAY OF THE PARADE REQUIRED PERSONALIZED VISITS FROM SPECIAL COMMITTEE MEMBERS TO ARRANGE FOR THE PARKING FACILITIES, CONCERN FOR TRAFFIC AROUND THE CITY AND THE MAIN ARTERIES OF THE CITY. 9. CAL TRANS REQUIRED FIVE MONTHS ADVANCE PLANNING IN ORDER TO CLOSE HIGHWAY 9 FOR THE TIME OF THE PARADE. lO.MANY VOLUNTEERS BECAME INVOLVED IN THE PARADE ENTRY LINEUP. THIS MONITORING OF MIXING ENTRIES WAS NECESSARY TO AVOID DUPLICITY OF SIMILAR ENTRIES IN ORDER TO CREATE AN OVERALL INTEREST TO THE PARADE. 11.THE NECESSARY CLEAN UP OF THE STREETS AND BARRICADES AROUND THE CITY REQUIRED THE COOPERATION OF CITY STAFF PEOPLE WHO WERE EXTREMELY HELPFUL. ALL IN ALL THE PARADE IS A FUN EVENT WITH A GREAT DEAL OF WORK FOR MANY PEOPLE. THE PARADE IS PLANNED OVER A TEN MONTH PERIOD AND THEN THE PARADE ITSELF LASTS APPROXIMATELY TWO HOURS. RESPECTRULLY SUBMITTED; 1995, 1996, 1998 PARADE CHAIRMAN WARREN LAMPSHIRE ~}~ac-Inw~.e~~ 2 @ yourrequest Events • Corporate & Privale • Blossom Festival We are Pam Dunnett and Reiko Iwanaga of At Your Request. We are long-time citizens and community volunteers of Saratoga who are professional event planners and fundraisers. Listed below are the initial thoughts on your request to consider a downtown festival. We have developed other events from an idea and know, by experience, that it is a dedicated process for an activity to evolve into fruition. Discussion and feedback from a number of entities, realistic appraisals on funding sources, and, most importantly, a "buy-in" from all the expected participants are necessary. Therefore, we see this as a beginning outline of ideas that will be developed into a community festival enjoyed by all age groups in Saratoga and beyond. Purposes for festival: • •Showcase Saratoga Village, Big Basin Way •Bring the community together •Highlight local talent •Honor a few distinguished citizens or groups •Incorporate the many institutions and groups in the city: seniors, students (West Valley College, elementary and high school, pre-schools), businesses, wineries, hotels, artists, service clubs, Chamber of Commerce, drama groups, etc. •Celebrate as a kick-off to Saratoga's 50"' anniversary in 2006 •Not a fundraiser The Event: •Should be modest in its first year as events take time to catch on •Should be different from the Street Dance, the Rotary Art Show and Building Bridges •Could be held following Farmers' Market to draw crowds • - •Could be held Memorial Day weekend or during the summer 20477 PorresY Hills Drive Saratoga, California 95070 tel: 408~567~2546 fax: 408~872~0812 email: atyrequestC~aoLcom @ yourrequest Eaents • Coryomte &Pnvate Possible activities for children Old fashioned foot races Scavenger hunt or stamp book (perhaps with local merchants) (books stamped by businesses -small prize at completion) Petting zoo Pony rides Rock climbing wall Jumper Children's Discovery Museum participation Finger printing Face painting and tattoos Children's crafts Children's rides and carnival games Bike safety, rally -Sheriff's Dept. Activities for everyone Flower booths -especially if it's a Blossom Festival Art show (using local arts groups) Crafts fair Walking tours Crime prevention booth Safety information Rolls Royce or other car club displays Wine tasting Health information tables (local hospitals, Red Cross, health agencies) Fire Station tour Book Sale from Book Go Round -could be brought to Big Basin Performance at Saratoga High Performing Arts Center Cooking demonstrations Media booths Raffle -prizes to be donated by local merchants. In this way, they are not asked to donate large amounts of merchandise or food. J 20477 Forrest Hills Drive Saratoga, California 95070 tel: 408 867 2546 fax: 408 872 0812 email atyrequest@aol.com @ yourrequest Events • Carpornte & Pnvnte Entertainment Opening ceremony with city officials and honorees Local drama groups putting on scenes from their productions Seniors from the Saratoga Senior Center classes Saratoga and Prospect High School musicians (marching band, string quartets, other small ensembles, jazz choir, etc.) Elementary, middle school, pre-school performances Local cultural performing groups Community Band West Valley College performers (jazz, dance, etc.) Roving performers (balloon man, magician, musician) Comedians at Blue Rock Shoot Food • Possibly a barbecue with personnel from Saratoga Springs Small plate menus for the day at various restaurants in town Popcorn, cotton candy machines -whatever does not take away from Big Basin businesses Restaurants open that day during the hours of the festival Krispy Kreme In and Out Burger Mobile Van Location Along Big Basin -could be opened or closed for traffic Three pods of activities at: Saratoga Village Center, Village Square and the Preston Wynn area Possibly close off 3`d Street for children's activities Empty storefronts Saratoga High School Marching Band could lead people from the Farmers' Market or Wildwood Park l1 20477 Forrest Hills Drive Saratoga, California 95070 tel: 408 867 2546 fax: 408 8720812 email: atyreyuest@aoLcom @ yourrequest Events • Coryorate Fd Private Process of Planning Establish a committee by inviting a representative from City commissions Arts groups Schools Pre-schools Scout troops, 4H clubs Saratoga Area Senior Coordinating Council Service organizations Saratoga Youth Commission Chamber of Commerce Other resources- YMCA, Foundations Reach a consensus on what the festival should be and who can handle specific areas or tasks. Service groups might be asked to sponsor a booth. Establish a timeline and meet regularly Work with the city Funding Sponsorships from corporations, businesses, service clubs Underwriting and in kind donations Small fees for booth space Minimal tickets for children's crafts (Pay for expenses) Use local citizens and cultural groups who will hopefully participate gratis Contract with companies who do not charge (children's rides, certain food companies) Special project related to Saratoga's ambience -sell artist decorated items (small benches, garden item, etc.) 20477 Forrest Hills Drive Saratoga, California 95070 tel: 408 867 2546 fax: 408 8720812 email: atyrequest@aol.com @ yourrequest Events • Corporate 6 Private Future Outlook: Parade for the 50`~ Anniversary celebration of Saratoga - Could be a simple hometown parade as in the past with local schools, clubs, bands, children with pets participating Festival with artists and craftspeople paying for their booths Increase in information tables and entertainment Expanded food choices Extended locations to include Saratoga School, Wildwood Park, Book Go Round Closure of more streets ~J ~i 20477 Forrest Hills Drive Saratoga, California 95070 tel: 405~867~2546 fax: 408~872~0812 email: atyrequestC~aol.com @ yourrequest Events • Corporate Fe Private Summary of Services of At Your Request Facilitate all meetings Develop a timeline Recruit local arts and drama groups Work with the schools and the Youth Commission Contact the Senior Center, service clubs and other groups Create a sponsorship packet Write sample letters which will be used for various correspondence Assign roles to different groups Involve volunteers who are recruited through the city council, city commissions and employees Handle all staging needs, including sound equipment Rent booths, tables, chairs, trash bins, port-a-potties Schedule sheriffs as required Coordinate with city and county on necessary permits and details Help with publicity and advertising Contact media for media sponsorships Meet with KSAR Establish a database of participants Plan a layout Oversee signage for all areas Work with webmaster on festival/city site Ensure that city has handled insurance Create a festival schedule and flier with a graphic artist Supervise set-up, breakdown and clean-up, using city or paid crews Be on-site coordinators throughout the event, working with volunteer chairpersons for each category 20477 Forrest Hills Drive Saratoga, California 95070 teL 4088672546 tax: 408 872 0812 email: atarequestCaoLcom @ yourrequest Events • Corporate b Private i @ your request will creatively, professionally and enthusiastically design your event • Produce a cohesive event consistent in theme and objective • Choreograph program schedule so the event effectively and successfully showcases the agency/company • Support committee efforts to reach an expanded and diverse audience • Negotiate all contracts • Utilize agency/company resources and contacts for event details (invitations, programs, centerpieces, awazds, decorations, etc.) • Create necessary committee job descriptions and a timeline • Facilitate all meetings and coordinate with all committee members or staff • • Advise on possible honorees, honorary committees and guest hosts/auctioneers • Act as liaisons with vendors and resources • Collaborate on preparing a sponsorship packet to seek potential sponsors • Create and send press releases to media contacts • Duect and plan elements of the event with technical crew • Write script emphasizing key messages or ideas • Assist in editing of print program • Oversee preliminary activities and rehearsals • Secure accommodations for out of town or special guests • Work with staff/committee on rtame tags, table seating, registration • • Supervise