Details of a lawsuit brought by the Friends of the Hillsides against the Town of Los Gatos emerged this week, as the Observer obtained a copy of the petition filed with the court July 8. In response, the town released a fact sheet regarding the Acorn Meadows Planned Development. The dispute centers on whether the town should have approved multi-millionaire Rob DeSantis' plan for a large estate on 13.7 acres along Kennedy Rd. just east of Forrester Rd. Coming east on Kennedy Rd. past the Kennedy Meadows development, the property is to the left as the road begins to climb into the hills.
The term "planned development" is important. This mechanism is used for extraordinary projects that often involve subdivisions, lot line adjustments, and re-zoning. Property owners get to write their own ticket, so to speak, but the PD application is then thoroughly reviewed by the planning commission and, finally, by the town council. In this case, two parcels are joining together and the PD ordinance "precludes future development potential," according to the town's fact sheet.
The Friends of the Hillsides, "an unincorporated association," are "residents, taxpayers and/or property owners" residing "in close proximity to the site of the proposed Project," according to the petition. Former planning commissioner Lee Quintana, of Palm Ave. across town, verified the petition for the Friends. No other members are named, but former mayor Sandy Decker and Community Services Commissioner Christine Currie have been vocal critics of the town's approval, expressing concern that it opens the door for more hillside developments in the future.
A writ of mandate (also called a writ of mandamus), orders the town to follow the law or the town's own rules. The Friends' petition alleges that the town council's approval of the project May 5 "constitutes a prejudicial abuse of discretion." The council granted several exceptions to the town's Hillside Development Standards and Guidelines, and the petitioners allege that the exceptions were granted improperly. Citing the provisions of the California Environmental Quality Act (CEQA, pronounced SEE-kwah), the petition calls for an Environmental Impact Report (EIR).
"The overall goal of the Hillside Development Standards and Guidelines," according to the town's HDS&G itself, "is to work hand in hand with the Town's discretionary development review process to achieve design excellence that fosters sustainable development and preserves the natural environment." One interpretation of that passage would be to emphasize the discretionary aspect of the review process--meaning that the town council can decide what is acceptable. The petition's interpretation adds emphasis to the preservation of the natural environment. If that were the sole criterion, however, no development would ever be permitted.
The town's fact sheet breaks down the 13,276 square feet of floor area: the main house is 8,650 (the HDS&G mentions a 6,000 square foot limit). There is a 1,148 square foot guest house, a 1,778 square foot garage, a cabana, an art studio, a gatehouse, and a tennis pavilion. The home's 5,802 square foot cellar is exempt from inclusion.
Ninety-one homes in Los Gatos exceed 6,000 square feet, according to the town. Nine are larger than this home. Five of the ten largest homes are on Kennedy or Forrester Roads (that is, in this immediate neighborhood). DeSantis' neighbors are, as far as can be seen, in favor of the approved plans. Several adjacent neighbors spoke on behalf of the project at the planning commission and before the council, and no one publicly identified with the Friends of the Hillsides lives in the project area. The Webers, who live across Kennedy Rd., would only see the DeSantis house if every tree were somehow removed. They are in favor of the project, they told the Observer.
The petitioners feel that the council's use of a Mitigated Negative Declaration (MND) was out of order. According to the petition, changes to a project that mitigate potential impacts must be made before the council acts. "Over the course of several public meetings and hearings, the applicant agreed to make several modifications, but in the end, the project required several exceptions from the HDS&G," the petition says. "Not only has the project applicant failed to agree to mitigation of all reasonably foreseeable impacts prior to circulation of the MND, but several potentially significant impacts have yet to be identified."
The town's fact sheet asserts that the project complies with "all Hillside Development Standards and Guidelines," when four council-approved exceptions as allowed by the HDS&G are considered. The floor area exceeds 6,000 square feet, portions of the main house are taller than 25 feet (but less than 30 feet), there is more grading (cut and fill) than would ordinarily be allowed, and portions of the development extend beyond the Least Restrictive Development Area (LRDA).
The petition declares the MND inadequate, in part due to lack of a site-specific survey of impacts to wildlife or habitat. The petition cites an EIR prepared for a project off Shady Lane, less than a mile north of the DeSantis parcel, which identified five biotic habitats and recommended "focused surveys of the special status plant species having the potential to occur in the oak woodland habitat."
"It is well-settled that an EIR is required whenever substantial evidence supports a fair argumentthat a proposed project may have a significant effect on the environment," asserts the Friends of the Hillsides' petition.
As large as it is, the DeSantis residence is a small percentage of the site. The Floor to Area Ratio (FAR) for a 2500-square foot house on a typical Almond Grove lot is one-third (0.33). The town notes that of all homes in Los Gatos that are over 7,000 square feet, the home constitutes one-eighth of the lot, on average (0.123 FAR). The DeSantis home and various outbuildings are about one-forty-fifth of the lot (0.017 FAR).
The petitioners note that the project requires 11 retaining walls totalling approximately 1600 feet, a 950-foot driveway, and over 36,000 cubic yards of grading. No red netting "story poles" were erected for the project, because the top of the proposed roof is below the current ground level.
The town points out that the DeSantis residence will be certified as "green," using the GreenPoint Rated Standards. In fact, the project achieves 280 points, when only 50 are required. The council approved the project at its May 5 meeting on a 3 to 2 vote: Mayor Barbara Spector and Vice-Mayor Mike Wasserman were opposed to Joe Pirzynski, Diane McNutt, and Steve Glickman. The planned development ordinance was adopted May 19, 2008, and a Notice of Determination was filed with the county clerk June 10. The project was originally proposed in December 2004.
The Superior Court of the State of California, in and for the County of Santa Clara will decide, evidently. Unless the petitioners are granted an injunction (which was not specifically requested), the DeSantis project can proceed. In fact, Town Attorney Orry Korb explains, the town is required by law to consider architectural plans put before it. Stay tuned.
Thanks to "Citizen Ray" Davis for calling attention to the Deer Creek Ct. house.
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