all aspects of the event until completion "' 20477 Forrest Hills Drive Saratoga, California 95070 tel: 408~867~2546 fax: 40&~872~0812 email: arycequestC~aol.com California Bay Area Festivals /~r~a.c,ln vke~t 3 MLA Productions Danville Fine Arts Connoisseurs' Palo Alto Festival of HPlumok n Besti a' Faire ~ Marketplace O the Arts ~ P MLA Productions is the producer of some of California's Finest Bay Area Art & Craft Festivals. Below is our 2004 Show Schedule. Danville Connoisseurs' Palo Alto Half Moon Bay Art & Pumpkin Danville F l s Fine Arts Marketplace Festival Festival ~ e ~ vial Faire 18 of the Arts 28 & 29 Au Oct. i6 & 17 Oct. 23 & 24 ]une 19 & 20 July 17 & g. 10 am-6 pm 10 am-5 pm 10 am-5 pm 10 am-6 pm 10 am-6 pm Santa Cruz Ave. University Ave. Main Street Hartz vie. Hartz Ave. CA nlo Park M Palo Alto, CA Half Moon Bay, CA Danville, CA Danville, CA , e These festivals are p roduced by MLA Productions with the cooperation and support of the sponsoring organization. the artist and may not be reproduced without written permission. d b ht i All artwork sh y e g own is copyr A PRl7~UCT1(7N5 @MLA Productions, 2004 7/13/2004 http://www.mlaproductions. com/ November 20, 2001 Shelby Maztin, President /CEO Danville Area Chamber of Commerce 117-E Town & Country Drive Danville, CA 94526 Dear Shelby, Let this letter stand as our agreement between MLA Productions and the Danville Area Chamber of Commerce regazding the production of the June and October festivals during the yeazs 2002 through 2004. MLA Productions will provide the following services, equipment and supplies based upon a joint agreement between the client and the producer as to what components shall be included in each festival: • Recruit, jury, coordinate and place a minimum of 200 quality aztists and/ or crafters .Recruit, jury, coordinate and place a minimum of 10 food vendors .Recruit, coordinate and place a minimum of 10 corporate exhibitors/ media sponsors .Recruit and communicate with any community group participants .Recruit, jury, coordinate and place packaged gourmet food exhibitors (October festival only) .Provide adequate stage and street entertainment - .Provide and staff a children s craft azea .Provide and implement amulti-level publicity and advertising campaign .Provide all supplies and design all materials needed for exhibitor and vendor recruitment & coordination .Create and maintain a pazticipant database .Collect and account for all vendor space fees .Staff, supply and supervise all beverage booths • Provide waste management services: festival clean-up crew, Aorta-potties, sinks, grey wale[ & gazbage bins • Provide electrical hook-ups for entertaimnent, corporate / media booths, food vendors (optional) • Provide canopies, food & beverage booths, furniture, staging • Provide site layout map • Provide signage for food vendor booths and banners for publicity purposes (optional) .Provide adequate and experienced labor to assure anefficiently-run festival .Apply for all festival-related city, county and state permits and licenses .Provide dedicated Website pages including listings and photos of participating exhibitors, entertainment and other featured components of each festival. .Attend periodic festival committee/chamber update meetings .List Danville Area Chamber of Commerce as additional insured on MLA Production s general liability policy My understanding is that the Danville Area Chamber of Commerce agrees to provide and pay for, if necessary, the following: •The listing of MLA Productions as additional insured on the festival's general liability policy •Any and all community-based festival activities deemed "traditional" • An Infonnation booth at each festival (optional) • Community contact information In return for allowing MLA Productions to be the exclusive production company, I agree to submit to the Danville Area Chamber of Commerce the total amount of $00,000 per festival. This amount will be paid in the following manner: $00,000 one month prior; and, $00,000 within two weeks following each festival. THIS agreement Wdl be m effect fOI a tJtrEe-yeaz pellod of time, unless at the end of the first year, either party wishes to amend it or dissolve it. If so, within one month following the October festival, a meeting date will be confirmed in order to discusseither pazt}/s concerns and an amended agreement will be issued. This agreerr~nt or the amended agreement as previously mentioned wIIl expire: October 31, 2004. ff you agree with the above statements, please sign both copies of this contract and return one to me by December 3, 2001. If yov aze not in agreement with any one or more statements or you wish to make minor changes, please do not hesitate to call so we can discuss your concerns. I look forwazd to working with you, Jeff, Tim and other interested chamber members in produdng festivals that will not only be fun, but also financially beneficial to both parties. Sincerely yours, Mazy Lou Atkins, Principal Shelby Maztin, President/ CEO MLA Productions Danville Area Chamber of Commerce Date Date SARATOGA CITY COUNCIL MEETING DATE: August 4, 2004 AGENDA ITEM: ORIGINATING DEPT: qty Manager's Office CITY MANAGER: r~~~~-" PREPARED BY: DEPT HEAD: SUBJECT: Appointment to the Joint Economic Development Policy Committee (JEDPC) RECOMMENDED ACTION: Appoint Council representative to the JEDPC. REPORT SUMMARY: The Cities Association Board recently approved the formation of a new Cities Association Committee, focused on economic development policies, and with the goal of providing recommendations to the Cities Association Board. The Committee's starting position is outlined in the attached memo. The Cities Association Board requested that each city appoint the Mayor or a Councilmember to serve as their city's representative on this advisory committee, the Joint Economic Development Policy Committee (JEDPC). When city appointments are made, an organizational meeting will be set, perhaps in late August. FISCAL IMPACTS: N/A CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: N/A ALTERNATIVE ACTION: N/A FOLLOW UP ACTION: Send notice of appointment to Santa Clara County Cities Association. ADVERTISING, NOTICING AND PUBLIC CONTACT: N/A ATTACHMENTS: Attachment A -Memorandum from Santa Clara County Cities Association Memorandum To: Santa Clara County Cities Association (SCCCA) Member Cities From: SCCCA Ad Hoc Economic Development Commlttee Date: July 8, 2004 Re: Regional Economic Development RECOMMENDATION Approve the formation of new standing Committee of the SCCCA called the Joint Economic Development Policy Committee (JEDPC) and designate each city's Mayor or other appointed Councilmember as a representative. The JEDPC would be advisory in nature, a foram wherein uniform approaches to economic development policy would be discussed and forwarded to the full SCCCA Board for further discussion and/or for action to each respective City Council. All such recommendations to local city councils will be purely advisory with no impact on local control. Examples of issues which may arise as part of the regional body's discussion might include discussion of local fiscal policies, simplification of processes for perinits or zoning applications, or the implementation of tax relief to encourage investment through consistent or universal policies in the region. A work-plan outlining the specific issues that the group will take on should emanate from their discussions and be determined collectively. In the context of this new regional body we would anticipate taking up issues that our individual councils can adopt quickly, such as changes to our local codes, policies, and procedures. BACKGROUND/ANALYSIS Joint Venture Silicon Valley (JVSV), the San Jose/Silicon Valley Chamber of Commerce, and the Silicon Valle}' Manufacturing Group (SVMG) have discussed the issue and have initially agreed to support and take part in the committee. Mr. Russ Hancock of the JVSV has offered to assist with staffing by augmenting the efforts of SCCCA and it's Executive Director initially and until such time that an alternative or procedural system is established. It has been conceptually agreed that the JEDPC would be composed of IS city representatives. 15 business representatives, 1 county representative, and the three aforementioned associations and their respective CEO's. The business representatives will be executives selected across various sectors, Prior to September a list of business executive nominees/invitees will be provided by the three organizational CEO's with final input froin SCCCA Board. In addition; stakeholders would be brought in on ameeting-by-meeting basis as the need arises to offer testimony and other input. The group should regularly meet a week prior to the monthly SCCCA Board meetings in order to provide the opportunity for immediate action each month. The first meeting to be scheduled in September of 2004 will be au informal orgamzational meeting. CONCLUSION The JEDPC will help develop a permanent regional body that will address economic development strategies for local government here in Santa Claa Comtty. What is being proposed is very new;anew local government/business policy board to deal specifically with regional economic development.